A Bill to Restore U.S. Patent Supremacy
Since its inception, America has maintained the world’s strongest protections for intellectual property (IP) rights. As a direct result, we stand unrivaled as the most innovative, inventive, prosperous, and powerful nation in human history.
That policy choice was deliberate, not accidental. In drafting our Constitution, the Founding Fathers consciously inserted provisions singling out IP for safeguard. Article I, Section 8 provides that, “Congress shall have Power … To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”
As with other constitutional protections, these provisions reflect the Founders’ fundamental belief in natural rights. The Founders recognized that the protection of intellectual property — in the form of patents, copyrights, and trademarks — is like the protection other types of property, being based on individuals’ right to the fruits of their own labor. As James Madison emphasized, “The public good fully coincides in both cases with the claims of individuals.”
At the same time, the Founders also recognized that the most effective way to incentivize creativity and invention is to assure creators and inventors that they could expect material reward for their endeavors. As one-time patent attorney Abraham Lincoln observed several decades later, “The patent system added the fuel of interest to the fire of genius in the discovery and production of new and useful things.”
Approximately one century after Lincoln, the Supreme Court confirmed that, “encouragement of individual effort by personal gain is the best way to advance public welfare through the talents of authors and inventors.” Accordingly, “sacrificial days devoted to such creative activities deserve rewards commensurate with the services rendered.” Thus America’s history of strong protection of IP rights reflects both the importance of economic incentives — the utilitarian angle — as well as the recognition that free people possess a natural right to the fruits of their labor and investment.
The resulting payoff has been indisputable.
Today, IP-related U.S. industries account for $5.8 trillion, or 35 percent of our GDP. That number exceeds the GDP of any other nation in the world. Importantly, IP industries also account for an astounding 74 percent of total U.S. exports, nearly $1 trillion in value. And America’s IP industries employ over 40 million workers and are growing at a faster rate than other sectors. Finally, employees in IP industries earn 30 percent more than those in other industries — an average of $50,576 per employee compared to the U.S. overall average of $38,768.
From Thomas Edison and the Wright brothers, Hollywood and the music industry, pharmaceuticals and software, to today’s information technology, no society parallels our astonishing record of innovation and prosperity. We cannot, however, simply rely upon our history of IP protection and expect to maintain our global leadership position in these areas. On the contrary, recently there has been a disturbing erosion of one form of IP rights in particular: patent protections. Lawmakers must correct this and adopt policies that will ensure American dominance through the upcoming century.
Indeed, the U.S. has fallen to tenth place worldwide, according the U.S. Chamber of Commerce patent protection annual ranking. We’ve placed first every year prior. That alarming decline has resulted from recent developments that have weakened our patent system, including legislation, policies expanding post-patent administrative review proceedings, and Supreme Court decisions undermining patent protections and enforcement.
In an increasingly competitive and knowledge-based global economy, we must enact laws to encourage technology-intensive small businesses, protect our innovative advantage vis-à-vis Europe and Asian competitors, and preserve high-paying jobs and export-intensive American industries. Fortunately, a new bill in Congress, introduced by Sens. Tom Cotton (R-AR) and Chris Coons (D-DE), aims to do just that. Among other important improvements, the Support Technology and Research for Our Nation’s Growth and Economic Resilience (STRONGER) Patents Act of 2017 would: ensure that patents receive the same protections as other forms of property; permit patent owners to obtain injunctions against infringement during and after litigation; improve and clarify the process by which patents are granted and enforced; restore balance to the post-patent review process by the Patent Trial and Appeal board; and eliminate U.S. Patent and Trademark Office’s fee diversion.
Alongside companion legislation in the House of Representatives, Congress can quickly pass bipartisan legislation that would reverse the recent erosion of patent right protections in the U.S. Patents and other IP rights will play an increasingly pivotal role in protecting economic security and prosperity in today’s competitive global economy. We cannot afford to lose America’s traditional advantage in protecting intellectual property.
Timothy Lee is Senior Vice President of Legal and Public Affairs at the Center for Individual Freedom in Alexandria, Virginia.
