CPIP: Turning Gold to Lead: How Patent Eligibility Doctrine Is Undermining U.S. Leadership in Innovation
This post originally appeared on SSRN.com on July 1, 2018.
By Kevin Madigan, George Mason University – Antonin Scalia Law School – Center for the Protection of Intellectual Property
Adam Mossoff, George Mason University – Antonin Scalia Law School, Faculty
Date Written: April 13, 2017
Compared to other countries, the United States has long had a “gold standard” patent system. The U.S. has led the world in securing stable and effective property rights in cutting-edge innovation; most recently, in protecting biotech and computer software inventions. Presenting information from a database of 17,743 patent applications recently filed in the U.S., China, and Europe, this Essay explains how this “gold standard” designation is now in serious doubt. Many of these applications represent pioneering, life-saving inventions, such as treatments for cancer and diabetes. Although all 17,743 patent applications received initial or final rejections in the U.S. as ineligible for patent protection and then were ultimately abandoned, 1,694 of them were granted by the European Patent Office, by China, or both. The cause of the U.S. rejections is the Supreme Court’s recent spate of decisions that upended patent eligibility doctrine, especially as it has been applied to high-tech and biotech innovation. The U.S. patent system is increasingly mired in legal uncertainty, except for the firm knowledge derived from data on the massive numbers of invalidations of issued patents and of rejections of patent applications. In addition to highlighting some of the 1,694 inventions that were denied patent protection in the U.S., this Essay discusses this new legal uncertainty in the U.S. patent system, how this is a key change from the innovation-spurring approach of the U.S. patent system in the past, and what this means for the U.S. as other jurisdictions like China and the European Union become forerunners in securing the new innovation that drives economic growth and flourishing societies.
Update to Essay, dated June 28, 2018, posted HERE.