What is the Future of the USPTO after President-elect Trump Takes Office?
Donald Trump is a man of many hats. Not only figuratively speaking, but quite literally now. He is a businessman, reality television star, real estate mogul, intellectual property owner, and now our President-elect. He is also the owner of many hats, each one affixed with his trademarked slogan, “Make America Great Again.” The exact number is not known, but there is a rough estimate Trump has purchased over 92,000 hats and has made over $600,000 selling them.
Trump definitely knows the power of his brand, and has been relentless in protecting it. (In the past decade, Federal court records revealed that Donald J. Trump — or a Trump affiliation organization — had been involved in a half dozen federal trademark lawsuits.) While Trump has been a diligent intellectual property owner for his own brand, there is uncertainty of what Trump’s policies while President will mean for IP owners and the United States Patent and Trademark Office (“USPTO”).
A week after Trump won the Presidential election, USPTO Director Michelle Lee spoke at a patent conference and stated that she “believe[s] the incoming administration must and will continue our effort to promote innovation fueled by a strong and robust IP system. Support for IP in the United States has a long history of bipartisanship.” Michelle Lee went on to explain the USPTO will work with the Trump administration to ensure strong IP protection and enforcement, both domestically and around the world. “This is a President-elect that has promised economic growth and job creation in our country, and IP will necessarily be a key piece in achieving that goal.”
So, what exactly will be the future of the USPTO when Trump takes office? Trying to determine what effect Trump’s administration will have on future intellectual property policies in America was certainly not the first issue on the majority of American’s minds during the election, however it doesn’t mean IP policy is not an important issue. It definitely is–especially for IP owners. Let’s take a closer look.
Nearly two weeks after Trump was named President-elect he shared an update on the Presidential Transition, where he briefly outlined his proposals during his first 100 days of office. Trump stated, “whether it’s producing steel, building cars, or curing disease, I want the next generation of production and innovation to happen right here, in our great homeland: America –creating wealth and jobs for American workers […] as part of this plan, I’ve asked my transition team to develop a list of executive actions we can take on day one to restore our laws and bring back our jobs.” And as current USPTO Director Michelle Lee stated, IP is a key component in Trump’s promised economic growth and job creation in this country.
Exactly how the Patent Office and patent system will be restructured when Trump becomes President is unknown, as he has not expressed any interest in the problem. And it is yet to be seen whether Donald Trump will address issues like patent trolls and the Eastern District of Texas (which has earned a reputation for exploiting loopholes in the government’s regulation of intellectual property).
It will be interesting to see how Trump’s transition team will influence the patent office. Vice President-elect, Mike Pence, has a connection to the American Conservative Union (“ACU”), which has denounced patent law reform as “a risk to American innovation,” while others on the transition team, like Alabama Republican Senator (and potential future Attorney General) Jeff Sessions, have considerable experience in patent reforms. He has provided public comments about post-grant patent review that suggests understanding about what a great expense mistakenly granted or overbroad patents can cause.
Every keen businessperson knows the best way to protect your brand is through trademark registration—a practice to which Trump is no stranger. During the hiatus of Trump’s reality television days in January 2004, he filed trademark applications for use of “You’re fired!” (Which, incidentally, he no longer owns.) But he has also filed for trademark protection for “Trump Money,” “Trumpocrat,” and “Trumpublican” just to name a few, among many others.
Trump definitely knows the value of trademark registration. It appears as if Trump’s trademark strategy has been to file many trademark applications. Eventually moving forward with those showing value and abandoning those that don’t. His trademark strategy suggests he would want to maintain strong trademark protections, and make trademark registration more efficient and effective. However, he has not discussed his trademark policies.
Trump is a published author of 16 books. (Anyone heard of The Art of the Deal? Trump’s first, and most widely recognized book, Trump: The Art of the Deal, was published in 1987. The book even reached number 1 on The New York Times Best Seller’s list, and stayed there for 13 weeks.) Even though Trump has had commercial success as an author, his position and policies on copyrights is unknown. But Trump’s update on the Presidential Transition, where he said he plans to withdraw from the Trans-Pacific Partnership would oppose copyright policies such as, limits to fair use, enhanced digital-rights management protection, expanded terms, and criminal sanctions. However, Trump’s position in withdrawing from the TPP is particularly driven by trade issues rather than copyright law.
Copyright industries are not only important domestically to the U.S. (as they are a large part of our economy), they are also very important internationally. U.S. copyrighted works are global icons of America. All around the world people soak in American culture. This includes listening to American music, watching American movies and television shows, and even using American software. Therefore, American copyright protection is an important factor in our global influence. Copyright Law Professor, Dennis Karjala, at Arizona State University’s Sandra Day O’Connor College of Law states,“With digital technologies, most IP [like copyright] is subject to piracy anywhere. The U.S. market dwarfs those in most other countries, and America has at least its share of pirates, especially for music and movies.” And with the future President’s (trademarked) campaign slogan being “Make America Great Again,” Trump would likely show strong support for preventing piracy and favor domestic and international protection of copyrights.
New USPTO Director
The current USPTO director is expected to vacate the position when President Barack Obama leaves office, therefore the Trump administration has the very important task of appointing a new USPTO director. The new appointee to this position under the Trump administration will greatly influence the direction of the USPTO with their policies and mandates.
Changes to USPTO.gov
For over a decade now the uspto.gov website has been a great resource for the public to use, but also has brought about many frustrations as well. Experienced patent attorney Matt Buchanan, has his fair share of frustrations about the uspto.gov site and wants to see the agency improve, however he appreciates the website as well. “They [USPTO] moves on a trajectory that takes decades. In their defense, it is an incredibly complex organization with many employees and it is a hard thing to change, but I would like to see them move a little bit faster.”
Buchanan wants positive change for the agency. And he believes one area of improvement needed for the uspto.gov website is to have an API for accessing patent related information. According to Buchanan there is plenty of information on the site, it is just unbelievably inefficient in how you go about getting it. “The patent statute gives the patent office two jobs, one is to examine and grant patents—which is important to inventors, and two, arguably the more important job, is to disseminate patent related information to the public. They do a decent job on the first part, but they do a horrible job at the second,” says Buchanan. “But providing an API for the uspto.gov would help.”
Buchanan went on to explain that if the uspto.gov had an API like Twitter this would likely make their online platform more accessible and user friendly for the public. President-elect Trump has a reputation of being very vocal on the user friendly (and API using) Twitter. Perhaps Trump will provide encouragement for a government agency website, like the uspto.gov, to be as user friendly as Twitter and ensure the USPTO utilizes an API for their website. For the betterment of the public and dissemination of information—we can hope.
So, what exactly is in the future for the USPTO post-January 21, 2017? To be honest there is not much clarification on President-Elect Trump’s IP agenda. Hopefully, the new Trump administration will work to promote an innovative and robust IP system. Trump ran a campaign promising economic growth and the creation and retention of jobs in the U.S., and IP would undoubtedly be necessary in keeping his promises and achieving those goals. It will be interesting to see how Trump’s administration team will influence the USPTO and intellectual property in the United States.
Trump: Make the USPTO and IP in America Great Again! Should I start that? Too far? It is already great? Ah –yes it is. But there is always room for improvement.
Chelsea Wold, is a law clerk for LegalForce RAPC. She received her Juris Doctor degree from Sandra Day O’Connor College of Law, Arizona State University in May 2016. On the personal side, Chelsea has her own blog that she started as a journalism major in college.