What Can IP Practitioners Expect from Trump 2.0?

President-elect Donald Trump did not make intellectual property (IP) policy a major focus of his 2024 election campaign, but his policy priorities are nearly certain to have a profound effect on the IP landscape when he takes office in January. From leadership changes at the U.S. Patent and Trademark Office (USPTO) to shifts in biopharmaceutical patent policy to regulation of rapidly evolving fields like artificial intelligence (AI), here’s what the IP community can expect from a second Trump presidency.

A New Director at the USPTO?

The director of the USPTO has enormous influence on IP policy, and Trump’s appointee for that role is the most direct way he can impact it. President Joe Biden’s appointee, Kathi Vidal, was instrumental in establishing guidelines for director review and providing increased clarity surrounding discretionary denials at the Patent Trial and Appeal Board (PTAB), among other accomplishments. Vidal announced her resignation on Nov. 12, tapping Deputy Director Derrick Brent to assume her duties when she departs the office in December. While Trump has not yet floated a candidate for Vidal’s replacement, we can glean clues about the type of director he might choose from his first-term appointee, Andrei Iancu.
Iancu generally focused on reducing regulations, enhancing operational efficiency, implementing pro-inventor policies, and relaxing Section 101 requirements. He wanted to increase the number of patents being issued and wanted issued patents to be of high quality. Early in his tenure, the PTAB replaced the "broadest reasonable interpretation” standard for interpreting patent claims with the Phillips standard, aligning the board’s claim construction standard with the district courts’ standard. The Motion to Amend Pilot Program, launched in 2019, allowed patent owners an easier pathway to preserve their claims in America Invents Act (AIA) proceedings. Consistent with Iancu’s belief that it was appropriate for the PTAB to exercise more discretion when considering whether to institute AIA proceedings, the PTAB’s Precedential Opinion Panel issued several decisions that clarified the board’s authority in such matters during his tenure.
We can expect Trump’s second appointee for USPTO director to continue these policies, or at least proceed in a similar pro-patent owner vein. Trump generally disfavors government regulation of AI, so his USPTO director may relax Section 101 requirements in patent prosecution, making it easier for applicants to obtain patents on AI and other software-related innovations. At the PTAB, a Trump appointee likely will expand the board’s discretion to deny institution in AIA proceedings, largely reversing Vidal’s efforts to limit the practice. A Trump appointee likely will withdraw the USPTO’s pending rule on terminal disclaimer practice, but the fate of other pending rules is unclear.