Opinions and Editorials

Mar. 1, 2019

Morning Consult: Storm Clouds Lifting on American Invention by Charlie Giancarlo

It is not an overstatement to say that American inventors have faced a perfect storm of judicial and legislative hurdles in recent years, hurdles that have weakened their intellectual property rights and undermined their potential rewards and thereby their incentive to innovate. Thankfully, with dynamic new leadership at the U.S. Patent and Trademark Office, those storm clouds are starting to lift.

Since 2006, the Supreme Court has issued no fewer than a dozen decisions that have weakened patent protections for inventors, making it harder to prove and stop infringement, and sowing confusion over what can and cannot be patented. And in 2011, with passage of the America Invents Act, Congress created an administrative Patent Trial and Appeal Board at the USPTO that further diminished patent rights, making it easier for infringers to invalidate patents that they violated. Many large technology companies are now using this process to issue serial challenges to any new intellectual property that threatens their dominance. As we weakened patent protections in the U.S., our international competitors moved in the opposite direction. For example, it is now easier to patent biotechnology and software in China and the European Union.

The result has been a degradation of our nation’s innovation ecosystem, evidenced by slumping startup activity and venture capital investment increasingly moving overseas. In fact, the U.S. share of global venture capital investment fell to 54 percent in 2017, down from 81 percent in 2006.

This tempest buffeting American innovation has not gone unnoticed. In 2018, the U.S. Chamber of Commerce dropped the United States to 12th place in its international ranking of patent system strength, placing us in a tie with Italy and behind countries such as South Korea and Spain. According to the chamber, the United States dropped in its ranking primarily due to the recent Supreme Court decisions on patent subject matter eligibility and the establishment of the PTAB process.

But this downward trend is beginning to be reversed. In the chamber’s latest ranking, the United States has jumped back to second place, where it is tied with 10 other countries. The group attributes that improvement to actions taken by the USPTO under its new director, Andrei Iancu. Since he assumed office in February 2018, Iancu has taken a number of important steps to improve the predictability and reliability of the U.S. patent system.