Uncertain Patent Rights and a Weakening U.S. Innovation Economy: A Mixed Legacy on IP Policy

• Author: Adam Mossoff
• Position: Adam Mossoff is professor of law at Antonin Scalia Law School, George Mason University. He has testified several times before the Senate and the House on proposed patent legislation. His research has been relied on or cited in government reports and in judicial opinions, including most recently in the Supreme Court's decision in Oil States v. ...
• Pages: 42-45

Published in Landslide® magazine, Volume 11, Number 1 , a publication of the ABA Section of Intellectual Property Law (ABA-IPL), ©2018 by the American Bar Association. Reproduced with permission. All rights reserved.

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Over the past decade, the U.S. patent sys-

tem has been under an extensive amount of

stress from all branches of the federal gov-

ernment. The Supreme Court has injected

a tremendous amount of uncertainty into

the patent system with four decisions

that severely restricted the patent eligibility of high-tech and

biopharmaceutical innovation. Through policy advocacy,

investigations, and enforcement actions, the Federal Trade

Commission and the Department of Justice’s Antitrust Division

destabilized patent licensing generally, and specically under-

mined the incentives to create and commercialize patented

innovation that is incorporated into technological standards.

Congress contributed to this unfortunate state of affairs in pat-

ent policy. Following its enactment of the America Invents Act of

2011 (AIA), widely recognized as the most substantial revision

of the patent system in over 150 years, Congress immediately

picked up the mantle of patent legislation again. These ongoing

policy debates exacerbated the restrictions and limits on patent

owners created in the AIA and continued to sow extensive uncer-

tainty for inventors, venture capitalists, and the rms who invest

billions in research and development (R&D) to create the new

patented innovations that drive the U.S. innovation economy.

In Congress, two members of the House Judiciary Com-

mittee served key policy roles in sponsoring intellectual

property legislation during this time: longtime Chairman Bob

Uncertain Patent Rights

and a Weakening U.S.

Innovation Economy

A Mixed Legacy on IP Policy

By Adam Mossoff

Adam Mossoff is professor of law at Antonin Scalia Law School, George Mason University. He has testied several times before the Senate and

the House on proposed patent legislation. His research has been relied on or cited in government reports and in judicial opinions, including most

recently in the Supreme Court’s decision in Oil States v. Greene’s Energy. He can be reached at amossoff@gmu.edu.

Goodlatte and Representative Darrell Issa, the current Chair-

man of the Subcommittee on Courts, Intellectual Property,

and the Internet. Both Chairman Goodlatte and Representa-

tive Issa are retiring this year. There is no doubt they each

believe in promoting and securing creativity and innovation

as a key to a ourishing innovation economy. This is perhaps

best evidenced by their strong commitment to legislative

reforms of the copyright system, proposing bills that have

secured to artists the fruits of their productive labors, as well

as secured the commercial rights of companies in the creative

industries that have brought these works to the marketplace.1

Unfortunately, Chairman Goodlatte and Representative Issa

have a mixed legacy when it comes to securing patents to inven-

tors and to companies in the innovation industries that bring

these inventions to the marketplace. The legislation and policies

they have supported over the past decade ultimately have desta-

bilized the reliable and effective patent rights that have served

as the key platforms for inventors to create, venture capitalists to

invest in, and commercial rms to develop the new innovations

that have made modern life a veritable miracle by even mid-

twentieth-century standards. The patent system has brought us

smartphones, treatments for cancer, and antiviral medicines that

address a scourge of humanity for thousands of years, among

many others. Whether this essential platform for innovation con-

tinues to promote the next generation of high-tech inventions

and biopharmaceutical discoveries is currently in doubt.