Oh, no! Only a few shopping days remain before Christmas.
It’s vital that the United States outcompete China (and other adversaries and competitors) and reclaim the lead in global technological innovation. Our economic and national security rely on that outcome.
To achieve this, we must reverse the slide of weakening property rights in inventions. We need sound patent policies that restore quiet title to patents, retain the patent system’s democratized and merit-based nature, and ensure that U.S. patent rights are robust, reliable and enforceable.
Moreover, we also need smart trade, tax and antitrust policies that benefit America’s competitiveness. To ensure U.S. success in its mission to promote and protect American innovation, the private sector must be empowered to outrun Chinese, European and other competitors (and trade partners).
American businesses, not government, are the true champions of inventing and spreading American scientific and technological breakthroughs, and their global adoption.
So, here’s my Christmas list for Santa Claus:
Codify the 2019 Joint Policy Statement on Remedies for Standards-Essential Patents. The Justice Department, PTO and NIST affirmed access to injunctions and all available remedies for SEPs. Leadership in standards development and SEP licensing is a competitive advantage that America must own.
Protect the U.S. International Trade Commission from being defanged, as Big Tech and predatory infringers seek.
Design carefully tailored export controls over U.S. innovative technologies that maximize American innovators’ ability to license IP to and collect revenue from foreign firms. We must avoid the extremes of decoupling from China and exporting highly security-sensitive technology. Getting it wrong may spark Chinese retaliation, as it did this year against the American memory chipmaker Micron.
Restore the Hatch-Waxman and the Biologics Price Competition and Innovation Acts’ balance between innovation and return on investment on one hand and timely generic drug and biologics market entry on the other. That is, innovation and access.
Return sensible merger and acquisition rules that incentivize startup activity, allow exit strategies for startups while derisking R&D for large acquirers that have the wherewithal to scale a startup’s innovations. Timely M&A is a critical element of commercializing innovations and sparking dynamic competition.
Build upon the Trump tax cuts with investment tax incentives, such as R&D credits. Tax incentives that fuel investing in R&D will help recalibrate our policies to empower American businesses as key allies in achieving our economic and national security goals.
Codify former PTO Director Andrei Iancu’s administrative reforms to PTAB proceedings and denials, and his 2019 Revised Patent Subject Matter Eligibility Guidance.
Enact into law then-Assistant Attorney General Makan Delrahim’s New Madison Approach as doctrine for navigating the nexus of patent rights and exclusivity with antitrust.
Additional pro-patent, pro-innovation legislation to put into law:
The RESTORE Patent Rights Act, which overrules the 2006 eBay v. MercExchange jurisprudence. eBay has fostered predatory patent infringement. The RESTORE Act would restore access to the customary equitable remedy of injunctive relief for proven infringed patents.
The PREVAIL Act, which would codify beneficial PTAB administrative reforms that add greater fairness and due process for those whose patents are hauled before that body. These include standing, the same burden of proof courts and the ITC apply, and other standards and procedures federal courts and the ITC observe.
The Patent Eligibility Restoration Act, which abrogates judicially created exceptions to patent eligibility. PERA restores patent eligibility for computer-enabled inventions and life sciences patents at the heart of medical diagnostics and gene therapy. Certain exclusions would clarify that naturally occurring matter and laws of nature aren’t patent-eligible.
The Restoring America’s Leadership in Innovation Act, which is the most comprehensive bill, would reset the above three and more aspects of our patent system that have weakened U.S. patents, patent rights and our patent system itself—to America’s competitive and economic detriment.
Please, Santa, help the American innovators on your “nice” list.