Patently Trump: Can He Do a Better Job Enforcing American Innovations?

Donald Trump

Donald Trump. Photo taken by Gage Skidmore. Licensed under CC BY-SA 3.0.

Donald Trump welcomed the Intellectual Property Owners Association, the largest association of corporations that own patents, to New York City in 2007 when they held their annual meeting at the Waldorf-Astoria Hotel.

Twenty years earlier Trump launched himself as a self-made celebrity thanks to the success of his book Trump: The Art of the Deal. As media and technology have evolved over the past thirty years so too has Trump kept up. In fact, Trump’s intangible asset value expansion today is a lot like the Kardashians. For candidate Trump, according to his beloved New York Times, this means 6+ million fervent supporters loyally help his brand, purchasing his campaign themed hats and ties, responding to anti-Trump comments in the media.

Trump, like President Obama and the Clintons, has made a fortune branding and licensing himself. Trump brags about his superior negotiating and deal making skills. So how would a President Trump use such intellectual property talent to Make America Great Again?


Trump on Trade — The TPP

Trump’s campaign views on foreign policy and trade are likely to indicate how he may drive patent reform or at least compete with other candidates. Trump’s campaign opened last July with an assault on immigration reform and expanded with an agenda to push back on other countries that take advantage of America on trade, currency or national security.

Recently Senator Marco Rubio attacked Trump’s views on China arguing that a President Trump would not help America: “We have the Chinese government building up their military, stealing our inventions & making Donald Trump’s ties & hats.”


The Trans Pacific Partnership Treaty (“TPP”) pending before Congress makes many changes to the US patent system and some in Congress such as Senators Orrin Hatch (R-UT) and Rob Portman (R-OH) have already expressed opposition (here and here, respectively) to TPP because of how it weakens American intellectual property rights.

Trump should challenge Senators Rubio and Ted Cruz to debate the TPP with their Senate colleagues now. Portman is up for re-election and hosts the GOP convention just after the 4th of July in Cleveland, Ohio. Such a move would allow Rubio to strut his foreign policy stuff and rebut Trump’s attacks about his lack of attendance in Congress; Cruz can substantively speak up given his experiences with patent issues. Such a debate would benefit Americans who should not be forced to wait for the lame duck Congress, after the November election, when many politicians newly unaccountable to voters could do strange things.


The Sessions Influence

The recent endorsement of Trump by Senator Jeff Sessions (R-AL) is poignant. Sessions talked up the need to fight “ObamaTrade” – TPP – and promised President Trump would fight it. Sessions fought the America Invents Act (AIA) on the Senate floor in September 2011. Sessions nearly won on his amendment to strike a provision added in the House of Representatives to “fix” a date on a late filed patent application for one company. Sessions did not like this bail out.

Sessions serves on the Senate Judiciary Committee and has been Ranking Member. Policies of a campaign are very often driven by the people surrounding the politician. It was around this time in 2008 that we saw the Barack Obama and Mitt Romney campaigns officially support the same policy promoting the creation of post-grant review systems for the USPTO. Sessions will be well positioned to help a President Trump shape his patent agenda.


Software has Made America Great

More practitioners in the patent system are asking whether Europe is a better place to obtain and enforce patents. Bob Stoll, former Commissioner of Patents for President Obama’s USPTO, testified last week in the Senate Small Business & Entrepreneurship Committee and said in response to a question from Chairman David Vitter (R-LA) that America is now (thanks to Alice and PTAB) one of the most restrictive countries in the world for patent eligibility. See here and here.

Software has made America great. Software powered our economy and work force out of the nadir of automobiles, textiles, energy, steel and other industries that went offshore or simply changed due to technology or regulation. If the USPTO is invalidating patents thanks to the Supreme Court decision in Alice and the lobbying of incumbent technology, financial service and retail giants then it is easy to see Trump, already loudly questioning the role of lobbyists and billionaires, agreeing with Senator Maria Cantwell (D-WA) who said at this hearing that the tech giants dominate patents too much.

When Trump was a business man he got along with everyone. He has told us all about that as a candidate. But where will a President Trump come down on divisive issues like patent eligibility? Would he instruct the USPTO to be more lenient in its review of applications? Would he instruct the Solicitor General to take pro-patent positions in cases before the Supreme Court? So far little substance has been interjected into the race for the White House, which means voters are taking large leaps of faith on many issues when they vote for Trump.



Trump, like it or not, has proven capable of monetizing his own name and personality while spanning the varied businesses of real property, entertainment, sports, and consumer products. Now it is time for Trump to call for a vigorous debate on the TPP to demonstrate his expertise on matters of strategic national and international economic importance. Trump should encourage his colleagues to explain to voters the importance of patents and other intellectual property issues, why they drive so much of how Americans compete on the global stage, and how Americans depend on their government to enforce the law against copyists, pirates and infringers, at home and abroad.


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Join the Discussion

9 comments so far.

  • [Avatar for Night Writer]
    Night Writer
    March 4, 2016 11:00 am

    >but they are not aware of the degree to which the patent system has been >weakened and how it has harmed small innovators.

    I see it in my practice. I work with big corporations and small inventors. I get inventors now asking me how to hide their invention and bring it to market and how to lock-up employees so they can’t share the invention.

    Real bad.

  • [Avatar for jodi]
    March 4, 2016 10:42 am

    A Rational Person,

    The FiveThirtyEight authors clearly detect there’s a problem:

    “It isn’t clear why these companies aren’t growing the way they used to.”

    and recognize that early filing of patents are an indicator of ambitious companies – yet fail to connect the dots that weakening of the patent system may have played a role.

    What may seem so obvious to readers of this site is not obvious to the general public. The general public recognizes that patents are crucial – but they are not aware of the degree to which the patent system has been weakened and how it has harmed small innovators.

  • [Avatar for staff]
    March 3, 2016 04:31 pm


    REASON: This comment was deleted because it is anonymous, but yet calls into question the integrity of another by name. That level of hit and run anonymous commentary is not allowed. More is expected to participate in the dialogue on

  • [Avatar for staff]
    March 3, 2016 04:13 pm

    ‘Sessions fought the America Invents Act (AIA) on the Senate floor in September 2011’

    That is not true. He merely objected to a single provision in it which had no bearing on inventors. He had no further comment on the bill in opposition and in fact voted for it. He has cosponsored similar bills (Patent Reform Act) adverse to inventors with Sen Leahy. We encourage inventors to proceed cautiously in concluding who and what they can trust. This article and perhaps this author, at least in part, cannot be.

    For our position and the changes we advocate, or to join our effort, please visit us at
    or, contact us at [email protected]

  • [Avatar for Simon Elliott]
    Simon Elliott
    March 3, 2016 03:13 pm

    Trump has given very little indication of his policies, and he has about 5 policies on his website. If you look at history, his statements and actions are all over the place, and you could find almost any statement to fit a desired narrative. Its almost impossible to pin him down on the big issues, so I can’t see how you can predict anything on patents.

  • [Avatar for A Rational Person]
    A Rational Person
    March 3, 2016 11:30 am

    Another example of the AIA and IPRs gumming up the US patent system:

    Federal Circuit Now Receiving More Appeals Arising from the PTO than the District Courts

    “Appeals arising from district court patent infringement cases have historically made up about a third of the court’s docket. In 2011, for example, appeals from the district courts constituted 33% of appeals filed, while appeals from the PTO were about 9%.

    That distribution no longer holds. During Fiscal Year 2015 (which ended on September 30, 2015), appeals from the PTO exploded, to about a quarter of all appeals filed. Appeals from the district courts also rose, but at a slower pace.

    That trend has continued, with appeals from the PTO now overtaking appeals from the district courts. The below chart shows the annual number of appeals filed from 1997 to the end of January 2016. As of January 29, the court had docketed more appeals arising from the PTO than the district courts. If this filing rate holds true for the rest of the year, we can expect almost as many appeals from the PTO to be filed as there were appeals from the district court last year.”

  • [Avatar for A Rational Person]
    A Rational Person
    March 3, 2016 11:22 am

    Also from the FiveThirtyEight article:

    “But there is also evidence that the economy has become more hostile to new companies. Startups are failing at a higher rate than in the past, while older, larger businesses are increasingly dominating nearly every sector of the economy. Economists on both sides of the political spectrum have found evidence of increased “rent-seeking,” efforts by companies to use government regulation or other policies to protect themselves from competition.

    ‘There’s a whole range of developments on the regulatory side that have made life harder and more challenging for newer and young businesses,’ said Steven Davis, a University of Chicago economist who has studied the decline in entrepreneurship.”

    See KSR, Alice, Mayo, Myriad and the AIA.

  • [Avatar for A Rational Person]
    A Rational Person
    March 3, 2016 11:15 am

    Article today from FiveThirtyEight:

    “The Next Amazon (Or Apple, Or GE) Is Probably Failing Right Now”

    “Stern and Guzman don’t claim they can predict which company will become the next Amazon, but they argue that it is possible to identify companies that are trying. They find that ambitious startups share certain qualities. . . . [and one of those qualities is:] They often apply for patents early in their corporate lives.”

  • [Avatar for Night Writer]
    Night Writer
    March 3, 2016 09:38 am

    I think the way to analyze this is there are two groups: the bought off and the not bought off. The only two people that might get the patent system are Sanders and Trump. The rest are bought off and will do whatever Google tells them to do. Oddly, I think Sanders might get it too. Clinton is a disaster. This is just like Billy boy being bought off to deregulate the financial industry with the same type of pseudo-intellectuals like Lemley pushing for the removal of the patent system.

    Think about the analogy. The financial sector before Clinton–best in the world fairly stable but with some serious problems that needed tighter regulation. The pseudo-intellectuals spouted off about regulation and then Clinton ended the regulation which resulted in 2008 (which will affect this country for the next 50 years.)

    Now, we have a software industry that grew-up under patents that is 10 times the size and innovative engine as any other country has—and yet–somehow inexplicably it is horrible and needs removal.

    Lemley will do down as the worst influence of the patent system in the history of the US. I also think that Lemley’s “papers” (note that law review articles are not reviewed and Lemley puts whatever nonsense he wants in there like that software has no structure) do not even come close to being ethical. His cites in the functional paper do not match what they say they do.

    Anyway, if Clinton is elected expect Lemley to shine and move into the White House with Google.