Blackwell has also urged strong patent rights.
Many in the patent community are expressing an almost moral indignation that Donald Trump has taken no public position on patents. This ignores the reality that the Republican platform—which was approved by a committee overwhelmingly stacked with Trump loyalists—inserted a plank that stated patents are property rights, and theft of intellectual property assets is a national security concern.
So it is not entirely accurate to say that President-elect Trump has taken no public position on patents (although it is fair to say that patents are not one of his priority issues). This should, however, be a welcome turn of events for those besieged in the patent owner community. Your new federal government does not seem to have more patent reform as a top agenda item, which is newsworthy and heartening. There is no desire to ramrod patent reform down innovators’ throats.
That lack of a position on patent reform is dismaying to many because Hillary Clinton specified that she would act on venue reform, among other issues already heavily lobbied on for decades. In 2008, then-Sen. Barack Obama and Sen. John McCain shared the view that we needed some form of post-grant review to make it easier to challenge issued patents. Post-grant challenges ultimately came into being as the result of lobbying by Professor Mark Lemley on the left and Ed Reines on the right, as well as years of Congressional debate and expert studies by the National Academies and others.
Perhaps Trump’s team has reviewed current patent reforms and think that they are examples of what is wrong with Washington: driven by lobbyists, big companies, elites and campaign contributions. Not wanting to allow these elements to dictate his agenda fits perfectly with Trump’s agenda and promises.
Advisers Hold Key Roles
Because Trump has not been previously elected to public office and thus has not introduced, supported or voted on patent bills, his advisers could play an even more important role.
Ken Blackwell was appointed to lead Trump’s transition team for domestic issues. But this would not include the Commerce Department, which has been carved out for Dallas investor Ray Washburne.
Blackwell has written about the virtues of strong patent rights and pleaded with Republicans not to rush forward a flawed patent reform agenda. He also did an interview on these issues for publication on IPWatchdog.com in February 2015. If Blackwell influences Trump’s thinking on patent issues, that would be very good for innovators and very bad for the “infringer lobby.” His high profile on the Trump transition team is certainly noteworthy.
Aside from Blackwell—who may or may not be called upon for advice in the area of patents and innovation policy—we can look to the record of Trump’s running mate, Mike Pence. Pence served in the U.S. House of Representatives from 2001 until 2013, when he became the governor of Indiana. He served on the Judiciary Committee for 10 of his 12 years in Congress. This is significant because the Judiciary Committee is the one that deals with patents in the House.
Pence worked mostly on patent reform bills via the Republican Study Committee, a well-known group of House Republicans focused on inserting conservative views into public policy that include respect for the Constitution and private property rights. Although Pence did not always vote with patent owners (i.e., he voted for the America Invents Act), he was often skeptical of patent reforms that helped a few big companies and perversely increased litigation and uncertainty by introducing new tools for lawyers and infringers to abuse. For example, Pence fought to do away with the best mode requirement, which he said would “lessen the burden put on patent holders in defending their patents in post-grant review proceedings, and it will prevent the expenditure of millions of dollars in needless lawsuit abuse.”
Concerned with litigation abuses that cost patent owners needlessly, Pence would likely be persuadable on the issue of “efficient infringement” and the “patent holdout” problem, which are rapidly turning into a plague on the U.S. patent system and driving patent activity to Germany and China. A Constitutional conservative such as Pence should understand the property rights issue and find commonality with the positions expressed by Blackwell, former Sen. Rick Santorum and others on that point.
Pence has also served as governor in a state driven by many innovators and patent owners in the areas of manufacturing, pharmaceuticals and university research. In fact, Purdue University has in recent years highlighted its growth in patenting and licensing, increasing its national ranking and with a focus on using patents to fuel startups and economic growth. During Pence’s time as governor, Purdue soared to record numbers of new patents, record numbers of technology licenses and record numbers of start-ups based on its innovations.
In July, Governor Pence signed an Executive Order establishing the Indiana Economic Development Corp. as the entity that will coordinate all efforts on behalf of the State of Indiana to accelerate innovation and entrepreneurship. Perhaps most interesting, the order specifically acknowledges that increased innovation helps make communities more vibrant and spurs economic growth, higher wages and job creation.
In short, Pence seems to appreciate the realities and benefits of commercializing patented technology and the benefit that brings in terms of economic development and better, higherpaying jobs. Hopefully, he will see that what was in the best interests of Indiana will also benefit the country.
Substantially Different Input
Vice presidents often have a substantial influence on policy and personnel. Pence appears poised to be heavily involved in helping Trump make choices for key White House positions; political insiders already see his fingerprints on several key Cabinet nominations. Before we know who may be on the short list to become the next director of the United States Patent and Trademark Office or how a President Trump would come down on another patent litigation abuse reform bill produced by the infringer lobby, it will be important to examine the positions held by Pence and others such as Blackwell.
Early indications suggest that Trump, who is not being advised by the same Silicon Valley elites who advised President Obama, may be getting advice from Constitutional conservatives who understand that patents are property rights and appreciate the important role they play in commercializing innovations and invigorating the economy
