Special Feature: Intellectual Property Policy and the Presidential Election - A Discussion on its Future by Leading Policy Advisors to the Candidates

By Daniel Sherwinter and Lucky Vidmar

On Thursday, Aug. 28, 2008, the last day of the Democratic National Convention in Denver, surrogates from both the McCain and Obama campaigns engaged in a lively debate about intellectual property policy issues. The event, hosted by the Intellectual Property Law Section of the Colorado Bar Association and the Silicon Flatirons Center for Law, Technology, and Entrepreneurship, drew a capacity crowd of over 200 attendees, all excited to participate in the first opportunity during the 2008 election cycle to hear representatives from both presidential campaigns discuss issues including patent reform, antitrust enforcement, length of copyright terms and judicial appointments.

Representing the Obama campaign were Arti Rai, Elvin R. Latty Professor of Law at Duke Law School, and Christopher Sprigman, Professor of Law at University of Virginia School of Law. Representing the McCain campaign were Ed Reines, senior partner at the law firm of Weil, Gotshal, and Manges, immediate past president of the Federal Circuit Bar Association, and a member of Senator McCain’s Justice Advisory Committee, and Ray Gifford, partner at the law firm of Kamlet, Shepherd & Reichert. The debate was moderated by Jonathan Alter, an award-winning columnist, television analyst, author, and Senior Editor for Newsweek.

The panelists agreed on some of the broader policy issues, such as the need for a more streamlined Patent and Trademark Office. However, lively disagreements emerged when discussion turned to the details. The following is a brief recap the discussion:

• Judicial appointments - specifically to the Federal Circuit (CAFC). The panelists agreed that appointments would be taken seriously by each candidate. The Obama surrogates suggested that there had been a lack of presidential involvement in appointments to the CAFC in the past, but that Obama would be unlikely to delegate these important appointments. The McCain surrogates noted that McCain would likely treat appointments to the CAFC as he would any other appointment -- with an eye toward real-world experience and competence.
• Patentable subject matter. The discussion heated up on this issue particularly when Ed Reines of the McCain camp noted that McCain would "support our innovation economy critically," and accused Obama of a general lack of foresight or success in his policies. Reines pointed to Obama’s sponsorship of a law excluding some tax-related patents, which saw a quick death in the Senate, and to Obama’s support of so-called "gold plated" patents (an idea stemming largely from an article written by Professor Mark Lemley). The Obama surrogates countered, defending "gold plated" patents and pointing to other specific ideas supported by Obama on his website.
• Patent reform. Moderator Jonathan Alter asked the surrogates, "With legislative reforms largely coming from a joint effort by Senators Leahy (an Obama supporter) and Hatch (a McCain supporter), is there really any difference which candidate wins?" Beneath heaps of partisan rhetoric, the camps seemed largely to be in agreement. Ed Reines stated that McCain would be able to affect "sensible, balanced patent reform" with his demonstrated abilities to reach across the aisle. Chris Sprigman of the Obama camp responded, stating that "respectful, attentive listening" is what the Obama campaign is about. He also said that Obama has the "analytical mind of a law professor, hopefully with better political skills than the average law professor." Ultimately, the panelists all agreed that patent litigation is expensive and prone to abuse, that various types of reform are needed, and that the details of those reforms are difficult to assign along party lines.
• Patent and Trademark Office authority and the recent Tafas case. Both camps highlighted the importance of providing adequate resources and authority to the Patent and Trademark Office. Arti Rai of the Obama campaign stated her opinion that, had there been more competency at the Patent and Trademark Office, the rules at issue in Tafas would have never been proposed.
• Copyright term extension. The surrogates largely agreed that the length of copyright term should reflect the values inherent in the copyright system, i.e., to provide incentives for creativity and innovation. To that end, both camps agreed that not every copyrighted work should have the same term. The Obama campaign would differentiate the copyright terms by the amount of creativity inherent in them (i.e., copyright on a movie would last longer than for the label on a shampoo bottle). On the other hand, the McCain camp would give longer copyright term to works of greater value, both to the copyright owner and to society.
• Digital Millennium Copyright Act (DMCA). The campaigns agreed that the DMCA has been effective in reducing piracy, especially with respect to the "notice and takedown" provision.
• Antitrust. This subject drew the sharpest disagreements. The two camps differed on the effectiveness of the current DOJ Antitrust Division. More to the ideological core, however, the Obama camp defined antitrust as another "engine of innovation" on par with IP law. The McCain surrogates strongly disagreed, calling antitrust a "servant of innovation" supporting the private sector as the true "engine of innovation."

[For a video replay of the event, visit: IP Policy and the Presidential Debate Video Replay]