“You are looking at a 14-page detailed document. There is a lot of thought put behind this agenda,” explained Todd Dickinson, former Director of the United States Patent and Trademark Office under President Bill Clinton who was reached by telephone for comment. Not surprisingly, Dickinson has has been an advisor to the campaign regarding intellectual property matters. “Other campaigns will be hard pressed to match the depth and thoughtfulness of these proposals.”
While the Clinton technology and innovation agenda may seem light on details to those intimately involved with the various aspects of the technology and innovation industries addressed, this agenda statement is relatively detailed given where we are in the campaign. Generally speaking, in the past at this stage of the game most Presidential contenders have had significantly less to say on technology and innovation issues. That being the case, Dickinson is accurate to point out the comprehensive nature of this agenda.
With respect to patents, Hillary Clinton begins by simply saying that she wants to improve the patent system to reward innovators. “Since our country’s Founding, the United States patent system has been an envy of the world and has helped propel inventions from the cotton gin to the computer.”
Clinton’s proposal for accomplishing this goal would be twofold: (1) to reduce excessive patent litigation through additional patent reform; and (2) strengthening the operational capacity of the USPTO by allowing the USPTO to keep and spend all the fees it collects.
Clinton on Patent Reform
With respect patent reform, the Clinton technology and innovation initiative explains:
The Obama Administration made critical updates to our patent system through the America Invents Act, which created the Patent Trial and Appeals Board, and through other efforts to rein in frivolous suits by patent trolls. But costly and abusive litigation remains, which is why Hillary supports additional targeted rule changes. She supports laws to curb forum shopping and ensure that patent litigants have a nexus to the venue in which they are suing; require that specific allegations be made in demand letters and pleadings; and increase transparency in ownership by making patent litigants disclose the real party in interest.
For those in the industry who are against additional patent reforms the immediate reaction will be negative. If you carefully parse what Clinton is saying it isn’t bad even for those opposed to broad based patent reforms currently pending before Congress and embodied in the Innovation Act in the House of Representatives and the PATENT Act in the Senate.
“The patent reform list is a consensus driven list that is modest, but appropriate, and reflects a desire to get things done that can get done,” Dickinson explained. “I think there would be broad consensus that could lead to enactment. Others will want to put all sorts of other things on, that could cause difficulties, of course. As they say, ‘politics is the art of the possible’, and I think this reflects a desire to get things done that can get done.”
Dickinson is again correct. Virtually no one disagrees with doing something to stop abusive and fraudulent demand letters. In fact, that could pass Congress immediately if those supporting patent reform wanted that legislation. Such legislation won’t pass, however, because it is deemed a fall back position that is hardly worth the effort. So the Innovation Act and PATENT Act remain frozen because those supporting patent reform seem to prefer all or nothing. They will get nothing with the 114th Congress unless they budge, but a proposal from a President Clinton to accept legislation targeting demand letters would pass with little or no serious opposition, of course assuming it doesn’t become a so-called “Christmas Tree” with hidden items not associated with specifically targeting fraudulent and abusive demand letters.
With respect to venue, there is again broad based consensus that something can and probably should be done. The issue to watch here is to see whether venue reforms are narrowly tailored and about procedural fairness or if they become perceived as just an opportunity for the so-called infringer lobby to make it difficult (or impossible) to bring patent infringement actions in some of the few district courts where patent owners actually fair well. For perspectives on venue reform see articles tagged venue reform.
On the issue of transparency in ownership, the USPTO has been working on this issue for some time. It is hard to argue with transparency of ownership so litigants really know who is the real party in interest. The mechanics of how such a system would work still needs to be fleshed out, but in principle this hardly seems controversial.
Clinton on PTO Operational Capacity
Hillary Clinton has also taken a very strong, pro patent position by announcing that she believes the USPTO should be able to keep and spend all of the fees they collect. Sadly, this is a revolutionary idea.
With respect to funding the USPTO, the Clinton technology and innovation initiative explains:
Hillary believes it is essential that the PTO have the tools and resources it needs to act expeditiously on patent applications and ensure that only valid patents are issued. That is why she supports legislation to allow the PTO to retain the fees it collects from patent applicants in a separate fund—ending the practice of fee diversion by Congress, and enabling the PTO to invest funds left over from its annual operations in new technologies, personnel, and training. Hillary also believes we should set a standard of faster review of patent applications and clear out the backlog of patent applications.
“The key take away is full funding for the PTO. I believe that this is the first time at the Presidential level there has been support for fully funding the PTO and legislation to that effect,” Dickinson explained. “That is the best thing in this announcement from an IP perspective.”
I agree wholeheartedly. Congress raiding the USPTO and preventing the agency from using the fees it collects has been an enormous problem since at least 1992, but rose to new heights with the balanced budget deal in the mid-1990s. Fee diversion was identified by the former Directors of the USPTO as the single biggest problem facing the USPTO during the 225th anniversary celebration of the U.S. patent system.
The devil is always in the details, but from a patent perspective the Clinton Initiative on Technology & Innovation seems surprisingly positive. Clinton seems interested in consensus issues and has steered clear of controversial issues, although some will undoubtedly want more information on her venue proposals and will be leery of such a proposal. Still, after many years without a serious, high-ranking, influential champion perhaps a Clinton Presidency would wind up being a net positive for the patent system.