Valley Lawyers Help Shape Campaigns

“Damage apportionment,” and “post-grant review” probably won’t capture the hearts and minds of voters in a presidential election the way “a chicken in every pot” did.

But that doesn’t mean that the vagaries of patent reform — and other equally obscure legal issues near and dear to Silicon Valley — are being entirely ignored by the presidential hopefuls. In fact, the campaigns have reached into the Valley, calling on some of the local legal luminaries — not just for money, but for advice — as they hammer out their positions.

Edward Reines, the ubiquitous policy-minded patent litigator from Weil, Gotshal & Manges in Redwood Shores, is on presumptive Republican nominee John McCain’s justice advisory committee.

“I think its vital for the McCain camp and Silicon Valley that there be representation on the committee with experience in tech law,” said Reines, one of a few IP lawyers on the committee. “I think Silicon Valley is becoming more and more important to the political process as the heart, brain and soul of the economy.”

Leading Democratic candidate Barack Obama has come out on the issue of patent reform, touting higher quality “gold-plated” patents. Among his legal advisers — which include UC-Berkeley School of Law dean Christopher Edley and Stanford Law School professor Mariano-Florentino Cuellar — is Stanford law professor Mark Lemley, an IP expert. The campaign has also turned to Valley lawyer John Roos, making the Wilson Sonsini Goodrich & Rosati CEO the state finance co-chairman for the campaign and a voice in its tech policy group.

“I think if you compare this to 20 years ago, [intellectual property]’s much more important today because of all the emerging technology,” said Goodwin Liu, an assistant professor of law at UC-Berkeley. “I think the candidates are right to be paying attention to this.”

Still, Liu said that he didn’t know whether legal advisers really affect campaigns beyond lending an “air of legitimacy” to candidates’ positions.

Joseph Cotchett Jr., a politically connected plaintiff lawyer supporting Obama, also said that legal advisory committees often have less to do with advice and more to do with judicial appointments.

“It’s basically just a lot of independent lawyers who are very interested in the next Supreme Court appointments and the next federal court appointments,” Cotchett said.

THE ISSUES

Aside from being far beyond the interest of the NASCAR Dad or the Soccer Mom, there’s another reason that patent reform probably won’t become a huge campaign issue: It doesn’t split cleanly along party lines.

“The legal advisers on all sides look at patent reform and look at the goals of the patent systems as a more non-partisan thing,” said Michael Markman, a Heller Ehrman IP lawyer. “I also don’t see that it’s a real wedge issue where one candidate or the other is going to pick up lots of votes or lots of financial support.”

The patent reform effort— which recently stalled in the Senate — is being pushed in large part by big software and IT companies that said they were tired of being sued and wanted to water down the power of patent holders. It was opposed by pharmaceutical and biotech companies who spend lots of money to develop their intellectual property and want to keep patents strong.

Both the tech and pharma industries have given more money to the leading Democratic candidates, Obama and Hillary Clinton, than to McCain, according to opensecrets.org. This year, the pharma industry has given roughly equal amounts to both national parties, while tech has given more to the Democrats.

But even if industries are somewhat divided, lawyers of different political stripes aren’t so much.

Weil’s Reines testified before Congress in 2006 about the need for certain patent reforms. In his testimony, he said he favored damage apportionment, which would keep patent holders from seeking royalties on a whole product when their patent covers only a small part — a measure vigorously sought by the Democrat-supporting tech lobby.

“I think patent law, like everything else, requires pruning and grooming but not destruction,” Reines said.

In November, Obama came out with his patent reform platform, which called for an option to have a public peer review of patent applications that would give the patent holder a “gold-plated” patent much less vulnerable to court challenge. Obama also said that “dubious” patents should receive post-grant review to determine validity.

Obama’s position echoes some of the ideas from a 2006 article, “What to Do About Bad Patents,” whose authors include Stanford’s Lemley.

John Duffy, a George Washington University Law School professor and IP scholar who’s on McCain’s committee, said he’s also for cleaning up the patent system, although he did vote against a version of the patent reform bill as part of an ABA task force.

“I think [conservatives] are sympathetic to property rights, but we recognize that the patent system has some limitations on it, and therefore [we are] open to things like patent reform,” Duffy said. “Good administration is not a partisan issue.”

But even with the talk of patents from the candidates and their advisers, no one expects that voters — or even patent lawyers — will cast their vote based on the issue.

“I like Obama for a whole host of reasons,” said Heller Ehrman’s Markman. “Patent reform is among them, but it’s not at the top of my list.”