Election Results Are In—Here’s How IP Disputes Policy May Change

Intellectual property policy may not have driven many voters to the polls on November 7, but change was on the ballot. Below, we summarize changes in U.S. intellectual property law that you might see starting in January 2025.

Legislation: Pending Legislation Favoring Patentees May Receive A Warmer Reception In Congress.

Assuming the parties do not reassign members, the election has almost no effect on the makeup of the relevant Senate committees. If it is not disbanded (as it was from 2007-2019), the Senate Subcommittee on Intellectual Property should simply see the gavel passed from Senator Chris Coons to Senator Thom Tillis. Each Senate Judiciary Committee incumbent was re-elected; Rep. Adam Schiff will fill the spot left vacant by interim Senator Laphonza Butler.

The election is unlikely to alter the substance of the proposed bills from the IP subcommittee members, many of which already have bipartisan sponsorship. The election may, however, yield a legislature more inclined to advance these bills:

Senators Coons and Tillis are co-authors of the Patent Eligibility Restoration Act, which would change Section 101 patent eligibility law by eliminating all so-called judicially created exceptions to U.S. patent eligibility. District courts do not infrequently invalidate patents under existing Section 101 law, often at an early stage in litigation. This proposed change would sharply shift the balance of litigation power towards patentees, particularly with respect to technology patents.

Senator Coons and Senator Tom Cotton introduced the RESTORE Patent Rights Act of 2024, which would restore the presumption that courts will issue an injunction to stop patent infringers. In the 2006 decision eBay v. MercExchange, the Supreme Court created a four-factor test to determine whether a permanent injunction is warranted in infringement cases. This new framework led to a decrease in requests for permanent injunctions by 87.4% for NPEs and 65% by operating companies, according to recent research by economics professor Kristina Acri née Lybecker. This proposed change would, again, benefit patentees.

Senators Coons, Tillis, Dick Durbin, and Mazie Hirono also introduced the Promoting and Respecting Economically Vital American Innovation Leadership Act, which would change PTAB practice to require standing for PTAB challengers, match PTAB standards to parallel district court standards, and restrict parties from simultaneously using PTAB and district court proceedings to challenge patents. This bill, too, would benefit patentees.

Regulation: Look For More Tariffs, Pro-Patentee Tweaks To Disputes, And Less AI Regulation.

The President directly influences some aspects of intellectual property policy, particularly where it overlaps with trade. Given the campaign’s strong stance on trade and the GOP platform’s rhetoric concerning China—which emphasized the need to “secure strategic independence from China” as part of an expanding desire to “decouple” from it on trade and technology—there may be some activity on these fronts.

At the most granular level, the President can decide appeals from International Trade Commission determinations to ban imports of goods that allegedly infringe intellectual property (part of the broader authority from Section 337 of the 1930 Tariff Act).

More broadly, the President can impose tariffs in response to unfair trade practices (Section 301) or if imports threaten national security (Section 232). The last Trump Administration opened eight Section 232 investigations and imposed tariffs on steel and aluminum. The last Trump Administration also utilized Section 301 to impose substantial tariffs on imported goods from China due to China’s intellectual property practices. It would not be surprising to see further tariffs imposed on IP grounds in the upcoming administration.

The Executive Branch also influences intellectual policy by appointing government officials, including (1) the director of the U.S. Patent and Trademark Office, (2) the U.S. Commerce Secretary, (3) the head of the U.S. Department of Justice antitrust division, (4) director of the National Institute of Standards and Technology, and (5) the Intellectual Property Enforcement Coordinator. While President Trump has not said who will fill these roles, they could cause some of the following broad changes:

Pro-Standard Essential Patent (“SEP”) Holder Policy Changes. SEP owners may already suffer whiplash from back-and-forth guidance on injunctions in SEP cases. One might now expect more. The Obama administration issued guidance that disfavored injunctions in SEP cases. The first Trump administration reversed course and issued guidance tracking the so-called “New Madison” approach, which generally takes the position that SEP licensing disputes are not a special case of patent enforcement deserving special considerations. The Biden administration then withdrew the Trump guidance, and its public pronouncements generally tracked Obama-era policy. One might expect the needle will swing back with the new administration.

Restoring Bayh-Doyle “March-In” Rights To Status Quo Ante. The Bayh-Doyle Act permits recipients that used federal funding to retain ownership of, and commercialize, resulting inventions. March-in rights are a provision within the Act that allows the federal government to intervene and grant licenses to third-parties or take ownership of a patent under specific circumstances. The Biden administration recently issued guidance that would allow federal agencies to invoke march-in rights if officials conclude that the product is not available to the public at what the officials consider a “reasonable” price. The Trump Administration could walk back that guidance.

Revising USPTO Practices And Guidance To Reduce Post-Grant Reviews Of All Kinds. A patchwork of USPTO guidance, rules, and practices affects whether patent challengers can effectively use the USPTO’s post-grant review proceedings (IPRs, PGRs, EPRs) to challenge patents asserted against them or other parties. A new appointee may take steps to make the USPTO a less popular forum for review of issued patents. This would result in an increased emphasis on, and importance of, district court proceedings.

De-Regulating AI. Federal AI regulation is nascent and seems unlikely to flourish during the second Trump Administration. While details are light, the Trump campaign promised to “repeal Joe Biden’s dangerous Executive Order that hinders AI Innovation,” and to “support AI development rooted in free speech and human flourishing.” What that means remains to be seen—but one likely can expect an emphasis on maintaining the United States’ competitive edge in AI.