Op-Eds

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.”

Over the weekend, Karen Kerrigan, president of the Small Business and Entrepreneurship Council, published an opinion piece in the Duluth News Tribune emphasizing the contributions that small business owners and entrepreneurs make to innovation and promoting the passage of legislation that would empower them. Kerrigan recounts the inspiring stories of several historical entrepreneurs who patented breakthrough technologies, including Alexander Graham Bell’s telephone and Steve Wozniak and Steve Jobs’ GUI for Apple computers. She connects these success stories to the strong patent rights that help inventions blossom into new industries, and explains how similar breakthroughs are harder for small companies to achieve today due to the erosion of patent rights. Fortunately, Kerrigan argues, passing the Patent Eligibility Restoration Act and PREVAIL Act would help fortify the patent system that underlies America’s innovation ecosystem — and empower small innovators and entrepreneurs to develop “the world’s next big idea.” “By defending patents, we protect breakthroughs and encourage innovation — and we defend the workshop, garage, and dorm-room innovators who make breakthroughs possible.”

Yesterday, Andrei Iancu — C4IP co-chair and former USPTO director and undersecretary of Commerce for intellectual property — published an opinion piece in The Hill explaining why the Patent Eligibility Restoration Act and PREVAIL Act are key to protecting U.S. national security. Iancu reveals how reforming the Patent Trial and Appeal Board (PTAB) through the PREVAIL Act would empower American startups against larger competitors. He also demonstrates how misguided Supreme Court jurisprudence has created confusion around the patentability of emerging technologies, stunting innovation and making the Patent Eligibility Restoration Act essential. Passing both bills, Iancu asserts, would empower U.S. inventors to compete with adversaries like China in the race for global innovation leadership. “To maintain national security, the United States needs to strengthen its technological capabilities — and to do that, we need to incentivize innovation, fast.”