A patent war may be on the horizon as the campaign industry becomes increasingly technological. The once sleepy industry dominated by phones, mail, and TV consultants is now experiencing the kind of innovation and growth traditionally confined to Silicon Valley.
The new and old consultant cultures have a new fault line: patents.
Washington consultants are known as vicious turf protectors and some view patenting intellectual property (IP) as a way to defend their business. That view clashes with the growing segment of the industry based on the West Coast where they’ve adopted the laissez-faire approach to patents popular with the tech industry. The belief among Silicon Valley-types in the industry is that patents stifle innovation.
Stifling or not, says Brian Pandya, a patent attorney at Washington-based Wiley Rein LLP, “you’re going to see a lot patent filings by vendors and consultants that operate in this space.” It’s inevitable, explains Pandya, “because campaigns are becoming more high tech and they’re intersecting with patents and IP issues.”
It worries Seth Bannon, a New York-based consultant who founded Amicus, a fundraising and outreach technology startup.
“The only way that you win with patents is by suing other people,” he says. “It’s better for companies and it’s better for everyone involved if people are trying to build better products.”
He’s not completely against patents. A firm that spends 10-15 years on research and development of a nuclear fusion process should take advantage of IP protections. “But when you’re talking about something like matching a cookie to the voter file, which is an idea that a lot of people have and will have, that’s an inappropriate place for a patent,” he says.
Bannon subscribes to the view that increased patenting could delay the development of new political technology. “It’s always best if technology companies, especially in the nonprofit, political world, compete based on the quality of their products and not based on patents,” he says.
The harbinger of this pending conflict was the patent granted to Audience Partners earlier this summer for their voter file matching process. The announcement was met with skepticism from other firms who likened it — while requesting anonymity — to “patenting a strategy.”
“I better go patent door knocking, phone banking, and direct mail using the voter file before someone else snaps them up,” says a representative of a rival company. “A patent troll is certainly an interesting mascot.”
Other consultants contacted by C&E declined to be quoted for this story.
Jeff Dittus, co-founder and CEO at Audience Partners, is quick to disagree that his firm has patented a “strategy.”
“If the patent office recognizes an invention, it’s not a trivial thing. It took three-and-half years to get it through,” he says. “It was studied and looked at.”
Dittus, who’s also the inventor listed on the patent, likened his company’s process of cookie-voter file matching to Intel’s patenting of the microprocessor or the Pitney Bowes patent of the Frank mail machine. Still, he admits his firm didn’t invent the wheel when it comes to voter-file matching.
“Yes, direct mail has been here, door knocking has been here using the voter registration file, but the way that you present an ad in a real time environment on the Internet across all these ecosystems is an invention that we created,” he says.
The patent is described as “systems and methods for facilitating and targeting of online ads to voters within a selected political demographic,” according to the filing. “Audience targeting may be accomplished in several ways including: geo-targeting; contextual targeting; behavioral targeting; site placement; and targeted household television ads.”
Audience Partners is not the only company offering this service, which could present legal complications for the patent. Dittus declined to discuss his company’s legal strategy — Audience Partners, which operates in the campaign space through its division CampaignGrid and other licensees, could potentially sue competitors who continue to use similar technology without licensing their patent. But, Dittus adds, “what I will say is that there are many companies that we work with on the publishing side and the technology side that have licensed our patent and we’ve been working with for years and they’re all big public companies.”
Patents are rarely litigated for infringement. But if Audience Partners does decide to pursue legal action, they have a 27-point patent to target the competition with.
“It’s easier to prove infringement on a broad claim than a narrow claim, because it covers more activity,” says Pandya. “Also the flip side is that a narrow claim is more likely to withstand an invalidity challenge, because you’re less likely to capture what people were doing before the filing of the patent.”
Michael Berta, a San Francisco-based partner in the intellectual property group of Arnold & Porter LLP, agrees Audience Partners could have trouble proving a claim.
“The inventor first filed for this idea in 2011, which is relatively recent,” says Berta. “It would seem to me that someone might be able to mount a credible challenge to the validity of this patent if they’ve been in this business longer than the past couple of years.”
Still, the courtroom might not be the only venue for a challenge to Audience Partners, adds Berta. “Patents like this one meet certain requirements for someone to be able to file a challenge with the patent office and try to avoid having to fight validity issues in district court,” he says.
The U.S. Patent and Trademark Office said it hasn’t received a request to review the patent.
Sean J. Miller is the editor of Campaigns & Elections magazine.