Congressman Darrell Issa: A well-financed ally of the efficient infringer lobby

Congressman Darrell Issa

Rep. Darrell Issa (R-CA), House IP Subcommittee chair

In recent months Congressman Darrell Issa (R-CA), chairman of the House Judiciary Committee’s Subcommittee on Courts, Intellectual Property and the Internet, has been particularly vocal about activities relating to the U.S. patent system. As the top patent owner and richest member of Congress, Issa could be expected to have influential views on patent rights and how they can be leveraged to achieve business success. Knowing he is a patented inventor himself, one might initially be lead to believe he is sympathetic to the plight of independent inventors, start-up companies that requires strong patents to survive, and research and development companies working on everything from cures for cancer to mind-blowing artificial intelligence systems that replicate science fiction at its best.

Yet Issa takes a very dim view of patent owners who actually seek to enforce their patent rights despite the fact that the company he founded was a plaintiff itself in patent cases where Issa’s patents were asserted. Exactly what good is a patent in 2017 if you are not willing to enforce it? None whatsoever. Between Congress establishing the death squad known as the Patent Trial and Appeal Board (PTAB) and the U.S. Supreme Court overruling three decades of well-settled law pertaining to patent eligibility, innovators have been under siege. The licensing market has dried up, so the only way a patent owner has any hope against recalcitrant infringers (of which there are many) is to sue.

But sue as a patent owner and suddenly you are a bad actor, perhaps even a patent troll. At least according to Congressman Issa who, last April, actually said on the record that “plaintiffs” and “patent trolls” were “interchangeable” terms.  Never mind that Issa has labeled every plaintiff in a patent case as a patent troll.

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If all plaintiffs are trolls, then Issa must think that every plaintiff is a “scourge of the patent world”; that is, at least, according to his statements in a hearing this June following the U.S. Supreme Court’s decision in TC Heartland LLC v. Kraft Foods Group Brands LLC. In hearing after hearing, Issa continues to rail against “patent trolls” in a way that directly flies in the face of his own experiences as an inventor and CEO.

But exactly what good is a patent unless you are willing to enforce the exclusivity granted when wrongdoers, who the patent system calls infringers, trespass on your rights and trample upon the patent granted by the federal government itself? An exclusive right requires exclusivity and the only way recalcitrant infringers who engage in the game of efficient infringement can be stopped is by suing them in federal district court. But exercise your right to protect property under the U.S. Constitution and Congressman Darrell Issa calls you a patent troll and a “scourge of the patent world.”

So why does Congressman Issa seem to despise inventors? Perhaps the better question is how much does it cost to get a U.S. Congressman to take a stand on a topic?

According to lobby financing database OpenSecrets.org, telecom giant AT&T (NYSE:T) has contributed $85,100 to Issa during his Congressional career, the vast majority of which comes from political action committee (PAC) funding. That makes AT&T the second-largest contributor of funds to Issa during his time in D.C. AT&T has focused a good deal of lobbying on S.1137, the PATENT Act, and H.R.9, the Innovation Act (of which Issa is an original co-sponsor), filing a total of 12 lobbying reports on either bill during the 114th Congress (2015-16), according to OpenSecrets. Both of those bills are notable for a number of provisions that would stifle the rights of patent owners. As one of the lobbying reports filed by AT&T shows, the company paid lobbyists to forward its interests on issues related to “patent reform, particularly with respect to venue, damages and other litigation issues” with regards to both bills. AT&T has also recently been seen in the U.S. Court of Appeals for the Federal Circuit on patent matters in that court’s 2016 decision in BASCOM Global Internet v. AT&T Mobility LLC, a decision that vacated a district court’s finding of invalidity of a patent asserted against AT&T under the standard from Alice Corporation v. CLS Bank International, so it’s not a stretch to suggest that AT&T’s lobbying efforts are not on behalf of patent owners.

The 5th-largest funding contributor to Issa has been Microsoft Corp. (NASDAQ:MSFT), contributing $61,500 over his career, again mostly through PACs. During the 114th Congress, Microsoft filed 16 lobbying reports on the PATENT Act and 13 reports on the Innovation Act. A Microsoft lobbying report indicates that its lobbyists focused on patent litigation reform for S.1137, H.R.9 and S.2733, the Venue Equity and Non-Uniformity Elimination (VENUE) Act, a bill targeting 28 U.S.C. 1400(b), the statute governing proper venue in patent cases which was the focus of the Supreme Court’s recent decision in TC Heartland. Similar stories could be told about Issa’s former organization, the Consumer Technology Association ($58,500, 100 percent through PACs); Bank of America (NYSE:BAC) ($54,600 total, $37,100 in individual contributions, $17,500 through PACs); the Internet and Television Association (NCTA) ($53,500 total, 100 percent through PACs); and, appearing a little further down the list, a stalwart of the efficient infringer lobby, Google (NASDAQ:GOOGL) ($47,145 total, $20,145 in individual contributions, $27,000 through PACs).

With all of this money, it seems the efficient infringer lobby has managed to find an unlikely ally in Congress — someone who made his money as an innovator who defended his patents as a patent plaintiff, which apparently makes him a patent troll.  At the end of the day, it may not be entirely fair to characterize Congressman Darrell Issa as a patent troll. Instead, he seems more of a swamp creature of the type that President Trump campaigned against: an individual who has fed from those who are actively trying to muck up the U.S. patent system in favor of large, entrenched entities and to the disadvantage of small, innovative patent owners who have previously always been the driving force of innovation and job creation in America.

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16 comments so far.

  • [Avatar for dh]
    dh
    September 24, 2017 04:05 pm

    Edward Heller,
    sure, if you mean by reversing the spineless and unprecedented language of previous SCOTUS decisions like KSR.

    That doesn’t happen by patting them on the back.

  • [Avatar for Edward Heller]
    Edward Heller
    September 23, 2017 05:08 pm

    dh, the Supreme Court remains our only hope in this battle against the big boys. I think you know this to be true.

  • [Avatar for dh]
    dh
    September 23, 2017 01:23 pm

    @ Heller,

    That anyone would defend the SCOTUS in its recent patent activism is quite a dismal indicator of that person’s motives.

  • [Avatar for dh]
    dh
    September 23, 2017 01:21 pm

    Issa was a CEO free-riding on his technical workers as co-author in his so-called “innovating” stage and that is not remotely similar to being an independent inventor. Issa also has a criminal record including multipe counts of theft.

    Why were you expecting different behavior?

  • [Avatar for Anon]
    Anon
    August 3, 2017 04:49 pm

    When it comes to patents, you can (generally) count on the Supreme Court to be anti-Patent, Mr. Heller.

    Why is it that you have such a difficult time recognizing this?

  • [Avatar for Edward Heller]
    Edward Heller
    August 3, 2017 04:16 pm

    Touché!

  • [Avatar for angry dude]
    angry dude
    August 3, 2017 02:48 pm

    Edward Heller@9

    liberty as in “lost liberty hotel” ? 🙂 🙂 🙂

    https://www.heartland.org/news-opinion/news/kelo-decision-motivates-plan-for-lost-liberty-hotel

  • [Avatar for Edward Heller]
    Edward Heller
    August 3, 2017 01:29 pm

    angry, I know the decisions. But, when it comes to liberty, you can count on the Supreme Court.

  • [Avatar for angry dude]
    angry dude
    August 3, 2017 10:42 am

    Edward Heller@7

    “But thank God we have a Supreme Court that is apparently willing to listen and to perhaps call a halt.”

    Dude, what kind of weed do you smoke ???
    All harm to patent system came from Scotus in the first place, long before AIA and such
    And that harm is pretty much impossible to undo
    We are talking more than half a dozen precedential Scotus decisions collectively eviscerating US Patent system, no less

  • [Avatar for Edward Heller]
    Edward Heller
    August 3, 2017 10:08 am

    The problem of Congressman Darrell Issa tells us that we can never expect to have liberty protected by Congress. Big money will always attempt to rig the system. And were big money goes, Congress soon follows.

    The courts exist to protect liberty. From the Magna Carta, to Edward Coke’s efforts against the absolutist monarchs James VI and I, and Charles I; from the American Revolution to the Fifth and Seventh Amendments, the protection against absolutist power are courts and juries.

    Thus we see in the efforts of Congressman Darrell Issa and his sponsors a consistent effort to strip patent owners of their right of access to the courts and to juries to further the interests of the crony capitalists. But thank God we have a Supreme Court that is apparently willing to listen and to perhaps call a halt.

  • [Avatar for angry dude]
    angry dude
    August 1, 2017 03:53 pm

    yes, that pos used his sh1tty mostly invalid (yes yes they are) patents for commercial gain
    and now he doesn’t want me and the rest of us to use our valid patents for commercial gain…
    typical us politician – a pos
    the swamp gets deeper and deeper

  • [Avatar for Burner Combustion Systems]
    Burner Combustion Systems
    August 1, 2017 06:25 am

    Wow! He holds 37 patents. Impressive. However, his co-sponsoring legislation that favored donors is disappointing. I thought Darrell Issa was one of the good ones! I guess I shouldn’t be surprised.

  • [Avatar for Poesito]
    Poesito
    August 1, 2017 12:17 am

    Observing Mr. Issa since he first came on the public scene in CA, he’s obviously driven by political ambition. Wouldn’t be surprised if he plans on running for the U.S. Senate again next year. The dog and pony shows could be more about convincing the bay area tech oligarchs who tilt strongly Dem that he’s the right tool for the job.

  • [Avatar for Bemused]
    Bemused
    July 31, 2017 11:25 am

    The election of Donald Trump was a denunciation of the rot and corruption which afflicts both the Democrats and the Republicans. Issa is a perfect example of this problem: He doesn’t give one s**t for American inventors or even American innovation. Instead his focus is on perpetuating his political career. Meaning he’s sold his vote (along with his morality – to the extent he ever had any) for re-election campaign money. Issa is a bum in a government controlled by like-minded opportunists/bums. Term limit all of these clowns out of office.

  • [Avatar for angry dude]
    angry dude
    July 30, 2017 08:10 pm

    can people of california get this pos out of congress ?

    I lost faith in this country

  • [Avatar for Night Writer]
    Night Writer
    July 30, 2017 11:33 am

    You can look at his campaign contributions and see Google feeds him.

    But, the bigger question is he getting other money? Favors from Google? I’d bet yes. That he is making money in business transactions that amount to 10’s of millions of dollars to take his positions.

    These are purchased people.