Posts in Capitol Hill

Thus, Lee did not agree with Senator Durbin’s main point, which seemed unequivocally to be that additional patent reform is not necessary at the moment, but did agree that the landscape has significantly changed. Taken in totality, it is fair to say that Lee was being consistent with her earlier response to Senator Grassley; namely that it is her position that additional reform is necessary, but that it needs to be balanced and pursued with caution.

The issue of patent reform and patent trolls would go on to dominate the confirmation hearing. At one point during his questioning of Lee, Senator Dick Durbin (D-IL) explained that patent reform has been a real eye opener for him. While working on the America Invents Act (AIA) he explained that he in good faith tried to take the considerations of his constituents into consideration, offering amendments to address their concerns. Then after he voted for the bill he was inundated with calls and e-mails about why he voted for that “bad bill.” Durbin explained that he has since become determined to be far more proactive because this is such an important issue. He has been holding meetings and talking to constituents and everyone is telling him that it is premature to engage in additional patent reform and the Congress should slow down.

This will be the first time that Lee has had a confirmation hearing. The timing suggests that the Obama Administration and Senator Reid think that they can get Lee confirmed prior to the end of this Congressional session, which may well be the case. Assuming that this hearing will be more than just a show, there are a number of difficult questions that should be asked of Lee… Why is the Patent Office secretly subjecting applications to extraordinary scrutiny? Do you support fee-shifting legislation to combat the perceived problem of “patent trolls”? Does Congress need to step in and amend 35 U.S.C 101 to provide a more clear definition of what is patent eligible?

The unfortunate reality is the United States is no longer the most favorable jurisdiction for innovators. There has been a full assault on patent rights that started at least as early as 2005. Ever since we have seen proposed legislative change after proposed legislative change, as well as a never ending stream of cases at the Supreme Court and Federal Circuit that continue to weaken patent rights. Innovators are under attack from ever expanding judicial exceptions that render more and more subject matter patent ineligible, and from an ever expanding view of what it means to be obvious. This coupled with fresh new ways to challenge issued patents and concern about a patent litigation explosion that doesn’t exist is leading to extraordinary mischief in the Courts, on Capitol Hill and in the White House.

In the 10 planned work days during September 2014, it does not seem as if the House of Representatives will take up the Innovation Act or any modifications thereto that might sweeten the bill for the Senate. So what happened between August 8, 2014, when the Innovation Act was going to be a piece of an omnibus jobs bill that would help define the messaging for House Republicans leading into the midterm elections and September 4, 2014, when it was removed from consideration as an important piece of the Republican jobs agenda?

Capitol Hill is frequently the setting for both grandstanding and pandering, and given the prevailing political and public sentiment it is also frequently a place where businesses find an inhospitable welcome. A recent case in point: Three senior members of Congress (Henry Waxman, Frank Pallone Jr., and Diana DeGette) have started a joint investigation into the pricing of Sovaldi, a breakthrough drug for hepatitis C produced by Gilead Sciences. Rather than applaud the health benefits that this drug will deliver, Congress is grilling the company on their pricing decision, striking fear in the investment community, and indirectly undermining the healthcare innovation that is so desperately needed.

In recent weeks news has come out that Phil Johnson’s nomination as Director of the United States Patent and Trademark Office is dead. It seems to be dead due to the protest of at least one Senator on the Senate Judiciary Committee, not because the onerous vetting process produced any red flags or because the White House has lost interest. The Senator allegedly unhappy is Senator Chuck Schumer (D-NY)… [N]ominees [are put] through an extraordinary vetting process that reportedly can take between 5 to 9 months to complete even in the best case scenario. Let’s say that the White House has decided to move past Johnson and will not look back. They must first identify a willing candidate; someone who can pass through the gauntlet that is the vetting process, has the requisite experience and who is willing to take a substantial pay cut. Such an individually would likely having to unwind investments and holdings, or at least put them into some blind trust. Even if the White House can this week identify that person who accepts the invitation to take the position and who is willing to subject themselves to scrutiny that would make an IRS inquiry look like a day in the park, that means we are looking at at least January 2015 before confirmation.