By Jonathan Band

Policybandwidth

During the presidential campaign, the Heritage Foundation organized Project 2025, which produced a 925-page plan for transforming the federal government if Donald Trump were elected. Trump disavowed any connection between the campaign and Project 2025, but since the election he has appointed many individuals involved with Project 2025 to important positions in the new Administration. Thus, the Project 2025 plan is likely to inform the positions the Administration takes on intellectual property issues.

Most notably, the plan says nothing directly about copyright law. The term does not appear in the 925-page document. There are, however, numerous references to patents and intellectual property more generally. Many of these appear in the context of responding to claimed unfair practices by China, including theft of intellectual property. The other IP-related proposals of the Project 2025 plan are discussed below.

Trade Policy

The plan contains several interesting comments about the nexus of trade and intellectual property outside of the China context: 

  • The plan opposes the inclusion of IP chapters in trade agreements. The plan states that:

¨Trade policy works best when it sticks to trade and treats separate issues separately. Trade agreements since the North American Free Trade Agreement (NAFTA) have been increasingly burdened by trade-unrelated provisions involving labor, environmental, intellectual property, and other regulations. […] Trade-unrelated provisions are routinely hijacked by progressives and rent-seekers and dilute otherwise worthwhile trade agreements. They also create additional points of contention that make agreements unnecessarily difficult to pass. A conservative trade policy should limit trade-unrelated provisions in trade agreements.¨ (797)

The Plan hastens to add that 

¨This does not mean that conservatives should ignore international negotiations on labor, environment, intellectual property, and other non-trade issues. It means they are more likely to succeed by treating each of them separately rather than letting them die in committee with each providing an additional sticking point for delaying the others.(797)

  • The plan then contradicts itself by urging the United States to join the successor agreement to the Trans Pacific Partnership Agreement (the Comprehensive and Progressive Agreement for Trans Pacific Partnership) after the U.S. restores the IP provisions that were suspended when the U.S. pulled out of the TPP. (815)
  • The plan opposes efforts to provide intellectual property waivers for cutting-edge technologies, such as for COVID-19 vaccines and therapeutics, through the World Trade Organization’s Trade-Related Aspects of Intellectual Property Rights agreement. (685)

USPTO

The plan has a detailed discussion of the function, structure, and policies of the United States Patent and Trademark Office. It incorrectly states that the USPTO “carries out a core constitutional mandate from Section 8, Article 1,” the constitution’s IP clause. (685) While the IP clause grants Congress the authority to enact the patent and copyright laws, the IP clause is not a “mandate” to do so.  

Moreover, the plan conflicts with the Supreme Court’s view of intellectual property:

¨Strong intellectual property (IP) protections form the bedrock of American business and are a key factor in making the U.S. economy the most innovative in the world. As such, a conservative Administration must constantly work to strengthen IP rights and combat the incorrect view that strong IP rights somehow limit innovation. (685)

The Supreme Court, in contrast, recognizes that the IP system must reflect a careful balance between incentives for authors and inventor to create and innovate, and the public’s interest in using those creations and inventions. 

The plan suggests structural changes for the USPTO for the purpose of increasing efficiency and effectiveness. It should be made into “a performance-based organization under the Office of Management and Budget;” or it “should be consolidated with the National Institute of Standards and Technology (NIST) in a new U.S. Office of Patents, Trademarks, and Standards, with all non-mission-critical research functions eliminated or moved to other, more focused, federal agencies.” (664)

Finally, the plan recommends some specific IP policies, including:

  • “Support like-minded countries as candidates for leadership in the World Intellectual Property Organization and build strong relationships with international partners to strengthen intellectual property rights;” (685)
  • “Take a balanced approach to the Patent Trial and Appeal Board and prioritize rapid and transparent processing of applications and appeals;” (685) and
  • “Re-examine patent eligibility requirements in Section 101 of the Patent Act and support internal and/or legislative reforms to enable U.S. leadership in critical and emerging technologies such as quantum computing, 5G, and artificial intelligence;” (685). 

Contrary to plan’s pro-IP bias, enabling U.S. leadership in emerging technologies such as artificial intelligence may require preventing the over-protection of IP. For example, treating the ingestion of content for AI-training purposes as a copyright infringement rather than a fair use could cede the current global leadership of U.S. firms in generative AI to China.

Conclusion

Project 2025 does not present bold new ideas relating to intellectual property; it simply reflects the “more is better” approach of the IP industries. The incremental IP-related changes it proposes all would increase protection in a manner that would benefit large corporations at the expense of consumers. It does not recognize that many IP owners are foreign entities, nor that IP is a government granted monopoly that can have an adverse impact on competition and innovation. It only criticizes IP in the context of the conflict presented by government ownership of pharmaceutical patents. (461) To the extent that Project 2025 informs the IP policies of the second Trump Administration, one can expect little disruption of existing U.S. IP policies.