With Boehner gone will House Freedom Caucus be conservative on patent reform?

By Gene Quinn
September 28, 2015

John Boehner

John Boehner

The House Freedom Caucus, which is made up of the most conservative members of the House of Representatives, scored a big victory with the resignation of House Speaker John Boehner (R-OH). Boehner will remain as Speaker through Friday, October 30, 2015, at which time he will resign as Speaker and relinquish his position in Congress.

It is no secret that the most conservative members of the House of Representatives have been a thorn in the side of Speaker Boehner for virtually his entire tenure as Speaker of the House. Indeed, at times the House Freedom Caucus has shown no appreciation for the fact that a conservative Republican agenda simply cannot be enacted as long as President Obama remains in the White House and Senate Republicans do not have a filibuster proof majority.

Despite the impossibility of enacting a conservative Republican agenda the House Freedom caucus has demanded nothing less, taking out their collective frustrations on Speaker Boehner time and time again. Ironically, while Speaker Boehner has been criticized by conservatives as being a Republican in name only (RINO), several of the members of the House Freedom caucus who serve on the House Judiciary Committee have been anything but conservative on certain votes. For example, when it comes to patent reform at least some self professed Congressional conservatives have decided to side with the Obama Administration, giving Obama corporate supporters everything they want from patent legislation. Why don’t these votes on patent reform call into question the conservative bona fides of Members of Congress?

On June 14, 2015, the House Judiciary Committee approved the Innovation Act by a vote of 24-8. The Innovation Act has been widely criticized as being harmful to small businesses, technology based start-ups, universities and independent inventors, while at the same time being extremely beneficial to a handful of giant corporations that use patented technology, a group that some have dubbed the “infringer lobby.”

Interestingly, Congressman Trent Franks (R-AZ), Congressman Ted Poe (R-TX), and Congressman Ron DeSantis (R-FL) voted in favor of passing the Innovation Act (see Roll Call No. 4 – Final Passage of H.R. 9). Franks, Poe and DeSantis all serve on the House Judiciary Committee and are also members of the House Freedom Caucus. Congressman Jim Jordan (R-OH) also serves on the House Judiciary Committee and is a member of the House Freedom Caucus, although Jordan did not vote on the Innovation Act in Committee.

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At a time when any digression from the conservative orthodoxy draws the ire of the House Freedom Caucus, Franks, Poe and DeSantis voted to change the patent laws in a way favorable to large corporate interests at the expense of start-ups, small businesses and independent inventors. Such a vote on patent reform is anything but conservative. Indeed, the Innovation Act makes it more difficult for innovators to enforce legitimate patent rights. The constant and repeated chipping away for property rights is not something that a true conservative should be in favor of or even tolerate.

Many conservatives have criticized Republicans for going along with the Obama agenda relative to patent reform (see here, here and here). “Our founding fathers understood the importance and sanctity of property rights,” explained Ken Blackwell, a leading conservative commentator who has been calling for conservatives to oppose patent reform. “The constitution directly protects this right in Article 1, Section 8. Today, political expediency and corporate interests are forcing this initiative even though it is unnecessary, and frankly, harmful.”

The major driving force for patent reform has been and continues to be Google, which is widely known to be the largest corporate supporter of the Obama Administration. “The Obama administration is one of Google’s strongest supporters,” says Blackwell. “So much so that there has practically been a revolving door between Google and the White House.”

In fact, many have criticized the Obama Administration as the Google Administration, with dozens of former Google executives serving in top roles within the Obama Administration, including USPTO Director Michelle Lee. Prior to joining the Patent Office Lee was Head of Patents and Patent Strategy at Google.

Why would Republicans line up to support legislation being pushed by a top Obama supporter? Why would Republicans provide President Obama and Google with everything they want in patent reform? If for no other reason than pure politics it seems extraordinarily strange that Republicans would support the Obama/Google agenda on patent reform. It is outright bizarre that any member of the House Freedom Caucus would support the Obama/Google agenda on patent reform.

The House Freedom Caucus has practically demanded a conservative litmus test be applied to anything and everything, except with the notable exception of patent reform. It will be interesting to see if House Freedom Caucus members stand united against patent reform, or whether their brand of conservatism simply does not apply equally across the board to all issues.

The Author

Gene Quinn

Gene Quinn is a Patent Attorney and Editor and President & CEO ofIPWatchdog, Inc.. Gene founded IPWatchdog.com in 1999. Gene is also a principal lecturer in the PLI Patent Bar Review Course and Of Counsel to the law firm of Berenato & White, LLC. Gene’s specialty is in the area of strategic patent consulting, patent application drafting and patent prosecution. He consults with attorneys facing peculiar procedural issues at the Patent Office, advises investors and executives on patent law changes and pending litigation matters, and works with start-up businesses throughout the United States and around the world, primarily dealing with software and computer related innovations. is admitted to practice law in New Hampshire, is a Registered Patent Attorney and is also admitted to practice before the United States Court of Appeals for the Federal Circuit. CLICK HERE to send Gene a message.

Warning & Disclaimer: The pages, articles and comments on IPWatchdog.com do not constitute legal advice, nor do they create any attorney-client relationship. The articles published express the personal opinion and views of the author and should not be attributed to the author’s employer, clients or the sponsors of IPWatchdog.com. Read more.

Discuss this

There are currently 5 Comments comments.

  1. Pro Se September 28, 2015 7:30 pm

    In any other business, having an ex-worker of one of the biggest filer of patents would be considered a conflict of interest. Even lawyers that have worked as patent defense in litigation should not be made examiners. Another conflict of interest and opportunity of corruption. Do CPAs that used to work for a big accounting firm go back to work at the IRS as an agent?

    Engineers and scientist should be the only workers at the USPTO.. no disrespect, but its lawyers who have made it their business to operate outside of a courtroom and transplanted litigation tactics into our branches of government.

    What does anyone expect? Litigation is an opinionated field.. where influence outweighs facts.. Google figured it out and got their gal in there.. Obama is a lawyer so he naturally will agree with lawyers ideals before that of engineers and scientist.

  2. Michael L. Weiner September 29, 2015 8:35 am

    Marshall MacLuhan was correct about information overload.

    I see it as personified in the way we watch Congress destruct the US Patent system and also the way we don’t allow innovation into American clinics. Catch-22. Dementia including Alzheimer’s rages while there is a safe solution that’s been tested in humans and ready for expanded, affordable therapy.

    We lack $300,000 to get this into widespread clinical trials and show how well it works in large numbers. But we continue to miss the mark as a society. Needs someone who has the means and the will. I am in over $1 million out of pocket. Indifference is killing us. No one cares. If you do, let’s get to work on this. We are close to stopping a pandemic destroying our generation. No one seems to give a damn. Certainly not our NIH. VC’s prefer traditional Big Pharma and known pathways. Innovation seems dead in America. Our parents, our kids and our country deserve better.

  3. Ron Hilton September 29, 2015 9:42 am

    In their zeal to support free market capitalism, business-friendly political conservatives often fail to see the distinction between small upstart businesses and major entrenched corporations. In some respects big business can be almost as bad as big government, but they fail to see that. Or worse, the financial support that they receive from major corporations blinds them to that fact.

  4. Night Writer September 29, 2015 2:31 pm

    IMHO, patent law is going to end up in about the same place as employment law, anti-trust law, banking regulations. The big international corporations have ripped the teeth out of the federal agencies and only egregious behavior has even a chance to be punished (or even noticed).

    Google said publicly in 2011 that the only thing that could take them down was a new innovative search [with patent protection]. Failing that they said they are big and have an enormous advantage through the size of their infrastructure. If I were Google I wouldn’t want patents either. They still get like 80-90 percent of their revenue from search. (Note that Google has an enormous incentive to drive labor costs down too by getting rid of patents. Few understand the relationship between employment and patents, but without patents you go to trade secret which locks up employees and you go to private technologies.)

    It is going to be really bad. But, as long as you work for Google or get paid off by Google, you’ll be fine. You’ll get paid half of what you get now, but it is all for the great good of the Google World.

  5. Night Writer September 29, 2015 2:33 pm

    If I were in Lee’s position, I’d be screaming that Alice vastly increases the complexity and work load of the examiners. I’d say, please provide us with objective tests like TSM and get rid of 101 tests.

    I would say that is what we need to improve patent quality. The problem with Obama is he is like Clinton. He doesn’t understand patents and is just going along with people like Lemley to burn it down. This is very similar to what Clinton did to banking regularation.