The visions and plans of a Trump Administration on intellectual property ("IP") issues are largely uncertain. IP was not a central issue in the presidential campaign, and there have been very few articulated policy positions outside of those ancillary to broader tax and trade issues. We can, however, apply the President-elect’s general philosophy and comments on technology and innovation to help identify several policy areas to keep a close eye on over the coming year.
We can be assured that the Trump Administration will favor strong intellectual property protections for American businesses. Trump has identified the theft of intellectual property as a national security issue and has endorsed the GOP platform that patents are private property rights protected under the Constitution. Further, Trump has successfully monetized several trademarks in addition to his own image and likeness, so he has an understanding of the value of IP assets to a company.
One area to watch is the relationship between the Trump Administration and the United States Patent and Trademark Office (“USPTO”). Trump has generally been critical of the influence of several Silicon Valley companies and their leaders, and current USPTO director (and Obama appointee) Michelle Lee previously served as head of patents and patent strategy for Google. Accordingly, a change of leadership at the USPTO would not come as a surprise.
With regard to the prospects for patent reform, it appears that the Trump Administration will put the brakes on new legislation that has been lobbied heavily in recent years, particularly regarding tort reform and restrictions on post-grant review. Ken Blackwell, head of the Trump domestic transition team, has written extensively on the potential harms of unnecessary patent reform legislation. Mike Pence, as a Congressman, was often skeptical of any patent reforms that introduced uncertainty and the potential for new litigation tools that infringers could exploit. Underlying each of these viewpoints is the notion that a vibrant patent system and strong patent rights spur economic growth.
Brendan S. Lillis, an associate at Phillips Lytle LLP, concentrates his practice in all areas of intellectual property law, with particular emphasis on patent preparation and prosecution and opinion work in the software, mobile applications and electronic arts.