The Emanuel memo directs federal agencies to withdraw any unpublished regulation from the Office of the Federal Register (OFR).
Any regulations already published in the Federal Register will now see a 60-day extension of their effective date in order to "allow interested parties to provide comments about issues of law and policy raised by those rules".
The order could affect the USPTO's final rules on claims and continuations and Board of Patent Appeals and Interferences proceedings, as well as pending rules on information disclosure statements and Markush claims.
Despite concern over the potential scope of the memo's retroactive effects, some in the IP community see it as solely forward-focused.
"As I read it, it does not affect final rules that have already been published and would have had an effective date prior to the date of this particular memo," said Steve Kunin of Oblon Spivak McClelland Maier & Neustadt.
Kunin is also a former deputy commissioner of patent examination policy at the USPTO.
Kunin added: "I think this is very similar to every new administration basically saying: 'We do not want any incumbents or acting bureau heads to publish final rules before a new political appointee has had a chance to review the situation and decide whether to go forward'. It's principally intended to be prospective."
Kunin said that the key question raised by the memo is "how far down that policymaking scheme" it will be applied.
"There's a lot of internal memoranda policymaking done below the rulemaking level - PTO patent examination procedure, patent examination guidelines - and those have some particular policy implications," he said.
With its focus on patent continuations and the overall boundaries of the PTO's authority, the Tafas v Dudas appeal in the Federal Circuit raises yet another question. "I think the Rahm Emanuel memo would treat that as water already over the dam," Kunin said. "There's a big-picture issue here which goes to the question of whether the administration would seek to moot the appeal. I think they would not, unless they could get the parties to vacate Judge Cacheris' opinion, which I don't think the parties would be willing to do."
In an interview last week, acting USPTO director John Doll indicated to Managing IP that a new administration might not choose to pursue the claims and continuations rules. "I still think we were right - I think we had good reasons to do it. But they're certainly not the silver bullet that cures the ills of all the system."
Doll said that, although it likely won't be his decision to make, the administration will have to weigh whether implementing the rules - in the event that the Federal Circuit allows it - is the right way to proceed. However, he added: "If I had to advocate, I'd say it's worth going ahead."
At this point, few certainties exist as to the posture the new administration will assume on IP issues. However, three IP-specific goals were published as part of the new administration's technology agenda, broadly aiming to strengthen foreign and domestic IP rights and reform patent law.
While the language assures that IP interests have not been overlooked, the extent of the administration's intentions remains unclear.
Setbacks in appointing a commerce secretary have delayed administrative change at the PTO.
John Doll will remain the Office's acting director until President Obama appoints a new one, at which time Doll will return to his previous post as commissioner for patents.
According to the USPTO, it has taken up to 11 months in past transitions to appoint a new director.
