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Protecting intellectual property in America is harder than ever

Protecting intellectual property in America is harder than ever
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Ever feel like you’ve come up with a million-dollar idea that could make people’s lives easier or more productive? Unfortunately, American inventors are discovering that developing the next great idea here is not worth the trouble, and they are either giving up or looking abroad to places like China for protection.

Innovative new ideas have always fueled America’s dynamic economy. For courageous individuals willing to go out on a limb with their invention, our strong patent system has always provided the safety net — until now.

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Over the last few years, a series of ill-conceived laws, harmful policies and bad court decisions have decimated the framework established by the Constitution to protect inventions. The purposeful demolition of America’s patent system, once the envy of the world, has left small players unable to protect their work.

 

The playing field has tilted increasingly against individuals, small businesses and universities with good ideas. Large corporations are finding it easier to steal intellectual property than to pay for it. In much the same way people download digital content without paying and with no fear of retribution, large corporations brazenly infringe on inventors’ patents.

This carefully orchestrated campaign to weaken the patent system did not happen overnight, but it has effectively rendered small inventors defenseless against big players with deep pockets.

The deceptively titled America Invents Act that Congress passed in 2011 established the Patent Trial and Review Board (PTAB), which can invalidate patents upheld by federal courts using a lower standard of evidence. Because the PTAB has nullified 80 percent of the patent claims it has reviewed, it has the well-earned nickname of “Patent Death Squad.”

Some companies are making the unorthodox decision to move their patents to Native American tribes to protect them. But more patent holders are fleeing the U.S., in a desperate search for foreign jurisdictions — such as Europe, or even China — that will better protect their ideas against theft. Where the research and the inventions go, employers and people follow.

Innovators are having to look abroad, because they cannot even seek injunctions against those infringing on their patents in the U.S. as they pursue expensive and lengthy procedures to defend their intellectual property. The U.S. Chamber’s 2017 report on global their intellectual property shows that the U.S. patent system has fallen in recent years, from first place to 10th place worldwide — equivalent to Hungary.

In a perverse twist, the U.S. Patent and Trademark Office now plans to raise fees because the compromised system has killed so many patents and dissuaded so many inventors, the agency’s funding model is at risk.

Some inventors even staged a patent-burning this summer in front of the Patent and Trademark Office to demonstrate that their patents are no longer worth the paper they are printed on. Recently, the momentum has started to shift.

The nominee to be the next director of the Patent and Trademark Office, Andrei Iancu, has the professional background to recognize the current system’s failures and can curtail some of its abuses. The Supreme Court last week heard oral arguments in the Oil States case, which examines the constitutionality of whether an administrative body like the PTAB can remove a patent holder’s property rights.

And Congress has finally noticed that the law needs to be fixed. Sens. Chris CoonsChristopher (Chris) Andrew CoonsDem senators urge Pompeo to reverse visa policy on diplomats' same-sex partners 15 Saudis identified in disappearance of Washington Post columnist The Senate needs to cool it MORE (D-Del.) and Tom CottonThomas (Tom) Bryant CottonFlake: Congress should not continue Kavanaugh investigations GOP senator suspects Schumer of being behind release of Ford letter Susan Collins becomes top 2020 target for Dems MORE (R-Ark.) introduced the bipartisan STRONGER Patents Act this year that aims to repair some of the damage caused by the America Invents Act, and to make it more difficult for infringers to unravel patent protections.

But we need to act soon, or American competitiveness will continue to suffer.

Scott Moskowitz is the policy board chairman of U.S. Inventor, a nonprofit group representing American inventors and innovators. He is also the founder and managing director of Blue Spike LLC.