US intellectual property protection sorely lacking

We’re No. 12! We’re No. 12! That is not the chant that a proud American might have been cheering at the Olympic Village in Pyeongchang.

President Trump isn’t likely to break out this little tidbit of information in his Twitter feed, even though he could justifiably blame it on previous administrations. But, according to a Chamber of Commerce report, that is where the U.S. is now ranked when it comes to protecting intellectual property.

{mosads}The poor ranking makes sense though. In recent years, Congress, the Supreme Court and the Obama administration have not done much to protect intellectual property, and in more than one way, did things that weakened intellectual property protections.

The report states that the United States’ current “overly cautious and restrictive approach” to patent eligibility “seriously undermines the longstanding world-class innovation environment in the U.S.” and threatens our ability to stay ahead of global competitors. It also states that uncertainty creates a “challenging environment” for innovators.

While the United States continues to drop in the rankings, China slightly improved their position on the scale. The report states that while innovators in China “continue to face significant market access barriers,” the country adopted some proposals that strengthened its system for some industries.

The Global Innovation Policy Center report is just one of several warning signs. The U.S. also dropped out of the top 10 in the Bloomberg Innovation Index this year for the first time in the six years Bloomberg has compiled the report.

A recent analysis by the Regulatory Transparency Project of the Federalist Society found that during the Obama administration, the United States Patent and Trademark Office deterred U.S. innovation through regulatory overreach.

The analysis found that the America Invents Act, passed in 2011, implemented — among other changes —  a new administrative tribunal, the Patent Trial and Appeal Board, for declaring patents invalid if they were issued erroneously or issued for a defective invention.

Though intended to foster innovation by removing such patents, the formation of the tribunal, the report found, resulted in patents being invalidated “in a willy-nilly fashion.”

According to the report, courts granted the tribunal broad authority to deem a patent invalid. Anyone anywhere in the world may file a petition to invalidate any U.S. patent. If the tribunal concurs with the petitioner, they may declare the patent invalid.

During this process, patent owners are not granted the same legal procedural protections they would have in a court of law. This creates a culture of ongoing uncertainty of patent owners.

The United States’ drop in the Global Innovation Policy Center’s rankings is just the latest piece of evidence that detrimental actions taken by Congress and subsequent harmful court decisions created an environment of uncertainty for U.S. innovators.

The good news is that a lot of people — including the writers of the Chambers report — know what the innovation economy needs to succeed.

A great idea requires significant time and resources and ultimately market power to transform into a product with the power to change lives. A great idea needs an environment that encourages and incentivizes creators to bring their imaginations to life.

Here, intellectual property protections play a critical role. They give tangible value to ideas and empower people to earn a livelihood from€ their creativity. They fuel economic growth, job creation and access to creative and innovative output.

The Senate recently unanimously confirmed President Donald Trump’s nominee Andrei Iancu as director of the U.S. Patent and Trademark Office (PTO) and undersecretary of Commerce for Intellectual Property. The president recently made four nominations to the to the Federal Trade Commission, as well.

The new director of the PTO has an opportunity to reverse the course of the Obama administration in his agency by reforming the panel. He should also ensure the agency is an organization that encourages innovation, enforces strong patents and protects property rights.

If America is to be first again, we must take patent strength seriously. Iancu — alongside a full FTC commission —  must act to so that the United States strengthens its patent system to foster job creation, to allow innovation to thrive and to put America back on top.

Charles Sauer is president of the Market Institute, an organization that advocates on behalf of small business and limited government intervention. Previously, Sauer worked for Gov. Jeb Bush (R-Fla.) on federal labor, tax and immigration policy. He is the author of the forthcoming book, “Profit Motive: What Drives the Things We Do.”