Of course, the Innovation Act has absolutely nothing to do with jobs, job creation, job retention or spurring the economy in any way, but save that issue for another day.
Congress has now returned to Washington, DC, which may or may not be a good thing depending upon your point of view. Regardless, there are very few active work days between now and when Congress will recess for the final stretch run to the midterm elections. Leading up to Congress returning McCarthy sent a memorandum to House Republicans on September 4, 2014, a copy of which was obtained by Breitbart. In this iteration of the Republican strategy there are 14 jobs bills mentioned and the Innovation Act is not among them.
The only innovation related bill that seems to be on the Republican agenda for September 2014 is a bill that H.R. 4438, the American Research and Competitiveness Act, authored by Congressman Kevin Brady (R-TX), which makes the research and development Tax Credit permanent. The bill touts that it will pave the way for increased innovation and investment in the United States, which does seem like a fair claim. It also seems legitimate to call this a jobs/economy related bill since pro-investment tax policy historically does have a net positive economic effect.
Thus, in the few planned work days during September 2014, it does not seem as if the House of Representatives will take up the Innovation Act or any modifications thereto that might sweeten the bill for the Senate. So what happened between August 8, 2014, when the Innovation Act was going to be a piece of an omnibus jobs bill that would help define the messaging for House Republicans leading into the midterm elections and September 4, 2014, when it was removed from consideration as an important piece of the Republican jobs agenda?
Why would the Republicans retreat from the patent bill at this time? Does this signal a change of heart by the House Republican Leadership? Is McCarthy saying now that Senate was right on patents and that President Obama is wrong? Once upon a time Republicans were talking about the evil of patent trolls and how something needed to be done to stop them. Have they become satisfied that the patent troll problem wasn’t as bad as the tech sector ever said it was, or have they finally figured out that not every non-practicing entity is a patent troll? See Who is a Patent Troll.
I’m sure that McCarthy knows that none of these “jobs bills,” or any other “messaging bills” will havea vote in the Senate over the next few weeks leading up to the midterm elections, so what is there to lose including the patent bill (or a version thereof) as a part of this jobs/economy package? After all, the Innovation Act passed by a vote of 325-91, which means it gained widespread support from both sides of the aisle.
Patent legislation is one of those peculiar bi-partisan pieces of legislation in what is increasingly a hyper-partisan town. But over the last decade as patent legislation, typically misrepresented as “patent reform legislation, has had meaningful and powerful constituencies on different sides arguing over even the most basic provisions. Truthfully, almost all of the legislative patent reform in recent memory was really nothing more than “patent change legislation,” but that change can and does negatively impact large segments of the innovative community. The Innovation Act was no different.
The one distinction with the Innovation Act was that there was a strong chorus of patent reformers who counseled caution given the fact that the America Invents Act is not even three years old. The most meaningful changes to patent law and process under the AIA were phased in on September 16, 2012, and then on March 16, 2013, so the dramatic transformation of the U.S. patent system is less then two years old.
Caution makes sense because with the major changes that were undertaken it is all but certain that there will be significant unintended consequences. That caution counsel won the day in the Senate when the U.S. Supreme Court made it easier for district courts to issue attorneys fees and more difficult for the Federal Circuit to overturn those attorney fee awards.
With big donors on both sides of the issue there is great risk for politicians. The patent system is not an issue that will drive voters, but it is an issue that can keep checkbooks from being opened. But if the issue continues into another Congress and there is hope that Congress can be persuaded to the side of right (defined by whatever side you are on) then you will write checks and try and influence decision making. That is the name of the game in the District.
The cynical, as well as astute political observers, notice that it typically takes 7+ years to get a patent bill across the finish line. So why pass something now when you might be able to milk the patent issue for another 5+ years?