USA: What will Obama do for IP?

While queuing for tea during the mid-afternoon break at the WIPO domain name panellists’ meeting in Geneva last month, I got chatting to am American colleague. I asked her which state she was from and she replied Illinois. 

“Oh Senator Obama’s state”, I remarked. 
“Not only that.” She said, “I used to work with Michelle Obama.”
My colleague told me that she had entered Sidley Austin LLP at the same time as Mrs. Obama and had worked on the same team. That team was apparently the non-patent IP team.
Delightedly I exclaimed: “So Mrs. Obama is also an IP lawyer!”
“Indeed she is” my colleague replied, adding that she met her husband through the firm. He was on a temporary work placement with Sidleys and her job was to look after him.
So with that kind of background we can expect great things from the new president. Or can we?
The best indicator of what the president-elect will do is the transition website “”. At the foot of the home page is an agenda and one of the links from that page is “Technology” so I clicked it to see what he had to say.
Barack Obama has certainly diagnosed the problem for America which is pretty much the same as ours:
  • “America risks being left behind in the global economy”
  • “Too many Americans are not prepared to participate in a 21st century economy”

Following this diagnosis there are a number of bullet points representing “Barack Obama and Joe Biden’s Plan” One has to go quite a long way down the lost to find the first reference to IP and when you find it it is in the context of China bashing:

“President Bush has failed to address the fact that China has engaged in ongoing currency manipulation that undercuts US exports; that China fails to enforce U.S. copyrights and trademarks and that some of our competitors create regulatory and tax barriers to the delivery and sale of technology goods and services abroad. Barack Obama will fight for fair treatment of our companies abroad.”

In similar vein they add several paragraphs further down:

“The Motion Picture Association of America estimates that in 2005, more than nine of every 10 DVDs sold in China were illegal copies. The U.S. Trade Representative said 80 percent of all counterfeit products seized at U.S. borders still come from China. Barack Obama and Joe Biden will work to ensure intellectual property is protected in foreign markets, and promote greater cooperation on international standards that allow our technologies to compete everywhere.”

In his first mention of IP at home Barack Obama says that the USA needs to update and reform its “copyright and patent systems to promote civic discourse, innovation and investment while ensuring that intellectual property owners are fairly treated.” Now I have no idea of what he can possibly be getting at.   Congress passed The Digital Millennium Copyright Act which was a pretty comprehensive overhaul of US copyright law implementing large parts of the WIPO Copyright Treaty and providing a model for the EC’s directive 2001/29/EC so how much updating and reform can American copyright law require? Patents may be a different matter but I seem to remember that there has been a patent reform bill in Congress for quite a long time.  The words “ensuring that intellectual property owners are fairly treated” ring alarm bells.   When politicians say that sort of thing of an interest group it usually means the opposite. 

Most interesting of all is what Obama says about patent reform:

“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.”

“Opening up the patent process to citizen review” caught my eye because I have just signed up to New York Law School’s Peer-to-patent Project. Peer-to-patent enables members of the public (including foreigners like me) to review patent applications and make submissions on them to the US Patent and Trademark Office. The idea is to raise patent quality and apparently the USPTO is involved.   I am not sure that we need peer-to-patent here as our applications are published. We don’t have submarine patents here except for submarines.   But in America where things are done differently peer-to-peer seems to satisfy a crying need.

So returning to the point, will Obama be good for creative, enterprising and innovative people. Probably too early to say but let’s give him the benefit of the doubt.


About Jane Lambert

I am a barrister specializing in intellectual property, technology, media and entertainment and competition law. I specialize in helping SME (small and medium enterprises) protect and exploit their investment in brands, design, technology and the arts. SME require intellectual property (legal protection for their intellectual assets) at least as much as big business but their limited means restrict the way they can use it. Looking after such clients wisely requires skills and knowledge which have taken me years to learn.
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