White House ready to drop patent pick after backlash from tech

The White House is backing away from its reported choice to lead the U.S. Patent and Trademark Office (PTO) after a backlash from the technology industry and rumblings of opposition from Capitol Hill.


According to people familiar with the decision-making process, the administration is re-examining its plan to nominate Phil Johnson, senior vice president of intellectual property at pharmaceutical giant Johnson & Johnson.

Johnson’s potential nomination drew a furious response from reform advocates on Capitol Hill and in the tech industry.

Sens. Charles SchumerChuck SchumerPew poll: 50 percent approve of Democrats in Congress Former state Rep. Vernon Jones launches challenge to Kemp in Georgia Schumer lays groundwork for future filibuster reform MORE (D-N.Y.) and John CornynJohn CornynSunday shows preview: Russia, US exchange sanctions; tensions over policing rise; vaccination campaign continues GOP acknowledges struggle to bring down Biden Intelligence leaders push for mandatory breach notification law MORE (R-Texas) — prominent voices for patent reform on the Senate Judiciary Committee, which would have to approve the administration’s pick for PTO director — both said they had concerns about Johnson for the position.

A White House official late Wednesday denied reports that the administration has "pulled down" Johnson's potential nomination.

"There had been speculation about who the administration would nominate to be the next director of the PTO," the official said. "However, no name was ever put forward."

Advocates from the tech community accused Johnson of helping to derail efforts in Congress to pass comprehensive patent reform bills.

They pointed to Johnson’s role at the Coalition for 21st Century Patent Reform, which lobbied against patent reform legislation that stalled in Congress despite bipartisan backing and support from the Obama administration.

When the House passed Judiciary Committee Chairman Bob GoodlatteRobert (Bob) William GoodlatteBottom line No documents? Hoping for legalization? Be wary of Joe Biden Press: Trump's final presidential pardon: himself MORE’s (R-Va.) patent reform bill late last year, Johnson’s group warned the legislation 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.”

When the debate moved to the upper chamber, Johnson testified in front of the Senate Judiciary Committee, warning lawmakers not to address the patent troll problem “at the expense of the vast majority of innovation stakeholders for whom the patent system is working.”

Senate Judiciary Committee Chairman Patrick LeahyPatrick Joseph LeahyCongress brings back corrupt, costly, and inequitably earmarks Biden sparks bipartisan backlash on Afghanistan withdrawal  Senate GOP opens door to earmarks MORE (D-Vt.) shelved his patent bill earlier this year, citing a failure to get consensus on a broad reform package.

Reform advocates feared that installing Johnson as head of the PTO would amount to the administration tempering its support for the comprehensive patent bill, which is likely to be revived in the next Congress.

The Main Street Patent Coalition, which represents tech, retail, restaurant, gaming and other industry groups, issued a statement following reports of Johnson’s potential nomination calling the choice “very bad news for those of us trying to stop [patent] trolls.”

"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,” said Michael Meehan, manager for the Main Street Patent Coalition.

Meehan said his groups plans “to continue fighting until we have accomplished” broad patent reform with protections for businesses and “strongly hopes” that “Johnson would be capable of demonstrating impartiality in his new position if it came to implementing those protections."

Others defended the potential choice of Johnson to fill the patent job, which has been vacant since David Kappos stepped down in early 2013.

Johnson’s supporters noted that Michelle Lee, a former attorney at Google, holds PTO’s deputy director slot, and said another industry with a large stake in patents  — such as the drug industry — should be represented in the leadership ranks.

Lee was deputy general counsel at Google and director of the PTO’s Silicon Valley office before being appointed deputy director.

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,” one lobbyist said after reports of Johnson’s impending nomination first surfaced.

According to one patent lobbyist, the White House has not officially decided against nominating Johnson, but is aware that some Senate Judiciary Committee members would oppose him if nominated, making it “highly unlikely” that the pick would go forward.

On Tuesday, Schumer said he would vote against Johnson's nomination.

“I have big concerns. I voiced them to the administration,” he said, adding that the White House “seemed very open to my concerns.”

Cornyn said Wednesday that the White House should not nominate Johnson.

The pick “strikes me as odd,” Cornyn said off the Senate floor.

He pointed to the Obama administration’s aggressive calls for comprehensive reform.

“To nominate somebody to that office who basically was opposed to the administration’s own policies strikes me as very strange,” he said.

— This story was updated at 5:22 p.m.