Given the recent inauguration of our 45th president, I have found myself wondering about the incoming administration and how it will fare given the multitude of issues it must face. While large swaths of the population believe that President Trump will make good on his many campaign promises, many Americans harbor questions about the policies of the incoming president and how their lives will be affected. If the recent stock market trends are any indication, American business appears entirely optimistic (if not bullish) on President Trump’s anticipated economic policies given his extensive business background and overtures to create a more business-friendly regulatory and tax climate. Regardless of your politics, here are 3 issues that if addressed by the incoming president will truly help defend America’s IP engine and make it “great” again:
- Make Patent Eligibility Simple Again. Patent jurisprudence by the Supreme Court of the United States (SCOTUS) over the past few years has wreaked havoc on entire patent portfolios and added ambiguity (not certainty) to determining patent eligibility of software inventions. Most notably, the Alice v. CLS Bank decision threw patent eligibility of computer-related inventions into disarray, using Section 101 of the Patent Act in a way that many practitioners (including this author) strongly believe it was not designed. Although Federal Circuit caselaw has helped better define the application of Alice to computer-related inventions, it is apparent that SCOTUS will not retreat from its Section 101 jurisprudence anytime soon. If President Trump stands true to his pro-business, pro-growth promises, then it is time that he work with Congress to revise the Patent Act to address Section 101 deficiencies (perceived or otherwise) and bury the issues created by Alice so that America’s inventors can better protect and monetize their ideas.
- Make the Copyright Act Make Sense Again. Digital technologies for the dissemination and consumption of content are ever-evolving. Although efforts have been made to address the digitization of music and audiovisual content since the Copyright Act of 1976, the evolution of digital mobile technology platforms has made the sharing of such content far more fluid…and more at odds with the existing framework of the Copyright Act. For example, Aereo attempted to introduce a broadcast-to-mobile business model that attempted to skirt the cable re-transmission fees paid by cable and satellite television providers that was struck down by the courts – a situation that may have been avoided altogether with updated language clearly addressing mobile technologies within the Copyright Act. Further, the statutory damages model currently within the Copyright Act addressed unauthorized distribution with physical acts in mind (such as selling bootleg DVDs in a backdoor shop or copying LP albums onto cassette tapes…remember them?) Let’s be real – the framework is now a patchwork of updates that can be a challenge for lawyers to navigate and understand…let alone ordinary people. There are a number of updates necessary…and after 40 years, it’s high time that President Trump prod Congress to take action so the Copyright Act truly meets the 21st century.
- Make Cybersecurity a Priority…Not a Catchphrase. Although the above recommendations are important, none of them are as urgent as addressing cybersecurity. From the Yahoo breaches that jeopardized its purchase by Verizon to the proliferation of ransomware and IoT botnet DDoS attacks, the data security and data privacy of American citizens have never been under such withering attack. Although the appointment of Rudy Giuliani as the head of a cybersecurity advisory group for President Trump is encouraging, others have questioned Mr. Guiliani’s qualifications for such a role…including whether his website was itself hacked. Needless to say, America’s preparedness on the cybersecurity front is woefully lacking right now, and MUST be addressed. It’s good to see that the new administration is concerned about cybersecurity…but it will take more than an appointment and an advisory group to get America moving in the right direction here.
These are just some immediate recommendations, but you get the point – America has been a remarkable engine of intellectual property growth, and needs to maintain this position in the world economy. It’s about time that U.S. law catch-up with the technology growth curve. Hopefully, President Trump will make good on his promises…and take steps himself — along with Congress — to help “make America’s IP great again”.