Now that state canvassing boards are beginning to certify election results, and even the General Services Administration has formally “ascertained” that former Vice President Joe Biden won the presidential election, it’s worth reflecting on the Donald Trump administration’s (mostly successful) record on intellectual property (IP) issues.
reform — limited progress
Unlike his predecessor, President Donald Trump cannot take
credit for enacting landmark patent legislation. But while various industry
groups, academics, and practitioners began jockeying to advance further patent
reform legislation almost immediately after President Barack Obama signed the
America Invents Act (AIA) into law in 2011, neither the Obama nor Trump
administrations succeeded in realizing that vision.
At various points in Obama’s tenure, patent reform bills
such as the Innovation Act, which would have significantly changed the
standards of patent infringement liability and damages, appeared poised for
passage, only to be thwarted at the eleventh hour. Under Trump, other
bipartisan, bicameral measures advanced but eventually fizzled. Most
prominently, the STRONGER Patents Act, which would have tightened the standards
of review used by the US Patent and Trademark Office (USPTO) courts created by
that AIA, and the Section 101 patent eligibility legislation, which would have overridden
the Supreme Court’s 2014 Alice v. CLS Bank decision, moved forward in the House
and Senate, but both ultimately came up short.
While the executive branch isn’t, of course, responsible for
the success or failure of congressional legislation, the Trump administration
prodded and advanced these measures; even though they haven’t yet come to
fruition, observers hold out hope they’ll be enacted in the next Congress.
Progress at the USPTO
Where legislative proposals faltered, the USPTO picked up the slack. Director Andrei Iancu, a Trump appointee and an AEI keynote speaker a few years ago, charged ahead in several key areas. First, under Iancu’s guidance, the USPTO developed new guidelines for patent eligibility examination that have helped practitioners better navigate the post-Alice world. Second, the office solicited and collated comments on the cutting-edge issue of machine inventions. Third, the USPTO harmonized the standards used to interpret patent claims so that AIA courts would use the same methods of claim construction as federal district courts.
Aggressive IP stance
Finally, the Trump administration moved more aggressively
than its predecessors in confronting China over IP. While China itself
has made great strides in creating and protecting IP, the
administration singled it out for enabling the misappropriation of trade
secrets and theft of American firms’ intellectual property — including via
cyber espionage, as my AEI colleague Claude Barfield has pointed out.
In addition, last March the United States helped scuttle a bid by Wang Binying, a Chinese IP specialist, to head the World Intellectual Property Organization on the ground that her early access to secret US inventions could benefit the Chinese government. Sen. Lindsey Graham (R-SC) also introduced the Health, Economic Assistance, Liability Protection, and Schools (HEALS) Act last summer which, among other things, extended tax-free treatment to the IP associated with personal protective equipment (PPE) in an effort to induce US companies to onshore their production of PPE. The HEALS Act, however, remains stalled in Congress.
Overall, the Trump administration has mostly succeeded in
advancing American intellectual property, with a bit of time remaining to
cement its legacy.