Patents have been mainstay of the Judiciary Committee agenda in both chambers for more than a decade, but never before has the debate seemed so firmly focused on strengthening patent rights.  Significant patent bills are pending in both chambers, and the House and Senate Judiciary Committees have summoned Andrei Iancu, the new director of the U.S. Patent and Trademark Office (USPTO), to testify at oversight hearings early in his tenure at the agency.  Notably, unlike previous Congresses, none of the introduced bills restrict patent owners’ access to the federal courts.  For his part, Iancu has been outspoken about shifting the Administration to a new “pro-patent, pro-innovation dialogue.” In addition, the House Small Business Committee held its own hearing dedicated to intellectual property issues.  While the prospects of passing significant legislation in this Congress are slim, the patent debate has clearly shifted, and we can expect even more activity in the next Congress.

In March, 2018, Representatives. Steve Stivers (R-OH) and Bill Foster (D-IL) introduced the bipartisan Support Technology and Research for Our Nation’s Growth and Economic Resilience (STRONGER) Patents Act (H.R. 5340).   The STRONGER Patents Act amends the inter partes and post-grant review procedures at the USPTO’s Patent Trial and Appeal Board (PTAB) to ensure fairness for both patent owners and challengers.  Created by the America Invents Act (AIA) in 2011 as an “alternative” to district court litigation for adjudicating patent validity, the PTAB in practice has invalidated patents at a much higher rate than federal courts.  The STRONGER Patents Act would, among other things, ensure that PTAB petitioners have an interest in the patents they challenge; harmonize the claim construction standards and burden of proof between federal district court and the PTAB; and permit patent owners to amend their claims during the proceeding to preserve their patent’s validity.

The STRONGER Patents Act would also clarify the authority of the Federal Trade Commission and state attorneys general to take action against senders of abusive patent demand letters, and ensure the USPTO has the resources it needs to issue strong patents and trademarks by ending the practice of “fee diversion” and granting the director the authority to spend all patent and trademark fees collected by the agency.  Senators Chris Coons (D-DE) and Tom Cotton (R-AR) introduced the Senate STRONGER Act in June, 2017.

Just last week, Representatives Thomas Massie (R-KY) and Marcy Kaptur (D-OH) introduced the bipartisan Restoring America’s Leadership in Innovation Act (“RALIA”) (H.R. 6264).  The act codifies that “a patent is a private property right . . . that shall only be revoked by a court ruling in a judicial proceeding“ without the consent of the patent owner.  The bill would also reverse the Supreme Court’s decision in eBay v. MercExchange, restoring the ability of patent owners to obtain injunctive relief for patents found valid and infringed; repeal the provisions of the AIA that create the PTAB and inter partes review; repeal the AIA’s provisions converting the United States to a first-to-file patent system; create a strong presumption of patent validity in any judicial or administrative proceeding; and toll a patent term during validity challenges.

Both chambers have also taken steps to ensure that the USPTO has appropriate authority to set its own user fees.  Senators Coons and Orrin Hatch (R-UT) introduced the Building Innovation Growth through Data for Intellectual Property (BIG Data for IP) Act (S. 2601).  In his testimony before the House Judiciary Committee in May, Director Iancu endorsed the House companion to the BIG Data for IP Act (H.R. 5887), sponsored by Representatives Steve Chabot (R-OH) and Hank Johnson (D-GA).

In the oversight hearings, Director Iancu promoted strong patent rights, emphasizing the need for the USPTO to review the PTAB proceedings from top to bottom.  Under questioning from House Judiciary Committee members, Director Iancu defended his office’s recent notice of proposed rulemaking to harmonize claim construction standards used at the PTAB with those used in federal court.  Representative  Johnson, Ranking Member of the House Intellectual Property Subcommittee, asked Director Iancu how he planned to address high invalidation rates at the PTAB, and the Director emphasized his commitment to a complete review of the process. Although Representatives Zoe Lofgren (D-CA) and Darrell Issa (R-CA) assailed the proposed rule as contrary to Congress’s intent in the AIA, Director Iancu stated that the proposed rule is an appropriate use of the discretion afforded to the USPTO in the AIA.

Photo of Holly Fechner Holly Fechner

Holly Fechner advises clients on complex public policy matters that combine legal and political opportunities and risks. She leads teams that represent companies, entities, and organizations in significant policy and regulatory matters before Congress and the Executive Branch.

She is a co-chair of…

Holly Fechner advises clients on complex public policy matters that combine legal and political opportunities and risks. She leads teams that represent companies, entities, and organizations in significant policy and regulatory matters before Congress and the Executive Branch.

She is a co-chair of the Covington’s Technology Industry Group and a member of the Covington Political Action Committee board of directors.

Holly works with clients to:

  • Develop compelling public policy strategies
  • Research law and draft legislation and policy
  • Draft testimony, comments, fact sheets, letters and other documents
  • Advocate before Congress and the Executive Branch
  • Form and manage coalitions
  • Develop communications strategies

She is the Executive Director of Invent Together and a visiting lecturer at the Harvard Kennedy School of Government. She serves on the board of directors of the American Constitution Society.

Holly served as Policy Director for Senator Edward M. Kennedy (D-MA) and Chief Labor and Pensions Counsel for the Senate Health, Education, Labor & Pensions Committee.

She received The American Lawyer, “Dealmaker of the Year” award in 2019. The Hill named her a “Top Lobbyist” from 2013 to the present, and she has been ranked by Chambers USA – America’s Leading Business Lawyers from 2012 to the present. One client noted to Chambers: “Holly is an exceptional attorney who excels in government relations and policy discussions. She has an incisive analytical skill set which gives her the capability of understanding extremely complex legal and institutional matters.” According to another client surveyed by Chambers, “Holly is incredibly intelligent, effective and responsive. She also leads the team in a way that brings out everyone’s best work.”

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Photo of Bill Wichterman Bill Wichterman

Bill Wichterman is a non-lawyer Senior Advisor in Covington’s Public Policy practice.

Prior to joining Covington, Bill served as Special Assistant to President George W. Bush and as the President’s personal liaison to the conservative movement.  Before serving in the White House, he held…

Bill Wichterman is a non-lawyer Senior Advisor in Covington’s Public Policy practice.

Prior to joining Covington, Bill served as Special Assistant to President George W. Bush and as the President’s personal liaison to the conservative movement.  Before serving in the White House, he held a number of senior staff-level positions on Capitol Hill, including as Policy Advisor to Senate Majority Leader Bill Frist, and Chief of Staff to Congressman Joe Pitts and Congressman Bill Baker.

Bill also has inside experience in congressional and presidential campaigns, including every presidential campaign from 2000 to 2016, usually as a senior advisor. He remains active in national Republican politics.

Bill has more than 35 years of experience in policy-making and is skilled at developing and implementing comprehensive strategies—including the media, opinion-makers, and interest groups—to accomplish the policy goals of his clients. He calls upon his nearly two decades of government service and extensive knowledge of the policy-making and political structures in Washington to counsel Fortune 500 clients in various industries on a wide range of matters related to semiconductor technology, patent policy, trade controls, CFIUS, foreign relations, antitrust, and cybersecurity, among others.

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Photo of Matthew Shapanka Matthew Shapanka

Matthew Shapanka practices at the intersection of law, policy, and politics, advising clients on important legislative, regulatory and enforcement matters before Congress, state legislatures, and government agencies that present significant legal, political, and business opportunities and risks.

Drawing on more than 15 years…

Matthew Shapanka practices at the intersection of law, policy, and politics, advising clients on important legislative, regulatory and enforcement matters before Congress, state legislatures, and government agencies that present significant legal, political, and business opportunities and risks.

Drawing on more than 15 years of experience on Capitol Hill, private practice, state government, and political campaigns, Matt develops and executes complex, multifaceted public policy initiatives for clients seeking actions by Congress, state legislatures, and federal and state government agencies. He regularly counsels businesses—especially technology companies—on matters involving intellectual property, national security, and regulation of critical and emerging technologies like artificial intelligence and autonomous vehicles.

Matt rejoined Covington after serving as Chief Counsel for the U.S. Senate Committee on Rules and Administration, where he advised Chairwoman Amy Klobuchar (D-MN) on all legal, policy, and oversight matters before the Committee, particularly federal election and campaign finance law, Federal Election Commission nominations, and oversight of the legislative branch, including U.S. Capitol security after the January 6, 2021 attack and the rules and procedures governing the Senate. Most significantly, Matt led the Committee’s staff work on the Electoral Count Reform Act – a landmark bipartisan law that updates the procedures for certifying and counting votes in presidential elections—and the Committee’s joint bipartisan investigation (with the Homeland Security Committee) into the security planning and response to the January 6th attack.

Both in Congress and at Covington, Matt has prepared dozens of corporate and nonprofit executives, academics, government officials, and presidential nominees for testimony at congressional committee hearings and depositions. He is a skilled legislative drafter who has composed dozens of bills and amendments introduced in Congress and state legislatures, including several that have been enacted into law across multiple policy areas. Matt also leads the firm’s state policy practice, advising clients on complex multistate legislative and regulatory policy matters and managing state advocacy efforts.

In addition to his policy work, Matt advises and represents clients on the full range of political law compliance and enforcement matters involving federal election, campaign finance, lobbying, and government ethics laws, the Securities and Exchange Commission’s “Pay-to-Play” rule, and the election and political laws of states and municipalities across the country.

Before law school, Matt served in the administration of former Governor Deval Patrick (D-MA) as a research analyst in the Massachusetts Recovery & Reinvestment Office, where he worked on policy, communications, and compliance matters for federal economic recovery funding awarded to the state. He has also staffed federal, state, and local political candidates in Massachusetts and New Hampshire.

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