Pence, Conservative Views on Patents Likely to Influence Trump

Pence seems to appreciate the realities and benefits of commercializing patented technology, and the benefit that brings in terms of economic development and better, higher paying jobs.

Vice-President Elect Mike Pence. Photo by Gage Skidmore. CC-SA 3.0.

Vice-President Elect Mike Pence. Photo by Gage Skidmore. CC-SA 3.0.

Many in the patent community continue to express an almost moral indignation that President-Elect Trump has taken no public position on the issue of patents. As we pointed out yesterday, the Republican platform, which was approved by a Committee overwhelmingly stacked with Trump loyalists, inserted a plank in the Republican platform that stated patents are property rights and theft of IP assets is a national security concern. So it is not entirely accurate to say that President-Elect Trump has taken no public position on patents, although it is certainly fair to say that patents are not one of his priority issues by a long shot. This should, however, come as a very welcome turn of events for those besieged in the patent owner community. Your federal government does not seem to have more patent reform as a top agenda item, which in and of itself is both newsworthy and heartening.

While our critique of Trump’s positions on IP seems to have been well received, and to have also sparked an interesting discussion, some have expressed dismay. But let’s be perfectly clear – the lack of a desire to ramrod patent reform down the throats of innovators does not make one ignorant or uninformed. Not having a patent reform agenda simply means that Trump and his advisors don’t see the need for additional patent reforms, at least presently.

The lack of a position on patent reform is dismaying to many because Hillary Clinton specified that she would act on venue reform, among other issues already heavily lobbied on for decades. Then Senator Barack Obama and Senator John McCain in 2008 shared the same view – that we needed some form of post grant review to make it easier to challenge issued patents. Post grant challenges ultimately came into being as the result of lobbying by Professor Mark Lemley on the left and Ed Reines on the right, as well as years of Congressional debate and expert studies by the National Academies and others. Perhaps Trump and his advisors have reviewed current patent reforms and think that they are examples of what is wrong with Washington – substance driven by lobbyists, big companies, elites and campaign contributions. Recognizing that patent reform has been driven by lobbyists, big companies, elites and those making enormous campaign contributions is perfectly accurate and cannot be seriously debated. Not wanting to allow lobbyists, big companies, elites and the financially well-healed to dictate his agenda actually fits perfectly with Trump’s agenda and promises. Could it be that a lack of a position on patent reform is more than just an oversight? Based on the evidence at hand that seems likely.

While Trump has not been previously elected to public office, and thus has not introduced, supported or voted on any patent bills, we need to look further to those who will advise a President Trump on the issues.

Ken Blackwell is currently head of Trump’s transition team for domestic issues, but this would not include the Commerce Department, which has been carved out for Dallas investor Ray Washburne. Blackwell has written about the virtues of strong patent rights and pleaded with Republicans not to rush forward a flawed patent reform agenda. Blackwell also did an interview on these very issues for publication on in February 2015. See Conservatives Should Have No Part of Patent Reform. If Blackwell influences Trump’s thinking on patent issues that would be very good for innovators and very bad for the infringer lobby. Time will tell what role Blackwell might play in a Trump Administration, but his high profile on the Trump transition team is certainly noteworthy.

Aside from Blackwell, who may or may not be called upon for advice in the area of patents and innovation policy, we can look to the record of Trump’s running mate, Mike Pence. Pence served in the United States House of Representatives from 2001 until 2013, when he became the Governor of Indiana. Then Congressman Pence served on the Judiciary Committee for 10 of his 12 years in Congress. This is significant because the Judiciary Committee is the one that deals with patents in the House.

Congressman Pence worked mostly on patent reform bills via the Republican Study Committee, a well-known group of House Republicans focused on inserting conservative views into public policy including respect for the Constitution and private property rights. While Pence did not always vote with patent owners (i.e., Pence voted for the America Invents Act) he was often skeptical of patent reforms that helped a few big companies and perversely increased litigation and uncertainty by introducing new tools for lawyers and infringers to abuse. For example, Pence fought to do away with the best mode requirement, which he said would “lessen the burden put on patent holders in defending their patents in post-grant review proceedings, and it will prevent the expenditure of millions of dollars in needless lawsuit abuse.”

Pence, who was concerned with litigation abuses that cost patent owners needlessly, would likely be persuadable on the issue of “efficient infringement” and the “patent holdout” problem, which are rapidly turning into a plague on the U.S. patent system and driving patent activity to Germany and China. A Constitutional conservative like Pence should well understand the property rights issue, and find commonality with the positions expressed by Blackwell, former Senator Rick Santorum and others on that point.

Pence has also served as a Governor, in a state driven by many innovators and patent owners in the areas of manufacturing, pharmaceuticals and university research. In fact, Purdue University has in recent years highlighted its growth in patenting and licensing, increasing its national ranking and with a focus on using patents to fuel startups and economic growth. Indeed, during the time Pence served as Governor of Indiana, Purdue University soared to a record numbers of new patents, record numbers of technology licenses and record numbers of start ups based on Purdue University innovations.

“As new innovations and technologies reach the marketplace, Hoosiers can be proud that Purdue, its students, faculty and staff are bringing homegrown solutions to bear in solving real-world problems,” Pence explained earlier this year when speaking about the University’s record achievement in patent procurement, technology licensing and start ups. “Purdue’s success will only build on Indiana’s economic momentum in a variety of industries and undoubtedly benefit all of Indiana.”

Furthermore, in July, Governor Pence signed an Executive Order establishing the Indiana Economic Development Corporation as the entity that will coordinate all efforts on behalf of the State of Indiana to accelerate innovation and entrepreneurship. Perhaps most interesting, the Order specifically acknowledges that increased innovation helps make communities more vibrant and spurs economic growth, higher wages and job creation.

In short, Pence seems to appreciate the realities and benefits of commercializing patented technology, and the benefit that brings in terms of economic development and better, higher paying jobs. Hopefully he will see that what was in the best interest of Indiana will also benefit the entire country.

Vice Presidents often have a substantial influence on policy and personnel. Pence appears poised to be heavily involved in helping Trump make choices for key White House positions. Before we know who may be on the short list to become the next Director of the USPTO, or how a President Trump would come down on another patent litigation abuse reform bill produced by the infringer lobby, it will be important to examine the positions held by Pence and others, such as Blackwell who has a prominent role on the Trump transition team. Early indications suggest that Trump, who is certainly not being advised by the same Silicon Valley elites who advised Obama, may be getting advice from Constitutional conservatives who understand that patents are property rights and appreciate the important role they play in commercializing innovations and invigorating the economy.


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Join the Discussion

8 comments so far.

  • [Avatar for Chris Gallagher]
    Chris Gallagher
    November 13, 2016 04:17 pm

    Chris Gallagher
    Thx to both for all your research and reporting. Your optimism is encouraging.

  • [Avatar for Night Writer]
    Night Writer
    November 13, 2016 02:47 am

    Carter & Reagan made the Fed. Cir. to end the great malaise. It worked.

    Now, we have destroyed patents and growth is stagnate.

  • [Avatar for Dale B Halling]
    Dale B Halling
    November 11, 2016 07:39 pm

    Excellent article – thanks Gene

  • [Avatar for jbavis]
    November 11, 2016 05:28 pm

    Anyone and everyone should do what they can to expose Google and their hypocritical anti-competition agenda. Start with how patents enabled a couple of unknown kids to secure funding in the 90’s when Microsoft was the massive giant, followed by under a decade later, Google recognized their threats might come from a similar new upstart and started multiple efforts to try to prevent that. Then explain how they are effectively preventing future Google’s to emerge and all the American jobs and prosperity that we don’t even know we may have missed out on – or how many more we’ll miss out on if changes aren’t made.

    Hint: research the first couple of Google PageRank patents – a large majority if not over 90% of Google’s revenues can be tied to the monopoly produced by those patents. Don’t tell me that Gates and Microsoft didn’t have the ability and resources to squash those 2 unknown kids with their piddly $30m funding had it not been for those patents. Microsoft squashed innovator Netscape but wasn’t able to stop Google? …Gates saw it coming, yet the difference between Netscape and Google were patents – the 1st didn’t have them and the 2nd did. Not a coincidence.

    Explain that story and make that case and Trump will listen.

  • [Avatar for angry dude]
    angry dude
    November 11, 2016 04:29 pm

    Night Writer @1

    Google “invented” google glasses – those ridiculous shitty displays on one eye nobody would wear anyway and even managed to sell some of those to early (now very unhappy) developers (for $$$$)
    Success indeed

  • [Avatar for angry dude]
    angry dude
    November 11, 2016 04:19 pm

    JPM @2

    Wow, dude !

    Are you independently wealthy or what ?

    Who was paying your legal expenses ?

    The last time I tried to enforce my patent was in 2012 before AIA and it was already grim – SV corporations never settle with independent inventors nowadays (after EBay), they’ll drag you through the trial and then appeal (if they lose) – 5 years in total before you and your investors can see a dime (after spending 7 figures in legal expenses), and the damages are curbed so that might not even cover your legal expenses – not a good business plan at all

    And now that they have PTAB, who in his right mind would bring a patent lawsuit today ?

    Today patents are literally sport of kings – googles shmoogles apples of the world
    the rest of us are f*****

  • [Avatar for JPM]
    November 11, 2016 03:37 pm

    As an individual inventor, I have enforced some of my patents over the past three years against some very large companies, and I must say that the PTAB and it’s IPR process needs to be shut down. IPR is absolutely unfair to inventors and other patent owners as it has decimated the value of patent property rights.

    Your choice after you file a lawsuit is to settle for a very low amount, or take your chances at the PTAB where there is an 80% or so chance that your patent will get killed.

    I’m hopeful that Trump will shutdown the PTAB death squad. Many of us in the IP community such as inventors, patent owners, ip brokers etc should all get together and try to reach out to the Trump administration to bring the unfair components of the AIA to their attention.

  • [Avatar for Night Writer]
    Night Writer
    November 11, 2016 08:59 am

    The real tension here —that I don’t think people get— is the large international corporations like Google are saying we don’t need patents. Our “Moonshot” division will take care of that innovation thing and those patents just make it harder for them to do their job.

    So, arguing that we need innovation is not sufficient. The argument has to be that we need patents for innovation, which Google is saying you do not.

    Notably, Google has not really invented anything or done anything of substance on their own after their initial search which was patented and driven by patents. All their other big successes (even ranking for money) were purchased and exploited and refined. So, Google is a total failure as an innovative company.

    But, real analysis is never done.

    I am hopeful that Trump might get that Google is just a monopolistic hog.