By Andrei Iancu
According to a recent State Department-funded study, China leads the globe in 37 out of 44 critical and emerging technologies, including many in defense, robotics, energy, artificial intelligence, and quantum tools. The United States ranks first in just seven, and comes second in most of the rest.
To maintain national security, the United States needs to strengthen its technological capabilities — and to do that, we need to incentivize innovation, fast.
Technological progress requires not just smart people, but a framework of laws that protect intellectual property. Strong IP rights encourage investment in new and risky technologies and incentivize inventors to bring their discoveries to market. But new laws and Supreme Court decisions have undermined them in recent years.
In 2011, Congress created the Patent Trial and Appeal Board (PTAB) to provide a streamlined and cost-effective alternative to challenge patents so as to help settle patent disputes. It was meant as a substitute for courts, where disputes can be costly and take a long time. This was a legitimate goal, but soon after enactment, a few very large, established companies started abusing the PTAB, using it in addition to the courts instead of as an alternative.
As originally conceived, the PTAB can be effective. It can be quick, less expensive, and the judges are often experts in the relevant technology. The problem is that there are currently few limitations on filing duplicative petitions at the PTAB. In other words, a challenger can make the same arguments in both court and the PTAB, forcing the patent owner to defend her property multiple times and risking confusion and inconsistent results.
A second key problem involves Supreme Court jurisprudence on new technologies. In several cases starting more than a decade ago, the court ruled that “abstract ideas” were not patent-eligible, which created confusion as to the patentability of crucial software-based developments in fields such as machine learning and artificial intelligence (AI).
The impact has been enormous. Former Patent and Trademark Office Director David Kappos and scholar Robert Sachs studied patent applications filed between 2014 and 2019 and found that significant numbers of patents related to AI, quantum computing, and 5G cellular networks were rejected on this basis — including a majority of AI-related applications, and all of those pertaining to advanced programming in quantum computing.
As the United States has hamstrung itself with anti-IP policies, China has strengthened IP protections, resulting in a more than 50-fold increase in annual patent applications filed since 2000. In addition, Beijing has developed a robust intellectual property administration stocked with patent experts.
Fortunately, there are legislative solutions in the works. The bipartisan Patent Eligibility Restoration Act (PERA), reintroduced in June by Sens. Thom Tillis and Chris Coons, establishes patentability in numerous fields vital to national security, including AI, quantum computing, and telecommunications. The PREVAIL Act — also authored by Sens. Coons and Tillis and co-sponsored by Sens. Dick Durbin and Mazie Hirono — reforms PTAB rules and gives it more authority to reject excessive and abusive petitions.
Throughout U.S. history, our strength has come from enabling the ingenuity of our people. That brilliance is still here — Congress just needs to let it shine. Passing these two bills would reinvigorate American innovation and shore up national security before it’s too late.
Andrei Iancu served as the undersecretary of Commerce for intellectual property and director of the U.S. Patent and Trademark Office from 2018 to 2021. He is co-founder and co-chairman of the Council for Innovation Promotion.