- - Wednesday, December 21, 2022

America’s innovation infrastructure depends on the protection of intellectual property — the patents, trademarks, copyrights and other mechanisms that secure for inventors and creators the fruit of their hard work.

The IP system is a bit like the plumbing: It’s critical, but when it’s working routinely, you have little reason to think about it. When things go wrong, however, you really have to pay attention.

Right now, something is starting to go very, very wrong. The Biden administration needs to fix the IP plumbing before the economic damage becomes irreversible.

Patented innovations and copyrighted works such as songs and movies require hard work. Some inventions and novels are decades in the making. Sometimes they are mostly a matter of sweat equity, with many failures along the way. Sometimes they are a product of massive investment from venture capitalists. All these new creations would be rendered instantly worthless if cherry-picking imitators could help themselves and sell the result with impunity.

Patents have played a key role in bringing forth discoveries from the incandescent light bulb to air conditioning, solar panels, and 3D printers. Recent patents and those still in the works hint at new solutions to climate change, including via alternative energy sources.

But there’s a problem emerging. Within Congress, activist groups, tech platforms — even the Biden administration itself — various nodes have emerged in which special pleading for exceptions could undermine IP protection as a whole. The administration needs to follow in the bipartisan tradition of its predecessors over decades and focus on the big picture to prevent the ruin of the innovation pipeline via a thousand small leaks. 

For example, the World Trade Organization is considering a proposal to extend a waiver of IP protections for COVID-19 vaccines to include diagnostics and therapeutics. The Biden administration recently announced it would delay rendering a decision on the proposal — which would require American approval to move forward — until the administration finishes studying the implications.

This investigation will throw a slew of patents into a state of uncertainty, all so the Biden administration can conclude what we already know: Waiving IP protections for COVID-19 diagnostics and therapeutics won’t increase access to these products.

If the Biden administration cared about fostering the creation of new technologies, they would outrightly oppose the proposed waiver expansion.

Meanwhile, in a misguided attempt to lower drug prices at home, activists and some members of Congress are encouraging Biden administration officials to nullify patents held by nonprofit research institutions and universities if those patents underpin brand-name drugs. They say an obscure provision of the Bayh-Dole Act — the 1980 law that enabled universities to patent and license their inventions — gives the government such authority.

Hogwash. The Bayh-Dole Act of 1980 does no such thing. What the act did do, though, was turn America’s universities into incredible technology generators. Misusing the law would terrify those investors who endeavor to commercialize the groundbreaking research that takes place in our university labs.

On yet another IP front, a bill under consideration in Congress would give the Patent Trial and Appeal Board, an administrative panel within the U.S. Patent and Trademark Office, expansive powers to invalidate patents. The result would be a regulatory process that would make mom-and-pop inventors vulnerable to the legal gamesmanship of tech giants.

Or recall the scandals involving Napster, the music file-sharing platform, and Google Books, which aimed to digitize all books ever written. Napster was found liable for massive copyright infringement. The Google Books project downsized its ambitions in response to numerous infringement accusations.

Yet the impulse to chip away at protections for creators continues. Activists are pressing for a broadened definition of “fair use” of copyrighted material to accommodate the interests of giant digital media platforms. The losers here would be the creators of images and music that content producers want to include for free to enhance the appeal and value of their offerings.

Strong IP protection is what keeps the American pipeline of creativity and invention flowing. Compromising that system might yield short-term political gains for special pleaders — but only at the cost of tomorrow’s innovation.

• Frank Cullen is executive director of the Council for Innovation Promotion.

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