The impact of the new Trump administration on the U.S. patent system (Second part)

JSTORIES ー Current headlines from America are teeming with information of abrupt coverage modifications, initiatives and drastic personnel cuts to quite a lot of administrative businesses in America.This text will look at the predominant initiatives, modifications and cuts with respect to the U.S. Patent System to count on from the brand new Trump Administration within the coming months and years.

On January 20, 2025, the Trump Administration issued an Govt Order directing that each one U.S Authorities workers should return to work (fairly than work remotely) and a separate Govt Order prohibiting the hiring of recent workers besides in very particular circumstances.   The impression of the again to work Govt Order will differ based mostly on whether or not a specific USPTO worker is roofed by a Collective Bargaining Settlement.  The standing of three kinds of USPTO workers is summarized beneath in Fig. 1.

With respect to the hiring freeze govt order, earlier than President Trump was sworn into workplace, the USPTO had despatched roughly 600 supply letters to rent extra examiners in an try to cut back the unexamined patent utility backlog. In response to the hiring freeze govt order, the UPSTO rescinded the entire supply letters.  

Individually, the impression of the again to work govt order depends upon the class of the USPTO worker.  As proven in Determine 1, on the prosecution aspect of the USPTO, abnormal examiners (Case 1) are coated by a Collective Bargaining Settlement, subsequently, they will proceed to work remotely regardless of the Trump Administration’s return to work order.  Nonetheless, Supervisory Examiners (Case 2) will not be coated by a Collective Bargaining Settlement, subsequently they need to return to the workplace.  The priority amongst many commentators is that many of those Supervisory Examiners stay removed from both the USPTO or one of many USPTO’s satellite tv for pc places of work, subsequently, they could be unwilling to maneuver and subsequently could resign.  Clearly, this may exacerbate the USPTO’s backlog of unexamined patent functions and would have a detrimental impression on patent high quality.  As of the time this text is revealed, it’s unclear what number of Supervisory Examiners will depart the USPTO on account of the Trump Administration’s again to work order. 

On the PTAB aspect of the USPTO,  Administrative Patent Judges resolve, inter alia, inter partes opinions.  Inter partes opinions have constantly been one of many strongest weapons an accused infringer can convey to bear on a patent of questionable validity asserted in a U.S. District Court docket or within the Worldwide Commerce Fee.  Nonetheless, with out a collective bargaining settlement, Administrative Patent Judges can not work remotely in keeping with the Trump Administration’s Govt Order.  Due to this fact, the ranks of the Administrative Patent Judges might be severely depleted on account of the Trump Administration’s again to work order.  Simply as with Supervisory Examiners, it’s unclear presently what number of Administrative Patent Judges have left or will depart the USPTO in response to the again to work order.  

Determine 2 beneath supplies a abstract of what the impression of the Trump Administration’s hiring freeze and no distant work govt orders will probably be on the USPTO.

To summarize, for these with patent functions pending within the USPTO, count on longer delays, decrease patent high quality (with fewer supervisory examiners) and a rise within the patent backlog.   On the PTAB aspect, with fewer Administrative Patent Judges, count on longer appeals timelines, count on that inter partes opinions will take longer to finish and that the USPTO could grant fewer requests to institute inter partes opinions for lack of ample personnel. 

On the legislative aspect, there are a variety of payments pending in Congress, a few of which might have a considerable impression on the U.S. Patent System if they’re handed.  The comply with is a abstract of the content material of every of those payments:

1. PREVAIL:  Limits the power to convey a number of patent validity challenges in separate  venues and creates a standing requirement on the PTAB; 
2. IDEA:  Collects demographic information about inventors with the objective of encouraging extra ladies, minorities and veterans to develop into inventors; 
3. PERA:  Clarifies what’s patentable topic below the Patent Act’s Part 101 – notably for the classes of summary concepts and pure phenomena; and
4. RESTORE:  Creates a rebuttable presumption {that a} patentee is entitled to an injunction upon a discovering of infringement (reverses the U.S. Supreme Court docket’s eBay v. MercExhange case).

In my opinion, the RESTORE Act, if handed would have the most important impression on the U.S. Patent System by giving patent holders the power to enjoin infringers no matter whether or not they practiced the patent or not.  Most if not the entire huge tech corporations will strongly oppose passage of the RESTORE Act.  Of their view, this may give an excessive amount of leverage to non-practicing entities in patent infringement actions.  Due to this fact, if Congress severely considers passing the RESTORE Act, I count on that the massive tech corporations will foyer strenuously in opposition to its passage.  My estimate of the probability that every of those payments will probably be handed (i.e., enacted) by Congress is summarized beneath in Determine 3.

In conclusion, the U.S. Patent System faces some severe challenges throughout the second Trump Administration.   For the USPTO, retaining skilled personnel and lowering the unexamined patent utility backlog will probably be very tough.  On the legislative aspect, the PTAB and patentable subject material reform (the PREVAIL and PERA payments) must enacted by Congress, however whether or not there’s ample assist for both of those payments stays to be seen.  

Eric Kirsch designed electronics and wrote software program at GE Area Division earlier than attending regulation college on the College of Pittsburgh. Eric then grew to become an Assistant District Legal professional for the Metropolis of Philadelphia, and subsequently grew to become a patent litigator for an IP boutique regulation agency in New York.  Eric was employed by Nikon as Chief IP Counsel in 2010 – a place he held for 10 years.  Just lately, Eric joined Rimon as a accomplice within the agency’s Tokyo Workplace. 

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