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A Senate Shotgun Blast at American Innovation

Updated: Aug 28, 2019

The Senate Judiciary Committee is poised to fall down a slippery slope: the willingness to take someone else’s private property when those property rights get in the way of politics.

The committee hearing, titled “Intellectual Property and the Price of Prescription Drugs: Balancing Innovation and Competition,” should be informative. But given how Congress has treated this topic, the prospects for shedding light instead of political hot air seem pretty slim. Don’t hold your breath for balance or enlightenment.

What the committee is almost guaranteed to lose sight of is that there would be no prescription medicines — or medical devices or smartphones or automobiles or household labor-saving devices or 5G (or wireless connectivity, for that matter) or pretty much anything of high value and technological sophistication — without strong property rights secured by patents and other intellectual property.

Put another way, strong patent protection enables innovation. Weak IP rights dampen innovation.

Sen. John Cornyn, who’s preparing a punitive bill to subject pharma innovators to Federal Trade Commission harassment if they’re what politicians regard as overly inventive, griped about this to the director of the U.S. Patent & Trademark Office, Andrei Iancu, at an IP Subcommittee hearing. Mr. Iancu replied that PTO only issues patents to inventions that meet the legal criteria, without regard to how that invention might relate to some existing invention. Each invention associated with a pharmaceutical has proven patentable, new, useful and not obvious to a fellow expert in the field.

“There is a general principle that drugs, like many products in today’s world, are complex systems and there will be patents on the molecule itself, there will be patents on the method of manufacturing, for example,” Mr. Iancu explained. “There will be patents on the coding and delivery mechanisms and things like that, each one of which can form innovative concepts, and we want to incentivize and protect.” Notably, each element withstood demanding examination and met the statutory standards on the merits.

The gravest danger from this political piling on against what politicians and activists consider too high drug prices may not be scaring off investment and setting back biomedical innovation — though it will do that at the very moment we’re on the cusp of remarkable societal benefits from genetic, customized therapies and cures for cruel diseases. The gravest threat could be the further debilitating of our patent system and destroying private property rights in inventions.

Doing that to biopharmaceutical innovators isn’t the rifle-shot politicians think it would be. Rather, their shotgun blast would cause inventors, investors and other players across the innovation ecosystem to back off — especially those in technologies characterized by great uncertainty and huge sunk costs on the front end, much trial and error before finding the few inventions that pan out, and needing to recoup upfront investments and fund R&D from returns earned throughout the lives of the patents of a product’s several patents.

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