As America Falls Off Global Innovation Map, an IP-Friendly USPTO Pick is More Crucial than Ever

By Arvin Patel
February 25, 2021

“In 2013, the U.S. topped the world rankings of the most innovative countries. Now, as of this month, we are no longer in the top ten. It has never been more important to encourage America’s innovators and invest in their ingenuity.”

https://depositphotos.com/3973227/stock-photo-lightbulb-with-world-map.htmlAs is customary, President Joseph R. Biden has spent much of his first month in office building out his administration’s Cabinet. His nominations for Secretary of State, Treasury and Defense have already been confirmed by the U.S. Senate. Now, short lists are being assembled for who may fill his non-Cabinet-level positions.

Much time and focus has been duly spent on Cabinet-level positions, but there are other government agencies that have a major impact on the U.S. economy. There have been a lot of rumors surrounding Biden’s pick to head the United States Patent and Trademark Office (USPTO), and for good reason. Today, as America continues to recover from COVID-19 and its consequences, this position may be more important than ever before.

Innovation is Key to Recovery

Each stakeholder business community has their own list of preferred candidates, as Big Tech has different priorities than Big Pharma, for instance. But, regardless of any potential USPTO candidate’s background and experience, everyone can agree that the next director needs to understand a simple, critical formula: reliable and enforceable intellectual property (IP) rights are key drivers of innovation.

COVID-19 has brought innovation to the forefront more than ever before. From keeping the economy afloat to developing a vaccine, America’s inventors have been essential to fighting this pandemic. As you would expect, they’ll be just as important in helping us recover. The direct and indirect impacts of innovation account for more than 40% of U.S. economic growth and employment. This is the type of production and growth that we desperately need moving forward.

Losing Ground

Sadly, America’s level of innovation continues to decline. In 2013, the U.S. topped the Bloomberg Innovation Index’s rankings of the most innovative countries. Now, as of this month, we are no longer in the top ten. It has never been more important to encourage America’s innovators and invest in their ingenuity. The USPTO needs to make that a top priority moving forward, and that starts with better patent protection.

The 2017 Intellectual Property Commission Report estimates that Chinese IP theft costs the U.S. between $225 and $600 billion every year. According to the Economic Policy Institute, since 2001, the U.S. has also lost 3.4 million manufacturing jobs to China. We cannot expect this theft or these job losses to stop without a strong IP rights system.

Industries rely on the enforcement of their patents, and consumers expect safe, guaranteed products. We are already experiencing the consequences of failing to uphold these fundamental protections – we can no longer afford to sacrifice any more economic growth. The USPTO’s next director needs to act with a sense of urgency in reforming our IP system and giving America’s innovators the protection they deserve.

Restoring the Confidence to ‘Venture into the Unknown’

In 2019, then-USPTO Director Andrei Iancu said, “Turns out, invention is synonymous with America. Indeed, in invention I see America; and in inventors, I see the American character…Invention is about trying new things, taking risks, and venturing into the unknown when nobody else would.”

Right now, America is in the type of “unknown” that former UPSTO Director Iancu referenced. I doubt he anticipated that we would be experiencing that unknown in the form of a global pandemic, but his sentiment still rings true.

As America navigates a recovery from COVID-19, relying on economic and medical innovations to do so, we need our inventors to take risks and try new things. But, that’s only possible if they have the confidence to do so.

We need to foster an environment where our inventors – the most innovative in the world – can create the best technology on the market without fear of it being stolen. To achieve this, President Biden’s pick for USPTO director must make patents and intellectual property rights a top priority. Without a strong American IP system, America’s inventors are limited. Understanding this is the most important qualification that the USPTO’s next director must have.

Image Source: Deposit Photos
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Copyright:razihusin 

The Author

Arvin Patel

Arvin Patel is Chief Operating Officer of Intellectual Ventures’ Invention Investment Fund and an inventor and leading voice on entertainment innovation and policy. Patel has overseen R&D and IP for some of the world’s leading companies, driving technology investments, and creating non-traditional strategies to develop products and services.

Warning & Disclaimer: The pages, articles and comments on IPWatchdog.com do not constitute legal advice, nor do they create any attorney-client relationship. The articles published express the personal opinion and views of the author as of the time of publication and should not be attributed to the author’s employer, clients or the sponsors of IPWatchdog.com. Read more.

Discuss this

There are currently 28 Comments comments. Join the discussion.

  1. Anon February 25, 2021 7:11 pm

    Sadly, while this article (rightfully) seeks a ‘correct’ nomination, past being prologue would indicate that whomever is pulling the strings on Puppet Biden will not be complying with the fervent wishes expressed here.

  2. MaxDrei February 26, 2021 3:35 am

    anon, you have often observed to me that “everybody has an agenda”. It seems to me that the writer of this piece is a good example.

    Looking at Bloomberg’s Top Ten, I don’t see in any of them any sign at all of any recognition of the need to promote the interests of individual inventors. What they have in common though is the very thing that the writer craves for the USA, namely a wider appreciation that:

    “reliable and enforceable intellectual property (IP) rights are key drivers of innovation”

    That’s the key. Whether the person in charge of the USPTO can do anything much to achieve it though, I very much doubt. It seems that what is needed from the incoming Commissioner above all is a talent to convince Americans that a thoroughgoing reform of civil litigation is what’s needed.

  3. Night Writer February 26, 2021 5:03 am

    @1 Anon

    I agree with Anon and further it by saying what we need to do is try to make sure that Chen doesn’t get a strong Trade Secret bill passed, which is her stated goal.

    All the evidence that I know of says that trade secrets hurt innovation and hurt the mobility of employees of large corporations. But Chen who appears to be a SV puppet is pushing hard for stronger Trade Secret laws.

  4. Concerned February 26, 2021 5:23 am

    I have no regrets discovering a process that helps people.

    I fully regret my experience with the USPTO.

  5. Night Writer February 26, 2021 10:02 am

    @2 Max & Anon

    There is something weird going on here. Somehow the patent system has become equated with needing to be strong to protect the individual inventor. But–wait–the real change that has happened since like 2000 is how the patent system is used by large corporations.

    What’s happened is that a few corporations have become huge. And they don’t really fight much with patents. Maybe Samsung v Apple is the biggest example of an attempt to fight with patents where the fight completely failed. Maybe the fight over the API of JAVA is another example with Google and Oracle.

    But–get–that patents have become so weak that big corporations don’t really think they can keep out other corporations based on patents. That has radically changed their behavior. They aren’t relying on innovation anymore but being first to market and monopolizing the market as soon as possible and using other practices to weaken competition.

    The real story here isn’t just the individual inventor or the PAEs like the one the writer of this post works for but how corporations are behaving.

  6. Josh Malone February 26, 2021 10:49 am

    MaxDrei raises an important point. However, I think there is an incentive problem at the USPTO. They are issuing 300,000 patents annually, based mainly on the persistence and craftiness of the corporate applicants. These patents must be issued in order to support the $3.6B business. The USPTO does not believe they are valid.

    So it’s not just civil litigation reform. The incentives of the USPTO business need to be corrected.

    What if in 2021 there are only enough real inventions to support 10,000 lawful patents. What would happen? I’ll tell you exactly what would happen. They would issue 290,000 invalid patents to make up the difference.

    In today’s system the meritorious patents by independent inventors and startups are mixed in with the hundreds of thousands of bogus patents by big corporations. Quantity is trumping quality.

    Litigation cannot sort it out. The PTAB certainly hasn’t helped. It hasn’t made a dent in the sub-prime portfolios of the big corporations and patent trolls. It has only deiminated the legitimate inventors a few patents on key enabling technology.

    Litigation reform is necessary but not sufficient.

  7. TFCFM February 26, 2021 11:11 am

    In 2013, the U.S. topped the Bloomberg Innovation Index’s rankings of the most innovative countries…

    All together now: “OOOOOO-oooooo-ohhhhh!”

    I disagree that US innovation policy should be guided by what some squishy-minded Bloomberg “journalist” believes will make the click-bait-iest headline. If anything, perceived slippage of the US in the “Bloomberg Innovation Index” militates that the US should seek to influence Bloomberg’s sociology-major-“journalists” to tweak their subjective “Index” to more-heavily-weight factors that will place the US atop the “Index.”

    Of course, this assumes that a meaningful goal of US innovation policy should be “pleasing headlines on Bloombergs’ media sites,” which just isn’t valid at all, now is it?

  8. MaxDrei February 26, 2021 12:31 pm

    Just a thought, about what makes a society “innovative”, in a world where Asian economies are growing.

    If you travel from the USA through Europe, all the way to East Asia, one can observe a rise in the importance people put on order and discipline and a falling off of worship for the rugged individual who busies him (or her-) self running fast and breaking things.

    On the way, passing through Europe, from West to East, we find the UK much like the USA whereas Germany, a bit further East, has much better mutual understanding with Japan and Japanese culture, where patent rights are assiduously generated and piled up, in order to have something to trade (SEP’s and FRAND). In Japan, going to court to enforce patent rights is a last resort and seen by everybody as shameful, as a failure by the patent-owning business.

    But it ain’t that simple is it, when it comes to innovation prowess? See, in the Bloomberg list, Singapore is at # 2. Singapore is an English law country, right? How come Singapore is placed so much higher than the USA?

  9. B February 26, 2021 1:19 pm

    My expectations of a competent pick to lead the USPTO is less than my confidence of Congress doing anything more meaningful than holding a candlelight vigil to protest cruelty to carrots or whatever is the cause du jour.

  10. Anon February 26, 2021 2:15 pm

    and a falling off of worship for the rugged individual who busies him (or her-) self running fast and breaking things.

    Um, no.

    The only place that you see that is in direct correlation to the fall-off of the (former) Gold Standard of US innovation.

    You have to ask why the US has fallen?

    Please, do not be so rude, as to ignore the MANY points put out on that subject.

  11. B February 26, 2021 2:42 pm

    @ MaxiDrei “If you travel from the USA through Europe, all the way to East Asia, one can observe a rise in the importance people put on order and discipline and a falling off of worship for the rugged individual who busies him (or her-) self running fast and breaking things.”

    I’ve generally agreed with 95% of everything you’ve ever posted, but respectively this is the stupidest thing you’ve ever said.

    Seriously.

    “order and discipline” and rugged individualism aren’t exclusive unless “order and discipline” means top-down authoritarianism.

    Not all “rugged individuals” are crazed moneys fit to be cattle-prodded out of pubs and biergartens while rioting b/c Manchester United won or lost some game, or whatever sets Europe ablaze these days.

    Some of us ‘Mericans just want to make our fortunes w/o selective interference from government pols who couldn’t manage lunch much less a business, and from corrupt judges who worship government while considering the individual a necessary evil.

  12. Jacek February 26, 2021 2:50 pm

    “Restoring the Confidence to ‘Venture into the Unknown'”
    I am looking at Biden and his behavior. I think we can predict that Michelle K. Lee double or her new look-a-like version will be installed in USPTO by the president who is looking for the glory of more youthful years and satisfying the desires of his old ($$$$) buddies.
    He already reneged on his campaign promises regarding “Student loans,” “Minimum Wage”, and others. Why do you expect an old dog will learn new tricks?
    He is already a president.
    His campaign consisted mainly of “ME TOO” statements, as you could observe during televised debates. He has no ideas on his own. Due to the democrat’ manipulations to oust Bernie Sanders, who would bring some real changes, we ended up with the least desirable candidate as a president. The pandemic will end, and in 4 years; we will face the same reality as in 2016. Voters fed up with the status quo and restless (like hell.)

  13. Benny February 27, 2021 3:52 am

    “The country scores badly in higher education, even though U.S. universities are world-famous. That underperformance was likely made worse by obstacles to foreign students, who are usually prominent in science and technology classes”

    Problems should be solved at the source, not downstream. I’m writing this from a country in Bloombergs top ten and where student debt is virtually non-existent.

  14. MaxDrei February 27, 2021 5:40 am

    B, thanks for the compliments, that i) you have no quarrel with 95% of what I have written and that ii) what I just wrote at 8 was the stupidest thing I have ever contributed here. That’s a relief.

    I’m a fan of Adam Smith and of the invisible hand. Smith explained that rising prosperity brings human happiness and that the ONLY thing that raises prosperity is trade. He who is anti-free trade is anti-prosperity.

    Smith warned that lobbying with financial inducements, and crony capitalism, is the death of representative democracy and the Rule of Law. You detect the presence of judges who are “corrupt”. I agree that this is a rising problem. i see it rising all over the world, and I abhor society’s reluctance to do something about it.

    Large public corporations are required by law to care for the interests of their shareholders, and nobody else. They are therefore inherently psychopathic. I hope for the voters, the State, to recognise and manage that fact. In England, the State-owned National Health Service has by now administered C19 vaccine to 30% of its people. Which country has done better than that? The State is not incapable of running a business efficiently. You only have to look at China to see that.

    Are you this time in agreement, or has my stupidity now surpassed itself?

  15. Anon February 27, 2021 12:41 pm

    Adam Smith’s view does NOT resolve down to an “ONLY thing that raises prosperity is trade.”

    Not by a long shot.

    This is at least the second time that you have attempted to foist this misperception as being some type of factual matter.

    Further, your overarching assertion of “lobbying with financial inducements, and crony capitalism, is the death of representative democracy and the Rule of Law.” clearly cannot stand without some serious caveats and defining of terms (such as, for example “lobbying with financial inducements”).

    For someone who declares such a passion for foundational elements of the US Sovereign, your ability to NOT get things right in view of the US Sovereign is staggering.

    That is not to say that there is not overlap between your views expressed here and my own — even as the level of quarrel between you and I and B and you are likely reversed in the numbers that B provided.

    For example, I certainly agree with the danger of giving power to the juristic person known as the corporation. I also certainly believe that society’s (and even more on point, that attorneys’) reluctance to speak out about “the broken score board” of the Supreme Court (as prime instigator) of broken patent law (for me, a critical focus, given as the blogs on which these discussions take place are dedicated to intellectual property law, and the number one issue with broken patent law IS directly attributable to the re-writing (and directly NOT ‘interpretation’) of patent law by the over-stepping-their-designated-authority Supreme Court.

  16. Anon February 27, 2021 1:13 pm

    I almost found myself in agreement with TFCFM here.

    Well, if one considers…

    blindly accepting the results of ANY poll as being determinative of what a strong innovation protection policy should be…

    AS a ‘good thing’ merely on ‘face value’ to be an errant view, then I could find some overlap with TFCFM.

    But since most anything ever posted by TFCFM has been woefully incorrect or aimed in the wrong direction, I had to check myself.

    Sure enough, there are things in TFCFM’s post that I cannot agree with.

    guided by what some squishy-minded Bloomberg “journalist” believes will make the click-bait-iest headline.

    While there is certainly no shortage of “click-bait” out there, the actual Bloomberg article tends to differentiate from MOST so-called journalistic efforts of the modern era. Certainly, the linked article could provide deeper links with more substance, but the article is hardly of the nature of ‘click-bait.’

    The article includes such tidbits that seven equally weighted categories generate the scoring. Those categories include:
    R&D Intensity
    Manufacturing Value-added
    Productivity
    High-tech Density
    Tertiary Efficiency
    Researcher Concentration, and
    Patent Activity.

    As I noted, I would like to see more details, but clearly here, Bloomberg is NOT (as stated) some type of arbitrary and “squishy” “journalist-belief” dream.

    If anything, perceived slippage of the US in the “Bloomberg Innovation Index” militates that the US should seek to influence Bloomberg’s sociology-major-“journalists” to tweak their subjective “Index” to more-heavily-weight factors that will place the US atop the “Index.”

    This is the absolute worst advice. This is actually INVITING ‘squishy” in order to sugarcoat our nation’s decline, and make it appear that “no story here, nothing bad going on.”

    This DOES mirror TFCFM’s own arcane views as to any actual problems with innovation protection (his tendency to NOT see the Supreme Court as causing problems, and his inability to grasp that innovation protection is simply NOT limited to exacting picture claims.

    Of course, this assumes that a meaningful goal of US innovation policy should be “pleasing headlines on Bloombergs’ media sites,” which just isn’t valid at all, now is it?

    And yet more of TFCFM’s tendency to bloviate with mis-aimed rhetoric. NO ONE postulated that a goal of US innovation policy should be “pleasing headlines.”

    Put your rather silly strawman away please.

    I would agree that ‘mere headlines’ should NOT be taken at face value. I would even agree that these headlines could use some additional detail.

    But these headlines are NOT the ogre that you seem to want to make them out to be, and (gasp) may even BE ON POINT in showing that the US Innovation Protection Gold Standard has been harmed.

    There really IS a broken score board, Dorothy.

  17. Night Writer February 28, 2021 11:36 am

    All of this comes down to the problem of how difficult it is to prove or disprove that patents help innovation.

  18. Jacek February 28, 2021 1:11 pm

    “All of this comes down to the problem of how difficult it is to prove
    or disprove that patents help innovation.”
    OF COURSE. THE SUN IS BLUE!!!
    SO OBVIOUS. The theft of a car you just bought is the best inventive to purchase next one. And good invention comes in unlimited supply with NO Effort at all.

  19. B March 1, 2021 2:48 pm

    @ Max Drei “ I’m a fan of Adam Smith and of the invisible hand. Smith explained that rising prosperity brings human happiness and that the ONLY thing that raises prosperity is trade. He who is anti-free trade is anti-prosperity.”

    Most respectfully, this has nothing to do with “rugged individualism” and I’m a fan of both Smith and Locke.

  20. B March 1, 2021 2:56 pm

    @Max Drei “ONLY thing that raises prosperity is trade.”

    John Locke, moi, and anon disagree although trade is far more efficient in industrialized societies

  21. B March 1, 2021 3:15 pm

    @ Anon “But since most anything ever posted by TFCFM has been woefully incorrect or aimed in the wrong direction, I had to check myself.”

    Yeah, he said something last week that wasn’t totally ludicrous. I had to double-check current law.

  22. MaxDrei March 2, 2021 4:46 am

    Of course, when we debate “prosperity” we ought first to define our terms.

    I have in mind the aggregate amount of prosperity, not some zero sum mercantilism or casino game where rising prosperity for some is cancelled out by dwindling prosperity for others.

    If there is something other than trade in goods and services that has this wonderful effect, what is it please? Innovation in technology, perhaps. But, on its own, per se, that isn’t enough, is it?

    B: where do I assert a connection between rugged individualism and trade? I don’t follow you.

  23. Anon March 2, 2021 7:22 am

    MaxDrei, funny how you want to “define terms” that place a spin on the understanding of the likes of Adam Smith and John Locke.

    That’s not how it works. That’s why you are “not following” B – you appear to not even recognize when you are applying spin. Instead of understanding Smith and Locke for what they are, you are too busy trying to make them fit your own pre-conceived view of the world.

    Also, your “suggestion” of ‘innovation in technology” does not rise to the different choice that the US Sovereign has made: ‘innovation in the Useful Arts.’

    How often are you going to be rude on this point?

  24. box7003 March 2, 2021 11:16 am

    Only old complex ideas like electric cars or rockets are for the USA. Simple products that depend on good lawmakers and good judges cannot be done at the present time.
    Our govt is seriously flawed, we depend on elected officials to honor there oath but nothing happens to them when they don’t.
    A startup business needs a solid eight years of patent protection to get through the vulnerable first years of a business. Expecting long term patent protection when the next administration undoes the previous administration’s laws is not realistic. Enough inventors seem to know this that’s why we’re no longer in the top ten.

  25. B March 3, 2021 4:36 pm

    @ MaxDrei “B: where do I assert a connection between rugged individualism and trade? I don’t follow you.”

    Comment 14. I made mention of rugged individualism, and your response was trade

  26. MaxDrei March 3, 2021 6:08 pm

    OK, B, my Comment 14 it was then. But that doesn’t amount to asserting a connection between individualism and trade. The debate is about technological innovation, and how much of it there is, in various countries. Does trade help and does individualism help?

    I would say that trade continues to promote progress in the useful arts, and also brings more prosperity. Not sure whether rugged individualism promotes technological advance, trade or prosperity any more though, in these days of C19 vaccines and big data. Not sure I would go as far as you though, and assert that it has “nothing to do with” it.

  27. Anon March 4, 2021 9:01 am

    MaxDrei,

    Trade — in and of itself — has nothing to do with innovation.

    Zero.

    The way that you torture concepts in attempts to fit your narrative is sometimes breathtaking (and that’s not in a good way).

  28. B March 4, 2021 4:23 pm

    @ MaxDrei “But that doesn’t amount to asserting a connection between individualism and trade. . . . does individualism help?”

    Individualism –> small business –> new ideas –> patent portfolios.

    Seen it many times.

    “I would say that trade continues to promote progress in the useful arts.”

    On this I would agree given all the foreign-sourced patents in the USPTO database.

    Trade –> more competitors –> more innovation.

    @ Anon “Trade — in and of itself — has nothing to do with innovation.”

    While this may be true “in and of itself,” I suspect that you might agree that a bigger pool of competitors and access to more markets bring about more responsive industries.

    Money + competition = innovation

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