Brian Pomper is a partner with Akin Gump Straus Hauer & Feld. He represents companies before Congress, the White House and federal agencies on a diverse set of public policy matters, including market access, investment, international trade disputes, intellectual property, international tax and customs issues.
Brian formerly served as chief international trade counsel to Senate Finance Committee Chairman Max Baucus (D-MT). In that role, he advised Chairman Baucus and other members of the Senate Finance Committee on all aspects of the Committee’s international trade and economic agenda. He also serves as Executive Director of the Alliance for Trade Enforcement.
Despite high aspirations among political leaders, lawyers and others for a rules-based international order, a major new study from researchers at York University finds that the 250,000 existing treaties designed to foster international cooperation have mostly been ineffective. One big exception, however, is in the area of trade and finance, where negotiators wisely put meat on the bones of the commitments by including meaningful enforcement mechanisms. As a result, the researchers found, these international agreements were effective in increasing commerce and global prosperity.
The bipartisan STRONGER Patents Act of 2019 took an important step forward last week, as the Senate Judiciary Subcommittee on Intellectual Property held a hearing on the proposed legislation. Senators Tillis and Coons, the Subcommittee’s Chairman and Ranking Member, should be commended for holding the hearing and focusing attention on our patent system’s role in promoting American innovation and job creation. As several of the hearing witnesses made clear in their testimony, our patent system has been dangerously weakened in recent years through a series of judicial, legislative, and administrative changes. These changes have undermined patent rights and made it difficult for inventors to protect their innovations from infringement. Meanwhile, our foreign competitors, including China and Europe, have strengthened their patent rights. This has put us at a competitive disadvantage and helped contribute to a trend of both innovation and venture capital increasingly moving overseas. For example, the U.S. share of global venture capital fell from 66% in 2010 to 40% in 2018, while China’s share increased from 12% to 38% in the same time period. And despite more than a decade of economic growth following the Great Recession of 2007-2009, startup formation has failed to return to its pre-recession levels.
This comprehensive legislation is exactly what is needed to strengthen our patent system, which will promote American innovation, competitiveness and job creation. For roughly a decade now, we have seen a steady weakening of patent rights in the U.S., undermining the ability of inventors to protect their innovations from infringement from large corporations and foreign entities. The STRONGER Patents Act says ‘enough is enough’ and ensures that patent rights are protected as a fundamental underpinning of our innovation economy.
Although the latest version of the PATENT Act (S.1137) represents an improvement over previous versions of the legislation, it would still make all U.S. patents less enforceable and cast an ominous cloud over startups and small inventors… The latest version of the PATENT Act notably fails to address the critical overbreadth problems of the customer stay, heightened pleadings, and discovery provisions. Together these provisions place an undue burden on the enforcement rights of legitimate patent owners.