18 Nov
2016

After US election many agree that patent reform is on hold and hope Trump may be pro-patentee

IAM’s Patent Law and Policy event, which was held in Washington DC on Tuesday, gave the IP community its first opportunity to gather to discuss just what a Trump administration might mean for patent owners over the next four years. Perhaps the main message from the day was that the legislative action that we’ve seen from both the US Senate and the House of Representatives over the last three years will be placed on hold, at least in the short term, as the executive branch and Congress work their way through a list of more urgent policy priorities.

There was less clarity on what stance the new administration is likely to take on IP issues, although some speakers pointed to several signs, such as President-elect Trump’s careful cultivation and protection of his brand, as indicators that it may take a more robust approach than the Obama administration to strengthening patent rights.  

In her keynote speech USPTO Director Michelle Lee predicted that once patent reform did come back on the agenda it would be more targeted than previous, more comprehensive proposals.

“I would hope any legislative proposal will take into account the numerous positive changes that have occurred recently in the patent system,” she said. Those changes included the shifting of attorneys’ fees becoming more common, changes to pleading requirements and the USPTO’s own considerable efforts to improve the quality of patents in the system.

Lee continued: “As far as issues, I predict legislative discussions may include venue reform and possible changes to Section 101 and PTAB.” On venue reform she pointed to the dominance of the Eastern District of Texas in new filings and claimed that “the mere perception that there are advantages to be gained by forum-shopping challenges the public’s faith in the patent system”. While support for putting an end to forum shopping has undoubtedly built in recent years, the need for  Congressional action may depend on whether the Supreme Court grants cert in the case of In Re: TC Heartland.

Her suggestion that changes were needed to 101, the part of the US patent statute that addresses patent eligible subject matter, was particularly notable. While many patent owners, particularly in software and life sciences, would agree that recent decisions from the Supreme Court have created significant uncertainty around just what is patent eligible, legislators have largely avoided the issue. That may now change, with considerable lobbying dollars presumably backing it. With Lee expected to step down from the USPTO once the new administration takes charge in late January, she used her presentation to speak more directly about predictions for the next four years.

Anticipating what the new presidency and Congress will mean for the patent world was a subject of two panel sessions that addressed policy. Speaking in the first, Microsoft senior director of IP policy Susan Mann suggested that most areas would be looked at with fresh eyes. “One thing is clear, public policies of longstanding are going to get a new look,” she commented. That might mean, she thought, that legislators will step away from the Innovation Act in the House and the PATENT Act in the Senate – the two bills that have arguably enjoyed the most backing so far.

Former USPTO Director Todd Dickinson, now at the law firm Polsinelli, pointed out that the high-tech sector, large parts of which have enjoyed a particularly close relationship with the Obama administration, may not be as close to the Trump White House. That would appear to be a fairly safe bet and might mean that other constituencies such as bio and pharma and smaller patent owners may enjoy greater favour. “Individual inventors are like the rust belt steelworkers of the IP system, the forgotten constituency who may now get more attention,” Dickinson claimed.

On a later panel Manus Cooney a lobbyist with American Continental Group, pointed out that the messages the new administration might communicate to patent owners could be particularly important. “In the near term the most significant tool the administration is going to have is a soapbox,” Cooney said. That could be used, he elaborated, to give the market clarity in areas such as whether the Innovation Act might be considered again. The ongoing uncertainty hanging over the market he claimed, was having a chilling effect. “Cases aren’t being settled, deals aren’t getting done because the mindset is that litigation reform is right around the corner,” Cooney explained.

He also asserted that there were people around the president elect who were fully aware of the importance of patent rights. Cooney said his understanding was that key Trump adviser Stephen Bannon had his own IP valuation business in the 1990s which worked with content producers in Hollywood and beyond. His fellow panelist Rob Stien of InterDigital highlighted that former FTC commissioner and George Mason University professor Joshua Wright had recently been named as an adviser on anti-trust matters. “His positions on IP are drastically different to some of the current administration,” Stien commented.

As with patent reform in the new administration, just how the key patent positions will be filled also leaves most people guessing. With Lee’s expected departure along with deputy director Russ Slifer, commissioner for patents Drew Hirshfeld will take charge, possibly for much of next year. Under President Obama David Kappos was nominated in April 2009 but was not confirmed until August of that year. If early reports of a somewhat chaotic transition operation are to be believed then there’s every chance that filling the top role at the USPTO – which of course doesn’t feature high on the list of priorities – will take some time.

None of the panelists were willing to name names in terms of who could be the next Director although Stien suggested there were several people in the room who could do the job. Cooney urged that members of the community engage with the appointment process. “Don’t sit back and wait to see who the President-elect is going to nominate if you feel you have strong candidates,” he commented.

 The role of director becomes arguably even more important if patent reform remains on the back burner. That will place greater emphasis on the changes that the Director and the USPTO as a whole can make in areas such as PTAB procedures and new guidelines on patent eligible subject matter.  

All in all, the hope among speakers and most delegates was of a very different climate for patent owners in the new term. But if President-elect Trump’s victory has taught us anything it’s to expect the unexpected. For America’s IP owners the best option is probably to keep an even closer watching brief. 

Richard Lloyd

Author | Editor

rlloyd@GlobeBMG.com

Richard Lloyd