US midterm elections reshape congressional IP leadership, cloud patent reform prospects

November 10, 2026, 22:31 GMT | Comment Last week’s midterm elections are set to shift control of both the House and Senate to Democrats, shaking up committee rosters and leadership for the 120th Congress. But even with many of the IP-focused members on their way out, policy advocates tell MLex that the upcoming uncertainty can be an opportunity for progress on patent, copyright and litigation funding policy.

Both the leading House and Senate Republicans on IP policy are leaving Congress at the end of this term: California Representative Darrell Issa decided not to seek reelection after his district was redrawn (see here) and North Carolina Senator Thom Tillis chose retirement following a split with President Donald Trump (see here). 

There will be at least 120 freshmen members of Congress between both chambers — a small number of races are yet to be decided — many of whom will be presented with IP issues for the first time. 

“It goes without saying that at this point there's just a lot of uncertainty, especially with all the new members,” the Council for Innovation Promotion’s Chief Policy Officer Jamie Simpson told MLex. “But it’s exciting. It's an opportunity to educate and get to know people who might not have realized that IP was going to be part of their portfolio and help to try and make them aware of the importance of IP to the economy and to their constituents and their state.”

— Changing congressional leadership —

Also leaving Congress is Tennessee Republican Senator Marsha Blackburn, a leading Senate Republican on copyright issues who was elected to be governor of Tennessee, as well as IP-active members Texas Republican Senator John Cornyn, California independent Representative Kevin Kiley and Kentucky Republican Representative Thomas Massie, who each lost reelection bids. 

Combined with a potential change in the Democrats’ leader on the Senate Judiciary IP subcommittee — California Democratic Senator Adam Schiff is considering other assignments with his party now in the majority, MLex understands — up to three of the four committee leaders for IP policy are set to change. Georgia Democratic Representative Hank Johnson is expected to become chair of the House IP subcommittee, a position he previously held from 2019 through 2022.

Leadership of the full House and Senate Judiciary committees is also switching, with only one of the four chairs and ranking members expected to stay. Ohio Republican Representative Jim Jordan was elected to be GOP minority leader on Tuesday, Iowa Republican Senator Chuck Grassley is expected to step down from committee leadership and Illinois Democratic Senator Dick Durbin is retiring. Maryland Democratic Representative Jamie Raskin is expected to chair the House Judiciary Committee.

The new Senate Judiciary Committee leaders are expected to be Utah Republican Senator Mike Lee and Rhode Island Democratic Senator Sheldon Whitehouse, MLex understands. With Jordan elected to lead his caucus, House succession is less clear, but Wisconsin Republican Representative Scott Fitzgerald is a likely candidate, MLex understands.

At the House subcommittee level, Virginia Republican Representative Ben Cline is viewed as a candidate to lead the GOP side, replacing Issa. 

The leadership changes could tangibly impact IP policymaking, as the committee chairs have substantial influence over which bills get hearings and markups. 

Jordan has taken a hands-off approach to IP in the 119th Congress, leaving Issa to run the IP subcommittee largely autonomously. In the Senate, Grassley and Durbin have been more active in IP policymaking than their House counterparts, co-sponsoring multiple patent bills. 

That relationship may flip in the new Congress, though, with the House leaders being less hands-off and the Senate more so. Fitzgerald worked closely with Issa on multiple IP bills and co-sponsored litigation funding transparency reform legislation. If he becomes the ranking member, he could continue pressing for such legislation.

Raskin has also been an active voice in House IP subcommittee meetings, though mostly limited to oversight of the Trump administration (see here).

Both Lee and Whitehouse have experience working on IP policy, but much of it is over a decade ago. Together, they co-sponsored the Patent Transparency and Improvements Act of 2013, targeting what they considered to be abusive patent litigants. Whitehouse was also a co-sponsor of the Defend Trade Secrets Act of 2016 and worked on separate legislation targeting trade secret theft by foreign nationals. Neither has been significantly active on IP issues in recent years when compared to Grassley or Durbin.

But who will lead the Republican side of the Senate subcommittee remains unclear. Outside of the departing Tillis and Blackburn, few Republican senators have been significantly involved in IP policymaking in the 119th Congress. Some committee Democrats have encouraged Alabama Republican Senator Katie Britt to take on the role as subcommittee ranking member, MLex has learned.

For Democrats, Schiff has focused more on copyright issues in his stint as ranking member. If he were to choose not to seek the chairmanship, Vermont Democratic Senator Peter Welch could take over the role, MLex understands. Welch is involved in AI policymaking as well as pharmaceutical patent reform.

Delaware Democratic Senator Chris Coons, the former IP subcommittee chair and most active Democrat on patent policy, is another candidate to take over for Schiff if the California senator were to pursue leadership roles elsewhere. 

But the changing membership doesn’t necessarily spell bad news for IP policy advocates, Alliance of US Startups and Inventors for Jobs Executive Director Chris Israel told MLex. Israel was the Commerce Department’s first US Coordinator for Intellectual Property Enforcement under President George W. Bush.

“I think we're going to be surprised at the upside, frankly,” Israel said. “I honestly think you're going to have new members step forward, maybe with some of the same pieces of legislation, maybe with slightly different versions of them, but want to assert leadership on this issue.”

— Education focus —

The number of new faces on the IP subcommittees and Congress broadly puts an emphasis on the importance of educating members about why IP policy matters, Computer & Communications Industry Association’s Head of IP Policy John Lee told MLex. Lee previously served as the House IP subcommittee’s chief counsel under Issa.

“Our message is going to be that IP policy is key to the economy, and the economy is the number one thing right now,” he said. “So the way IP policy is set, both in Congress and in the [Trump] administration, is that it’s going to be important to make sure that affordability concerns and concerns about jobs, economic growth, et cetera, are met and are serving the American people.”

Simpson, herself the House IP subcommittee’s former chief counsel under Johnson, noted that IP policymakers attempt to tie patent issues to broader policy concerns to encourage participation and education in IP policymaking.

“Since it’s a technical and specialized area of law, we try to tie it to broader issues that [members] are undoubtedly tracking, such as AI or China or national security and the economic side of national security,” she said. “When you go in on those higher level issues, then you can break down where IP fits in, and I think once you start to make those connections, people start to appreciate it.” 

— Patent policy —

The legislation most likely to be sidelined amidst the changing faces of Congress is the Patent Eligibility Restoration Act, or PERA, led by Tillis.

PERA is Tillis’s signature IP policy proposal. It attempts to rein in what he considers judicial overreach into 35 USC § 101, the patent eligibility law (see here). Tillis told MLex that his primary goal in the IP subcommittee this year was to get the bill to markup, but it has yet to reach that point (see here). Without Tillis and Blackburn, only two of the bill’s co-sponsors will be returning: Coons and Hawaii Democratic Senator Mazie Hirono.

Policy advocates critical of the effort tell MLex that without Tillis, the effort to pass PERA may be significantly hampered.

“There wasn't a whole lot of movement on [PERA], even with Senator Tillis chairing the subcommittee,” Business Software Alliance Senior Vice President of Global Policy Aaron Cooper told MLex. Cooper was the Senate Judiciary Committee’s chief counsel for IP and antitrust under Vermont Democratic Senator Pat Leahy. “There might be a little less focus on it next year, depending on who the incoming chair of the subcommittee and full committee is.”

“There's also so much work that both Judiciary Committees will be doing outside of IP that's also going to make it a little bit harder to move some of the bills that are going to be controversial even within the party,” he added, referring to PERA as controversial.

But PERA supporters are holding out hope for new members of Congress. Policy advocates on both sides of the issue are hopeful that they can sway new members to their side with education campaigns.

“[Patent eligibility] is one issue where I think, from my perspective, unfortunately, we'll continue to see a growing body of evidence that the state of law is hurting US industry, particularly in medical diagnostics,” Simpson said. “Even if that doesn't lead to action this year or this Congress, I think it'll continue to make the case for reform. So it might be on a slower track, but I think the case for it is going to grow stronger as we move on.” 

The PREVAIL Act, aimed at reforming the Patent Trial and Appeal Board, is likely to be reintroduced in the next Congress as it is primarily Coons’s effort. Simpson said she could see bipartisan progress on PTAB reform with major Democratic priorities potentially facing presidential vetoes. In times of split government control, IP legislation tends to be a non-partisan issue where progress can be made, she said.

“You're hearing people on both sides of the issue and the frequent users of the PTAB converge around the idea that these swings between directors are not sustainable,” Simpson said, referring to director-led reforms to the PTAB. “It's the right time to try and find a legislative solution for this, and I think with Hank Johnson being the chair, he seems interested in it, and I think there really could be an opportunity to do something.”

If Welch were to take control of the IP subcommittee, expect further debate on the fate of seed patents. He co-sponsored a bill earlier this year to effectively eliminate future utility patent protection for seeds. Welch has argued that agrochemical companies use the protections to harm farmers (see here).

— AI regulation —

Lawmakers could instead focus on AI and copyright law. Some members of Congress have shown an interest in regulating the industry over allegations of widespread copyright infringement, as well as data center development and privacy concerns (see here and here).

Under Welch, AI and copyright issues could become a priority in the Senate IP subcommittee. He leads the TRAIN Act, a bill that would allow copyright owners to seek subpoenas to determine whether their works were used to train AI models (see here).

The NO FAKES Act is expected to return in a new bill in the next Congress. Led by Coons and the departing Blackburn, it would establish a right to a person’s digital likeness and address AI deepfake technology (see here). 

Deepfakes are one of the few areas where Congress has actually passed legislation to regulate AI technology. Congress enacted the TAKE IT DOWN Act in May 2025 to address the nonconsensual distribution of intimate imagery, including deepfakes (see here).

“There was a lot of progress on digital replica issues that Senator Coons was leading, and I wouldn't be surprised if that comes up again,” Cooper said. “There already has been a good amount of education done, and I think it's one [issue] that has the most likelihood of finding a consensus, which can let a bill turn into a law rather than just a talking point.”

“IP issues are not those that often get floor time, particularly in the Senate,” he added. “So finding bills where there is a consensus, so you can get unanimous consent, is always one of the most fruitful places to start.”

Blackburn included NO FAKES in her TRUMP AMERICA AI Act earlier this year — an AI regulation omnibus package — but it has not advanced (see here).

— Litigation funding —

The debate over whether third-party litigation funders should be forced to disclose their interests in litigation is also expected to continue. Litigation funding has become increasingly common in patent cases in the last decade, and funders have financed cases that resulted in some of the largest patent infringement verdicts (see here).

Issa was one of the biggest supporters of transparency mandates in the 119th Congress, arguing that undisclosed outside funding could lead to improper foreign influence over US litigation (see here). Fitzgerald is likely to continue the reform effort in the House, though it never gained significant steam in the Senate.

Advocates for funding argue, however, that transparency would discourage litigation funders from backing patent cases, and that litigation funding is an essential method for small businesses to garner the legal resources necessary to hold large corporate infringers accountable.

“This is important for all Congresspeople to recognize that this is a big big deal, a big chunk of our economy that is worth protecting,” Inventors Defense Alliance Chief Policy Counselor Kristen Osenga told MLex. “Patents play a part in small businesses and their success, and small businesses then play a part in keeping people employed. And if that's not important to get you reelected, I can't imagine what is.”

Osenga is also an associate dean and a patent law professor at the University of Richmond School of Law.

“This is an opportunity. With fresh faces in Congress potentially wanting to build some bipartisan goodwill, this is a space in which both sides can come out with a win if they continue to allow access to third-party litigation funding,” she continued.

— Increased oversight and the USPTO —

Cooper predicted that Democratic control of Congress could lead to tougher scrutiny on US Patent and Trademark Office Director John Squires. Squires was pressed by Issa and Johnson in the House IP subcommittee this year (see here), but faced a much warmer reception from Tillis and Democrats in the Senate (see here).

Cooper said the Democratic Party’s broader push toward tough oversight of the Trump administration could put Squires under pressure as well, specifically on his expansive changes to the PTAB.

“I think that oversight will be an important element to help make sure that members of both committees think that the way the PTO ultimately addresses the patent quality issues is one that they are comfortable with from a policy perspective, as well as consistent with the America Invents Act,” Cooper said. “And that's not what we have right now.”

It’s also unclear if the changing political winds will impact the pending USPTO rulemaking on PTAB reform. The proposed rule, nicknamed “one and done,” would significantly limit access to inter partes review proceedings (see here).

The draft final rule has been under review by the White House Office of Management and Budget’s Office of Information and Regulatory Affairs since late July (see here). The OIRA review period is limited to 90 days, but can be extended by 30 days at the discretion of the OMB director. A 30-day extension would end Nov. 19. Review can be extended indefinitely upon request of the rulemaking agency, though it is unknown if USPTO has made such a request.

“My sense is there's been a good back and forth between PTO and OMB, just at an expert-level with questions from OMB and answers from PTO,” Israel said. “No one's seen the final rule that's being considered right now. But I think there's an assumption that there were some changes made that were in response to concerns that OMB and others had about the initial rules.”

“It's hard to know what's going on inside the black box that is OMB and the interagency clearance process,” he continued. “But they've been open to hearing from stakeholders ... I get that the PTO's sense is that, ‘We gave them a good final rule, they're reviewing it, we'll see where things come out.’” 

While the midterm elections signal a winding down of the 119th Congress, there are some items Congress is still set to address before January. Alongside the expiration of the current government funding measure next month, the USPTO’s fee-setting authority is also set to expire (see here).

Stakeholders interviewed by MLex support renewing the authority, which the USPTO uses to set its own patent and trademark fees, although they disagree over possible conditions. The debate centers on whether to use the fee-setting authority extension as a vehicle to place limits on the USPTO director’s power and discretion over inter partes review, in direct response to the significant PTAB changes pursued in the last two years.

Congress temporarily extended the authority from September to December as part of government funding negotiations (see here).

“The reason why [the authority] hasn't been re-upped until now is that the agency has taken a bunch of rather controversial policy positions,” Lee said. “We're certainly hopeful that there will be continuing conversations between the administration and Congress and stakeholders to try to address some of those concerns with the PTO's policies, and then hopefully there can be some progress there and the fee-setting gets renewed and we can proceed.”

“Something that we all oddly agree on is that there has been a lot of volatility in terms of USPTO policy. It's swung back and forth quite a bit,” Lee added. “So having more consistency would be great ... Unfettered discretion has led to that kind of volatility, and I think addressing that would be great.”

Multiple IP policy advocates on both sides of the debate tell MLex that they believe the most likely outcome for fee-setting authority is another short-term, clean extension, likely tied to the federal budget.

The authority, alongside federal government funding, expires Dec. 11.

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