As Trump Administration Takes Shape, a Big Tech Pick for USPTO Seems Far-Fetched

By now, virtually all Americans, and people around the world, are no doubt aware that Donald J. Trump has been reelected as President of the United States, making him only the second person in history who will serve non-consecutive terms. President-elect Trump has been settling on nominations for his Cabinet and more, identifying former Arkansas Governor Mike Huckabee as his nominee for Ambassador to Israel, tapping current Federal Communications Commission (FCC) Commissioner Brandon Carr to become head of the agency, and most recently, nominating Howard Lutnick for Commerce Secretary, among many others.

In our space, the nomination of most consequence will be that of Undersecretary of Commerce for Intellectual Property and Director of the U.S. Patent and Trademark Office (USPTO), which is not a Cabinet-level appointment, but will be the person who will most directly influence patent and trademark policy during Trump’s second term.

Generally, the pick to head the USPTO is one that does not come quickly, with the head of America’s innovation agency normally being identified no earlier than late Spring or early Summer, after the President has been sworn into office. With the speed at which President-elect Trump is identifying his team, all bets are off with respect to how quickly agency Undersecretaries will be identified, particularly now that he has announced his nomination of Lutnick.

The Rumor Mill May Be Wrong

Regardless of the speed at which we may hear from President-elect Trump on whom he chooses to head the USPTO, the rumor mill has already started in earnest, with at least several people reportedly jockeying for the position and making their interest known. As observers are no doubt aware, Trump has historically shown disdain for those who engage in such jockeying, particularly when it is public, and even if it isn’t truly public but just well-known within insider circles. Simply said, getting out in front of President-elect Trump is a mistake for anyone and everyone who may not only be interested, but willing to accept a nomination. And, for that reason, although some individuals are well-known inside the Beltway to be interested and are believed to be marshaling support, we will not speculate ourselves on any names.

Nonetheless, some people who claim to be in the know believe that there is one particular big-tech candidate who is the front runner for the position as USPTO Director. All things being equal, that rumor seems odd, to say the least. Whether you like President-elect Trump’s identified nominees so far or not, few would look at those who have been identified and leave with the feeling that insiders are being picked. Indeed, Trump ran on change—the kind of generational change that would significantly disrupt the way the business of politics is done inside the Beltway. So, the selection of someone closely and currently tied to big-tech wouldn’t be in line with other nominees who are truly disrupters and who would almost certainly bring enormous change by really shaking things up.

A Big Tech Candidate is a Bad Bet

If I had to place a bet on who will be the next USPTO Director, based on what we have seen so far and have heard throughout the campaign, I would not put my money on anyone from any of the big-tech companies. And this isn’t simply because FCC Commissioner Carr has publicly told big tech that he is going to investigate them during a second Trump term, but it would be rather schizophrenic to have the FCC going after big tech at the same time the USPTO has been turned over to big tech.

Simply put, selecting someone from big tech means the status quo, and if America is going to rise to the challenge of competing against China in the years to come, particularly with respect to artificial intelligence, where China has a lead, the status quo at America’s innovation agency is simply not what the doctor, or the electorate, ordered.

This observation should hardly come as a surprise to anyone paying close attention. In addition to the often repeated “drain the swamp” mantra that marked the first Trump term, the focus on nominating outsiders who are willing to have a disruptive influence just does not seem to foretell the nomination of an individual from big tech, or who thinks like big tech.

Observers have also noticed that President-elect Trump seems very interested in avoiding the appointment mistakes he suffered through during his first term, this time focusing on allies he will be able to reliably count on to pursue his agenda and not their own, or the agenda of entrenched or incumbent powers. And big tech has been so overwhelmingly supportive of Presidents Obama and Biden that it is hard to imagine that President Trump will turn to that corner of the industry for his USPTO Director.

And Robert F. Kennedy, Jr., President-elect Trump’s selection to head Health and Human Services, has very publicly criticized the revolving door between the Food and Drug Administration (FDA) and big pharmaceutical companies. This view, together with such keen interest in disruptive outsiders, just doesn’t seem to suggest that anyone with close ties to big tech would be the right person for the job in a second Trump Administration.

An AIA-Era Pick is Also a Stretch

At a time when there is increasing bipartisan interest in working to streamline the much-maligned Patent Trial and Appeal Board (PTAB)—with the PREVAIL Act pending and soon to be marked up by the Senate—would anyone closely tied to the creation of the PTAB be able to deliver the type of disruptive change President-elect Trump wants? According to Senator Chris Coons (D-DE), 18 of the top 20 petitioners challenging patents at the PTAB are from big tech, and a review of PTAB filings show Apple, Samsung, Google, Microsoft, Intel, and Cisco all in the top 10 most active patent challengers. Could a candidate from this big-tech group really bring the disruptive change President-elect Trump ran on, or would such a candidate be more of the same-old-same-old? With the winds of change already percolating, it seems anyone who was closely associated with the America Invents Act (AIA) that created the PTAB wouldn’t be the right choice.

Whether you like the PTAB or dislike the PTAB, it is indisputable that the PTAB was sold to Members of Congress as an alternative to federal patent infringement litigation but for a variety of reasons has become an onerous additional layer of expensive procedure for patent owners to survive before they are ever able to seek redress in federal court for IP theft. Thus, being in support of status quo at the PTAB just doesn’t feel like the type of transformative position that makes the agency better and stronger, or the type of change being offered elsewhere throughout government, at least based on Trump’s nominees.

What We Need

It feels like what the USPTO needs is a patent attorney who is intimately familiar with at least some aspect of the patent system, whether that be through experience representing patent owners in patent litigation or patent challenges at the PTAB, or someone who has familiarity with the patent acquisition system and the consequences of being inappropriately denied by career bureaucrats. Indeed, a patent attorney familiar with the system seems incredibly important given more than 90% of what the USPTO does is the examination and issuance of patents. And given the reality that at least some patent examiners rarely, if ever, issue patents, the USPTO is in desperate need of disruptive reform, not business as usual.

If President-elect Trump wants a positive disruptive force that will do good, the system needs an individual who has had to advise actual patent owners and real innovators who seek patents, and who is willing to promote the virtues of innovation. To deliver the generational reform that President-elect Trump wants, the next USPTO Director must understand what presently works, what is in serious need of reform, and then be able to improve the system for all stakeholders, not just big tech. Encouraging more innovation, particularly in areas of critical and emerging technologies, like artificial intelligence, should be a mandatory prerequisite.

Over much of the last generation, the patent system has been too often run by individuals beholden to the interests of incumbent big tech at the expense of real people engaging in disruptive innovation. This means the next USPTO Director must understand the trials and tribulations of real people, small businesses and startups who are taking risks and swinging for the fences to achieve paradigm-shifting innovation. Those challenging the innovation status quo with new ideas and technologies have something worth protecting and simply deserve a fair opportunity to obtain the patent rights envisioned by the Constitution.

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Author: bloomua
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