If his campaign is successful, Donald Trump will become America's 47th president — and usher in sweeping policy changes. That's especially true when it comes to the intellectual property system that protects and incentivizes trillions of dollar’s worth of economic activity and job growth.
I offer some predictions about what IP policy might look like in a new Trump administration.
First, it is likely that a new Trump administration would reverse the Biden administration's attempts to seize intellectual property rights. For example, the current White House controversially supported a World Trade Organization proposal to remove patent protections for COVID-19 treatments — a move that empowered rival nations to obtain the underlying technology that American firms spent billions of dollars developing. And the administration is currently finalizing guidance on "march-in rights" by relying on an unused, decades-old statutory provision that would allow federal agencies to tear up patent licensing agreements inked between research universities receiving federal funding and private companies and then relicense those patents to favored companies.
Both those policies enjoy strong support from progressives who believe it will lower drug prices. But they have sparked an almost unanimous backlash from conservatives, centrists, and even many pragmatic liberals, who have repeatedly warned that casting aside patent protections will deter companies from investing in new technologies. Repudiating these measures on Day One would have broad appeal.
A Trump White House would also likely be skeptical of large technology companies' efforts to strengthen proceedings — authorized by an Obama-era law called the AIA — used to challenge patents, even if those patents have previously been tested in the courts. Virtually all companies sued for patent infringement rely on these proceedings to strengthen their litigation position. Patent owners complain that these challenges result in financially exhausting smaller rivals.
Of course, this doesn't mean that a new Trump administration will turn a deaf ear to reasonable tech voices. After all, the technology sector is a critically important part of our innovation economy, and patent policy must work for all sectors.
In an effort to build bridges with Democrat senators who will be voting on Trump administration nominees, one can also envision the new administration supporting at least some aspects of bipartisan intellectual property-reform efforts supported by Judiciary Committee members like Senators Chris Coons, Mazie Hirono, and Dick Durbin. These reforms already enjoy support from Republicans like Senator Thom Tillis and many conservative organizations.
Finally — and perhaps most importantly — President Trump would likely be influenced by themes that have driven his campaign: economic prosperity and support for the forgotten men and women of the middle class. Patents are enshrined in the Constitution. The promise of broad economic prosperity created by robust, effective, and "common sense" patent policies will likely resonate with a new Trump administration.
The 2024 Republican platform promises to "champion innovation" and "pave the way for future Economic Greatness by leading the World in Emerging Industries." A new Trump administration would understand that is not possible at scale without the protections of a strong, balanced, and stable intellectual property system.
Coke Morgan Stewart is an experienced intellectual property litigator and Senior Counsel at O'Melveny & Myers LLP. She served in a variety of senior roles in the United States Patent & Trademark Office (USPTO) during the Trump administration and as acting Deputy Under Secretary of Commerce for Intellectual Property and Deputy Director of the USPTO during the first eight months of the Biden administration. This piece originally ran in RealClearHealth.
