IP  LAW UNDER THE TRUMP PRESIDENCY

09.11.2016

By Lawrence Hoffman

J.D., B.S.E.E. and Comp. Sc., U.S. Patent Attorney

Finally, this unpleasant presidential campaign is over with a republican in the white house and republican in control of both houses of congress. Now that we know whose policies will control for the next four years, let’s take a look at what we might see as Mr. Trump’s IP agenda.

Regrettably, we don’t have much to go on. It is generally recognized that conservative republicans favor a strong Intellectual Property agenda.

Mr. Trump’s verbal articulation of anything about IP policy may be found in his acceptance speech at the Republican National Convention. Here, he said:

We are going to enforce all trade violations, including through the use of taxes and tariffs, against any country that cheats. This includes stopping China’s outrageous theft of intellectual property, along with their illegal product dumping, and their devastating currency manipulation. Our horrible trade agreements with China and many others, will be totally renegotiated.

This theme of invective against China as a rapacious trade partner and a technology predator is also articulated in his position statement on Reforming the U.S.-China Trade Relationship where he expresses opposition to China’s requirement that foreign companies transfer technology to Chinese “partners” in order to enter the Chinese market. He refers to this as “de facto intellectual property theft,” and proposes to “adopt a zero tolerance policy on intellectual property theft and forced technology transfer.”

Regrettably, President elect Trump has said nothing at all about possible changes in U.S. IP law.

In contrast, although couched in normal campaign-type vagueness and platitudes, Mrs. Clinton published an Initiative on Technology & Innovation issued on 28 June said useful and politically correct things in this observer’s view. In broad terms, she proposed improving the patent system by enacting “targeted reforms…to reduce excessive patent litigation and forum shopping to ensure that patent litigants have a nexus to the venue in which suit is brought, to require that specific allegations be made in demand letters and pleadings; and to increase transparency in ownership by making patent litigants disclose the real party in interest. She also advocated ending PTO fee diversion by Congress, and enabling the PTO to invest funds left over from its annual operations in new technologies, personnel, and training and that a standard of faster review of patent applications and clear out the backlog of patent applications.

In the field of copyright law, Mrs. Clinton proposed modernizing the system “to facilitate access to out-of-print and orphan works, while protecting the innovation incentives in the system” and “promot[ing] open-licensing arrangements for copyrighted material supported by federal grant funding”.

While this can certainly be viewed as intended to please as many as possible while not offending others, it does at least focus on legislative issues.

The Initiative was generally praised, for example in a Forbes article, but Mr. Trump has not addressed any of these issues, so we will have wait to see if Ms. Clinton’s vision proves to be no more than a minor footnote to the history of the 2016 election.

The Forbes article is also of interest for its praise of president Obama’s signing of the Defend Trade Secrets Act, and its criticism of the America Invents Act of 2011 for allowing the Patent Trial and Appeal Board “to become so unbalanced it now invalidates close to 90% of all challenged patent claims that come before it for review”. That’s a bit unfair; it is not the fault of the PTAB. The examining corps does not have the resources to properly consider all relevant prior art in relationship to novelty and obviousness, and it and the courts are faced with interpreting the unworkable Alice two-part test for patent eligibility. These issues urgently need to be addressed by Congress to help make the U.S. more innovation-friendly and seem to be more important than renegotiating trade agreements and attacking China’s trade and technology policies.

 

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