Executive orders and other developments suggest changes are in store in the intellectual property (IP) sphere, but the exact shape of the changes is not yet clear.
New administration, new leadership: President Donald Trump nominated Howard Lutnick, long-time chairman and CEO of financial services firm Cantor Fitzgerald, as Commerce secretary, where he would oversee the U.S. Patent and Trademark Office (USPTO). Lutnick is named as inventor on hundreds of patents, including many related to financial technologies, an area where patents have been rejected and invalidated at high rates in recent years. During his confirmation hearing, Lutnick called the backlog of unexamined patent applications “unacceptable” and pledged to reduce it.
There presently are judicial openings in key patent venues, including the Western District of Texas. And the U.S. Court of Appeals for the Federal Circuit, which has exclusive jurisdiction over patent appeals, currently has three of the oldest active federal judges. Judicial nominations will be an area to watch.
AI and patents: A January 23, 2025, executive order rescinded President Joe Biden’s broad 2023 executive order setting out comprehensive goals and mandates regarding AI across the government, but the new administration has not yet signaled what specific policies will change. (See our AI analysis.) The patent world will be watching to see if prior guidance on the patent eligibility of AI-assisted inventions is modified. (For more on the intersection of AI and patent law, see our March 2024 and April 2023 articles.)
Pending patent legislation: Three significant pro-patent owner bills could potentially alter patent law fundamentally: Promoting and Respecting Economically Vital American Innovation Leadership Act (PREVAIL Act); the Realizing Engineering, Science and Technology Opportunities by Restoring Exclusive Patent Rights Act (RESTORE Act); and the Patent Eligibility Restoration Act (PERA). Together, they would limit procedures to challenge patents, repeal the U.S. Supreme Court’s framework for patent eligibility and reduce the current restraints on patent-eligible subject matter, and make injunctions easier to obtain. Hearings are proceeding on the PREVAIL Act and the RESTORE Act. While PERA was withdrawn, many expect it to regain traction in 2025.
Federal ban on noncompetes: A proposed Federal Trade Commission (FTC) ban on noncompete agreements would make the bulk of noncompetes unenforceable. New FTC Chair Andrew Ferguson has previously voiced opposition to the ban and opined that the FTC lacks the authority to promulgate such a ban. If the FTC drops its appeal of a case challenging the ban, IP owners will have another tool to protect their valuable trade secrets.
See the full Executive Briefing publication
This memorandum is provided by Skadden, Arps, Slate, Meagher & Flom LLP and its affiliates for educational and informational purposes only and is not intended and should not be construed as legal advice. This memorandum is considered advertising under applicable state laws.