PTAB reform costs PC.

For the role of USPTO Director, we expect the lobbying to be heated between IP-intensive industries that would like to see the legacy of Director Iancu continue and those from sectors like technology, software and consumer electronics, which will be working to try to reverse much of what he has accomplished. As a case in point, several big tech companies have actually taken Director Iancu to court to try to stop his ongoing efforts to reform the PTAB.

Biden on China and Big Tech

President-elect Biden brings nearly 40 years of experience on the Senate Judiciary Committee – he was either Chairman or Ranking Member for 17 of those years. Vice President-elect Harris also served on the Senate Judiciary Committee beginning in 2017. One area of consistent engagement for President-elect Biden over the years has been on IP enforcement. His Presidential platform committed to “confront foreign efforts to steal American intellectual property” noting that, “China’s government and other state-led actors have engaged in an assault on American creativity.” It is also worth noting that, as Vice President, Joe Biden played an active role in developing the Obama Administration’s IP enforcement strategy. We would expect the Biden Administration, therefore, to prioritize the appointment of a strong IP Enforcement Coordinator, as well as a Chief Innovation and IP Negotiator at the Office of the U.S. Trade Representative.

As the Biden Administration continues to take shape in the coming weeks, we also expect the wide-ranging scrutiny of “Big Tech” to continue. The political objective of “repealing Section 230” that has marked the final days of the Trump Administration won’t be a similar rallying cry for the next Administration, but expect the scrutiny of the big tech platforms – Google and Facebook in particular – to continue in a more substantive, and perhaps more threatening way. It was relatively easy to dismiss and defeat Trump’s reactionary legislative Hail Mary to repeal Section 230 of the Communications Decency Act, but the Biden Administration will inherit a Justice Department-led antitrust case against Google and a Federal Trade Commission-led case against Facebook. These are in addition to an antitrust lawsuit brought against Google in December by nearly 40 state Attorneys General. This will put big tech companies on their heels, with some of their aggressive IP tactics, such as efficient infringement, potentially at the center of the conversation with state and federal investigators.

Given the Obama Administration’s record on supporting the policy IP priorities of large tech companies, and Silicon Valley’s support for the Biden campaign, there’s little question that big tech will have greater influence with the incoming Administration. But eight years ago, the policy horizon for tech was what they chose it to be, whereas today they face a number of challenges in the form of antitrust, national security, and scrutiny regarding their extensive safe harbor from liability. How far the Biden IP team pivots back towards a policy approach that is more skeptical of the importance of IP may depend on the extent to which tech chooses to focus its political capital on weakening IP over effectively dealing with the more threatening challenges they face. As we work with new leaders in the IP space and re-engage with existing players, it is clear that 2021 will be a fluid and consequential period for all IP owners. Last year proved that progress is possible, even in a very difficult environment. But we also know that this progress is precarious, and that addressing even bigger challenges, such as Section 101 reform, making meaningful advances to online trademark enforcement and reforming the DMCA will be much more difficult—but still possible.