Biden Will Nominate Industry Ally for Patent Office

It’s an about-face from the president’s previous commitment to waive patent protections for COVID-19 vaccines.

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Rumors of a long-awaited appointment to the U.S. Patent and Trademark Office (USPTO) swirled in the Capitol this week, as pressures mounted for major pharmaceutical companies to waive COVID-19 intellectual-property rights. According to three sources with knowledge of the matter, Biden is expected to nominate Marcus Delgado, who currently works as an attorney for Cox Enterprises, a major media conglomerate and the third-largest cable company in the United States. The announcement could come as soon as next week.

Delgado has defended IP rights in the telecommunications industry for nearly two decades, serving as chief IP counsel and assistant general counsel for Cox Enterprises since 2003. Cox has previously come under fire for environmental and labor abuses. In 2018, the California Department of Justice ordered Cox to pay $3.3 million for unlawfully dumping hazardous waste, including batteries and electronic devices. Four years prior, the firm was again investigated for malpractice, this time for illegally placing limits on health benefits for its retirees. In the end, the Department of Justice secured $2 million to recover those benefits from Cox.

Prior to Cox, Delgado was chief patent counsel at regional telecom BellSouth, and before that an associate at various corporate law firms.

The White House did not respond to a request for comment.

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USPTO issues patents and trademarks, and its director advises the president, the Commerce Department, the U.S. trade representative, and the Justice Department on IP matters and litigation. Critics have argued that USPTO has been a haven in recent decades for corporate influence, advocating for more patents and longer exclusivity periods.

As someone who worked in the private sector for his entire career, Delgado goes against calls for an independent director of the USPTO, outside of industry influence. In an open letter to Biden in June, 30 organizations demanded that the next director “have experience working with diverse communities outside the small world of the PTO’s ‘customers’ and the lawyers who serve them.” They added, “The next Director should not have conflicts of interest that undermine their ability to make decisions based on the needs of the public.”

Critics have argued that USPTO has been a haven in recent decades for corporate influence, advocating for more patents and longer exclusivity periods.

While USPTO’s jurisdiction includes patents across all industries, advocates have focused recently on pharmaceuticals, particularly the lifesaving coronavirus vaccines that have not been distributed widely in the developing world. “We need somebody at PTO who will be part of the solution to the ongoing global health crisis, and not seek to stymie efforts to ensure that vaccinations and other critical supplies are available across the world and especially to the Global South,” said Demand Progress’s David Segal in a statement to the Prospect. “If Biden nominates somebody who’s unlikely to prioritize global health then the Senate should refuse to confirm them.”

But the loud calls to remove IP protections for COVID vaccines collide with the entrenched position on Capitol Hill for strong and unbreakable patents for corporate America.

In May, the Prospect reported that Sen. Chris Coons (D-DE) had a disproportionately large say in who would cinch the appointment, with the senator even claiming “that he was granted the power to make the USPTO choice in exchange for staying in the Senate.” Coons is a close presidential ally and a longtime supporter of maximalist IP rights, dating back to his own time as in-house counsel for W.L. Gore, a company his stepfather founded that owns thousands of patents, both on its signature Gore-Tex fabric and on numerous medical devices.

Coons delivered a “red/yellow/green” list of recommendations for USPTO director to the White House earlier this year. Delgado was not at the top of his list; corporate lawyer Ellisen Turner, who represented pharma companies, and Jannie Lau, general counsel for patent troll InterDigital, were above him. But the Revolving Door Project indicated on Friday that Coons found the pick “acceptable.”

That said, the choice of a patent attorney specializing in telecom was characterized by some advocates as less disastrous than one with expertise in pharma IP.

The imminent decision comes at a time when the Biden administration is being criticized for its inability to convince German Prime Minister Angela Merkel to agree to an intellectual-property waiver for COVID vaccines. While the U.S. endorsed a petition at the World Trade Organization under the international Trade-Related Aspects of Intellectual Property Rights (TRIPS) treaty to waive IP on the vaccines, Merkel, whose country of Germany is home to BioNTech, partner to Pfizer in its COVID vaccine, has refused to give her consent. This has blocked action on the TRIPS waiver, and according to advocates has prolonged the shortage of vaccines globally.

Biden hosted Merkel at the White House on Thursday, amid protests around the TRIPS waiver. Biden’s praise of Merkel amid her recalcitrance to back off her stance on COVID vaccines has led many to believe that the waiver will not go through. “Biden was super-nice to Merkel, basically he threw in the towel on the TRIPS waiver,” said Matt Stoller of the American Economic Liberties Project.

That would be a blow to U.S. trade representative Katherine Tai, who was the behind-the-scenes force in getting Biden to endorse the waiver. A USPTO nominee who doesn’t share Tai’s perspective on IP issues would further marginalize her. “It’s really bad for Tai, it makes her look not powerful, not relevant,” Stoller said.

Priti Krishtel, co-founder and co-executive director of the global access to medicines organization I-MAK, noted that less than 1 percent of vaccines are currently being distributed to low-income countries. “As someone who’s worked in the patent space for nearly two decades, it is imperative that the new director prioritizes curtailing our nation’s catastrophic rise in drug prices fueled by rampant overpatenting, as well as the need to incorporate an equity agenda at the USPTO to bring the voices of the public into what has historically been an agency lacking in public participation,” she said in a statement to the Prospect.

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