Trump on IP and Patent Reform: What Silicon Valley Doesn’t Understand

By Peter Harter & Gene Quinn
November 9, 2016

“Trump not having a clear, well-defined position on a patent reform agenda just means he is paying attention.”

Donald Trump

President-Elect Donald Trump. Photo taken by Gage Skidmore. Licensed under CC BY-SA 3.0.

Last night as the election was called for Donald Trump, Bloomberg Government’s patent reform news alerts circulated a new article from Ars Technica highlighting how bad Trump would be on IP issues mostly because he does not have specific positions. Ars Technica completely missing the point of a patent story by now is almost too much a cliché to even bother to point out, but what is rather remarkable is that Ars Technica is not alone. Predictably, Ars Technica totally misses what has been in plain view for nearly all of this year.

Others from Silicon Valley and the technology policy community, such as Engine, have ranked candidates and gave Trump low grades for not having a clear position. Last month at Mark Lemley’s annual patent conference at Stanford Law School an attorney that does work for Netflix and other Silicon Valley giants openly said that Trump’s campaign website had no stated position on patent reform while Clinton’s explicitly talked up the need for venue reform. Of course, the implication being if you are not in favor of a never ending revision of U.S. patent laws then you are somehow an ignorant rube not paying attention to the overwhelming consensus in the industry that vast new patent reform measures are desperately necessary to save America from the evils of innovators hell bent on innovating.

As the entirety of the elite thinking class miss read the electorate that will send President-Elect Trump to 1600 Pennsylvania Avenue, these same elite thinkers are fooling themselves if they think that there is a consensus on the issue of patent reform. Indeed, they are talking tough on patent reform because they know that moving patent reform was going to be more difficult even if Hillary Clinton had prevailed last night. The coalition against patent reform has slowed, then stalled and finally stopped patent reform, at least for now. Trump not having a clear, well-defined position on a patent reform agenda just means he is paying attention.

That being said, it is still important to fact check those who might have you believe that Trump has no positions on intellectual property related issues – because that is flatly not true. Indeed, with the ability of Silicon Valley to create new tools for sharing and discovering content it is rather amazing that they profess so little understanding about Trump’s views IP issues. To help clear the air here are the basic known facts:

  1. Trump’s campaign website, in the trade section, calls for the U.S. to go after China and others for stealing American IP.
  2. The GOP campaign platform unveiled in Cleveland for the convention in July openly said two things about IP: (a) Patents are a private property right like land protected by the Constitution; an (b) Theft of IP is so bad it is a national security issue.
  3. John G. Trump, the Uncle of Donald Trump, was a well regarded inventor, scientist, and entrepreneur that served his country during World War II inventing new radar technologies and then building a company while teaching at MIT inventing high powered lasers to address cancer. John’s work was recognized by Presidents Truman and Reagan.
  4. 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. Much of Trump’s wealth is tied up in the value of the various Trump trademarks and his own likeness, both of which are intellectual property assets that he has licensed and understands how to commercialize. He understands the business end of commercializing these types of IP assets as well as anyone in America.
  5. Trump has been an outspoken critic of the Trans-Pacific Partnership (TPP) trade agreement negotiated by the Obama Administration. The TPP presents very real and damaging consequences for the intellectual property rights of biotechnology and pharmaceutical companies. Blocking this agreement, or renegotiating this agreement, would be very welcomed by many in the biotech and pharma industries.

The next three months will be a busy period for the Trump transition team and it is unclear how existing patent reform bills may resurface in 2017, although we can be sure that there will be those that will seek to have patent reform take center stage once again. Since 2005 we have seen lots of bumper sticker headlines about trolls and the urgent need for patent reform consume all the oxygen in the room. But in time these headlines have been rebutted and shown as false, based on poor analysis and or incomplete data. The real story is about efficient infringement, which is code for stealing rights without paying.

Perhaps Ars Technica and others who are predisposed to wanting to see President-Elect Trump fail should use the opportunity of the transition period to gather facts about Trump’s views on IP so that we start 2017 with a complete and objective record. Wouldn’t that be refreshing.

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 EMusic.com 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 IPWatchdog.com. 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 IPWatchdog.com 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 IPWatchdog.com. Read more.

Discuss this

There are currently 32 Comments comments.

  1. jbavis November 9, 2016 6:17 pm

    As I see it, Trump now faces a conundrum with these trade agreements.
    Other than maybe Japan and Germany, very few foreign countries see value in IP rights specifically because they don’t generate revenues&jobs in their respective countries. On top of that, many of American IP rights are easily copy-able – software, movies, music, etc. Why would those countries uphold patents held by American corporations if they’re not getting something in return?

    I feel that a large reason Trump was elected were blue collar workers – people who do not directly benefit from strong IP rights. Sure, indirectly they may benefit by being employed by corporations that do value IP, but indirect are easily swayed in the next election.

  2. angry dude November 9, 2016 7:04 pm

    jbavis @1

    Dude, please get a clue

    Foreign corporations are responsible for large numbers of US Patent filings

    In many cases they prefer to file first in US rather than in their own countries

  3. Adam Ullman November 9, 2016 7:36 pm

    @jbdavis:
    You make the statement “Trump was elected by blue collar workers — people who do not directly benefit from strong IP rights.”

    I could not disagree more that blue collar workers do not benefit from strong IP rights. Why would any U.S. business invest in infrastructure or manufacturing when parts and products are easily copied overseas and sold back on our shores at lower prices? What if this new presidency isn’t looking to enforce our IP abroad, but rather in the U.S.?

    Search “SteriShoe” on Amazon.com. I believe that all of the other UV shoe sanitizers, that are not SteriShoe®, infringe on my business’s U.S. patents (we have 7). When patent enforcement costs $1M+ per case, IP is very difficult to enforce in the U.S. Let’s clean up our house and how we deal with IP here before we speak with other nations about our IP. Maybe, just maybe that’s about to be considered…

  4. Individual Inventor November 9, 2016 8:24 pm

    Individual inventors should get together and reach out to the Trump administration to let them know how much damage the America Invents Act that Obama put in place has done to the value of patent rights. Repealing the post grant procedure sections of the AIA, or repealing the whole Act would be in the best interest of individual inventors.

  5. John White November 9, 2016 11:05 pm

    Generally speaking, if a given country would rather have the advantages of technology, in all its forms, practiced in their country, strong IP to protect the property of those who own it will foster that agenda. Same in this or any other country. Strong rights creates strong development incentive. Weak rights does the opposite.
    US tech companies have a rudderless “attack patents” strategy as their “reform” agenda. They are undermining their own future. Witless.

  6. step back November 10, 2016 5:06 am

    John @3

    They are not witless. Just short term.
    Everything is all about grab my share now and bail out.
    After me, le deluge (the floods, who cares?)

    Trump is the same way. Not a long haul thinker.
    Rule by impulse.
    Long term consequences are irrelevant.

    No one knows what Trump is going to do for or against patents. Not even the Donald himself.

    Whatever it’s going to be, it’s going to be a surprise.

  7. Ely Erlich November 10, 2016 5:35 am

    Jbavis – “other than Japan and Germany…” would it really be so bad for the US to be lumped together with two of the worlds best manufacturing economies?

    Maybe their IP focus has a thing or two to do with their success.

  8. Prizzi's Glory November 10, 2016 5:46 am

    The attack on intellectual property rights seems to start under Bill Clinton around 1995 with the institution of unlawful “quality assurance” programs like SAWS and the initiation of the GATT international patent law regime, which seems to have rendered extremely valuable IP low-hanging fruit to certain groups among large corporations and big capital.

    This development was important because simultaneously relentless cost reduction in the high tech industry (now being extended to biotech and big pharma) was beginning to make it much cheaper to produce such extremely valuable IP — an increase in economic inclusiveness that seems to created some political discomfort among certain sectors of the US elite.

    Under George W. Bush unlawful programs like SAWS and Second Look seem to have crossed from mere unlawfulness into illegality with criminal document falsification and conspiracy.

    Under Obama the criminality may have gone beyond the USPTO as Obama brought into government many people involved in criminal acts associated with the mortgage meltdown (made possible by the changes introduced by Bob Rubin and Larry Summers during the Clinton administration). There seems to have been a semiconscious Congressional reaction or suspicion that resulted in the passage of the STOCK Act.

    While Hillary Clinton is close to many of the most corrupt, Trump does not seem to be quite so connected. As vile as NY City real estate developers often are, they often have an adversarial relationship with some of the most corrupt in the finance industry.

    Consequently, there is a chance albeit extremely slight that Trump might actually be better in terms of preserving IP rights than the crooked Clintons and their associates.

  9. Generic Native November 10, 2016 7:19 am

    No doubt that trump will see through the bs from silicone valley. Dr.Trump apparently was the scientist who got to review all of Tesla’s private papers after his death. You remember Tesla, the guy who created earthquakes in Manhattan from his loft.

  10. Benny November 10, 2016 7:30 am

    I don’t think you can infer a linear relationship between campaign promises and actual policy. Trump struck me, personally, as being generally ignorant on most policy matters (foreign policy in particular), and will probably make it up as he goes along. In this regard I tend to agree with stepback’s comments at 4.

  11. Night Writer November 10, 2016 7:53 am

    Well, one thing is that Obama has been appointing judges to the Fed. Cir. selected by Google. They are not qualified and clearly are coming in with an agenda to burn the patent system down. These are after O’Malley and Chen was an exception who was virulently anit-patent at the PTO and then switched.

    And, the justices Obama has appointed are terrible as well (except Kagen seems to have a good head on her shoulders in that she seems to know she is limited.)

    So—hard to image how worst judges and justices –FOR patents — could be appointed by Trump.

  12. Night Writer November 10, 2016 8:17 am

    You know, everyone should get that Trump happened for a reason. The reason is that Clinton is just as off the tracks as Trump. Another eight years of static wages for everyone in the private sector with the taxes, education, healthcare, and housing continue to go up 4-5 percent a year, was intolerable to the average working class person.

    And with patents we are seeing the same thing. Alice is criminal. Everyone that put their name to Alice should be impeached. It is a decision that is equity that allows any judge to invalidate any patent they don’t like without evidence or fair hearing. It is violation of the Constitution.

    So, everyone should understand that both sides are way off the tracks. And, yes, I dislike Trump as much as Clinton and voted for Stein. But, Clinton is as batshxt crazy as Trump.

  13. Mark T November 10, 2016 9:58 am

    “Trump not having a clear, well-defined position on a patent reform agenda just means he is paying attention.”

    Yep, that is the only possibility alright, because everyone knows nothing matters more to Trump than patent reform. Gene, are you 100% certain the quote above must be correct?

  14. jbavis November 10, 2016 10:18 am

    angry due@2:

    You seem to have missed my point entirely. I’m talking about foreign countries lack of motivation to uphold strong IP rights in *THEIR* respective countries. Why would they when they have more to gain from copying know-how from other countries (including the U.S. or corporations that file U.S. patents).

    Previous trade agreements were signed by foreign countries only because they got something in return – often trickled down to blue collar manufacturing jobs.

    Trump can’t have it both ways – strong IP rights in foreign countries AND take back blue collar manufacturing.

  15. jbavis November 10, 2016 10:35 am

    Ely Erlich:

    > Maybe Japan&Germany’s IP focus has a thing or two to do with their success.

    Not arguing that – I agree that it’s not a coincidence that places where strong IP rights have resulted in a strong economy. Instead, I am questioning why foreign countries will want to enforce IP rights onto their citizens. Previously it was largely due to the agreements – in those agreements America had to concede elements in exchange for the foreign countries to enforce IP rights in their respective countries. Rip up those agreements and you’ll see Hollywood movies and software and music being copied at substantially higher rates than today, you’ll see drugs copied and generics made available to their citizens at fractions of the cost of the brandname, etc etc.

  16. Benny November 10, 2016 10:40 am

    Jbavis,
    I come from a “foreign” country. IP rights where I design and manufacture are not as important as IP rights in the country where I sell my product, and where enforcing those rights makes economic sense. The US is a big market.

  17. jbavis November 10, 2016 10:42 am

    Peter/Gene:

    I disagree with the 2nd half of your point #5:

    > “The TPP presents very real and damaging consequences for the intellectual property rights of biotechnology and pharmaceutical companies. Blocking this agreement, or renegotiating this agreement, would be very welcomed by many in the biotech and pharma industries.”

    TPP aims to do the opposite – foreign signees need to increase their IP protections and meet minimum requirements. I have seen nothing to suggest that drug patents would not be included in these rights.

  18. Gene Quinn November 10, 2016 10:53 am

    jbavis-

    The TPP might aim to do the opposite, but it will dramatically and negatively impact the biotech and pharmaceutical sector with reduced protections in the U.S. So it would be great if other countries provide better rights than they do now, but to get them to provide more rights shouldn’t require the U.S. to provide fewer rights than presently available.

    See:

    http://www.ipwatchdog.com/2015/10/18/trans-pacific-partnership-what-do-ip-practitioners-need-to-know/id=62568/

    http://www.ipwatchdog.com/2015/10/26/ip-protection-for-biologics-in-the-tpp-trading-away-future-treatments-and-cures/id=62692/

    http://www.ipwatchdog.com/2015/10/05/obama-administration-caves-on-data-exclusivity-in-historic-tpp-trade-deal/id=62288/

  19. Edward Heller November 10, 2016 3:32 pm

    Patents are a private property right like land protected by the Constitution…

    Warms the heart.

    President Trump, beware of the Goodlatte’s of your party. They do not share your views on this critical issue.

    The repeal of IPRs must be among the first priorities in the new administration.

  20. Independent Inventor November 10, 2016 6:57 pm

    “The repeal of IPRs must be among the first priorities in the new administration.”

    As well as the repeal of 101.

  21. Edward Heller November 10, 2016 7:10 pm

    II@20, the repeal of 101 is highly controversial and for reasons previously discussed, probably not effective for what its backers intend since the exceptions are judicial in the first place.

    Putting 101 in the basket with a repeal of IPRs reduces the chances of repealing IPRs.

  22. angry dude November 10, 2016 8:25 pm

    Is there any legal possibility to overturn Ebay decision by Scotus ?

    Cause it goes against the very nature of a patent grant and is plainly unconstitutional

  23. Anon November 11, 2016 6:55 am

    Repeal 101 is not what is needed.

    An explicit removal of the Supreme Court judicial re-writing is what is needed.

    The Court does not depend on the Constitution for its re-writing as it cannot do so. The Constitution is a delegation of power to a specific branch TO write the patent law (and is not the patent law itself). This is why the Court itself ties its views to section 101.

  24. Anon November 11, 2016 6:56 am

    Yes, angry dude, overturning eBay is a very real legal possibility.

    Not a high probability, mind you – but a very real possibility none the less.

  25. poorbuthappy November 11, 2016 7:11 am

    Please look at the article in Intellectual Asset Management from 2011 – but still current – “Patents as weapons in economic warfare” http://www.iam-media.com/Magazine/Issue/48/Features/Patents-as-weapons-in-economic-warfare
    This covers the development of patent systems in countries, the national balance of payments in Intellectual Property (US is positive by some $90bn, China negative by $22bn) and some different ways that nations are trying to improve their situation.

  26. angry dude November 11, 2016 9:15 am

    I don’t think Trump really understands what patents are and how they are supposed to work properly – he needs to be filled in by his advisers

    But the fact that he lashed out at Apple and Amazon during the election campaign is a very very good sign

    Trump’s future IP scenarios are not written in SV corporate boardrooms (unlike Hillary’s)

    No wonder SV “leaders” are all freaking out (except for Peter Thiel)

    Good

  27. Curious November 11, 2016 12:18 pm

    An explicit removal of the Supreme Court judicial re-writing is what is needed.
    I agree. You repeal 101 and the Supreme Court will still find a way to f__ with things. 101 needs to be rewritten to prevent the Supreme Court from messing with it.

  28. step back November 11, 2016 12:42 pm

    Overheard while on an escalator ride in Trump Towers:

    “Never mind ’bout them Birnam woods, first we kill all the patent lawyers.”

    https://en.wikipedia.org/wiki/Let%27s_kill_all_the_lawyers

  29. angry dude November 11, 2016 12:52 pm

    step back @27

    jokes aside, but the current situation with patents is so bad that I’d rather challenge those SV infringers of my patent to produce any man of their choosing for pistol duel than talk to any patent lawyer about enforcing my patent.
    I’m very sure my chances would be overwhelmingly better even though I can’t shoot at all

  30. nat scientist November 12, 2016 2:45 pm

    Having the independent thinker Peter Thiel on the Trump Transition Team and Uncle John Trump in nephew Donald’s genes makes patent reform a Moonshot worth a push to incentize the individual that are the real discovery agents and paradigm resolvers. Marshall McLuhan had a snappy understanding of the big enchilada when he cross-related, “Imitation is the sincerest form of Battery”. It was the capitalists without moral hazard 3rd rails that got us to monopoly patent law for oligarchs to win everything.

  31. Jr February 22, 2017 11:23 pm

    Nat@30 – they are not capitalists. They are people who made their money in a croney system of pay to play and they continue to payoff the whores in dc to pull the ladder up behind them.

  32. DeWayne Stafford February 27, 2017 9:33 pm

    When all the laws and conditions for inventors are boiled down, what is amounts to is IP MAFIA theft sublimated into law. Inventors ideas are IP imminent domain for the corporate elite who pay to write laws 100 % to their advantage. ENOUGH