The IP challenges facing Barack Obama 05 Nov 08
The morning after the night before will not be the time that President-elect Barack Obama starts to think about intellectual property. But at some stage in the next few weeks, maybe even before his inauguration, he is going to have to give it some serious consideration.
It is probably the case that at least in some vague way Mr Obama already understands that intellectual property is a vital American asset. It is one in which the country enjoys a significant advantage over the rest of us. Put simply, a large proportion of the world’s most valuable patent, copyright and trademark rights are created in the United States and owned by American entities. It is certainly the case that no country owns more. If that changes under an Obama presidency it will be a disaster not only for his political career, but for the US as a whole.
With all that in mind, Mr Obama has some big decisions to make:
• He needs to appoint a new Director of the USPTO. The kind of person Mr Obama picks will tell us a lot about what the president thinks about IP rights and patents in particular. But not only that – will the Director be a semi-detached member of the government as he seems to have been under President Bush, or will he be much closer to the heart of things, as he generally was under President Clinton? Whatever happens on that front, though, the new man has a hell of a job to do: not only in restoring relations with the currently very alienated US patent bar, but also internationally as major patent offices move ever closer together in the way they work.
• But Obama has another appointment to make, one that has not been made before. For the first time, the US president will have an IP Tsar to oversee the fight against piracy and counterfeiting. Again, it will be interesting to see who gets the job and how close to the heart of government he or she will operate.
• In the longer term, there will be places up for grabs at the CAFC. When vacancies do occur, what will be the background of those the President nominates? Will he go for generalists or for people that have a strong background in patent law and practice? When I spoke to Chief Justice Michel recently, he made it clear he would like to see at least a few more patent specialists at the court. Will Mr Obama agree?
• Away from appointments, the Obama administration will have to at least think about the Patent Reform Act. If it decides to support it, the chances of the legislation getting through the Congress will probably be significantly improved. If it decides there are certain provisions that it cannot go along with – as the Bush presidency made clear it could not support proposed changes to the damages regime – then the legislation is probably dead in the water.
• Internationally, there is the issue of the USTR Special 301 and IP in bilateral trade negotiations to deal with. During the election campaign, Obama made great play of the importance of safeguarding American jobs and industries. Will this be translated into even more emphasis on the enforcement of US IP rights overseas? If so, how will such a policy fit with another one of Obama’s themes, which is about restoring what he sees as the US’s broken relationship with much of the rest of the world?
• Moving on from that, how will the US position itself at WIPO and at the WTO with regard to IP? What stance will the new administration take with regard to specific issues such as patents and access to medicine and green technology?
• And talking of healthcare, it is clear that Obama does not like the present US system. With Democrat majorities in both the House and the Senate, he could well be in a position to do something about it. Will one of the things he will look at be the high price of medicines in the US and the role that patents play in ensuring that Americans pay more for their medicines than people in most other countries? If the answer to this question is yes, then the impact will be felt across the world.
• Finally, it will be interesting to see what kind of role the antitrust authorities, such as the Department of Justice, play in IP under an Obama presidency. Will we see attempts to adopt a more European-style approach and, therefore, greater intervention in cases such as those involving patent pools and the potential abuse of a dominant position? Or will the current and generally (at least compared to Europe) laissez faire attitude continue to prevail? Rights owners in certain industries will watch that one very closely indeed.
So there is plenty for Mr Obama to chew on and for the rest of us to look out for. And I am sure there is a lot that I have missed out. It will be a fascinating few months.
STOP PRESS: I have just come across what Mr Obama has to say about IP on his official campaign website. You can access it here.
I am not sure how much of this will turn into policy but it seems pretty clear that if he is true to his word there will be no let-up in Special 301, while the US may become more aggressive in using the WTO as a means for solving bilateral IP disputes. I doubt whether any of this will endear the new US administration to foreign governments - not that it will be too bothered about that. On the patent front, there is at least a hint that there could be a permanent end to fee diversion at the USPTO, while there is no mention of the previously mooted and frankly absurd so-called "gold-plated" patent. My guess is that this has disappeared forever.
There are also a couple of intriguing sentences. Try this one for starters: "As president, Barack Obama will ensure that our patent laws protect legitimate rights while not stifling innovation and collaboration." What does this actually mean? Does he believe that there are currently illegitimate patent rights floating around out there and who gets to decide what is legitimate or not? Then there is this one: "Obama and Biden will reinvigorate antitrust enforcement, which is how we ensure that capitalism works for consumers." More intervention in IP matters than before, perhaps?
There is, of course, a fair distance to travel before you get from issues to policy commitments. And there are a lot of choices to make along the way. We shall see
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