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As Joe Biden’s presidency comes to an end, the time has come for taking stock of his performance in that position of public trust. Judged by Biden’s effect on property rights, he has done exceptionally badly.


President Biden was elected on the false notion that he would govern from the middle of the road. Instead, he governed from the far Left.


Rather than bringing in experienced moderate and centrist Democrats capable of working across the aisle, Biden handed the reins to extremist ideologues, acolytes of Bernie Sanders and Elizabeth Warren, and Left-wing political zealots. For instance, Lina Khan at the Federal Trade Commission, Tim Wu at the White House and Rohit Chopra at the FTC and the Consumer Financial Protection Bureau.


Rather than seeking consensus by forging bipartisan legislation where a foundation for such constructive efforts lies, Biden force-fed Republicans, independents and moderate Democrats the most extreme, divisive policy prescriptions. A few disreputable examples are:



  • Trillions of taxpayer dollars wasted, including in the American Rescue Plan, that supercharged inflation to levels not seen in four decades. This form of hidden taxation has caused American families unnecessary economic stress and financial difficulty.


  • Weak patent policies, such as the National Institute of Standards and Technology’s wholesale, deliberate misinterpretation of the Bayh-Dole Act’s march-in provision, which has loomed over technology transfer for a year, while the National Institutes of Health has issued an eleventh-hour version of price controls. Rather than standing up for the TRIPS Agreement’s IP protections, Biden went all in on adopting a patent-stealing exception.



  • Enacting drug price controls in the socialistic, misnamed “Inflation Reduction Act.” These threaten the continued U.S. lead in biopharmaceutical innovation because government-set prices reduce revenues that fund high-risk, high-reward R&D, which is key to American innovation.


  • Income redistribution through unlawful student loan forgiveness schemes. Biden has taken from the working class, people who didn’t take on debt to go to school and other financially prudent Americans to bail out the irresponsible.


  • Vast expansion of the Administrative State, multiplying the regulatory burden on many parts of the U.S. economy, businesses large and small, and American life.


  • Reviving obsolete, subjective antitrust policies and procedures, and imposing sweeping measures that have assaulted objective, empirical antitrust standards. Biden weaponized antitrust against routine mergers and acquisitions that would have benefited consumers and create dynamic competition, wealth and jobs.


  • Forcing unionization, PRO Act style, through regulatory actions, even in right-to-work law states.


These examples beg the question: How much damage to private property rights has Biden’s wrong-headed policies caused?


How much innovation has his administration murdered in the crib? How much wealth was never created because the economic activity that otherwise would have occurred never did? How much has Biden-caused heightened risk and uncertainty frozen entrepreneurs, investors and corporations from pursuing the most economically and strategically sensible paths forward that would have yielded the greatest benefit?


The Biden legacy is one of leaving the nation less well off, less prosperous, less free, less thriving, less united. America is left with less secure property rights, less economic freedom, and less security — a sorry place to be just one year before the United States’ 250th anniversary of declaring our independence from a tyrant. In a sense, we may be repeating that exercise at this very time.

Oh, no! Only a few shopping days remain before Christmas.


It’s vital that the United States outcompete China (and other adversaries and competitors) and reclaim the lead in global technological innovation. Our economic and national security rely on that outcome.


To achieve this, we must reverse the slide of weakening property rights in inventions. We need sound patent policies that restore quiet title to patents, retain the patent system’s democratized and merit-based nature, and ensure that U.S. patent rights are robust, reliable and enforceable.


Moreover, we also need smart trade, tax and antitrust policies that benefit America’s competitiveness. To ensure U.S. success in its mission to promote and protect American innovation, the private sector must be empowered to outrun Chinese, European and other competitors (and trade partners).


American businesses, not government, are the true champions of inventing and spreading American scientific and technological breakthroughs, and their global adoption.


So, here’s my Christmas list for Santa Claus:


  • Codify the 2019 Joint Policy Statement on Remedies for Standards-Essential Patents. The Justice Department, PTO and NIST affirmed access to injunctions and all available remedies for SEPs. Leadership in standards development and SEP licensing is a competitive advantage that America must own.


  • Protect the U.S. International Trade Commission from being defanged, as Big Tech and predatory infringers seek.


  • Design carefully tailored export controls over U.S. innovative technologies that maximize American innovators’ ability to license IP to and collect revenue from foreign firms. We must avoid the extremes of decoupling from China and exporting highly security-sensitive technology. Getting it wrong may spark Chinese retaliation, as it did this year against the American memory chipmaker Micron.


  • Restore the Hatch-Waxman and the Biologics Price Competition and Innovation Acts’ balance between innovation and return on investment on one hand and timely generic drug and biologics market entry on the other. That is, innovation and access.


  • Return sensible merger and acquisition rules that incentivize startup activity, allow exit strategies for startups while derisking R&D for large acquirers that have the wherewithal to scale a startup’s innovations. Timely M&A is a critical element of commercializing innovations and sparking dynamic competition.


  • Build upon the Trump tax cuts with investment tax incentives, such as R&D credits. Tax incentives that fuel investing in R&D will help recalibrate our policies to empower American businesses as key allies in achieving our economic and national security goals.


  • Codify former PTO Director Andrei Iancu’s administrative reforms to PTAB proceedings and denials, and his 2019 Revised Patent Subject Matter Eligibility Guidance.


  • Enact into law then-Assistant Attorney General Makan Delrahim’s New Madison Approach as doctrine for navigating the nexus of patent rights and exclusivity with antitrust.


Additional pro-patent, pro-innovation legislation to put into law:


  • The RESTORE Patent Rights Act, which overrules the 2006 eBay v. MercExchange jurisprudence. eBay has fostered predatory patent infringement. The RESTORE Act would restore access to the customary equitable remedy of injunctive relief for proven infringed patents.


  • The PREVAIL Act, which would codify beneficial PTAB administrative reforms that add greater fairness and due process for those whose patents are hauled before that body. These include standing, the same burden of proof courts and the ITC apply, and other standards and procedures federal courts and the ITC observe.


  • The Patent Eligibility Restoration Act, which abrogates judicially created exceptions to patent eligibility. PERA restores patent eligibility for computer-enabled inventions and life sciences patents at the heart of medical diagnostics and gene therapy. Certain exclusions would clarify that naturally occurring matter and laws of nature aren’t patent-eligible.


  • The Restoring America’s Leadership in Innovation Act, which is the most comprehensive bill, would reset the above three and more aspects of our patent system that have weakened U.S. patents, patent rights and our patent system itself—to America’s competitive and economic detriment.


Please, Santa, help the American innovators on your “nice” list.

Just before Congress recessed for Thanksgiving, the U.S. Senate Judiciary Committee moved the most proproperty-rights legislation in years.


The committee reported out, on a bipartisan 11-10 vote, the Promoting and Respecting Economically Vital American Innovation Leadership Act, or PREVAIL Act (S. 2220, H.R. 4370). Sens. Chris Coons and Thom Tillis, with cosponsors Dick Durbin and Mazie Hirono, lead this propatent rights bill.


PREVAIL codifies Trump-era Patent and Trademark Office administrative reforms. It makes other rule-of-law changes to a biased tribunal of the Administrative State whose job is to deprive inventors of private property rights that patents supposedly secure.


Gene Quinn, founder and chief editor and commentator on IPWatchdog.com, calls PREVAIL’s Senate committee passage “a long-awaited victory” for its lead sponsor.


The Patent Trial and Appeal Board has become a tool for predatory patent infringement. Rather than streamlining patent validity reviews, PTAB has been weaponized.


"Every day PTAB remains tilted against patents, PTAB kills not only patents, but associated startups and the jobs, wealth, consumer benefits, new knowledge, new products and technologies they would have created"

Mr. Quinn notes “a growing understand[ing] in the U.S. Senate that the PTAB is being abused by big-tech giants using various tactics.” An infographic compiled by the Innovation Alliance shows that more than half of the top 20 most frequent filers at PTAB are Big Tech behemoths that routinely practice predatory patent infringement. Other regular PTAB users include Chinese national champion firms.


The Alliance of U.S. Startups and Inventors for Jobs (USIJ), a strong supporter of the PREVAIL Act, says, “Rather than curbing unnecessary litigation, the PTAB has multiplied proceedings and costs for all involved.”


PTAB from its beginnings in the early 2010s has operated by rules and procedures that vary dramatically from those governing patent validity analysis in federal court and the U.S. International Trade Commission. PTAB invalidates contested patent claims three-quarters of the time. About seven of every 10 patents brought before PTAB are fully invalidated. And PTAB cancels at least one patent claim in 85 percent of the patents it reviews.


“The PTAB is harming innovation in America because it is making it untenable for individuals and small entities to even get started,” Mr. Quinn observes. Another way to put it is that every day PTAB remains tilted against patents, PTAB kills not only patents, but associated startups and the jobs, wealth, consumer benefits, new knowledge, new products and technologies they would have created.


This evidence is overwhelming. Anyone of open mind can’t fail to understand the urgency of reforming PTAB in the manner PREVAIL would do.


Which brings us to the committee vote. Most Democrats voted for PREVAIL, several of them expressing their remaining concerns. Almost half of Republicans voted for PREVAIL. Unrelated issues factored into several GOP votes against, while some voiced substantive concerns.


The most frequent concerns heard from senators on both sides of the aisle at the Judiciary Committee related to pharmaceutical patents, drug prices and PTAB. These concerns are unfounded. The special interests trafficking in such nonsense seek to mislead, confuse, spread false narratives and unjustifiably tie PTAB reform to the hyper issue of drug costs.


First, a USIJ white paper rebuts the false claim that PTAB denials of certain requested patent challenges often involve pharma patents. In fact, USIJ finds that PTAB declined to institute proceedings on four patents—less than half a percent of the 604 denials—on pharmaceuticals. Moreover, only 6 percent, or 73 petitions of the 1,288 fiscal year 2024 petitions for PTAB institution, pertained to pharmaceutical or biotech patents. Most filings challenged patents in other technological areas.


Second, research from George Mason University’s Center for Intellectual Property x Innovation Policy disproves the assertion that pharma patents delay generic competition’s entry into the marketplace. C-IP2’s analysis finds that a drug’s effective patent life averages 13.35 years. And regardless of any patents and exclusivities placed on the FDA’s Orange Book after a drug’s market entry, those additions don’t extend its effective patent life, C-IP2 reports. Thus, patents don’t cause drug prices to rise.


In other words, concerns over alleged abuse of the patent system through “evergreening” or “patent thickets” lack a factual basis. False claims and unwarranted worries should be dismissed, particularly in relation to the urgently needed PREVAIL Act.


Rather, lawmakers should remember that our Constitution dictates that patents secure private property rights in one’s inventions. The right to exclude others from using, making or selling one’s invention is balanced by publication of the patent so that other innovators may learn the teachings of the new invention. Those inventors may learn and invent around the state-of-the-art invention.


The PREVAIL Act will begin to restore weakened U.S. patent rights while fostering dynamic competition, technological progress and the incentive to take economic and entrepreneurial risks. Congress should make this legislation a top priority in the new year.

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