Op-Eds
New Patent Guidance on AI Could Quash Innovation
C4IP Co-Chairs and former USPTO Directors Andrei Iancu and David Kappos just published a new opinion piece in the Wall Street Journal exploring how the ambiguity of the USPTO’s recent guidance on patenting AI-assisted inventions could inadvertently discourage inventors from making use of artificial intelligence tools. They highlight numerous ambiguities in the guidance — including not defining what computer functions or programs constitute AI — and argue that this uncertainty will put a target on the back of any patent application that made use of a computer, potentially denying patent protection to the very researchers driving our progress in high-tech fields. Instead of finalizing this flawed guidance, Iancu and Kappos write, the Patent Office should “do its part to encourage AI-facilitated inventions by issuing new guidance that recognizes AI as a tool—and a productive one at that.”
Patents dramatically improve startup success
Karen Kerrigan, the president and CEO of the Small Business & Entrepreneurship Council, just published an opinion piece in the Buffalo News explaining how the Patent Eligibility Restoration Act and PREVAIL Act would help startups gain venture funding and bring their groundbreaking inventions to market. She illustrates the importance of patents to startup success, with patent-holding companies earning significantly more venture capital on average and being significantly more likely to go public. She also clarifies how misguided interventions from Congress and the Supreme Court have made it harder for small companies to earn and protect their patents, putting innovation at risk. Kerrigan concludes by highlighting how PERA and the PREVAIL Act would solve these issues, securing inventors’ rights and revitalizing our innovation economy.
Biden’s shortsighted patent attacks threaten American innovation
The Biden administration is quietly advancing a proposal that could devastate America’s high-tech economy. The White House says the plan is about “beating Big Pharma.” But in reality, it would decimate investment across a variety of sectors. The proposal functionally rewrites a 1980 law known as the Bayh-Dole Act, which allows universities to patent promising discoveries they make with the support of federal grant funding and then exclusively license those patents to a private sector partner for further development and commercialization. Prior to Bayh-Dole, the government retained patent rights on federally funded research and did not grant exclusive licenses for those patents. In practice, few companies were willing to risk millions of dollars to commercialize early-stage technologies if they did not hold exclusive licenses. As a result, very few inventions made it from the lab to the marketplace. After Bayh-Dole, innovation took off. The law has added around $1.9 trillion to U.S. output over the last three decades and has led to the creation of thousands of inspiring start-up firms. Hundreds of products — ranging from medicines and vaccines to battery technologies and electronics — are available to consumers thanks to Bayh-Dole. The law’s authors included a minor failsafe provision called “march in” allowing the government to step in and relicense federally funded patents if a university is making no effort to license the patent, or if a licensee is making no effort to bring the discovery to market. It is this never-used march-in clause that the White House now says can be used as a magic wand to slash the cost of prescription medicines and other consumer goods. The administration’s new guidance encourages agencies to revoke exclusive patent licenses if bureaucrats think the resulting products are too expensive. As someone who spent over 20 years on the federal bench adjudicating patent cases, I can assure you that these bureaucrats are mistaken. March-in was intended as a protection against exceptional cases, not as a broad tool for government intervention. Sens. Birch Bayh (D-Ind.) and Bob Dole (R-Kansas) clearly stated that their legislation does not permit government price setting for products that are widely available on the market. Every president since Jimmy Carter has deferred to Bayh and Dole’s interpretation of their own law, but President Biden evidently believes that his predecessors were mistaken. Yet the Biden administration’s efforts to twist decades-old laws to achieve political wins may not end with Bayh-Dole. Legal filings suggest that the administration is also advancing a radical reinterpretation of Section 1498, a World War I-era statute ...
Why Is The US Helping China Undermine Global Innovation?
C4IP Co-Chair and former USPTO Director Andrei Iancu, along with Mark Cohen, the former director of UC Berkeley’s Asia IP Project, recently published an opinion piece in the International Business Times focusing on China’s secretive policy of issuing anti-suit injunctions, which puts innovative American companies at a major disadvantage when fighting patent theft from Chinese competitors. The anti-suit injunctions, which China has begun issuing regularly in patent lawsuits, require alleged cases of infringement by Chinese companies to be tried in Chinese courts. As Iancu and Cohen point out, this prevents victims from America and elsewhere from receiving fair compensation — and is a blatant violation of international law. They also note that the Biden administration, unlike most of America’s allies, is turning a blind eye to this practice — a worrying development that allows China to continue intruding on U.S. sovereignty and weakening global IP protections for its own benefit. Cohen and Iancu conclude: “We must work with our allies to hold China to basic standards of transparency, due process and non-interference with the parties and courts of our own legal systems… If we don’t act soon, the next time a U.S. lawyer wants to try a patent dispute he may have to travel to Beijing.”
