Patents in the Trump Administration: the 2-for-1 order
Everyone in the IP community wonders if President Donald Trump will create a new order in the IP field much the same way he has approached other areas of the government. We had our first glimpse recently when President Trump issued Executive Order No. 13,771, which requires a federal agency to identify two existing regulations to be repealed every time it “publicly proposes for notice and comment or otherwise promulgates a new regulation[.]” Federal agencies are also required to ensure the cost of new regulations is zero, unless “otherwise required by law or consistent with advice provided in writing by the Director of the Office of Management and Budget.” This order is intended to reduce federal regulations’ dampening effect on small businesses, entrepreneurs, and the American people in general.
While the Executive Order is not specifically aimed at the USPTO, it could have a significant impact on the USPTO, because the agency is still busily shaping, by regulations and other means, the relatively new, but rapidly growing America Invents Act invalidation proceedings under its charge. While no one can argue against the general benefits of reducing federal regulatory burden, the timing is not particularly good for the decision makers at the USPTO who have relied on rulemaking power as an important tool to shape the PTAB process. Furthermore, USPTO also needs rulemaking power to respond to court decisions applicable to PTAB.
The drive toward reducing new regulations’ costs to zero may also serve to shift the saved costs to the users of the PTAB process. As a new practice area that started in 2012, attorneys of different years of experiences are more or less on a level playing field before the PTAB–attorneys at all levels must learn the same set of rules. Some commentators have pointed out that the Executive Order will make PTAB practice less transparent if the new developments will no longer be encapsulated by rules but must be learned through practice and experience; parties to a PTAB proceeding will have to pay for more hours of research by a young attorney, or pay the higher hourly fees of experienced PTAB specialists.
The Executive Order is working its way through the judicial system. Several groups, including Public Citizen, the Natural Resources Defense Council and the Communications Workers of America, filed suit in U.S. District Court in Washington, challenging the President’s constitutional authority in issuing the order.