U.S. patent system weakens: Protect IP to keep American tech at the top

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This article was written by Paul R. Contributed by Mitchell.

The United States cannot compete with low-wage countries when it comes to producing cheap, mass-produced widgets. Our labor and regulatory costs are just too high.

But when it comes to creating the best technology, from semiconductors and smartphone operating systems to advanced drugs, we can – and historically – beat every other nation.

Unfortunately, this benefit is disappearing. Rival countries have greatly improved their regulatory policies, enabling technological advances.

America, meanwhile, is moving in the opposite direction. Our leaders are either ignoring or actively undermining patents, trademarks, copyrights and other intellectual property (IP) protections that encourage companies to invest heavily in new technologies.

Until recently, the U.S. There was a patent system – and it was called the world’s best, global “gold standard”. Surprisingly, it was imitated by other nations, especially China, its arch-rival. In the last few years, China has upgraded its system in such a way that in many respects it is now ahead of our own. Patents are granted faster, infringement trials are much faster and cheaper, measures such as restraining orders to prevent more IP theft are more common, eligibility standards are more comprehensive, specialized courts are more numerous and laws are amended and modernized almost annually. is coming. The list goes on.

Meanwhile, for more than a decade, the United States has been undermining its patent system. In 2011, Congress overreacted to exaggerated complaints from Big Tech companies about “patent trolls” – hunter-gatherers who buy overly vague patents and then sue reputable companies in the hope of getting a quick settlement – and establish a powerful organization. Did. New tribunals within the U.S. Patent and Trademark Office that review patents and generally invalidate them are challenged, even if the courts have previously upheld the validity of those patents.

The Supreme Court has also successfully facilitated the challenge of patents in the courts, made orders to prevent generally unavailable infringement, and reduced the scope for patent-worthy inventions. Today, many of the most important patent inventions found here are found worthy throughout Europe and in leading Asian countries, including China. No corrective action was taken even when the adverse effects of congressional reforms and Supreme Court decisions became apparent in practice.

In fact, for nearly a decade, the Supreme Court has denied dozens of requests to repeat and amend or clarify its rulings, and Congress has failed to rectify or rectify the damage caused by the inadvertently injected errors in its 2011 U.S. Invents Act. This marks a major failure of US leadership.

Fortunately, leaders are emerging in the US Senate who are focused on reviving patents to accelerate economic growth and job creation: Senators Kuns, Tillis, Hirono and Cotton. They are trying to make more inventions eligible for patenting.

Separately, Senator Schumer, the majority leader, and Senator Young are proposing to increase federal funding for technology by sponsoring the American Innovation and Competition Act, which was passed in the Senate and is now awaiting action in the House of Representatives.

The effort is also important for the U.S. recovery in the economy and technology as public funding, which helps promote private sector innovation, has been shrinking for decades as a percentage of GDP – as is private investment, due to recent anti-patent “reforms.” “Venture capital firms generally insist on acquiring ownership rights before sending the necessary funds to their clients. Therefore, our prospects for future prosperity increase or decrease in line with the strength of IP security, which encourages investments that lead to technological advancement.

So far, however, Big Tech has persuaded many of its peers to leave matters alone. His army of lobbyists constantly arrives on Capitol Hill, informing members that patent revival is not necessary and, in any case, they are too controversial to address safely. The patent revival has been misrepresented politically as the “third rail”. In fact, only a few members, as named above, understand the link between strong patents and strong economic recovery.

His lesser-known colleagues may have taken it from recent USPTO directors Kappos and Yanku. However, from the different administrations of the various parties, they agree with me, who have now retired from the “patent court” of the country, that it is necessary to fix our ailing patent system for economic progress. And we must do so soon before China can turn us into a world leader in advanced technology, such as artificial intelligence, which dominates the 21st century.

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

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

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