Making patents great again?
President Trump’s election victory was one of the biggest political shocks in US history. His new administration promises changes in many areas – but when it comes to patents, much of the thinking remains unknown
On January 20, with clouds overhead and rain in the air, Donald Trump was sworn in as the 45th president of the United States in front of a crowd of disputed size in Washington DC. His ascent to the top has been one of the biggest upsets in modern political history as he pushed what was in some respects an atypical Republican agenda, which focused on his claim to be the person to “make America great again”. However, in contrast to that of his opponent Hillary Clinton, Trump’s was a campaign lacking in policy detail.
In IP terms, we know little about what a Trump presidency might mean. In any campaign, patent policy comes far behind other priorities such as tax, trade and healthcare; but Clinton did at least provide some insight into her thinking on intellectual property, committing, for instance, to full funding for the US Patent and Trademark Office (USPTO).
The fact that his own business affairs have been as much about protecting and promoting his brand as about developing property around the world has led some to hope that Trump will be an advocate for strong patent rights in the United States. His inner cadre also includes several people with experience in monetising intellectual property (strategic adviser Stephen Bannon) or who have spoken out about theft of US IP rights (Commerce Secretary Wilbur Ross). His son, Donald Jr, even wrote an op-ed for political website The Daily Caller to defend a company in which he was involved against allegations that it was a patent troll. “Not every company that brings suit for software patent infringement is an exploiter,” he wrote, in a comment that will sound familiar to anyone who has had an interest in the debates around patent assertion in recent years.
Patent reform – which, from the America Invents Act to the proposed Innovation Act in the House of Representatives and the PATENT Act in the Senate, has been a mainstay of the US government over the last eight years – looks like far less of a legislative priority. For one thing, the Senate Judiciary Committee will be tied up for months with confirmation hearings for several Trump appointees, including a new Supreme Court justice. Plus the courts continue to shape key priorities for those pushing for legislative action, including venue reform, which the Supreme Court will address in TC Heartland v Kraft Food Brands Inc.
“This really boils down to two things,” observes one member of the DC patent community. “Firstly, who he appoints and then whether he leaves those people alone. If he decides this area is important to him and starts meddling, then who knows what could happen.” Patent policy may not feature high on the presidential to-do list, but if the last eight years have taught us anything, it is that the White House can still have a significant bearing on the fortunes of patent owners in the United States.
More change
The one thing we know for sure about Trump is that he is not President Obama – in fact, in many ways he is as far removed from his predecessor as it is possible to be. While this may be an obvious place to start, in terms of patent policy it is significant given that in this area, Obama was perhaps the most interventionist president in recent history. In his first term he signed the America Invents Act into law – the first major revision of the US patent statute in more than 50 years – which moved the United States from a first-to-invent to a first-to-file system and, most significantly, led to the introduction of inter partes reviews.
The Obama administration was also closely identified with some key tech industry players – in particular Google, which was outspoken about the patent system, not least thanks to the constant stream of infringement lawsuits it faced. This prompted the former president to discuss the threat of patent trolls in a Google Hangout session and, most remarkably, even mention the need for patent reform in his 2014 State of the Union address. “And let’s pass a patent reform bill that allows our businesses to stay focused on innovation, not costly and needless litigation,” he told both houses of Congress. However, despite Obama’s best efforts, patent legislation remains on the backburner – it remains to be seen when or whether the new president will move it from there.
Given the scant policy detail from the new administration, it is Trump’s early appointees which are providing some clues on where the White House may stand on patents. In one of his earliest cabinet appointments, the new president installed billionaire private equity investor and corporate turnaround specialist Wilbur Ross as head of the Department of Commerce, the agency with ultimate oversight over the USPTO.
Ross has made clear his distaste for recent US trade policy, including what he deems to be unfair trade practices by China. In a paper written before the election with Professor Peter Navarro, whom Trump has appointed to lead a new trade council, Ross sharply criticised Clinton for doing nothing “to engage in corrective diplomatic action, including addressing intellectual property theft” by China.
What we need from Trump
David Kappos, partner, Cravath Swaine & Moore
The fundamental change needed in – or, perhaps more precisely, about – the patent system is a recognition by policy makers and the public that it is the most powerful, and indeed the only, incentive system we have aimed at inducing people to invest their time and money in the bone-grinding work of hard innovation. When we diminish the strength of our patent system, we diminish incentives to invest in hard innovation, and we should in turn expect less innovation and fewer new products and services addressing the hard problems that face humanity.
Why do I point to ‘hard’ innovation rather than just ‘innovation’? Because lightweight innovation has only marginal dependency on the patent system; I would concede that we probably don’t need a super-strong patent system if the optimisation point of our patent system is to encourage more dating apps. But if our optimisation point is to cure cancer or to eradicate motor vehicle collisions, we must face the fact that no company or individual will invest in that without a strong incentive system that provides the hope of appropriation and thus profits. Would you put your 401(K) savings in a high-risk investment involving billions of dollars knowing that no one will copy your failures, but everyone will quickly copy your successes, despite having made none of the investment you made? Of course not.
It is only when we appreciate the criticality of the patent system to investment in innovation that we can see the fall in investment that occurs when patent incentives are decreased and the positive reaction when they are increased. Appreciation for this inexorable connection in turn leads policy makers and the public to support strengthening the system, even knowing that lightweight innovation will not be optimised and that there will be some level of abuse at the fringes, as there is with any incentive system. But those who see the connection between a strong patent system and hard innovation will have the fortitude to strengthen, invest and stay the course in favour of solving humanity’s hard problems.
What we need from Trump
Russell Binns, CEO, Allied Security Trust
Fixing subject-matter eligibility under Section 101 should be a top priority over the next four years. I would like to see legislative changes made to eliminate the judicially created exceptions (laws of nature, natural phenomena and abstract ideas). Every case that has found a patent ineligible under these exceptions could have been more easily handled through applications of obviousness, novelty or written description or enablement. These exceptions to patentability – most recently applied by the Supreme Court in Alice – have left patent owners uncertain about the value and enforceability of many of their patents and district court judges struggling to apply Supreme Court precedent evenly on a case-by-case basis. Alice and other related Supreme Court cases have muddied the waters terribly and weakened the US patent system. Congress should do away with these exceptions and let innovative ideas live or die based on their novelty or non-obviousness.
In competition
Ross’s comments and Trump’s own remarks about getting tougher on trade policy with China suggest that their views on IP enforcement may be broader and more hawkish than Obama’s. And there are other areas where a key appointment suggests that the new administration may differ markedly in patent policy.
One of the earliest recruits to Trump’s transition team was Professor Joshua Wright, who is responsible for handling the handover at the Federal Trade Commission (FTC). A former FTC commissioner and an academic at George Mason University, Wright has written extensively about the intersection between patent policy and antitrust and has cast doubt on the evidence behind patent hold-up. In a 2015 paper written with two George Mason colleagues, Wright stated: “there is simply no empirical evidence to substantiate the claim that patent holdup is a systemic problem for competition and consumers.”
Again, this contradicts the thinking of many regulators around the world, which have been using antitrust laws to curb what they perceive to be unfair licensing practices by patent owners. While the Obama administration never went as far as China and Korea in tackling this issue, it was clear that in this debate its sympathy lay more with licensees.
There is thus hope from some that the new administration may signal a shift in position. “I hope there will be a reset of the interface between IP and antitrust, with new people coming into government who will take a fresh look at the data,” comments former USPTO Director David Kappos, now a partner at Cravath, Swaine & Moore. “Some academic theories that we thought were applicable five or 10 years ago are now understood to be inapplicable.”
Beyond appointments to Trump’s transition team and his cabinet, the one position that remains most closely watched by the patent community is that of USPTO director. If previous appointments are any guide, it may still be several months before a new director is proposed, with a confirmation then most likely in the third or fourth quarter of 2017.
Contenders for USPTO director
Arguably no other decision of President Trump will matter more in IP terms than who is appointed to head the US Patent and Trademark Office (USPTO). The director not only has a wide-ranging role managing a multibillion-dollar agency, but can also dictate policy in a number of areas – including, perhaps most crucially, post-issuance review proceedings. As IAM went to press, there were strong indications that current incumbent Michelle Lee has been asked to stay on in the role – at least for a period – although this had not been confirmed. Should Lee remain in place, it would be seen as a victory for the large technology companies which have been leading calls for further patent reform and are concerned that under new leadership examination guidelines and the rules governing the functioning of the Patent Trial and Appeal Board (PTAB) might change. However if Lee does not stay on, or remains on a temporary basis only, there are other contenders for the role.
Phil Johnson, senior vice president IP policy and strategy, Johnson & Johnson
A veteran of the IP community, Johnson missed out on the top job in 2014, when objections from the tech community ensured that Lee, the acting director, was appointed. However, it is understood that, having been vetted for the post, Johnson still has the requisite security clearance; add this to a résumé which suggests that his confirmation would be plain sailing and he should be able to take up the role relatively quickly. With his retirement from Johnson & Johnson due to take place at the end of February, appointment as USPTO director would cap an already impressive career.
F Scott Kieff, commissioner, US International Trade Commission
Kieff was appointed a commissioner of the International Trade Commission by President Obama in 2013, taking leave of absence from the faculty of the George Washington University School of Law. As a Republican, and with a long career in intellectual property in private practice and academia, Kieff certainly has the kind of background and profile which could appeal to the new administration. The one question mark is whether he has the management experience to lead a government agency of the size and scope of the USPTO.
Stephen Pinkos, partner, American Continental Group
A former deputy director of the USPTO during President George W Bush’s second term, Pinkos’s career has included stints on Capitol Hill, in government and in the private sector. Since 2013 he has worked for American Continental Group, a lobbying shop with close ties with the IP stakeholder community. Pinkos has claimed that he does not want the job – although that may change if the Trump administration identifies him as the standout candidate.
Randall Rader, chief judge of the Court of Appeals for the Federal Circuit
Rader stepped down from the federal circuit following an email controversy. While this may place a question mark over his chances of landing the USPTO’s top job, he reportedly enjoys support among several senators who have pushed his case. A member of the IP Hall of Fame, since leaving the bench Rader has become a stern critic of weakening patent rights in the United States and his appointment would enjoy support from a significant section of the IP community. He famously coined the term ‘patent death squads’ for the PTAB.
That said, rumours doing the rounds in Washington DC at the time of the new president’s inauguration were that current office leader Michelle Lee would continue in her role, at least for the time being. However, nothing had been confirmed by the time IAM went to press. If it is not to be Lee, Phil Johnson of Johnson & Johnson – who narrowly missed out on the job when Lee was nominated in 2014 – ex-Federal Circuit Chief Judge Randall Rader and former USPTO Deputy Director Stephen Pinko are also thought to be in the mix.
Since the last two directors both came from the tech sector – David Kappos from IBM and Michelle Lee from Google – handing the job to an in-house candidate or a private practice lawyer with a background in the life sciences or another non-tech industry may appeal to the new administration. But wherever the new director comes from, some observers are clear on the kind of experience that he or she must have.
“The last thing that the USPTO needs is an academic running it,” insists Professor Adam Mossoff of George Mason University. “It’s a massive agency, responsible for managing one of the primary drivers of innovation, so the person needs lengthy experience as a patent lawyer. Someone with management experience in a company whose business model depends some way on patents and someone with executive management experience, such as a general counsel.”
What’s in store
Other insights into the new administration’s thinking emerged in December 2016, when website ProPublica published a raft of private transition documents for the Commerce Department, including a briefing on the USPTO. This contained general information, such as staffing levels and budget details, but also addressed “potential Congressional or media issues in the first 100 days”. The list of issues included:
- the extension of the USPTO’s fee-setting authority;
- the possible reintroduction of patent reform legislation, with venue reform raised as a hot topic; and
- legislation to address high drug prices and drug patenting.
What we need from Trump
Professor John Duffy, University of Virginia School of Law
Ninety-six years ago, the Supreme Court instructed that “[i]n administering the patent law”, a court should “first look…into the art to find what the real merit of the alleged discovery or invention is”, with the court giving a “liberal” construction to any patent that “advanced the art substantially” and “a narrow scope” to one covering “only a slight step forward”. That basic common sense about the patent system is now heresy. In our era, “the name of the game is the [patent] claim” – a declaration that was made triumphantly in 1990 by the then-Chief Judge of the Federal Circuit Giles Rich, but that should be scandalous because it elevates a legal construct written by and for lawyers over the work of the inventor. If I could change the patent system, I would resurrect the Supreme Court’s common sense, make the patent claim once again subservient to the real merit of the invention and hopefully change our legal culture to care more about the work of the inventor than that of the lawyer.
What we need from Trump
Peter Harter, founder, Farrington Group
Trump should use IP enforcement as a tool to generate revenues and at scale through his equality of opportunity pledge. Why not go after the $350-plus billion a year in IP losses that companies suffer each year thanks to cyberattacks via a bounty programme backed by bonds? Why not charge imports and US securities purchases from countries that benefit from piracy and counterfeiting? Why not repatriate offshore profits via a lower tax rate on patent royalty income and dedicate this revenue to the Highway Trust Fund and require that all spending be on products and services which respect intellectual property, delivered by companies that do not infringe? (This is a bipartisan idea already embraced by Senators Schumer (D-NY) and Hatch (R-UT).) Construction could commence in the counties that are the most respectful of intellectual property as an incentive for others to clean up their act. Kellyanne Conway, Trump’s campaign manager and soon counsellor to the president, said at the annual Wall Street Journal CEO Council event in Washington DC just after the election that fairness is about equality of opportunity, not equality of outcome. This point is not lost on voters for Trump: too much attention and wealth goes to too few zip codes. So don’t focus falsely on the zip codes that may generate the most patents, such as Silicon Valley. In September 2016, household wealth in America hit a new record of nearly $90 trillion. This is largely due to stock market and housing values which are held mostly by the top percentages of the wealthy. Cash savings at banks by middle-income earners are also a rising contributor, at $10 trillion of this total. With the Trump family largely generating wealth on the value of its own brand, IP enforcement should be in a great position to help Trump help more Americans put food on the table and secure new growth for the national economic pie.
On the latter issue – which has become a point of debate as investors and generic drug manufacturers increasingly bring inter partes review challenges against brand-name drugs – the paper stated: “Members of the 115th Congress may express their frustration over the retail cost of some drugs and biologic products by questioning the ability of pharmaceutical companies to effectively extend a drug’s patent term by patenting a new but seemingly minor application of that drug.”
The leaked documents show that while patent policy may not be an immediate concern for the new administration, plenty of other policy priorities – such as tax, trade and healthcare – could still have a significant impact on patent owners. In relation to tax, for instance, legislators could push for the introduction of a so-called ‘patent box’ or some other mechanism which would tax revenues earned from intellectual property at lower rates.
On the trade front, Trump campaigned on an anti-free trade platform and spoke regularly of his opposition to the Trans-Pacific Partnership and other trade deals. With IP provisions typically a key part of such agreements, rolling back the scope of free trade policies could have a knock-on effect for patent owners. This in turn could make the ITC a much more popular venue for infringement disputes if provisions designed to strengthen the enforcement of intellectual property overseas are not implemented or if the new administration pushes it as a way of policing infringing imports. Victory at the ITC also carries with it the prospect of an exclusion order – a remedy that has been rare in the United States since the Supreme Court’s 2006 eBay decision.
“Because the incoming administration intends to focus on enforcement, parties might be motivated to bring their patent fights to the ITC, which sits squarely on the pro-enforcement side,” comments Deanna Tanner Okun, former head of the ITC and now a partner at Adduci Mastriani & Schaumberg.
The relative importance of the ITC underlines one of the crucial aspects of the US patent system: it is not just what happens in the White House that counts. As the last eight years have shown, patent policy discussion is typically framed and shaped by Congress and the courts.
Over the Hill
Obama may have signalled his willingness to sign a second round of patent reform into law, but it was members of Congress who proposed legislation and kept it on the radar. The judiciary committees in both the House of Representatives and the Senate will remain the key drivers behind such legislative efforts.
Following the election, the Senate judiciary has seen one particularly significant change, with Senator Leahy – the Democrat who was one of the authors of the America Invents Act – handing over the reins as ranking member of the Senate Judiciary Committee to Senator Dianne Feinstein; Leahy becomes the ranking member of the Appropriations Committee while also retaining a seat on judiciary. Both senators are seen as straight shooters by many and Feinstein’s promotion is not expected to lead to a major deviation in policy.
One Washington insider describes the new committee leader as “very by the numbers and a conservative person who hates to be messed around”. Her chief of staff Jennifer Duck is also much admired in DC IP circles, having previously served a stint in government relations for Pfizer and worked for Feinstein during the passage of the America Invents Act.
What we need from Trump
Mark Lauroesch, executive director, Intellectual Property Owners Association
The Intellectual Property Owners Association, whose members span every industry and every field of technology around the world, leads the charge in advocating for full funding for the USPTO. Over the last two decades, the government withheld about $1 billion in USPTO user fees to fund unrelated programmes. Now a Department of Commerce (DOC) shared services initiative is threatening the USPTO’s access to the user fees it collects. This new money grab is sadly nothing new, but it needs to change with the new administration.
The USPTO’s operational services excel in comparison to other DOC agencies. This shared services programme will merely divert funds from DOC’s only fee-funded agency to improve its other agencies. DOC refuses to share the business case for compelling the USPTO to participate. This lack of transparency and concerns expressed by USPTO employees lead us to doubt that this is in the USPTO’s or the innovator community’s best interests.
What we need from Trump
Professor Mark Lemley, Stanford Law School
I expect the most significant change to the patent system in the next four years will be the radical reduction of forum shopping that will result if TC Heartland is overturned. The Eastern District of Texas would recede in importance while Delaware would grow; more importantly, cases would end up in a variety of different jurisdictions. If this happens, it would disproportionately hurt the bottom end of the litigation market – people who sue for settlement value rather than in hopes of winning. I think a reversal in TC Heartland would also mean the end of any real legislative effort at patent reform. At that point the patent reform movement will have accomplished its legitimate goals.
What we need from Trump
Kevin Rhodes, chief IP counsel, 3M
Over the next four years, I would like to see the Trump administration, Congress and the courts take a thoughtful, holistic approach to issues of IP law and policy to ensure that our IP ecosystem continues to be an enabler of America’s innovation engine. That starts with policies and programmes within the USPTO which promote the timely issuance of high-quality patent rights; clear and consistent standards from Congress and the courts as to what constitutes patent-eligible subject matter – standards that do not deny patent eligibility to some of the most innovative sectors of our economy; fair and balanced post-issuance review proceedings in the USPTO so that innovators can have confidence that their patents secure the investments in commercialisation and manufacturing needed to turn inventions into new products and businesses; effective and efficient patent litigation rules from Congress and the courts which address litigation abuses without unduly undermining the ability to bring and win legitimate claims of infringement; and advocacy from the administration supporting respect for IP rights and the rule of law globally, and in particular among our trading partners. If we can accomplish these things, we will be able to state with confidence that our IP law and policy are befitting of the most innovative economy the world has ever seen and are well positioned to support future economic growth and prosperity.
However, the expectation is that the Senate Judiciary Committee will have plenty on its plate in the first year of the administration which may keep patents off the agenda. “I don’t think anything is going to happen right away in the Senate,” predicts Johnson. “There are more pressing issues, starting with the Supreme Court nominee and attorney general appointment. Then there’s immigration reform, as well as other issues; so the Senate judiciary couldn’t get into patent reform for a good while into 2017 – and I don’t know if they have the appetite for reform.”
There may also not be the same appetite in the House of Representatives, where pro-reform legislator Bob Goodlatte has just two more years as head of the judiciary committee. Many observers point out that he would like to leave a legacy. Despite making patent reform one of his legislative priorities in the last Congress, he may now view other areas of reform – such as copyright – as more achievable targets.
Goodlatte’s Innovation Act, versions of which he introduced in both of the last Congresses, was viewed by some as overly broad and particularly damaging to certain patent owners. If legislation is to be introduced in 2017, then the chances are that it will be much narrower in scope and focus on areas such as revising Section 101 of the US patent statute, which deals with patent-eligible subject matter, and an overhaul of the inter partes review process.
Venue reform – another popular issue for those pushing for change – may drop from the list of priorities if the Supreme Court overturns a lower-court ruling in TC Heartland LLC v Kraft Food Brands LLC. That would make it harder for plaintiffs to bring patent disputes in places which are seen as particularly friendly to patent owners, such as the Eastern District of Texas. The case reflects the dynamic nature of the US patent system and the fact that, even while legislators argue about what needs to be done, the courts will often step in with their own remedies.
The venture capitalists’ view
So much of the United States’ success as an innovation behemoth is down to its vibrant start-up economy and the investment community that backs it. Not all investors have become embroiled in the debate around patent rights in the United States, but over the last decade Silicon Valley venture capitalist Gary Lauder, managing director of Lauder Partners LLC, has become a passionate critic of what he sees as the erosion of those rights. Here he lays out his hopes for patent policy in the new administration.
Many have proffered advice for the new administration and the new Congress. I do not have the space to outline even the best ideas, so instead will focus on the process that Washington goes through to arrive at them.
Where one stands on issues often depends on where one sits. I have been a venture capitalist for over 30 years, an inventor or co-inventor on 16 patents (so far), companies on whose boards I sat were defendants against patent assertion entities (PAEs) four times and twice were plaintiffs. Most significantly, I have felt and observed the incentives that patents have provided to me and fellow investors to put capital at risk by investing it in small companies.
Patents play a much greater role than litigation statistics convey. Historically, they have mostly guided the private sector to do the right things (eg, buy the invention/company instead of attempting to copy) without having to resort to litigation. As Congress, courts and executive branches have wrought more uncertainty in, and less enforceability of, patent rights, ‘efficient infringement’ – wilful infringement based on the expected costs and risks of defending patent lawsuits – has grown. The practical inability of being able to rely on enforceability has devalued patent assets by a factor of two over the last four years and has driven down venture investment in patent-dependent technologies (eg, energy innovations, medical devices, electronics and semiconductors).
Historically, venture-backed R&D has seven times the patenting potency per invested dollar compared to established organisational R&D dollars. The patent-dependent early-stage entities form the technology fabric of the small business segment of the US economy – the segment that creates 70% of all new domestic jobs. Unfortunately, the recent assault on patent rights has contributed to the reduction of the start-up formation rate to levels below the company failure/exit rate for the first time in decades. China and Germany have become better venues for getting patent justice than the United States.
We have fallen a long way, but it is not irreparable. Here are a few recommendations:
Recognise that the main beneficiaries of the patent system are those without the knowledge or resources to lobby – entrepreneurs and small start-ups. It is essential to look for truth outside of DC, since those that go there to deliver perspectives (ie, lobby) mostly represent the anti-patent crowd or the pharmaceutical industry. Small companies and yet-to-be-born companies have seen their interests traded away by the negotiations between those giants. There are more than two sides to most issues and the start-up side has to be sought out.
The patent troll bogeyman is a false narrative and yet the main impetus for ‘fixing’ the system. Even the White House had been co-opted to publish the 2013 PAE report, depicting a surge of lawsuits, while not revealing what was commonly known: this rise was an artefact of the America Invents Act’s elimination of the option of suing multiple defendants in the same suit. Several studies show that the number of defendants in patent lawsuits has not grown since 2009. Due to the prevalence of obfuscation and misrepresentation, debate with both (or all) opposing sides present is the best cure.
Legislation in the modern era is often written by lobbyists and staffers hoping to become lobbyists, so when legislation efforts commence, nefarious forces are unleashed. Hearings typically designate only witnesses favourable to proposed legislation. Consequently, legislation is typically unbalanced and obtuse, and results in unintended consequences, contravening the public interest. Compare that to how the Patent Act of 1952 was written by two neutral and brilliant experts in a simple and clear 35-page document, which gained broad consensus and was passed by Congress without debate. They studied the issues for a few years to arrive at that act, which unleashed the greatest flowering of technology that the world has ever seen. If legislation is no longer arrived at that way, then it needs to have all sides engaged. True debate does not exist on Capitol Hill. It could and it should.
China now issues more patents than the United States, while Chinese courts have become a more favourable venue than US ones. Foreign patent laws are strengthening while ours are weakening. Historically, China copies the best US inventions, meaning that the US patent system was the single most important innovation in government. This was recognised by Japan in the 1800s. In general, US policies (including IP and patent policies) need to be informed by history (eg, in the 1970-80s, the United States viewed patents through an antitrust lens, which led to the loss of the TV and VCR industry) and by the experiences of other countries – both positive and negative.
Remember that until 2010, patent reform was pushed mainly by Democrats. In order to appeal to conservatives, opponents of patent strength characterise patent reform as tort reform. In fact the patent right is a property right which has played a critical role in causing the capital markets to efficiently allocate capital in a way that has led to Joseph Schumpeter’s ‘creative destruction’. Creators rely on patents for their survival, but established incumbents do not like the destruction part of the equation and so continue to undermine the patent system.
To make America great again will require restoring our patent system to its former glory – if not beyond. That will require being careful about who to listen to. Economist Mancur Olson observed that the decline of nations comes after the moneyed interests control the legislature. Let us hope that this administration chooses its voters’ interests over those of its donors.
Gary M Lauder, managing director, Lauder Partners LLC
Meanwhile, the direction that patent reform takes under the new administration may also say much about Trump’s relationship with the tech community. It seems inevitable that this will not be as close as Obama’s was; judging by how many members of big tech were reluctant to speak to IAM for this story, Silicon Valley may be feeling some trepidation about the next four years. However, as a key economic driver and an obvious US success story, the tech sector cannot simply be disregarded. Plus, in the last decade, it has become one of the biggest spenders inside the Beltway – in 2015 Google’s parent company Alphabet splashed out more than $16 million on lobbying.
“I don’t ever want to say that the Googles of this world won’t have access,” remarks one lobbyist. “Things get smoothed over – it happens all the time.” Google may have been very closely associated with the Obama White House, but in recent years it has developed a highly sophisticated policy machine which knows how to play both sides. The tech giant’s vice president of public policy, for instance, is Susan Molinari, a former member of Congress for New York and one-time rising star of the Republican Party.
Big tech may also reflect that after eight years of Obama, it has already achieved much of its aims, in patent terms at least. For many, the number of lawsuits filed against them is falling, the costly smartphone wars have subsided and the threat from non-practising entities has been severely blunted.
It seems unlikely that all of this will be reversed because of a change in the White House. Trump’s election may represent a seismic shift for US democracy, but it will be some time before it becomes clear what his administration means for the patent market.