Op-Eds

In a recent op-ed for Bloomberg Law, C4IP Board Members and retired Federal Circuit Judges Paul Michel and Kathleen O’Malley argue that Congress must pass the bipartisan Patent Eligibility Restoration Act in order to repair the damage the Supreme Court has inflicted on America’s innovation ecosystem. For more than a decade, a series of rulings has narrowed the types of inventions eligible for patent protection. The Court’s 2012 Mayo v. Prometheus decision effectively stripped patent eligibility from medical diagnostics, triggering an estimated $9 billion drop in diagnostic investment over the next four years. Then came Alice v. CLS Bank, which led to a sweeping denial of software and AI patents. As Judges Michel and O’Malley point out, the U.S. Patent and Trademark Office rejected most AI patent applications it received in 2018 because they were deemed ineligible. These rulings have slowed America’s progress in critical areas like biological manufacturing and artificial intelligence while global counterparts, particularly China, surge ahead. “By restoring patent eligibility for categories of inventions that courts have wrongly declared ineligible… PERA would once again give US inventors and companies confidence to invest in technologies that will define our future,” Judges Michel and O’Malley write. “After over a decade of ongoing harm, it is time for Congress to fix the Supreme Court’s mistakes.”

In a new Law360 op-ed, C4IP Board Member and former Federal Judge Kathleen O’Malley explains why Congress should advance bipartisan reforms that would strengthen America’s patent system and protect innovation. She points to three bills as critical starting points. The Patent Eligibility Restoration Act would restore clarity for patent eligibility in emerging high-tech fields like AI, biotech, and medical diagnostics. The RESTORE Patent Rights Act would empower inventors to reliably block infringers from stealing their patented technology, reversing the harmful effects of the Supreme Court’s eBay v. MercExchange decision. And by closing loopholes that allow duplicative challenges to the same patent in multiple forums, the PREVAIL Act would curb a tactic often used by large corporations to wear down smaller competitors through drawn-out litigation. Judge O’Malley also calls for Congress to enact policies that counter foreign IP abuses, particularly from China, and set balanced rules for artificial intelligence that protect against potential harms without curbing innovation. Taken together, she argues, these reforms are essential to ensuring the future of American innovation. “If Congress follows through, the next generation of inventors will not have to fight an uphill battle against corporate giants or foreign competitors rigging the system. Instead, they will have a fair shot to turn big ideas into world-changing breakthroughs,” she writes.

In a piece published by Newsweek, C4IP Board Member and former U.S. Ambassador to China Gary Locke explains how, even as Chinese companies debut world-class technologies — like BYD’s lightning-quick EV charger and DeepSeek’s powerful AI model — some Chinese businesses and leaders are undermining the international agreements that underpin global innovation. Locke points to China’s recent treatment of standard-essential patents (SEPs), which cover universal technologies like Wi-Fi and 5G. Under international agreements, SEP holders must license these technologies on fair, reasonable, and non-discriminatory (FRAND) terms so that businesses around the world can incorporate these technologies into their products. But Chinese courts and regulators have repeatedly tilted licensing rules to favor their own companies at the cost of foreign innovators, upsetting the balance of this framework. The problem is especially pervasive in the auto sector, where Chinese automakers underpay for SEP licenses or even effectively boycott paying these fees altogether. Locke warns that this illegal behavior will hurt economic growth and innovation worldwide, including in China. “If China hopes to help shape the 21st century and steer the global economy, it has to stop acting like a poor developing nation that cherry-picks which international norms it will follow,” he states. “It’s time to recommit to FRAND principles — and reaffirm that every company, regardless of its nationality, must pay its fair share in licensing fees for the technologies we all rely on.”

In a new piece for U.S. News & World Report, former Chair of the Democratic National Committee and Governor of Vermont Howard Dean argues that strong IP protections are essential for safeguarding the innovation necessary to combat future pandemics. He points to the rapid development of COVID-19 vaccines as a case study: decades of patent-protected research enabled scientists to build on mRNA technology to deliver safe and effective vaccines at record speed. Today, research institutions and biotech firms are working with that same sense of urgency to develop vaccines and treatments for bird flu. Their ability to succeed depends on a stable innovation ecosystem — one where investments in risky, long-term research are protected and incentivized. In the op-ed, Dean raises concerns about ongoing efforts to require companies to share confidential research data and waive patent protections during pandemics. “IP protections aren’t barriers to innovation; they are foundations for it,” states Dean. “These protections create the stable ground that allows scientists and companies to make the massive, no-returns-guaranteed investments required to develop new treatments and diagnostics.”

Former USPTO Director and C4IP Co-Chair David Kappos is sounding the alarm on an emerging international threat to American innovation: the growing push to strip US companies of their intellectual property rights. In a new IAM op-ed, Kappos highlights efforts by global institutions like the WTO and WHO to weaken IP protections — first by waiving patents for COVID-19 vaccines, and now through a proposed pandemic treaty that could force U.S. firms to surrender patents and trade secrets to foreign governments. He argues that these policies, while framed as humanitarian, would ultimately stifle the development of new medicines and other technologies by undermining the incentives that make R&D possible. “If biotech firms believe their breakthroughs may be taken away at the whim of international organisations, the incentive to take risks and invest in costly R&D — including during pandemics and other crises — disappears,” states Kappos. Kappos calls on Congress, the US Trade Representative’s office, and other government agencies to defend American IP against international proposals that would compromise America’s innovative edge.

In their new opinion piece published in The Hill, C4IP Co-Chairs and former USPTO Directors Andrei Iancu and David Kappos call attention to a growing threat to American innovation: the erosion of patent enforcement, which in recent years has allowed intellectual property theft to go largely unpunished. Even after securing a patent and successfully proving infringement in court, innovators often find that the infringer can continue selling the stolen product with minimal consequences. Iancu and Kappos liken this phenomenon to someone being found guilty of trespassing but still being allowed to live in your home. This breakdown of basic property rights, they argue, defies common sense and jeopardizes America’s global technological leadership. To address the issue, they urge Congress to pass the bipartisan RESTORE Patent Rights Act, which would once again make injunctive relief the standard remedy in cases where valid patents are infringed. “By passing this much-needed reform, lawmakers can protect the rights of inventors — instead of rewarding thieves who steal innovators’ ideas in disregard of America’s technological leadership.”