Direction of the USPTO in 2021
Many are speculating regarding the direction that will be taken at the USPTO in 2021. A new year is fast approaching, and a new administration appears to be coming with it. Will there be significant change, or will it be more of the same? Will there be a return to Obama-era IP policy, or will a USPTO under Biden chart a new course of its own? Only time will tell, and I certainly don’t have a crystal ball. However, anyone can speculate, right?
A New Director
The first question to be answered is who will lead the agency. The general consensus is that president-elect Biden will likely name someone with a diverse background in various industries. The office under the Obama administration, especially in the early years of his administration, was seen as big-Tech friendly. With the appointment of Michelle Lee, the former deputy general counsel at Google, the agency implemented the America Invents Act and implemented the Patent Trial and Appeals Board, which many viewed as tech friendly. Under the Trump administration, with the guidance of Director Andrei Iancu, new rules and procedures have been set. Most view these types of rule revisions as likely to continue, and the process changes would likely benefit from having a new director with institutional knowledge and a multi-industry perspective.
Change of Focus?
COVID-19 has certainly been in the forefront of everyone’s mind in 2020. This is likely to also contribute to a continued shift of focus within the IP world. Tech seemed to be the focus of the past decade or so, wrestling focus from more traditional patent-oriented industries. However, our experience with COVID is likely to now shift focus back towards pharma and healthcare. Already in 2020, the patent office launched a marketplace to facilitate licensing of virus-related patents, and it created an accelerated examination track for companies working on drugs to combat the pandemic. Some observers feel this is partially offsetting Supreme Court rulings limiting companies’ abilities to protect IP related to diagnostic testing and other medical advancement. Companies in all industries want to keep innovating.
In general, many observers expect, or at least hope, that “balance” will be the operative word for the USPTO for the next few years. The intent is to foster innovation by balancing the rights of patent holders with those creating new technologies. Patent infringement suits are inevitable, but creating clear and consistent guidelines that don’t tip the scales unfairly one way or another is key for nurturing innovation in our economy. Likewise, it is important to keep a balanced perspective on what facilitates innovation and growth in tech and traditional industries, and big companies and small. There will be a lot of speculation and webinars (like this IAM one) over the next few months to predict the direction of the USPTO, but we will have to wait for 2021 to actually arrive before we know for sure.