Senator Chris Coons Says No One Who Has Ever Criticized Intellectual Property Can Head The Patent Office

Patents

from the and-biden-agrees dept

There had been some talk that we might, once again, get someone to head the Patent Office who actually understood and appreciated the many trade-offs associated with monopoly rights around inventions. But apparently that’s not happening. There’s an article in The American Prospect saying that Senator Chris Coons — one of the more maximalist of the copyright and patent maximalists in Congress — has secured some sort of ridiculous deal with the Biden administration that no one who has ever criticized patents will be allowed to run the US Patent & Trademark Office.

Patents have not historically animated sustained intraparty fights that spill out into headlines. But Coons?s pro-IP, pro-patent stance, and his long friendship with the president, has elevated the issue, and turned the selection of the next director of the U.S. Patent and Trademark Office (USPTO) into a flashpoint. Coons has been aggressive in working with the White House to secure a director who shares his viewpoints, and his top candidates have represented patent owners as lawyers or trade group leaders. According to sources on Capitol Hill and from outside groups, Coons has claimed that he was granted the power to make the USPTO choice in exchange for staying in the Senate. Coons had been seen as a potential pick for secretary of state.

Other members of Congress, including Sen. Patrick Leahy (D-VT), chair of the Senate Judiciary Subcommittee on Intellectual Property, have stressed in their conversations with the White House the need to balance the patent system to prevent abuse. Advocates have also asked the White House to ?overrule efforts? by Coons and his allies to put forward a USPTO director nominee who is ?aligned with the pharmaceutical industry or other intellectual property maximalists.?

First, it’s not surprising that Biden would go along with this. While Biden doesn’t have much of a track record of interest on patent issues, he was reliably one of the most maximalist Senators on the copyright front — so it’s not surprising that he’d be amenable to such a deal, even as many others in his party recognize the problems with such an approach.

The title of the article is somewhat ridiculous: “Chris Coons Working to Install Business-Friendly Candidate for Key Patent Position.” Being “pro-patent” is not “pro-business.” Patents and patent trolls are quite frequently anti-business. They are anti-competitive, and frequently anti-innovation — being used to stop, block, and suppress the companies who actually make stuff (or make stuff better). It’s not pro-business to be pro-patent. It’s pro-monopoly, and pro-patent lawyer.

And here, it gets even more insane. The article notes that Coons, along with Senator Mazie Hirono, sent a truly ridiculous letter to President Biden and VP Harris, saying that no one who has criticized patents should be allowed to be the USPTO director.

… the USPTO Director serves as one of our leading ambassadors for intellectual property and innovation. A history of criticizing or weakening American intellectual property rights will undermine his or her ability to advocate for strong protections and enforcement mechanisms with our trade partners.

That’s just ridiculous. Only installing someone who has never criticized the patent system means installing a foolish, ignorant person who refuses to recognize the various trade-offs associated with the patent system. Hell, even Coons himself is a critic of the patent system. He’s introduced bills to change the patent system (notably, to change them for the worse, but still, to change them).

In the letter, Coons also makes a bunch of assertions that are simply laughable to anyone even remotely familiar with the problems of over patenting, patent abuse and patent trolls:

… the USPTO Director should understand that clear, predictable, and enforceable intellectual property protections drive economic growth, foster entrepreneurship, create jobs, and improve our quality of life. Our intellectual property systems have long enjoyed a reputation as the international gold standard, and this has allowed the United States to leverage the incredible talents of our people to lead the world in technology and creative enterprise. The USPTO Director must ensure that risk takers can access the research and development investments necessary to challenge incumbent players, bring disruptive technologies to market, and win the global race to develop the next generation of personalized medicine, clean energy technology, quantum computing, wireless communications protocols, and artificial intelligence.

Anyone who thinks that patents are what is necessary to drive any of those industries has no idea what they’re talking about. Patents and patent trolls threaten the innovation in those industries.

Of course, some of this may be in Coons’ background. His one private sector job was as in-house counsel for W.L. Gore, makers of GoreTex (I’m sure it’s a total coincidence that Coons’ stepfather founded the company). That company holds a bunch of patents and has been involved in a series of patent fights. And Coons apparently still owns millions of dollars in stock from the company.

Of course, many of those fights seems to involve accusations that W.L. Gore infringed on the patents of others — including one somewhat infamous case that literally was over four decades in the making and which did not end well for Gore. Given that experience alone, you might think that Coons would recognize that patents are a two-edged sword. And even if you support them in some circumstances, they clearly can be used as a blunt weapon against innovation and product development, and as a costly attack on innovative companies.

Separately, of course, there’s the issue that Coons represents Delaware — and while the Texas courts have become famous as patent troll breeding grounds, lots of folks know that Delaware courts also are favored by patent trolls.

The second most common venue for nonpracticing entity litigation is Delaware: It alone sees as many cases as the next six most popular venues combined ? over 20% of cases overall. And as we?ve computed using data from RPX, non-practicing entities? Delaware patent suits end with loss or dismissal only 8% of the time, a scant difference from the 4% rate in Marshall.

Either way, it’s unfortunate that his view on patents seems so skewed and so dangerous — and that he was apparently able to cut some sort of deal with the Biden administration on who should run the USPTO. An ideal leader should be one who recognizes the competing interests with patents, not someone who slavishly praises patents, even the parts that are so problematic.

The Prospect article also floats some names that Coons has been suggesting — and they include literal patent trolls and patent troll lobbyists. Which is… not a good look at all. And that he has apparently tried to shoot down two candidates who would be excellent: Colleen Chien of Santa Clara University Law School and Arti Rai of Duke University. Both have done lots of research and have written important papers on the patent system, while noting some of the problems with them. But, perhaps for those reasons, Coons is trying to block them from being appointed and make sure a patent troll or, at least, a patent troll friendly lawyer gets put in place instead.

That all of this is happening against the backdrop of a pandemic — let alone one where the overuse of patents to block vaccines and treatments has been a major concern — makes you wonder: is Coons truly interested in what’s best for American innovation… or what’s best for his W.L. Gore stock?

Filed Under: biden administration, chris coons, criticism, patent trolls, patents, uspto, uspto director
Companies: w.l. gore