Earlier today Congressman Darrell Issa (R-CA), announced that he will not seek re-election in 2018 and will retire from Congress. Issa, who currently Chairs the House’s Judiciary Committee’s Subcommittee on Courts, Intellectual Property and the Internet, has been an outspoken advocate for the need for more patent reform. Issa, who narrowly won re-election in 2016, has steadfastly proclaimed that additional patent reforms are necessary in order to provide relief from those he believes are abusing the patent litigation system — those sometimes called patent trolls. Indeed, Congressman Issa rather imperiously stated during opening on particular hearing that the term “plaintiff” and “troll” are interchangeable, viewing all patent owners who seek to enforce their patents as patent trolls.
Issa’s retirement announcement will come as welcome news to patent owners, who have watched the American patent system collapse over the last 12 years as the result of Congressional action, the creation of the Patent Trial and Appeal Board (PTAB), and unfavorable decisions from both the U.S. Supreme Court and Federal Circuit.
“We are applauding Congressman Darrell Issa’s decision to not run for re-election in California’s 49th district,” said Paul Morinville, an inventor and Founder of US Inventor. “Issa was a key driver in the last decade of
job-killing legislation and other changes to the U.S. patent system that have seriously weakened our nations innovation engine. His broad changes in the patent system has discouraged investment in innovative startups.”
Issa’s decision not to seek re-election means that the three most ardent Republican supporters of patent reform in the House will not return for the 116th Congress in January 2019. House Judiciary Chairman Bob Goodlatte (R-VA), announced his retirement in November 2017. Former House Judiciary Chairman and co-sponsor of the America Invents Act (AIA) Congressman Lamar Smith similarly announced his retirement in November 2017.
Currently, Republicans hold a 46 seat advantage in the House of Representatives. If Republicans hold on to a majority in the House it seems likely that Congressman Doug Collins (R-GA) will take over as Chair of the House IP Subcommittee. Collins, an ally to inventors and creators, is currently Vice-Chair of the House IP Subcommittee. If Collins is granted the gavel that would be good news for patent owners and those generally supportive of strong intellectual property rights. Collins recognizes that “creativity undergirds the 21st century economy,” and there is a need for strong IP protections. “From the beginning, Congress has had the responsibility of upholding and strengthening those rights—which fuel American ingenuity,” Collins explained in December 2016. Collins also co-sponsored the Innovation Protection Act, which would provide a source of permanent funding for the USPTO. See also my Interview with Congressman Collins.
Issa has represented California’s 49th Congressional district, which includes areas of San Diego and Orange Counties, in the U.S. House of Representatives since January 2001. According to the biography on Issa’s House website, he served in the U.S. Army after graduating high school and went on to become the CEO of Directed Electronics, Inc., a company Issa founded in the mid-1990s, which sold anti-theft devices for vehicles such as the Viper car alarm. Issa’s bio also notes that he has served as the chairman of the Consumer Electronics Association, today the Consumer Technology Association.
“As the holder of 37 patents himself, Issa has been vigilant about protecting the intellectual property rights of artists and other entrepreneurs to help protect America’s position at the forefront of innovation and creativity in the entertainment and technology industries,” Issa’s bio reads. According to The Hill, those 37 patents are the most patents held by a Congressional representative on record. (Not far behind Issa is Congressman Thomas Massie (R-KY), who holds 29 patents and has spoken recently about the ways that the current patent reform debate is weakening the U.S. patent system.)
Given Issa’s history with patents and innovation one would have expected him to be more of an advocate for inventors, and an advocate for a strong patent grant being necessary to develop technology companies (as Congressman Massie is). Over the years Issa demonstrated that he was not a friend to independent inventors, even being hostile toward them at times.
Issa, known for his bombastic style, explained to an audience at the National Press Club in February 2015 that he has seen the patent litigation process both as a plaintiff and a defendant. His message that February morning was clear to those opposing patent reform. Issa told the audience that while Congress would listen to those both for and against patent reform legislation, the arguments of those opposing patent reform wouldn’t matter. He said point blank that those seeking alterations to the then pending Innovation Act would not succeed. Ultimately, however, opponents of the Innovation Act did prevail and that version of patent reform died.
While many will celebrate Issa’s decision to retire, his legacy on patent issues is a complicated one.
“As a patent owner himself, Chairman Issa understood the importance of a strong IP system,” said Todd Dickinson, former Director of the United States Patent and Trademark Office and current partner at Polsinelli. “While some differed with him on his approach to specific reforms, his heart was always with the system, so losing someone who knew the patent system personally will be a loss.”
Whether Issa was a hero or villain on matters of patent reform will largely be in the eye of the beholder. Many large corporations — such as Google, Cisco and J.C. Penney — have continued to seek additional patent reform ever since the AIA was signed by President Obama in September 2011, and have found Issa to be a strong ally.
What is not open for debate, however, is Issa’s influence in a positive way, on how the federal courts structurally handle and assign patent lawsuits. “He should specifically be remembered for initiating the legislation that ultimately lead to the judicial Patent Pilot Program, which has been a successful attempt to create focus and training among District Courts and their judges having a particular interest in patent cases,” Dickinson said.
Dickinson also pointed out that with so many senior Republicans choosing to retire rather than run for re-election there is the potential that 2018 could shape up to be a “wave election.”
“To the extent that it signals a so-called ‘wave election’, we will have to wait and see who will succeed him as Chair of the IP Subcommittee,” Dickinson explained. “We seem to be coming into a period of somewhat increasing balance in the Congress on patent issues in particular, so this may also signal movement in that regard.”
Although it is impossible to predict at this moment, should the Democrats take the House of Representatives in the next election cycle that could mean that Congressman Jerrold Nadler (D-NY), who is the Ranking Member on the House Judiciary Committee, or perhaps Congresswoman Zoe Lofgren (D-CA), would become the new Chair of the House Judiciary Committee. Both Nadler and Lofgren have been supporters of patent reform efforts in the past. Congressman Hank Johnson (D-GA) is currently the Ranking Member on the Subcommittee on Courts, Intellectual Property and the Internet, and could perhaps ascend to Chair the House IP Subcommittee. Johnson has taken positions in the past favorable to patent owners, such as his Amendment that would have substantially changed the fee-shifting provisions of the Innovation Act.
UPDATED @ 1:48pm ET. Added the quote from Paul Morinville of US Inventor. Also, an earlier edition of this article erroneously said the Republican majority was only 24 seats in the House. The Republicans hold a 46 seat majority. To take control of the House Democrats would have to flip 24 seats.