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US Patent System Weakening: Protect intellectual property to keep American technology at the forefront

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This article was contributed by Paul R. Michel.

America cannot overtake low-wage countries when it comes to manufacturing cheap, mass-produced equipment. Our labor and regulatory costs are just too high.

But we can – and historically have – surpassed every other nation when it comes to developing superior technologies, from semiconductors and smartphone operating systems to advanced medicines.

Unfortunately, this benefit is waning. Competing nations have greatly improved their regulatory policies, allowing for technological breakthroughs.

America, meanwhile, is moving in the opposite direction. Our leaders neglect or even actively weaken patents, trademarks, copyrights and other intellectual property (IP) protections that encourage companies to make massive investments in new technologies.

Until recently, the US patent system was the best in the world, the global “gold standard”, and recognized as the best. Not surprisingly, it has been imitated by other nations, most notably arch-rival China. In recent years, China has expanded its system to the point where it surpasses ours in many ways. Patents are granted more quickly, infringement proceedings are much quicker and cheaper, remedies such as injunctions to prevent further IP theft are much more common, eligibility requirements are broader, specialized courts are more numerous and laws are revised and modernized almost annually. The list goes on.

Meanwhile, the United States has been weakening its patent system for more than a decade. In 2011, Congress overreacted to overblown complaints by big tech companies about “patent trolls” — predatory firms that buy up overly vague patents and then sued legitimate companies for patent infringement in the hope of a quick settlement — and instituted one powerful lawsuit launched a new tribunal within the US Patent and Trademark Office that reviews and usually invalidates patents in dispute there, even when courts have previously upheld the validity of those patents.

The Supreme Court has also made it easier to successfully challenge patents in court, made injunctions to stop patent infringement generally unavailable, and narrowed the scope of inventions that even qualify for patentability. Today, many important inventions not considered patentable here have been found legal across Europe and in leading Asian countries, including China. Even when the negative 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 review and revise or clarify its rulings, and Congress has failed to correct or mitigate the harm caused by the deficiencies it found in its America Invents Act of 2011 inadvertently introduced. This represents a major failure on the part of the US leadership.

Fortunately, leaders are emerging in the US Senate who are focused on reviving patents to boost economic growth and job creation: Senators Coons, Tillis, Hirono and Cotton. They lead efforts to make more inventions patentable.

Separately, Senator Schumer, the Majority Leader, and Senator Young are proposing to increase federal funding for technology by sponsoring America’s Innovation and Competition Act, which passed the Senate and is now pending passage in the House of Representatives.

These efforts are also critical to the U.S. economic and technological recovery, as public funds, which help spur private-sector innovation, have been shrinking as a percentage of GDP for decades — as has private investment, in part due to the recent anti -Patent “reforms”. .” Venture capital firms typically insist that their clients acquire ownership rights before committing the necessary funds. So the prospects for our future prosperity rise or fall with the strength of IP protection, which stimulates the investments that lead to technological breakthroughs.

So far, however, Big Tech has persuaded many of its peers to leave things alone. Their legions of lobbyists constantly flock to Capitol Hill, suggesting to members that patent revival is unnecessary and, in any case, too controversial to safely address. The revival of patents is politically wrongly declared as the “third rail”. In reality, few members, like those above, understand the connection between robust patents and a robust economic recovery.

Your less informed colleagues can take it from recent USPTO directors Kappos and Iancu. Although they hail from different administrations of different parties, they agree with me, who I have now withdrawn from the nation’s “patent court,” that economic progress requires repairing our ailing patent system. And we must do so soon – before China replaces us as the world leader in advanced technologies like artificial intelligence that will dominate the 21st century.

With technology, it’s not just about our prosperity, it’s also about national security.

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

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