Clause 8: Phil Warrick on Working with Senator Coons to Fix the Section 101 Mess

Clause 8 - Warrick

Before Phil Warrick began working for Senator Chris Coons (D-Del.), Capitol Hill wasn’t in his career plans.

But when an opportunity to work with Coons emerged, he decided to take the leap. For two years, he served as the U.S. Patent and Trademark Office’s (USPTO’s) IP counsel detailee to Coons after Coons helped to restart the Senate’s IP Subcommittee, working on bipartisan initiatives like the IDEA Act and legislation to fix the Section 101 patent eligibility mess. Those efforts were a dramatic departure from Congress’s previous fixation on the “patent troll” narrative.

“And for me, as a detailee, it was just a great opportunity to learn more about all these issues that were at play with intellectual property, and having really interesting conversations with folks on and off the hill, who said, I understand why this is your perspective, why you might have this view as a patent litigator, but let me give you this view from a completely different perspective,” Warrick says. “And it really opened my eyes.”

After Coons friend and fellow Delawarean, Joe Biden, was elected as president, the innovation community was hopeful that Coons would use his top role on the Subcommittee to prioritize patent issues within the Biden administration and Congress.

However, Democratic Senator Patrick Leahy (D-VT) had other ideas, and took over as the top Democrat on the Subcommittee.  Since that time, the Subcommittee has moved in a very different, arguably anti-patent direction, and Leahy’s views have won out in seemingly every major administration decision related to patents.

But in yet another twist, Leahy has announced that he is retiring and won’t seek re-election in 2022.  So, Coons is likely to return to his role as the top Democrat on the IP Subcommittee. Warrick’s insights from working for Coons are critical for anyone who wants to impact patent policy in the future.

Key Points

  • Capitol Hill staffers rely on a network they can trust. “It became apparent that a lot of people come to the Hill to lobby for various things. And everyone has an agenda, especially folks who are being paid.” As someone who had almost exclusively focused on patents, he had to rely on a close, trustworthy network that could lend a hand in areas like copyrights, trade secrets, and trademarks.
  • Compromise is key to getting IP legislation passed. When Warrick worked on legislation to fix Section 101, the effort fell apart before it even reached a committee vote. He says it was largely because key stakeholders were unable to compromise. “There needs to be some flexibility [when it comes to changing the law]. And also, just be realistic about the opposition and the fact that there’s probably going to have to be compromise with the folks who don’t want to change the law. Not everyone was prepared to do that.”
  • Passing legislation is tough, but it’s still worth it to have a voice in the debate. Even the smallest changes to laws like Section 101 can have an impact on organizations with patents. Knowing the issue well  — from the ins and outs of the legislation itself to all the ways it will impact the organization and potential solution — will put that company in a good position to have a voice in the debate. But the most important part: “Don’t be wedded to that specific solution. Because chances are, whatever you’ve typed up will not become law,” Warrick says.

Highlights

[01:53] Getting to know patents: Warrick tells the story of how patent attorney Roger Emerson introduced him to the patent field in Akron, Ohio.

[04:54] A career curveball: Warrick never planned to work on Capitol Hill, but things changed when former Coons detailee Jamie Simpson told Warrick about the opportunity.

[11:38] Creating a network: Warrick shares the most important lessons he learned on the Hill.

[14:59] Working across the aisle: Warrick discusses the bills and initiatives he worked to push forward with on a bipartisan basis, including with former podcast guest Brad Watts.

[18:35] Section 101 legislation: why the effort to fix the state of patent eligibility ultimately failed.

[32:09] Saving America’s patent system: why Sen. Coons’ is fighting to get the Stronger Patents Act passed.

[40:41] Finding common ground: how Sen. Coons and Sen. Thom Tillis (R-NC) were able to successfully work together on IP issues.

[42:58] The future of IP in the Senate: impact of Sen. Patrick Leahy, current chair of the IP subcommittee, retiring.

[43:58] A patent-unfriendly administration?: the Biden administration has taken a very different path on IP issues from what Sen. Coons would have chosen.

[46:56] A complex dynamic: how the complicated relationships and dynamics between Senators and issues that have nothing to do with IP impact patent policy. “And there certainly are situations where people are looking to get things done, they want to cut deals … [and] where you’re not debating one bill in isolation.”

 

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4 comments so far. Add my comment.

  • [Avatar for concerned]
    concerned
    April 5, 2022 08:06 am

    Pro Say: Thank you for your well wishes and support.

    One attorney on this blog adamantly feels the CAFC will not reverse themselves. Perhaps. I do not think this attorney read “B’s” brief.

    One aspect of the brief is the USPTO’s “evidence free” rejections, especially in light 55 documents of evidence that were completely ignored by USPTO, Board and Solicitor. Our evidence refutes their “evidence free” assumptions and their rejection position, while proving my process is not routine, not well understood and not conventional. The CAFC could pin that on the USPTO, Board and Solicitor without reversing themselves. How many cases come forth to the CAFC with evidence from every possible end user, one fact that led to B wanting this case?

    Also, the last minute Board’s “Hail Mary” rejection of mental steps. A problem would not need to be solved if mentally the same could be solved through a mental thought process. Cancer would be solved if I could just wish the same cured. There are two studies from accredited universities on record stating there is a problem beyond the reach of professionals, a big problem. It apparently cannot, and has not been wished away for the last 66 years by anyone in my field of technology.

    Accordingly, as much as I would love the CAFC to define “inventive concept” and “significantly more,” perhaps the CAFC will reverse just on the evidence and mental steps aspects without putting themselves (CAFC) in a position to go further in the appeal on the definitions.

    Just a layperson’s view.

  • [Avatar for Pro Say]
    Pro Say
    April 3, 2022 03:11 pm

    Big +1s, concerned and PTO-indentured (thank you both for fighting the good fight).

    When you make a deal (“common ground”) with the devil (FAANG / Big Tech), only the devil wins.

    Only. The. Devil.

    And when the devil wins the 101 / eligibility battle, innovation dies.

    The Congressional solution is quick, simple, and easy-to-understand:

    Once the Leahy patent-hating, un-American, big-tech puppet is off to his long-overdue pasture, either eliminate the unnecessary Section 101 (102, 102, and 112 prevent undeserving patents), or abrogate the Congress-usurping Alice / Mayo.

    Pick one. Then just watch as America quickly regains it’s former innovation leadership.

  • [Avatar for PTO-indentured]
    PTO-indentured
    April 3, 2022 12:43 pm

    A billion reasons why no ‘common ground’ will be found: Big Tech pays Big Money. In obscene amounts.

    This year alone, a lineup of fewer than ten Big Tech co.s are paying $90M to lobby just the US Senate. Quick math: that’s 450% the combined annual salary of all Senators, or if you like a mere $900K per Senator 1 year / $3.6M 1 term, $7.2M 2 terms, during Leahy’s terms?. If anything near this annual amount (of just the few companies) has been paid yearly over, say the last 15 years — you know, since the ‘patent troll’ fear-mongering flame was similarly fanned into Fairy Tale unreality — then ‘Lo and behold!’ we’ve gotta a $Billion reasons why there’s: no “Saving America’s patent system”, no “Section 101 legislation fix of the state of patent eligibility”, no “Finding common ground”, no successful working together on IP issues, etc. This is NOT complex.

    What we have instead, in this 21st-century, is a decision-making body grossly incentivized to ‘not act’ (very little paper-trail to inaction) who essentially only ‘listens’, relegates consideration — where American IP is concerned — to oligarch multinational entities dishing up a $B+ Senate spend. Where such spend is, apparently never viewed, or acknowledged to have been, obscene, or more politely: wildly disparate to what mere mortal American inventors could ever muster. To the contrary, a double-standard IP caste system has been institutionalized.

    If every Senator, on average, is doted on with not less than ‘a $3.6M influencing’ per term — just concerning IP — one would think that’s got to make a Senator feel pretty important, not to mention, the doting itself coming from the rarified heights of monolithic multinational giants, with $Trillions in market value (who thereby, cannot possibly afford a reasonable royalty payment for an innovation they themselves — despite being gargantuan — have proved unable to conceive).

    How in the world will mere mortal, unheard, individual inventors of America ever count in a money fixed-system such as this?

  • [Avatar for concerned]
    concerned
    April 3, 2022 06:30 am

    There is a lot more wrong with the patent system than fixing s101.

    When the USPTO, Board and Solicitor can write and tell the inventor the application met the law as written, that the process solved a long-sought business problem, and the submitted evidence is completely discarded, fixing s101 is irrelevant.

    The perverted use of collateral estoppel seems to be another favorite. Cherry picking cases that do not have the same fact pattern and cases that have different fields of technology are applied. Five banks were robbed, 4 people who live in your city were found guilty, therefore, you are guilty also. Never mind the fingerprints and DNA do not match, you were not picked out of a line up, and you were 1,000 miles away on live national television when the crime occurred. Evidence is discarded or not even acknowledged.

    Patents are granted as pleased, there is no rule of law. Not even an appearance of the rule of law.

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