The American Patent system has been a bulwark of American Prosperity throughout our country’s history. Unfortunately, recent judicial and executive branch blunders that weaken patent protection are a clear and present danger to economic innovation. The federal government should act quickly to restore the vitality of patent system and thereby strengthen the American economy. Patent protection is authorized by the constitution to “promote the progress of science and useful arts”. A patent is a lifetime property right granted to inventors under U.S. Law for a novel, useful, and non-obvious invention. A patent confers the right to exclude others from making, using, selling for sale or selling the invention in the United States or importing the invention into the United States.
The Patent and Trademark Office, an agency within the commerce department, reviews patent application and issues the patent application and issued patents for an invention that meets patentability criteria. Patents played a central role in supporting the Industrial revolution in 19th Century. Patents enabled breakthrough led to new products that fundamentally transformed American industry. In short, the Patents have been at the heart of Successive waves of critically important American commercial innovation and continue to make an enormous contribution to the American economy.
But today the U.S. patent rights are under threat. For starter, the Supreme Court’s decision over the last 15 year has made it harder to obtain an defend a patent. For example, in its 2006 eBay v. MercExchange decision, the Supreme Court made it more difficult for a patent holder to obtain a federal court injunction an order preventing others from using patented technology without permission.
As Gene Quinn, a leading patent lawyer explains these changes mean that today,”there are many other parts of the world that have more expensive views of what can be patented including Europe, Australia, and China. What’s worse the American Invent Act of 2011 established a Patent Trial and Appellate board within the PTO, to review already issued patents at the request of third parties. Patents expert note that this board has weakened havoc, striking down the vast majority of patent claims it considers in a way that undermines fundamental due process rights of patent holders.
By eliminating numerous statutorily protected patents, the board review makes patent less valuable. Investors will be less willing to invest in a patent covering groundbreaking inventions if there be a good chance that copycats seeking a free ride, on these innovations can get the board to kill the patent rights.
In June 2017, the Supreme Court agreed to review the case of Oil States Energy Services v. Greene’s Energy Group, which will decide whether the board’s reviews violate the Constitution by allowing patent rights to be extinguished without the possibility of a jury trial.But given the Supreme Court’s faulty track record, it is far from clear that the high court will overturn the system.That’s not all. Until the past few years, American antitrust policy respected the rights of inventors to receive full and fair returns on their patent rights. But that policy changed during the Obama administration, as antitrust enforcers focused on limiting patent licensing fees on patents that are important in high-tech industries that rely on technical standards.
The harmful consequence of this anti-patent development is becoming apparent. A 2017 U.S. Chamber of Commerce ranking od national patent system found that the United States has slipped to no.10 in the world in the strength of patent protection after having been rated no.1 in prior ranking. This is bad because of economic research,” demonstrates that strong patent systems, which encourages research and development and investment, spur innovation and support robust economic growth.” In short, American innovation and economic growth will suffer if something is not done. Fortunately, there are public policy cures for anti-patent disease. Specifically,
- Federal legislation should eliminate or at the very least strongly rein in the Patent Trial and Appeal Board.
- Congress should also change substantiative patent law to overturn Supreme Court decision that has harmfully limited patent eligibility and remedies for owners
- President Trump should take action to appoint “pro-patent” officials and establish strong “pro-patent” policies throughout his administration.
- U.S. antitrust official should reverse the Obama’s administration misguided anti-patent policies.
- The Trump administration should vigorously oppose foreign action aimed at undermining American patent rights. It should also act on the global stage to promote greater respect and protection for the patent.
While not a panacea, taken together, these proposals provide a blueprint for making America once again the world’s leader in patent protection and for enhancing American innovation and economic growth.