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.