IP WATCHDOG
APRIL 25, 2024, 01:15 PM
“IP has a big role to play in solving the seemingly intractable sustainability problems we face today…. In the United States, however, innovation is being stifled by the devaluation of patents through one-sided legal challenges. Enacting the proposed PERA and PREVAIL bills would go a long way toward alleviating that inequity and promoting innovation at home.” – Wendy Verlander
The World Intellectual Property Organization (WIPO) established World IP Day (WIPD) 19 years ago to celebrate the day on which the WIPO Convention entered into force: April 26, 1970. And this year, WIPO has set as the theme for World IP Day 2024, “IP and the SDGs: Building our common future with innovation and creativity.”
According to WIPO’s website, in order to reach the United Nations’ Sustainable Development Goals (SDGs), “we need to re-think how we live, work and play.” Intellectual property is, of course, a major part of this scenario, as the engine for “innovative and creative solutions that are so crucial to building our common future.”
But is the IP system as we know it today “sustainable” in terms of incentivizing those innovations? These are questions raised by many who commented for this year’s roundup on what we should be thinking about on this holiday meant to celebrate IP. From U.S. developments on “march-in” rights and continued confusion around patent eligibility and AI, see below for what IP stakeholders are contemplating on the eve of World IP Day as they reflect on our IP future.
Alden Abbott, Mercatus Center at George Mason University
“In honor of World IP Day, I believe that the best thing the United States could do would be to enact legislation restoring the presumption in favor of an injunction in the event of patent infringement, and to pass legislation eliminating the judge-made exemptions to patentable subject matter eligibility that have been created by the courts, without warrant, over the last 15 years. These changes would restore the United States’ leadership in the global patent world, prompting additional, faster American economic growth stemming from patent-related innovation. Beneficial foreign investment in the United States would also be promoted to the benefit of American producers and consumers.”
Joseph Allen, Bayh-Dole Coalition
“It seems to be a human failing that once we become prosperous, we tend to neglect what got us there. So, today, like in the 1960s, our intellectual property system is under attack.
In a remarkable book, The Mystery of Capital, economist Hernando deSoto studied why some countries remain mired in poverty. His conclusion was that their citizens were unable to secure clear ownership of the fruits of their labors.
In the 1970s, the result of neglecting our patent system came home to roost. America was rapidly losing its technological lead to aggressive foreign rivals. We met that challenge through three historic actions: passage of the Bayh-Dole Act, injecting the incentives of patent ownership into federally funded R&D, the Supreme Court ruling in Diamond v Chakrabarty that man made micro-organisms are patentable, and the creation of the Court of Appeals for the Federal Circuit, which restored confidence in our patent system. These actions helped restore America’s leadership, making lives better here and around the world.
We are again in an era when these foundations are under active assault. So, on World IP Day, let’s hope that once again we recognize and appreciate what makes our standard of living possible — entrepreneurs who invest their lives and resources creating breakthroughs making the world a better place through the incentives of a strong IP system.
There’s another book to consider. In Atlas Shrugged, innovators stop creating because their creations are taken from them by an ungrateful society. That doesn’t have a happy ending.”
Frank Cullen, Council for Innovation Promotion (C4IP)
“As we celebrate World IP Day, it is important to reflect on the role a strong IP system plays in support of America’s innovation economy. IP rights incentivize innovation, uplift businesses, create jobs and unlock scientific breakthroughs that make our lives better and save lives. Tackling challenges related to this year’s theme of climate change and sustainable development will require the creation of innovative new technologies — which are encouraged when we ensure inventors’ ownership of their IP.
But to remain effective, our system of IP rights must also be nurtured and protected. Unfortunately, that’s an area where many of our lawmakers are falling short. C4IP’s recent Congressional Innovation Scorecard found that a supermajority of Congress shows little interest in supporting strong IP rights. If we’re to achieve our economic and environmental goals in the year ahead, policymakers must strengthen their commitment to IP rights. Domestically, that means supporting bipartisan legislation like the Patent Eligibility Restoration Act and opposing NIST’s “march-in” proposal that would enable the government to seize patents on new discoveries at research universities and further kneecap U.S. innovation.”
Marla Grossman, ACG Advocacy
“Given this year’s World IP Day’s theme of Sustainable Development Goals (SDGs), it behooves us to consider the many ways in which aligning innovations with SDGs through patent mapping can be a powerful strategy for driving sustainable technological development:
- Informed Decision Making: Patent analytics provide valuable insights into the technological landscape related to sustainability. By mapping patents to specific SDGs, decision-makers can identify gaps, trends, and opportunities for innovation in areas crucial for sustainable development.
- Strategic Resource Allocation: With data-driven insights from patent mapping, policymakers and businesses can allocate resources more effectively. This ensures that investment and effort are directed towards areas where they can have the most significant impact on achieving sustainability goals.
- Facilitating Collaboration: Patent mapping fosters collaboration among stakeholders by highlighting areas where inventive contributions are most needed. It enables partnerships between businesses, research institutions, and governments to develop sustainable solutions collaboratively.
- IP Department Benefits: IP departments can leverage patent mapping to gain a comprehensive understanding of sustainable technology developments. This knowledge allows them to advise businesses strategically on sustainability matters, enhancing the company’s overall sustainability strategy.
- Business Advantages: Aligning innovations with SDGs can enhance a company’s financial profile by appealing to socially conscious consumers, purchasers, and licensees. It positions the business as a leader in sustainability, which can contribute to brand loyalty and competitiveness in the market.
By actively linking innovations to SDGs through patent analytics, organizations can play a pivotal role in advancing sustainable development and contributing to a better world for future generations.”
Erik Hawes, Morgan Lewis IP Renewable Energy Practice
“Efforts to reduce carbon emissions and promote sustainable energy sources are dependent on the development of new technologies in a diverse range of industries including wind power, biofuels, geothermal, and energy storage. In the long run, the market incentive provided by IP rights is necessary to drive the private investment needed to achieve the world’s sustainable development goals.”
Jennifer Mauri, Michelman & Robinson
“Efforts at all levels of the legal sector are crucial for advancing sustainable development goals.
As sustainable development shifts from a niche interest to a mainstream priority, the importance of intellectual property (IP) in supporting this transition grows. IP rights have long driven development by enabling innovators to profit from their creations. This not only rewards those who have invested in sustainable technology advancements but also encourages new innovations. With sustainability becoming a key focus, an increasing number of companies are investing in research and development across various fields. It’s vital for them to protect their investments through IP measures such as patents, trade secrets, copyrights, and trademarks. IP practitioners play a vital role in helping companies establish a comprehensive set of rights to protect their innovations and have the opportunity to observe their impact on the marketplace.
From a broader perspective, daily legal practices have made significant advancements in sustainability. Law firms, including my own, are reducing their environmental impact through more remote or hybrid work arrangements, which decrease carbon emissions and pollution. Many are transitioning to paperless (or nearly paperless) offices and filings to minimize paper waste. Additionally, these firms are enhancing social and economic sustainability by increasing diversity and expanding pro bono efforts.”
Shoko Naruo, Thompson Coburn
“Sustainability can be addressed from various perspectives, ranging from individual actions to societal and global initiatives, and through our professional responsibilities. As an IP professional, I’ve been privileged to serve on INTA’s Brands and Sustainability Committee, filled with passionate members; every meeting is filled with lively discussions. Being part of initiatives like the Green Swag Awards, where we advocate for sustainable giveaways over plastic ones, has been enlightening. Witnessing exhibitors create inspiring goods from recycled counterfeit materials has reinforced my commitment to fostering sustainability.
Over time, I’ve realized my ability to influence our collective sustainable future through conscious decisions to partner with and investment in sustainability-driven entities, whether it be supporting sustainable food, buying from sustainable brands, etc. In addition, each individual’s actions, such as using water coolers and portable cups during travels and opting for public transport, no matter how small, can add up and significantly contribute to our environmental impact. Reflecting on World IP Day, I’m reminded of our shared responsibility to innovate and collaborate for a sustainable future.”
Arjun Padmanabhan, Cole Schotz
“Fostering innovation is crucial to WIPO’s sustainable development goals as it drives the creation of new technologies and systems that address environmental, economic, and social challenges. Artificial intelligence holds vast untapped potential to address many of those challenges. As the world embraces AI, countries are adapting patent laws to accommodate AI by clarifying inventorship and ownership rules for innovations generated by AI systems. Once unpatentable AI-created inventions are now patentable in leading patent regimes.
However, AI use can lead to overharvesting, which stymies innovation and sustainability. Patent systems face challenges from entities farming AI systems for patentable subject matter, resulting in “troll” patents that monopolize industries. The European Patent Office, US Patent Office, and other agencies recently implemented safeguards within their respective legal systems to prevent AI farming for patentable subject matter by requiring inventors to understand and appreciate claimed inventions.
Over 5,000 years elapsed between the invention of the wheel and the invention of the airplane, but just over a century separated the airplane’s debut and the release of the iPhone. Innovation is accelerating at an unprecedented rate, and AI is a new frontier for innovation and intellectual property. In the next decade, regulatory agencies will determine the sustainability of that acceleration by striking the balance between property rights for AI users and traditional inventors. Fortunately, international intellectual property legislation appears to be trending towards supporting the momentum rather than hindering it. This signals a promising future where AI enthusiasts and traditional inventors collaborate to advance humanity.”
Robert Plotkin, Blueshift IP
“For World IP Day, let’s focus our efforts on eliminating the outdated and artificial hurdles that have been erected to the patent eligibility of software and other computer-implemented inventions.
Even though software has been an integral part of the world economy for at least half a century, and innovations in software – and increasingly in AI – fuel groundbreaking advances in nearly every field of technology, IP laws worldwide continue to treat software with skepticism and require software innovations to withstand heightened scrutiny that isn’t applied to other kinds of technology.
While such a misguided approach to software patent-eligibility might have been understandable on the basis of ignorance in the 1970s, when the software industry was still in its infancy, there is no longer any excuse for treating software as a second-class citizen in the patent world.
Software forms the fabric of modern innovation. Let’s dispense with legal rules that were formed on the basis of old misconceptions and put software innovations on the same footing within IP law as developments in all other fields. By doing so we will surely “add the fuel of interest to the fire of genius” and amplify the ability of software innovators worldwide to reach greater heights and to bring the benefits of their creations to the public.”
Randall Rader, Retired Chief Judge, U.S. Court of Appeals for the Federal Circuit
“World IP day 2024 falls very near the 40th anniversary of the Hatch-Waxman Act or, to be precise, The Drug Price Competition and Patent Term Restoration Act of 1984. Near the end of his life, I met with Senator Orrin Hatch and we enjoyed some of the most warm and meaningful conversations of my life. At one point in those meetings, he inquired about the success of the Hatch-Waxman Act. With confidence, I told him that his work had revolutionized pharmaceutical and IP policy not just in the U.S., but worldwide. After all, he also spearheaded passage of the Orphan Drug Act and the National Organ Transplant Act at about the same time. Maybe at the 40th anniversary of the Hatch-Waxman Act, we should reflect on the spirit of cooperation that characterized passage of that monumental legislation. Perhaps in 2024 we could aspire to recreate that spirit at a time when cooperation is woefully lacking in most areas of IP and legal policy.”
Kevin Schubert, McKool Smith
“This World IP Day, I am interested to see what changes, if any, will be made around the patent eligibility issue, particularly given that my practice is focused on patent litigation in the high-tech space. Despite speculation for years of impending changes, neither Congress nor the Supreme Court has made significant changes to patent eligibility in many years. On the horizon, either Congress could pass some form of the long-debated Patent Eligibility Restoration Act, or the Supreme Court could decide to grant cert on a case dealing with patent eligibility. If either happens, it has the potential for significant impact.”
Mike Schulze, Mirror Imaging, LLC
“On World IP Day, we recognize that obtaining a patent represents a significant milestone for many small inventors and businesses across the United States. Yet, despite the protections patents are meant to provide, too often these innovators find themselves outmatched and overshadowed by larger corporations that co-opt their ideas and reap the profits. Without sufficient resources to enforce their patents, these inventors suffer losses, undermining the security that their IP rights should guarantee.
Today, more than ever, it is crucial that we address the shortcomings of the U.S. patent system. Inventors are the architects behind some of the most essential tools, services, and discoveries of our age. It is our duty to honor their contributions, credit their innovations, and refine our patent system to truly serve its primary stakeholders—the inventors themselves.
To this end, I am committed to advocating for meaningful reform. I pledge to freely testify on Capitol Hill during any sessions where our lawmakers seek firsthand accounts from those directly affected by the current inadequacies in our patent system. Together, we can work towards a system that not only acknowledges but actively supports the ingenuity and integrity of every inventor.”
Wendy Verlander, Verlander LLP
“For World IP Day, I think we should be thinking about how to better incentivize inventors to innovate in ways that will help solve some of the world’s biggest problems. WIPO’s theme this year is Sustainable Development Goals. IP has a big role to play in solving the seemingly intractable sustainability problems we face today, including providing less expensive healthcare, clean energy, housing, lower food production costs, clean water and preventing environmental disasters, among many others. Increasing the use of technology, such as AI and robotics, and medical and scientific breakthroughs, such as advances in genetic engineering, can move us closer to achieving some of these goals. In the United States, however, innovation is being stifled by the devaluation of patents through one-sided legal challenges. Enacting the proposed PERA and PREVAIL bills would go a long way toward alleviating that inequity and promoting innovation at home. Globally, providing strong, harmonized IP protection will increase worldwide innovation. That’s a significant challenge, but the success of the Unified Patent Court demonstrates that it is possible.”