How will his administration impact the patent law and protection for inventors?
“Given Howard Lutnick’s experience in losing patents under the Alice standard, perhaps we will see the Commerce department encourage Congress to move forward on patent reform.”
Intellectual property (IP) laws, including those governing patents, are fundamental to protecting the rights of inventors and encouraging innovation. Over the years, U.S. Administrations have made a variety of changes to patent laws, whether through direct legislation, executive action, or influencing judicial interpretations of IP statutes. We can predict the impact of this latest seismic shift under a Trump administration by understanding the trends in patent law. Each administration has its own priorities. We can expect some changes with the likely appointment of Howard Lutnick, a prolific patent plaintiff and inventor, as Secretary of Commerce. The selection of patent court judge, the approach to litigation, and the impact of trade policies are all factors that influence the environment for patent owners. The Trump Administration’s Impact on IP and Patents
The Trump Administration was a hands-off administration in some areas, while pushing for reforms in other areas. Here are a few key ways the new Trump policies might impact patent protection:
Patent Litigation Reform
Under the original Trump Administration, there was ongoing concern among patent holders regarding “patent trolls.” These are defined by some as companies or individuals who acquire patents not to produce goods or services, but to extract settlements from legitimate businesses. The Trump Administration supported policies that would curb abusive patent litigation practices. However, reforms were sought to make it more difficult for these entities to sue for questionable patents. This could have been beneficial to patent holders seeking to avoid frivolous lawsuits, but also left open questions about how patent holders would be able to protect their IP from other types of infringement.
Innovation and Trade Policy
The Trump Administration’s “America First” trade policies influenced how U.S. companies viewed IP rights on a global scale. There was a push for tighter protection of U.S. Patents internationally, especially in relation to countries such as China, who had been criticized by the IP enforcement community for their weak IP enforcement. While this benefited patent holders seeking global protection, it also signaled a more aggressive stance on IP, potentially leading to trade disputes or changes in international agreements, such as those under the World Trade Organization (WTO) and the World Intellectual Property Organization (WIPO).
Changes in Patent Eligibility
In recent years, courts and the U.S. Patent and Trademark Office (USPTO) have focused on the issue of patent eligibility, particularly concerning abstract ideas and inventions related to software and business methods. The Trump Administration may have influenced patent eligibility standards through its influence on the judicial systems, including the appointment of judges to the U.S. Court of Appeals Federal Circuit. The administration, for example, supported a judicial approach that was more skeptical about granting patents to certain types of software and abstract innovations. This had the potential to restrict patent holders in specific tech industries from securing broad patents on emerging technologies.
USPTO Leadership and Patent Examination
The Trump Administration appointed several key officials to leadership positions within the USPTO, including Director Andrei Iancu, who emphasized the need to enhance patent quality and reduce the backlog of patent applications. Some critics claimed that these efforts to streamline patent prosecution could result in more stringent requirements for patents or make it harder for smaller inventors to obtain patents. Patent holders needed to be vigilant about any shifts in the examination process that could impact their ability to protect their innovations.
Potential Future Impact
As administrations change, so too can the political environment that surrounds patent law. This new Trump 2.0 Administration may reverse or build on some of the policies from the Trump era. A Secretary of Commerce with a good understanding of patents will be beneficial to the patent system. The Commerce department may encourage Congress to advance patent reform, which includes both the PREVAIL act and PERA act, given Howard Lutnick’s experience of losing patents due to the Alice standard. Time will tell but this author is cautiously optimistic about the future.
Perhaps more importantly are the effects of what President Trump has already done with the hiring freeze, return to office and federal worker buyout policies. While exemptions for return to office seem likely for USPTO examiners, if they’re not guaranteed for PTAB judges, and/or if they and senior examiners take advantage of the buyout option, we could see an exodus of both, which will further increase application backlogs and complicate post grant proceedings.
Current patent holders and those seeking patents should continue to monitor changes in IP law and the government’s stance on patent enforcement, especially as they pertain to evolving technology and international IP agreements.
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Author: dikasujud
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William P. Ramey-III
William P. Ramey III, a founding partner at Ramey, LLP, is a lawyer with an international practice based in Houston, Texas. His practice focuses on obtaining,
