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Intellectual property under President Trump

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Natalie Rahhal tries to discern what President Trump will mean for intellectual property, given how little he has said about it. Potential issues include taking on China, ditching the Trans-Pacific Partnership and appointing a new USPTO director

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President-Elect Trump (photo: Michael Vadon)

Donald Trump ran a campaign focused on the creation and retention of jobs in the United States. The President-elect has spoken of taking a strong stance against the exportation of jobs and manufacturing to China in particular. Trump has also been critical of the Trans-Pacific Partnership (TPP) and promises to oppose it. These policies will undoubtedly have ramifications for IP owners, but Trump and his campaign have said little explicitly about IP. Trump certainly understands the power of a brand, however.

He does talk about China a lot. Trump is a great admirer of the Great Wall of China, but is less enamoured of the country’s business practices, especially those that involve the theft of trade secrets from the US. Trump’s published platform focuses on strengthening the US economy, and its only mention of intellectual property is focused on China and job creation:

According to the US International Trade Commission, improved protection of America’s intellectual property in China would produce more than 2 million more jobs right here in the United States. [The Commission On The Theft Of American Intellectual Property, May 2013]

Trump has been fixated on China as a crucial threat to American jobs, and intends to prevent the transfer of technologies that some Chinese companies have required of the US companies in order to do business.

The brief language of this bullet of his platform suggests that the protection of intellectual property is secondary at least to job creation, and possibly tertiary to taking a more wary approach to doing business with China in general. But it’s worth noting that it also suggests that cyber security will be a concern for the Trump administration.

The transition from President Obama to President Trump is causing anxiety across the nation, but the current and future leaders seem at least to be in agreement about the importance of cyber security.

President Obama created the Cyber Security National Action Plan in February of this year, which makes a priority of improved protection for the data and information of both individuals and companies.

Protecting IP at home and internationally

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Trump has called for China to better protect American IP rights

Trump’s interest in this may not be so out of line with the current president’s aims. But, as Baker Hostetler noted in its post-election analysis: “Facing the issue within the international community will be a pressing task: both defending against attacks from other nations and lone hackers, and working with foreign leaders to establish international norms.” Given the nationalistic tones of much of Trump’s campaign, IP owners can only hope that he will work with – not just against – China and other countries to promote improved cyber security domestically and internationally.

Trump’s desire to protect US businesses and their assets “suggests that he will favour supporting US IP laws to protect US inventors/businesses from foreign manufacturers importing infringing goods,” commented Mark Raskin, a patent litigator with Mishcon de Reya. This attitude could lead to more activity in the ITC, said Raskin.

Trump and biopharma: down with TPP

Anti-TPP campaigners may be celebrating

Stock prices for biopharma companies got a boost the day after the election. According to Fiercebiotech, the Nasdaq Biotechnology Index and S&P Biotech were both up on Thursday, by 6% and 9%, respectively. Hillary Clinton has openly communicated her disapproval of big pharma and conviction to try to prevent these companies from driving prices up and out of the financial reach of many Americans. The jump in biopharma stock prices may say more about Clinton’s loss than it does about Trump’s win.

Though US biopharma investors seemed to breathe a sigh of relief to have dodged Clinton, there are at least three reasons that Trump may not be advantageous to biopharma companies in the long run, according to The Motley Fool’s George Budwell.

He cites Trump’s determination to do away with the TPP (which Clinton also wanted to re-work, in spite of her previous support of the agreement), his isolationist policies, and insistence upon immediately repealing ObamaCare as causes for worry for biopharma.

Then again, perspectives on how the TPP would affect the biopharma industry vary widely. Budwell suggests it would be advantageous to the industry, but others such as Fortune have written that the TPP “presents very real and damaging consequences for the intellectual property rights of biotechnology and pharmaceutical companies.”

Regardless of the agreement’s effects upon the futures of companies holding pharmaceutical patents – both innovator and generic companies – Trump has also spoken out against the dominance of drug companies, and even supported negotiations between Medicare and drug companies in order to save tax dollars spent on Medicare.

TBH…it’s all TBD when it comes to Trump

MIchelle Lee, USPTO
Who will succeed Michelle Lee at the USPTO?

The Republican Party’s official platform sends a strong message of support for intellectual property as a critical component to American innovation and economic stimulation. This is generally encouraging, as are the potential ramifications of some of Trump’s policies. IPWatchdog even opened its article written by Peter Harter and Gene Quinn on the president-elect with the pull-quote: “Trump not having a clear, well-defined position on a patent reform agenda just means he is paying attention,” referring to the slowed momentum and fractured approaches to such reform.

Jack Hicks, an IP partner with Womble & Carlyle in North Carolina wrote that a Clinton presidency would have likely been a continuation of IP’s current trajectory, for better or worse. “Under the Trump Presidency,” however, “IP practitioners and their US clients may revel in rhetoric and possibly entrenchment in positions favouring national interests. But significant changes could well come from the Trump cabinet who will possess views yet to be determined,” Hicks writes.

As Dennis Crouch points out on the Patently-O blog, one important task for the Trump administration will be to appoint a new USPTO director. "[A question] for the patent system is whether president Trump will see patent trolls, pharmaceutical pricing, and the Eastern  District  of Texas as exploitations needing to be fixed. It is unclear at this point who will manage the transition team but hope for a smooth transition from Outgoing Director Michelle Lee to the next USPTO leader," said Crouch.

So it seems only one thing is clear: little thought has been actively spent on clarifying the Trump administration’s IP agenda. At this point, guessing at whether Trump’s presidency means a fresh governmental approach to IP or just a lack of approach is worth little more than the pre-election poll projections.

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