“I believe that President Biden would have benefitted from an experienced voice knowledgeable about the dangers of supporting the erosion of property rights during the discussions on whether to support India and South Africa’s proposal to the World Trade Organization to waive IP protections under the TRIPS Agreement.”
Intellectual property (IP) made modern vaccines possible. It took billions of dollars in private and public investments in research and development to be able to create, in record time, multiple viable vaccines to fight the COVID-19 pandemic. The entire world should be celebrating the innovators that continue to push forward with new solutions to problems we will face in the future. This pandemic will end, but there will be another. We should be eternally grateful to have companies like Pfizer, Moderna and Johnson & Johnson that have the capability to create and manufacture vaccines at large scale.
The global community, unfortunately, has not benefited equally over the last six months from these available vaccines. Wealthy countries like the United States have more vaccine than citizens willing to accept the protection, while India and Brazil are suffering from a lack of resources. In the quest for a boogie man to blame for the disparate treatment across the globe, one target has become clear. The problem cannot be the lack of material to manufacture the vaccines, the supply chain for needles or vials needed to administer the vaccine, or even the infrastructure needed to distribute the vaccines in developing countries. So, patent protection must be what prevents countries from manufacturing its own vaccines.
This line of thinking is both wrong and dangerous. Intellectual property protection provides the private sector with incentives to develop the innovations needed to create and manufacture the vaccines. Vaccines are complex; developing countries don’t have the know-how or facilities to manufacture them. Confiscating patents will do nothing to solve the problem. Patents are not the enemy.
The United States has already lost a generation of manufacturing know-how to lower-cost global labor, has had untold amounts of intellectual property forcefully taken and stolen by China and watched as our patent system has been weakened by Congress and our own courts. Now is not the time to place one of our greatest institutions on the sacrificial altar. The U.S. patent system has contributed significantly to our economic growth for more than 200 years. Weakening patent rights will only drive more companies to rely on trade secrets and innovate in the dark.
It has been over four months since President Biden’s inauguration. As of yet there has not been a nomination for the Under Secretary of Commerce for Intellectual Property and Director of the U.S. Patent and Trademark Office (USPTO). In addition to running the USPTO, the Director is responsible for advising the President on intellectual property issues. I believe that President Biden would have benefitted from an experienced voice knowledgeable about the dangers of supporting the erosion of property rights during the discussions on whether to support India and South Africa’s proposal to the World Trade Organization to waive IP protections under the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS).
The proposed TRIPS waiver is not the only missed opportunity to make sure the U.S. intellectual property system is protected. A Senate confirmed USPTO Director should also be actively participating in crafting IP-related legislation. Congress continues to focus on new IP legislation. So far this year, the Senate Judiciary Committee passed the Inventor Diversity for Economic Advancement (IDEA) Act, which has been amended to the Endless Frontier Act. Senators Patrick Leahy (D-VT) and Thom Tillis (R-NC) have also proposed additional patent law amendments related to the recordation of patent ownership. These are missed opportunities for a USPTO Director to participate in the legislative process and to lead rather than follow.
The USPTO is a large complex agency that deserves a confirmed capable leader. There is much work to be accomplished to build on recent progress. Yes, post-grant proceedings at the Patent Trial and Appeal Board (PTAB) are not yet properly balanced and eligibility under 35 USC 101 is broken; but there are equally important missions that need leadership.
Critical USPTO Missions
The USPTO continues to be behind the technology curve. The Endless Frontier Act should include legislation to provide the USPTO with more resources to modernize its vast IT systems. This would include full IT redundancy, continued investment in cyber security, next-generation examiner tools and implementing AI-enabled patent searching.
Improvements on patent examination quality is also critical. There are seemingly endless ideas for improving patent quality. The most important factor to quality, however, is examiner time allocated for actual examination. Finding more time for examiners while meeting current budgets and production requires a leader knowledgeable about patent prosecution, examination procedures and a willingness to work with the USPTO labor unions. Some of the USPTO revenue withheld by Congress over the last 20 years should be reallocated to the agency for boosting examination operations. For example, the implementation of multiple examiners for applications in emerging technologies.
Diversity throughout the entire intellectual property ecosystem is critical to staying competitive in the world. While the USPTO is already one of the most diverse agencies in the federal government, we have much more to accomplish in STEM diversity to train and encourage the next generations of innovators. The Director needs to champion diversity, not just for racial equity, but to make sure that the U.S. does not irretrievably fall behind our economic competitors.
It’s time for the administration to select a USPTO Director with experience in leading a large organization, a belief in strong patents and trademarks, and a passion to make U.S. innovation more robust and diverse.
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