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How Politics May Impact IP Policy in the Next Four Years

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This article is part of our The Way We See It – The 2024 Election in Perspective series. Leading up to the November presidential and congressional elections, we will offer our thoughts and insights – not only on the political developments but also how the politics will shape the policy development in Congress. To get this bi-weekly communication directly to your inbox, subscribe to our Federal Policy updates <a href="https://e.bakerlaw.com/s/734eec79eb992ef4a0b212f8eef4ef62bd15c658" target="_blank" rel="noreferrer noopener">here</a>.

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Of all the issues pressing Congress and highlighted during the presidential campaigns, the issue of intellectual property (IP) rights is unlikely to be addressed during the first year following the upcoming presidential and congressional elections. Nonetheless, over time, there are a number of ways that IP policy may be impacted based on who wins the elections.

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Presidential Appointments and Legislative Influence

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Presidents impact IP policy most directly through their appointments to key positions, such as the director of the United States Patent and Trademark Office (USPTO). Presidents also can advocate for changes in the law that influence future legislation, as well as oversee and review agency rulemaking. While the initial focus of a new administration might not be on IP, significant shifts can occur based on the leadership and legislative priorities of Congress.

Potential Impact of Presidential Appointments

One of the most significant ways that the president impacts IP policy is via the appointment of officials who lead federal agencies. The director of the USPTO plays a crucial role in shaping IP policy. Democratic-appointed directors have typically focused on improving patent quality and expanding access to technology, with an eye toward social impact and fairness. Conversely, Republican-appointed directors have often emphasized strengthening domestic patent rights, fostering innovation and permitting greater enforcement of IP rights.

During the Trump administration, Director Andrei Iancu was appointed with a mandate to balance patent rights and foster innovation. His tenure saw efforts to ease the patent application process, support more favorable examination rules and reduce the misuse of the Patent Trial and Appeal Board (PTAB) process. These changes were directed at promoting patent quality while maintaining a robust IP environment.

President Joe Biden’s appointment of Kathi Vidal as USPTO director reflected a shift toward more pro-defense policies. Vidal, a former litigator, has made adjustments such as making discretionary denials of inter partes review (IPR) petitions more difficult and modifying policies to better accommodate patent challengers. If Vice President Kamala Harris, the Democratic candidate, is elected, it is likely that Vidal’s policies will remain in place, continuing a trend of balancing patent rights with broader access to and affordability of innovations, in the name of the public interest. This is especially true in the area of pharmaceuticals, where Harris has advocated for agency action to help lower the cost of medicine and to cause the government to exercise “march in” rights to force licensing of patents spawned from federally funded research.

On the other hand, if Donald Trump were to win the election, a Republican administration would likely seek to replace Vidal with someone aligned with Iancu’s perspectives. This could result in a renewed focus on strengthening domestic patent protections, aligning with Trump’s protectionist stance and broader goals to enhance the U.S. competitive position globally, particularly relative to China and other major players.

The passage of the America Invents Act (AIA) in September 2011 during President Barack Obama’s administration marked a significant change in U.S. IP policy. The AIA transitioned the U.S. from a first-to-invent system to a first-to-file system, aligning with the majority of other countries and introducing new administrative proceedings governed by the PTAB, such as IPRs and covered business method reviews. These changes aimed to enhance patent quality and provide a more efficient means to challenge dubious patents. While these reforms were designed to streamline the patent system, they have faced criticism for being overly harsh on previously granted patents and allowing patent challengers numerous opportunities to contest validity.

Recently, bipartisan support has emerged to address perceived weaknesses in U.S. patent rights, with proposed legislation like the Promoting and Respecting Economically Vital American Innovation Leadership (PREVAIL) Act and the Patent Eligibility Restoration Act (PERA) seeking to refine the patent process. Although neither PREVAIL nor PERA seems to have gained significant traction, these efforts reflect ongoing debates about the balance between robust patent protection and innovation facilitation. While both parties support innovation, Republicans may lean toward deregulation to enhance business freedom and strengthening of patent rights, whereas Democrats might focus on ensuring that innovation serves broader social goals and is accessible to more people, such as in the realm of pharmaceuticals and technology.&nbsp;

The next presidential administration will materially influence the trajectory of IP policy through key appointments and potential legislative actions. A Republican president is likely to prioritize strengthening patent protections, reducing regulatory burdens and enhancing enforcement measures, whereas a Democratic president may focus on equitable access, modernization and balancing IP rights with public interest.

Understanding these potential shifts will be crucial for businesses, innovators and legal professionals as they navigate the evolving IP landscape.

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