John Cornyn vs. Intellectual Property 

United States Senator John Cornyn (R-Texas) may be one of the least popular Republicans among the conservative base. He has betrayed them on many issues, most notably by supporting Joe Biden’s gun grab. 

Cornyn’s approval ratings currently stand at a dismal 36 percent among Texas Republicans. His popularity will not be helped by his praise of Representative Liz Cheney (R-Wyo.), recently telling the New York Times, “I respect her.” 

One area of betrayal conservatives have overlooked so far, however, is Cornyn’s cozy relationship with Big Tech. In 2019, as conservatives were beginning to fight back against Silicon Valley censorship, he opined, “The discussion of breaking up a Google or breaking up a Facebook is not what we should be doing.” The Texas senator pressured Trump to appoint former staffer Noah Phillips to the FTC, where he denied the commission had any authority to address Big Tech censorship. In July 2020, when even moderate Republicans were waking up to Big Tech’s bias, he promoted puff pieces on Google. 

Today, the GOP base is so overwhelmingly against Big Tech censorship that he is wisely, more or less, silent on the issue. But he has found a less discussed—weakening intellectual property enforcement—to be one of the biggest ways to help enrich Big Tech. In particular, he is joining with Senator Patrick Leahy (D-Conn.) to introduce the Patent Trial and Appeal Board Reform Act. 

Big Tech platforms lobbied for the creation of the Patent Trial and Appeal Board. Why? Because both Apple’s iPhone and Google’s Android, which collectively make up over 99 percent of the smartphone market, rely on several other companies’ intellectual property, which they license. The companies frequently engage in “efficient infringement”—where the chance they will have to pay for infringing on IP is less of a financial risk to them than the cost of licensing.

Google’s top IP lawyers have admitted, “Google’s leadership doesn’t care terribly much about precedent or law” when it comes to intellectual property. 

This does not mean they oppose intellectual property. As Trump Administration tech advisor and Michigan State law professor Adam Candeub notes

Big tech platforms both have huge IP portfolios, but also frequently infringe on others’ work. Their ideal situation is making the system costly and byzantine, so their lawyers can easily navigate it, but smaller companies have difficulty enforcing their patents against the Big Guys. The Patent Trial and Appeal Board serves that purpose.

The Patent Trial and Appeals Board enables “predatory infringement,” Adam Mosoff of the Hudson Institute explains, because “Big Tech has made it impossible for its victims—individual inventors, startups, and small companies—to obtain their rightful remedies.”

The Patent and Trademark Office under President Trump made reforms to ensure companies could not litigate the Patent Board while also pursuing litigation. The Cornyn-Leahy bill seeks to undo these reforms by legislation in order to make it far more difficult for smaller companies to enforce patents against the tech giants.

Ironically, Google has argued in the past that strong IP enforcement “gives rise to barriers to entry and implicates issues of competition.” Apple has filed amicus briefs arguing that strong patents violate antitrust laws.

Candeub retorted, “Google and Apple have rigged the IP system to entrench their monopoly power, and PTAB epitomizes this problem.” 

Cornyn seems to care more about what Big Tech thinks than his own voters. He’s just another swamp creature who refuses to listen to the base. 

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About Paul Bradford

Paul Bradford is a Capitol Hill refugee now earning an honest living.

Photo: Kent Nishimura / Los Angeles Times via Getty Images