C4IP Q&A Series: Senator Thom Tillis
This month, as part of a newly launched Q&A series, C4IP caught up with Senator Thom Tillis (R-NC). Below, Sen. Tillis shares his thoughts on the current state of our nation’s patent system, the harm in expanding the TRIPS waiver, the need for the Patent Eligibility Restoration Act, and more:
C4IP: Since coming to Congress, you have been a strong advocate for our nation’s innovative and creative industry sectors. Why have you made supporting these industries, and the intellectual property policies upon which they depend, such a priority?
Sen. Tillis: When I worked in the private sector, I saw firsthand the foundational importance of intellectual property rights to the American innovation economy. Strong, reliable, and predictable IP rights provide protections and incentives to creators, which in turn fuels our economy. And when I speak to IP rights I speak to all forms of IP — patents, trademarks, copyrights, and trade secrets.
When I entered the Senate, I sought to extend my experience with intellectual property rights and to apply that experience to the tough policy questions which inventors and creatives are facing. Serving as both Chairman and Ranking Member on the Intellectual Property Subcommittee has provided me the chance to consider tough issues and to seek solutions that will protect intellectual property rights and encourage innovation. We must remain the world’s global leader and innovator, and ensuring strong intellectual property rights will continue to be a primary focus while I serve in the Senate.
C4IP: As Ranking Member of the Senate Judiciary IP Subcommittee, you have played a key leadership role on a wide-range of IP issues. In the 117th Congress, you were particularly active on patent policy and introduced or co-sponsored a number of patent-related bills. Why do you feel it is so important for Congress to focus on patent policy, especially at this time?
Sen. Tillis: I don’t necessarily believe that the first fix for a given issue should be a legislative one. Often times there are various non-legislative options available and I believe that these measures should be explored first. However, there comes a time when a legislative solution is necessary to ensure that IP rights remain strong. A perfect example of this patent eligibility jurisprudence.
As a result of a series of recent U.S. Supreme Court decisions, patent eligibility law has become confused, constricted, and unclear over the years. This has led to inconsistent case decisions, uncertainty in innovation and investment communities, and unpredictable business outcomes. This is not only a domestic issue, but also an international issue as we seek to combat foreign efforts to undermine intellectual property rights, particularly from the Chinese Communist Party.
When I served as Chairman of the IP Subcommittee during the 116th Congress, I prioritized the issue of patent eligibility. We held three days of subcommittee hearings at which 45 witnesses testified about the state of patent eligibility. These hearings confirmed my concern that our patent system was not meeting the moment, and further encouraged me to seek solutions by bringing together stakeholders to work through some of the thorniest patent issues out there.
While negotiations continued, I also worked with my good friends David Kappos and Judge Paul Michel to file an amicus brief in the American Axle case. I believed this case provided the Supreme Court an opportunity to provide much needed clarity to the patent community and to all Americans. This lack of clarity, in terms of patent eligibility law, threatens to hinder innovation and to unseat us as the world’s innovation leader, especially in new and emerging technology sectors such as precision medicine, artificial intelligence, and quantum computing. Furthermore, and even more concerning is that this lack of clarity has the potential to cripple our economic growth. I was sorry to see the Supreme Court declined the opportunity to offer clarity on patent eligibility.
Between the negotiations I engaged in and the decision by the Supreme Court not to consider American Axle, I became convinced that it was time to put down a marker to move the legislative conversation around patent eligibility. That is why I introduced the Patent Eligibility Restoration Act, which is a product of nearly four years of consensus driven stakeholder conversations. It maintains the existing statutory categories of eligible subject matter, which have worked well for over two centuries, and addresses concerns regarding inappropriate eligibility constraints by enumerating a specific but extensive list of excluded subject matter. I look forward to re-introducing this bill, and will work in a bipartisan and bicameral manner to pass this bill and send it to the President’s desk.
C4IP: Over the past 150 years, we have transformed from a mostly agrarian-based economy to become the world’s largest and most diversified economy, and much of our economic success is a direct result of American inventions, innovations, and creative output. What role do you believe intellectual property policies play in incentivizing and supporting invention, innovation, and creativity?
Sen. Tillis: As you know, the importance of IP to the U.S. can be traced back to the founding of our very country. Article I, Section 8, Clause 8, of the U.S. Constitution grants Congress the enumerated power “To promote the progress of science and useful arts, by securing for limited times to author and inventors the exclusive right to their respective writing and discoveries.” This constitutional commitment to intellectual property rights is unique to most other countries. Our founding fathers recognized not just the importance and value in the sciences and useful arts, but they also recognized the importance and value in their protection.
Intellectual property and strong IP rights are fundamental to incentivizing the growth of innovation, which often times require substantial investment. And in turn it is this growth of innovation which fuels the growth of our economy and allows the U.S. to remain the global leader. We must continue to foster innovation through strong IP rights.
C4IP: North Carolina has a robust innovative industry sector, how important is this to the state’s economy and jobs for your constituents?
Sen. Tillis: North Carolina’s innovative industries are incredibly important to our state’s overall economy and to ensuring jobs for our constituents. The Research Triangle Park is a premier innovation hub which has enriched North Carolina’s economy for decades. North Carolina’s commitment to innovation has helped to create, grow, and attract some of the most innovative companies in the world. The success of RTP is in great part due to the close proximity of top research universities such as North Carolina State University in Raleigh, the University of North Carolina at Chapel Hill, and Duke University in Durham. These universities draw students to the region who recognize North Carolina’s commitment to innovation, and choose to stay in North Carolina to start their careers and their own businesses. The work accomplished and innovations achieved within North Carolina not only benefit our great state, but they also benefit our entire country and ultimately the world.
C4IP: You have been a vocal critic of the WTO TRIPS Waiver proposal and any efforts to extend or expand it. Why is this such an important policy issue and what harm would come from a potential expansion of the waiver?
Sen. Tillis: I have been and remain to this day a critic of both the TRIPS Waiver and any effort to widen its scope. In putting forth the TRIPS Waiver the current administration has made an unfortunate and conscious choice to politicize and weaponize intellectual property rights. The TRIPS Waiver would further weaken the U.S. patent system, which in turn leaves the U.S. vulnerable to bad actors, such as China, who have consistently attempted to steal our IP. It also sends the wrong message to our innovators who were instrumental in combating the pandemic both at home and abroad. We will need both existing and new innovators, and their future inventions, to help the U.S. combat future pandemics. As I’ve stated before, I don’t agree with the premise that IP rights are the root cause for the supply issue that we’ve seen with global vaccine access. News reports have shown that these concerns are real and justified.
While I believe the U.S. has a role to play in helping other nations in need, I do not see weakening intellectual property rights as the proper means to do so. This waiver and any work to expand its scope is an extremely dangerous slippery slope. There are already some who have considered leveraging such an expansion for use on other technologies, such as technologies in the energy industry. This cannot be allowed to happen, and I will continue to combat efforts to weaken intellectual property rights both domestically and internationally.
C4IP: Intellectual property has been one of the rare areas of continued bi-partisan consensus, but in recent years there has been an erosion of the traditional bi-partisan support for a strong, domestic IP system. Are you concerned with this trend and what can be done to address this?
Sen. Tillis: With the exception of the TRIPS Waiver, I still consider intellectual property to be, by and large, an area of bipartisan consensus. Intellectual property brings people from different political ideologies together in support of protecting the rights of inventors and creators. Support for intellectual property rights crosses ideological and geographical lines which create interesting coalitions amongst Senators who might not otherwise share anything in common. For example, I greatly value my relationship with former Ranking Member Leahy who became a good friend over the course of our work together. We may disagree on other issues, but on the need for protecting patent rights and intellectual property more broadly, we were frequently aligned. I will continue to champion a bipartisan commitment to working with my colleagues on both sides of the aisle to ensure that the U.S. remains the world’s global leader and innovator.
One great recent example of where bipartisan consensus was alive and strong was the Unleashing American Innovators Act, which I was proud to co-sponsor and work on alongside former Senator Leahy. This bill, which recently passed into law, will foster innovation across our great country by providing additional local resources to innovators of all backgrounds – large and small. This is an important point – regarding smaller innovators, this law will expand access to the Patent Pro Bono Program and reduce application fees for small and micro-entities. This law will effectively expand the reach of the USPTO across our country with the hope that innovators will be able to better engage with the USPTO in order to secure protection for their innovation.
C4IP: Going forward, what can industry do to better support policymakers when it comes to maintaining strong, domestic IP policies?
Sen. Tillis: I would strongly encourage the intellectual property community to stay engaged in educating Congress and advocating for solutions to the challenges they face. I encourage all stakeholders, regardless of their views, to come to the table with reasonable and workable solutions. Not only do we need to learn about what is wrong in our intellectual property system – we also want to hear from you about solutions. Compromise is essential to the legislative process, and I’m willing to work with stakeholders to identify points of contention, resolve concerns, and develop legislation that can get passed.
C4IP: What do you see as the major intellectual property policy debates in the 118th Congress? And what are your top legislative priorities going forward?
Sen. Tillis: Patent eligibility jurisprudence will be a focus of mine. The Patent Eligibility Restoration Act is the result of years of hard work and collaboration amongst those both inside and outside of Congress. I want to see that collaboration continue so that together we can achieve consensus legislation that restores clarity and confidence in our patent system. As I’ve stated before, I introduced this legislation to serve as a marker and to signal my sincere commitment to addressing this important and complex issue in a thoughtful way.
Another area of focus for me is digital piracy. Digital piracy and the bad actors behind it threaten to hinder the incentive to innovate and for content creators to make the songs, movies, and TV shows that we all enjoy. Furthermore, and potentially just as impactful, is the security threat posed by the proliferation of digital piracy. Not only are IP rights under assault but so too are consumers of creative content, including you and me. Online ads can and do mislead unsuspecting users to pirated content and, at the same time, often expose those same users to malicious software, known as “malware.” This issue is particularly important to me given my role as Co-Chair of both the Creative Rights Caucus and the Senate Cybersecurity Caucus. I will continue to focus on this important issue, including through legislative solutions as needed.
Stay tuned for more in our Q&A series.
- On January 23, C4IP Executive Director Frank Cullen published a blog post warning that lawmakers’ latest letter to HHS Sec. Xavier Becerra on the Xtandi march-in petition threatens America’s innovation ecosystem.
- On January 4, C4IP board member Judge Paul Michel (Ret.) coauthored an opinion essay in IPWatchdog arguing that Juno v. Kite presents a rare opportunity for the Supreme Court to grant a rehearing.
- The first Burford Quarterly of 2023 features a conversation between C4IP co-chair Andrei Iancu and Burford Capital Managing Director Katharine Wolanyk on IP laws and U.S. global competitiveness.
- On December 22, C4IP Executive Director Frank Cullen joined host John Rush on Rush To Reason to discuss the hazards of counterfeit products. Listen here.
- On December 21, C4IP released a statement commending lawmakers for including pro-IP provisions and avoiding IP landmines in the FY2023 Omnibus bill.
- On December 21, C4IP Executive Director Frank Cullen published an opinion essay in the Washington Times arguing that assaults on intellectual property are crushing American innovation.
- ICYMI: C4IP co-chair Andrei Iancu recently joined host Tom Temin on The Federal Drive to discuss foreign threats to IP. Listen here.
- ICYMI: C4IP co-chair David Kappos recently discussed all things IP on the On Intellectual Property podcast. Listen here.
- USPTO and FDA Hold Public Listening Session: The USPTO hosted a public listening session with the FDA on January 19 to seek input on proposed collaboration between the two agencies. Instead of providing a balanced platform, “at least six of the speakers… represented entities funded by John and Laura Arnold, a Texas billionaire couple who have been active in sponsoring efforts around drug pricing legislation,” leading many to conclude that the listening session was biased. (IPWatchdog, 1/19)
- USPTO Calls for Input on Draft 2022-2026 Strategic Plan: The USPTO recently announced its draft 2022-2026 Strategic Plan and called for public input on the document. Public comments will be accepted through February 17, 2023. Following this, the final version of the strategic plan will be published in the spring of 2023. (IPWatchdog, 1/09)
- IEA Publishes Report on Innovation Along Hydrogen Value Chain: The International Energy Agency (IEA) published its January report outlining the importance of hydrogen patents in the future of clean energy and technological innovation. The report acknowledges that the United States is losing ground on hydrogen patenting compared to other global competitors. To maintain innovation in this sector, the IEA notes the importance of ensuring there are incentives to invest. (IEA, 1/2023)
- USPTO Recognizes Life-Saving COVID-19 Innovations: Under Secretary of Commerce for Intellectual Property and Director of the USPTO Kathy Vidal recently recognized some of the most vital innovations addressing the COVID-19 pandemic. Five organizations were selected as winners of the Patents for Humanity: COVID-19 category competition. Their patents cover inventions created during the COVID-19 pandemic and were used to develop life-saving treatments. (USPTO, 12/15)
Claim: Former Rep. Bob Goodlatte (R-VA) recently alleged that “our innovation economy is groaning under the weight of…thousands of meritless legal actions” brought forth by “patent trolls [wielding] low-quality patents.” Rep. Goodlatte claimed that the country needs significant reforms to stop these “patent trolls” from “generating waste and inefficiencies” and to “make the patent system work again for the folks it’s supposed to support.”
Correction: America’s patent system is functioning exactly as originally intended — and it has made America an innovation powerhouse. But detractors have decided to target non-practicing entities (NPEs), who license, instead of manufacture, their inventions — much like Thomas Edison did, and virtually every university does today. If you attended college, your alma mater is a NPE. Yet, they incorrectly claim NPEs are just “patent trolls” who routinely buy up low-quality patents and sue companies for infringement to the detriment of the system.
In fact, NPE lawsuit and patent litigation rates in the United States remain generally consistent with historical levels, the data does not indicate a crisis of the system. And NPEs are entitled to codified IP protections against infringement just like everyone else. The Constitution democratized invention in the United States, and expressly did not include a manufacturing requirement in order to obtain a patent. This is precisely what enables individuals of any economic background to patent their inventions — including those who may lack manufacturing capabilities and especially underrepresented minorities. Their patents drive the cutting-edge discoveries that Rep. Goodlatte noted as instrumental in”[moving] our country forward.”
Bottom Line: This claim is false and especially harmful to independent inventors and universities everywhere as well as those with less financial means who seek to license their inventions.
What’s Happening in Congress:
With the 118th Congress underway, Democratic and Republicans lawmakers are weighing legislation to prioritize. Top of mind for those who follow intellectual property policies are:
- The Interagency Patent Coordination and Improvement Act of 2022: In June, Senators Dick Durbin (D-IL), Thom Tillis (R-NC) and Chuck Grassley (R-IA) introduced the Interagency Patent Coordination and Improvement Act of 2022. The bill would create a task force to share patent filing information between USPTO and FDA officials. Given its reach, IP experts caution that Congress should hold off action until both the USPTO’s public comment period and joint USPTO-FDA public listening session on this matter conclude, so that valuable input from key stakeholders can be collected. A version of this bill was just reintroduced in the 118th Congress.
- Patent Eligibility Restoration Act of 2022: In August, Senator Thom Tillis (R-NC) introduced legislation aimed at restoring patent eligibility for important categories of inventions — including life sciences, diagnostics, gene therapies, and artificial intelligence — as well as resolving questions regarding the scope of patent eligibility. Some version of this legislation is expected to be reintroduced in the 118th Congress. C4IP supports this important legislation.
- Patent Trial and Appeal Board Reform Act of 2022: In June, Senators Patrick Leahy (D-VT), Thom Tillis (R-NC), and John Cornyn (R-TX) introduced the Patent Trial and Appeal Board Reform Act of 2022. Entrepreneurs, small business advocates, and IP experts caution that the bill omits important improvements needed to ensure PTAB fairness to patent owners. Given Sen. Leahy’s retirement, it is unclear whether the bill will be reintroduced in the 118th Congress. Advocates for the bill are expected to seek out a new sponsor.
- 118th Congress Organization: The House and Senate are finalizing committee assignments for the 118th Congress. Accordingly, membership and ratios of the respective Judiciary Committees and Subcommittees are also ongoing. Below are the expected Chairs and Rankings:
- House Judiciary Committee: Jim Jordan (R-OH), Chairman; Jerrold Nadler (D-NY), Ranking Member; Darrell Issa (R-CA), IP Subcommittee Chairman; Hank Johnson (D-GA), IP Subcommittee Ranking Member.
- Senate Judiciary Committee: Richard Durbin (D-IL), Chairman; Lindsey Graham (R-SC), Ranking Member; Chris Coons (D-DE), IP Subcommittee Chairman; Thom Tillis (R-NC), IP Subcommittee Ranking Member.
Inside Look: The Future of AI and IP
In recent years, the intersection between intellectual property and emerging technologies — specifically artificial intelligence — has become a subject of significant discussion. And for good reason. Between 2002 and 2020, annual AI patent applications increased from 30,000 to nearly 80,000 according to the U.S. Patent and Trademark Office (USPTO).
Much of the recent debate, however, has centered on whether an AI algorithm should be able to successfully claim inventorship status in a patent application — which it cannot under existing U.S. law. It’s important that IP experts, policymakers, and the general public not get bogged down with this singular question to the extent that they forsake a well-rounded, long-term view of this innovative landscape.
AI is largely a product of dedicated, expensive investments in computing technology, algorithmic developments, and data. Bearing this in mind, prolonged uncertainty over patent eligibility requirements and protections casts a dark cloud over the innovation ecosystem and could stifle access to much-needed financial resources. Our country should be addressing these concerns and encouraging investment in the research, development, and application of AI. To do so requires strengthening our intellectual property laws where they relate to or are affected by AI.
Today, scientists and engineers at elite American universities like the Massachusetts Institute of Technology (MIT) are pursuing cutting-edge research in the field of AI. And as a country, incentivizing these pursuits should be a top priority given that harnessing the power of AI is the future — of the digital economy, of satellites, of personalized cancer treatments, and of any number of things not yet known. But the private sector will be hesitant to pour capital into these transformative ventures if the underlying research lacks access to IP protection.
America’s IP system — writ large — needs to be strong, reliable, and predictable. Only in this environment can innovators secure the kind of private sector investments required to keep the United States on the global forefront of AI breakthroughs. Clear guidance is needed with respect to IP laws and regulations — including for patent eligibility under 35 U.S.C. Section 101, whether AI machines can be named as “inventors,” the type of protection for data used by AI systems, and more. That guidance should be given with an eye toward bolstering the innovation-promoting incentives our system was designed for.
Celebrating American Innovation
This month, C4IP is recognizing an inspiring female inventor who created and patented an appliance that altered home-life forever: the dishwasher.
Josephine Cochrane, American inventor and founder of the Crescent Washing Machine Company. The daughter of a civil engineer, and a socialite who often hosted guests at her home in Illinois, Cochrane understood the laborious task of washing dish-after-dish and risking damage to each as she cleaned. This led Cochrane to develop the “first commercially successful dishwasher,” a machine — employing water jets and wire racks for storage — that could safely and effectively wash a range of kitchenware. Cochrane patented her dishwasher in 1886, then opened her own factory and established the Crescent Washing Machine Company — which sold products as far away as Alaska and Mexico. Her company was later acquired by KitchenAid — a part of the Whirlpool Corporation — which released and popularized its first dishwasher based on Cochrane’s design in 1949. By 2027, it is expected that the global dishwasher market will be worth over $51 Billion.