Whether you’re voting Republican or Democrat, it’s hard to deny that President Barack Obama’s administration has done a lot for IP policy. In some cases ‑ such as with the creation of the office of the IP enforcement coordinator in the White House and the passage of patent reform – he arguably was merely implementing legislation that had been passed or in the works before him.
But in others – such as with the appointment of David Kappos to the USPTO, his campaign to crack down on fake websites and the creation of the interagency Trade Enforcement Center – many IP stakeholders would applaud his achievements.
While it is difficult to speculate on Romney’s IP plans this early on, many of his broader policies could have some effect on IP-related issues. Here are some key potential ways a Romney administration might change IP.
1. FUNDING CHANGES
Most obvious is Romney’s promise to cut spending across all government agencies except the military, as part of his plan to tackle the deficit. While the USPTO is self-funded through user fees, any fees in excess of its appropriated budget are stored in a revolving account that the Office must ask permission to access.
Promises were made during patent reform hearings about keeping those funds for the Office, but ultimately the legislation makes no guarantees.
“I’m afraid about [a Republican administration] diverting funds from the USPTO,” said former USPTO commissioner for patents Robert Stoll, who is now with Drinker Biddle & Reath.
Stoll pointed out that it was Republican Congressman Hal Rogers of Kentucky who blocked language in the America Invents Act that would have guaranteed control of USPTO funds to the director.
“I’d be very concerned about that,” added Stoll. “We are not a military organisation, so there would be huge [budget] cuts.”
Moreover, with cuts across the federal government, the temptation to divert USPTO fees to agencies Congress deems more crucial might be much greater.
But another former commissioner for patents, John Doll, who served under Bush administration director Jon Dudas, pointed out that much of Romney’s campaign has focused on job creation, which could put the USPTO in a good position.
“The USPTO has done a lot of research to show it does create jobs,” said Doll. “There is a clear line between the Office and job creation.”
2. A NEW USPTO DIRECTORStoll, who served under Kappos, said the biggest difference in a Romney administration by far would be the probable loss of Kappos as director. “He’s a phenomenal leader, so that would be a huge change and a problem,” he said, adding: “And I’m saying this now that I’m no longer working with him anymore and don’t need to.”
While Kappos could technically stay on under Romney, the chances are slim. A Democrat operating in a Republican administration would not have the same engagement or pull on policy issues, said Stoll.
Andrew Baluch of Foley & Lardner’s Shanghai office, who served as former director of international IP enforcement in the White House office of the IP enforcement coordinator, agreed.
“I think that everyone hopes that Kappos stays on for a second term, having brought down the pendency for patent applications and at the board of appeals, and by all accounts doing a great job,” said Baluch. “You cannot dispute competence. The facts and the results at the USPTO speak for themselves.”
3. RELATIONSHIPS WITH UNIONS
Romney takes a decidedly less positive view of labour unions than Obama, which could strain relationships with the USPTO’s three unions – the Patent Office Professional Association (POPA), the National Treasury Employees Union 245 (NTEU 245) and the National Treasury Employees Union 243 (NTEU 243).
According to the Romney-Ryan website, Romney believes that “too often, unions drive up costs and introduce rigidities that harm competitiveness and frustrate innovation”.
“There’s not a feeling that Romney is supportive of federal government,” said Stoll. “I think a Romney administration might be unfavourable to federal employees and might attempt to cap their pay, for instance.”
Stoll said if examiners and staff aren’t happy, this could lead to an increase in backlogs. “Partnership between employees and management really moves the ball forward with prosecution,” said the former USPTO commissioner.
Robert Budens, president of POPA, said that it’s too early to tell what Romney would mean for the Office. However, the Republican candidate’s statements about unions give Budens “a little more pause”, despite the fact that POPA is established by statute. “To some extent, he has to figure out a way to deal with us,” said Budens.
The POPA leader added that the union will be ready and willing to work with whoever is heading the USPTO, but said that “whichever party is elected, it would behoove them to consider keeping Kappos on”. From POPA’s perspective, Kappos has “done a great deal of good”, said Budens.
“He has done a remarkable job changing the environment at the USPTO. He set some lofty goals for the agency, but we’re meeting them. Attrition is down to record lows and people are happy now, and it’s directly due to the policies Kappos [and his leadership team] have put in place.”
Doll acknowledged that Republican administrations are historically less favourable to unions. “It’s a simple fact,” said Doll, who called Budens “a great POPA president”. But he added that issues between the union and administration “always get sorted out” eventually. “I don’t think a Republican in that position would undermine the work that’s been done with the unions,” said Doll.
4. FOREIGN POLICY
Finally, some feel that Romney’s various statements about China during the presidential debates and elsewhere may strain relationships with the Chinese government if he is elected. “Big waves have been made about how Romney would label China as a currency manipulator,” said Baluch. "It is not a good way to start trade negotiations in a Romney administration by insulting China right off the bat."
Translated into IP terms, this could undermine efforts to cooperate with the Chinese government on issues such as cracking down on fakes. “The position Romney has taken is going to cause a problem working with China on IP,” said Stoll. “They’ve started moving in the right direction. Under Romney I believe the entire government of China will start pulling back based on the acrimony.”
Baluch agreed, and said that Obama’s administration has been the best so far with respect to making IP a priority. “They are spending the time raising the issue of IP with their counterparts,” he said. “For example, Obama raised it with Hu Jintao, and Biden with his counterpart Xi Jinping, and there has been a lot of progress.”
However, Doll said that Romney’s statements are “simply true”, and not likely to affect efforts to cooperate with China. “He’s talking tough; both candidates have been. China has come a long way in the past 10 years, but there’s still a lot of doubt as far as whether patents can be enforced there.”
This article was updated on 11-2 to include John Doll’s comments.
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