Issa Re-election Loss Could Shake Up IP Legislation

Bloomberg BNA’s Patent Trademark & Copyright Law Daily™is the IP industry’s premier news service, offering objective, timely,and reliable daily news coverage and commentary from leading IP law...

By Tony Dutra

Nov. 2 — The members of Congress most involved with intellectual property issues appear to be safe bets for re-election, with one notable exception.

Rep. Darrell Issa (R-Calif.) is in a tight race in California's 49th Congressional District, rated a toss-up by at least three pollsters— Sabato's Crystal Ball, the Cook Political Report and Ballotpedia.

Issa chairs the House subcommittee most responsible for initiating IP bills—the Judiciary Committee's Courts, Intellectual Property and the Internet Subcommittee. The subcommittee also typically conducts hearings—four in 2016—on concerns to the IP community.

Influence on Innovation Act

Full committee chairman Bob Goodlatte (R-Va.) is likely to reintroduce the most controversial IP legislation, the Innovation Act ( H.R. 9) on patent litigation abuses, soon after the new congressional term begins. But stakeholders are pointing to developments in courts—such as new infringement pleading and discovery rules initiated in December—and the administration—including modifications to proceedings before the Patent Trial and Appeal Board—that could make some of the act's provisions unnecessary. The IP subcommittee could be the focal point for making revisions in keeping with those developments.

Issa was responsible for adding a provision to the bill before committee approval in the current session (113 PTD, 6/12/15). The provision would limit patent owners' ability to bring lawsuits in patentee-friendly courts, like the U.S. District Court for the Eastern District of Texas. That provision has quickly become a strong feature of the bill. But he acknowledged at a recent hearing that the U.S. Supreme Court may solve the problem if the justices review the TC Heartland case (204 PTD, 10/21/16).

Potential to Invalidate More Method Patents

The future of the so-called “covered business method” program enacted by the America Invents Act of 2011 may also be affected by this election, via the unusual meeting of the minds between Issa and Sen. Chuck Schumer (D-N.Y.).

Schumer and Issa both want extensions to the CBM program added as provisions in the patent litigation bills—the Senate version is called the Protecting American Talent and Entrepreneurship (Patent) Act ( S. 1137). The program was intended to allow an easy way to invalidate patents in the financial services industry and has a 2020 expiration date. The two legislators want to broaden the scope of patents that can be challenged—to include software patents, in particular—and either extend the program or make it permanent.

To date, Schumer and Issa have lacked the support to push through the change, but Schumer would become majority leader in January if the Democrats take control of the Senate.

Oddly, then, Issa's re-election and a change in Senate leadership present the best chance for those stakeholders who want to further weaken all method patents.

Chief Sponsor of Parts Act

Issa is also the lead sponsor of the Promoting Automotive Repair, Trade, and Sales (Parts) Act ( H.R. 1057), aimed at allowing car repair part makers to escape liability for infringing major car companies' design patents. Iterations of the bill have been considered since 2008, with different lead sponsors. Should Issa lose his seat, interest could wane.

But the bill has co-sponsors on both sides of the aisle and in both houses—Reps. Hank Johnson (D-Ga.), Zoe Lofgren (D-Calif.) and F. James Sensenbrenner Jr. (R-Wisc.) in the House; Sens. Orrin G. Hatch (R-Utah) and Sheldon Whitehouse (D-R.I.) in the Senate. The other representatives are projected to retain their seats; neither of the senators is up for re-election this year.

“Representative Issa has been instrumental in pushing the Parts Act,” Jack Gillis, director of public affairs for the Consumer Federation of America, one of the bill's biggest proponents, said in a Nov. 2 e-mail to Bloomberg BNA. However, he said, “If, by chance, he is not re-elected, I’m confident that Representative Lofgren will find a solid Republican partner, and we’ll still have the support of Senators Whitehouse and Hatch. Because the Parts Act is important for consumers, it will remain in consideration regardless of the makeup of Congress.”

Other Legislators Safe

The district Issa represents is located in the southern portion of the state and includes Southern Orange County and western San Diego County. Issa's opponent is Douglas Applegate, an ex-Marine who has appeal to the community's strong military presence.

Rep. Douglas A. Collins (R-Ga.) is currently vice chairman of the House IP subcommittee. He faces no Democratic opponent in the general election.

In addition to Johnson, Lofgren and Sensenbrenner, Reps. Judy Chu (D-Calif.), Hakeem Jeffries (D-N.Y.), Tom Marino (R-Pa.) and Jerrold Nadler (D-N.Y.) have sponsored IP-related bills in the current Congress. The pollsters project their re-elections without difficulty.

Sens. Chuck Grassley (R-Iowa) and Patrick J. Leahy (D-Vt.) are the other most important figures in the Senate with regard to IP legislation, and their re-election chances are categorized as “safe.”

If the Democrats do win a Senate majority, Leahy and Grassley may well swap seats as chair and ranking member of the Judiciary Committee. But that change shouldn't affect prospects for the largely bipartisan Patent Act they co-sponsor.

To contact the reporter on this story: Tony Dutra in Washington at adutra@bna.com

To contact the editor responsible for this story: Mike Wilczek at mwilczek@bna.com

Copyright © 2016 The Bureau of National Affairs, Inc. All Rights Reserved.