Well, hands up if you saw that coming! For those of us who lived through the Brexit referendum, the idea that polls and betting markets are accurate forecasting tools was shown to be nonsensical months ago; but, even so, Donald Trump’s victory over Hillary Clinton in the US presidential election has come as a surprise to many – we really should have known better.
President-elect Trump will be inaugurated on 20th January, so he has just over two months to get his policy priorities sorted out and his top team in place. Given that he has so much to do, it is unlikely that IP will be at the forefront of his thinking; however, there will be a lot of members of the US IP community wondering what the future will bring for patent, trademark and copyright owners.
To get an angle on the new administration’s IP priorities was one of the main reasons why we decided to hold our second Patent Law & Policy conference in Washington DC on 15th November. As you can see from the speaking faculty – and I can also see from the attendee list – we have a number of very big hitters getting together next Tuesday at the Ronald Reagan Centre to discuss what the new US government will do; they include IP advisers to both the Clinton and Trump camps, as well as former USPTO directors, former and current judges, Capitol Hill lobbyists and senior industry figures.
Indeed, this could prove to be an opportunity to begin to frame some of the issues for the new administration. If you want to come along, there are a very limited number of places still available and you can secure one by completing the registration form here.
Unlike Hillary Clinton, Donald Trump did not talk patents during the election, so as things stand we can only speculate as to what may be coming down the line. Here are a few of my thoughts:
The President-elect has been very critical of the way in which countries such as China have appropriated US technology and IP, so he is clearly going to want to do something about that. But he was also extremely scathing about various international trade treaties the US has signed, including the WTO agreement. There is a circle to square there, given that it is bodies such as the WTO which provide formal ways for the US government to take action against foreign governments over IP abuses. Without these, it will be even more incumbent on individual rights owners to protect themselves in foreign markets, while domestically we may see the revival of the USTR’s 301 review as a serious instrument of policy and a beefing up of the ITC.
During the campaign Trump made great play about the propensity of big businesses to offshore capital and jobs. He said he wanted to bring both back to the US. Of course, a number of BigTech companies are involved in one or both of these activities. What’s more, the Trump campaign raised relatively little money from Silicon Valley and other technology centres in the US. In short, therefore, President Trump will not be beholden in any way to big technology companies. That may make it harder for them to get a hearing and to influence policy at the White House, which in turn may mean less government support for patent reform than there has been under President Obama. On a related note, smart reform opponents should look to play on the President-elect’s oft-stated support for the little guy and the left behind to make a pitch for the needs of lone inventors, start-ups and SMEs in the face of efficient infringement.
There is a big decision to make about the next Director of the USPTO. Both the current incumbent Michelle Lee and her deputy Russell Slifer are political appointments made by the Obama administration, and so can be expected to depart along with him or even before. If that is the case, then it is likely to fall to the non-politically appointed Commissioner of Patents, Drew Hirshfield to serve as acting Director while the Trump administration identifies and then vets potential full-time replacements for Lee and Slifer. David Kappos did not become USPTO Director until August 2009, seven months after President Obama was inaugurated, but it may be that the delay is even longer under the new administration. If so, Hirshfield will be the one making the big calls for a fair amount of time. That could include signing off on new examination guidelines and overseeing the way in which the PTAB approaches the broadest reasonable interpretation standard. Any changes there would be a very big deal indeed. Beyond Hirshfield, the background of the new, appointed director will be worth keeping a look out for: President Obama’s two direct choices – Kappos and Michelle Lee – both came from operating companies in the high-tech sector. Is that something that the Trump administration will continue with, or will another part of the patent community – life sciences, say, or private practice – get the job? Any change could have a significant effect on how patent policy is viewed and implemented at the USPTO.