Trump’s patent policy should put America first, not the patent lobby

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The following op-ed was co-authored by Charles Duan, director of the Patent Reform Project at Public Knowledge.


President Donald Trump campaigned on a platform to put America first and protect American industries from foreign competitors. As he makes the transition from celebrity real estate mogul to president of the United States, rumors continue to swirl about whom he will appoint to head the country’s various federal agencies. One question is whether Michelle Lee will stay on as director of the U.S. Patent and Trademark Office, a subject about which everyone from Rep. Darrell Issa, R-Calif., to Wilbur Ross—Trump’s pick to head the U.S. Commerce Department, in which the USPTO sits—can be expected to have an opinion.

A recent article in Fortune cites evidence that Trump may align with those “who favor stronger patent protections,” though it draws largely from a report put out by Shearman & Sterling, a firm that specializes in patent lawsuits. Indeed, the report itself draws liberally from a handful of blog posts by a patent litigator whose sympathies on the question are well-known. None of these parties cited have clear ties to the administration.

The Shearman report notes that some of Trump’s family members, including son Donald Trump Jr., hold patents. It doesn’t mention that the lines of business in which Trump himself has most extensively dealt—such as casinos and real estate—recently have been staunch supporters of patent reform. And while the report notes several transition team advisors have taken stances hostile to patent reform, it omits Peter Thiel, who has called patent trolls a “parasitic tax” on innovation. In short, the evidence is mixed, and what little we have is mostly based in gossip.

An area where we have a firmer grasp of the new president’s thoughts is in the realm of trade. The patent lobby generally assumes that stronger patents are good news for domestic companies and inventors. In fact, more than half of U.S. patents are owned by individuals and firms outside the United States. In effect, strengthening patent protections can serve to exclude American companies from doing business without permission. Of course, U.S. patents themselves often do not apply outside the United States.  Creating even broader patent protections could very well handicap American business in favor of foreign enterprises.

Consider the cases that come before the International Trade Commission, a body designed to protect American patent owners from foreign competitors. But one study found that U.S. companies are just as likely to be named in ITC actions as defendants as are foreigners. For example, Nokia and Samsung both have launched ITC suits against Apple—the opposite of what one expects a protectionist agency to do.

Protecting American intellectual property from foreign theft is important, but the solution must match the problem. Stronger enforcement of trade secrets is important, as is improving foreign patent systems and foreign patent offices.

But when it comes to helping American workers and domestic industries, we need a balanced patent system. We need one that protects real inventions without burdening industry with silliness like patents on PB&J sandwiches or one-touch scanners. We need one in which real innovators don’t have to face unending patent litigation in remote courthouses. And we need one that recognizes free-market competition is the best way to spur growth, and that government-granted monopolies should be the exception to the rule.

When it comes to the USPTO director, the patent lobbyists undoubtedly will run through all the pages in the Washington playbook. But there’s a good case to keep Lee on the job, as the administration has signaled it might. She has been praised on both sides of the aisle, including by well-respected patent jurists, for her open approach to leading the agency. The capstone of her tenure has been the Patent Quality Initiative, a multi-year effort to ensure that every issued patent is a good one that meets the legal standards and advances the boundaries of innovation.

Indeed, patent quality should align closely with this administration’s priority of removing government regulation on business. Patents, after all, behave much like regulations: They are rules issued by a federal agency that dictate to businesses what they may not do. Just like regulations, some patents can be in the public interest. But good governance means eliminating barriers to a competitive market that do more harm than good. That means eliminating bad patents.

Whatever direction patent policy takes in this administration, it should be guided by the principles that drove the voting public: Put the American people first, not special-interest lobbyists.

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