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PRESIDENTIAL POLITICS AND IP

Posted in Copyright Law, Patent Law, Trademark Law

By Dale C. Campbell

The 2008 presidential election is just two weeks away. The candidates have discussed everything from foreign policy, the economy, the war in Iraq, washed-up homeland terrorists, and where you find the “real” America. But where do the candidates stand with respect to intellectual property protection?

 

For those of you who are interested, and the mere fact that you are continuing to read this article means that you are, a little-publicized conference sponsored by the IP section of the Colorado Bar was held in August 2008, during which two surrogates for Senator McCain and two circuits for Senator Obama discussed their respective candidates’ positions on topics of interest to the IP bar. A video presentation of the discussion can be if you search: IP Policy and the Presidential Debate Video Replay.

Not surprisingly, both candidates are supportive of technological developments, preserving the country’s leading role in the technology industry, and preparing our children to be competitive in the new digital age. Of course, one would be hard pressed to find any politician willing to state that he or she was against preparing our children to compete in the changing digital age.

So what are the candidates are willing to state with respect to their policies affecting intellectual property issues? Has enough detail been released to allow IP practitioners to determine whether there is any meaningful difference between the two candidates? The candidates have posted some policy detail on their respective websites. Obama’s policy paper concerning technology and innovation can be located at http://www.barackobama.com/pdf/issues/technology/Fact_Sheet_Innovation_and_Technology.pdf, and McCain’s webpage can be located at http://www.johnmccain.com/Informing/Issues/cbcd3a48-4b0e-4864-8be1-d04561c132ea.htm. Unfortunately, the candidates’ positions have not been fleshed out sufficiently to draw definitive comparisons between the two. Nevertheless, here is what the candidates have said about a few topics of interest, and the reader is free to extrapolate.     

Patent Reform. Both candidates pledge to provide greater resources to the United States Patent and Trademark Office (the “PTO”) in order to better train and to hire additional patent examiners to address the backlog of pending applications and to improve the quality and timeliness of future examinations. Obama’s position paper describes his commitment to improve the predictability and clarity of the patent system with the goals of enhancing innovation and reducing litigation. One element of Obama’s platform would be to devise a two-tier examination system resulting in what some have referred to as a “gold-plated patent.”  Obama believes that “[w]ith better informational resources, the Patent and Trademark Office could offer patent applications who know they have significant inventions the option of a rigorous and public peer review that would produce a ‘gold-plated’ patent much less vulnerable to court challenge. Where dubious patents are being asserted, the PTO could conduct low-cost, timely administrative proceedings to determine patent validity.”

McCain’s surrogates emphasized his commitment to improve the quality of all examinations, but questioned the appropriateness of the two-tier system, contending the gold-plated patent would be available only to those with ample resources to pay for the rigorous review, while others will be relegated to a second-class patent devoid of important presumptions of validity. However, McCain’s spokesperson did emphasize Senator McCain’s willingness to take on what he called the “trial lawyers” and to consider all forms of litigation including laws to prevent venue abuse, penalties for meritless suits, and fee-shifting provisions.

The panel commentator asked if the choice between McCain and Obama really made much difference when Congress was already moving forward with bi-partisan, bi-cameral legislation introduced by Senator Leahy and Senator Hatch (the Patent Reform Act of 2007 [SB 1145]). The Patent Reform Act attempts to address several perceived abuses in the patent process, including perceived litigation abuses resulting from what the proponents consider to be abuses by “patent speculators” seeking to enforce “paper patents” that have never been introduced into the marketplace. The proposed legislation would establish new procedures for calculating damages and determining willful infringement; increasing the PTO’s authority in reconsidering patents that may have been granted in error; and creating new venue rules to ensure the selected venue has a real connection with the alleged invention or infringing act.

The candidates’ spokespersons did not affirmatively state whether either candidate supported the Leahy-Hatch Patent Reform Act, but did reiterate each candidate’s belief that patent litigation is highly expensive and the patent system needs numerous reforms to promote innovation and to ensure that intellectual property rights are fairly protected. 

Copyright. Both candidates are largely supportive of increasing the length under which a creative work is protected by copyright, with some differences. McCain’s main emphasis would be to provide longer protection based upon the value of the work, where Obama would differentiate based upon the degree of creativity. Both camps were supportive of proposed legislation to encourage the use of “orphan works” – works for which no author is readily discoverable. The proposed legislation would establish a safe haven if a user of an orphan work performed an exhaustive search to discover the author of the work based upon standards to be adopted by the Copyright Office.

Both camps agree that protection of digital works in this age of the Internet presents unique challenges, but both cite the Digital Millennium Copyright Act (“DMCA”) as an example of legislative reform, especially the take-down provisions, which has been successful in addressing Internet copyright infringement.

Judicial Appointment to the Federal Circuit. The Obama camp expressed concern that the unique needs of the federal circuit have not been given sufficient emphasis in making past judicial appointments. The Obama surrogate opined that she would expect Obama to be actively engaged in the judicial appointments for the federal circuit, perhaps looking to experienced district court judges in light of current criticisms that the federal circuit has been too aggressive in overruling district courts’ factual findings – particularly those involved with patent claim construction. The McCain surrogate expressed his personal belief that the federal circuit, as currently constituted, is a fine bench and stated that McCain’s appointment philosophy would be consistent with his past appointments and would emphasis “real world experience, competence, and fair-mindedness.” 

The presidential candidates have opened up a small window into their thought processes and how they view issues of importance to protecting and enhancing intellectual property rights. Due to the more pressing issues confronting the candidates during this election cycle, it is not surprising that intellectual property rights have taken a backseat to other policy discussions. Before voting, I suggest that you log on to the above websites and conduct your own investigation before casting your vote.