President Donald Trump’s newest executive order is the simplistic “two-for-one rule” that simple states: every time an agency “publicly proposes … or otherwise promulgates a new regulation, it shall identify at least two existing regulations to be repealed.”
While it is easy to see the appeal of less Red Tape, some areas of government have many nuances that require detailed regulations such as patents.
The policy applies immediately at the agency level, including the USPTO. (The military is excluded from the requirements). Each agency is left to determine how to apply this new guideline aimed at simplifying government processes.
An element that is unclear from the order is the granularity of the term “regulation” or “rule” – the definition provides that the terms are defined as “an agency statement of general or particular applicability and future effect designed to implement, interpret, or prescribe law or policy or to describe the procedure or practice requirements of an agency.” Presumably, this would apply to any new rule of practice, new fee, or new PTAB requirement. It is less clear how to what extent this will apply to an amendment to an existing regulation or fee increase.
It will be up to administrators and patent prosecutors to apply this vague directive. Hopefully, it will promote critical examination of the patent application and amendment process to allow for some simplification where it makes the most sense.
In addition to the 2-for-1 approach, agencies are also required to ensure that the total regulatory cost of new FY2017 regulations is zero “unless otherwise required by law” or given permission from the White House.
Time will tell how this sweeping new order impacts the field of Intellectual Property. Count on a patent lawyer to stay up-to-date on changes within the USPTO.
