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Donald Trump's Position on Patent and Intellectual Property Reform - A Guessing Game by Elias Borges

Need for Intellectual Property Reform:

The explosive growth of technologies surrounding the delivery of on-line and mobile based multimedia has pushed intellectual property laws in directions never before contemplated. In a world where a majority of people consume entertainment, news and other information via their mobile device rather than by books, newspapers and television, the nature of copyright law will need to adapt. Furthermore, given the exciting developments in delivering products and services via mobile technology and the “internet of things”, the state of patent law is sorely in need of a refresh, particularly in light of recent court decisions which have significantly curtailed the scope of patent protection afforded to method patents. Without doubt, intellectual property law will need some serious tweaking if it's to provide the necessary financial underpinning for the the evolving mobile and web based economy.

Explicit Positions During the Election:

Intellectual property reform is rarely a “hot” political topic, particularly in a presidential election campaign. To her credit, copyright reform was one of the topics discussed in some detail in Ms. Clinton's campaign website. Mr. Trump by contrast, never specifically mentioned copyright reform, nor any other form of intellectual property reform, during the entire election. However, Mr. Trump did acknowledge the importance of intellectual property and the crucial role it plays in the economy in several speeches during the election. He voices strong opposition to the Trans-Pacific Partnership (TPP), indicating, if circuitously, that the patent provisions in the TPP which affect bio-pharma companies in the United States would need to be scrapped. Indeed, many bio-pharma companies based in the United States have seen their share prices rise significantly on the news of Mr. Trump's election victory. Mr. Trump also alluded to intellectual property in his criticisms of China's trade practices. During the campaign, Mr. Trump referred to a 2013 commission report on the the theft of American intellectual property to claim that China's enforcement of American intellectual property rights in China would result in an additional 2 million more jobs in the United States.

So predicting what the Trump administration's position will be on intellectual property reform takes on an air of crystal ball gazing. However, there are a few clues we can glean from Mr. Trump's campaign and his personal history which may give us a clue as to what position his administration might take in the coming months/years relating to intellectual property reform. Much thanks to Peter Harter & Gene Quinn of IPWatchdog.com for their insights in this regard. I'll try to break down each of these clues by heading.

1. Theft of American Intellectual Property

We know that Trump's campaign website specifically called for action against China and other countries for "stealing" American intellectual property. How this relates to intellectual property reform per say is unclear. It is possible to curtail the “stealing” of American intellectual property assets by means other than reforming intellectual property law. Short of attempting to extend United States Patent, Copyright and Trademark rights extra-nationally, it is hard to see how reforming US IP laws can affect Chinese technology sales outside the United States. Extra-national enforcement of US IP laws would be an unprecedented and risky thing to do, both politically and from a legal point of view. However, it may be possible for his administration to amend US IP laws to grant “American Companies” preferential intellectual property rights. Doing so would be fraught with legal, constitutional, political and administrative problems, not to mention the fact that it would be a direct violation of numerous treaties relating to intellectual property which the United States currently benefits from. The Patent Cooperation Treaty (PCT) comes immediately to mind. US companies benefit greatly from the PCT, and it's difficult to see how that treaty could survive if the basic intellectual property rights afforded to Americans were somehow different then those granted to foreigners.

2. Patents are Private Property

We also know that the Republican campaign platform mentioned that patents are private property and that the theft of American intellectual property was a national security issue. Unfortunately, this revelation really tell us very little other than the Trump administration will value American IP. This does not differ significantly from previous administrations. Framing intellectual property rights from a "national security" prespective is not new as, to some extent, national security provisions are already contained within US patent law. I had one client's patent “sealed” for “national security” reasons because the invention could have had military applications. Again, it's hard to see how protecting “American IP” for national security reasons necessarily involves any meaningful change to patent law. It seems to me that any "national security" concerns relating to intellectual property are best dealt with legislation relating to exports, imports and tariffs rather than with intellectual property reform.


3. Mr. Trump's Personal Relationship with Intellectual Property

More interestingly though, we know that Mr. Trump is a savvy marketer who has successfully marketed himself and his name as a trademark. The TRUMP brand embellishes everything from parlor games to buildings. Toronto's Trump Tower is an example of a building whose name was literally licensed from Donald Trump's company. Clearly, Mr. Trump is personally quite aware of the value of intellectual property, particularly trademarks, and understands the vital role that enforcing and licensing those rights play in creating wealth.

Interestingly, invention, patents and the commercial exploitation of patentented technology is also something Mr. Trump is probably keenly aware of. Mr. Trump's uncle (John G. Trump) was a prolific inventor, scientist and successful entrepreneur who invented and promoted technologies for radar and high powered lasers. Mr. Trump (John G), received presidential recognition for his achievements and success. It's likely Mr. Trump (Donald) is cognasant, if not down right proud, of his uncles achievements and recognizes the critical role patents played in his uncles success.

Finally, being a real estate developer and promoter, it is very likely that Mr. Trump understands how the value of intellectual property, like real estate, can grow with time. He must certainly be aware that intellectual property assets, like real estate assets, can grow in value as a result of the financial and personal investment in the property increases. Research and development investments, like investments in construction and design, are key ingredients in creating value, so I find it unlikely that Mr. Trump would not appreciate the need for protecting those investments.

Conclusion:

If I had to hazard a guess as to Mr. Trump's position on intellectual property reform, I would argue that Mr. Trump would side with expanding the creation and enforcement of intellectual property, rather than take a more narrowing approach. His statements during the campaign and his personal and family history lead me to believe that if Mr. Trump thinks of intellectual property at all, he thinks of it as an important business asset requiring the considerable investment of time, effort and money. I think it doubtful that he would try to narrow the scope of intellectual property protection as a result. There may be an opportunity with this new administration to turn back recent erosion of patent law as it relates to method patents. As a patent agent and an advocate for a greater breadth of protection for web related technologies, I am cautiously optimistic. As to how capable or successful Mr. Trump might be in executing intellectual property reform, I have no idea. Politics is a mystery to me, and American congressional politics utterly baffles even the most thoughtful observer. Will his administration successfuly deliver the changes to intellectual propertey which his history and rehtoric might suggest? On that, I won't hazzard to guess.

Elias Borges



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