Op-Eds

C4IP Board Member and former Chief Judge of the U.S. Court of Appeals Paul Michel recently penned an op-ed in the DC Journal shining a spotlight on how Big Tech companies undermine smaller businesses by exploiting the Patent Trial and Appeal Board (PTAB). These companies overwhelm their smaller rivals with costly patent invalidation challenges at the PTAB, exploiting their vast financial resources to suppress competition. Judge Michel provides valuable insight into the PTAB’s original purpose: improving the efficiency and cost-effectiveness of the patent system to support American inventors and entrepreneurs. Unfortunately, as Judge Michel points out, the board’s reality has strayed far from its founding principles. In order to restore balance and protect the rights of small inventors, Judge Michel argues that Congress must reform the PTAB by passing the Promoting and Respecting Economically Vital American Innovation Leadership (PREVAIL) Act. “Small businesses help make America’s economy tick. They are responsible for most technological breakthroughs that allow us to protect our national security and compete with global rivals,” says Michel. “Passing the PREVAIL Act would help inventors and small businesses defend their rights — and show that, even after a divisive election, Democrats and Republicans can come together to make the system work better for ordinary Americans.”

Former U.S. Ambassador to China, U.S. Secretary of Commerce, and Governor of Washington Gary Locke recently authored an opinion piece in the Minnesota Star Tribune highlighting the importance of two bipartisan bills to Minnesota’s innovation ecosystem. According to Locke, the Promoting and Respecting Economically Vital American Innovation Leadership (PREVAIL) Act and the Patent Eligibility Restoration Act (PERA) would address imbalances and inefficiencies in the patent system as well as provide much-needed clarity on which inventions qualify for patent protection. Locke details how recent developments have created significant barriers for American innovators: Large companies have weaponized the Patent Trial and Appeal Board by filing duplicative legislation against their smaller competitors, and in addition, a series of Supreme Court cases has decreased the number of cutting-edge technologies eligible for patentability. He calls on Minnesota leaders to support the PREVAIL Act and PERA to address these issues, stressing the importance of these bills to their state’s innovation economy: “Minnesota’s congressional delegation can help safeguard both Minnesota’s economy and America’s technological competitiveness by lending their support to these bipartisan bills.”

C4IP Co-Chair and former USPTO Director Andrei Iancu recently published an opinion piece in The Hill that discusses the current confusion around patent eligibility and explains how the Patent Eligibility Restoration Act (PERA) will “set matters right.” Should modern inventions like genetic blood tests to detect disease biomarkers or artificial intelligence be patent-eligible? According to Iancu, the Supreme Court has attempted to provide some clarity on this issue in four recent cases over the last 15 years — but these rulings have only served to confuse matters more. During Iancu’s tenure as Director at the U.S. Patent and Trademark Office (USPTO), the office issued guidelines that clarified many of these patent eligibility issues. But this guidance can only go so far. Iancu asserts that the continued uncertainty stemming from the Supreme Court rulings underscores the need for legislative action. “It will take a change in the law to set matters right,” Iancu argues. “That’s the gap the Patent Eligibility Restoration Act (PERA) fills.”

C4IP Co-Chairs and former USPTO Directors Andrei Iancu and David Kappos recently published an opinion piece in RealClear Health highlighting the unintended consequences that would arise if the Medication Affordability and Patent Integrity Act (MAPIA) is passed by Congress and signed into law. Supporters of the bill argue that drug companies take advantage of a lack of coordination between the Food and Drug Administration (FDA) and the U.S. Patent and Trademark Office (USPTO) to inflate drug prices. But Iancu and Kappos contend that these claims are baseless, because existing legal safeguards already prevent this sort of behavior. They further argue that MAPIA’s unnecessary reforms would create government waste and inefficiency, exacerbate backlogs in the patent examination process, and weaken intellectual property rights to the benefit of international rivals like China. “Blurring the lines of authority around the comprehensive processes already in place at USPTO and the FDA won’t make patients better off,” Iancu and Kappos explain. “It’ll only jeopardize American companies’ competitive edge, squander government resources, and help foreign competitors and copycats.”

C4IP Co-Chair and former USPTO Director Andrei Iancu recently published an opinion piece in Law360 highlighting the importance of passing the bipartisan RESTORE Patent Rights Act. This bill, introduced by Senators Chris Coons (D-DE) and Tom Cotton (R-AR) and Representatives Nathaniel Moran (R-TX) and Madeleine Dean (D-PA), would reinstate injunctions as the default remedy in patent infringement cases, helping inventors block infringers from selling copied products. Iancu explains how the act would nullify a 2006 Supreme Court case called eBay Inc. v. MercExchange LLC, which weakened patent protections by abandoning the precedent for injunctions against patent infringers. This decision left the door open for patent piracy of American inventions. “Over the last two decades, judicial decisions have made it harder for inventors to keep patent-infringing goods off the market. Intellectual property theft costs the U.S. economy as much as $600 billion annually, indirectly aiding geopolitical competitors like China, which is the primary IP infringer,” Iancu states. “Protecting — and even strengthening — the ITC and passing the RESTORE Patent Rights Act would help ensure inventors get the justice they deserve.”

C4IP board member and retired federal judge Kathleen O’Malley recently published a new opinion piece in World Intellectual Property Review on how the proposed NO FAKES Act would help guard creators’ and artists’ intellectual property against the misuse of emerging AI technology. The Nurture Originals, Foster Art, and Keep Entertainment Safe (NO FAKES) Act would create a new “digital replication right,” which allows individuals to authorize or prohibit the use of their likeness and voice. As O’Malley explains, existing laws are insufficient to govern the use of AI technology, which has transformative potential but also a large capacity for misuse. The NO FAKES Act would allow for further AI development and encourage creative uses of the technology while simultaneously protecting human singers, actors, and artists for years to come. O’Malley concludes, “The NO FAKES Act would preserve the incentives that drive creative expression — while ensuring that, in the digital age, our identities, our art, and our innovations remain inviolably our own.” Read the full op-ed here.

C4IP Co-Chairs and former USPTO Directors Andrei Iancu and David Kappos recently published an opinion piece in Fortune about how Big Tech firms have weaponized the Patent Trial and Appeal Board (PTAB) to steal smaller companies’ patents — and how the PREVAIL Act would solve this. Since the creation of the PTAB in 2011, Big Tech firms have attacked smaller companies by filing ceaseless legal challenges with the PTAB so that startups are forced to waste resources and time repeatedly defending their patents. But as Iancu and Kappos explain, the bipartisan PREVAIL Act would reform the PTAB by banning duplicative litigation in this tribunal court and in federal court, too. They also debunk the idea that the PREVAIL Act would drive up drug prices, pointing out that the PTAB rarely sees cases related to pharmaceutical patents — and that strong and defensible patents benefit consumers by catalyzing high-tech innovation and empowering small firms to compete. “Startups and small firms are often at the forefront of developing [innovative] technologies, but they’ll never succeed if corporate behemoths can plunder their ideas and bully them with repetitive litigation when they fight back,” Iancu and Kappos assert. “PREVAIL would create a level playing field where small businesses have a fighting chance against established industry giants.”