Rami Olwan

All About CyberLaw, Copyright and Developing Countries

Obama Victory Draws Quick Reactions from IP, Tech Communities

The intellectual property community has been quick to begin the anticipation of a Barack Obama presidency in the United States following his election on Tuesday. Although the consensus appears to be that an Obama administration would not bring any monumental change in intellectual property-related policy, there are some items – such as internet neutrality and IP in trade agreements – that may change direction a bit.

“Historically, the difference between Republican-led IP policy and Democratic IP policy is not that significant,” said Ville Oksanen, vice chairman of Electronic Frontier Finland.

“Obama’s regime is more likely to take the feedback from civil society into consideration and similarly more sceptical towards the pure business interests presented by Big Pharma, etcetera,” he said. “In the end, much will depend on what kind of persons Obama chooses to his cabinet for the key positions pertaining IP policy and global trade.”

Andrew Updegrove, an attorney at technology law firm Gesmer Updegrove in Boston who runs the open-standards blog consortiuminfo.org, said administration changes have little effect on US technical standards policy, since this sector is largely driven by industry – not government.

But when it comes to international IP treaties, “this is where things could get more interesting,” he said, “with the Obama administration being possibly more willing to listen to a diversity of voices on matters such as open source – as are many other governments throughout the world.”

James Love of Knowledge Ecology International praised Obama and predicted a moderate policy approach. During Obama’s stint in the US Senate, KEI was “never able to get Obama to engage to protect developing countries from the broader consequences of US bullying on intellectual property protection for medicines,” he said.

But Shamnad Basheer, an IP law professor at National University of Juridical Sciences in India, said, “Given his focus on reducing healthcare costs and his lack of an extreme ‘free-trade’ vocabulary, he’s likely to be more partial to the use of compulsory licensing by developing countries to bring down their drug prices.”

Global Effect

Obama’s apparent willingness to listen to alternative voices around him will be a breath of fresh air to many around the world.

On trade, Alejandro Neyra at the Peruvian mission said he personally believes the Democratic Party in general is more sympathetic “to bring fresh air in the intellectual property system.”

Neyra said the United States has a chance to take a new approach to climate change and biodiversity, and could find a better balance in the relation between the IP system and the biological diversity provisions of international trade agreements.

And if Obama brings a more multilateral vision to global negotiations, Neyra said, “hopefully we will find a broader vision that goes from President Obama down to USTR [the US Trade Representative’s Office] and USPTO [US Patent and Trademark Office] negotiators that would allow to see the US showing real engagement in WTO and WIPO negotiations and regaining a leadership already lost.” Negotiations on IP policy are ongoing at the World Trade Organization and World Intellectual Property Organization.

Some also have previously suggested Obama may raise the US focus on labour and environmental aspects of trade. Obama and McCain had many similarities on IP and technology with some key differences (IPW, US Policy, 1 October 2008).

Developing countries and public interest groups could expect a more “discerning approach” from Obama, agreed Sisule Musungu, president of Geneva-based think-tank IQsensato and an IP law and policy expert.

“This means they should prepare for an administration you can talk to but one which expects an engagement in evidence-based and pragmatic debates about the future. The contest over the right way to govern knowledge and the role of IP will not end, the US may listen more but I think Obama will expect to be convinced on different options.”

Musungu noted that Obama’s election coincides with a number of other political changes that impact IP, including leadership change at WIPO and the World Health Organization’s global strategy for innovation and intellectual property such as impact neglected diseases.

Musungu said he hope that seeing all the success the internet and technology allowed Obama in his campaign’s organising and fundraising efforts, it will “teach him lasting lessons about democratic governance of knowledge, openness, collaboration and access.”

Patents, Copyright

Some say that without knowing who the next chief of the USPTO will be – Commissioner Jon Dudas is expected to leave in January when Obama takes office – it’s hard to gauge the future of patent reform. Obama has advocated such reform.

If substantive patent-reform legislation is passed, “there is no reason to expect that President Obama would not sign it into law. At least I know of no statements from his campaign that suggest any opposition to changing patent law,” said Steve Maebius, an intellectual property law partner with Foley & Lardner in Washington.

Obama has advocated the idea of a “gold-plated patent” that would result from a more rigorous examination procedure and less litigation – an idea some are critical of. But Maebius said the idea, in principle, is a good one.

“Of course, it remains to be seen exactly what kind of procedure might be proposed, and the details of the procedure would be critical to know before passing judgment on it,” he said.

The technology and movie industries are encouraged by Obama’s commitment to innovation and protecting copyrights and other IP, and cracking down on piracy, both here at home and abroad.

Information Technology Association of America President Phil Bond wrote a letter to Obama Wednesday, saying the president-elect has demonstrated “a clear appreciation for American innovation as a powerful force for addressing those challenges” facing the nation’s prosperity and security.

Consumer Electronics Association President Gary Shapiro applauded Obama for his “innovative digital campaign,” and for embracing technology. “The best way to move the economy forward is to support the companies creating jobs, increase product exports and open foreign markets,” he said. “We encourage the new administration to recognise the importance of free trade and to immediately call on Congress to pass the pending free trade agreements for Colombia, Panama and South Korea.”

Obama’s campaign made statements about the importance of IP protection in recent months. Motion Picture Association of America Chairman Dan Glickman noted that both major political parties in the United States “share a commitment to the intellectual property underpinnings of our modern information economy, and we appreciate and will continue to count on Senator McCain’s leadership on these issues, as well.”

“Movies are among our nation’s most important ambassadors. They also play a starring role in the US economy and the creation of American jobs,” Glickman added.

Oksanen, however, said Vice President-elect Joseph Biden’s Senate record “as a staunch supporter of Hollywood is rather worrisome.”

On public health, Pharmaceutical Research and Manufacturers of America (PhRMA) President Billy Tauzin said there are difficult challenges that need confronting.

“We will work with lawmakers on both sides of the aisle and will continue to support policies that encourage and strengthen innovation, improve patient access to medicines and expand healthcare coverage for all Americans,” Tauzin said.

The Biotechnology Industry Organization also hails Obama’s recognition of the role strong IP protection and high-quality patent system plays in global competitiveness. While BIO supports increasing access to medicines in developing countries, it is “deeply concerned” that the Democratic Party platform supports humanitarian licensing policies that allow get off-patent drugs developed with U.S. taxpayer money to those countries.

“The threat of non-enforcement or compulsory licensing will only serve to increase the already considerable risk for companies or others who might otherwise invest in these high-risk biotech endeavours, thus undermining such investment,” BIO said.

“To continue our nation’s global leadership in innovation and continue to fulfil the promise of biotechnology, we will work with President-elect Obama and the new Congress to ensure that we have the proper public policies that promote and facilitate continued innovation,” BIO President Jim Greenwood said Wednesday. “We must maintain strong protections for intellectual property – the key to an innovation economy – while enhancing patent quality and the objectivity, predictability, and transparency of the patent system.”



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