USPTO under Biden?

As the last few states count their ballots, it appears Joe Biden will be elected President of the US.  A little under four years ago, I gave a brief talk in Takamatsu, Japan, about what to expect in IP rights under a Trump administration.  I thought I would revisit the topic for Biden.

The multinational businesses of Trump and his family require extensive IP protection in many countries.  Whereas Trump is a businessman, Biden is a career politician.  So, it should not be a surprise that Biden appears associated with substantially less IP.

Nevertheless, Biden seems affiliated with a few trademarks.  His campaign applied for both “Biden President” and “Biden 2020,” although this latter mark is already dead.  Although Biden himself seems unaffiliated, members of his family serve on the Board of the Beau Biden Foundation.  The Foundation, unsurprisingly, has a few marks of its own.

In addition, Kamala Harris’s unsuccessful presidential campaign has three marks of its own.  A little surprisingly, there is no mark for the “Biden Harris” ticket.

Other blogs have discussed the limited information available at pertaining to Biden’s IP platform.  There is probably more benefit in discussing the type of USPTO Director that Biden might appoint, rather than in referencing these other blogs or the candidate’s website.

Andrei Iancu, Donald Trump’s Director, was the managing partner of a law firm that previously represented Trump in a copyright suit.  Iancu apparently has a background in patent prosecution but eventually moved into litigation exclusively.  Although undoubtedly accomplished and successful, there does not appear to be anything unique to Iancu, aside from any personal ties to Trump.

Practitioners regard Iancu as competent, if tasked with a difficult position.  Within the past year, Examiners have been exceedingly negative of their view of Iancu.

Barack Obama, under whom Biden served as Vice President, appointed two tech industry veterans to lead the USPTO.  Obama first appointed David Kappos, formerly IBM’s Corporate Counsel, and, later, Michelle Lee, formerly Google’s head of patents. 

Practitioners greatly appreciated Kappos’s reforms, following Jon Dudas’s contentious tenure.  Practitioners also appreciated Lee’s general continuance of Kappos’s policies.  Examiners also seemed pleased with their leadership, although a few Examiners had their workflows severely disrupted by the shift from Dudas.

Thus, I would expect Biden to follow Obama’s lead in selecting another attorney from industry to lead the USPTO.  Due to the unsettled nature of statutory subject matter rejections (in particular, so-called Alice rejections), a candidate from a software company might be another excellent choice, as were Kappos and Lee.  However, my personal bias might show in such a selection.  So, in view of the current pandemic and Biden’s own interest in healthcare, maybe a candidate from the pharmaceutical industry would be a solid choice.  If nothing else, it could help balance the competing interests of IP stakeholders in the predictable and unpredictable technologies.

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