Donald Trump welcomed the Intellectual Property Owners Association, the largest association of corporations that own patents, to New York City in 2007 when they held their annual meeting at the Waldorf-Astoria Hotel.
Twenty years earlier Trump launched himself as a self-made celebrity thanks to the success of his book Trump: The Art of the Deal. As media and technology have evolved over the past thirty years so too has Trump kept up. In fact, Trump’s intangible asset value expansion today is a lot like the Kardashians. For candidate Trump, according to his beloved New York Times, this means 6+ million fervent supporters loyally help his brand, purchasing his campaign themed hats and ties, responding to anti-Trump comments in the media.
Trump, like President Obama and the Clintons, has made a fortune branding and licensing himself. Trump brags about his superior negotiating and deal making skills. So how would a President Trump use such intellectual property talent to Make America Great Again?
Trump on Trade — The TPP
Trump’s campaign views on foreign policy and trade are likely to indicate how he may drive patent reform or at least compete with other candidates. Trump’s campaign opened last July with an assault on immigration reform and expanded with an agenda to push back on other countries that take advantage of America on trade, currency or national security.
Recently Senator Marco Rubio attacked Trump’s views on China arguing that a President Trump would not help America: “We have the Chinese government building up their military, stealing our inventions & making Donald Trump’s ties & hats.”
The Trans Pacific Partnership Treaty (“TPP”) pending before Congress makes many changes to the US patent system and some in Congress such as Senators Orrin Hatch (R-UT) and Rob Portman (R-OH) have already expressed opposition (here and here, respectively) to TPP because of how it weakens American intellectual property rights.
Trump should challenge Senators Rubio and Ted Cruz to debate the TPP with their Senate colleagues now. Portman is up for re-election and hosts the GOP convention just after the 4th of July in Cleveland, Ohio. Such a move would allow Rubio to strut his foreign policy stuff and rebut Trump’s attacks about his lack of attendance in Congress; Cruz can substantively speak up given his experiences with patent issues. Such a debate would benefit Americans who should not be forced to wait for the lame duck Congress, after the November election, when many politicians newly unaccountable to voters could do strange things.
The Sessions Influence
The recent endorsement of Trump by Senator Jeff Sessions (R-AL) is poignant. Sessions talked up the need to fight “ObamaTrade” – TPP – and promised President Trump would fight it. Sessions fought the America Invents Act (AIA) on the Senate floor in September 2011. Sessions nearly won on his amendment to strike a provision added in the House of Representatives to “fix” a date on a late filed patent application for one company. Sessions did not like this bail out.
Sessions serves on the Senate Judiciary Committee and has been Ranking Member. Policies of a campaign are very often driven by the people surrounding the politician. It was around this time in 2008 that we saw the Barack Obama and Mitt Romney campaigns officially support the same policy promoting the creation of post-grant review systems for the USPTO. Sessions will be well positioned to help a President Trump shape his patent agenda.
Software has Made America Great
More practitioners in the patent system are asking whether Europe is a better place to obtain and enforce patents. Bob Stoll, former Commissioner of Patents for President Obama’s USPTO, testified last week in the Senate Small Business & Entrepreneurship Committee and said in response to a question from Chairman David Vitter (R-LA) that America is now (thanks to Alice and PTAB) one of the most restrictive countries in the world for patent eligibility. See here and here.
Software has made America great. Software powered our economy and work force out of the nadir of automobiles, textiles, energy, steel and other industries that went offshore or simply changed due to technology or regulation. If the USPTO is invalidating patents thanks to the Supreme Court decision in Alice and the lobbying of incumbent technology, financial service and retail giants then it is easy to see Trump, already loudly questioning the role of lobbyists and billionaires, agreeing with Senator Maria Cantwell (D-WA) who said at this hearing that the tech giants dominate patents too much.
When Trump was a business man he got along with everyone. He has told us all about that as a candidate. But where will a President Trump come down on divisive issues like patent eligibility? Would he instruct the USPTO to be more lenient in its review of applications? Would he instruct the Solicitor General to take pro-patent positions in cases before the Supreme Court? So far little substance has been interjected into the race for the White House, which means voters are taking large leaps of faith on many issues when they vote for Trump.
Trump, like it or not, has proven capable of monetizing his own name and personality while spanning the varied businesses of real property, entertainment, sports, and consumer products. Now it is time for Trump to call for a vigorous debate on the TPP to demonstrate his expertise on matters of strategic national and international economic importance. Trump should encourage his colleagues to explain to voters the importance of patents and other intellectual property issues, why they drive so much of how Americans compete on the global stage, and how Americans depend on their government to enforce the law against copyists, pirates and infringers, at home and abroad.