Posts Tagged: "Executive Order"

In recent months, two U.S. government executive initiatives have reshaped the landscape concerning intellectual property and the domestic production of products resulting from federally funded research. These initiatives are poised to bring substantial changes to the dynamics of academic-industry collaborations as inventions are brought to market.

On Friday, July 28, President Biden announced a new Executive Order titled “Federal Research and Development in Support of Domestic Manufacturing and United States Jobs.” Rumors that the Administration was considering extending the deeply flawed Department of Energy (DOE) policy (see “More DOE Bureaucracy Equals Less Innovation” to all agencies had been swirling for months. Luckily, the new Executive Order doesn’t do that, but how it will be applied is subject to a convoluted interagency process, so it will be months before we see if it’s meeting its intended goal or not.

Late Friday, the Biden Administration unveiled what must be one of the longest Executive Orders in history, titled “Promoting Competition in the American Economy.” In 31 pages, it covers everything from agriculture, shipping and railroads to the internet. The aim is to promote a “fair, open and competitive marketplace” against the threats of “excessive market concentration.” Among the intended beneficiaries are entrepreneurs, who will receive “space to experiment, innovate, and pursue the new ideas that have for centuries powered the American economy and improved the quality of life.” Unfortunately, tucked away on page 28 is a directive to the Secretary of Commerce that could threaten to undermine the Bayh-Dole Act, which allows entrepreneurs to commercialize federally-funded inventions. The law has spurred the impressive formation of academic spin-out companies and resulted in approximately 70% of these discoveries being licensed to small companies. It’s also critically important to our economic growth and continued well-being.

What I do know is that the Department of Commerce has created a Regulatory Reform Task Force and that the USPTO will participate on that Commerce Department Regulatory Reform Task Force in some unexplained and rather ambiguous capacity. I have still not been provided the name of any USPTO appointed Regulatory Reform Officer, nor have I been provided the names of any individuals who have been appointed to any USPTO Regulatory Reform Task Force. If you read the comment I received on the record from the USPTO together with the USPTO belief that this comment moots my FOIA request it seems clear that the USPTO will not be forming its own Regulatory Reform Task Force and will not be appointing a Regulatory Reform Officer. Unfortunately, all attempts to get the USPTO to confirm on the record that they will not be forming a Regulatory Reform Task Force and will not be naming a Regulatory Reform Officer have failed.

Confused by USPTO stonewalling, I sent a FOIA request to the Office. Is it possible that the USPTO is not going to name a Regulatory Reform Officer? Is it possible that the USPTO is not going to have a Regulatory Reform Task Force at all? Is it possible that the USPTO will merely participate with the Department of Commerce’s efforts and not engage in their own independent review of regulations? Nature abhors a vacuum, and so too does Washington, DC. I guess this just means we are in a cycle where getting any real information out of the USPTO will require a FOIA request.

If you are not blinded by an agenda you must recognize that patents are linked to economic success, job growth and high wage jobs. If President Trump is serious about making America Great Again and dismantling the regulatory bureaucracy that stands in the way of those individuals and companies that will lead America to the 4 percent growth he wants, he will demand the USPTO once again become a patent friendly agency. It is particularly time for the USPTO to lift the foot off the throat of certain sectors of the biotechnology community and pretty much the entirety of the software industry. It is well past time for the USPTO to stop acting as an arms dealer by selling patents (which takes many years to achieve) and selling patent challenges. There are a great many regulations, as well as interpretations of cases from the Supreme Court and Federal Circuit, that directly and unambiguously inhibit the issuance of patents, or make them quite easy to challenge (or harass).

In this Executive Order, President Trump orders the heads of each agency to designate a Regulatory Reform Officer (RRO) within 60 days. In addition to the designation of a Regulatory Reform Officer, the Patent Office (along with many other agencies) will be required to create a Regulatory Reform Task Force, which will be made up of the RRO, the agency Regulatory Policy Officer, a representative from the USPTO’s central policy office, and at least three other senior level USPTO officials as determined by the Director of the USPTO. When considering the recommendations of the Regulatory Reform Task Force, the agency head has been told to prioritize those regulations identified as being outdated, unnecessary, or ineffective.