By Cheryl Beise, J.D.
Other than promises to stimulate economic growth and job creation in the United States, in part to be accomplished by removing unfair trade barriers, President-elect Donald Trump has provided few clues for discerning the direction his administration will take when it comes to issues and policies that affect intellectual property owners. Some have read Trump’s "100-day action plan to Make America Great Again" and the President-elect’s pledge to protect U.S. businesses and their assets as signaling support for U.S. intellectual property laws.
As the owner of a national brand, Trump has not hesitated to take advantage of federal laws and the judiciary in enforcing and protecting his rights to the TRUMP mark. In April 2016, the U.S. Court of Appeals in New York City affirmed Trump’s win against a cybersquatter who had registered several domain names combining "trump" with the names of cities and other geographic locations. In another recent case, an individual, who had unsuccessfully accused Trump of defamation, also was found liable for cybersquatting.
Intellectual property law and policy do not normally evoke partisan political wrangling. The Leahy-Smith America Invents Act of 2011 and the Defend Trade Secret Act of 2016 each passed with overwhelming bipartisan support. Most intellectual property cases taken up by the U.S. Supreme Court in recent years have been decided unanimously or with one or two dissenting votes. However, intellectual property issues do often divide along industry lines. And some of those battle lines are already being drawn, as evidenced by a letter sent yesterday to President-elect Trump and the Trump-Pence Transition Team by Internet Association President and CEO Michael Beckerman.
Internet and Technology Industry Proposal
Recognizing Trump’s "use of the internet to connect with, and energize voters throughout the campaign," Beckerman outlined a "roadmap" of nine keys areas for protecting innovation and free expression online. The Internet sector is responsible for six percent of the economy, nearly $1 trillion of GDP in 2014, Beckerman noted. The Internet Association represents 40 of the nation’s largest online companies.
Patent reform. The Internet Association urged the new administration to support vigorous post-grant reviews programs and enhanced patent quality initiatives, including upholding Section 101 subject matter eligibility restrictions. The association also strongly supports patent venue reform. During a PTO oversight hearing in September, Darrell Issa (R-Calif), chairman of the Judiciary Committee’s Subcommittee on Courts, Intellectual Property, and the Internet, said that he is prepared to press for a legislative solution if the Supreme Court does not overturn the Federal Circuit’s decision In re TC Heartland LLC, holding that 28 U.S.C. §1400(b) provides that a corporate defendant in a patent case, as in other cases, may be sued in any district in which personal jurisdiction lies.
Copyright, online intermediaries. Other top concerns for the Internet Association are continued protection of online intermediaries through the safe harbors provided by Section 230 of the Communications Decency Act and Section 512 of Digital Millennium Copyright Act. Robust copyright fair use, fairness in digital music licensing, and modernization of the Copyright Office, also are on the association’s list of priorities. Legislators on both sides of the aisle agree that the Copyright Office needs a digital overhaul. Former registrar Maria Pallante—who was suddenly removed from her position last month—had favored separating the Office from the Library of Congress.
Trade policy. Regarding trade policy, the association said that in order foster the U.S. economic growth Trump desires, "the U.S. must promote a fully balanced framework of intellectual property laws in its trade agreements and foreign diplomacy." The association suggests promoting a "transatlantic" digital single market and cross-border data flows, while fighting content restrictions, imbalanced copyright protection, and over-reaching privacy rights, such as the right to be forgotten. The association supports a free an open Internet though the multistakeholder governance model. It also favors expanding and improving the controversial foreign guest worker program—heavily relied upon in the tech industry—through an expanded Green Card program, including the creation of a STEM Green Card system.
USPTO Director Remarks
Addressing the IAM Patent Policy Conference yesterday, USPTO Director Michelle K. Lee said that IP will necessarily be a key piece to achieving the economic growth and job creation Trump promised during his presidential campaign. Citing a recent report, Lee noted that IP-intensive industries directly and indirectly supported more than 45 million jobs in 2014, or nearly one-third of all U.S. jobs. In prepared remarks, Lee touted the PTO’s accomplishments during her tenure, including reducing application backlog, improved patent quality, and implementation of AIA procedures.
"I’m optimistic the incoming administration will share our appreciation of the importance of intellectual property as a driver of economic growth," Lee said. Lee predicted that venue reform and possible Section 101 reform likely would remain on the legislative agenda when the new Congress convenes, but would not draw attention until later in the term.
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