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Patents in the Trump Administration: the 2-for-1 order热点关注

时间:2017-03-22   出处:中国知识产权司法保护网  作者:Elizabeth Chien-Hale  点击:
Patents in the Trump Administration: the 2-for-1 order

By Elizabeth Chien-Hale

March 10, 2017

Everyone in the IP community wonders if President Donald Trump will create a new order in the IP field much the same way he has approached other areas of the government.  We had our first glimpse recently when President Trump issued Executive Order No. 13,771, which requires a federal agency to identify two existing regulations to be repealed every time it “publicly proposes for notice and comment or otherwise promulgates a new regulation[.]”   Federal agencies are also required to ensure the cost of new regulations is zero, unless “otherwise required by law or consistent with advice provided in writing by the Director of the Office of Management and Budget.”  This order states a policy “to manage the costs associated with the governmental imposition of private expenditures required to comply with Federal regulations.”

While the Executive Order is not specifically aimed at the USPTO, it could have a significant impact on the USPTO, because the agency is still shaping, by regulations and other means, the relatively new, but rapidly growing America Invents Act invalidation proceedings.  The USPTO has relied on rulemaking power as an important tool to shape the PTAB process.  Furthermore, the USPTO also needs rulemaking power to respond to court decisions applicable to PTAB.

By potentially making it more difficult for the USPTO to promulgate rules governing the PTAB procedures, the Executive Order’s, while having the objective of reducing new regulations’ costs, to the contrary could have the effect of shifting costs to the users of the PTAB process.  This might occur if new procedures evolve through decisions in PTAB proceedings rather than through guidance provided by the USPTO in its rules.    


The Executive Order is working its way through the judicial system.  Several groups, including Public Citizen, the Natural Resources Defense Council and the Communications Workers of America, filed suit in U.S. District Court in Washington, challenging the President’s constitutional authority in issuing the order. -


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蒋志培 中国人民大学法学博士,曾在英国伯明翰大学法学院、美国约翰马歇尔法学院任高级访问学者,中国人民大学法学院、北京外国语大学法学院兼职教授,中国知识产权司法保护网主编、国家社科基金评审委员会专家,最高人民检察院民行诉讼监督案件专家委员会委员,2014年、2015年受美国约翰马歇尔法学院、中国驻加拿大使馆和加方科技部邀请参加知识产权法律和创新论坛并演讲,2013年12月获得中国版权事业卓越成就奖。