What IP Experts Are Saying About the 2020 ElectionNovember 9, 2020

Many patent professionals expect the Biden administration to parrot Obama-era patent policy. Such a view however seems quite simplistic, and several experts seem to think otherwise.

First, intellectual property is a relatively niche issue in politics, and most politicians pay little attention to it. Notable exceptions to this rule are Senators Thom Tillis (R-NC), Chairman of the Senate’s Subcommittee on Intellectual Property, and Chris Coons (D-DE), who ranks ahead of Vice President Elect Kamala Harris on the very same Subcommittee. Both Senators have reputations as being strongly pro-patent.

Further, Senator Coons is said to have huge favor with President Elect Joe Biden. Senator Coons may thus play an important rule in shaping the future of intellectual property in the United States.

Partisan politics generally play little role when it comes to intellectual property. There are no distinct, opposing intellectual property ideologies widely adopted by members of each political party. Perhaps the best evidence of this follows: the current USPTO director and Trump appointee Andrei Iancu was confirmed by the Senate 94-0. It is thus not uncommon for patent attorneys to have widely varying opinions concerning different directors appointed by the same President, such as USPTO Directors Michelle Lee and David Kappos, who were both appointed by President Barack Obama.

It may take some time before a new director is named. For example, recent history has shown previous holders occupy the Office through transitions and/or leave the position vacant while another USPTO executive performs the functions and duties of the Director. When Director Kappos formally resigned the post on February 1, 2013, it took more than two years until then—Deputy Director Lee was confirmed as Director by the full Senate on March 9, 2015. Director Lee only formally resigned the post on June 6, 2017, which was more than fourth months into President Trump’s presidency. Upon Lee’s resignation, USPTO Associate Solicitor Joseph Matal performed the functions and duties of the Under Secretary of Commerce for Intellectual Property and Director of the United States Patent and Trademark Office until Andrei Iancu was sworn in.

Anecdotally, the formal position of USPTO Director has in recent years been vacant for such substantial time that neither my registration before the USPTO as an Agent (2014), nor as an Attorney (2017), were signed persons then—formally titled “Under Secretary of Commerce for Intellectual Property”. Rather, they were signed by Michelle Lee during her time as Deputy Director and Joseph Matal during his time as Acting Director, respectively.

All this to say Director Lee’s path to Director through the Deputy Director position is notable, especially given (i) Biden’s path to the presidency was through the vice presidency, and (ii) her Deputy Director, Russ Slifer, appears to be a frontrunner for the position. Slifer is formerly chief patent counsel for Micron and is often praised for his handling of day-to-day operations of the agency during his time at the USPTO.

On November 6, Slifer opined “President Biden should look to add leaders to his team, across the entire executive branch, that already know how each agency operates, can quickly begin to reverse Trump’s damage and, most importantly, believes in the mission of their agency.” Here, “Trump’s damage” appears to refer to issues related to the transition, rather than specific comment on Director Iancu’s tenure at the USPTO. His comment seems to leave open the possibility that if Slifer is appointed next Director of the USPTO, he may continue Director Iancu’s initiatives, deeming them to be in furtherance of that mission, without delay.

Gregory “Lars” Gunnerson is a Patent Attorney in the Mechanical and Electrical Patent Practice Groups at McKee, Voorhees & Sease, PLC. For additional information please visit www.ipmvs.com or contact Lars directly via email at gregory.gunnerson@ipmvs.com.

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