I’m writing this article on election day, but I doubt anything will be called by the time it goes up. Regardless, the premise of the article will remain relevant for years to come. Not that intellectual property law is in a bad place; actually, according to one of our partners, US intellectual property law continues to grow at a great pace. But, not everything is perfect, and there is always room for improvement. So, what should the next president do for intellectual property, whoever may win?
Donald Trump has been president for four years, and to be honest, not much has changed in IP law as a result of the presidency. Some fields, such as software, received clarifications from the Patent Office, making patent prosecution more predictable. However, no major changes in IP law occurred since Barack Obama signed the Defend Trade Secrets Act in 2016.
What Can the President Do for Intellectual Property Laws?
A few relatively small changes to intellectual property laws would vastly benefit the country, regardless of who signs the law. Both candidates outwardly believe in strong IP laws in the United States to promote and protect US business interests. As such, one helpful change would be a revision to the patent laws to clarify the protectability of software. The Patent Office tries to provide clarifications based on court decisions; however, Congress really must act to carve out specific software-based patent protection.
Next, the next president should move to update US copyright laws to bring the code into the 21st century. Often, as an IP attorney, I see technology dramatically outpacing changes in the law. For example, the concept of a work made for hire is extremely well known within copyright law. But, did you know that software may not qualify as a work made for hire? Congress must update the copyright laws to capture newer technologies.
Under the Obama administration, Congress passed two major IP updates; one to the patent laws, and one to trade secret laws. The next administration must continue the work from 2013 and 2016 and continue to update intellectual property laws.