By Kevin E. Noonan —

Now that the dramatic change in the political climate that is the election of Donald Trump as President has had time to settle, it may be fruitful to consider whether the election provides opportunities for technology-based industries to convince the President-elect to adopt policies that can work to their advantage.

One group has already taken the initiative:  the Internet Association (a 40-member group that includes Google, Amazon, eBay, Dropbox, Facebook, Groupon, Intuit, Monster, Netflix, Paypal, Reddit, Spotify, Twitter, Yahoo, and Yelp) has written a letter to the President-elect voicing their concerns.  Specifically directed to Internet industries and their concerns, but which also include the benefits to the broader economy from increased connectivity both nationally and globally.  The group lays claim to 6% of the economy, equivalent to $1 trillion in GDP (2014) and $8 trillion exchanged through global e-commerce.  These benefits stem, according to the Association's letter, from "an open architecture that lowers entry barriers, fosters innovation, and empowers choice," representing "the best of American innovation, freedom and ingenuity."

Following these general comments, the letter appends a list described as a "roadmap" for policies that have fostered (and purportedly will foster) the Internet and "ensure its continued success and ability to create jobs throughout our economy."  These include intermediary liability laws (that limit internet providers' liability for content; copyright exceptions (fair use, compulsory licenses, and exhaustion principles); "data-driven innovation" policies that are concerned with privacy and data security only insofar as internet activities lead to actual harm and not merely supposed harm from data collection per se; and more fluid digital trading policies).

It is with regard to patents (called patent "reform") that the Association urges policies that may be preferentially beneficial to their industries but not to the biotechnology and pharmaceutical industries.  These include favoring "critical patent subject matter eligibility standards," specifically the test enunciated under Alice v. CLS Bank, on the grounds that the patent system should "focus[] on real advances in technology rather than broad, vague business methods and abstract ideas that fuel patent troll litigation."  "Calls to weaken the Alice decision or Section 101 are misguided and unnecessary as the courts clarify software patentability," which whether true or not give short shrift to the disarray imposed by Supreme Court (Mayo, Myriad) and Federal Circuit (Sequenom, GTG v. Meriel) decisions.  The letter also urges the President-elect to "uphold vigorous post-grant review programs," that provide "small inventors and productive businesses with a meaningful tool to ward off the low quality patents that fuel patent troll litigation."  Again, true or not, this advocacy ignores the deleterious effects of continuous attacks on granted U.S. patents with no hope of repose against serial (if not perpetual) challenge.

The demographics of the Trump campaign may provide an opportunity for other voices, specifically biotech and pharma company voices, to be heard.  At least publicly, the high-tech community in general and Silicon Valley companies specifically were not particular supporters of Mr. Trump's campaign.  In addition, the pharmaceutical industry is traditionally a section of the business community favored by Republican administrations.  Thus, Republican control of Congress and a Trump administration may result in a government more likely to understand the realities of drug and diagnostic method development and the importance of patents in fostering innovation in that sector.  The circumstances suggest that it may be wise for leaders in these industries, and their trade and professional groups, to begin to consider how best to bring their concerns to Congress and most particularly to the President-elect, while he is deciding what policies to pursue in the first two years of his administration (before the midterm elections may change the Congressional calculus).  Mr. Trump campaigned on the theme that he understood business as a successful businessman and thus he may be receptive to such proposals.  And perhaps the best approach might be to take advantage of his belief that the policies of the current administration, both domestic and abroad, have led to a lack of competitiveness with our trading partners and competitors.  A later post will explore the differences in patent-eligibility (and thus patenting) and natural products and diagnostic methods in other countries, but getting Mr. Trump's attention to these issues may be as simple as letting him know that "China is winning" in light of some of the very policies (such as subject matter eligibility) touted by the Internet Association in their letter.