Earlier today Hillary Clinton, the presumptive Democratic Presidential Nominee, released her Initiative on Technology & Innovation on her campaign website.
“You are looking at a 14-page detailed document. There is a lot of thought put behind this agenda,” explained Todd Dickinson, former Director of the United States Patent and Trademark Office under President Bill Clinton who was reached by telephone for comment. Not surprisingly, Dickinson has has been an advisor to the campaign regarding intellectual property matters. “Other campaigns will be hard pressed to match the depth and thoughtfulness of these proposals.”
While the Clinton technology and innovation agenda may seem light on details to those intimately involved with the various aspects of the technology and innovation industries addressed, this agenda statement is relatively detailed given where we are in the campaign. Generally speaking, in the past at this stage of the game most Presidential contenders have had significantly less to say on technology and innovation issues. That being the case, Dickinson is accurate to point out the comprehensive nature of this agenda.
With respect to patents, Hillary Clinton begins by simply saying that she wants to improve the patent system to reward innovators. “Since our country’s Founding, the United States patent system has been an envy of the world and has helped propel inventions from the cotton gin to the computer.”
Clinton’s proposal for accomplishing this goal would be twofold: (1) to reduce excessive patent litigation through additional patent reform; and (2) strengthening the operational capacity of the USPTO by allowing the USPTO to keep and spend all the fees it collects.
Clinton on Patent Reform
With respect patent reform, the Clinton technology and innovation initiative explains:
The Obama Administration made critical updates to our patent system through the America Invents Act, which created the Patent Trial and Appeals Board, and through other efforts to rein in frivolous suits by patent trolls. But costly and abusive litigation remains, which is why Hillary supports additional targeted rule changes. She supports laws to curb forum shopping and ensure that patent litigants have a nexus to the venue in which they are suing; require that specific allegations be made in demand letters and pleadings; and increase transparency in ownership by making patent litigants disclose the real party in interest.
For those in the industry who are against additional patent reforms the immediate reaction will be negative. If you carefully parse what Clinton is saying it isn’t bad even for those opposed to broad based patent reforms currently pending before Congress and embodied in the Innovation Act in the House of Representatives and the PATENT Act in the Senate.
“The patent reform list is a consensus driven list that is modest, but appropriate, and reflects a desire to get things done that can get done,” Dickinson explained. “I think there would be broad consensus that could lead to enactment. Others will want to put all sorts of other things on, that could cause difficulties, of course. As they say, ‘politics is the art of the possible’, and I think this reflects a desire to get things done that can get done.”
Dickinson is again correct. Virtually no one disagrees with doing something to stop abusive and fraudulent demand letters. In fact, that could pass Congress immediately if those supporting patent reform wanted that legislation. Such legislation won’t pass, however, because it is deemed a fall back position that is hardly worth the effort. So the Innovation Act and PATENT Act remain frozen because those supporting patent reform seem to prefer all or nothing. They will get nothing with the 114th Congress unless they budge, but a proposal from a President Clinton to accept legislation targeting demand letters would pass with little or no serious opposition, of course assuming it doesn’t become a so-called “Christmas Tree” with hidden items not associated with specifically targeting fraudulent and abusive demand letters.
With respect to venue, there is again broad based consensus that something can and probably should be done. The issue to watch here is to see whether venue reforms are narrowly tailored and about procedural fairness or if they become perceived as just an opportunity for the so-called infringer lobby to make it difficult (or impossible) to bring patent infringement actions in some of the few district courts where patent owners actually fair well. For perspectives on venue reform see articles tagged venue reform.
On the issue of transparency in ownership, the USPTO has been working on this issue for some time. It is hard to argue with transparency of ownership so litigants really know who is the real party in interest. The mechanics of how such a system would work still needs to be fleshed out, but in principle this hardly seems controversial.
Clinton on PTO Operational Capacity
Hillary Clinton has also taken a very strong, pro patent position by announcing that she believes the USPTO should be able to keep and spend all of the fees they collect. Sadly, this is a revolutionary idea.
With respect to funding the USPTO, the Clinton technology and innovation initiative explains:
Hillary believes it is essential that the PTO have the tools and resources it needs to act expeditiously on patent applications and ensure that only valid patents are issued. That is why she supports legislation to allow the PTO to retain the fees it collects from patent applicants in a separate fund—ending the practice of fee diversion by Congress, and enabling the PTO to invest funds left over from its annual operations in new technologies, personnel, and training. Hillary also believes we should set a standard of faster review of patent applications and clear out the backlog of patent applications.
“The key take away is full funding for the PTO. I believe that this is the first time at the Presidential level there has been support for fully funding the PTO and legislation to that effect,” Dickinson explained. “That is the best thing in this announcement from an IP perspective.”
I agree wholeheartedly. Congress raiding the USPTO and preventing the agency from using the fees it collects has been an enormous problem since at least 1992, but rose to new heights with the balanced budget deal in the mid-1990s. Fee diversion was identified by the former Directors of the USPTO as the single biggest problem facing the USPTO during the 225th anniversary celebration of the U.S. patent system.
The devil is always in the details, but from a patent perspective the Clinton Initiative on Technology & Innovation seems surprisingly positive. Clinton seems interested in consensus issues and has steered clear of controversial issues, although some will undoubtedly want more information on her venue proposals and will be leery of such a proposal. Still, after many years without a serious, high-ranking, influential champion perhaps a Clinton Presidency would wind up being a net positive for the patent system.
Join the Discussion
20 comments so far.
V. BaileyOctober 9, 2016 04:15 am
Edjones – the patent laws of the United States have strong requirements for granting patents, including that they not be abstract (within Section 101) and that they not be vague (112). Examiners generally do a great job of enforcing those and many other rules, as they have for many, many years. That’s why the United States patent system has been the envy of the world for centuries. It’s troubling that misinformation to the contrary keeps getting repeated by an uneducated media. It’s even more troubling that wild changes have been made to the patent system recently, based on that misinformation. My advice to any blogger or other media outlet authoring an article on patent law: talk to a patent law expert. That means someone with a license, not a 25-year-old valleywag who reads a lot of TechCrunch.
Edward HellerSeptember 21, 2016 05:19 pm
edjones, since Bilski/Alice the era of business method patents is gone; and with Octane Fitness, no one in their right mind would sue on a business method patent.
That aspect of the troll problem is history.
edjonesSeptember 21, 2016 08:18 am
“Inventors strongly disagree. All those changes did was make it easier for Chinese and large multinationals to rob and destroy their small competitors. ”
They would rob them anyways. And “what are patent trolls doing wrong”?! How about Folner, targeting local businesses using copy machines?? How about exploiting a system that’s completely broken, that isses completely BS process, software and design patents, only to feed multi-million dollar, litigation-seeking companies that hide behind layers of shell companies. Are you kidding me?! Wake Up.
As a small business, you have a significant higher chance of being sued by a large “trolling” organization that owns some abstract patent that covers whatever you think it is that you’ve invented.. rather than having some company stealing your ideas (and you needing to go to court).
edjonesSeptember 21, 2016 07:54 am
@turley the costly litigation is because of the broken system; abstract patents allowed allowed through, and then soaked up by trolls or litigation-seeking companies. Go ahead and create a piece of software and count the companies you would like to purchase a “license” from whom claim BS prior art. Great business model!
staffJune 29, 2016 06:06 pm
‘The Obama Administration made critical updates to our patent system through the America Invents Act’
Inventors strongly disagree. All those changes did was make it easier for Chinese and large multinationals to rob and destroy their small competitors. So it seems Ms. Clinton has been commandeered by thieves. When these thieves cannot dupe or ply their targets with campaign contributions we suspect and it appears they destroy them politically. Such was the intimation of Senator Whitehouse.
When thieves control who gets elected, property rights and America lose.
We would like Ms. Clinton to define for us what is a ‘patent troll’. Who are they and what is it they are doing that is wrong. She appears to have been substantially taken in by invention thieves.
For example, there is no ‘excessive patent litigation’ which we have stated and supported with facts previously. Rather, it is now far to hard, expensive and lengthy for inventors and small entities to get AND enforce their patents.
For our position and the changes we advocate to truly reform the patent system, or to join our effort, please visit us at https://aminventorsforjustice.wordpress.com/category/our-position/
or, contact us at [email protected]
JamesJune 29, 2016 01:57 pm
Don’t trust her. she will say one thing then do something else. It is the same with the obama administration. If you like your doctor, you can keep your doctor.
Hillary says that she is for innovation but she is a self interested party. Just look to what she said she would do and see if she has done them.
TernaryJune 29, 2016 12:59 pm
Mrs. Clinton’s factsheet does not mention “inventor” a single time. Companies: yes; universities: yes; entrepreneurs: yes; startups” yes, but not the American inventor, the proverbial tinkerer and maverick who goes his/her own way.
Inventions are nowadays considered a rational product delivered on-demand by institutions and corporations. The inventor is also considered to be a product of innovation (well, somebody has to do it) rather than its originator. This is confusing the engineer with the inventor. And they are entirely different types.
Mrs. Clinton appears to subscribe to the corporate view of America rather than to the potential of the individual inventor, who is often uncontrollable and not well tolerated in an organizational setting. It would be nonsense to neglect the power of organized and corporate innovation. But it is equally nonsense to ignore individual inventors as one of the larger sources of American innovation and how to incentivize these individuals, as Mrs. Clinton seems to do by focusing exclusively on companies and institutions. Not surprisingly, her view appears to be the same as Michelle Lee’s who in an interview explained that she admired innovation at companies. It is a European view that continues to diminish our universe of individual inventors, truly unique in the world, who should be helped by the patent system.
I would like to see from Mrs. Clinton and her opponent how the individual American inventor would be protected and incentivized by their policies. This is where Mr. Trump could distinguish himself positively from Mrs. Clinton. Or perhaps they both believe that the individual inventor in America is irrelevant to innovation.
Edward HellerJune 29, 2016 12:16 pm
Titus, the balance of what she has to say about small business and statups has a lot of merit. It is just when she gets down to patents themselves she begins the parent the efficient-infringer party line. I do not know whether she understands that she has been duped.
Regardless, it is quite apparent that if she gets in the power she will appoint people to positions of power in her administration that believe in IPRs, and in litigation reform that is decidedly pro-efficient infringer.
I can only hope that Trump listens to the opponents of efficient infringers and begins understand just how much damage these people are causing the patent system.
Titus CorleoneJune 29, 2016 11:55 am
Okay, back to basics… Patents are the direct result of innovation. For “innovation” to thrive in an economy, a business friendly environment is critical. Therefore, if Clinton plans to extend the current administration’s strangling of small business (while expanding cronyism for the fortune 500) it will not just be a zero sum gain… the negatives to Main Street (innovators) will require negative exponents to properly express. We need a president who can light of an Atlas Rocket under the economy – not the EPA and IRS… Hilary is not only dangerously incompetent… she is not the one that America desperately needs to lead…
TernaryJune 29, 2016 10:39 am
Her report says: “Since our country’s Founding, the United States patent system has been an envy of the world….”
The truth is that the world is watching with astonishment (and some glee) how we are breaking up our patent system. The AIA clearly has been one of the less successful “legislative” achievements of President Obama. It only has created chaos without “unleashing” the promised “innovative forces.” Political leaders have to admit that AIA was a mistake and that it has to be corrected. Also current patent eligibility rules are limiting and not stimulating innovation. Perhaps a nice first project for her new “Chief Innovation Advisor.”
Edward HellerJune 29, 2016 10:29 am
By supporting IPRs and venue reforms designed to force patent litigation into the infringer’s home court, Clinton has all but declared war on the startup, the small inventor, the university or anyone else who actually needs enforceable patents to protect inventions. One does not promote innovation by making it extremely difficult and expensive to enforce patents.
The only proposal of hers that might help is to fully fund the PTO. But beyond that, I could never vote for this pro-pirate advocate.
I would like to see what Trump has to say as well.
Night WriterJune 29, 2016 08:32 am
@6 curious: I agree that it is the people under the president. It is a lot like what has happened in finance prior to 2008. But, my guess is that those people under Clinton are going to be just like the Obama ones because as you point out they are controlled (bought) by the finance industry and the large international corporations.
Let’s face it. We are headed off the rails. My prediction is that we are going to go into a 50 year period of patent weakening. You have to remember the argument of the Googles–we can do that innovation thing with our corporate bucks and we back start-ups. We are the innovation engine. Give us tax breaks. Give us what we want in the laws and all will be fine.
It is a complex situation, but at the end of the day without lots of money for lobbying you have no voice. (Still the bite of the new trade secret law hasn’t been felt yet.)
TurleyJune 29, 2016 08:26 am
Her husband Bill is the guy who signed the Bills in the 1990’s that raided the PTO, so she is just fixing her hisbad’s mistakes. As to costly litigation, if defendants actually licensed what they stole, that would be helpful in reducing litigation costs.
AnonJune 28, 2016 11:56 pm
From what I have read so far, very disappointing with lots of sound bytes (proven wrong – like “Tr011s”) and kudos for the AIA. Like a magician’s flash – no substance and more likely serving as a distraction.
My view of Dickinson has been downgraded.
CuriousJune 28, 2016 08:28 pm
I expect that Clinton will do about what Obama has been doing.
I expect that neither Clinton, nor Obama, nor W, nor Clinton, nor Bush, nor Reagan had any concrete leanings one way or another. The direction the USPTO takes will likely be directed by those directly below the next president. All of those people will change in the next administration — no matter who wins in November.
Google will have to get in line like any other group that wants to lobby the next administration. I think Obama embraced Silicon Valley (and vice versa) more than Clinton has and certainly way more than Trump has. Regardless, I suspect that influence of high-tech (infringers) will decline.
AnonJune 28, 2016 08:27 pm
That Hilary Clinton has garnered a team to come up with a policy stand and has such a comment from Dickinson means that her policy is worth looking into.
That Hilary Clinton has the love of Big Wall Street and the Banking community – known anti-patent forces – means that her policy is worth looking very carefully into.
By the way – the “gee, let’s be open about identity” plank (transparency and controversy) is very much a plank for the Efficient Infringement crowd. Patents are personal property, and that aspect of being personal should not be so frivolously discarded. The current requirements on enforcement should be enough.
Night WriterJune 28, 2016 07:03 pm
I expect that Clinton will do about what Obama has been doing. We are moving towards a system just for the big international corporations. Also, I agree Lee is going to cash in working for Google or a law firm where Google gives them lots of money.
IPdudeJune 28, 2016 06:18 pm
Bemused and Gene,
What difference does it make if M.Lee stays or leaves? It’s still a Google controlled administration and USPTO. Google will just have Clinton appoint another friendly party. Google is already rigging their search engine to bury unfavorable Clinton stories (as they did with Obama). They also control Congress. Coupled with an unfriendly SCOTUS, not looking good for innovation in the U.S. As an inventor, I will no longer file new applications in the United States.
Gene QuinnJune 28, 2016 04:55 pm
You may be correct, but for a variety of reasons that is not what I expect will happen. Among other reasons, let’s not forget that government work pays quite poor for someone of high enough caliber to actually get the job. A former Director of the USPTO can command a nice salary in the private sector.
BemusedJune 28, 2016 04:28 pm
If Hillary buys her way into the White House, Michelle Lee will continue on as the Director of the USPTO. Mark it down.