IP WATCHDOG
DECEMBER 31, 2024, 02:15 PM
As we do each year, we’re dedicating the last day of December to readers’ comments on what the IP landscape would look like to them if a little thing called reality was not an issue. So, below are our participants’ heartfelt IP wishes for 2025.
Alden Abbott, Mercatus Center at George Mason University
I wish that the new Trump Administration will work to strengthen protection for intellectual property rights, here and abroad. I hope that it does this through competition policy (such as restoration of the Trump 45 New Madison Approach to patent licensing); through elimination of the threat of unwarranted application of Bayh-Dole march-in; through international negotiations, including fervent opposition to compulsory licensing; and through support for legislation: (1) that will restore the presumption in favor of an injunction when patent infringement is found and (2) that will will eliminate the unwarranted judicial limitations on patentable subject matter.
Lori Cohen, Womble Bond Dickinson
For those who wished the recently enacted Trademark Modernization Act success in 2024, and hoped that its promise to help in removing thousands of goods and services not in use through the new trademark expungement and re-examination proceedings, your wishes came true. On December 13, the USPTO announced:
“We’ve hit a huge milestone—the Trademark Modernization Act’s (TMA) expungement and reexamination proceedings have cleared over 25,000 goods and services from the trademark register. We couldn’t have done it without you. Your petitions helped us identify and clear unused goods and services that blocked other innovators from registering their trademarks.”
The Office stressed that “when registered trademarks aren’t used but remain on the register anyway, they clutter the trademark register, making it difficult for legitimate businesses to obtain their own registrations for the same or similar marks. “
In 2025, more trademark wishes should come true. With the new base model for applications filed under Sections 1 (a) and (b)(use and intent-to-use) and 44 (foreign based), additional charges will be incurred for incomplete applications, free-form goods and services IDs not in conformity to the Trademark ID Manual and, for descriptions that are just too long. With this new model of pricing (like adding extras to a base-model car), the hope is that applicants will seek to avoid these extra costs and file perfect (or nearly perfect applications) to avoid painstaking description review by practitioners and hopefully, streamline examination.
When you wish upon a trademark . . . new requirements will apply.
Marla Grossman, ACG Advocacy
In my wildest dreams, Dick Clark’s Rockin’ New Year’s Eve 2025 gets a remix: the ball drops, the fireworks erupt, and rock stars, country crooners, rappers, and R&B legends actually get paid for the sound recordings blaring from AM/FM radio. Moreover, the celebration doesn’t end at midnight. Fueled by the sweet sound of justice (and royalty checks), the party keeps rolling all year long.
Imagine it: AM/FM radio stops being that friend who always “forgets” their wallet at the club and finally starts paying their share.
Here’s how it goes down: Recording artists, producers, and session musicians across America gather for the countdown and celebration of the new law – we’ll call it “”The Long-Awaited Radio Royalty Reformation” Act”! The ball drops, “Respect” by Aretha Franklin plays, and for the first time in U.S. history, the airwaves harmonize in the universal language of dollar bills. Meanwhile, the rest of the world raises a collective eyebrow and mutters, “About time, America.”
The ripples of this new law extend far beyond Times Square. U.S. sound recording artists finally get royalties from countries that had been holding their payments hostage, waiting for the U.S. to join the global standard. Indie artists—those struggling to make ends meet—see a little extra cash, maybe even enough to replace their broken guitar strings. Best of all, America ditches its membership in the dubious “Exploitation Alliance,” leaving North Korea, Iran, and Cuba as the last freeloaders of the Freebie Federation.
But the real dream? A cultural shift where valuing creative work becomes as American as apple pie. We start treating music as the essential, mood-enhancing, life-affirming IP property that it is – not as someone’s labor free for the taking.
So, here’s to 2025: a year when America finally steps up, tunes in, and gives its artists what they deserve—a little respect and well-deserved royalties.
Adam G. Kelly, Venable LLP
In my wildest IP dreams, I foresee widespread local rules requiring full party disclosures addressing intellectual property ownership interests, litigation funding, and damage award sharing I also foresee the Chicago White Sox winning the World Series, despite their historic loss record in 2024.
Patrick Kilbride, Kilbride Public Affairs
Major IP policy moves seem to come in 10-to-15-year cycles. Arguably, we’re due. America must take back its leadership mantle as the author of global IP policy norms, setting the tone for a domestic agenda to secure U.S. technological leadership and national security through robust and reliable IP rights.
A strategy and plan to re-shore and friend-shore production of critical and emerging technologies to restore America’s technological superiority, manufacturing base, and supply chain resilience is just smart policy. Not all innovation raises national security concerns, though. Wherever it can, in industries such as agriculture, health, and energy, the United States should take a generous stance toward promoting local production of local solutions in developing countries through support for IP licensing on commercial terms and by leading international efforts to bring more global stakeholders into the innovation ecosystem as contributors and not merely beneficiaries.
At home, piecemeal IP reforms should give way to an ambitious overhaul agenda with the goal of recognizing and protecting value added by mental labor in whatever form it is created. Novelty is everything. IP administrators should demand increasingly precise intellectual property disclosures as artificial intelligence tools generate the means to rigorously test new IP claims against prior art to know exactly where the state of the art resides and when it is advanced. Rights should be strengthened commensurately to the point where the robustness and reliability—enforceability—of the system is a strong incentive for its use by economic actors of every size.
Sherry Knowles, Knowles Intellectual Property Strategies
Big dreams for 2025 would include: (i) having a patent applicant appeal a double patenting rejection on the basis of the unconstitutionality of the judicially created non-statutory doctrine of obviousness-type double patenting up to the U.S. Supreme Court as a violation of the separation of powers, (ii) changing the culture of the USPTO to more strongly protect innovators instead of infringers and (iii) changing the culture of management at the USPTO to support pharmaceutical and biotech innovation. My wildest dreams would be for the public and the U.S. government to understand that we can’t have both cheap drugs and new drugs, and there are too many people dying of and struggling with diseases that we don’t have cures for yet to take a sledge hammer to drug prices. It is better to aim frustration at the healthcare insurance and management systems with the multiple layers of administration that affect drug pricing.
Scott McKeown, Wolf Greenfield
In a perfect world, the absolute mess that is patent subject matter eligibility (35 U.S.C. § 101) will be addressed through legislation, and the perennial bellyachers opposing any 101 proposal that doesn’t approach absolute perfection will finally come to their senses — you did say “wildest dreams” Also, in-house counsel will direct more resources to their Tortured Prosecutors Department so that quality patents can be developed and prosecuted in the first instance. The Folklore of the PTAB being the problem has been a very tiresome era.
Shout out to the Swifties!
Amol Parikh, Partner at McDermott Will & Emery
In my wildest intellectual-property dreams for 2025, I picture a world where standard essential patent (SEP) regulation and Fair, Reasonable, and Non-Discriminatory (FRAND) are as clear as a sunny day. There’s a global consensus where everyone agrees on what “FRAND terms” mean, creating a landscape where patent holders and implementers can negotiate in good faith, knowing the rules are fair and transparent.
In this dream world, international harmonization of SEP regulations is a reality. We have a seamless global framework where different jurisdictions don’t clash over interpretations and enforcement. This makes life so much easier for multinational companies and speeds up the rollout of new technologies, making our lives better and more connected.
For this to happen, governments, industry leaders, and legal experts would have come together, set aside their differences, and created a unified, clear, and consistent approach to SEP and FRAND regulations. This dream team effort would drive technological advancement, boost economic growth, and create a more predictable and fair IP landscape for everyone.
Because sometimes, dreams do come true, right?
Brad Pedersen, EnQuanta
My wish is that the Patent Eligibility Restoration Act is enacted.
Randy Roeser, Holland & Hart
If I could have one wild wish for intellectual property law in 2025, it would be to achieve absolute clarity on the requirements for patent eligible subject matter. Over the past decade, anyone involved in patent litigation can attest that determining whether a patent is eligible under 35 U.S.C. § 101 has been an exceedingly complex task. This standard, a fixture in nearly all cases involving patent litigation, is notoriously opaque.
The Supreme Court’s 2014 decision in Alice Corp. Pty. Ltd. v. CLS Bank Int’l set forth the Aliceframework, which has since been widely applied by courts nationwide to patents across diverse subject matters. Unfortunately, this extensive application has resulted in a body of case law that can oftentimes seem as clear as mud, leaving both attorneys and clients questioning the true standard of patent eligibility. As a result, we have witnessed a surge of appellate and Patent Trial and Appeal Board decisions, ongoing calls for change from industry groups, and numerous legislative reform proposals.
While it may seem like an unlikely dream, achieving clarity would enable attorneys to provide more precise guidance to their clients on patent eligibility. This level of transparency would be invaluable as innovation accelerates, new technologies emerge, and artificial intelligence continues to transform our lives. Here’s hoping!
Wendy Verlander, Verlander LLP
For those of my vintage, you will likely remember the movie, Groundhog Day. There, Phil wakes up every morning destined to relive the same day over and over. My wish for 2025 looks a lot like Groundhog Day. I start every year hoping to see passage, or at least significant movement, of the major patent bills – PREVAIL, PERA and now, RESTORE. Patent owners have been at a considerable disadvantage for the past decade, battling Alice challenges to patent eligibility in district courts and IPRs at the PTAB that strike down most claims that come before it. And, because of eBay, for nearly 20 years patent owners have had an exceedingly diminished ability to enjoin infringers, even though they are provided the statutory “right to exclude others” from their inventions. Enacting these three pending bills, along with continued access to litigation finance, would go a long way toward leveling the playing field for inventors.
Josephine Young, Groombridge, Wu, Baughman & Stone
The advent of new technologies means there will be massive growth in how scientists can invent, describe, and support broad categories of therapeutics. My wish for 2025 is that these new technologies create more robust Section 112 support for genus claims, particularly with the development of quantum computing like Google’s Willow, the rise of AI-partnered drug development like Nvidia’s partnerships with various pharmaceutical companies like Amgen, AstraZeneca, Genentech, and Novo Nordisk, and the emergence of various techbio companies like Archon Biosciences, Genesis Therapeutics, and Xaira.