California Dreaming: Mitt Romney and the Inter Partes Rebuke of Trump

By Peter Harter & Gene Quinn
March 8, 2016

Mitt Romney

Mitt Romney

Enter Mitt Romney. Just when you thought the race for the White House couldn’t get any more unpredictable and bizarre, the 2012 Republican Nominee rebuked the current Republican frontrunner, Donald J. Trump. Although Romney didn’t bring up the issue of patents we wondered whether he was sending a message. Romney said that if Trump’s policies were ever adopted it would cause “entrepreneurs and businesses of all stripes to flee America. … Here’s what I know. Donald Trump is a phony, a fraud.” The gauntlet had been thrown down.

So much for Ronald Reagan’s rule to not speak ill of fellow Republicans, but then again Trump blew threw Reagan’s rule a long time ago. In no uncertain terms Mitt Romney indicted Trump as a poor quality candidate that due to his personal temperament is unfit to be President. Romney’s speech was the political equivalent of filing an Inter Partes Review (IPR) claiming the Donald is ineligible subject matter for the Oval Office.

Regardless of Republican bickering, the fact remains that outside of Massachusetts and a couple southern States, Trump has so far well under performed his poll numbers. Roughly 35% of votes cast by Republicans so far in all States have gone to Trump, which means nearly two-thirds of Republican voters are voting for “not Trump,” making him a rather weak frontrunner.

For months there has been talk about the possibility of an open Republican Convention. Depending on the outcome of primaries in Ohio and Florida on March 15 there is a possibility that none of the current candidates can achieve the 1237 delegates necessary to claim the Republican Nomination.

Mitt Romney won’t rule out a possibility of accepting the mantle if drafted at the Republican Convention, although he says he will endorse one of the remaining three candidates at some point. There is always the possibility that Romney is trying to keep the door open for someone else, perhaps his former running mate and current Speaker of the House Paul Ryan (R-WI). Ryan says he is not interested, but he said the same thing about becoming Speaker. Is this Ryan being coy? Would he really rebuff a call if it should come at the Convention?

Ryan as Speaker presides over the convention and has told the media in recent weeks he was unaware of the role of Speaker but was studying up on delegate math and convention rules. Regardless of the political drama that is playing out like a John Grisham novel or the “House of Cards” starring Kevin Spacey as President Underwood, it seems that Mitt Romney is not willing to go quietly as he sees the Republican party imploding.

Over the past several months we have been looking at the various candidates running for President and what, if any, experience or positions they have relative to patents or innovation. See Presidential Campaign Archives. Given the Romney turn of events we thought it might be appropriate to take a look at what we know about Romney and Ryan as it pertains to patent and innovation policy.

First, Ryan was Romney’s running mate in 2012 against President Obama. Obama had just signed the America Invents Act (AIA) into law in October 2011 and was busy promoting measures to curb patent trolls and engage Congress in a new round of patent reform legislation. Obama was also expanding the activity of The White House, The Commerce Department, The Federal Trade Commission and the USPTO in activities generally aimed at addressing abuses of the patent system. Today these efforts are increasingly seen as hostile to the interests of patent owners and the critics in industry and Congress are growing and taking their complaints to the courts and presidential campaigns.

While the Romney-Ryan 2012 campaign website is not running anymore you can get a glimpse of it thanks to the Internet Archive’s Wayback Machine. The Romney-Ryan campaign talked about patents in the context of attracting talent from around the world because immigrants are highly innovative and highly motivated to break through against the odds.

This type of talk should be very reassuring to tech companies in Silicon Valley who have been repeatedly rebuffed for decades as they have wanted to increase H1-B visas for skilled workers. Supply-side economists report that a 10% growth in H-1B population corresponds to a 6%-12% growth in invention (measured as patents) among immigrant groups and a 0.5%-1% growth in patents by U.S. natives. So a skilled worker, pro-immigration policy as previously supported by Romney-Ryan would increase overall innovation in the U.S. without displacing U.S. workers, a win-win for everyone, particularly Silicon Valley.

Second, Ryan shares Romney’s mid-west, manufacturing technology values. Ryan came up in politics thanks to the guidance of many in Wisconsin including Congressman Jim Sensenbrenner (R-WI), a former Chairman of the House Judiciary Committee and a champion of patent centric constituents such as the Wisconsin Alumni Research Foundation (WARF). Romney has deep roots in Michigan thanks to his Dad’s work in the automotive manufacturing sector, a very patent centric industry.

Third, in 2008, Mitt Romney the candidate openly promoted a strong patent system. He promised to have a patent attorney run the patent office (and not a political person from Congress or the campaign). Surrogates spoke at innovation events in Silicon Valley linking strong patents to national security. Romney believed in 2008 that strong IP enforcement and fighting piracy and counterfeiting is essential for our security. Prior to 2008 Romney valued patents in his role at Bain Capital as a measure of a company’s assets and competitive advantage. And earlier in his career he helped to save the Salt Lake City Olympics from graft and budget issues by licensing the intellectual property and brands through merchandising and promotion and in ways much akin to how Trump has made his money.

Ryan has already dealt successfully with working with potent and loud opposition from inside the GOP. Ryan is not likely to risk alienating them on patent issues and let them paint him and others as pandering to the DC and corporate elites that Trump, Cruz, Sanders and other “outsider” candidates have tapped into. Throughout the circus that has been the Republican Primary, Ryan has also largely stayed above the fray, only dipping in several times to reiterate core Republican beliefs associated with the freedom of religion (1st Amendment) and against racial bigotry (the party of Lincoln).

The challenge now for Romney, Ryan and other Republicans trying to unite the party and squeeze Trump is this: How will these actions either repel or attract broader support, especially from Silicon Valley, which according to Consumer Technology Association (CTA) head Gary Shapiro votes with their hearts. Republicans have been courting Silicon Valley, and belief they are and should be the party of choice for Silicon Valley. With Senator Bernie Sanders (D-VT) outraising Hillary Clinton in Silicon Valley, that dash for campaign cash leading into a general election could become quite interesting.

If there were to be a debate today between Romney or Ryan and Trump that focused on business and tech issues like patents, immigration, litigation, speech, surveillance, privacy, taxes and trade it could reveal much. For example, the U.S. Supreme Court in their recent Halo/Stryker oral arguments called the hold-out phenomenon (i.e., efficient infringement where infringers simply ignore patent rights altogether) as patent piracy and seemed troubled by it. As the Trump University scandal has come to the forefront of debates, Trump has said that he doesn’t typically get sued because he does not settle. This philosophical approach, itself a zero tolerance policy toward those who seek to enforce rights, seems eerily in alignment with how the infringer lobby approaches patent owners. It may be too little too late for the Republicans, but questions are being raised about whether Trump built his fortunate on the backs of the little guy.

If Mitt Romney is so inclined to continue as the nemesis of Donald Trump through the Republican Convention, perhaps he could really help by evaluating Trump on concrete business issues and in advance of the California primary, which will be held on June 7, 2016. With 172 winner-take-all delegates on the line there is a very real possibility that California may play a pivotal role in determining whether any one of the candidates reaches 1237 delegates and the Nomination, or whether there is an open convention. Given the amount of money spent the past two decades on lobbying and political contributions by many tech giants in Silicon Valley perhaps patents and associated or tangential innovation related issues may rise as an issue for the California primary? We already know immigration reform is high on the list of the Silicon Valley wish list precisely because immigration is an innovation issue for tech companies.

On March 7th on CNBC Paul Holland of Foundation Capital said he could not find anyone in Silicon Valley that would speak in favor of Donald Trump or Senator Ted Cruz at a policy discussion that he and wife hosted at their home for venture capitalists (VCs), startups and technology company executives. Former California Governor Arnold Schwarzenegger recently took over “The Celebrity Apprentice” show and endorsed Ohio Governor John Kasich (R-OH). Can Mitt Romney tap into California Republicans that have supported Senator Rand Paul (R-KY) and Governor Jeb Bush and other former candidates and have them rally around Senator Marco Rubio (R-FL), Kasich and Cruz and risk splintering the Republican vote and helping Trump?

VCs have funded ballot initiatives to break up The Bear Republic into six states, carving Silicon Valley’s wealth out of one of the world’s top 10 economies. Republicans and independents in the technology industry may get behind one candidate but what about the many other Republican voters spread around the rest of California, especially in the rural and suburban areas with long-standing conservative and outsider favorable sentiments? Can Romney tap into these tribes? Will he even try?

The Author

Peter Harter

Peter Harter has over 20 years of experience bridging the ecosystems of technology, business, law, venture finance and politics by providing advice to management, boards and investors on legislation, regulation, court cases, media, standards, treaties, political campaigns, capital, property and labor. As the founder of The Farrington Group, Peter advises public and private companies, investors, startups and nonprofits on risks from legislation, regulation, court cases, standards, politics, and more. He also helps identify relationships for sales, finance and and executive recruitment. Peter’s career began in 1993 as an Internet lawyer. He broadened in Silicon Valley as head of global government affairs for Netscape and and in business development and sales for Securify. He deepened his experience in policy in Washington, DC, lobbying on patent reform for Intellectual Ventures. Peter has expertise in the areas of patents, copyrights, open source, cybersecurity, export controls, voting, antitrust, nuclear energy, big data, and medical research reform.

To contact Peter please connect with him via LinkedIn.

Peter Harter

Gene Quinn is a Patent Attorney and Editor and founder of Gene is also a principal lecturer in the PLI Patent Bar Review Course and an attorney with Widerman Malek. Gene’s specialty is in the area of strategic patent consulting, patent application drafting and patent prosecution. He consults with attorneys facing peculiar procedural issues at the Patent Office, advises investors and executives on patent law changes and pending litigation matters, and works with start-up businesses throughout the United States and around the world, primarily dealing with software and computer related innovations. is admitted to practice law in New Hampshire, is a Registered Patent Attorney and is also admitted to practice before the United States Court of Appeals for the Federal Circuit. CLICK HERE to send Gene a message.

Warning & Disclaimer: The pages, articles and comments on do not constitute legal advice, nor do they create any attorney-client relationship. The articles published express the personal opinion and views of the author and should not be attributed to the author’s employer, clients or the sponsors of Read more.

Discuss this

There are currently 16 Comments comments.

  1. Matt March 8, 2016 4:02 pm

    Gene – I usually agree with almost 100% of what you blog about on this site. However, I have to 100% disagree with trying to correlate HB1 increases to invention. If anything the opposite is true as Silicon Valley (and other companies) have been abusing the HB1 situation to displace US workers with foreign counterparts. One only needs to see recent news of Disney and how the laid off US workers had to train their cheaper H1B replacements –

  2. Gene Quinn March 8, 2016 4:57 pm


    Thanks for your comment. You raise an important issue.

    I just want to point out that it really isn’t me, or Peter, correlating H1B visas with increased innovation. That comes from a Harvard Business School working paper that says with a 10% increase in H1B visas that would lead to 6% to 12% increase in the number of patents and with a .5% to 1% increase in domestic patenting.

    Second, I saw the news about Disney. Like so many issues I suspect that this H1B visa issue is far more complex than it otherwise seems. Given how government programs work in general I have little doubt that there is abuse in the H1B visa program. With how inefficient government is in other areas it would be shocking to find no abuse and a well oiled machine. I certainly admit that the Disney situation is very troubling. If the claims are true this simply cannot be what the H1B visa program was intended to do, and it should not be allowed to displace American workers simply because rich corporations want to essentially own their employees as they did once upon a time when movement of workers was non-existent.

    Having said all that, it seems to me that we are just not producing enough engineers and scientists in America to satisfy high-tech corporations. Whatever needs to be done to allow those high skilled workers to come to America or stay in America after graduating from U.S. institutions would seem to be a good move. Increasing worker visas of any kind just so foreign workers can displace Americans already in jobs or who are capable and available to do the work is bad policy and flat wrong in my opinion.

    An issue worth following up on in more detail.


  3. Paul Morinville March 9, 2016 7:46 am

    I worked for a large corporation in HR. It was the fastest growing company in the 1990’s, so HR really meant staffing.

    There were many examples of hiring H1B visa candidates, particularly from Asia, to satisfy diversity quotas. I remember one hire who was here on an F1 visa (student) attending a university. We had competing American candidates of various non-Asian descent and gender who were equally qualified and some had higher GPA’s and tougher classes. However, our diversity numbers told management we were short Asians and females. In Texas, at that time, the number of Asians and women in tech was substantially below the average primarily because California had higher percentages of both.

    But management was going to fix our numbers so we could continue to sell to the federal government, and we were forced to hire the F1 Asian female to satisfy that diversity quota.

    I don’t think it is wise to open the visa program to more people if our corporations are forced to hire based on a diversity quota.

  4. Titus Corleone March 9, 2016 11:38 am

    “tech companies in Silicon Valley who have been repeatedly rebuffed for decades as they have wanted to increase H1-B visas for skilled workers…”
    Indeed…. Oh please…. Why don’t you take that up with the “former American born I.T. workers of Disney!” Disney Corp brought in dozens of H1-B visa holders from India. Fired their current I.T. Department and threatened them with losing their severance if they didn’t train their own replacement. THEY WERE FORCEC TO TRAIN THIER OWN REPLACEMENTS FROM INDIA!!! No more Kool-Aid please. We aren’t drinking it anymore. Similar corporate abuses of the H1B system occur all over the country. It is not about patents. It is about corproations who have zero allegiance to America or the American People. Sorry, but Romney/Ryan or any of the other insiders are just corporate hacks. They could care less for the American innovators of the middle class. It is time to kick the lot of them to the curb, and start over.

  5. A Rational Person March 9, 2016 3:42 pm

    “Having said all that, it seems to me that we are just not producing enough engineers and scientists in America to satisfy high-tech corporations.”


    If this was true, why didn’t those Disney IT workers stick around to train their replacement? If there were more great job opportunities for those IT workers at other corporations, shouldn’t they have been eager to leave Disney for those opportunities?

    What I have heard from my American friends who are electrical engineers is that they would encourage their kids to go into other fields, because the job opportunities are not great in the US outside of a few select area and being an electrical engineer is not a prestige job in the US anymore. Increasingly in this country we value people who buy and sell stocks, flip houses, merge companies and sell off the assets, rent seekers, etc. far more than people who actually build or manufacture products.

    Although most high GDP countries have seen at least some percentage of manufacturing jobs go away, I know of know high GDP-country that let as high a percentage of its manufacturing jobs go away as the US in the last 30 years. I also know of no other high GDP country with an electronics industry that was as passives as the US was in losing most of its electronics industry in the last 30 years. And similar things could be said about the US machine tool industry, that like our electronics industry was the envy of the world 30 years ago.

  6. angry dude March 9, 2016 4:13 pm

    Silicon Valley corps like to hire bright foreign-educated engineers for cheap (MS and PhD levels) and abuse them for as long as they can
    Same with hiring American engineers – but those are slightly more expensive and can leave at any time

    Patents being sport of kings + Draconian employment contracts = Engineers are legally chained to their corporate employers and can’t start their own companies
    doing similar stuff

    It’s all in the HBO’s “Silicon Valley” show

  7. Edward Heller March 9, 2016 7:37 pm

    To me Trump sounds, and has always sounded like Ross Perot. Now I did not know Perot, but I do know Choate. Choate will tell you that patents are important for American jobs, particularly to the extent they protect startups. Choate was chosen as Perot’s running mate exactly for the same reasons Trump has been making so much noise. The people in DC are so corrupt and clueless, they are negotiating our jobs offshore through lousy deals.

    Other candidates are about ideology. Trump, I think, is about jobs. Despite his crudeness, I do not think he would be at all bad for the U.S. patent system.

  8. Edward Heller March 9, 2016 7:58 pm

    Did you know that Trump ran for president in 2000? — for the nomination of Ross Perot’s Reform Party. He later withdrew, saying, “So the Reform Party now includes a Klansman, Mr. Duke, a neo-Nazi, Mr. Buchanan, and a communist, Ms. Fulani.”

    Didn’t Trump recently deny knowing who Duke was?

  9. angry dude March 10, 2016 9:31 am

    @Paul and others

    You do realize the difference between run-of-the-mill IT workers who can train their replacements from India and highly educated phds in very specialized fields of computing like speech or pattern recognition slavering for googles and apples of the world ?

  10. A Rational Person March 10, 2016 9:48 am

    angry dude@9

    “You do realize the difference between run-of-the-mill IT workers who can train their replacements from India and highly educated phds in very specialized fields of computing like speech or pattern recognition slavering for googles and apples of the world ?”

    Yes, I do understand the difference. However, “The H-1B is a non-immigrant visa in the United States under the Immigration and Nationality Act, section 101(a)(15)(H). It allows U.S. employers to temporarily employ foreign workers in specialty occupations.”

    So Disney is arguing that the IT workers it is replacing with H-1B visa employees are jobs that are “specialty occupations”.

    Also, based on “technical knowledge” displayed by the justices in Supreme Court opinions and, by several of the judges in recent Federal Circuit opinions with respect to patents, even “run-of-the-mill IT workers” would appear to have extraordinary technical abilities compared to the general population of lawyers, a “highly educated” group of professionals in the US.


  11. angry dude March 10, 2016 11:19 am

    @A Rational Person

    The very fact that an employee can train his functional replacement in a relatively short period of time assumes that the job itself is mundane and certainly not a specialty occupation

    This should be self-evident to everybody, even to SCOTUS judges

  12. A Rational Person March 10, 2016 6:10 pm

    Angry Dude@11

    Actually, the definition of what qualifies as a “specialized worker” under the H-1B visa rules appears to cover some surprising occupations (And, “wow”, you really cannot make this stuff up):

    “Donald Trump’s modeling agency has profited from the very same visa program that the presidential candidate himself has slammed — and appears to have violated federal law in the process, a CNNMoney investigation has found.”
    “While this visa program is best known for bringing over technology workers like engineers and computer programmers, Trump’s own modeling agency has used the program for years, federal data shows. That’s because federal law surprisingly lumps in fashion models with these other specialized workers — though it’s the only job that doesn’t require higher education. (Instead, models must have ‘distinguished merit and ability.’)”

    I leave it to everyone’s imagination as to how the “distinguished merit and ability” of the involved foreign workers was determined . . . .


  13. angry dude March 10, 2016 11:38 pm

    A Rational Person @12

    Trump knows how for sure: two of his wives (Ivana and Melania) are foreign-born models from former communist states, and those are just official wives who passed his tests on “distinguished merit and ability”…

    The rest of candidates were just fired after taking the test 🙂

  14. Anon March 12, 2016 10:03 am

    Angry dude at 11 – your logic is false. The notion of “ease of training your replacement” is NOT a valid indicator of whether or not the position itself is itself “mundane and not special”

    You are not including the level of skill of those being trained, nor there already near-level non mundane abilities.

    To use your sense of mundane would be to necessarily make every art field mundane, as there exists in every art field a level of PHOSITA with which carries a “gee, the next person over can be easily trained” type of thinking.

    The bottom line is that the political process of visa granting distinguishes between different art fields as opposed to judging within an art field. It very much makes a different kind of “value” judgement that is just not aligned with certain core principles of the patent system (i.e., advances are possible in every art field, no matter how mundane that particular art field may appear to be in relation to other art fields).

  15. Silence Dogood March 23, 2016 4:57 pm

    The guest-worker programs (H-1b being just one) is not an immigration comparable to the past, these non-immigrants are being brought over for the single purpose of taking Americans jobs at lower wages. Now visa expansion is the goal of our bought politicians and the corporate lobby; even the trade agreements (TPP) are loaded with language meant to expand foreign guest workers taking what’s left of American jobs.

    Hiring only foreign workers, even though an intermediary, is discrimination at its worst. With H-1B visa, diversity doesn’t apply:

    There is and never has been a shortage of qualified American workers! Connecticut companies such as Aetna, Cigna, Hartford Financial Services (all in on Indian H-1b’s and offshore India), Travelers, Anthem BCBS, United Healthcare, UTC, Voya, GE, pretty much ALL US companies are firing Americans and replacing them with offshore or onshore visa (H-1b, L-1a &b, OPT, B-1, O-1 etc.) guest workers (IBM, Accenture, TCS, Cognizant, Infosys, Wipro, etc). It is NOT just IT, it’s Finance, and any other operations they can source. The American people do not want illegal immigrants and visa guest-workers taking our jobs! We don’t want corporations bringing over millions of Indian guest-workers so that they can have cheap labor and claim Americans can’t or won’t do the work-when we held the jobs and had to train our replacements when we were laid off! We don’t want every city or state giving documentation and driver’s licenses to assist illegal immigrant’s access to services (free) or employment (our jobs)! We don’t want corporations to be allowed to screw with retirees or anybody else’s pensions that were EARNED, or eliminate retiree health insurance that was PROMISED! We don’t want to be screwed on our taxes because corporations (so called job creators-NOT) don’t want to pay US\State taxes and they keep Billions of dollars offshore! Now visa expansion is the goal of our bought politicians and the corporate lobby; even the trade agreements (TPP) are loaded with language meant to expand foreign guest workers taking what’s left of American jobs. Our representatives are complicit in propagating the lie that America needs visa guest-workers. Our representatives say they love America, but they seem to hate Americans.

  16. Edward Heller March 23, 2016 5:16 pm

    “We don’t want corporations bringing over millions of Indian guest-workers so that they can have cheap labor …”

    Who is “we?”

    I have been eternally surprised that the one party that supposedly represents the middle class has been the greatest proponent of flooding America with virtually uncontrolled immigration. Now such immigration naturally lower wages, which is why immigration does not help people who work for a living.

    But it does help businesses and it does specifically helps US businesses who have to keep costs down in a global environment.

    So it turns out that the party who declares that they represent the people is the party who is really helping American business at the expense of American workers.

    Strictly from Adam Smith’s point of view, a free flow of works is a good thing. But it does in fact hurt American workers.