8 hours ago
Strong Trump Support For Patent Rights Could Promote U.S. Innovation
An image of 7 light bulbs from the patent infringement court trials brought by the Edison Electric ... More Light Company in 1893 that are part of a collection of technology artifacts at the Museum of Science and Industry, Chicago, Illinois, May 5, 2010. (Photo by J. B. Spector/Museum of Science and Industry, Chicago/Getty Images)
Recent Trump Administration actions point to enhanced support for patent rights. This could help accelerate American innovation in a time of growing international competition.
Background
As I explained in a previous Forbes article:
'The United States has the world's largest and most innovative economy, and our patent law framework has played a major role in this success story. At the beginning of the 21st century, the U.S. maintained the strongest system for patent protection. It was the envy of the world, but soon thereafter, it came under attack from problematic judicial and executive branch actions.
The weakening of American patents has coincided with growing international challenges to U.S. technological leadership, particularly from China. Th[e] . . . administration . . . should reverse course and, in tandem with Congress, reinstitute a strong patent-policy framework to promote vibrant, innovation-driven American economic growth.'
Congress is considering 3 bipartisan pro-patent bills that would: (1) limit abusive post-grant patent challenges, (2) clarify what is patentable, and (3) restore the presumption that a patent holder can enjoin (block) infringers from wrongfully using its patented technology. Passage of these bills would raise incentives for beneficial patenting that drives innovation.
Patent legislation is, however, difficult to pass – similar reform bills have been repeatedly introduced in prior Congresses. Opponents of strong patents, including implementer companies that benefit from obtaining patented technology 'on the cheap,' have successfully opposed enactment of these proposals.
Nevertheless, even absent statutory change, the executive branch can take valuable steps to promote stronger patents through policy pronouncements. Recent actions by the U.S. Patent and Trademark Office (PTO) and the Justice Department (DOJ) suggest that the administration has taken this reality to heart.
Administration Takes Pro-Patent Steps
Curbing Abusive Post Grant Challenges.
The Patent Trial and Appeal Board is a subsidiary body within PTO that is empowered to review already issued patents at the request of third parties that seek to have the patents extinguished. It was created by Congress as part of broader patent legislation in 2011. It was hoped that PTAB would allow quicker resolution of patent disputes as a substitute for federal court litigation. Instead, PTAB proceedings, which allowed for repeated challenges to different patent claims, became a wasteful and costly add-on to judicial lawsuits. It reduced certainty as to whether patent claims would ultimately be struck down. This disincentivized beneficial R&D directed at obtaining patents.
As a leading patent law expert, Scalia Law School Professor Adam Mossoff, explains:
'[D]
iscretionary administrative decision-making at the PTAB and its highly unbalanced decisions in canceling patents have shaken the formerly reliable, stable, and effective legal foundation of the U.S. innovation economy—patent rights. . . . It also undermines patents as a stable legal platform by which companies can develop new commercial systems for efficiently delivering incredible new products and services to consumers, like today's smartphones.6 Instead, all patents today have the pall of the PTAB hanging over them—what lawyers call a cloud on the title—threatening to cancel their property rights willy-nilly.'
U.S. PTO Acting Director Coke Stewart has taken multiple actions in recent weeks to rein in the PTAB's excesses:
O She issued a March 2025 memorandum that emphasized her role in issuing discretionary denials of requests for PTAB patent challenges and expanded the factors that could be weighed to deny PTAB reviews (including 'settled patent holder expectations' when a patent has been long in force).
O In a June 2025 address, she placed greater emphasis on early challenges to validity and seeking to 'migrate away from' late PTAB challenges.
O On June 6, in issuing 'discretionary denials' blocking PTAB review of 5 patents, Stewart relied heavily on 'the failure of the petitioner to challenge the patent[s] sooner and the 'settled expectations' of the patent owner.'
O On June 25, Stewart denied 3 petitions for PTAB review, finding that it would be 'an inefficient use of resources to review a challenged patent that has been dismissed with prejudice from . . . [parallel] litigation.' She had also invoked the pendency of a parallel court proceeding in a May 2025 denial of PTAB review.
O Also on June 25, Stewart vacated PTAB decisions to review 2 patents, finding that the PTAB 'abused its discretion in granting institution of two petitions challenging the same [patent] claims in this instance.'
According to patent policy analyst Eileen McDermott, these recent developments reflect a new 'trend of patent owner-friendly decisions in PTAB proceedings.'
Supporting patent holders' ability to get injunctions.
Until 2006, patent holders could presumptively obtain a court injunction that ordered infringers to stop using their invention (akin to a landowner's legal right to eject trespassers camping on their property). But the Supreme Court's 2006 decision in eBay v. MercExchange eliminated that presumption in favor of an uncertain four-factor 'balancing test.'
A study by Professor Mossoff finds that eBay 'resulted in a significant reduction in availability of injunctive remedies for patent infringements, especially in the context of patents on standardized technologies, such as standard essential patents covering WiFi or 5G telecommunications technologies in mobile devices.' This means a slowdown in key R&D needed to bring forth next generation innovations that drive American technological prowess.
The Biden Administration DOJ did not support interpretations of eBay that favor injunctions. The new Trump DOJ, however, seems to have reversed course by putting forth new justifications for injunctive relief.
On June 24 DOJ, joined by PTO, filed a 'Statement of Interest' (SOI) in Radian Memory Systems v. Samsung. Radian Memory Systems claimed that Samsung had purposely infringed Radian's flash drive technology patent. The SOI agreed with Radian that the firm had been 'irreparably harmed,' a key factor supporting the grant of an injunction under the eBay holding.
The SOI stated that a valid patent is 'a unique asset . . . with the rights (like the right to an injunction) that the [patent] statute prescribes.' The SOI added that '[i]n cases of unique assets, courts have commonly found irreparable harm when damages are difficult to calculate[,]' as is the case here.
The SOI also noted that an injunction gives patent owners important protections on how and to whom a license to their patented technology is given. What's more, the prospect of an injunction deters infringement by firms that otherwise would think they 'had nothing to lose' other than the risk of having to make future royalty payments.
As noted patent law expert Gene Quinn puts it:
'[I]t seems clear that the Trump Administration is advocating a new path forward and a return to the possibility of an injunction issuing to patent owners—even a preliminary injunction. And with the DOJ and USPTO intervening in this case so early, whatever the ruling, the case seems destined for the Supreme Court.'
Next Steps
Recent actions by the PTO and DOJ limiting PTAB challenges to patents and supporting the broader issuance of court injunctions for patent infringement are significant. They signal a move back toward the more patent friendly approach of the first Trump Administration.
These changes, particularly if coupled with appropriate legislative reform, could give a strong boost to patent-based innovation – and thereby enhance the prospects for future American technological leadership.
