We’re gonna build a box

With President Trump recently installed in the White House, will the internet industry be able to convince him to look at patents?

With new US President Donald Trump now calling the White House home, it is still largely unclear how he’ll handle his plethora of campaign promises.

Intellectual property policy doesn’t sit high on the pile, and with many of Trump’s more prominent policies suffering from the curse of political vagueness, the only insights that can be garnered are from the president’s cabinet appointments and cryptic tweets.

Trump’s promise to dismantle the Transatlantic Trade and Investment Partnership and the Trans-Pacific Partnership, both of which would boost protection of US-owned IP in signatory companies, doesn’t bode well.

But Trump’s cabinet is full of business professionals with experience that the new president promises will make America great again, which, in Trump speak, means rich. It’s no surprise that prominent trade groups have been quick to provide Trump with suggestions on how he should approach this area of law and attempt to direct the future of IP.

The Internet Association, a coalition of more than 40 key players in internet business, including Google, Netflix, Amazon and Twitter, has been louder than most and has been petitioning for IP reform for some time. The association provided Trump with a roadmap on IP policy, just six days after his unexpected victory over Hillary Clinton.

Ellen Schrantz, director of government affairs and counsel at the Internet Association, says that Trump’s domestic policy needs to include IP.

“The president is focused on domestic jobs and the economy and IP is a key part of that. Balanced policies that promote innovation drove the internet industry to 6 percent of US GDP in 2014. Internet industries rely on IP law to boost domestic job growth at an increasing rate. That’s on top of the growth they already provide to small businesses nationwide through access to global markets at the click of a button. IP policy is a key economic issue for our economy and we’re hopeful the president-elect will treat it as such.”

At the heart of the Internet Association’s patent wishlist is the death of “opportunistic patent trolls”, whose exploitation of the lack of reasonable venue law to shop for favourable forums is forcing defendants to litigate in distant states. Schrantz says that in some ways, this is already being done. The US Supreme Court’s decision to hear TC Heartland v Kraft, which it announced in December, will challenging the status quo on patent venue. Schrantz says that this case has the “potential to undo the damage caused by venue practice”.

“Should the Supreme Court not overturn current practice, US Congress has taken a deep interest and attention to the abuses of forum shopping by trolls, and we welcome legislative action.”

Schrantz says that patent venue reform should be high on Trump’s list, with the Internet Association fully supporting “judicial and legislative efforts to reinstate reasonable venue law in which the patent in question must have a connection to the judicial district”.

Further, Schrantz says that patent quality at the US Patent and Trademark Office has suffered and that it “must not only continue vigorous review of patents under post-grant review started over the past few years, but also continue to look at the ways workforce metrics, data tracking, and other issues affect quality”.

“It must also adjust internal practices to ensure that quality—not just quantity—is a top priority.”

Incentives for innovation should also be on the agenda, according to Schrantz, and the inclusion of an IP box, similar to the UK’s Patent Box, could go a long way in promoting research, development and innovation in the US.
“At a very basic level, an innovation or IP box would reform the way IP income is calculated for tax purposes,” she says.

“Other countries have already started creating special systems for IP-derived income that encourage investment. An innovation box would encourage US growth in innovative industries leading our national economy.”
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