terminate, to the maximum extent allowed by law, all DEI, DEIA, and 'environmental justice' offices and positions (including but not limited to 'Chief Diversity Officer' positions); all 'equity action plans,' 'equity' actions, initiatives, or programs, 'equity-related' grants or contracts; and all DEI or DEIA performance requirements for employees, contractors, or grantees.1
The new administration’s recent decision to shut down all Diversity, Equity, and Inclusion (DEI) initiatives is forcing federal agencies, including the United States Patent and Trademark Office (USPTO) to restructure, or even eliminate DEI programmes, or at the very least, to recast their descriptions on the agencies’ websites.
Recent USPTO DEIA initiatives
In recent years, the USPTO has developed and fostered various DEI initiatives designed to increase access to the innovation ecosystem among underrepresented groups such as women and minorities. Programmes like the USPTO’s Council for Inclusive Innovation, the Women’s Entrepreneurship Initiative, Black Innovation and Entrepreneurship program and outreach efforts to Historically Black Colleges and Universities (HBCUs) aimed to increase awareness, education and accessibility to patenting resources, as well as to guide its participants through the process of idea, to intellectual property, to market.
In an interview with Law360, Kathi Vidal, who resigned in December 2024 from her position as Under Secretary of Commerce for Intellectual Property and Director of the USPTO, remarked that during her tenure at the USPTO, the agency:
created a more energized and innovative workforce and hired and retained the best talent while increasing productivity and improving quality…focused on lifting and supporting all employees — not through quotas or preferential treatment, but by de-biasing systems and providing opportunity for all…[and that] work was bipartisan and supported the business and economic imperative of improving the timeliness and quality of [the agency’s] work, reducing patent and trademark pendency, and issuing robust and reliable IP protection.2
New direction for the Department of Commerce and USPTO?
Howard Lutnick, prior to his nomination as Secretary of Commerce in the new administration, the agency under which the USPTO falls, confirmed he espoused DEI initiatives as fundamental to gaining a broad perspective3. However, these comments now appear at odds with the administration’s mandate to end government DEI programmes. It remains to be seen how the USPTO will artfully balance this mandate with its primary goal of rewarding and fostering innovation.
Does “America First” really foster US innovation?
The new administration is driven by its “America First Policy” to “champion core American interests and always put America and American citizens first”4. Integral to this policy is a directive to “assess the status of United States intellectual property rights such as patents, copyrights, and trademarks” conferred to non-US inventors, and to “make recommendations to ensure reciprocal and balanced treatment of intellectual property rights...”5.
While enhancing the US intellectual property system will certainly benefit US innovation (e.g. the PREVAIL ACT (Promoting and Respecting Economically Vital American Innovation Leadership); PERA (Patent Eligibility Restoration Act); RESTORE Patent Rights Act (Realizing Engineering, Science, and Technology Opportunities by Restoring Exclusive Patent Rights Act of 2024), doing so to the disadvantage of foreign applicants could be considered inconsistent with the Paris Convention for the Protection of Industrial Property, which the US joined in 1887:
Article 2 National Treatment for Nationals of Countries of the Union
(1) Nationals of any country of the Union shall, as regards the protection of industrial property, enjoy in all the other countries of the Union the advantages that their respective laws now grant, or may hereafter grant, to nationals; all without prejudice to the rights specially provided for by this Convention. Consequently, they shall have the same protection as the latter, and the same legal remedy against any infringement of their rights, provided that the conditions and formalities imposed upon nationals are complied with.
(2) However, no requirement as to domicile or establishment in the country where protection is claimed may be imposed upon nationals of countries of the Union for the enjoyment of any industrial property rights.
(3) The provisions of the laws of each of the countries of the Union relating to judicial and administrative procedure and to jurisdiction, and to the designation of an address for service or the appointment of an agent, which may be required by the laws on industrial property are expressly reserved.
Moreover, dissuading foreign applicants from seeking intellectual property protection in the US could likewise dissuade investment in US business, and potentially restrict the availability within the US of technologies patented outside the US. In this regard, legislative measures such as PERA are critical to encouraging the pursuit of IP protection in the US, as judicial-made policy has created obstacles to IP protection in critical areas such as computer-related inventions, artificial intelligence and medical diagnostics, where such obstacles do not exist outside the US.
Restricting Diversity, Equity and Inclusion cannot foster innovation
Without providing inclusive access to the innovation ecosphere, we risk ignoring the creativity that arises from diverse perspectives. Such diverse perspectives lead to change – and change is the essence of invention and innovation. If the US wants to compete as a world leader in innovation, it must not stifle the diversity of thought that arises from the equitable inclusion of all voices.
FICPI's view and involvement
FICPI itself has been making great strides to increase diversity of its membership and representation of more diverse individuals on its committees and senior leadership. FICPI endeavours to ensure that women are equitably represented in FICPI working groups, governance and as speakers at FICPI conferences.
In the past few years in particular, this has been driven by FICPI’s DEIA Committee, and through the Presidency of Roberto Pistolesi, who early-on declared that encouraging younger IP attorneys to join FICPI was one of his goals.
Initiatives such as the Young IP Attorney of the Year and encouraging more diversity of speakers at platforms such as the FICPI Congress and Open Forum form part of this strategy.
Next steps
- Consider becoming involved with FICPI’s DEIA Committee, find out more here: https://ficpi.org/commissions/deia-committee
- Get involved with organising FICPI webinars and contributing your ideas for speakers from diverse backgrounds here: https://ficpi.org/commissions/webinar-committee
References:
1 Executive Order 14151.
2 https://www.law360.com/articles/2291130.
3 https://www.msn.com/en-us/politics/government/trump-s-commerce-secretary-pick-publicly-affirmed-dei-at-us-companies-before-nomination/ar-AA1yRw7e
4 America First Policy Directive to the Secretary of State, Executive Order 14150 dated January 20, 2025
5 America First Trade Policy, Presidential Memorandum dated January 20, 2025, specifically referring to rights conferred to those in the People’s Republic of China (PRC).