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Over the past two decades, IP rights have generally been diminished, but there is hope for improvement. On the current episode of Understanding IP Matters (UIPM), Andrei Iancu, who served as Undersecretary of Commerce for Intellectual Property and Director of the U. S. Patent and Trademark Office (USPTO), 2018-2021, discusses how the government should regulate AI, how President Trump may think about IP rights in his second term, and how the current congressional bills could impact the patent landscape.
The only way to achieve significant investment at scale in risky technologies of the future, like AI, is with a robust system of laws. However, the industry cannot be hampered by overregulation. Iancu discusses how it is especially troubling when the government tries to regulate without first understanding what exactly they’re regulating.
Iancu is co-head of Sullivan & Cromwell’s Intellectual Property and Technology Litigation Group and Chairman of the Board of the Council for Innovation Promotion (C4IP). ?During his decades of experience in private practice, Iancu has represented plaintiffs and defendants in IP matters across the technical and scientific spectra.
In this episode of UIPM, Iancu and host Bruce Berman discuss:
– President Trump has a good knowledge of patents as assets, and inherently believes in property rights
– Support for the Patent Eligibility Restoration Act (PERA), which tries to address Section 101 of the Patent Code, to “?overcome, frankly, the mess that’s been made as a result of the Supreme Court cases.”
– Why the Promoting and Respecting Economically Vital American Innovation Leadership Act (PREVAIL) would go a long way to fixing the loopholes in post grant proceedings and make the whole enforcement process much more efficient.
– The value of the Realizing Engineering, Science, and Technology Opportunities by Restoring Exclusive (RESTORE) Act, because patents are ultimately exclusionary rights and injunctions should be available where there is patent infringement
Even with the general weakening of patent rights over the last 20 years, Iancu believes these rights in a free-market economy are “absolutely critical” to ensuring that we have a robust innovation system. Iancu thinks that the path we have been on, of lessening patent rights, “puts us at a tremendous disadvantage” as compared to countries that have been on the path of strengthening rights, like China.
Key Responses
You served under President Trump during his first term; do you have any predictions about how IP rights will be affected this term?
Andrei Iancu: “He does understand intellectual property rights better than most of our former presidents. He inherently understands the importance of intellectual property rights to the economy. I’m biased, of course, but I think we had good intellectual property rights policies in the first Trump administration. I don’t think it’s a coincidence that happened.”.
Would the Patent Eligibility Restoration Act (PERA) be helpful in addressing 101 confusion?
Andrei Iancu: “Section 101, as it exists now, was written word for word for the patent act of 1793, it was written by Jefferson and Madison. The main section, section 101, the first substantive section of the patent code that defines our 21st century patent system in the United States, was written in the 18th century by our founders. It’s unbelievable Congress has not legislated in that area since 1793. The problem is that courts are struggling to fit 21st century technology into an 18th century statute.”
Does the U.S. need a stronger enforcement system for patents to ensure continued innovation?
Andrei Iancu: “You’re not going to innovate anymore, or at least…on the margins, there’s going to be less investment in these risky new technologies. Innovation is risky by definition. By definition, it’s new, as it should be. And you don’t know if it’s going to work. And the reality is, nine out of ten times, the new stuff doesn’t work, but when it works that 10th time, you have to be able to control it and make sufficient profit to cover the rest of those failures as well as the current one.”
More Highlights
Iancu says that the enforcement system in the United States has become “so cumbersome that we are certainly not maximizing the innovation potential of the United States, and in fact, we are depressing it.”
Listen to the entire episode to learn:
- That the patent troll narrative endures because “?it’s being pushed very heavily by certain industries with the intended purpose of limiting the strength of American patents.”
- Why Iancu dislikes the term “efficient infringement,” because it suggests there is some good to it. “No one would use the term “efficient theft.”
- That in the patent area, especially for section 101, “Congress needs to step up and do its job and legislate”.