A Second Look at President-elect Obama's Technology Platform

    By Donald Zuhn --

Like many Americans, we spent Tuesday evening watching the presidential election returns come in, and now that Senator Barack Obama has been elected the 44th president of the United States, we thought it would be a good idea to take a look back at some of our previous reports discussing some aspects of President-elect Obama's technology platform.

"Presidential "Debate" on U.S. Patent Policy," October 14, 2008

On the eve of the third, and final, presidential debate, we focused on a panel discussion, sponsored by the Colorado Bar Association, that took place in Denver on August 28, 2008.  The panel discussion brought together two representatives from each of the candidates' campaigns to address patent, copyright, and antitrust issues.  Representing Senator Obama's campaign were Professor Arti Rai, from the Duke University School of Law (and a former classmate of Senator Obama's at Harvard Law School), and Associate Professor Christopher Sprigman, from the University of Virginia School of Law.

"Follow-on Biologics in the News," September 23, 2008

We discussed reports from Forbes.com and the Pharmaceutical Business Review indicating that Senator Barack Obama would place the passage of a follow-on biologics regulatory pathway at the top of his health care agenda.  Forbes.com also noted that Obama supported making the exclusivity period as short as possible for biotech drugs, and intended to put an end to the "reverse payment" practice, in which innovators pay generic drug manufacturers to delay introduction of generic drugs.

"Mitt Romney on Patents: A Reason for Thanksgiving," November 21, 2007

On Thanksgiving Eve 2007, we summarized the patent platforms for a number of Democratic and Republican presidential candidates.  With respect to Senator Obama's patent platform, we noted that his official campaign website at the time contained the following passage:

Reform the Patent System:  A system that produces timely, high-quality patents is essential for global competitiveness in the 21st century.  By improving predictability and clarity in our patent system, we will help foster an environment that encourages innovation.  Giving the Patent and Trademark Office (PTO) the resources to improve patent quality and opening up the patent process to citizen review will reduce the uncertainty and wasteful litigation that is currently a significant drag on innovation.  With better informational resources, the Patent and Trademark Office could offer patent applicants who know they have significant inventions the option of a rigorous and public peer review that would produce a "gold-plated" patent much less vulnerable to court challenge.  Where dubious patents are being asserted, the PTO could conduct low-cost, timely administrative proceedings to determine patent validity.  As president, Barack Obama will ensure that our patent laws protect legitimate rights while not stifling innovation and collaboration.

Interestingly, Senator Obama's official campaign website currently contains a modified version of the above passage:

Reform the Patent System:  A system that produces timely, high-quality patents is essential for global competitiveness in the 21st century. By improving predictability and clarity in our patent system, we will help foster an environment that encourages innovation. Giving the Patent and Trademark Office (PTO) the resources to improve patent quality and opening up the patent process to citizen review will reduce the uncertainty and wasteful litigation that is currently a significant drag on innovation. As president, Barack Obama will ensure that our patent laws protect legitimate rights while not stifling innovation and collaboration.

The difference?  The following two sentences concerning the "gold-plated" patent concept have been removed from the November 2007 version of his patent policy:

With better informational resources, the Patent and Trademark Office could offer patent applicants who know they have significant inventions the option of a rigorous and public peer review that would produce a "gold-plated" patent much less vulnerable to court challenge.  Where dubious patents are being asserted, the PTO could conduct low-cost, timely administrative proceedings to determine patent validity.

"Law Professors Back USPTO in Tafas v. Dudas Appeal," October 23, 2008

Last month, we reported on one of two amicus briefs filed in support of Defendants-Appellants the U.S. Patent and Trademark Office and USPTO Director Jon Dudas (thirteen other amicus briefs were filed in support Plaintiffs-Appellees Dr. Triantafyllos Tafas, SmithKline Beecham Corp., SmithKline Beecham plc, and Glaxo Group Ltd.).  The Brief Amici Curiae of Intellectual Property and Administrative Law Professors in Support of Appellants was signed by Stanford Law School Professor Mark Lemley (an Obama advisor) on behalf of eleven other law professors, including Prof. Arti Rai of Duke Law School (who was also listed on the brief's cover page with Prof. Lemley).

Election Postscript:  Patent Docs has learned that when it comes to patent policy, President-elect Obama has the ear of more than just a handful of law school professors, and that the President-elect will also be listening to patent practitioners.  If true, that should make many in the patent community a little happier about Senator Obama's historic victory.

Comments

[EG]

"President-Elect Obama has the ear of more than just a handful of law school professors, and that the President-Elect will also be listening to patent practitioners."

Don,

I've heard from other sources that Obama may be much more of a pragmatist, than idealogue, and does consult with other experts in the field you might be surprised he would talk to for advice. We'll have to see if this pans out in our area as well.

[anonymousAgent]

Kevin,
Thanks for the article and for this site.
Rahm Emanuel was a big supporter of the Patent Reform Act of 2007 - this is disconcerting in the least.
Do you have comments about this (especially as a Chicago-based patent attorney who may know Rahm Emanuel "up-close")

AnonymousAgent

[anonymousAgent]

I'm sorry - the article was by Donald - sorry I did not give Donald credit.
Donald and/or Kevin - any comments?

Thanks

[EG]

"Rahm Emanuel was a big supporter of the Patent Reform Act of 2007 - this is disconcerting in the least."

anonymousAgent,

I should say so. I've read a few items on Emanuel and he's a "take no prisioners" kind of guy when it comes to politics. Extremely partisan, "winning is everything", no concept of "reaching across the aisle." We can only hope that he'll be distracted by other matters higher on his "radar screen" (there are plenty involving the current "sick" American economy) and that so-called "patent reform" isn't one of them.

[Donald Zuhn]

While Rep. Emanuel was a cosponsor of H.R. 1908 (Patent Reform Act of 2007), there were 22 other cosponsors. In addition, as we noted back in September 2007 when the House bill passed, Democrats voted 160-58 in favor of the bill and Republicans voted 117-60 against the bill. Thus, patent attorneys supporting Obama's candidacy had to know that there was a good chance the President-Elect would select a few proponents of H.R. 1908 to serve in key positions within his administration. The key will be whether President-Elect Obama seeks input from various sources (including patentees and patent practitioners, as well as those in the biotech/pharma sector). I believe he will.

In addition, it appears that Rep. Emanuel's support for H.R. 1908 was based, at least in part, by what the IT industry was telling him about the patent system (see http://www.dems.gov/index.asp?Type=B_PR&SEC=%7BD68CD0B2-1442-4804-9F6B-AF67DE7FF585%7D&DE=%7B56262048-F57D-4C05-A3EA-E098004BA40A%7D). Thus, it is imperative that the biotech/pharma industry let President-Elect Obama and members of the 111th Congress know exactly how it feels about patent reform.