Saturday, September 14, 2019

Looney Coons meets resistance to ill-conceived STRONGER Patents bill that would increase patent troll litigation, harm high-tech innovators

Over at IPWatchdog they have a summary of this week's Senate Judiciary Committee hearing (video recording) on the STRONGER Patents Act, a bill primarily (but not exclusively) put forward and promoted by Senator Chris Coons (D-Del.). They place a little more emphasis on quotes from those supporting the bill, but they do acknowledge a "sharp split on injunctive relief, IPR [PTAB inter partes reviews] fixes."

The bill's name stands for "Support Technology & Research for Our Nation's Growth and Economic Resilience," but there's nothing positive to say about its content other than recognizing the creativity that went into the derivation of this marketing-friendly acronym and the fact that there is widespread consensus one should end USPTO fee diversion. While the tertiary item on "assisting small businesses in the U.S. patent system" sounds good, it's useless and amounts to diversionary tactics.

Like many--if not most--legislative proposals, "STRONGER" is a misnomer, and those opposing the pillars of that reactionary and harmful proposal stressed that stronger enforceability of patents doesn't mean a stronger innovation economy. As the Electronic Frontier Foundation accurately stated, that bill "would make bad patents stronger than ever." In a Washington Examiner op-ed, the R Street Institute's Charles Duan proposes that "Congress should look for solutions that enhance not the strength of patents, but the strength of patent correctness."

At its core, "STRONGER" is an

  • anti-America Invents Act,

  • anti-Supreme Court,

  • anti-Federal Circuit,

  • anti-PTAB,

  • anti-eBay v. MercExchange

basket of pernicious idiocies and boon for litigators, companies with products involving only one or a very few patented inventions, and above all, patent trolls. "MONGER" would be a more suitable name, in the sense of a warmonger (in this case, litigation, not literal war). The modified acronym could be resolved like this:

"Monetization Of Non-judiciously Granted Exclusionary Rights"

In a follow-up post I'll talk about the substantive points the witnesses (three in favor, three against) made at the hearing and in submissions (the record is open for a few more days). Before I get there, I'd like to discuss the two key players in the Senate Judiciary Committee, Chairman Sen. Thom Tillis (R-N.C.) and, especially, the zealot behind the bill, Sen. Coons.

Should anybody ever have believed that quick passage was an option for the MONGER bill, those hopes should have been dashed by Sen. Tillis's efforts to distance himself from (at least) the proposed overruling of the eBay v. MercExchange standard for injunctive relief as well as the "one bite at the apple" approach to petitions for PTAB inter partes post-grant reviews.

It's regrettable that Sen. Tillis joined Looney Coons (I'll explain the reasons for that pejorative nickname toward the end of this post) in writing a letter to USPTO Director Andrei Iancu--a letter that the recipient had likely requested, if not explicitly, then at least implicitly--ahead of the PTAB rule changes I've previously criticized. But Sen. Tillis appears to have second thoughts, or at least wants to see how things evolve before taking the next steps and perpetuating and/or exacerbating anything.

Sen. Tillis has an IT background. Whether his previous role as a "partner" (with respect to the consulting business that used to belong to PricewaterhouseCoopers) with IBM makes him particularly receptive to Big Blue's pro-monetization patent policy ideas is another question, but at least this background contrasts nicely with Looney Coons's (according to Wikipedia) sole real-economy job experience as in-house counsel at W.L. Gore & Associates, the company known for Gore-Tex and other materials, a business in which you have pretty much a one-to-one relationship between patents and products.

Looney Coons has a very, very special relationship with the Gore-Tex company, as this archived Delaware Online article, which I found through a page summarizing information about Coons that Wikipedia presumably prefers to remain silent about, reveals:

"Soon after those tough times, Coons' mother, Sally, married again, this time to Robert Gore, the wealthy chairman of Newark-based fabrics-maker W.L. Gore & Associates. Coons was 14 at the time."

At W.L. Gore, Coons was responsible for ethics training, federal government relations, e-commerce legal work and for general commercial contracting. To be fair, as a Yale graduate (though it's unclear to what extent he owed his admission to his wealthy stepfather's connections) who clerked for a Third Circuit judge Coons could have had job opportunities outside the family business, but that's where he spent the only eight years of his real-economy professional life, with a political focus (albeit a non-exclusive one).

W.L. Gore was among the top contributors to Coons's 2010 Senate bid, which was the critical one: a special election to fill then-VPOTUS Joe Biden's seat. Conventional wisdom would have said that the Democratic primaries were the real challenge as Delaware has elected only Democratic senators since 1994, and has also been firmly blue for about as long. However, as the great Rush Limbaugh noted then, Obama presumably wouldn't have gone to Delaware to campaign for Coons if Republican candidate Christine O'Donnell hadn't had a prayer. Democratic leaders might have been more concerned than they admitted that an article in which Coons described himself as a bearded Marxist (I'll link to it and discuss it further below) posed a serious risk in the general election.

Other major donors included Skadden Arps and the second-largest Delaware law firm, Young Conaway. Law firms obviously stand to gain from more patent litigation. The latter has also been Coons's top donor in the second half of this decade, just like lawyers and law firms (with Paul Weiss and K&L Gates, both also known for patent lawsuits, among the top 5) were by far and away the top "industry" supporting him. Then there was Amgen, a biotech company, a type of business that in terms of the patents-to-products ratio is similarly situated as the Gore-Tex company. Pharma is the top three industry supporting him. Lobbyists are fifth on the list.

Prior to this post, I had mentioned Coons only once: back in July 2012. But I had noticed on different occasions that the then-freshman senator took very extreme pro-patentee positions. He appeared to be highly motivated (by whatever or whomever) to promote a pro-troll agenda, but others were more influential at the time. He's now approaching the end of his second term (the first full term), and has positioned himself as the stalwart of making patents stronger at the expense of companies that create highly multifunctional products.

Delaware's nickname is The First State, but it's also a tiny state, though a great place for registering companies. Compared to the size of the local economy, patent litigation is a significant business there. Last year, IP Watchdog reported that "patent litigation shifts towards Delaware." It's like the East Coast equivalent of the Eastern District of Texas, and Coons presumably seeks to incentivize patent litigation because the local economy of a dwarf state like his significantly benefits from travel by patent litigators and more jobs at local litigation firms. The state is so small that its district court could fund a substantial part of its operations just by collecting pro hac vice fees from lawyers coming there from other districts to assert or defend against patents.

Coons is still what they would call a backbencher in the UK, so while I follow U.S. politics very closely (far more closely than the politics of any other country), one doesn't hear about him too often. On the few occasions his positions on non-patent policy items made news, I typically disagreed with him, but I've researched his voting records and statements and, contrary to his youthful sin of calling himself a bearded Marxist, he actually tries very hard to position himself as a centrist on some issues, though he's most accurately labeled a "liberal populist" (according to Interestingly, he's now facing an attack from the far left with a view to next year's Democratic primaries as he gets blamed for not having opposed certain judges nominated by the Trump Administration. Those ultraliberals aren't satisfied with his efforts to delay and derail the Gorsuch and Kavanaugh nominations (which he tried very hard), and even his assertion that Justice Gorsuch occupied a "stolen seat" isn't sufficient for their taste. They wanted him to be radically opposed to anybody President Trump would nominate. While I don't agree with those guys, from a patent policy point of view I wish them luck.

One huge problem in the patent policy context (though I hope the MONGER bill is still going to die) is that Coons has a style and certain views that give him great access to Republican colleagues. He does reach out across the aisle, though his anti-wall collusion with McCain means nothing, as the Arizona senator even betrayed his own electorate on Obamacare because he had only one goal in his final years: to oppose President Trump, who had offended him not only by what he said (by the way, McCain was ranked 894th out of 899--or fifth from the bottom in a group of almost 1,000 people--when he graduated from the Naval Academy) but even more so by winning with a politically-incorrect campaigning style that McCain mistakenly rejected when he had the chance. But many other Republicans respect Coons for his leadership role in a Capitol Hill prayer group. There are indications that he's well-liked by a number of Republicans, not all of whom are RINOs, and fellow Democrats probably don't view him as an exceedingly electable rival for higher office.

So they let him advance a patent policy agenda that amounts to pandering to the law firms among his donors, the family business W.L. Gore, similarly-situated patent holders, lobbyists, and to promoting his thumbnail state's economic interest in patent litigation, especially since it's not easy for Delaware-registered companies to get a troll case moved out of that district.

His centrist reach-out-across-the-aisle initiatives largely appear to be like the joint anti-wall effort with McCain: people who don't understand the issues may be misled to believe that they're a compromise, when in reality they don't solve the problem they purport to tackle. The MONGER bill is very much like that, and hopefully other Democrats, but especially the Republican Senate majority, won't be fooled. Again, Senator Tillis's reservations are excellent news for innovation and economic growth.

Coons's rhetoric at the hearing came down to platitudes like Miles's Law ("where you stand depends on where you sit") and the desire to appear as an open-minded moderator of different views, but a leopard can't change its spots and Looney Coons is the best friends patent trolls have had in the United States Senate in years.

No matter how level-headed he may pretend to be, the terrible nature of his patent policy proposals in and of itself justifies calling him Looney Coons. A 1985 article that he wrote for The Amherst Student raises serious concerns over his reasonableness and, generally, his judgment: Chris Coons: The Making Of A Bearded Marxist" (in order to distance himself from that self-attached label, he now stresses he's a fiscal conservative, and the record in his county actually does support that claim)

It's about how his African experience made him switch allegiance from the GOP to the Democratic Party. While my Trumpian views are well-documented, there are Democrats whom I consider reasonable and with whom I agree on some issues--even with Bernie, who every once in a while raises a valid point or at least asks questions that nobody else asks though they warrant further thought. So the problem is not that Coons found himself in agreement with Democrats on more important issues than with Republicans.

Looney Coons wrote that he "spent the spring of [his] junior year in Africa on the St. Lawrence Kenya Study Program" even though his "friends, family and professors all advised against it." He simply felt an urge to "see the Third World for [himself] to get some perspective," and in Kenya he "saw [...] poverty and oppression more naked than any in America, and [he] studied under a bright and eloquent Marxist professor at the University of Nairobi." While he wrote that he was still "thankful for [America's, and I guess also the Gore-Tex family's) wealth and freedom," he "questioned Amherst, and America." It sounds like he somehow felt guilty for his better fortune, which would be stupid but looks like a plausible explanation.

The question here is judgment. He's just one of countless people from the Northern Hemisphere who feel attracted to impoverished countries, be it in Africa (even my otorhinolaryngologist spent some time at an Ethiopian hospital) or Hispanoamerica. But while I respect people's choice to do that, and know that some of them may nevertheless become successful entrepreneurs I'd be happy to do business with or great lawyers I'd be happy to hire in a non-ideological context, I don't want people like that to hold political office because there's a very high risk that they'll then impose such irrational choices on everyone else.

That kind of decision just doesn't make sense if one preserves a healthy degree of selfishness--which is why everyone told Coons not to go there. If you want to see a different part of the world, there's plenty of safer, healthier and more prosperous choices than a place like Kenya. Presumably the facts were similar at the time Coons went there: at this stage, more than 140 (!) countries in the world have a higher per-capita GDP than Kenya (according to Wikipedia), and 115 (!) countries are safer. Why would an American student, from an ultra-high-net-worth family, possibly go there instead of, say, Oxford (as Bill Clinton did), or maybe France, Japan, China. And if he wanted to be indoctrinated with Marxist propaganda, Moscow at the time would have been one of the safest cities in the world.

It was an irrational choice because he irresponsibly prioritized one goal over other valid considerations. A social justice warrior who at some point decided to be too good for his own good. If it's only about his own good, let him do that. If he had never returned, we'd never have heard about it. But a decision like that is, in my opinion, a symptom of a partial derangement. Human beings aren't computers, and it's not rational to be 100% rational; we don't operate exclusively on the basis of economic considerations and game theory. But it is irrational to take huge risks for no good reason. Without the slightest need. And it's also crazy to see problems in a far-away part of the world and to feel bad about having a better life.

Looney Coons wants weak patents--patents that the USPTO grants after an average of only approximately 20 hours of net examination time, large parts of which have nothing to do with prior art searches--to survive even challenges that have merit. And not just to survive, but to succeed in court or, with injunctions being very likely if he got his way, to be used by trolls and their lawyers to extort companies that make real products. Whether he does this for W.L. Gore, some pharma companies, the litigation firms and lobbyists among his top donors, for the local Delaware economy, or simply because he's irrationally obsessed with an idea of "STRONGER" patents that makes as little sense as his decision to go to Kenya and to blame America for Africa's problems, he doesn't deserve any support. The MONGER stuff should never even go to a vote. We'll talk about the dangerous substance of that proposal next time.

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