Earlier this year, the Shearman patent litigation team published an article predicting patent policy under the Trump Administration. To briefly recap that article: President Trump has given few indications about where he stands on various patent reform issues. However, a number of data points suggest that, if anything, he may take a more pro-patent stance than his predecessor. For instance, Ken Blackwell, one of Trump’s transition team advisers has openly and consistently argued against further patent reform (including the Innovation Act) and in favor of stronger patent rights. Similarly, a number of conservative think tanks, including the Heritage Foundation, have cautioned against sweeping patent reform that would further weaken the patent system, and have informed Republican members of Congress that they would be graded on their votes for patent-related bills.
Since publication of our article, President Trump has still not stated a position on patent reform issues. Adding to the uncertainty, Rep. Darrell Issa (R-Calif) has indicated that Michelle Lee will stay on as USPTO Director, and she has made public appearances in what appears to be a professional capacity, notwithstanding her prior resignation letter. And, still other reports have linked former Federal Circuit Chief Judge Randall Rader and Johnson & Johnson’s Phil Johnson to the position. The USPTO has declined to comment, and most recently extended its deadline to March 10 to respond to a Freedom of Information Act request seeking confirmation of the name of the USPTO director. Likewise, the Trump Administration has yet to confirm or deny any of the reports, perhaps because of the delay in confirmation of President Trump’s nominee for Commerce Secretary, Wilbur Ross (who was finally confirmed on February 27).
Despite the silence from the Trump Administration, several key Congressional Republicans have indicated that they will continue to push an anti-patent reform agenda, albeit somewhat more tepidly than in prior years.
Specifically, Rep. Bob Goodlatte (R-VA), the Chairman of the House Judiciary Committee, and sponsor of the 2015 Innovation Act, unveiled his agenda for the 115th Congress, which included a pledge to “discourage patent litigation and keep U.S. patent laws up to date.”
Senator Orrin Hatch (R-UT), the Chairman of the Senate Republican High-Tech Task Force, also recently rolled out his “Innovation Agenda” for the 115th Congress. The agenda included a similar bullet point:
Patent Reform. Pass Legislation to reduce the prevalence of abusive patent suits and preserve incentives for innovation.
In a speech announcing the plan, Senator Hatch explained that the one patent-related area where he believed progress could be made this year was on venue reform:
As you know, [patent litigation] is a tremendously thorny issue. But I believe there’s one area where we can see real progress this year: venue. Abusive litigants have exploited a hole in the law to direct a disproportionate number of suits to plaintiff-friendly forums, and to one such forum in particular. The Supreme Court is currently examining the issue, so we won’t have a full view of the landscape until after the Court rules. But no matter what the Court does, we’re likely going to need follow-on legislation to prevent future forum-shopping and to ensure that litigants have a meaningful connection to the site of the suit.
Given some of the data points suggesting a pro-patent stance from President Trump and the more reserved comments from key Congressional leaders on further patent reform, we do not expect significant legislative changes in the short term. As Senator Hatch noted, the one area where many may agree is on venue, subject to the Supreme Court’s decision in TC Heartland.
In the longer term, we may see Congress take a fresh look at Section 101, which has become confused and inconsistently applied post-Alice. Numerous trade associations and key thought leaders have recently called for changes to Section 101 to reduce uncertainty and to expand the scope of patentable subject matter beyond the current judicial standards. For example, the Intellectual Property Owner’s Association adopted a resolution to legislatively amend Section 101 in a way that would clearly eliminate any conflation of Section 101 with Sections 102, 103, or 112. The AIPLA submitted comments to the USPTO stating that Section 101 “typically is not the proper standard for deciding whether a particular technical advance should receive patent protection” and that “[a] legislative solution is needed.” David Kappos, former USPTO Director, has called for abolition of Section 101 altogether.
Time will tell whether and to what extent the Trump Administration is interested in patent reform, and if so, whether such reform will take on a more pro-patent shape than most of the legislative proposals from the 114th Congress.