Tag:intellectual property-intellectual property dispute resolution
It is widely expected that under a second Trump administration the United States government will intensify its trade war with China in the forms of increased tariffs and other obstacles to international trade. Perhaps not as well appreciated is the possible impact on U.S. policy in the field of intellectual property. Specifically, a stronger patent system under the new administration could make the U.S. an attractive forum for Chinese companies to enforce their intellectual property rights against their competitors.
The first Trump administration (2017-2020) was marked by a dramatic shift in patent policy as compared to the Obama administration (2009-2016). President Obama’s choice as Director of the U.S. Patent and Trademark Office (USPTO) was Michelle Lee, who was previously Head of Patents and Patent Strategy at Google. Under Ms. Lee’s leadership, the USPTO adopted policies that were widely perceived to be favorable to companies, such as Google, that are often accused of infringing others’ intellectual property rights. For example, during that period the Patent Trial and Appeal Board (PTAB) acquired the reputation of being a “death squad” for patents, due to the extremely high rate of invalidation in Inter Partes Review (IPR) proceedings.
When President Trump took office in 2017, he nominated Andrei Iancu as director of the USPTO. Mr. Iancu was previously a patent litigator and Managing Partner of Irell & Manella LLP, and steered USPTO policy decidedly in favor of patent owners. For example, the PTAB started denying IPR requests under the so-called General Plastic and Fintiv doctrines. The trend reversed again in 2022, when President Biden nominated Kathi Vidal to the leadership of the USPTO. Like Mr. Iancu, Ms. Vidal was previously a patent litigator and Managing Partner of Winston & Strawn LLP’s Silicon Valley office. However, she implemented policies opposite to those of the previous administration, such as reining in the Fintiv doctrine and even personally reviewing PTAB decisions that favored patent owners.
While the intellectual property policies of the second Trump administration are not entirely clear, it is expected that they will follow the general trend of the last few administrations, with a return to stronger patent rights. This has the potential for changing the landscape for Chinese companies operating in the U.S. On one hand, the U.S. is expected to become more adversarial toward China, with the imposition of higher tariffs and the exclusion of Chinese companies from the U.S. market under national security justifications. On the other hand, Chinese companies may be able to assert their patent rights more forcefully in the U.S., against both Chinese competitors and U.S. competitors. For example, a Chinese company might elect to exit the U.S. market due to higher tariffs and unfavorable environment, but it could also use its intellectual property to either exclude its competitors from the U.S. market or demand payment of royalties on U.S. sales.
Two additional factors should be kept in mind. First, while intellectual property policy can change dramatically from one administration to the next, the trade policies of Republican and Democratic administrations are quite similar, as President Biden adopted many of the tariffs introduced by President Trump. Accordingly, changes in trade policy might not be as dramatic as they were in the first Trump administration. Second, intellectual property policy is not the highest priority of either party, and the appointment of the USPTO Director often takes place well after a new President is inaugurated. For example, Mr. Iancu took office 13 months after President Trump’s inauguration, and Ms. Vidal was sworn in 15 months after President Biden took office. As such, any changes would likely play out beginning in 2026. We will be keeping track of such developments and publish updates as they become available.
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