Project 2025 Has a Lot to Say About Patents
What the Party's Unofficial Platform Says
It is now a Presidential election year, which means a lot of policy proposals coming out of the major parties. Usually, the parties synthesize their views more broadly into a document called a Platform. It typically covers the main bases, such as broader economic concerns, major tentpole policies the party would pursue if it won, and geopolitical concerns. Patents are important for innovation, yet despite the bipartisan desire to expand productivity, it often gets short shrift. And it is a shame given that the patent office is one of America’s longest standing institutions.
Although the Republican Platform does not address patents, the Heritage Foundation’s Project 2025, which is the unofficial but influential Republican shadow platform prepared by former Trump aides, does have a lot to say in its section on the Commerce Department. This is particularly interesting given that there have been several important patent bills introduced this term, like PERA and PREVAIL. So perhaps it is unsurprising that the detailed version of the plan has a lot to say about how it would approach these issues, as well as other priorities. This week in Nonobvious, we’re going to go over what the Republicans may have planned for the patent system.
What Heritage Has Been Cooking
What Project 2025 makes clear is that conservatives have decided to make patents a priority.
The first main proposal is to review patent eligibility requirements and PTAB rules. While Project 2025 doesn’t endorse PREVAIL or PERA, this is nonetheless evidence that Thom Tillis (and perhaps former Trump Administration officials) have the ear of leading conservatives. While these proposals are bullet points without extreme detail, there are still some important indicators as to where the authors are thinking.
When it comes to patent eligibility, the authors (who explicitly mention Section 101) indicate that their focus is on enhancing American leadership in key technology areas. Three areas they highlight are quantum computing, 5G, and AI. Regular readers of Nonobvious will know that the 5G patent wars are very strong; nearly every week, our Weekly Novelties section includes a major 5G patent lawsuit, SEP dispute, or cross-licensing agreement. Similarly, quantum computing does not seem to be hampered by 101. AI will be much more affected by PERA, but it is worth noting that AI patents are being issued at a blistering rate. I was disappointed to not see biotech get a mention, particularly given that Mayo was the opening shot in the war on eligibility and that it is one of America’s leading areas of technology relative to China.
When it comes to PTAB, Project 2025 emphasizes the “speed and transparency” of IPRs. This indicates that they don’t fully understand the purpose of PREVAIL. Although more speed and transparency are always good, the main complaints with the PTAB have to do with the ease of raising issues, even from uninterested parties at any point in the life of the patent, which standards are applied during IPR (as opposed to litigation), and whether the judges make appropriate decisions. There is also a question of whether the PTAB has made it easier to fix otherwise invalid claims. None of these have to do with speed or transparency; the PTAB is much faster than litigation already and the public record for IPR is much better than federal courts. This suggests to me someone at the Heritage Foundation spoke to someone in Congress and wanted to get a Project 2025 endorsement for PTAB reform but that the staff did not fully care to understand what needed to be fixed.
The second interesting aspect of Project 2025 is that it emphasizes the international trade aspects of patents. In addition to promising to enhance trademark counterfeiters and infringers (although there is no specific proposal), Project 2025 takes a strong stance on supporting “like-minded countries” to rise to WIPO leadership positions. This is good; usually, American administrations focus more on the World Bank. Project 2025 also talks about strengthening international IP rights. Previously, this was a big part of American foreign policy. One of the main components of TPP, the trade treaty opposed by President Trump, was to enhance patent rights. While Republicans cannot get back into TPP without losing face, perhaps they can start by creating a subsidiary convention that only adopts the IP provisions as a way to easily make progress on this promise.
Interestingly, Project 2025 takes a stand against patent waivers for COVID-19 vaccine patents and in general, calling out the WTO’s Trade-Related Aspects of Intellectual Property mechanism in particular. This is the only bone thrown to biotech in the entire proposal, but it is a big deal. The Biden Administration has taken opposing Pharma patent strategies as a major tentpole position (more on that below). Although Project 2025 does not go so far as to support Pharma patents, this is the best indication that the Project 2025 team supports strengthening intellectual property rights, particularly because it is relatively niche but high-impact. This will be particularly important as the 2028 patent cliff looms. Already, leading Democrats like Bernie Sanders are taking aim at semaglitude patents as “junk” patents, which shows that the war against Pharma patents will not stay limited to the emergency justification levied for the pandemic.
The last significant proposal is a hairbrained scheme suggesting folding USPTO into another department. The top choice of the Project 2025 authors is to merge USPTO into the OMB as a Performance Based Organization (“PBO”); in the alternative, the authors propose merging USPTO with NIST and closing or spinning off all “non-mission-critical research functions.” This first proposal is wrongheaded and nonsensical. Also, strangely, they do not suggest merging with the copyright office, which would merge all IP under one roof; in fact, Project 2025 has nothing to say about copyright at all.
First, a brief history on PBOs. In the 1990s, a key Clinton Administration priority was increased government efficiency as part of the triangulation strategy. One initiative that got a lot of attention was the idea of a PBO. A PBO is an agency designation that sets performance targets for an office, particularly around its finances. Ultimately, although several dozen agencies were originally proposed, only three were ultimately selected in the final legislation, one of which was…USPTO. So it is odd that Project 2025 proposed turning USPTO into a PBO when it already is one. Furthermore, USPTO does not engage in much research, so there is not much to spin off. Merging with NIST would be odd, but at least it is a technical agency that is connected to USPTO through CFIUS; merging into OMB, which is a budgeting agency, makes no sense at all. This seems to stem from the desire of conservatives since the 1990s to eliminate the Department of Commerce. Ultimately, USPTO is stretched as it is; putting it under the purview of non-experts would hamper it further.
A Coda on the Democratic Platform
As I got around to writing this week’s edition, I was hoping that I would be able to write next week’s issue on the Democratic Party’s platform for patents. (Hey, it’s always easier when the news cycle tells you what to write about!) Unfortunately, the Democratic Platform has almost nothing to say about patents and intellectual property. So I will briefly summarize them here.
The word “patent” only appears once in the Democratic Platform. It appears briefly in the section on healthcare: “For too long, prescription drug companies have gamed the system to justify their price increases by any means available. Democrats will crack down on anti-competitive efforts to manipulate the patent system or collude on prices.” Interestingly, a new FTC report found that patents were not the main reason for high drug prices; it was the middlemen buyers of pharmaceuticals, called PBMs, that run up prices. The word “intellectual property” only appears three times, all of which are in reference to preventing the “theft of intellectual property,” specifically from China. It is clear that the platform does not view IP as deserving its own protection as a special class; it is bundled with other global economic competition concerns, such as currency manipulation.
Weekly Novelties
The rise of animated GUI design patents, especially for animated icons (PatentlyO)
Congressman Massie was “appalled” by efforts to limit the ITC’s power over infringers (IP Watchdog)
Researchers claimed that USPTO’s software has mistakenly resulted in longer-than-expected patent life extensions (Stat News)
Samsung got sued over mobile device charging (Bloomberg Law)
An analysis found that carbon capture patents impact the insurance industry; patents can have downstream effects on surprising industries! (Carbon Herald)
USPTO was affected by the Crowdstrike IT outage and is still dealing with the fallout (USPTO)
XPeng is licensing patents to Volkswagen, opening up a new line of revenue and highlighting Volkswagen’s dependent on others, like Rivian, for EV innovation (IAM)