World IP Day Points to IP’s Role in Competitiveness
World Intellectual Property Day for 2023 is April 26. The forms of private property rights most closely connected with innovation deserve honor throughout the year, especially on this occasion.
The U.S. Chamber of Commerce’s Global Innovation Policy Center annual rankings illustrate IP’s importance and the degree to which various nations secure IP property rights. These rankings show how each country compares with others in terms of their respective IP protections.
Overall, GIPC’s 2023 rankings have the United States in 1st place. China ranks 24th.
The United States leads all nations for strength on copyrights. For trademark, the United States and the United Kingdom tie for 1st place. America ranks 1st on IP enforcement, ties six other nations for 2nd place in IP systemic efficiency, places 3rd on IP commercialization and lands in a 10-way 1st place tie for international treaties that protect IP.
On patents, our country trails Singapore in strength of patent system in a 4-way tie for 2nd with Japan, South Korea and Switzerland. On trade secret protection, the United States is tied for 7th place with Italy. We’re 16th for design protection.
The rest of the box score for China: It ranks 15th in IP system efficiency, 17th on patent system strength, is tied 4 ways for 13th place on trademark, holds 24th place in trade secret protection, ties Kenya for 26th place on copyright, ties with Mexico for 30th in international IP treaty ratification, is 36th in IP enforcement, 40th in IP commercialization, and in a 6-way tie for 45th place for design rights protection.
Americans should keep in mind that while the U.S. IP system stacks up well versus most other countries on copyright, trademark and IP enforcement, on patents, the U.S. system remains respectable, relatively speaking. However, compared with the private property rights basis of U.S. patents that extended through the 19th century and through the 1980s, our robust patent regime that produced the iconic American inventor has lost ground.
Congress, courts and administrative bodies have steadily weakened U.S. patents and destroyed patent rights over the past 30-plus years. The ironically named America Invents Act. The Supreme Court in, inter alia, Oil States, eBay, Alice and Mayo. The patent death panel known as PTAB.
To be sure, U.S. competitiveness with China involves more than just IP strength. Still, patents and IP are a key part of the equation. The fact is, China is steadily improving its IP system. Its patent system has steadily risen while the U.S. patent system is weaker than it was 20 or 30 years ago. For instance, China has mimicked our Bayh-Dole Act for IP-based technology transfer for commercialization, and China provides infringed patent owners injunctive relief. (Following the eBay ruling, injunctive relief is readily available for copyrights and trademarks, but typically denied to patent owners.)
Competitor nations weaponize their laws and agencies. China, South Korea and other nations favor domestic companies and disadvantage U.S. companies. They deny nondomestic parties access to evidence, give short notice of adjudicatory and regulatory proceedings, and preclude crossexamination of witnesses. Their courts issue extraterritorial antisuit injunctions. They hammer Western companies by abuse and unequal application of things like “competition” laws.
Meanwhile, much U.S. action—supporting the TRIPS waiver, an executive order with 70-plus aggressive antitrust directives of which several tilt against patent rights, imposing government price controls on pharmaceutical innovations, undermining standard-essential patent licensing, threatening the U.S. International Trade Commission’s exclusion of IP-infringing imports, initiating abuse of Bayh-Dole’s march-in provisions as product price controls, doing Big Tech and foreign infringers’ bidding to make U.S. patent rights weaker and less secure—only makes matters worse for U.S. companies doing business abroad and harms American competitiveness.
This World IP Day should bolster America’s resolve to restore critical, lost elements of our once-dominant patent system. IP can and should be our “secret sauce” for maintaining and widening the delta of a competitive advantage as global innovation leader. It remains so in some respects: The United States enjoys a trade surplus in IP licensing revenue. That’s a start. Now we can do more.