Op-Eds

Yesterday, the C4IP Board published an opinion piece in Euractiv highlighting how the European Commission’s recent proposal for standard-essential patents (SEPs) has empowered China to unilaterally set its own licensing terms, jeopardizing a longstanding model of international cooperation and threatening Europe’s own leadership in wireless technology. In the piece, the board explains how SEPs — which protect widespread technologies that must be standardized in order to function properly, such as Bluetooth, Wi-Fi, and 5G — have long been made available under “fair, reasonable, and non-discriminatory” licenses negotiated between companies. Yet the European Commission’s new proposal would authorize European bureaucrats to decide the terms of licenses, overturning a system that is already cooperative and efficient. Taking cues from this, the board notes, China has recently asserted its own power to unilaterally set licensing rates — an egregious action that sets the stage for future Chinese dominance of wireless technologies. As the board argues, if European regulators proceed with this proposal, they are setting a highly dangerous precedent that could result in the continent losing its status as the leader in wireless technologies. “European innovators already face a dire threat from China. The last thing they need is for the European Parliament to undercut them too.”

Over the weekend, C4IP Co-Chairs and former USPTO Directors David Kappos and Andrei Iancu published an opinion piece in The Hill detailing how the Biden administration’s new proposal for march-in rights under the Bayh-Dole Act would decimate innovation across numerous crucial technology sectors. The administration’s unprecedented proposal, announced in December, would allow government bureaucrats to “march in” and take over the patents on federally funded inventions if they decide that certain arbitrary criteria are met. As Kappos and Iancu explain, this would not only defy the plain text of the law, but it would also impede the law’s goal by deterring investors from helping bring promising technologies to market. Moreover, while the White House has marketed the proposal as a blow to Big Pharma, Kappos and Iancu point out that it would have consequences for every technology area where federal funds are invested — including actively hindering progress on national priorities such as semiconductor innovation. “The administration’s proposal is legally unsupportable and ill-conceived. Adopting it would destroy investors’ incentives to license federally-funded research—and will thus stifle American innovation.”

Merrill Matthews, a resident scholar with the Institute for Policy Innovation, recently published an opinion piece in RealClearHealth calling attention to the numerous attacks on intellectual property that are exacerbating ongoing shortages of prescription medicines. More than 300 drugs are currently in shortage, including 15 cancer drugs, due to falling profit margins in the drug industry that are causing companies to pull out of the market. This problem could soon get even worse if policymakers succeed in their numerous efforts to weaken intellectual property rights. The Biden administration’s proposed new framework for march-in rights under the Bayh-Dole Act, the proposed WTO patent waiver for Covid-19 treatments, and price controls under the Inflation Reduction Act are just some of the policies that threaten the IP-based market incentives for drug innovation. As Matthews explains, “[P]olicymakers keep working to undermine the intellectual property protections and profit motive that drive drug development. Unless that changes, patients should expect more shortages in the years to come, and Washington will be the one to blame.”

Frank Cullen, C4IP’s executive director, recently published an opinion piece in InsideSources tracing back the origins of the legal confusion surrounding patent eligibility — and outlining how the Patent Eligibility Restoration Act would clarify patent eligibility in order to empower the researchers, scientists, and inventors who drive our innovation economy. Cullen’s piece details the numerous Supreme Court cases over the past decade-plus that carved out broad exemptions to patent protection in areas such as diagnostic tests, isolated genetic sequences, and machine learning algorithms. He explains how the ambiguity of these court decisions has generated mass confusion over what specific types of inventions are patent-eligible — causing high-tech research areas to lose out on billions of dollars of investment. Fortunately, Cullen explains, the Patent Eligibility Restoration Act would shore up this issue by offering clear guidance on patent eligibility, thereby strengthening the IP incentives that power American innovation. “The Patent Eligibility Restoration Act will restore the intellectual property protections at the heart of the American innovation economy. That’s why we need Congress to step up as true champions for innovation and pass this critically needed legislation.”

Paul Michel, former Chief Judge of the U.S. Court of Appeals for the Federal Circuit, published an opinion piece over the weekend in IAM detailing the dire need for reform at the Patent Trial and Appeal Board (PTAB) as well as in the area of patent eligibility. Michel’s piece exposes the inconsistencies between the PTAB’s approach and authority in patent validity challenges and those of the federal courts, highlighting how the PREVAIL Act would reconcile key differences between the courts and PTAB to spur innovation. He also identifies how Supreme Court decisions have harmed patent eligibility in certain high-tech areas, a problem that could be resolved by the Patent Eligibility Restoration Act (PERA). While the bills face opposition from corporate interests, Michel expresses hope that lawmakers might be able to find common cause in helping restore American innovation. “[T]hese bills test the capacity of Congress to pass bipartisan legislation that serves the national interest. For the sake of America’s economic prosperity and national security, we should all hope Congress can achieve this goal.”

Last week, C4IP Co-Chairs and former USPTO Directors Andrei Iancu and David Kappos published an opinion piece in Fortune about the U.S. International Trade Commission’s recent order prohibiting imports of some Apple Watch products. The ITC issued the ban after finding that Apple infringed on blood-oxygen-monitoring technology invented by Masimo. Iancu and Kappos explain how this case exemplifies the importance of the ITC’s potent powers, which help to both combat patent theft and keep investment into domestic innovators high. Unfortunately, Iancu and Kappos explain, the so-called Advancing America’s Interests Act would weaken the ITC’s powers, aiding large corporations at the expense of small inventors and foreign rivals at the expense of hard-working Americans. “Put simply, the ITC stops patent infringement. That’s why the ITC’s ruling–and its authority–must remain intact.”