What IP Policy Might Look Like in a Second Trump Administration
As the last few weeks have demonstrated, nothing is ever certain in politics -- certainly not this year. But if the polls hold, Donald Trump is likely to become America's 47th president -- and usher in sweeping policy changes. That's especially true when it comes to the intellectual property system that protects and incentivizes trillions of dollars worth of economic activity and job growth.
Of course, even if Donald Trump wins, nobody can predict with certainty what those changes will look like. As Chris LaCivita, co-lead of the Trump campaign, stated during a Republican National Convention meeting, "no one gets ahead of the boss on policy."
Still, based on his past positions and campaign themes and my experience working in a variety of senior positions at the United States Patent and Trademark Office -- including second-in-command during a previous presidential transition -- I offer some predictions about what IP policy might look like in a new Trump administration.
First, it is likely that a new Trump administration would reverse the Biden administration's attempts to seize intellectual property rights. The current White House infamously supported a World Trade Organization proposal to remove patent protections for COVID-19 treatments -- a move that empowered rival nations to obtain the underlying technology that American firms spent billions of dollars developing. And the administration is currently finalizing guidance on "march-in rights" that would allow federal agencies to tear up patent licensing agreements inked between research universities and private companies, and then relicense those patents to favored companies.
Both those policies enjoy strong support from progressives who believe it will lower drug prices. But they have sparked almost unanimous backlash from conservatives, centrists, and even many pragmatic liberals, who have repeatedly warned that casting aside patent protections will deter companies from investing in new technologies. Repudiating these measures on Day One would have broad appeal.
A Trump White House would also likely be skeptical of large technology companies' efforts to strengthen proceedings -- authorized by an Obama-era law called the AIA -- used to challenge patents, even if those patents have previously been tested in the courts. Virtually all companies sued for patent infringement rely on these proceedings to strengthen their litigation position. Patent owners complain that these challenges result in financially exhausting smaller rivals.
Of course, this doesn't mean that a new Trump administration will turn a deaf ear to reasonable tech voices. After all, the technology sector is a critically important part of our innovation economy, and patent policy must work for all sectors. However, a new Trump administration will likely be most sympathetic to the needs of start-ups, small businesses, and independent inventors.
In an effort to build bridges with Democrat senators who will be voting on Trump administration nominees, one can also envision the new administration supporting at least some aspects of bi-partisan intellectual property-reform efforts supported by Judiciary Committee members like Senators Chris Coons, Mazie Hirono, and Dick Durbin. These reforms already enjoy support from leading Republican policymakers like Senator Thom Tillis and many conservative organizations. Even certain large technology companies have signaled that they could live with some level of change, resulting in a potential quick legislative win for a new Trump administration.
From a personnel perspective, President Trump would likely avoid appointing officials who are so aligned with specific policy agendas that they might resist offering new ideas or abiding by his. This was one of the important personnel lessons from the first term. In that regard, the appointment of both Secretary Wilbur Ross (billionaire businessman and personal friend of the President's) as Secretary of Commerce and Andrei Iancu (leading patent litigator with broad-based experience in various industries) as Under Secretary of Commerce for Intellectual Property and Director of the USPTO was a success.
These two leaders, while openly celebrating patents and other intellectual property rights, were most concerned with balance and good governance. In that regard, they brought more stability to the intellectual property system, as well as helped ensure that the United States and its allies were well positioned to innovate and outcompete China. Among other problems that Ross and Iancu confronted were China's intellectual property theft as well as its production of counterfeit goods -- a stunning 80% of counterfeits are estimated to come from China. A new Trump administration will not let China steal from and sell dangerous fakes to Americans.
Finally -- and perhaps most importantly – President Trump would likely be influenced by themes that have driven his campaign: economic prosperity and support for the forgotten men and women of the middle class. Patents are enshrined in the Constitution. Inventions from the light bulb (Edison) to the airplane (Wright brothers) came from brilliant individual inventors and are part of celebrated American history. There are countless examples of where even a single patent has enabled a small business to compete with the largest, most entrenched incumbent. The promise of broad economic prosperity created by robust and effective patent policies will likely resonate with a new Trump administration.
The 2024 Republican platform, adopted just recently at the convention in Milwaukee, promises to "champion innovation" and "pave the way for future Economic Greatness by leading the World in Emerging Industries." A new Trump administration would understand that is not possible at scale without the protections of a strong, balanced, and stable intellectual property system.
Coke Morgan Stewart is an experienced intellectual property litigator and Senior Counsel at O'Melveny & Myers LLP. She served in a variety of senior roles in the United States Patent & Trademark Office (USPTO) during the Trump administration and as acting Deputy Under Secretary of Commerce for Intellectual Property and Deputy Director of the USPTO for the first eight months of the Biden administration.
