It’s time to restore America’s patent system

Since our country’s founding, the U.S. patent system has been one of the unsung heroes of America’s success story. Patents are based on a simple concept: that American inventors, entrepreneurs and companies whose hard work and expertise lead to a new invention deserve to reap the benefits of their work for a limited time.

That respect for intellectual property, enshrined in the Constitution, has incentivized millions of Americans over the years to develop lifesaving cures, revolutionary technological advances, and groundbreaking manufacturing innovations. Patents have played a key role in building America into the economic, academic and military superpower it is today.

All of that, though, is now at risk, because our patent laws have become overly complicated, riddled by uncertainty, and, frankly, hostile to innovation. Over the last several months, we’ve heard from dozens of business leaders, researchers, academics, practitioners, members of the public, and judges who have told us that America’s global reputation for having the gold standard for patent protection is fading, if not gone completely. To put it simply, many inventors, innovators and investors believe that it’s better to seek a patent and pursue new innovations in places like Europe or even China. That should concern every single American.

That uncertainty impacts almost every industry and area of research, but in particular, it threatens American innovators and companies who are working to develop cures to deadly diseases and medical diagnostic tests that could benefit millions of people, as well as next-generation technology like artificial intelligence and quantum computing.

That’s why both of us – bipartisan leaders of the Senate Judiciary Subcommittee on Intellectual Property – alongside our colleagues in the House of Representatives, are exploring ways to fix our patent laws, particularly to ensure that the groundbreaking cures, medical innovations, and technological advances of the next century come from right here in the United States and that the American people directly benefit from them.

As we’ve sought and received input from dozens of stakeholders with a wide range of opinions and perspectives on patent law, we’ve heard some concerns about how legislation could impact the Supreme Court’s 2013 Myriad decision, which established that genes, as they exist in the human body, are not eligible for patent protection. 

We both want to be clear: we have no intention of overruling that central holding of the Myriad decision. We do, however, want to address the tremendous uncertainty about the scope of what is eligible for patent protection – from medical diagnostics to artificial intelligence – that has been clouded by the Myriad decision and other recent court decisions.

In other words, we agree that nobody should be able to patent genes as they exist in the human body, but we do need to give researchers and businesses clarity on what medical innovations – including some that involve use of genetic material – can be patented. That’s critically important, because if researchers and investors don’t have confidence that their work could lead to a patent, they might not pursue it at all, at least not in the United States.

That’s why we’re working to create a clear legal framework for what types of innovations are patent eligible, so that everyone – from researchers and investors to businesses and academics – can follow the same, commonsense rules.

Like most things, this isn’t a black and white issue – even the Myriad decision drew lines between eligible and ineligible genetic material, and in some ways, this particular issue – whether and which innovations that use genetic material at all can be patent eligible – speaks to the broader challenge we face in creating a sensible patent system.  

On one hand, we cannot allow companies to patent things that exist in nature, but we should support research into the natural world that could produce groundbreaking (and patentable) cures, technologies or other advances. 

Similarly, we need to ensure more broadly that inventors are able to reap the rewards of their work, but on the other, we don’t want to restrict research into creative ways to further innovate based on those discoveries.

That’s why, this week and next, we’re bringing together 45 expert witnesses from a wide range of diverse perspectives and opinions for three public hearings to figure out how to best move forward with patent reform legislation. 

Over two weeks, the Senate and the American people will be able to hear testimony from dozens of experts, including those who agree with some of our proposals, and just as importantly, those who have concerns. That’s exactly how this process is supposed to work – with everyone at the table, making their voices heard, so we can craft the best patent laws possible. 

We think our subcommittee is up to the task, and we look forward to producing a bill that will ensure that America remains the world’s global leader for research, development and innovation.

Tillis is the chairman of the Senate Judiciary Subcommittee on Intellectual Property and Coons is the subcommittee’s ranking member.