At this year’s IPI World IP Day Celebration, IPI was honored to host Congressman Doug Collins, ranking member of the House Judiciary Committee, who called for simplifying intellectual property policy.
“We make intellectual property too hard sometimes,” he said. “We make it ethereal, it’s out there in the realm, only the experts know how to talk about it.”
Last Thursday I attended the release reception for the 2019 edition of the U.S. Chamber of Commerce’s International IP Index, which is produced by the Chamber’s Global Innovation Policy Center (GIPC). The Pugatch Concilium does the research and writes the report, under the direction of my friend, Meir Pugatch. It was great to see Meir again after several years.
The Index is an attempt to rank 50 countries based on their IP systems, under the assumption that stronger IP protections are positive for encouraging innovation and investment in a country. Many studies have demonstrated that higher levels of IP protection correspond with higher levels of foreign direct investment and the resultant economic growth, and the Index also contains some of that data.
The Index also contains a section talking about general international IP trends, which in general are not good. While some developing countries are seizing the advantage of stronger IP protection (India, Brazil, Argentina), many countries are undermining IP protection (Chile, Colombia, Peru, Russia).
In the US, which has been slipping in the rankings because of some unfortunate Supreme Court decisions and the PTAB process at the Patent Office that has been cynically abused to invalidate patents, things have turned back up. The new USMCA trade agreement (as yet not adopted or implemented) increases IP protection, but the major fact that lifted the US from 12th place to 2nd place in the patents ranking is the change at the top of the U.S. Patent Office. New Director of the Patent Office Andrei Iancu has implemented significant, pro-patent procedures throughout the Office but especially in the PTAB process, which has restored the process to something approaching its original intent, instead of the abusive way it operated under the previous USPTO regime.
The problem with such improvements, of course, is that they are easily undone by a future administration, which means we still need legislation like the Stronger Patents Act to use the force of law to either eliminate the PTAB process, or lock-in the higher standards imposed by Director Iancu. Such legislation should reverse some of the recent Supreme Court patent decisions as well.
With tax reform having just become law, economists are trying to project the effects on the U.S. economy. Such calculation in a highly complex, dynamic economy is at least as much art as science but one trend seems clear -- the job market will continue to tighten. Some economists are predicting that unemployment will drop to 3%, nearly matching the lowest average unemployment rate on record (2.93% in 1953). But there are jobs and then there are good jobs—which will these new jobs be? A study by NDP Analytics provides some insight. It’s the intellectual property-intensive industries that will be driving the growth and creating the types of jobs and careers that people want.
I’ve done a lot of work on the role of intellectual property in trade agreements, so when nuttiness makes its way into the mainstream, I tend to notice.
If you’re interested in some of the work I’ve done on IP and trade, here’s a little:
- In 2014, during the Trans-Pacific Partnership (TPP) discussions, I spoke as a panelist at a Cato Institute event. The panel was pretty much stacked 3:1 against me, and I think I held my own pretty well. It’s one of the more fun things I’ve done in policy in the last couple of years.
- Why Intellectual Property Should be Included in Trade Agreements
Anyway, recently, the anti-copyright coalition Re:Create’s Executive Director Josh Lamel wrote an op-ed in “The Hill” claiming creative industry calls for modern, strong copyright provisions in NAFTA that reflect lessons learned about internet ills since the DMCA was enacted in 1998 “would cripple the creative economy and the internet economies.”
To support his bizarre and counterintuitive assertions, Lamel relies on dubious claims and ends-driven research. To help everyone see through Re:Create’s artifice, I set the record straight below.
Today the Supreme Court of Canada (SCC) issued a significant ruling overturning Canada’s harmful “Promise Doctrine,” which was a completely novel and ill-advised standard Canada has been using since 2005 to overturn patents on innovative pharmaceuticals and biologics.
Canada’s Promise Doctrine, wholly invented in Canada and finding no basis in domestic or international patent law, turns out to not have even been consistent with Canada’s own Patent Act, according to the Supreme Court, which stated that “The Promise Doctrine is incongruent with both the words and the scheme of the Patent Act.”
Instead of simply granting a patent based on a non-obvious and useful inventive step, the Promise Doctrine insisted that a drug must be able to meet the nearly impossible test of predicting exactly how the product will be useful and then living up to that standard at the time the patent is applied for. This means that a court could be highly subjective in determining that a given patent did not live up to that standard at a time long after the patent was granted, which Canadian courts have been doing, invalidating 26 patents over the last decade based on this faulty Promise Doctrine.
The US Chamber has an excellent statement on the ruling, and Philip Stevens and Mark Schultz at the Geneva Network have a great explanation how the Promise Doctrine (now defunct) threatened innovation in Canada and beyond.
Canada’s Supreme Court apparently understands the importance of not weakening patent protection. Unfortunately, the US Supreme Court seems determined to go in the opposite direction, which is why Congress is beginning to contemplate new legislation to strengthen patent protection in the US.
Save the date to join us for IPI's annual World Intellectual Property Day Celebration on Tuesday, April 25 at the Reserve Officer's Association (ROA) Building on Capitol Hill in Washington DC.
We are proud to announce we will be featuring featuring Senate Judiciary Committee Chairman Chuck Grassley and WIPO's Deputy Director General of Patents and Technology John Sandage.
United Nations bureaucrats want to mess with Texas.
The UN High-Level Panel on Access to Medicines recently recommended weakening intellectual property protections that drive and sustain biopharmaceutical innovation. Panelists hope their proposals will make it easier for foreign companies to create knock-offs of treatments researched, developed, and manufactured in America and distribute them around the world.
The Panel's misplaced focus on intellectual property resulted in a series of damaging recommendations that would suffocate medical innovation and stunt economic growth in Texas and across the nation -- all without helping patients one bit. Patents and other intellectual property protections are not barriers to access to medicines. The vast majority of treatments on the World Health Organization's Essential Medicines List are no longer protected by patents, yet millions of people around the world do not have access to them.
Innovation is expensive and risky. Bringing a new drug to market takes an average of a decade and costs roughly $2.6 billion. Additionally, only one out of every 5,000 promising compounds makes it out of the lab and through clinical trials to receive FDA approval. And just twenty percent of approved drugs ever turn a profit.
Strong IP protections allow inventors to profit from their rare successes by restricting copies for a limited amount of time. That's essential, especially given that these companies need to earn back not just the development costs of the successful drug, but of all the ones that failed too.
“Reimportation” of prescription drugs is back as an issue, but only because Democrats seek to distract from the effort to repeal and replace Obamcare, according to Politico. By importation we refer to the ability of American consumers to buy their prescription drugs from overseas rather than from domestic sources, and particularly to large-scale importation, such as US drug distributors sourcing their drugs from overseas.
There has always been some cross-border traffic on pharmaceuticals, as drug prices in Canada can be cheaper than in the US. But the Medicare Part D prescription drug benefit, which came into effect in 2006, has significantly reduced this traffic by making prescription drugs available to seniors at more affordable prices.
There’s a reason why such importation is illegal today under most circumstances, and that’s because of safety. The rate of counterfeit drugs in other countries is staggering, and the only way to keep the counterfeit problem from infecting the US drug supply is through the rigorous inspection and supply-chain regime maintained by the FDA. And the FDA has repeatedly told Congress that it cannot guarantee the safety of drugs entering the US from other countries such as Canada, since it does not inspect those facilities. And when the FDA has been permitted to inspect overseas facilities, the results haven’t been encouraging, such as the extensive and discouraging history of the FDA with Indian pharmaceutical manufacturer Ranbaxy.
Some on the free-market side of the political spectrum argue that importation of prescription drugs is simply a matter of “free-trade,” which at least up until the last few months has been a persuasive argument when presented to Republicans. But, as professor Richard Epstein notes in an IPI publication noted below, importation of prescription drugs is actually a perversion of free trade, in that it rewards other countries for their price controls and socialized medicine systems, rewards them for their disregard for the patents of American drug companies, and would likely create shortages of much needed drugs in poor countries as their drug supply was diverted back to the US.
Larry Lessig is a well known critic of intellectual property protection, such as copyright and patents. But Larry has always claimed to believe in the basic idea of intellectual property; he just thought it all needed to be "reformed," by which he always seemed to mean "rendered impotent."
Well, a couple of days ago, Larry made a little Freudian slip on Twitter. Or perhaps it was entirely intentional. Regardless, it's instructive.
The policy problems with FCC Chairman Tom Wheeler’s set-top box proposal are many—the majority of which have nothing to do with set-top box competition issues—from consumer privacy to cybersecurity to energy consumption. But the concern that seems to have resonated the most is the proposal’s brazen disregard for copyright—constitutionally enshrined intellectual property rights that help provide the foundation for American creativity and the cultural and economic benefits they bring our nation.
Wheeler's proposed rule would force pay-TV providers to transmit copyrighted content to third parties without obtaining the consent of the copyright holders, allowing the third parties to appropriate that content for their own commercial benefit and undermining the ability of programmers to create television and film content in the first place.
Almost from the moment Chairman Wheeler announced his set-top proposal, it has been teetering over an abyss in the face of near unanimous opposition, including from small and large programmers, civil rights groups, television and film unions, individual creators, more than 180 Democrats and Republicans in the House and Senate, and a bipartisan triumvirate of Chairman Wheeler’s own fellow commissioners.
Now, any clown can come up with an example of a bad patent. Priti has the nerve, however, to use Sovaldi as her example, which is where we are going with all of this.
What is Sovaldi? Sovaldi is a CURE for Hepatitis-C. It’s a revolutionary medicine. First you had Hep-C, and you suffered and you died early. Now, with Sovaldi, you can be cured of Hep-C.
I emphasize this because, before Sovaldi, the critics of the pharmaceutical industry were bashing the industry because it allegedly was focusing on lifestyle drugs for the rich West rather than trying to cure the diseases that plagued millions of people. Greed rather than trying to actually cure diseases. Then Sovaldi comes along and inconveniences their argument.
But you’ve got to hand it to Priti. She has nerve—almost certainly more nerve than you or I have. Because Priti can write something like this:
“We have evaluated Gilead’s patent portfolio and found that, based on US and international patent law, Gilead does not deserve any of its 27 patents for Sovaldi. Both the base and secondary patents for the drug are based on old science and commonly known techniques.”
Really? So there’s no cure for Hep-C. Someone invests millions of dollars and years of expertise and actually manages to invent a cure for Hep-C, but they’re not entitled to a single patent for such a revolutionary invention?
HBO’s “Silicon Valley” has built a successful show satirizing the real Silicon Valley’s hubris and worst excesses. Many of the funniest moments follow the struggles of the protagonists with various venture capitalists who have invested in their business (Russ Hanneman anyone?). VCs – or “Angel Investors” – are the demigods of Silicon Valley. Their decisions can make or break companies. As such, they hold a special place in tech circles and their opinions are given a lot of deference.
It’s this VC worship that likely led Silicon Valley-backed intellectual property skeptic advocacy group Engine to commission a 2014 survey of investors (and law firms that advise them) concluding VCs may be less likely to invest in “digital content intermediaries” (firms like YouTube) if the company were exposed to legal risk for copyright infringing content on their sites.
The notion that investors account for legal liability as they choose their investments isn’t insightful or new. And the idea that a VC might choose not to invest in a new business built on facilitating access to unlicensed copyrighted content shouldn’t be either.
This “innovation at all costs” mentality, which seems to fuel the Engine report, reminded me of a 2013 Wired article discussing Silicon Valley’s “threadbare nature of digital exceptionalism.”
The undue emphasis placed on entrepreneurship, combined with a limited view of who “counts” as an entrepreneur, functions to exclude entire categories of people from ascending to the upper echelon of the industry. And the ideal of authenticity privileges a particular type of self-presentation that encourages people to strategically apply business logics to the way they see themselves and others.
One argument against the FCC’s recently announced “AllVid” plan to regulate and “open up” the video set-top box is that set-top boxes are NOT a natural monopolistic platform that must be regulated by government in order to allow competition – in fact, set-top boxes are on the verge of being phased out and replaced by a variety of innovative new options. Apple TV, for instance, is an example of innovative new hardware for video access. But even a look at Apple TV lets you quickly see the real future of video access – apps. Put simply, in the normal course of innovation responding to consumer demands, set-top boxes are being replaced by apps on smart TVs, mobile and streaming devices. There may never be a better example of government regulation being behind the pace of innovation.
And today, Comcast announced its Xfinity Partners Program, which will allow Comcast customers to access their Xfinity content through a variety of devices and platforms using an Xfinity TV Partner app. Samsung and Roku have already joined the program, which means Comcast customers simply won’t need a set-top box if they own one of the new Samsung or Roku devices featuring the Xfinity TV app.
Seeing Comcast join the impressive number of over-the-top video providers who allow access to their content through apps demonstrates that the FCC’s AllVid rulemaking is not a response to a problem in the marketplace. The FCC has also done no economic analysis whatsoever to justify its scheme. Nevertheless, the FCC is pushing the Allvid scheme very aggressively with shortened timeframes for comments and public input. One has to wonder what, exactly, is the FCC trying to accomplish? And why the rush?
Meanwhile, industry continues at the speed of innovation while the FCC regulates looking backward.
Die-hard opponents of free trade and intellectual property have plainly stated their intention to wage a smear campaign against the largest trade agreement in history, the Trans-Pacific Partnership (TPP). Their transparent and tone-deaf tactics have been lampooned as one-sided and overly simple, but still they strain to create fear and anxiety among consumers and users at every opportunity. This, despite mounting fatigue and annoyance from their own supporters. For example, Redittor “binarybandit” posted:
I've seen EFF doing this lately with the TPP bill. They've been using fear mongering to make people believe that they're seriously gonna go to prison for making a free mod for a game, or that it's gonna destroy the internet somehow. People are eating it up though.
Right on cue, the latest effort to invent controversy centers on a breathless EFF conspiracy theory – government lawyers have secretly expanded the scope of penalties for copyright infringement during a technical review of the TPP text by changing the word “paragraph” to the word “subparagraph” in a footnote.
To be fair, it is true that this change means the footnote only applies to one part of the paragraph, and that does actually make a difference. The paragraph at issue sets out rules for calculating and applying remedies for criminal theft of intellectual property, and the footnote allows countries to ignore those rules, except for more significant cases. The change means only the last part can be ignored (except for more significant cases), not the whole paragraph. Sensing an opportunity, the EFF pounces insisting there is “no rational basis” for the change. Let’s examine that.
The very first obligation in the paragraph — where the footnote no longer applies — is that the punishment should fit the crime. In the precise terms of the agreement, countries must provide “Penalties that include sentences of imprisonment as well as monetary fines sufficiently high to provide a deterrent to future acts of infringement, consistent with the level of penalties applied for crimes of a corresponding gravity.” Now, if the footnote applied to this requirement, it would be saying that in lesser cases, the punishment doesn’t have to fit the crime and doesn’t have to provide a deterrent. Would that make any sense to you?