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Congressional leaders unite to protect consumers

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The Wall Street Journal recently published a story by Greg Ip about the decline of American innovation that explained how the United States is running out of “big ideas.” Let us hope that is not the case. Historically, innovation has been a main driver of the American economy with manifold benefits for consumers. If American leadership as an innovator is at risk, then the public and private sector must unite in reversing this trend.

The Journal explained that “the hurdles for transforming ideas into commercially successful products have grown. The low-hanging fruit in science, medicine and technology has been harvested and new advances are costlier, more complex and more prone to failure. Innovation comes through trial and error, but society has grown less tolerant of risk.” If this dynamic is at work, then it is critically important to overcome this risk aversion and make sure that it pays to invest in innovation. Otherwise, we will continue to be at risk of losing the economic benefits of American innovation leadership.

{mosads}That will mean fewer successful startups, jobs and choices for consumers.

One way to sustain risk-taking and innovation is to defend the intellectual property (IP) behind new products. This is as an especially urgent challenge in the field of medical technology. A case pending before a government panel serves as an excellent example of how to uphold both IP and consumer protection.

The case centers on patents for radiotherapy devices that treat cancer and other medical conditions belonging to Varian Medical Systems based in Palo Alto, Calif. An administrative law judge found the Swedish firm Elekta AB was importing radiotherapy devices that infringed several of Varian’s patents. The International Trade Commission (ITC), a government agency that investigates possible violations of trade rules, recommended a limited exclusion order on the infringing devices on a prospective basis. This means that the infringing devices would be banned from being imported into the U.S. market, but infringing devices already in the United States would not be impacted at all. The ITC has asked for public comments on the dispute and is expected to make its final determination in the spring.

In response, on Dec. 9, the American Consumer Institute submitted its favorable view of a limited exclusion order. On behalf of the Institute, I explained how consumers have benefited greatly from American innovation and strong IP protections, especially in the medical technology industry. It is vital this innovation continues. Importantly, the exclusion order on the particular devices at the center of this case will have no impact on public health or on the ability of healthcare providers to deliver all necessary treatments.

In addition, resolution of the infringement will not create any new antitrust or anti-competitive concerns. There are many alternatives to Elektra’s infringing devices that would be subject to the exclusion order. In fact, Elekta itself offers a competing product that does not have the infringing technology. Another company, U.S.-based Accuray, also manufactures a competitive alternative that is currently used around the country.

These facts, along with many others, are why a robust assortment of congressional leaders – including Senate Finance Committee Chairman Orrin Hatch (R-Utah) and Sen. Sherrod Brown (D-Ohio) as well as Reps. Anna Eshoo (D-Calif.), George Holding (R-N.C.), Devin Nunes (R-Calif.), Pat Tiberi (R-Ohio) and Mike Thompson (D-Calif.) – filed public comments with the ITC in support of a limited exclusion order against Elekta’s infringing imports. This diverse and bipartisan group of legislators underscores how innovation is a vital American asset that must be sustained, at least in part, by protecting IP. This is the only way to ensure the commercial success of inventions in the future.

Also, in comments filed with the ITC to date, medical centers and medical device manufacturers offered first-hand perspectives as users of this technology. Many expressed confidence that the proposed exclusion order would not harm ongoing patient care and argued that protecting IP will help ensure future advancements in technology that will help patients. These medical practitioners rejected Elekta’s warnings about negative impacts on patient diagnosis and treatment.

It is encouraging to see public officials and private sector professionals stand up for American innovation and the legal rights of innovators. The fact is that consumers benefit broadly from a wide array of innovative products and services that come from a dynamic economy. For that reason, supporting government action to defend IP and innovation is important for consumers and an important component to ensure that America does not fall behind and continues to come up with the “big ideas.” This will keep America on the cutting edge and benefit individual consumers.

We hope the ITC ultimately affirms a limited exclusion order and President-elect Trump’s administration allows the order to stand to help protect U.S. innovations from unfair trade by a foreign competitor.

Steve Pociask is president of the American Consumer Institute, a nonprofit educational and research organization. For more information, visit or follow me @ConsumerPal.

The views expressed by authors are their own and not the views of The Hill.

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