Clinton vs. Trump: How the US Presidential Election Could Impact IP Law

A great deal has been made of the distinct policy differences between Democratic Presidential Nominee Hillary Clinton and Republican Nominee Donald Trump in such areas as immigration, national defense, crime and taxation. But the 2016 Presidential election also will set the tone for the future of intellectual property and patent law.

In late June Clinton introduced several specific proposals directed at patent-related issues. These proposals are part of the Clinton campaign’s larger Initiative on Technology & Innovation. Todd Dickinson, the former Director of the US Patent and Trademark Office under President Bill Clinton, has been advising the Clinton campaign on IP matters.

Patent trolls are one particular target of Clinton’s attention. She supports the Obama Administration’s reconstitution of the Patent Trial and Appeals Board as part of the America Invents Act.

According to Clinton’s official position paper, “But costly and abusive litigation remains, which is why Hillary supports additional targeted rule changes.” These proposed reforms include:

• Legislation to “curb forum shopping and ensure that patent litigants have a nexus to the venue in which they are suing;”
• Requiring specific allegations be made in demand letters and pleadings; and
• Making patent litigants disclose “the real party in interest,” in an effort to increase transparency.
• Patent attorney Gene Quinn, Editor of IPWatchdog.com, studied the Clinton proposal and discussed its goals with Dickinson. Quinn describes the efforts as more modest, and attainable, than the patent reform goals outlined in the pending Innovation Act and PATENT Act, both of which remain before Congress.
• “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,” Quinn wrote at IPWatchdog.com.
• Likewise, Quinn said Clinton’s proposal to reform “forum shopping” likely will be met with little resistance from Congress.
• Clinton’s proposals have won praise from such stakeholders as the Computer & Communications Industry Association and the Innovation Alliance. Beth Provenzano, a vice president with the National Retail Federation and co-chair of the group United for Patent Reform, told Bloomberg BNA that the Clinton proposals are “smart steps that will help deprive patent trolls of the tools they use to extort millions of dollars from small American businesses every day.”
• Another key component of the Clinton plan is her proposal to allow the USPTO to retain all fees it collects from patent applicants in a separate fund. Any collections above that needed to pay for annual operations would be invested in new technology, personnel and training.
• This is a significant proposal, because for the last two decades, the USPTO has had to cope with Congress raiding its coffers and diverting fee collections to other areas of the federal budget. In 2015, past directors of the USPTO identified fee diversion as the top problem facing the office today.
• The Clinton campaign’s proposal also states, “Hillary also believes we should set a standard of faster review of patent applications and clear out the backlog of patent applications.”
• To date, the Trump campaign has focused its intellectual property law reforms on protecting US IP holders from Chinese-based piracy. The IP-related reforms are part of Trump’s larger position statement on Reforming the US-China Trade Relationship.
• Trump’s position statement says, “China’s government ignores this rampant cybercrime and, in other cases, actively encourages or even sponsors it –without any real consequences. China’s cyber lawlessness threatens our prosperity, privacy and national security. We will enforce stronger protections against Chinese hackers and counterfeit goods and our responses to Chinese theft will be swift, robust, and unequivocal.”
• Trump also expresses unequivocal opposition to the Chinese government requiring US companies to transfer technology to Chinese competitors in order for the U.S. business to enter the lucrative Chinese marketplace. Calling the policy “de facto intellectual property theft,” Trump said as President “we will adopt a zero tolerance policy on intellectual property theft and forced technology transfer.”
• Throughout his campaign, Trump has thrived on being an unconventional, “wildcard” candidate, and his position statement isn’t as detailed and specific as those of previous Republican nominees or his Democratic rival. What President Trump would do regarding intellectual property protections remains a mystery in large part, but his comments and policy views in other areas suggest that he will continue to favor a strong territorial view that is resistant to harmonization.  Whether he will take the positions of US favoritism on intellectual property issues to the extreme of becoming anti-global is yet to be seen.
• What does all this mean to IP practitioners and our clients?  Under the Clinton Presidency, the road ahead appears much like the present path – slogging through tweaks in patent reform and anti-troll, anti-forum shopping measures.  No major surprises are likely on the domestic front.
• Under the Trump Presidency, IP practitioners and their US clients may revel in rhetoric and possibly entrenchment in positions favoring national interests.  But significant changes could well come from the Trump cabinet who will possess views yet to be determined.
• Internationally, both candidates have signaled their opposition to the Trans-Pacific Partnership (TPP).  Should the US not pass the TPP, many believe that the global power of the US will be diminished and that trade wars may escalate into further nationalistic tariffs and taxes on imports.  
• Similarly, the US positions may become more insular in the upcoming Transatlantic Trade and Investment Partnership (TTIP) discussions. This may result in the strengthening of US-based companies. For those US companies who invest in R&D and innovation, we should expect a corollary increase in securing and enforcing IP rights.  But, how will this effect US companies who wish to increase their exports?  The current US TPP position already protects many US food producers by seeking to secure continued use of generic terms that are otherwise protected elsewhere as a Geographical Indication.
• The US will be pushing hard on a similar provision in TTIP talks. With the TPP treaty shelved, will the US have the leverage to push its positions if it chooses to limit access to the US market to other global players?  Will the US be able to exert its influence, for example, in other bilateral agreements that will have a negative effect upon US exports?
• Time will tell, but as usual with Presidential elections, the details that most impact IP positions often arise well after the election as decision-makers seek to implement broad policy positions.

"Jack Hicks is a Partner in Womble Carlyle’s Intellectual Property Practice Group."