What will be the effect of a Barack Obama or John McCain presidency on the US patent regime? Very little, regrets Greg Aharonian of patnews. He explains why

With all eyes on the American presidential candidates as they tour the country in search of votes, the world’s patent community is waiting with baited breath to hear their views on the future of innovation and patent administration. But what impact are the candidates likely to have on the US Patent and Trademark Office (USPTO) as their policies currently stand? Not much, is the cynical answer. In the last 16 years, we have seen eight years of Democrat administration (1993-2000) and at the USPTO (2001-2008). And in those 16 years, very little has changed. Issues of pendency and patent quality are still accelerating, as the office has become ever more mired in bureaucracy. A strong, new leadership could help conditions, but as of yet, little has been said to support the optimism that a change of administration should bring.

The McCain approach
John McCain’s opinions on patent reform are pretty simple: he doesn’t seem to have any. Of the speeches that can be read on his presidential website (www.johnmccain.com), he has referenced patents only once – at a visit in April 2008 to Miami Children’s Hospital, at which he said: ‘Pharmaceutical companies must worry less about squeezing additional profits from old medicines by copying the last successful drug and insisting on additional patent protections, and focus more on new and innovative medicine.

In a digital conference on 29 May this year, he was directly challenged on the subject by Walt Mossberg of the Wall Street Journal. One blogger wrote: ‘When Mossberg said that many people think that US patent law is allowing companies to patent existing ideas, and asked McCain if that was a problem on his radar, McCain gave such a firm “No!” that it prompted audience laughter. “I want to focus on the big things,” he said.’ That does not sound like a candidate who is planning any serious patent reform; in fact, it doesn’t sound like a man who understands the economics of innovation at all.

The Obama effect
Unlike McCain, Barack Obama does have a position statement on patent reform. And, unlike McCain, Democrat Obama would be working with a Democrat Congress, meaning that he would also have a better chance of implementing real reform. ‘A system that produces timely, high quality patents is essential for global competitiveness in the twenty-first century. By improving predictability and clarity in our patent system, we will help foster an environment that encourages innovation,’ he writes on his website (www.barackobama.com/issues/technology).

But then, we are only in the run-up to the elections. Understandably, the electorate is more interested in the candidates’ policies on Iraq, or what they’re planning to do to reverse the current state of the economy.

It’s not anything new, but it’s a start. But then he goes on to say that ‘giving the USPTO 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’. A drag on innovation it is, but peer review is a suboptimal logistic solution to the problem of prior art handling at the patent office. It is also a suggestion that most experts in prior art handling dismiss. ‘With better informational resources,’ he goes on to say, ‘the USPTO 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.’ Yes, they do need better resources, but it’s not prior art that they need. They need to stiffen Rule 56 so that applicants are required to conduct more searching before they are allowed to file and they need to supply examiners with better internal resources and tools to conduct better searches.

‘As president, Barack Obama will ensure that our patent laws protect legitimate rights while not stifling innovation and collaboration,’ the text concludes. But, we all know, that ideal is easier said than done. There are some serious issues that must first be addressed; for example, the need to heal examiner-management relations and the need to introduce independent reviews of the office’s performance in areas of quality and timeliness. But then, we are only in the run-up to the elections. Understandably, the electorate is more interested in the candidates’ policies on Iraq, or what they’re planning to do to reverse the current state of the economy. Patent reform has never been an issue on which to run or win an election, so it is likely that we will have to wait until one of them is in power to see a genuine, serious platform for reform emerge.

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