Patents: Constitutionally Protected, Economically VitalJuly 12, 2016 Patents: Constitutionally Protected, Economically Vital
By Alden Abbott
.. Yet, the American patent system — a bulwark of American leadership in technological innovation and the creative arts — now finds itself under unprecedented attack. More specifically:
1.
Legislative proposals for sweeping changes to patent litigation procedures that would weaken patent rights have been before Congress since 2013.
2. The Supreme Court has constrained the enforceability and scope of patent rights in several recent decisions including
KSR v. Teleflex (2007) and
Alice Corp. v. CLS Bank (2014).
3. Federal enforcement agencies, such as the
Federal Trade Commission and the
Justice Department’s Antitrust Division, have begun to use antitrust law to try to limit returns to patents that cover key standardized technologies.
Underlying these developments are claims that the Patent Office has been issuing “low quality” patents — i.e., patents that protect trivial improvements or non-original technical proposals. Increasingly, complaints about “excessive” patent privileges are flooding the judicial system,
spurring wasteful litigation and deterring innovation.
But the drive to pare back patent rights — spurred by this fashionable “bad patents” philosophy — flies in the face of compelling research that highlights the value of IP, in general, and patents, in particular.
For example, a comprehensive 2012
study by the U.S. Department of Commerce concluded that virtually every industry relies on some form of IP; that IP-intensive industries accounted for over $5 trillion in value added in 2010 alone; that a sample of 26 patent-intensive industries accounted for 3.9 million jobs in 2010; that IP-intensive jobs paid significantly better than other jobs; and that IP-intensive industries contribute substantially to U.S. merchandise and services exports.
Similarly, a recently published peer-reviewed
study by Professors Albert Hu and I.P.L. Png of the National University of Singapore, covering many countries over two decades, found a strong association between patent rights, economic growth, and increased productivity.
Indeed, numerous studies over the past decade — by the
Organization for Economic Co-operation and Development and Harvard Business School, among others — have found positive associations between the strengthening of IP rights (including patents) and important economic growth indicators including, for example, job growth by start-up companies.
Economic historians, meanwhile, have
argued that the strong patent systems of the United Kingdom and the United States played a role in their rapid industrial development. These and other studies on law and economics demonstrate that the patent system functions as an engine of economic growth and innovation.
As Stanford University Professor Stephen Haber puts it in a new George Mason Law Review article,
Patents and the Wealth of Nations, all of these studies — whether based on “the facts of history” or on “statistical modeling” — “yield the same answer; there is a causal relationship between strong patents and innovation.”
Thus, the notion that U.S. IP rights — and, especially, patents — are special privileges meriting less protection than more traditional property rights is deeply flawed, both on constitutional and pragmatic, economic-policy grounds. To the contrary, America’s legal and historical commitment to protecting intellectual property has fueled U.S. economic growth and our global leadership on invention. Government officials should keep that in mind when making public policy.
https://www.realclearpolicy.com/articles/2016/07/12/patents_constitutionally_protected_economically_vital.html