Trump victory: ‘wait and see’ for IP position
After Donald Trump’s presidential election win, one lawyer said it is premature to speculate on the president-elect’s approach to IP rights, while another hoped Trump would appoint a “knowledgeable” director of the US Patent and Trademark Office (USPTO).
Trump surpassed the requisite 270 electoral college votes, while the Republican Party has control over both chambers of Congress.
The US Supreme Court is likely to have a balance of five Republican-nominated judges to four Democratic-nominated judges when Trump adds his own nominated judge to the mix.
In May, Trump announced his list of potential nominees, who included Steven Colloton and Raymond Gruender, judges on the US Court of Appeals for the Eighth Circuit; Thomas Hardiman, a judge at the Third Circuit; Raymond Kethledge, who works at the Sixth Circuit; William Pryor, from the Eleventh Circuit; and Diane Sykes of the Seventh Circuit.
Justices at state-based Supreme Courts Allison Eid (Colorado), Joan Larsen (Michigan), Thomas Lee (Utah), David Stras (Minnesota) and Don Willett (Texas) have also been nominated.
In a statement at the time, Trump said the list is “representative of the kind of constitutional principles I value”.
WIPR has spoken to IP lawyers about how a Republican-leaning Supreme Court could affect IP cases and the law in general.
Mark Whitaker, partner at law firm Morrison & Foerster, said: “Trump has not yet articulated a position on patents or IP more generally, and it is probably premature to speculate. But historically, Democrats and Republicans alike have both supported strong IP rights in the US and abroad.”
Bernie Knight, partner at McDermott Will & Emery in Washington, DC, added: “Not much is known about Donald Trump’s positions on IP. It is difficult to predict what, if any, positions may change.
“Hopefully, he will appoint a USPTO director who is knowledgeable about patent law and the patent system. President Obama made excellent appointments with David Kappos and Michelle Lee.”
Knight added that Supreme Court appointments are not likely to have a significant impact on patent law.
“It would be nice if the justices had more appreciation for the value of patents and a better understanding of how IP operates. Recent decisions regarding patent-eligible subject matter have been difficult to apply from a practical perspective,” he said.
Mark Raskin, partner at Mishcon de Reya, said that Trump wants to protect US businesses.
This suggests that he will favour supporting IP laws to protect US inventors and businesses from foreign manufacturers importing infringing goods.
“If this is true, we could see more activity at the International Trade Commission and more exclusion orders being issued (even against huge companies) to protect US domestic industry,” he added.
