(This article first appeared in IPWatchDog)
For months people have questioned how the fortunes of inventors and startups may change as a result of who wins the presidency. Pundits have analyzed everything from lobbying money and political influence to grandparents and uncles to paint a picture of how each candidate might change the patent system. Now that Trump has won, the discussion has narrowed to whether Trump will keep patents weak or make patents great again. From the outside perspective, it is a curious exercise to say the least.
I recently attended the IAM Patent Policy conference where Trump and his transition team were the main course of discussion examining threads into his past, the people that surround him, and any other facets of Trump that could shed light on the likelihood the USPTO will be pro-inventor or pro-big tech.
But I have to ask… why are we even asking these questions? That question doesn’t get asked for other types of property rights. Property is property, right? Can you remember an election where people were asking if their deed would keep squatters out of their living room depending on who won the presidency? I don’t. It seems a preposterous question. After all, the deed on your house is a property right and everybody knows the government will back it up and eject the squatters. So why then do we, or should we, have to ask whether a Trump Administration will be in favor of strong patent rights? It all seems bizarre to say the least.
In America, we seem to understand the importance of property rights. They enable the flow of capital to improve property and that capitalization effect is directly related to the strength of property rights. In fact, one of the most telling signs that a third world country will remain a third world country is the strength and stability of its property rights. If property rights are weak, or if they change from weak to strong and back again at the whim of the dictator, or every time a dictator is killed, deposed or otherwise ousted, people cannot attract capital needed to improve their property and, well, nothing improves. If you cannot be sure you will own your property tomorrow why would you ever invest in it? Real property sitting unimproved and disintegrating is an unfortunately rationale choice in third world countries, as well as those ruled with dictatorial authority.
Even though patent rights are property rights in black letter law and hundreds of years of precedent, they no longer behave like property rights. Patent rights in America now behave like a third world property rights. Since the America Invents Act, patent rights are wagging the tail on a political dog becoming stronger or weaker depending on who is president and what favors are owed to those who helped that person along the way.
It is not realistically possible to remove all politics from the USPTO. They are an agency of the Executive Branch and the presidency is by its very nature a political office. In the end, examiners and PTAB judges are employees of the president. They have career paths and they obey those higher in the chain of command, a chain of command whose apex is the president. Politics unavoidably drives the president and therefore politics unavoidably drives the USPTO. That has been the case during substantial downturns, such as during the Obama Administration, and during good times for innovators, such as during the Reagan Administration when the patent system was seen as a way to encourage innovation so America could compete with Japan.
Since the patent office was created, the president has had control of it and many presidents have made patents harder or easier to obtain within certain boundaries. Only a small fraction of patents are ever commercially viable so granting patents has seldom been a significant political issue. No human endeavor, political or not, can ever be perfect and invariably some controversial patents have slipped through the USPTO. That human inefficiency made the job of invalidating patents a significant political issue.