“To expect the unexpected,” Oscar Wilde wrote in his 1895 play An Ideal Husband, “shows a thoroughly modern intellect.” If so, then when it comes to predicting developments in the second Trump administration in general, and its intellectual property (IP) policies in particular, we will need to be especially modern.
Days after President-Elect Trump announced numerous conventional cabinet appointments, and several highly idiosyncratic ones, we can be forgiven for throwing our hands up rather than trying to forecast how his new administration will handle the most pressing IP issues. But we can certainly try, based on the limited information we have before us.
1. Legislative patent reform
As readers of this space well know, Congress has tried for the past half-decade to enact meaningful legislative reform in the patent sphere. And as we saw last month, those efforts once again came up short, as the recently reintroduced, bipartisan, bicameral Patent Eligibility Restoration Act of 2023 (PERA) and the Promoting and Respecting Economically Vital American Innovation Leadership Act (PREVAIL) Act of 2023 were shelved. Both measures would empower obtaining and asserting patents against potential infringers.
But immediately following Trump’s re-election, Sens. Chris Coons (D-DE) and Thom Tillis (R-NC), respectively, the chairman and ranking member of the Senate Judiciary Subcommittee on Intellectual Property, announced that the markup had been rescheduled for November 14. The measure is unlikely to proceed to full House and Senate votes before President Biden leaves office, but it may well be positioned to receive incoming President Trump’s signature.
Would he sign it? Trump’s first term reflected mixed progress toward patent reform, and the president has allies in the business community on all sides of these issues. I’d call it a toss-up.
2. Artificial intelligence (AI) regulation and IP
As AI continues to advance, the United States Patent and Trademark Office (USPTO) has come under increasing pressure to update and revise its guidance on how machines are remaking the patent landscape, a process that will continue into the new administration with, presumably, a new director of the USPTO.
For instance, we have repeatedly detailed in this space the saga of DABUS, the computer developed by inventor Stephen Thaler that Thaler claims is responsible for several inventions. As of now, US IP law prevents non-human entities such as AI from being named as inventors in patent applications.
Will this approach change under the new Trump administration? While the incoming president has powerful allies on various sides of the AI debate, including both arch negative autonomist Elon Musk and prominent positive autonomist Marc Andreesen, I will hazard a guess that his pick to head the USPTO will relax the human-inventor-only requirement.
3. Pharmaceutical protection
The outgoing Biden administration has proven uniquely disappointing with respect to protecting life-saving treatments and vaccines.
Most conspicuously, it acceded to a World Intellectual Property Organization movement to override patent protection for COVID vaccines, severely undermining innovation. And the outgoing administration repeatedly threatened to invoke “march-in” rights under the 1983 Bayh-Dole Act in order to unilaterally unwind patent licensing agreements with companies that have developed critical medicines.
The incoming administration, by contrast, is almost certain to abandon these ill-advised efforts. In the words of Andrei Iancu, my former law partner who also served as the USPTO director during Trump’s first term, the White House beginning on January 20 will “focus once again on policies that simplify the patent system and ensure it is aimed at turbo-charging innovation.” Here’s hoping that, pace Wilde, at least some things can be expected besides the unexpected.
Learn more: Legislative Patent Reform Efforts Come Up Short—Yet Again | Scarlett Johansson’s Spat with OpenAI Reveals Deeper Conflicts over Technology | Yet Another AI Copyright Suit Against OpenAI Underscores the Autonomy-Automaton Divide | Patent Reform in 2019: A Conversation with Rep. Steve Stivers (R-OH)