It’s just a few hours since the polls closed in the US mid-terms and not all the results are in. However, it’s already clear that America’s voters have sent a very mixed message – with the Republicans reinforcing their majority in the Senate and the Democrats taking back control of the House of Representatives. The coming weeks are likely to be dominated by intense speculation around what this will mean for the kind of legislation that is or is not likely to come out of Washington DC between now and the next elections in 2020.
With split control in Congress, it’s unlikely that many contentious proposals pitting Democrat against Republican will make it onto the statute books. However, when it comes to patent law, party politics has never been a major issue State-side. Instead, patent-related initiatives – including the most recent, the America Invents Act – tend to proceed on a bipartisan basis. What has been important, though, has been the ability of various lobbying organisations to attract the backing of prominent individual lawmakers for the changes they want.
In recent years, the pro-reform lobby has been particularly successful at getting its agenda a hearing, because it has enjoyed a very close relationship with Bob Goodlatte, the chair of the House Judiciary Committee, and also Darrell Issa, the chair of its IP sub-committee. However, neither stood for re-election yesterday and, in any case, with the Democrats taking the House would have lost their positions if they had (and won).
Come January 2019, when the new Congress convenes, the smart money is on the Judiciary Committee’s current ranking Democrat, Jerry Nadler, succeeding Goodlatte; while the ranking member of the IP sub-committee, Hank Johnson, could well take over from Issa. In contrast to the Republicans they are set to succeed, neither Democrat has given much indication of having a strong relationship with any particular part of the patent lobby.
With patents never being at the top of the priority list for most members of the Senate or House, for legislation to have any chance of passing in the next couple of years it is not only going to need to grab the attention of senior figures on both chambers’ judiciary committees, but is also likely to require the positive support of the Trump administration.
But now that USPTO director Andrei Iancu is making his position increasingly clear on the need to rebalance the landscape in favour of patent owners, that probably means further anti-patent reform of the system can be ruled out between now and the next election. Likewise, though, with Iancu focusing on using the powers he has to rework the agency’s approach to patent eligibility, those hoping for 101-specific legislation are also likely to be disappointed.
That, though, does not mean that there is no prospect of any patent-related legislation making it out of Congress and onto the statute books. When the Democrats win the biopharmaceutical industry always gets nervous and while it can normally rely on the Republicans to fight its corner, as everyone knows President Trump is no normal Republican. One thing is very clear in a very divided US: healthcare is a priority issue for all; and in recent years pharma patents and the way they are used and allegedly abused have received ever-closer political attention as drivers of the sky-high cost of drugs and other treatments.
This is an issue the president himself has touched on, as have members of his government. Indeed, some legislation has already been passed that should give biopharma businesses pause for thought. Given the need for Trump to get some popular legislative wins ahead of running for the presidency again in 2020, a Democrat majority in the House keen to prove it can effect change and a Senate in which a number of Republicans feel personally bound to the president, it would not be a huge surprise if there was now a big legislative push relating to life sciences patents in the 116th Congress. If it happens, this may well be done as part of other legislation, or might take the form of a specific bipartisan bill. The life sciences industries would be well advised to start preparing for something now.
Of course, all of the above is speculation from across the ocean. The new Congress will begin sitting on 3rd January 2019 and things are likely to be pretty heated throughout its two-year existence. The polarisation that characterises US politics currently may mean that nothing gets done as bipartisanship is eschewed for confrontation. But if that does not happen, my guess is that any patent initiatives will be sector-specific and will not be pharma-friendly. We shall see.
The election and its implications will be a central subject for discussion at next week's 4th annual Patent Law & Policy conference, being hosted by IAM on 13th November in Washington DC.