One Up Two Down: Trump Orders on Regulation

trumpsigningPresident 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proposes … or otherwise promulgates a new regulation, it shall identify at least two existing regulations to be repealed.”  Trump did not yet indicate which two of his prior executive orders will go to allow for this one.  Thank you very much … [Read the order it: twoforoneorder]

The policy applies immediately at the agency level, including the USPTO.  (The military is excluded from the requirements).

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.

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.

A note on agency regulatory cost.  In general, cost calculations are done separately from benefit calculations.  In its 2014 report, the Obama OMB “estimated the total cost of federal regulations to range between $68.5 and $101.8 billion and the total benefits to be between $261.7 billion and $1,042.1 billion.”  The Congressional Research Service also explains that “estimates of the cost of regulation should be viewed with a great deal of caution” because they are usually wrong.

Question for patent prosecutors: What PTO regulations should be eliminated? 

About Dennis Crouch

Law Professor at the University of Missouri School of Law. Co-director of the Center for Intellectual Property and Entrepreneurship.

96 thoughts on “One Up Two Down: Trump Orders on Regulation

        1. Just like a non-abstract one (in real life); however, this is the US Supreme Court we are talking about, and they feel that whatever they say, simply must be so….

  1. That’s easy. Rule 1.56 should be repealed, or at least highly restricted. The duty of disclosure is burdensome, not only on applicants and practitioner, but also on examiners who must wade through submitted documents to determine what documents are actually relevant to the examination. Those examiners are often buried in prior art references many of which are duplicative n there teachings or simply not that relevant. This is because, due to the added risk of committing inequitable conduct by neglecting to submit a reference that turns out to be relevant. Very few other patent offices have a regulation similar to rule 56. The most notable example, the EPO, has a much more sensible rule–all foreign search reports for corresponding cases must be submitted. And in the case of search reports prepared by the USPTO, the EPO has an agreement with the USPTO that allows them to retrieved automatically, eliminating the burden on the applicant.

  2. In addition to identifying large parts of 1.97 and 1.98 for repeal, how about repealing the rule that only someone of record (and not just acting in a representative capacity) can sign a Terminal Disclaimer?

  3. I first thought this was just a joke (Trump satire) by Dennis when I first read this. I’m still in shock that this is real.

    So let’s take an example. Let’s say that the USPTO decides to do away with the duty of disclosure to align with the majority of other countries and reduce patent prosecution costs (obviously this would increase enforcement costs for both parties but Trump seems to play chess looking only one move ahead). But now the USPTO has to find two other regulations to repeal?? What two rules in the CFR can easily be repealed?! This is just going to cause a freeze in new rulemaking, nixing new rules that may actually help reduce red tape and compliance costs.

    1. No.

      The E.O. requires IDing to regs for repeal if you wanna ADD a regulation. If you repeal one, you don’t have to repeal two others. If you did, they repealing one would lead to elimination of all regs.

      1. But it defeats the purpose of making less red tape for companies. Just by adding one regulation and removing two does not mean red tape will be reduced. That would actually take an analysis of the rules and careful consideration of which regulations should be removed.

        The executive order sounds great to people who know nothing about regulation, but the PTO regulations are a case in point: what get removed and why? And if something does get removed, would it actually benefit business? Probably not.

        Like most of what’s happening right now, this executive order simply makes no sense.

  4. “Question for patent prosecutors: What PTO regulations should be eliminated? ”

    37 CFR 1.97

    …or at least it should be re-written to forbid informing the Office of any Patent document (Patent, application or the like) published by any patent office, including and especially any document of any kind cited in the prosecution of a related application.

    I understand the need to inform the Office of material information only the inventor or a small group around the inventor is aware of, but the whole system is predicated on the ability of the Office to find the relevant published information on its own. If the Office has that ability, then filing IDSs is just busy work. If the Office doesn’t have that ability, we’ve got bigger problems.

      1. +2

        Also, assuming this is kept, then provide a check box for a continuation/divisional where the references in the parent will not only be cited in the continuation/divisional but will also APPEAR ON THE FRONT PAGE of the patent for the continuation/divisional. I can’t tell you how many hours we waste creating new IDSs for continuations/divisionals, when the PTO has all the same material.

        1. I can’t tell you how many hours we waste creating new IDSs for continuations/divisionals, when the PTO has all the same material.

          “Waste” is the operative word, for sure, at least if you don’t have a system that automates this. What benefit does this provide to the client?

  5. You may not like the President, but your references to the 25th amendment are inappropriate.
    If you want to refer to Article II, Section 4, by all means engage in such inane rhetoric, but to refer to the line of succession (as a thinly veiled implication of his death) is beyond the pale and plain gross.

    Dennis -you gotta get this creep under control.

      1. At least one of the (oft repeated) references is still there at 10.

        Ah yes, I recall the days of DISQUS, wherein ALL of a persons posts could be collectively viewed (which would highlight exactly where the blight in this “ecosystem” is at)…

        That is, unless (and until) the highest level of “secrecy” was selected. Hint: only a very select few (and not incoincidentally, all having the same anti-patent viewpoints) ever opted for that highest level.

        It does not take a Flash of Genius to figure out the obvious connections.

    1. If you want to refer to Article II, Section 4, by all means engage in such inane rhetoric, but to refer to the line of succession (as a thinly veiled implication of his death) is beyond the pale and plain gross.

      Or, we could presume that he was talking about Section 4 of the 25th Amendment, which has nothing to do with anyone’s death. This simple-minded executive order lends at least a little support to the idea of exploring whether or not this provision might come into play.

    2. Oh lookie! It’s a new s0ckpuppet!

      your references to the 25th amendment are inappropriate.

      It’s totally appropriate.

      to refer to the line of succession (as a thinly veiled implication of his death)

      That’s not what I’m doing. For the record, if Trump were to fall over dead tomorrow I’d be incredibly happy and so would many many many millions of other people around the world. I’d probably have a party and I might even pop the champagne that I set aside for the day that Duck Cheney kicks it.

      I don’t need to “thinly veil” anything, by the way.

      pale and plain gross.

      Grosser than grabbing a woman by the crotch because you think you can get away with it and then bragging it about it? No, I don’t think so. Grosser than feeding l i e s to white supremacists for years about President Obama being born in Kenya? No, I don’t think so. Not at all.

      I’m talking about section 4 of the 25th amendment, by the way. That’s the part that talks about the President being unable to perform his duties because, e.g., he’s men t@lly ill. You see, hose of us who weren’t born yesterday remember when we had an old President in the White House whose brain was turning into swiss cheese. This was kept hidden from the public by the concerted efforts of the President’s staff and the media. We don’t want that to happen again.

      The evidence that Emperor Tangerine is men t@lly ill and unable to perform his duties is piling higher with each passing day. He’s a clinical narcissist who is being used as a blunt instrument by white supremacists whose main objective is to destroy the Federal government.

      Also, a little news flash: I’m not going anywhere and you’re not going to stop hearing about the end of this maniac’s Presidency until it’s over. So get used to it.

      1. Also, a little news flash: I’m not going anywhere and you’re not going to stop hearing about the end of this maniac’s Presidency until it’s over. So get used to it.

        Prof. Crouch: time to change that by-line.

        1. “anon”, can you remind everyone why you believe that Dennis gives a flying eff about what you think?

          Give us all a little peek into the workings of your narcissistic brain. We’ve got our b@rf bags handy. Go for it.

          1. It is NOT a matter of what I think, Malcolm (nice projection of your own self-centeredness), but rather, it is merely having the by-line accurately reflect what the editor of this vehicle allows and does not allow.

            Hey, if he is unwilling to maintain the “ecosystem,” then he will surely get what he has gotten these nigh eleven years past.

      2. “He’s a clinical narcissist”

        Clinical narcissism is not a disqualifying mental disorder. Try again.

        What’s next? Are you going to ban all trans people from holding higher office? Don’t be a trans/able phobiaist MM.

    1. Yep. The order is meaningless, as Crouch suggested with order’s lack of explanation about what a “rule” is.

      But as red meat for Trump supporters, the order is staple food.

  6. I wonder when the resident Constitution humpers are going to tell us when the 25th Amendment applies to our men t@lly incompetent “leader.”

    Just kidding. We all know that the Constitution exists only to protect their pocketbooks from taxes, patent invalidation and other forms of “stealing.”

  7. Every time Trump“publicly proposes … or otherwise promulgates a new Executive Order, it shall identify at least two existing Trump Executive Orders to be repealed.”

    1. How about every time Trump “publicly proposes … or otherwise promulgates a new Executive Order, it shall identify at least two existing Executive Orders to be repealed.”
      Why limit it to Trump Executive Orders?

  8. Nothing is less likely to cause offence than a rational and civil acceptance of a disagreement of ideas and philosophy. That said, the sheer fact of such a disagreement might cause such offense by its mere knocking on the door of a closed mind, but I do not and cannot believe that is the case here.

    Your fussing is unwarranted here.

      1. Anon2,

        I would agree whole heartedly that you personally would have no such offense, but my comment was not directed to you. It rather to the C3ns0r who recently wiped out an equally agreeable comment as if that comment were the plague (at the same time permitting some much more severe blight to run rampant).

        I too would find it difficult to fathom that such occurs, and yet, the posts have been removed.

      2. My reply is blocked, but the short of it is that you were not the targeted recipient and there is absolutely zero animus to your posts.

        I agree fully that it takes some serious closed mindedness, but alas, that is how it is.

    1. I previously spoke of the Dow Chemical plant that pulled out of California because it could not get its permits approved. link to google.com. Dow pulled out because it could not satisfy the requirements for air pollution.

      But, I suspect, Dow eventually built that plant, but not in the US.

      The reason disk drives are no longer made in the US has primarily to do with environmental regulations. Even without doing any investigation, I would think that this is the same reason that most high technology manufacturing has left our shores.

      People need to understand just how much damage to the US economy is caused by excessive regulations. True, we need to stop pollution, but slow walking permits to delay and to drive up costs is not necessarily conducive to prosperity. We need simple rules, clear standards, etc., the compliance with which is relatively simple and straightforward, and which are not excessive in terms of benefit vs. cost. Industry needs to know whether they can build a plant with reasonable certainty and at what cost.

      1. Or maybe there is a spot for that nanny-ish “One World Order” so that the environmental protections are enforced world-wide and that Corporations cannot play the game of pitting one sovereign against another in such a environment harming manner (you should apprise yourself of the level of environmental devastation that has been committed in China – or the level of continued devastation that certain “clean air” accords would allow to contine [just so that ‘they’ can ‘catch up’]).

        Being as it is though, I would simply prefer that our sovereign recognize the fact that certain juristic persons (trans-nationals) have a reduced allegiance to the sovereign, and should have their “voices” reduced accordingly.

        Our sovereign SHOULD put our sovereign interests first (as should every sovereign – to mirror Adam Smith’s Invisible Hand at the sovereign level).

        Everyone loses when the trans-national with allegiance to NO country gets too much say. Quite naturally, they optimize “the game” for their own bottom lines.

        1. anon, the reason the Senate rejected the climate change protocol or treaty back in the Clinton administration is that big countries like China carved out exemptions for themselves because they said it would retard their economic growth.

          Indeed, we cannot approach some, if not most, environmental regulations only as California, or as the US, as companies can simply go elsewhere. Nor can we grant countries exceptions because they need to grow. Obtaining truly neutral international treaties in this regard is probably not going to be possible.

          What we can do is limit air pollution of cars sold in the US. Companies cannot avoid that by moving elsewhere.

          1. …the natural extension of that would be to require ALL products sold in the US to be tied to the SAME laws as apply to those items manufactured here (and not just environmental, but labor and other laws as well).

            You want US customers? Then the elimination of any (and I do mean any) “foreign advantage” needs to be neutralized.

            We both know that such will not happen as long as Citizens United style of “voice” for Transnationals give them far too much powerful influence over our representatives.

  9. Dennis, on PTO Regulations:

    New one: require all reexamination orders or PGR institutions be personally approved by the Director and repeal all prior regulations regarding ordering reexaminations or instituting PGR’s. Then have the Director summarily deny all such petitions and order a refund of the filing fees.

  10. Gee, I wonder what’s coming up next from Puppetb0y Pumpkin? Some “executive order” telling restaurants owned by “sincere religious people” that they can refuse to serve people on the basis of “gayness”?

    Oh, what fun it is being ruled by an incredibly unpopular s0 ci0 path incompetent who, after stealing an election, is transparently being used as a “blunt instrument” by white supremacists trying to cause as much chaos and harm to as many people as possible. How is it going to end?

    Gee, it’s so hard to predict! Just the first day of week two, all you deep serious people.

  11. I would say that after the regulation raising excess claim fees for large entities gets passed, we get the rid of (1) the regulation that prevents the public from challenging granted patents in IPRs on the basis of eligibility and (2) the regulation that prevents the public from seeing Gil Hyatt’s junky submarine patents.

      1. Regulations are regulations, some lawyers say.

        And they’re all bad if they get in the way of stuffing money in your pocket, as fast as possible, at least according to the s00per awesome Republican Party of America. So let’s get rid of these pesky laws and regulations and let the invisible hand decide for once! What could go wrong? Some poor people die maybe. So what? Poor people are lazy people. They got it coming and they probably stole more than their fair share of “wealth” from deserving non-lazy people already. Freedom!

        1. You are listening to the wrong lawyers (either that, or you have some fundamental aversion to the way things really are – especially if someone outside of your silo mentions the way that things really are).

  12. Anybody remember the immortal line in the film Salieri, when the Emperor, in the front row of the inaugural performance, was invited to comment on Mozart’s masterpiece.

    “Too many notes” he said.

    Invited by young Wolfgang to say which notes should be deleted, the Emperor was at a loss for words.

    One has to laugh. Doesn’t one. Otherwise one would despair.

      1. “Triumph of the Will” is always good for a laugh, too.

        Incredible speeches! Very powerful and inspiring stuff.

        Sadly, all the beauty of the movie is obscured by the liberal myths sp0 0nfed into our ch i ldren’s brains by iv0ry towerists, s0 cial planners and the “political correct” p0 lice.

        Ooops … sorry about that. I picked up “anon” and 6’s script by accident.

      2. Beg pardon, Ben and thanks for the correction. Amadeus, of course, even over here

        Tell me Ben, over there with you, is there that saying that one should not trust anybody standing for office who declares that there is a simple solution to all the complexity of life in today’s complicated world of checks and balances. There simply isn’t, and it is delusional to suppose that there is.

        There are opportunities to streamline the law. Like when Europe got together to write its European Patent Convention, from scratch, in 1973.

        Or when Germany wrote its brand new Constitution right after the war.

        There is an opportunity right now in the USA, of course, if The Congress and The President are of one mind on what they want. But even as I write the words “one mind” I despair.

      1. Les, I could kiss you, for providing that U-Tube Link. As you point out, and as I had forgotten, after the orange-faced Austrian Emperor gratefully seizes upon the words “Too many notes!” offered him by one of his toadies, he kindly goes on to explain to Little Wolfgang that it is a well-known fact that there are only so many notes one can cope with, in any one evening. The surrounding sycophants all look doubtful about that, but nod anyway.

        Well done Les.

  13. I wonder when the resident Constitution h u mpers are going to tell us when the 25th Amendment applies to our me nt@ll y incompetent “leader.”

    Just kidding. We all know that the Constitution exists only to protect their pocketbooks from taxes, patent invalidation and other forms of “stealing.”

    Is everyone keeping track of the microscopic number of s0 0per d0 0per “important” rich white “innovators” who’ve popped up at GQ’s ce ssp0 0l to complain that the patent system is totally broken? I am.

    Meanwhile, competent patent attorneys have work coming out of their ears …

  14. Prof Crouch, I don’t mean to be churlish, but your take on this is like “Other than that Mrs. Lincoln, did you enjoy the play?” Which regulations might profitability be repealed is an interesting topic of discussion, but aren’t there others that suggest themselves here?

    Like for instance:

    “Why not repeal four regulations for every one new regulation? Or seven, or nineteen?”

    “Is it slightly concerning that major matters of life, death, and money are to be decided by utterly capricious and arbitrary quantities of things that cannot be meaningfully measured in distinct quanta”?

    “In some future rule, will schoolchildren be required to get 40 winks of sleep, exactly”?

    “Will the Joint Chiefs be required to save 9 stitches if something goes wrong”?

    “Will two wrongs, by executive order, be construed to make a right”?

    Inquiring minds want to know.

  15. Reg. A
    Reg. B

    Reg. C = substance of A + B + some new junk

    Reg. C constitutes more regulation, greater complexity (less clear perhaps?), but the “number” of regulations has “decreased”.

    Numerical calculation of “two for one” does not achieve the goal of reduction.

    As for “costs or savings”, government does not create wealth, all it does is redistribute it, that said, assuming a “benefit” can be attached to redistribution, then this calculation does become complicated for those who allege such “benefits” exist.

    Perhaps this sort of thing; broad, sweeping, and very complicated as it is, “The Reduction of Federal Regulation and Associated Spending”, should be tackled with adequately lengthy and detailed legislation such as in a Bill from Congress, otherwise it will likely be hopelessly unworkable.

    1. Um…the government very well can create wealth. Why can’t it?

      Do you know the difference between investment and savings?

      Do you understand that the government (noticing that WE are the government) invests in productive activity all the time?

      1. Martin, from your tone, I have concluded you do not honestly want to know my opinion, or to know what I think, or why I think it. Which is perfectly fine. I am giving you what you actually want.

        That said, please feel free to state your own opinions. This is a forum after all.

        1. Sure I’d like to know your opinion anon2. But when someone says something totally divorced from reality, how do you tend to respond?

          Highways create wealth.

          Basic research creates wealth.

          Effective contract enforcement creates wealth.

          Educational subsidy creates wealth.

          A functional air traffic control and safety system creates wealth

          Accurate weather and disaster forecasting creates wealth

          These are not matters of opinion.

          1. Well, if you don’t have the wealth, taking from those that have it might make sense, recognizing that war is inevitable. (See, Elizabeth I). Regardless, the policy of Elizabeth drained Spain and allowed the British to build a fleet that because the foundation of British power.

            Got Save the Queen!

            1. The Authoritarians and Beneficent Totalitarians had it right… force creates wealth, they just didn’t use enough force in enough ways and weren’t smart enough to ensure force was used in all the ways that “work” to create wealth and prosperity. We can only hope for a return to the bright and glorious future of a ruled humanity who although unwilling will reap a bounty untold heretofore.

      1. Dennis: I agree it is a vast understatement, in that it does not determine what “wealth” is, nor what activity would properly fall under the concept “creation” and which activity would not.

        I suggest we have very different ideas as to what constitutes wealth and its creation.

        Ironically, we likely agree that voluntary trade which objectively and subjectively benefits both parties to a transaction and does not constitute any harm to anyone else, is likely the best example of wealth creation. What could be better?

        As for most other situations… I suggest (and you likely agree) we likely disagree.

        :)

        1. Anon2, I am not really following your logic about voluntary trade creating wealth per se. Let me explain my confusion with a concrete example.

          Individual A has an apple, and Individual B has a banana. Individuals A and B voluntarily trade the apple and banana with each other so A has the banana and B has the apple. While A may be happier possessing the banana and B possessing the apple, how has wealth been created? There is still just an apple and banana, only who possesses each object has changed as a result of the trade. So, I am not seeing how voluntary trade, in and of itself, creates wealth.

          Can you give me an example of a voluntary trade creating wealth so that I understand what you mean?

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