Analysing IP impact of US midterms as results unfold

The outcome of this week’s US congressional election remains uncertain days after voters headed to the ballot box, with control of both the Senate and House of Representatives in the balance. But what is known so far bodes well for intellectual property policy, according to a range of current and former congressional sources, administration officials, lawyers and lobbyists who spoke with IAM.

Here’s a rundown of what we know so far:

Elections will not hit Senate IP Subcommittee hard – The biggest impact for the Senate IP subcommittee is not the elections but the retirement of Chair Patrick Leahy, a Vermont Democrat seen as not hard-line “pro-patent”. The current next Democrat in line, Chris Coons of Delaware, is more closely aligned with the pro-patent perspective and takes a similar stance to top Republican, Thom Tillis of North Carolina. One observer said Tillis might lean a little more toward copyright issues and be slightly less aggressive on reforms for patent owners. But, regardless, the remaining subcommittee members are generally passionate about IP and are all coming back to the Senate. Possible snags could arise if either leader moves off the IP Subcomittee or if Judiciary Committee leadership decides to do away with it altogether. However Coons and Tillis have a clear IP focus: Coons recently announced co-sponsorship of a Tillis bill on patent eligibility which could be brought up again in the next Congress – though it will likely face headwinds.

House IP Subcommittee in comparative “churn” – It is more common for the House Subcommittee on the Courts, IP and the Internet to see changes and that is the case with the midterms. The top Republican, Darrell Issa of California, is expected to become chair if the House flips from the Democrats, as expected, and is seen as more sympathetic to the view that “patents can be abusive”, as one staffer put it. And the subcommittee may be made smaller. The biggest IP upset of the week was the loss of number two Republican, Steve Chabot of Ohio, who was seen as IP-friendly.

Optimism that IP will remain bipartisan  – Sources were generally positive about the prospects for action on intellectual property issues, including patents, copyrights and trademarks. That’s because subcommittee leadership in both chambers is highly motivated and IP tends to be less partisan than other issues dealt with by the larger Judiciary committees. This could mean hearings and work on issues such as the Patent Trial and Appeal Board (PTAB), Section 101, standard essential patents, oversight of the USPTO, patent quality, trademark protection, and influence of the director, as well as an overhaul of the Digital Millennium Copyright Act (DMCA). There is also bipartisan momentum to take action to protect US IP from threats emanating from China (for both patents and trademarks), and the combination of Coons and Tillis could be a little more open to companies pressing for stronger IP protections. Another factor mentioned was that USPTO Director Kathi Vidal may take actions that change the direction or need for legislation in the coming year. In sum, even when Congress is divided, IP can be a way to get things done.

Divisions in views within and across party lines – But it is difficult to achieve big changes because members have different views and there are “deep pocketed” interests on all sides, sources noted. An example is the PTAB: Issa has indicated interest in strengthening it while another committee Republican, Thomas Massie of Kentucky, has a bill to disband the PTAB. House leaders meanwhile have been signalling that investigations of high-level Democrats may take over as a priority, which would involve the Judiciary Committee, squeezing out other issues like IP. But a veteran staffer said no matter what is happening in the spotlight, work tends to continue on IP issues. Many of the IP staff on Capitol Hill are USPTO detailees.

Another possible divisive issue is the World Trade Organization TRIPS waiver for vaccines, which some Democrats are said to want to push in Congress, even as there is a push in Geneva to expand the waiver to other products. US*MADE Executive Director Beau Phillips said patent issues being ‘Big Tech versus Pharma’ is outdated. Patent issues are manufacturing issues, he said.

As the ballot-counting continues, it remains to be seen which party wins congressional control and therefore control of the committee chairs and the setting of priorities. Committees are expected to be decided before the new two-year term starts on 3 January. Whatever the outcome, IP looks set to remain high on the political agenda.