In the Final Round of Harris vs. Trump: Who is Better for IP Rights?

As the United States gears up for the 2024 presidential election in two days, many in the IP community have been asking who would be better for IP rights? The question about whether a Harris Administration or second Trump Administration would be better on intellectual property rights from the perspective of rights holders is largely unknowable because neither party platform mentions “intellectual property” specifically, much less patents, trademarks or copyrights. And, like so many things in life, it all comes down to your perspective. The beauty on this particular issue is really in the eye of the beholder.

Democratic nominee Kamala Harris has made some overtly anti-patent statements, specifically threatening during her 2020 campaign to “snatch patents” away from pharmaceutical companies as a means for addressing high drug prices, and she has promised to expand the use of price controls for pharmaceuticals used by those on Medicare and Medicaid. This could reasonably lead to the conclusion that former President Donald Trump would be better on IP matters, and many will no doubt come to that conclusion, particularly because during the first Trump Administration many believe the Executive Branch was largely supportive of strong patent rights, as evidenced by the actions of the U.S. Patent and Trademark Office (USPTO) and National Institute of Standards and Technology (NIST). But while past is often a prologue for the future, it is worth saying that there are some Republicans who believe a potential second Trump Administration would be far less friendly to rights holders.

Confounding matters is the reality that virtually everyone running for federal office alleges they are strongly in favor of innovation, particularly American innovation. Indeed, candidates and incumbents all profess commitment to working to foster innovation and keep the United States in the lead on innovation and technology, particularly in crucial areas like artificial intelligence and other emerging technologies. The problem is what one person considers innovative because a product has been launched is what another person considers infringement because rights have been ignored. Without a widely accepted definition for “innovation” or what it means to be “innovative”, it is difficult to know what candidates mean when they sing the praises of innovation, which makes it impossible to predict with any degree of certainty what the future holds for intellectual property in 2025 regardless of who wins on Tuesday.

Trump and the Republican Platform

The Republican platform, as its fifth priority under Chapter Three, “Build the Greatest Economy in History,” lists championing innovation. According to the GOP, this includes ending Democrats’ “crypto crackdown”, repealing President Joe Biden’s “dangerous Executive Order that hinders AI Innovation” and expanding freedom, prosperity and safety in space. Aside from a somewhat nebulous promise to champion innovation, the most relevant and certainly most specific insight relates to the omnibus AI Executive Order, which in October 2023 directed both the USPTO and Copyright Office to conduct studies and issue recommendations relating to potential executive actions to be taken relating to patents and copyrights vis-à-vis AI. More specifically, the AI Excecutive Order called on the USPTO Director to issue guidance to examiners on inventorship and AI within 120 days, and within 270 days, additional guidance on other issues, including patent eligibility and AI. The USPTO has done so, with guidance on eligibility coming out this July and guidance on inventorship in February. Many in the IP community have concerns about the updated eligibility guidance for AI, with major IP organizations overwhelmingly calling for more clarity in order to avoid restrictions on patenting emerging technologies incorporating AI.

How Trump’s repeal of the AI Executive Order would impact recent USPTO AI guidance and the yet to be published Copyright Office report is unclear, although the patent eligibility guidance issued by the USPTO in 2019 under then USPTO Director Andrei Iancu was largely viewed as positive and sensible. Indeed, it is Andrei Iancu himself and the policies he pursued during the first Trump Administration that inspire the belief that a second Trump term would be positive from an intellectual property perspective.  This is only further boosted by the recent op-ed authored by Iancu that promises a second Trump Administration would make America competitive again through smart, strong IP policy.

So what is the problem? The real wildcard for Republicans surrounds who would be Trump’s pick to run the USPTO during a second Trump Administration. As we have learned over the years, who the President picks has an enormous influence on patent and innovation policy. Witness the diametrically opposite views, and what it meant for U.S. policy, between David Kappos, who was President Obama’s USPTO Director during his first term, and Michelle Lee, who was President Obama’s USPTO Director during his second term.

Harris and the Democratic Platform

Harris has received a lot of criticism for her bold statements about “snatching” patents from drug companies that refuse to lower prices during her 2020 presidential campaign. Specifically, she said that drugs developed with federal funding would be snatched if they’re too expensive, an interpretation of authority given the government under the Bayh-Dole Act that has historically been refuted. Nevertheless, this year NIST did put forth a proposed interpretation of Bayh-Dole by the Biden Administration that justifies government seizure of patent rights in the event the funding agency believes the product covered by the patent is too expensive.

During the Biden Administration, Congress passed the so-called Inflation Reduction Act (IRA), which imposes price controls on the top 10 drugs most used by those on Medicare and Medicaid. Lauded by those outside the industry, the IRA has been widely criticized within the industry, with dire predictions about the impact this will have on future innovative medicines with some pharmaceutical companies already cutting research and development in some areas and shifting to areas not reached by the IRA price controls. Meanwhile, as the industry criticizes the IRA and looks to adjust development priorities, the Democratic platform includes expanding on the Inflation Reduction Act’s caps on certain drugs in the Medicare program. For this reason alone, Harris is less favored when it comes to IP protections. Notwithstanding, the Harris campaign plan does include incentives for small businesses and emerging technologies in climate research and clean energy, and the Democratic platform praises “America’s leadership in domestic clean energy development,” which the platform says “is driving a global cycle of innovation and investment that will help lower the cost of clean energy technologies in a fair and transparent way for all nations.”

Harris has said she would “expand the startup expense tax deduction for new businesses from $5,000 to $50,000 and take on the everyday obstacles and red tape that can make it harder to grow a small business.” And her campaign page also pledges to “drive venture capital to the talent that exists all across our country including in rural areas, and increase the share of federal contract dollars going to small businesses.” How she would drive VC funding is unclear.

The Biden/Harris Administration also helped pass landmark bi-partisan legislation aimed at rebuilding American technology infrastructure, most noteably the the CHIPS and Science Act, which has supported more than 60,000 infrastructure projects, spurred more than $900 billion in private sector investments, and doubled investments in construction of new manufacturing facilities. Vice President Harris has promised to continue to support American leadership in semiconductors, clean energy, AI, and other cutting edge industries of the future.

So, Who is Better?

The question about who will be better for innovation, technology, and patent policy is an impossible one to answer. Who you will, and probably should, think will be better is all a matter of perspective. If you are a patent owner who needs strong patent rights in order to do business you will likely conclude that former President Trump is the best candidate, even if there is some concern surrounding who he may select as USPTO Director. If you are employed by big tech, don’t enforce your patents and are tired of nuisance patent litigation, then Vice President Harris is probably the best candidate, even if there is concern that her promised price controls might creep beyond drugs and groceries.

But no matter who the pick is, it will be up to all of us in the IP community to educate the incoming administration on the major issues facing us today; members of Congress and the Executive Branch—and most importantly, their staff—need expert guidance to get these complex policy matters right. So, even if your chosen candidate wins on Tuesday, both campaigns’ lack of direct focus on IP issues, as outlined above, means it still will not be time to sit back and breathe a sigh of relief. IP owners and practitioners have to keep commenting, writing and speaking out to ensure momentum in Congress and the Administration on protecting IP rights.