Opinions and Editorials

Jul. 23, 2018

Washington Times: Preserving American industrial competitiveness by Jon Kyl and Joshua Wright

This post originally appeared in the Washington Times on July 23, 2018.

Innovation is the United States’ most valuable economic export and the cornerstone of our international competitive advantage. We are not the world’s largest manufacturing nation, but we are the world’s leading creator of technology and innovation, with innovative enterprises contributing to more than a third of our entire economy.

The United States’ leadership in innovation can be seen in markets as diverse as wireless communications, autonomous vehicles, artificial intelligence, virtual and augmented reality, medical devices and pharmaceuticals. And that leadership produces myriad benefits, fostering economic growth, improving quality of life, and supporting jobs throughout the economy.

Strong intellectual property rights are the key to that success. The American patent system has been, and remains, a critical force for promoting continued innovation and fostering competition.

Over the past decade, however, our government institutions have shifted their support for innovation and, in some cases, have even attacked intellectual property rights. A decade of Supreme Court decisions have made it harder to obtain a patent, easier to invalidate a patent, and harder to defend a patent. Along with high invalidation rates in post-grant reviews at the U.S. Patent and Trademark Office, and repeated attempts in Congress to change the patent laws, strong patent rights are under assault.

The steady weakening of patent protections has encouraged widespread infringement of patents, as companies that use patented technology in their products (“implementers”) feel emboldened to take their chances infringing on a patent rather than negotiate a fair license (a phenomenon called “efficient infringement”) for the technology. Taken together, these developments have diminished the value of patents, and have contributed to the U.S. fall to twelfth place in the world for IP strength, down from tenth last year (and first every year before that) according to the U.S. Chamber of Commerce Global Intellectual Property Index.