Emerging Anti-IP Policies the Focus of Heritage Foundation Event

By Gene Quinn
July 20, 2021

“The [IP Waiver] is masking the discussion of equitable distribution of vaccines. Countries are hoarding vaccines. Governments should not be hiding behind the issue of IP waivers.” – Andrei Iancu

Heritage Foundation

From Left: John Malcolm, Adam Mossoff and Laurie Self

At today’s Heritage Foundation event in Washington, D.C., titled Restoring American Leadership in Patent Law and Innovation Policy, former U.S. Patent and Trademark Office Director (USPTO) Andrei Iancu began by lamenting the failure of decision makers to make the connection between intellectual property and innovation. Increasingly, policy makers think innovation just happens, Iancu explained, with too many believing monetization happens after the fact, rather than driving innovation. “Without IP, the free market does not participate, or does not participate to scale,” Iancu told the Heritage audience.

Laurie Self, Senior Vice President and Counsel, Government Affairs, Qualcomm, agreed with Iancu and added that, without a strong patent system, there is no opportunity to maintain a strong innovation leadership position. Presumably alluding to developments such as the Biden Administration’s support for waiving IP rights under the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) related to COVID-19 inventions and the recent Executive Order on Competition, Self said: “We are seeing a series of policies that if implemented would undermine our system… this cognitive dissonance is a threat.”

Adam Mossoff pointed out that today is an “auspicious day” because it was July 20, 1969 that man first stepped on the moon—a feat thought impossible only a decade earlier. The accomplishment, he said, was the result of a great many patented inventions.

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“Patents provide a bridge from the act of creation into the marketplace… time and time again, patents are shown to bridge the so-called ‘valley of death’, and that is only possible if patents are a property right,” Mossoff said.

To the question raised by moderator John Malcolm, Vice President, Institute for Constitutional Government, about those who argue that patents last too long and don’t spur economic activity, Iancu said: “I’d say ‘where is their evidence?’ The burden is on them.” After discussing examples of innovation dating as far back as to the time of Alexander the Great, Iancu would concluding this segment of his remarks saying: “It is incumbent on them to provide the evidence, despite the millennia of evidence to the contrary. They need to provide evidence that their proposals will work at least as well [as the current intellectual property system].”

As one data point that supports the premise that patents support economic activity, Iancu pointed to something he has mentioned before; namely that the approval of a startup’s first patent increases its employment growth over the next five years by over one-third.  Self took the moment to point to the stark contrast in economies between those countries with a strong patent system and those that do not have a patent system, a point IPWatchdog has made numerous times. In fact, if you cross reference the top performing economies from an innovation standpoint according to the WIPO Global Innovation Index with the top performing IP economies from the U.S. Chamber annual report, you see the countries at the top of both lists (i.e., Switzerland, Sweden, United States, United Kingdom, Netherlands, Denmark, Singapore, Germany, Korea) have robust economies and sophisticated IP systems. On the other hand, when you look at the lowest performing economies you similarly see overlap (i..e., Pakistan, Algeria and Nigeria).

Turning to the debate around waiving IP rights for COVID-19 inventions under TRIPS, the panelists said implementation of the waiver would raise some serious questions for U.S. patent law. “If the [World Trade Organization] were to adopt the waiver, [the United States] would need to implement it, and there would be significant questions of takings,” Mossoff said, before pointing out that there is no evidence that any patents or rights have stood in the way of any COVID-19 vaccine being created or delivered.

To the contrary, industry has responded, and the mRNA vaccines were so radical as they were being originally developed in the 1990s that “they were not able to get grants,” Mossoff exclaimed. “They had to turn to the venture capital market for funding,” he added, refuting the falsehoods associated with the notion that the government paid for the creation of mRNA vaccines.

In a recent LexisNexis Patentsight webinar, for example, panelists provided evidence of patents dating back to 2003-2008 relating to mRNA technologies, thus dispelling the notion that government paid to create COVID-19 vaccine technologies. The technologies are merely outgrowths of decades of R&D conducted by the brand pharmaceutical companies.

“The [IP Waiver] is masking the discussion of equitable distribution of vaccines,” Iancu said, emphatically. “Countries are hoarding vaccines. Governments should not be hiding behind the issue of IP waivers.”

 

The Author

Gene Quinn

Gene Quinn is a Patent Attorney and Editor and President & CEO ofIPWatchdog, Inc.. Gene founded IPWatchdog.com in 1999. Gene is also a principal lecturer in the PLI Patent Bar Review Course and Of Counsel to the law firm of Berenato & White, LLC. Gene’s specialty is in the area of strategic patent consulting, patent application drafting and patent prosecution. He consults with attorneys facing peculiar procedural issues at the Patent Office, advises investors and executives on patent law changes and pending litigation matters, and works with start-up businesses throughout the United States and around the world, primarily dealing with software and computer related innovations. is admitted to practice law in New Hampshire, is a Registered Patent Attorney and is also admitted to practice before the United States Court of Appeals for the Federal Circuit. CLICK HERE to send Gene a message.

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 10 Comments comments. Join the discussion.

  1. Anon July 20, 2021 5:05 pm

    Bravo.

  2. Greg DeLassus July 20, 2021 8:06 pm

    “If the [World Trade Organization] were to adopt the waiver, [the United States] would need to implement it…

    This is nonsense on stilts. Nothing about the WTO permitting a waiver implies an obligation on any member state to enact a waiver.

    … and there would be significant questions of takings,”

    Well, yes, if the U.S. were to enact such a waiver, this would constitute a “taking” that would require compensation. I am not sure how worthwhile it is to waste time worrying about this. Such a waiver would require an act of Congress, and that will not happen.

  3. Greg DeLassus July 20, 2021 8:12 pm

    Does it not seem a touch ironic that the panel’s proposed means to “Restor[e] American Leadership in Patent Law” is that we should follow Germany in opposing the TRIPS waiver?

    Say what you will, the U.S.’s current position constitutes leadership—we are trying to take our peer nations in a direction that they do not want to go. It might be bad leadership, but this is undeniably leadership.

    I am less than clear how it would constitute “leadership” for us to get meekly back in line behind the rest of the anti-waiver coalition of our peer nations. That looks more like followership.

  4. Pro Say July 20, 2021 8:16 pm

    Touche.

  5. Gene Quinn July 21, 2021 12:02 pm

    Greg @3…

    You seem to be saying that the U.S. advocating for strong patent rights is “followership” (in your words) because there are other countries oppose the TRIPS Waiver. Using that same, obviously flawed logic, it would be “followership” for the U.S. to support the TRIPS Waiver because India and South Africa first suggested the Waiver. So, it seems to be your considered opinion that nothing the U.S. could possibly do would constitute leadership, and if that is your belief debating the merits of your position is a waste of time.

    What I will say is this: The way you characterize what the panel said is extraordinarily ridiculous. The United States historically taken the lead in the world by explaining the virtue and power of patent rights for developing countries. Over the past 10-15 years, however, it has become a “do as we say not as we do” message. So, the title of the program is precisely accurate. America needs to restore its leadership position and walk the walk. It is embarrassing when European countries have a better understanding of the fundamental importance of property rights than the U.S. government.

  6. sarc_off July 21, 2021 12:24 pm

    Why do we need a waiver?

    If Patents are “Franchises” of the government, can’t the government just willy-nilly cancel the offending franchises? Problem solved!

  7. B July 21, 2021 12:49 pm

    “In a recent LexisNexis Patentsight webinar, for example, panelists provided evidence of patents dating back to 2003-2008 relating to mRNA technologies, thus dispelling the notion that government paid to create COVID-19 vaccine technologies.”

    Yes and no.

    Yes, some patents date back from 2003-2008.

    No, the U.S. gov’t gave $Billions$ to various pharma companies in grants to develop and manufacture the various vaccines. I suspect that additional patents will emerge as a result of all the money poured into the vaccine efforts.

    https://www.uspto.gov/initiatives/covid-19-prioritized-examination-pilot

    https://www.freepatentsonline.com/result.html?p=1&edit_alert=&srch=xprtsrch&query_txt=covid-19+and+mRNA&uspat=on&usapp=on&date_range=all&stemming=on&sort=relevance&search=Search

  8. Anon July 21, 2021 12:54 pm

    Mr. Quinn,

    I attribute Greg’s position to the cognitive dissonance caused by his (known) political views of Liberal Left (which would point in fully endorsing the Biden ‘give-away’) coupled with his fervent ‘Big Pharma’ shill position.

  9. B July 21, 2021 12:56 pm

    @ sarc_off “If Patents are “Franchises” of the government, can’t the government just willy-nilly cancel the offending franchises?”

    Yes — willy-nilly on steroids.

    We call this cancellation process an “Alice-Mayo decision.”

  10. Anon July 21, 2021 2:34 pm

    While I see Sarc_Off’s humor (especially given at least one of the commentators has in the past embraced “Public Franchise”), I will again state that the main prize being sought is not the “patent side” of an IP waiver.

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