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At the heart of the incentive to innovate is intellectual property protections. Patent rights ensure that inventors reap the rewards of their discoveries — the result of untold hours of toiling away, setbacks and money. Yet because of court rulings and policies coming out of Washington, the innovation ecosystem is now in danger. Congress needs to step in now to end this threat.
Nationwide, IP-driven industries contribute nearly $8 trillion in gross domestic product and support over 47 million jobs. Firms are able to make investments of time, personnel and money in new and unproven technologies because they have confidence that patents protect their products from copycats. But right now, patent protections are under attack on multiple fronts. One of these threats involves legal loopholes that are making it much easier to challenge patents. Another problem stems from the fact that the Supreme Court has narrowed the range of inventions eligible for patents in a number of key technologies.
In 2011, Congress enacted a law that created a new tribunal at the U.S. Patent and Trademark Office to streamline patent challenges. The Patent Trial and Appeal Board was intended to provide a more efficient alternative to the federal court system for patent owners and patent challengers to resolve their disputes.
In practice, the PTAB has become a forum for large companies — particularly in the tech sector — to weaponize their financial and legal resources against smaller competitors. Under current rules, big corporations can file multiple challenges to a single patent at both the PTAB and in federal court. These duplicative challenges wear small businesses down and force them to divert valuable resources away from R&D.
Meanwhile, a series of misguided Supreme Court rulings decreed certain categories of high-tech inventions ineligible for patents. These decisions have stifled progress in industries such as medical technology and advanced computer software. In the five years following the rulings, eligibility concerns led to the abandonment of some 1,300 patent applications.
Thankfully, Congress has the power to fix these problems and is now considering two bipartisan bills that would make a big difference. The Promoting and Respecting Economically Vital American Innovation Leadership Act would address the imbalances in the PTAB system, leveling the playing field so that smaller players have a fair chance to defend their patents against large, well-funded corporations.
The Patent Eligibility Restoration Act would clarify that inventions are indeed eligible for patent in areas the Supreme Court closed down based on its narrow reading of existing law. PERA would assure researchers, entrepreneurs, investors and the courts that transformational technologies like rapid blood tests and AI-integrated software are indeed eligible for patent protection and are once again safe to invest in.
By passing both PREVAIL and PERA, we can provide the clarity and fairness that inventors need to bring their breakthroughs to market.
Gary Locke is the former U.S. ambassador to China, U.S. secretary of commerce and governor of Washington.
