By: Jeffrey G. Sheldon, Esq.

trump_intellectual_propertyWe do not like to speculate.  But we are being asked what effect Trump will have on intellectual property rights.  So here is what we (and others) are predicting.

  1. “Trump” is a brand used for casinos, hotels, and developments. So if there is any effect by Trump on the trademark system we expect it to be positive.
  2. Vice President elect Pence has a record of being pro-patents and intellectual property.  So again, that is a positive for those with intellectual property.
  3. Trump is expected to crack down on foreign countries that steal US intellectual property and do not adequately protect the intellectual property of US companies.  For companies with foreign sales who have been reluctant to protect rights overseas due to government condoned infringement and lack of enforcement rights, it is time to reconsider that approach.  And maybe foreigners will stop stealing trade secrets.
  4. A patent reform act that has been winding its way through Congress, which has many beneficial provisions, will get put on the back burner. Congress will be busy with confirming a Supreme Court Justice, Obamacare, immigration, Isis, and tax reform. That is good news for non-practicing entities (NPE’s) and the Eastern District of Texas, where NPE’s like to bring suit. The Eastern District of Texas is well known as being favorable to NPE’s, and giving them good results has been good for the local economy and local attorneys. Congress would like to make life more difficult for non-practicing entities and even out where patent lawsuits are brought.
  5. Tax reform, such as reducing the capital gains tax, will increase the value of intellectual property that can be sold under capital gains treatment.  So consider more patents (after consulting with your accountant and patent attorney).
  6. It is expected Trump will nominate a Supreme Court justice who is pro-business. It is doubtful this will have any effect on Supreme Court decisions relating to intellectual property.  Most important decisions have been unanimous or close to unanimous and do not appear to follow liberal-conservative lines. (As an aside, it is amazing how such smart people can so totally mess up the concept of patentable subject matter.  Wish we had a patent attorney on the Supreme Court).

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