The United States must fix its engine of innovation: the patent system
IIf your car starts to smoke and spit, you will immediately take it to an auto repair shop. The US patent system – the engine of the country’s innovation economy for more than 200 years – is faltering and smoking. Yet his path to the mechanic is blocked by a stupid Supreme Court ruling.
American innovators are no longer promised reliable and effective rights to the fruits of their labor. In 2014, the Supreme Court reinterpreted laws enacted by Congress since 1790 and created a stricter standard for obtaining patents for healthcare and high-tech innovations. This test allows the United States Patent and Trademark Office (USPTO) to reject applications very easily or for judges to invalidate patents already granted by the office.
The Supreme Court’s two-step test requires, first, that a patent not cover an abstract idea or law of nature, such as Einstein’s discovery of E=mc2. Abstractions like this are not patentable technologies — the “useful arts” that the Constitution authorizes Congress to promote with patent laws. In the second step, if an application claims an abstract idea, it may still be valid if it contains an additional “inventive concept” that applies that abstraction in an eligible technology. For example, physicists Enrico Fermi and Leo Szilard applied E=mc2 to invent a nuclear reactor, for which they received a patent in 1955.
Since 2014, courts have used the Supreme Court’s criteria to conclude that many discoveries or inventions were abstract ideas. By applying them, the courts have invalidated over 1,000 patents issued. The impact at the USPTO was even greater: future patentees abandoned more than 60,000 applications.
This has particularly affected the biotechnology sector. Life-saving drugs and treatments – the results of decades of research and billions of investments – are now routinely denied patent protection. In one study, 47% of applications abandoned in the life sciences were for the treatment of diseases such as cancer, Alzheimer’s disease, diabetes and heart failure.
In a major case, a federal court invalidate a patent about a revolutionary prenatal diagnostic test that uses a mother’s blood to check for genetic disorders in her baby. This test made the invasive amniocentesis procedure unnecessary, eliminating the procedure’s higher risk of miscarriage and saving newborns from suffering and death due to life-threatening genetic conditions. This innovative medical test was born out of the biotechnology revolution that began in the early 1980s and was backed by the patent system. The biotech company has asked the Supreme Court to overturn its patent and reconsider the 2014 legal test that spawned this – and many other – tragedies for innovators. The court declined to take the case.
Many industrial and mechanical inventions are also regularly denied patent protection. In a notorious case, a court invalidated a patent on a new method of make a better automotive axle.
A bipartisan reform effort underway in Congress aims to change the law and strike down the Supreme Court’s test for patentable inventions. Senators Chris Coons (D-Del.) and Thom Tillis (RN.C.) released a law project reform patent laws. In an unprecedented commitment of time and energy on a single patent law issue, they held Three days of hearings in June 2019 with 45 witnesses. I was one of them. Representatives of biotech and high-tech companies, former judges, former government officials, and academics overwhelmingly testified to the urgent need for reform.
But the reform effort has stalled. One of the main reasons is the misleading rhetoric of opponents of reform, who prefer a weakened patent system. Big Tech companies are using the smokescreen of a fight against “patent trolls” to protect the status quowhich offers them easy access to new technologies not protected by patents.
opponents also argue that this reform effort aims to revive patents on human genesthat the Supreme Court banned in 2013. This argument has paid off, prompting health care and civic groups like the American Civil Liberties Union to oppose the reform movement in the mistaken belief that it would help patients. Given its effectiveness as political rhetoric, opponents of reform keep resurrecting this claim; a recent editorial accused proponents of reform of seeking to “revive gene patenting”.
But this accusation is false. At the hearings, Coons indicated on the file“Our proposal would not change the law to allow a company to patent a gene as it exists in the human body.” tillis also criticized this “false narrative” infects discussions and undermines the reform effort. He said “we don’t intend to patent human genes.” In their editorials and articles, opponents of the reform have not cited a single proponent of the reform who claims it will bring back patents on human genes, confirming that this is indeed a false narrative.
The United States was once recognized as having the benchmark patent system. David Kappos, former Director of the United States Patent and Trademark Office, said that the US patent system was “the greatest engine of innovation the world has ever known”. False claims about reviving gene patents should not be allowed to derail a crucial effort to get this vital engine of innovation back on all cylinders.
Adam Mossoff is a patent law expert and professor of law at George Mason University and senior fellow at the Hudson Institute.