In a sweeping discussion of patent and copyright regulation, Venable attorneys outlined major changes under the current Trump administration that are reshaping the U.S. Patent and Trademark Office (USPTO) and the U.S. Copyright Office. Speaking during the third installment of the firm's "Deregulation Nation" webinar series, partners Manny Caixeiro, Michael Sandonato, and Meaghan Kent detailed evolving strategies in patent litigation, legislative momentum in Congress, and internal upheaval within federal copyright infrastructure.
Caixeiro described the new administration's approach as not "deregulation in the classical sense," but instead a fundamental "reshaping of administrative authorities" that has profound implications. He said administrative agencies "are shifting discretionary authority away from … bureaucratic administrative judges and administrators" and "toward political appointees." These changes, he said, are incentivizing patent enforcement, particularly for non-practicing entities (NPEs), which he defined as entities that "own patents and receive revenue from licensing or enforcing [them] … as opposed to operations."
USPTO Appointments, Inter Partes Review, and Global Strategy
Caixeiro also highlighted how the Trump administration's priorities and experiences align with a more monetization-focused future for the USPTO. "President Trump is well known for having licensed his brand name and … has over 600 trademarks," he noted, while adding that Commerce Secretary Howard Lutnick "is the named inventor on over 800 patents." Caixeiro also emphasized the significance of John Squires, Trump's nominee for PTO director, referencing his familiarity with "the idea of monetizing patents." Moreover, Caixeiro discussed how robust patent enforcement complements the Trump administration's foreign trade, including placing restrictions on imports and protecting American inventiveness through trade negotiations.
Sandonato built on these points by outlining three significant pieces of pending legislation that would further tip the balance in favor of the patent owner, all of which, he noted, are bipartisan, and together, represent a clear "pro-patent" agenda. He said the PREVAIL Act would reform and limit defendant-friendly inter partes review (IPR) proceedings concerning patents' ineligibility, including by raising the standard of proof in IPR proceedings to "clear and convincing."
The PERA Act, Sandonato said, would redefine the law of patent eligibility by eliminating judicial exceptions to patentability, and the RESTORE Act would create a presumption in favor of injunctions. "Before 2005, if you owned a patent and proved patent infringement, you were given an injunction as a matter of course," he said, contrasting it with the current post-eBay framework that "effectively made it impossible for non-practicing entities to obtain injunctions." He emphasized that RESTORE could recalibrate the power dynamic in favor of NPEs.
Copyright Office Upheaval and the AI Debate
Turning to copyright issues, Kent detailed recent turmoil at the U.S. Copyright Office. She noted that in May, the Trump administration fired the Librarian of Congress, followed two days later by the head of one of the library's departments, the U.S. Copyright Office. Shira Perlmutter, the leader of the Copyright Office who was fired, is still listed by the office as its head, despite pending litigation challenging her dismissal, Kent observed. This has led to concerns regarding the validity of copyright registration certificates, which are currently being issued without signatures during the leadership vacuum. Kent referred to a recent article on this issue written by colleague Linda Zirkelbach.
This institutional uncertainty coincides with ongoing copyright battles over artificial intelligence (AI). Kent explained that, over the last year, the Copyright Office has been working on and has released three installments of a report regarding AI and copyright and that it, "received about 10,000 comments" in response to its request for public comment about AI-generated content and training data. Kent described how the first installment, regarding Digital Replicas, has been closely tracked in recent legislation proposed (NO FAKES Act) and passed (TAKE IT DOWN Act). In its second installment of the report, Kent noted that the "Copyright Office concluded that we do not need new legislation related to copyrightability," because "existing principles already address this." In the third installment, regarding use of copyrighted content to train generating AI, Kent shared that the Copyright Office proposed that current copyright law was adequate to address the question, new legislation is not needed, and that voluntarily licensing is the preferred solution.
The administration's broader stance regarding AI, she explained, is marked by a preference for light-touch regulation that the White House has described as necessary to maintain "America's global AI dominance." She noted that the executive order regarding AI issued in January calls for an AI Action Plan to be presented in July this year.
To learn more about upcoming webinars in this series, Deregulation Nation: Legal Perspectives on the Changing Rules, click here. The series runs through the summer.