Obama Holdovers Driving Trump Patent Policy
In his first speech to Congress, President Donald J. Trump finished strong, talking about how inventors can make the American economy great again. You might expect that from a branding pioneer. His billions are built on intellectual property; the Trump Organization owns hundreds of trademarks around the world.
In fact, it’s a family legacy: his uncle John G. Trump‘s patented radar and cancer tumor laser inventions won recognition from Presidents Truman and Reagan. His son, Donald J. Trump Jr., has been a patent licensing investor and executive. Ivanka Trump has her own trademarks worldwide.
Even the Republican platform specifically states patents are private property – rights inventors rely upon to create jobs and bring new ideas to market. So, you might think a Trump White House would be as pro-patent as Trump Tower. But it’s not.
Quietly, at the end of April, the new administration sent a signal the President may continue Barack Obama’s attack on the patent system.
For 220 years, a patent has been upheld as a private property right according to the U.S. Constitution, the law and legal precedent. It’s these private property rights that attract investment in early stage startup companies, especially in highly competitive fields like technology, infrastructure, military, and more.
In fact, innovation has always produced high paying jobs in America and patents fuel the drive from innovation to commercialization to job creation. Innovation is what made America great in the first place.
But in 2011, the America Invents Act (AIA) changed everything. The law created United States Patent and Trademark Office (USPTO) administrative tribunals which assert patents, considered private property for two centuries, are no longer a property right at all. Without this asset, inventors cannot attract investment to take their idea to market.
Under today’s patent system, the President’s uncle would probably be penniless. In fact, the infringement lobby – Silicon Valley CEOs who spent millions to defeat the President – would call John G. Trump a patent troll: a patent owner who profits by licensing, rather than by actually producing goods or services. They’ve sold this loathsome imagery to Washington to justify stealing from inventors.
As a result, Inventors are being denied their Constitutional rights to jury trials. President Obama’s tribunals, the Patent Trial and Appeal Boards (PTABs), have devastated the patent system in just six years. More than 95 percent of patents subjected to a PTAB review are partially invalidated. This normally destroys the entire patent, after the inventor has worked for years and earned it.
Today, many inventors are mired in PTAB reviews initiated by infringers and cannot raise capital. Mega-companies, especially in the tech sector, are ripping off inventors left and right. Many, underfunded and exhausted from fighting Big Tech, have hoped for relief under President Trump.
In late April, we got our answer. The Supreme Court is considering whether to hear Oil States, a vital case which asks if a property right can be destroyed by Obama’s PTABs without due process or a jury. Breaking with the Constitution, black letter law and centuries of legal precedent, the USPTO told the Supreme Court that patents are not private property, so don’t bother considering the question. The Solicitor General’s filings were more of the same.
This was a shocker for inventors across the nation. Indeed, most of the government lawyers who signed off on the Supreme Court briefs were appointed by the previous administration. But Trump appointees were in the mix, too, and his skeptics in the innovation arena say these briefs are not the only bad signs. They point to the pending White House appointment of Vishal Amin, a senior Republican staffer widely regarded as an architect of the AIA and it’s tribunals, as the President’s intellectual property czar.
And it’s not just Amin. Obama holdovers like Mark Freeman and William Havemann at the Department of Justice and Michelle Lee and Joe Matal at USPTO, like former acting Attorney General Sally Yates, continue to push Obama’s agenda.
A resolute CEO like the President can fix this. Restoring integrity to the patent system requires a Director who will stay all PTAB trials and agency decisions until Congress or the Supreme Court have fixed this. The USPTO must stop filing briefs, making arguments, advising other agencies, or making public statements that a patent is not a property right. Instead, the Office must defend the patents as private property, as the Founders intended, at every opportunity.
Paul Morinville is an inventor and the founder of US Inventor, an association of thousands of inventors nationwide.