One Up Two Down: Trump Orders on Regulation

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proposes … or otherwise promulgates a new regulation, it shall identify at least two existing regulations to be repealed.”  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?