Three days out from Election Day, 2020, there are still many votes left to be counted, but as of the time of publication, it seems Joe Biden is likely to take the U.S. Presidency. IPWatchdog explored what a Biden presidency might mean for intellectual property (IP) yesterday, but there were also important wins in the Senate and House that are worth noting. Overall, the key U.S. Senators and Congress members who have been most active on IP issues in recent years seem to have retained their seats, and leadership of the IP Subcommittees remains intact. However, how a new administration will change the makeup of these subcommittees and whether potential new leadership in the House following the Democrats’ failure to make the gains they’d hoped they would will affect the dynamic – remain open questions.
Thom Tillis (R-NC)
While votes continued to be counted in North Carolina in a tight Senate race as of the time of writing, it so far looks like Senator Thom Tillis will hold onto his seat against Democrat Cal Cunningham. As Chair of the Senate Judiciary Committee’s Subcommittee on Intellectual Property, Tillis has played a crucial role in moving forward on reforms to Section 101 patent eligibility law, although the bill was stalled last year due to what Tillis characterized as stakeholders’ inability to come to a consensus. In the wake of that, Tillis has been working hard all year on key reforms to copyright law, holding four hearings so far this year. Tillis has been a strong advocate of IP protections and has also introduced legislation to combat IP theft and hacking during the COVID-19 pandemic. In October 2015, Tillis also co-sponsored the Defend Trade Secrets Act of 2015, which was signed into law in 2016.
Tillis currently serves on five Senate Committees: the Committee on Armed Services; the Committee on Banking, Housing, and Urban Affairs; the Committee on the Judiciary; the Committee on Veterans’ Affairs; and the Special Committee on Aging.
Christopher A. Coons (D-DE)
Senator Chris Coons (D-DE) defeated Republican Lauren Witzke in North Carolina. As Vice Chair of the Senate IP Subcommittee and a scientist by training, Coons has also been extremely active in IP during his time in the Senate. He spent eight years working in the private sector for an advanced materials manufacturing company in Delaware prior to being elected to the Senate. Thus, Coons knows firsthand how important intellectual property protections are to promoting investments in breakthrough technologies and cures.
On the Senate Judiciary Committee, he has fought to strengthen and modernize the nation’s patent system and establish new protections for American inventions and innovations. Senator Coons’ intellectual property priorities include providing a federal forum for victims of trade secret theft; modernizing U.S. patent law via the Support Technology and Research for Our Nation’s Growth (STRONG) Patents Act, which he first introduced in 2015; protecting U.S. consumers from counterfeit goods; and promoting global protection of IP rights. Among the focuses of the STRONG Patents Act are eliminating fee diversion from the USPTO and “ensuring balance” in post-grant proceedings.
Lindsey Graham (R-SC)
Lindsey Graham beat Jaime Harrison by a margin of 54.62% to 44.07%, according to the Associated Press. The senior Senator from South Carolina and current Chairman of the Senate Judiciary Committee was elected to the Senate in 2002 and re-elected in 2008 and 2014. Prior to being elected to the Senate, Graham was elected to the House of Representatives in 1994 to represent South Carolina’s 3rd Congressional District, the first Republican elected to serve that District since 1877. Before being elected to the House, Graham served on active duty with the Air Force from 1982 to 1988. Upon leaving active duty he joined the South Carolina Air National Guard. Graham continues to serve in the Air Force Reserves and is currently a Colonel assigned as a Senior Instructor at the Air Force JAG School. In the Senate, Graham has been primarily focused on issues relating to the military, foreign policy and terrorism. His current Committee assignments include Appropriations, Budget, Foreign Relations, and Judiciary. Senator Graham has not been intimately involved with intellectual property matters. He does not have much of a track record to speak of with respect to either patent or copyright issues.
John Cornyn (R-TX)
Senator Cornyn won over Democrat Mary Hegar in Texas. Cornyn was elected as Texas Attorney General in 1998, serving in that position for several years until his election to the Senate in 2002. He served as Chairman of the National Republican Senatorial Committee for the 2010 and 2012 election cycles, and as Minority Whip in the 113th Congress. He currently sits on the Senate Finance, Intelligence, and Judiciary Committees, and 2013 until 2018 served as the Republican Whip, the second-highest ranking position in the Senate Republican Conference. Despite his leadership duties, Cornyn has been actively involved in supporting and proposing patent legislation. For example, in May 2013, Cornyn submitted legislation that would make loser-pay provisions applicable to both plaintiff and defendant. In November 2014, Cornyn also promised the Senate would take up patent reform once again in the 114th Congress. Cornyn was a supporter of the PATENT Act during the 114th Congress, which passed the Judiciary Committee, but then stalled. With respect to copyright matters, Cornyn joined forces with Senator Diane Feinstein (D-CA) back in 2003 and again in 2005 to introduce legislation aimed at combating the growing threat that copyright piracy poses to consumers, the entertainment industry, and the U.S. economy.
Tom Cotton triumphed over Democrat Ricky Harrington 66% to 33%. In 2017, Senators Coons and Cotton introduced the STRONGER Patents Act of 2017, which Cotton has continued to co-sponsor. In 2018, he co-sponsored the Preserving Access to Cost Effective Drugs Act (PACED Act), to restore “the power of the Patent and Trade Office and federal courts, and the International Trade Commission to review patents regardless of sovereign immunity claims made as part of sham transactions.”
Joni Ernst (R-IA)
Joni Ernst defeated Democrat Theresa Greenfield in Iowa. Ernst has also been a co-sponsor of the PACED Act with Cotton. She served in the military for over 23 years and was elected as the first woman to serve in federal elected office from the State of Iowa, as well as the first female combat veteran elected to serve in the Senate, in 2014. She serves on the Armed Services; Agriculture, Nutrition and Forestry; Environment and Public Works; Judiciary; and Small Business and Entrepreneurship Committees.
Ben Sasse (R-NE)
Ben Sasse defeated Democrat Chris Janicek in Nebraska. Sasse was elected to the Senate in 2014, winning each of Nebraska’s 93 counties, and securing the second-largest margin for a new senator in the history of the state. Prior to being elected to the Senate, Sasse spent the previous five years as President of Midland University. Sasse has also previously worked with the Boston Consulting Group and McKinsey and Company, as well as private equity firms and not-for-profit organizations. Sasse came to some national prominence during the 2016 election cycle as being one of the most outspoken Republican Senators in the Never Trump movement. In May 2020, he introduced the Facilitating Innovation to Fight Coronavirus Act, ostensibly intended to boost rapid innovation to combat the coronavirus, which was characterized by IPWatchdog authors as “a mixed bag with a lot of questions.”
Senator Sasse first joined the Judiciary Committee in the 115th Congress and does not appear to have any particular expertise with intellectual property matters generally, or patent or copyright matters specifically.
House of Representatives
Hank Johnson (GA-4)
Representative Henry “Hank” Johnson, Jr., who serves as Chair of the Subcommittee on Courts, Intellectual Property and the Internet, kept his House seat. Prior to his election to Congress, Johnson served 12 years as a DeKalb County magistrate judge, five years as a county commissioner and three years as chair of the DeKalb County Budget Committee. Johnson also practiced civil and criminal law in DeKalb County for 27 years. Johnson was elected to Congress in November 2006 and sworn in on January 3, 2007. This will be his eighth term in the U.S. House of Representatives.
During a Committee hearing on patent reform in June 2013, Johnson warned that legislation targeting patent trolls could open the door to deny plaintiffs “their right to go to court in other tort situations.”
Johnson has also been a long-time supporter of the USPTO retaining their fees. During a floor speech in July 2011, Johnson strongly supported the passage of the America Invents Act, although he said he would have preferred stronger language that would have guaranteed the USPTO could keep all of the fees it collected.
Jerrold Nadler (NY-10)
Representative Jerrold “Jerry” Nadler won by almost 70% in New York’s District 10. Nadler is Chair of the House Judiciary Committee. He also served as Chairman or Ranking Member of the Judiciary Committee’s Subcommittee on the Constitution, Civil Rights, and Civil Liberties for 13 years and also served as the Ranking Member of the Subcommittee on Courts, Intellectual Property, and the Internet.
Nadler was described by Neil Portnow, President and CEO of the Recording Academy (GRAMMYs), as a champion of music creators and, according to his website, “has taken a particular interest in the protection of artists’ rights.” He also describes himself as “a fierce promoter for the technology industry” He has sponsored a number of copyright-related bills, including:
- The American Royalties Too (ART) Act, which would require resale royalties be paid to visual artists when their work is resold and allow them to benefit when their work increases in value.
- The Fair Play Fair Pay Actto establish a terrestrial (AM/FM) performance right, and require all forms of radio to pay the same fair market value to performing artists and musicians, including music recorded prior to 1972.
- The Innovation Act with Goodlatte on February 5, 2015 and
- The Electronic Communications Privacy Act (ECPA) Modernization Act which would limit the ability of electronic or remote communication service providers from disclosing electronic communications that are in storage.
- The Hatch/Goodlatte Music Modernization Act (MMA), which he joined as an original co-sponsor. This bill, passed into law in October 2018, modernized copyright issues by establishing blanket licenses for digital streaming services. Aspects of Nadler’s Fair Play Fair Pay Act were incorporated into this bill.
Hakeem Jeffries (NY-8)
Hakeem Jeffries easily held onto his House seat, and there are rumors flying about that some would like to consider him to replace the current House Speaker, Nancy Pelosi. According to The Hill, two “centrist Democrat” sources told the publication that Jeffries is “’the only one prepared and positioned’ to be Speaker,” and that “[h]e bridges moderates and progressives better than anyone. And most importantly, he’s not Nancy Pelosi.” Jeffries, however, “immediately shot down” the idea.
Such a scenario could be good for IP though, as Jeffries has made a name for himself within the intellectual property world. Jeffries has been a champion of the law school clinical programs that allow law students to represent inventors and small businesses before the USPTO while working under the supervision of attorneys. Jeffries has also introduced alternative patent reform legislation in July 2013, which would have focused only on patent litigation matters. In 2017, Jeffries was part of the bipartisan sponsorship of the Copyright Alternative in Small-Claims Enforcement (CASE) Act, an effort to create an alternative forum for copyright enforcement matters. He also is one of the few members of Congress who have a page on their official websites dedicated to intellectual property issues. Jeffries’ IP page begins: “Strong Intellectual Property (IP) protection is an essential bedrock necessary to spur our economy and further American innovation.” Based on his press releases and speaking engagements, Jeffries has shown great interest in intellectual property. Having a Speaker who is vocal on IP issues could be a welcome change for the IP community.
Barry Moore (AL-2)
In Alabama’s District 2, Barry Moore won the race against Phyllis Harvey-Hall and will succeed House IP Subcommittee Ranking Member Martha Roby, who announced last year that she would not seek reelection. According to his website, Moore founded his own company in 1998, Barry Moore Industries. He served in Alabama’s House of Representatives from 2010 to 2018.