Backlash to patent pick tests the White House

The Obama administration is facing a backlash over its rumored choice of a top pharmaceutical industry lawyer to lead the U.S. Patent and Trademark Office (USPTO).

Tech industry groups and advocates are openly resisting the possible nomination of Phil Johnson, the senior vice president of Intellectual Property Policy and Strategy at Johnson & Johnson, to fill the vacant position.

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They say Johnson’s nomination would be a slap in the face because he has been on the opposite side of this year’s contentious debate over patent reform.

"American business owners remain vulnerable to patent troll lawsuits, and now one of the most prominent opponents of reform has been appointed to be the umpire, calling balls and strikes for USPTO,” Michael Meehan, manager for pro-reform Main Street Patent Coalition, said in a statement.

In addition to his role at the pharmaceuticals company, Johnson also represents the Coalition for 21st Century Patent Reform, a group of intellectual property-reliant companies — including General Electric, 3M and Pfizer — that have advocated strongly against broad patent reform legislation in Congress.

When the House passed Judiciary Committee Chairman Bob Goodlatte’s (R-Va.) comprehensive patent reform bill in December, Johnson’s group warned that the bill was “overly broad and will make it much more difficult and expensive for American manufacturers and innovators to prevent infringing products from threatening their businesses.”

Johnson testified in front of the Senate Judiciary Committee late last year, warning members against broad measures aimed to curb “patent trolls” that profit from frivolous patent infringement lawsuits.

“While troll abuse is a problem that should be addressed, it is critical that Congress not do so at the expense of the vast majority of innovation stakeholders for whom the patent system is working,” Johnson said in written testimony.

Senators clashed heatedly over the scope of the patent reform bill, and Senate Judiciary Chairman Patrick Leahy (D-Vt.) shelved the bill in May after negotiations reached an impasse.

Wounded by that defeat, groups that support patent reform legislation are now fearful that the Obama administration could temper its full-throated support of patent reform by nominating Johnson for USPTO director.

"Main Street businesses are left to wonder whether an avowed opponent of legislative improvements would be capable of fairly implementing the reforms championed by the Obama administration and Main Street,” Meehan said.

Tech industry insiders said the reports about Johnson’s nomination came as a shock, and they are making their objections known to the White House.

One person familiar with the discussions said the White House is reexamining Johnson after the negative reactions from tech groups and some congressional offices.

The White House did not respond to requests for comment.

But not everyone involved in the patent reform debate is opposing Johnson.

One patent lobbyist described him as “an intellectual powerhouse” with “enough political acumen to understand the difference between being an advocate for the 21st Century Patent Coalition and an advocate for the administration."

The lobbyist also noted that the current USPTO deputy director, Michelle Lee, is a former Google employee. Google has historically advocated for comprehensive patent reform.

By combining Lee and Johnson, “I think the president would have created the perfect chemistry for reasoned, thoughtful patent litigation reform that would benefit the broadest set of patent stakeholders and not simply one industry vertical over another,” the lobbyist said.