Righting Another Obama Wrong: Re-Protecting Intellectual Property
A Very Welcome Change of Direction
The Barack Obama Administration was absolutely awful on intellectual property (IP).
Obama, Inc. set very many arms of the federal Leviathan to actively attacking IP protections.
Obama, Inc. sicced on IP the Department of Justice (DoJ) and its Federal Trade Commission (FTC). IP is a Constitutionally protected concept - protected in practice by the Patent and Trademark Office (USPTO)’s issuance of patents, trademarks and copyrights. These IP protections grant their holders exclusive use of the ideas behind them.
The Obama FTC’s antitrust division ignored the Constitution and its own USPTO - and sued the government-issued IP protections…for being exclusively used by the government-issued IP-protections-holders.
With Congress, Obama, Inc. created within the USPTO the Patent Trial and Appeal Board (PTAB). Which turned the USPTO’s mission on its head - from an agency issuing patents…to one destroying them.
This domestic assault on IP - triggered a global assault on IP. China, South Korea and others followed the Obama, Inc. lead - and ran their own scams to undermine US IP in their nations and markets.
The Obama Administration finally, thankfully, mercifully came to an end. Enter the Donald Trump Administration.
Candidate Trump campaigned for the office - taking IP and its protection very, very seriously. Time and again he pledged to stop China’s $800-billion-plus-per-annum IP theft. Thankfully, mercifully, he won.
In August, Trump signed and announced the Intellectual Property Laws Memorandum - which directed trade officials to recalibrate our international trade approach…so as to finally, mercifully protect US IP abroad. At said announcement ceremony, Trump promised that “this is only the beginning.”
And this month, the Trump FTC’s antitrust head, Makan Delrahim, gave a speech that made it abundantly clear that the Obama, Inc. whiplash-inducing-hypocrisy approach to IP assault - is thankfully, mercifully over:
“His comments suggest that after eight years of an Obama administration that encouraged the strong application of antitrust laws in the policing of (Standard Essential Patent) SEP licensing, the Trump White House is preparing to markedly change tack.
“In recent years many SEP patent owners have railed against what they have seen as the misuse of competition laws in the US and overseas. Delrahim indicated that he favours a less activist antitrust policy and more of a market-oriented approach to policing the interests of innovators, who develop patented technology, and implementers, who typically manufacture devices.”
Oh - “a market-oriented approach.” That is a marked tack change from the ridiculously anti-free-market Obama Administration:
“In recent years much of the debate around SEP licensing has focused on the threat of hold-up whereby, in a standards setting context, the owners of SEPs can delay licensing until their royalty demands are met.”
Well, yes. You can’t rent my car - until you pay me the rate I am asking for you to rent my car. Fairly free market, n’est-ce pas? Too free market for Obama, Inc. - and the rest of the planet:
“The prevailing narrative around hold-up prompted one Standard Setting Organisation (SSO), IEEE, to controversially change its patent policy in early 2015, in a move which has been heavily criticised by a group of patent owners including Qualcomm, Nokia and Ericsson - all of which have refused to license under the new terms.”
“The prevailing narrative” - was vociferously anti-IP. And who led the charge on pushing said narrative? Why, Obama, Inc. - of course:
“That (anti-IP) change in policy followed comments by one of Delrahim’s (Obama Administration) predecessors, Renata Hesse, who in a 2012 speech proposed a number of changes for SSOs to guard against the threat of hold-up.”
The Trump Administration far better understands IP - and the massive risks involved in its development:
“Delrahim claimed that this poses a more serious risk to innovation in part because those companies who invest in the development of new technology in a standard do so without knowing whether their investment will pay off.”
Delrahim understands that if you do not protect and properly remunerate IP - you stop getting IP:
“‘Patents are a form of property, and the right to exclude is one of the most fundamental bargaining rights a property owner posseses,’ he remarked. “Rules that deprive a patent holder from exercising this right – whether imposed by an SSO or by a court – undermine the incentive to innovate….’”
In short, the pro-IP Trump Administration - is the polar opposite of the anti-IP Obama Administration:
“There’s no doubt that the (Delrahim) speech represents a 180-degree turn on SEP licensing from the previous eight years. But what does that mean on a practical level? Well, for one thing it shows how the conversation around patents is slowly changing in the US.
“Rights owners still face incredibly tough prevailing winds.…But for a stakeholder community which has been waiting for any sign of how the Trump White House might approach some of the key patent issues, Delrahim’s speech provides the first concrete indication that the next four years, at least, might be very different to the last eight.”
Thankfully, mercifully so. (And let’s hope it’s eight years - not four.)
Oh - and we remain a world leader on…well, everything.
The Obama Administration led us all towards IP destruction.
An apparently very attentive, very active pro-IP Trump Administration can lead us all back to the restoration of IP respect and protection.
They absolutely must do so.
The global economy - and our leadership of it - demands it.
This first appeared in Red State.