US patent system weakens: protect IP to keep US technology at the top

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This article is contributed by Paul R. Michel.

America can’t beat low-cost countries when it comes to manufacturing cheap, mass-produced widgets. Our labor and regulatory costs are simply too high.

But we can — and historically have — surpass any other country when it comes to creating superior technology, from semiconductors and smartphone operating systems to advanced medicines.

Unfortunately, this advantage is disappearing. Competing countries have greatly improved their regulatory policies, enabling technological breakthroughs.

America, meanwhile, is going the other way. Our leaders are actively neglecting or even weakening the patents, trademarks, copyrights and other intellectual property rights (IP) that drive companies to make massive investments in new technologies.

Until recently, the US patent system was – and was recognized as – the best in the world, the global “gold standard.” Unsurprisingly, it was imitated by other countries, especially arch-rival China. In recent years, China has upgraded its system to the point that it now surpasses ours in many ways. Patents are granted faster, infringement procedures are much faster and cheaper, remedies such as injunctions to prevent further IP theft are much more common, admission standards are broader, specialized courts are more numerous and laws are reviewed and updated almost annually. The list continues.

Meanwhile, the United States has weakened its patent system for more than a decade. In 2011, Congress overreacted to overblown complaints from big tech companies about “patent trolls” — predatory companies that buy up overly vague patents and then sue reputable companies for infringement, hoping to get a speedy settlement — and a powerful new tribunal within the US Patent and Trademark Office that reviews, and usually invalidates, the patents challenged there, even if courts have previously confirmed the validity of those patents.

The Supreme Court has also made it easier to successfully challenge patents in courts, made injunctions to stop infringements generally unavailable, and narrowed the scope of even patentable inventions. Today, many major inventions that are not patentable here are eligible for patentability across Europe and leading Asian countries, including China. Even as the ill effects of Congressional reforms and Supreme Court decisions became apparent in practice, no corrective action was taken.

In fact, for nearly a decade, the Supreme Court has denied dozens of requests to reconsider and revise or clarify its rulings, and Congress has failed to correct or ameliorate the damage caused by the flaws it inadvertently in his America Invents Act of 2011. This represents a massive failure of American leadership.

Fortunately, there are leaders in the US Senate who are focused on reviving patents to boost economic growth and job creation: Senators Coons, Tillis, Hirono and Cotton. They are leading the effort to make more inventions eligible for patentability.

Separately, Senator Majority Leader Schumer and Senator Young propose to increase federal funding for technology by sponsoring the American Innovation and Competition Act, passed in the Senate and now pending action in the House. of Delegates.

This effort is also vital to economic and technology recovery in the US, as public funding, which fuels private sector innovation, has been shrinking as a percentage of GDP for decades – as has private investment, in part because of the recent anti-government. patent reforms.” Venture capital firms typically insist that their clients acquire ownership rights before deploying the necessary funds. Thus, the prospects for our future prosperity rise or fall in line with the strength of IP protections, which stimulate investment leading to technological breakthroughs.

So far, though, Big Tech has convinced many of its peers to leave things alone. Their legions of lobbyists are constantly teeming with Capitol Hill, its members suggesting that patent revivals are unnecessary and in any case too controversial to tackle safely. The revival of patents is politically incorrectly labeled as ‘the third rail’. In reality, only a few members, such as those mentioned above, understand the link between robust patents and a robust economic upswing.

Their less-informed colleagues can pick it up from recent USPTO directors Kappos and Iancu. Although they come from different administrations of different parties, they agree with me, now retired from the country’s ‘patent court’, that for economic progress our ailing patent system must be restored. And we need to do that quickly – before China replaces us as the global leader in advanced technologies like artificial intelligence that will dominate the 21st century.

As technology goes, not only goes our prosperity, but also national security.

Paul R. Michel served on the United States Court of Appeals for the Federal Circuit for 22 years, and as Chief Justice from 2004 until his retirement in 2010.

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