Forbes Patent Policy Opinion May Not Be Best Advice for Pres. Trump, US Innovation

Mr. David Pridham, a contributor to Forbes and Executive Officer at Dominion Harbor Group, offers President-elect Trump ‘Five Ways President Trump Can Revitalize Our Damaged Innovation Ecosystem.’ It is certainly a situation worth watching and discussing, and hats off to Mr. Pridham and Forbes for proffering the subject to the entrepreneurial community.

Mr. Pridham and I would likely agree with his foundation that a healthy patent system leads to job growth. In fact, I think we would agree that a healthy start-up community is our best hope for job creation and that promoting innovation (through promoting IP) is invaluable. However, we diverge in minor areas of the conversation regarding ways for Mr. Trump and Congress to get IP back on track.

1. Appoint A Strong, Pro-Startup Leader Of The Patent Office
I agree. A populist-elected president would do right to hire a Director (and IP advisor to the White House) who communicates with, offers IP training to, and understands solo inventors, small businesses, and start-ups. That said, the USPTO is a multi-billion dollar organization with over ten thousand employees. Most patent professionals I’ve spoken with expect Mr. Trump to hire someone with executive experience and legal knowledge from somewhere outside of Silicon Valley, such as pharma.

2. Reform The U.S. Patent Office
OK. The USPTO needs new technology, a new quota system for the examining corp., better accountability and transparency for supervisors and art units, better examiner support and work allocation, and more incentives to promote early interviews with the inventor and counsel. The stories of examiner fraud are the epitome of government waste and needs to be repeated often, but I still prefer the terms "improve" or "streamline" the patent office, rather than "reform."

3. Clarify Section 101 Of The Patent Code By Executive Order
Subject matter eligibility and Alice jurisprudence lacks consistent application and specifically harms software/computer innovation and biotech. These are industries that the U.S. cannot afford to hinder or discourage. That said, an Executive Order would not be a lasting solution. Legally, the White House could likely guide the USPTO’s interpretation via executive action, but it is unlikely the extent that Trump could control the courts’ interpretations. Section 101 needs to remedied by Congress, with an eye to older precedent, in order to find consistency in crafting new law and tests.

4. Sign An Executive Order To Restore A Patentee’s Right To Injunctive Relief
The right to exclude is paramount in patent law, but new technology being built on dozens (or hundreds) of patents has made the questions more complicated than merely banning the sale of the allegedly infringing products. Again, E.O. is at best a short-term solution and might be court-challengeable. Congress or the Federal Circuit needs to develop guidelines for injunctions, especially considering SEPs, ‘efficient infringement,’ and the ITC.

5. Ask Congress To Abolish The U.S. Court Of Appeals For The Federal Circuit (CAFC)
I respectfully disagree. The CAFC is still needed to provide uniformity in patent law. By taking on more cases, writing full opinions more often, and meeting en banc more often, the Federal Circuit can accomplish both their tasks of "error correction" and providing guidance to the lower courts and the USPTO examiners. The Federal Circuit can limit the number of patent cases that the Supreme Court hears by adopting early stances consistent with precedent, good IP and economic policy, and technological advancement in order to clarify important areas of confusion such as IPR standards and constructions, 101 analysis, injunctions, and fact finder deference. The other appeals courts are needed to be laboratories of law and suggest new solutions, but Mr. Trump would be wise to ensure that future judicial appointees share the vision that the CAFC’s mission is to produce uniformity and consistency across future administrations.

Again, I don’t believe Mr. Pridham and I are far off. As a contributor for Forbes, he certainly has a different audience to account for. My biggest worries would be inferences of sweeping change from the ideas of "reform" at the patent office and inconsistency from executive action challenges in the courts and future administrations. To Mr. Trump regarding patents and IP, my advice will typically be "moderation" and consistency. 

Look for more contributions to the policy discussions in the near future.