“Now, the architect of the PTAB is in control of patent policy in the Senate. Perhaps, moving forward, a lesson about the virtue of compromise will be learned, although that unfortunately seems unlikely.”
On Sunday, February 14, U.S. Senate Democratic Whip Dick Durbin (D-IL), Chair of the Senate Judiciary Committee, and Senator Chuck Grassley (R-IA), Ranking Member of the Senate Judiciary Committee, announced the Subcommittees and Subcommittee Chairs of the Senate Judiciary Committee for the 117th Congress. Many in the IP universe had hoped Senator Chris Coons (D-DE), the Ranking Member of the Senate IP Subcommittee for the 116th Congress, would be appointed the IP Subcommittee Chair, considering his strong support for various IP reforms along with the previous IP Subcommittee Chair, Thom Tillis (R-NC). Tillis will serve as Ranking Member of the Subcommittee this Congress, but Coons was not selected to serve as Chair.
As the result of a Senate caucus rule change earlier this month meant to distribute subcommittee chairmanships more evenly, Senator Patrick Leahy (D-VT) will now be serving as Chair of the Subcommittee on Intellectual Property of the Senate Judiciary Committee for the 117th Congress. The rule has come to be known as “the Murphy Rule” after Senator Christopher S. Murphy (D-CT), who proposed it. Leahy had pushed back on implementing the rule this term because implementing the rule would cost him Chairmanship of the Senate Appropriations Subcommittee on State, Foreign Operations, and Related Programs, which went to Senator Chris Coons (D-DE).
This curve certainly changes the calculus regarding any path to legislative reform during the 117th Congress. While Senator Coons does remain on the Judiciary Committee, and he is likely to again submit some version of the STRONGER Patents Act that has been submitted during each of the last three Congressional terms, he will not be in a position to even ensure that it receives consideration at the Subcommittee level. Given that the STRONGER Acts each sought to reform the Patent Trial and Appeal Board (PTAB), a centerpiece of the Leahy-Smith America Invents Act (AIA), it would seem extremely unlikely that Senator Leahy would move the bill forward in Subcommittee. And the portions of STRONGER that sought to overrule eBay and make it easier to obtain an injunction are dead on arrival for the 117th Congress.
This twist of fate that finds Senator Leahy back as the gatekeeper of patent policy in the Senate should be a wake-up call to those—particularly the independent inventors—who resisted all attempts at achieving a compromise over the last several years. There was, at one point, at least a glimmer of a possibility that some of the STRONGER reforms could have been carved out and moved forward bringing at least some legislative reform to the PTAB. Alas, the independent inventor community wanted the PTAB abolished and would agree to nothing less, which was foolish and was never going to happen. Now, the architect of the PTAB is in control of patent policy in the Senate. Perhaps moving forward a lesson about the virtue of compromise will be learned, although that unfortunately seems unlikely.
With respect to patent eligibility, which already was facing an uphill fight to even get back on the radar in the 117th Congress, the naming of Senator Leahy as Chair of the IP Subcommittee seems to all but end any hope of reforming 35 U.S.C. 101 over the next two years, leaving the U.S. patent system to uncomfortably dangle in a status quo that finds us falling behind both Europe and China in important areas such as artificial intelligence, machine learning, biotechnology and more.
With respect to efforts to reform the Digital Millennium Copyright Act (DMCA), which started during the 116th Congress, Senator Leahy was Chairman of the Judiciary Committee when the DMCA was passed and signed into law by President Bill Clinton. To the extent that Leahy is interested in revisiting copyright reform, which is sorely needed, Leahy would have both the institutional knowledge and gravitas to engage in meaningful reform efforts.
Having said all of this, it is hard to imagine that the Senate IP Subcommittee will be as active during the 117th Congress as it was during the 116th Congress, when Senators Tillis and Coons worked so closely together to move forward multiple issues. Indeed, although Senator Leahy was a member of the Subcommittee on Intellectual Property during the 116th Congress, matters of IP were championed by Senators Coons, Tillis and Mazie Hirono (D-HI) over and over again. Further, given that Leahy has stated that he plans to do the work of the Appropriations Subcommittee on State, Foreign Operations, and Related Programs at the full Committee level, one could wonder how interested he remains in IP matters and whether Chairmanship of the IP Subcommittee was a consolation prize.
In other assignments of note, Durbin also reestablished the Subcommittee on Privacy, Technology, and the Law, which will be chaired by Coons, with Senator Ben Sasse (R-NE) as Ranking Member.
Here’s a closer look at Leahy’s and Coons’ backgrounds and records on IP issues:
Senator Patrick Leahy – Chairman, Senate Subcommittee on Intellectual Property
Patrick Leahy is the current president pro tempore of the United States Senate and the senior-most member of the Senate Judiciary Committee. He has been a member of the Senate since 1974 and remains the only Democrat elected as Senator from Vermont and was the youngest U.S. Senator ever to be elected from Vermont, at the age of 34.
Leahy was of course co-author of the Leahy-Smith America Invents Act (AIA) and has been active on IP throughout his career. Outside of the AIA, he has been involved in legislation relating to privacy rights, copyright protections and freedom of speech on the Internet. He was a co-founder and remains a co-chair of the Congressional Internet Caucus.
In September 2013, he co-authored an article with Senator Mike Lee in Politico, which focused on the problem of abusive litigation tactics. Lee and Leahy subsequently co-authored the Senate patent reform bill that was introduced in 2013.
With respect to copyright reforms, in 2015 Leahy and Chuck Grassley called for a study of the Copyright Office and the role of copyright in a digital economy.
Senator Chris Coons – Chairman, Subcommittee on Privacy, Technology, and the Law
Coons represents Delaware in the United States Senate. He was elected in 2010 and reelected to a full six-year term in 2014, and again in 2020.
A scientist by training who received a B.A. in Chemistry from Amherst College prior to attending Yale Law School, Coons 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.
Senator Coons has remarked that “it is important for us to look hard at the ways in which the patent system has been mischaracterized, and how those who rely on it to defend their inventions and innovations have been mischaracterized in the debate and discussions of the last few years.” A Senator who is so in tune with the issues facing inventors and patents is rare, and his leadership on the Senate’s IP Subcommittee signals potential for real change in the near future.
Coons served as Ranking Member of the Senate IP Subcommittee for the 116th Congress and worked side-by-side with Tillis on attempts to introduce patent reform legislation and, last year, on reforms to the Digital Millennium Copyright Act. As Chair of the Senate Judiciary Committee’s Subcommittee on Privacy, Technology, and the Law, he will lead a panel that has jurisdiction over legal issues pertaining to technology and social media platforms, as well as other legal issues relating to Americans’ privacy and emerging technologies.
“This is a critical moment for the United States to lead not only the development of technologies of the future, but the legal frameworks that will guide their use,” said Coons in a statement. “We have much work to do to protect Americans’ privacy online, combat misinformation, and ensure the free flow of information, and I look forward to working with my colleagues on these important priorities.”