IP Market Updates
November 15, 2016
Well, this sure was a week that caught everyone’s attention. The surprise election of Donald Trump has left many scrambling to predict which direction a new administration will move to in so many areas. This is largely due to the dearth of policy statements (as opposed to his numerous tweets) that Trump made during the presidential campaign. Now that the results are out and the world is trying to make sense of what just happened, one question many are asking me is how this might impact the treatment of intellectual property rights in the US.
For one, remember that Trump is essentially a brand. Indeed, Trump has largely made its fortune over the past decades by licensing his namesake to buildings and merchandises around the world (he does not own most of the buildings bearing his name). So he can definitely appreciate the value of brand protections and monetization, at least when it comes to his own wallet. How this may extend to other types of IP rights is a bit less clear.
One area that should continue to gain in influence is the protection of trade secrets. Trump has made no bone that he thought China was not playing fair (he is famously quoted for saying that “China is raping us”, whatever that means) and the GOP platform refers to IP theft as a matter of national security. Therefore, one would think that protecting American industrial trade secrets from theft and cyber espionage would be on his agenda, except maybe when it comes to Russia. :) So the recently enacted “Defend Trade Secrets Act” (voted by Congress under the Obama administration) should normally receive full support from a Trump administration.
As to copyrights protection, there is no sign pointing to any change in policy, if you exclude of course veiled threats Trump made during the campaign to curtail the press and free speech in general. But that is a separate issue.
Which brings us to patents, by far the intellectual property right most connected to the US economy. Many have already started speculating as to whether a Trump administration would be more favorable to patent owners than the current Obama administration. So let’s look first at the forces at work that have created the current down market.
- A White House beholden to the Silicon Valley tech lobby: It is no secret that the tech lobby (aka the “efficient infringers”) has been extremely influential with the Obama administration and quite effective at pushing it patent reform agenda at the legislative, regulatory and judicial levels. Trump has received no support at all from Silicon Valley (except for the lone Peter Thiel) and owes them nothing. So, he is much less likely to buy the arguments that they have been pushing that patent rights should be weakened.
- A desire to curb so-called “abusive litigation”: For Donald Trump, litigating commercial disputes in court has been a way of life, not something you should avoid at any possible costs. Therefore, he should be less receptive to the argument that more must be done to avoid patent lawsuits, even if it means emasculating patents by the same token.
- Patent Trolls are essentially bad: Another effective argument from large tech companies these past years has been that Non-Practicing Entities (NPEs) who buy patents from inventors in order to monetize them are essentially bad actors and should not be allowed to get a return on their investment. This has caused patents to decrease significantly in value once traded by the initial inventor, which makes them hardly sellable as a result. The GOP platform in this regard makes it very clear that a patent is a property right, and the logical conclusion is that a patent owner should not be treated differently whether it happens to be the inventor or not.
- A USPTO and PTAB that is biased against patent validity: It has become extremely clear over the last two years that the PTAB (labeled the “patent death squad” by former Federal Court of Appeal Justice Rader) has a clear bias towards invalidating already issued patents and has been doing so at a rate of 70%+ . The US Supreme Court recently refused to jump into this debate and left intact the infamous double standard between the PTAB and the courts for interpreting patent claims. A new administration, which is likely to replace the USPTO director Michelle Lee, could decide to revisit this issue and harmonize the law. That could have a significant effect.
In short, while we are left guessing due to Trump’s general silence on most substantial policy matters in the past months, a change in the dynamics listed above should normally benefit patent owners. It is not clear how any administration can influence the courts in the short term, but a shift in the narrative that has permeated so many layers of Congress and the USPTO could only be beneficial to inventors who expect the patent system to have their back.
Only time will tell if Trump will make patents great again!
Below is news of interest on these and other related topics.
Patents used to be a property right, now a patent is a liability
IN THE NEWS
In doing so I am a named inventor on 14 issued patents and have filed dozens of provisional patent applications. Many of these patents became ... (more)
TiVo settlement with Samsung is latest successful litigation outcome involving DVR patents
On Thursday, November 3rd, media outlets were reporting that digital video recording (DVR) development company TiVo had settled patent ... (more)
France Brevets Licenses NFC Patents to HTC
The NFC Patent Licensing Program, fully managed by France Brevets and their affiliate' NFC Technology LLC, offers NFC patents from both Inside ... (more)
Rare ITC Hearing Will Shape Clean Energy Industry
The National Law Journal
During the first hearing, attorneys for two European materials companies will hash out the finer points of contributory patent infringement and whether ... (more)
Judge Gilstrap Awards Enhanced Damages in LG/Core Wireless Dispute
This case began in 2014, when Core Wireless sued LG, alleging infringement of two patents directed toward improving battery life and voice quality in ... (more)
$300M Settlement Ends Medical Patent Fight Between Masimo, Philips Electronics
Southern California medical device maker Masimo Corp. has settled a patent dispute in the wake of a $467 million jury verdict in Delaware. (more)
Pence, Conservative Views on Patents Likely to Influence Trump
Many in the patent community continue to express an almost moral indignation that President-Elect Trump has taken no public position on the issue of ... (more)
Wi-LAN buys fitness tracker patents from Panasonic
World Intellectual Property Review
Wi-LAN announced on November 7 that its subsidiary Micro-Optimus Technologies had acquired the patents, which cover micro-electromechanical ... (more)
Software Patents – Not a Waste of Money After All?
Since the Supreme Court ruling in Alice Corp. v. CLS Bank International, that a specific software algorithm was ineligible for patent protection, rumors ... (more)
One of China's most litigious tech companies asserts new design patent in IP Court dispute
This time, the dispute is over a graphic user interface (GUI) design patent, one of the newest additions to the stable of IP protections offered by SIPO. (more)
Lux Research asks: Just how valuable is that patent?
Lux Research studied patent trends for five kinds of sensors. These included physical, gas and chemical, environmental, vital signs and biometric ... (more)
First chance to look at the Trump presidency's approach to patents next week in Washington DC
To get an angle on the new administration's IP priorities was one of the main reasons why we decided to hold our second Patent Law & Policy ... (more)
Barrier to Business Patents Softening in China
The National Law Review
On October 27, 2016, the State Intellectual Property Office (SIPO) published a Draft of Revisions to the Patent Examination Guidelines that would ... (more)
Your Secret Sauce is at Risk from Attack
And, most often the information that is identified for protection relates to inventions for which the company may seek patent protection. Trade secrets ... (more)
Patents for Computer and Life Science Technologies Making a Comeback?
New York Law Journal
In recent years, the U.S. Supreme Court has significantly shifted its attention in patent cases to the law regarding patent-eligible subject matter under ... (more)
China's Patent-Lawsuit Profile Grows
Wall Street Journal
HONG KONG—When a Canadian patent-licensing firm wanted to sue Japanese electronics company Sony Corp., it chose an unlikely venue: China. (more)