New Intellectual Property Rights Principles

So when the Global Innovation Policy Center (GIPC) issued its statement of intellectual property principles this past September, I signed on without reservation. As the leader of an organization committed to the unalienable right to private property in all its forms–physical, personal, and intellectual–it was a natural fit.

GIPC, part of the U.S. Chamber of Commerce, undertook drafting high-level, broad principles espousing the vital importance of IP for America’s innovation, security, and prosperity. This resulted in Our Beliefs about Intellectual Property.

Such a unifying effort was badly needed. As a practical matter, we who understand IP’s central role in U.S. national interests and Americans’ flourishing can tend to work in our respective corners of IP:  patents, copyrights, trademarks, or trade secrets.

Most Americans have only a vague appreciation for property rights associated with one’s creations. They may hear inquiries on “Shark Tank” about whether inventors have patents and they may be enthralled with the latest and greatest new technologies. But they tune out when protecting rights comes up regarding property that didn’t exist before an inventor, filmmaker, writer, musician, photographer, or commercial entity created it.

Unfortunately, U.S. IP and our innovation ecosystem are under assault on many fronts. The Commission on the Theft of American Intellectual Property estimates that the United States suffers up to $600 billion a year in economic loss and $1.2 trillion in damage to its economy.  Digital commercial piracy involving illicit streaming costs our economy about $30 billion annually.

Bootlegged movies, music recordings, software, and knockoffs of brand products from fake Rolex watches to fake prescription medicines are rampant. Chinese agents researching at U.S. institutions steal sensitive IP and proprietary secrets for China’s benefit.

Additionally, U.S. courts, federal agencies and Congress have weakened our IP system.  For instance, federal courts have ruled inventions formerly eligible for patenting in America now out of bounds.

Courts now routinely deny injunctive relief to patent owners who’ve proven their patents are valid and that they’re being infringed upon; that is, that their intellectual property is being stolen. An injunction would stop ongoing patent infringement, leveling the table for licensing negotiations while ending collection of ill-gotten gains.

Executive branch agencies have also joined the fray, injecting themselves into the Bayh-Dole Act to expropriate IP in hopes of lowering an emerging product’s price.  Bayh-Dole rightly democratizes ownership of inventions arising from federal research grants to promote bringing new products to market; it doesn’t allow official theft through government price-setting.

Congress, for its part, threw patent reliability and enforceability into turmoil with its creation of the Patent Trial and Appeal Board (PTAB).  The PTAB invalidates more than 80 percent of the patent claims it hears and operates on unbelievably one-sided, loosey-goosey rules.

Congress has also been derelict in its duty by providing for injunctions against IP thieves where trademark and copyright are concerned, while leaving a judicially created denial of patent injunctions unchanged since 2006.

And vested interests, criminal enterprises and malevolent foreign adversaries pour vast resources into undermining intellectual property. These range from propaganda campaigns about “patent trolls” to industrial-scale knockoff operations to exploiting the antiquated Digital Millennium Copyright Act “notice and takedown” process so infringing content reappears online.

Given the state of U.S. IP and the stakes for America’s future, the GIPC’s IP principles are timely. They’re also timeless, and their alignment with principles articulated by Conservatives for Property Rights in 2017 speaks to their enduring wisdom.

The GIPC speaks to the need to “hold bad actors accountable for IP crime” as a key component of ensuring the sanctity of property rights. Six years before, CPR stated that “[c]opyright must be meaningfully enforceable in order to exercise the defense of property rights in creative works. Those who steal, or otherwise defraud or shortcircuit due remuneration from one’s copyright-protected works must be held accountable for their actions.”

Our work on those principles in 2017 also included the statement that “[p]atents, which secure the exclusive property rights of inventors, promote economic growth and job creation.”  It’s refreshing then, even as IP rights trend in a disturbing direction, that the GIPC reaffirms that patents “foster America’s creativity and provide global inspiration” and that they “unleash the full potential of American entrepreneurial ingenuity.”

As the GIPC points out, this is about more than individual achievement and compensation. The intellectual property rights established in the Constitution “protect America’s global innovation leadership” and have made it possible for us to “lead the world in critical and emerging technologies.”  We’ll continue to do so, as long as we fight for the principles articulated so well by the Global Innovation Policy Center.