Clause 8 Podcast: HTIA’s David Jones on Winning in Washington

Lucky or that good? David Jones’ time as Executive Director of the High-Tech Inventors Alliance (HTIA), which advocates on patent policy issues on behalf of some of the largest tech companies in the world, suggests that he’s both when it comes to shaping America’s patent system. However, he’s way too modest and strategically wise to take credit or even accept the premise of that question.

“I appreciate you saying we’ve had a winning streak. It doesn’t quite feel that way. To me, it feels to me like we’ve kind of clawed our way back to approaching neutral,” Jones says on the latest episode of Clause 8.

Yet, it’s hard not to come to that conclusion after observing that streak: efforts to pass Section 101 reform failed to gain traction in Congress; the current administration rolled back efforts to restrain the role of the Patent Trial and Appeal Board (PTAB) under the previous administration; and an unprecedented lobbying effort spurred the Chief Judge of the Western District of Texas to randomly reassign new patent cases filed in Judge Alan Albright’s division. These are all outcomes that members of the HTIA supported.

Those victories were no sure thing when Jones first became the head of HTIA in 2019. I first interviewed him for a published piece shortly after that and wrote the following in the introduction:

“After the [2018] midterm elections, the Senate’s biggest proponents of strengthening patent rights – Senators Thom Tillis and Chris Coons – were named as the leaders of the reconstituted Senate Judiciary Subcommittee on Intellectual Property. And, a long-time proponent of strengthening patent rights – Congressman Doug Collins – replaced Goodlatte as the top Republican on the House Judiciary committee. Instead of “patent reform” legislation, Tillis, Coons, and Collins are considering legislation to undo the impact of Alice by clarifying Section 101 of the Patent Act. During hearings related to the legislation, Tillis noted that “big tech” companies were invited to testify but chose not to do so individually.”

And that was just in Congress. The Department of Justice’s Makan Delrahim and the U.S. Patent and Trademark Office’s Andrei Iancu’s generally pro-patent approach in the previous administration also hinted at a broader turn in Washington, DC, against the “patent troll” narrative driving patent policy.

At the time, Jones admitted that he was “a little surprised at how much the conversation – and perhaps some attitudes – have shifted” but presciently expressed skepticism about the notion of the broader turn:

That being said, I think it’s unclear what people actually believe [anyone] other than the handful of players who are actively engaged on patent issues. At this point, we all probably have a pretty good sense of the views of the leadership of the IP Subcommittee, the Director of the USPTO, and a handful of members of Congress who have been vocal on these issues. Clearly, the positions of this group are a bit different from the previous Director of the patent office and the members who were most active on patent issues in prior Congresses. But we haven’t seen much beyond this relatively small group, so I don’t know how much their views tell you about what Congress as a whole or the administration as a whole thinks about patents.

That might explain partially why, during that first interview, Jones “was in good spirits . . . , not what one would expect from a representative of a group that is supposedly in retreat on patent issues.” I also had a feeling that was just part of the fun-loving, awesome nature of David Jones and that it could only be fully captured in audio form. So, I started lobbying David Jones to be a guest on Clause 8 as soon as that first interview was published. Since then, I’ve spoken with numerous Congressional staffers who work/worked on IP policy issues and invariably light up when they bring up David Jones. Even when their bosses’ goals didn’t line up with Jones’ vision, they seemed genuinely grateful to have a chance to interact with someone like him in their work.

I finally got a chance to interview Jones on Clause 8 again after the 2022 midterm elections and he definitely does not disappoint. This episode features a wide-ranging and super fun conversation about if – and how – he has been so effective impacting patent policy in DC, what he learned from working for Senator Orrin Hatch (including how he was coincidentally hired to work on IP issues for Hatch by previous Clause 8 guest Makan Delrahim), and how complex, internal company dynamics shape their public positions on patent issues. Prior to taking the helm at HTIA, Jones was assistant general counsel for IP policy at Microsoft. Jones is able to draw on his experiences to provide priceless – and often surprising – insights about how patent policies are shaped in general.

As for what he expects in the future, Jones says that “especially on the Senate side . . . I think [HTIA is] in for probably a couple of rough years at least.” But he does not expect Congress to do much:

“My belief is that most of the action over the next two to four years is going to be in the administration and mostly at the PTO and in the courts. I think those are the places where changes are more readily available.”

Regardless of what happens in DC, David Jones will likely continue to cheerfully talk about patent issues.

What it was like working for Senator Hatch:

“Sometimes it was a great idea to go around me because they knew I wouldn’t recommend what they were asking for. Other times, it backfired.”

“If I look at what correlated to success, there’s probably three qualities: I’d say tenacity, I’d say a bit of brashness, like the willingness just to march up and ask the question, sometimes in a kind of uncomfortable conversation, and the third would be the strength of the personal relationship with Senator Hatch. He was a very loyal man. So, if one of his friends, true friends, came to him and said, ‘I need this, can you help me?’ He’s just a very helpful guy.”

What makes lobbyists effective:

“When I was on the Hill, the lobbyists that I wanted to work with were the ones who told me the truth and knew what they were talking about – that was basically it. I wasn’t looking for anything beyond that. I just wanted to understand the issue, understand their position, and I wanted them not to lie to me. And you’d be you’d be amazed at how many people make the mistake of lying to staffers as if they’re idiots.”

“I remember Phil Johnson. He was at the time, I think, the chief patent litigator at Johnson & Johnson. And so, I remember when we were working on the early patent reform bills, I called Phil in and said, ‘Phil, I trust you to tell me the truth in private, right? I want you to sit in this room. Nobody else has seen this bill outside this office. I want you to read it and then I’m going to come in and talk to you about it. And then Senator Hatch is going to come in and talk to you about it.’ That’s what you get if you’re a trusted advisor.”

Unique voice of HTIA:

“One of the things that’s kind of unique about HTIA is it’s an entity that is basically controlled by the Chief IP Counsels at these various companies.”

Divisions within companies on patent issues:

“There’s an interesting dichotomy within the companies.  If you’re talking to the patent litigators, their time horizon is like one to two years. What do I need today to win the cases in front of me now? And that’s their focus. If you’re talking to people in the patent group, if you’re talking to the chief IP counsel or officer, they have a much longer view. They’re looking 20 years out on patents, and they’re looking at a lot longer out on copyright. So, it really depends on the part of the company that you’re talking to.”

“[Being in-house] did sensitize me to the fact that there are very different interests within the company. And sometimes I think what is perceived as like an evolution and company views, in part, is a shift within the company as to like, who’s doing the talking, and who’s more engaged in the policy?”

HTIA members’ approach to patents and taking advantage of “a wasting asset”:

“I actually think most of my members think that patents, at least at the international level, [fundamentally] drive innovation. So, patents are important. They’re not going to save your market position. They just aren’t. So, you’re…investing heavily in a wasting asset, and you’re always going to have the question of how best do I use that asset today? Is it licensing it out? Is it asserting against my direct competitors? Is it selling off the patents to somebody else? Is it coming up with some interesting type of licensing arrangement that benefits my customers? There’s always the goal, or there should be at least, in every IP group, a goal in the back of their mind, ‘how do I use this wasting asset and not just let it sit there?’”

Biden administration’s decision to support COVID-19 IP Waiver

“I was surprised at how explicit and how strong they went in that direction. So, it’s not the direction that surprised me, but how quickly they got there. That surprised me a little because back when I was working in the Senate, that would have been unthinkable to imagine that the U.S. would go to the international community and say let’s just have a waiver. And I don’t mean to make light of that at all, but it just happened.”

Senator Leahy’s impact on the USPTO over the last two years:

“Let’s start with the most cynical, crass reason. Senator Leahy is the Chairman of the Appropriations Committee. You want money in the federal government? Probably best not to upset Senator Leahy. But honestly, no agency wants to upset any member of Congress. So, it’s not just the money thing. Members of Congress can make life quite unpleasant for [the USPTO] director. They can call oversight hearings and summon the director up to the Hill and pelt him or her with really uncomfortable questions and yell at them.”