Counterproductive patent policies threaten US tech leadership

While Congress moves ahead with major legislative packages focused on investments in research and development (R&D) and strengthening the United States for competition with China, it is important that we also approach ongoing policymaking with the same strategic approach. When it comes to our intellectual property, actions by the Department of Justice threaten to weaken our hand in this geopolitical and technological — or geotech — competition.  

Good geotech policies are crafted in ways that reflect what is at stake when we talk about leadership in strategically critical technologies — our national security and economic prosperity. Given the magnitude and importance of this competition, a coordinated policymaking approach includes the evaluation of economic, technological, diplomatic and national security interests. Such a competitive and coordinated mindset should apply not only to crafting new legislation and policies but also to how we approach and if need be, reform existing legislation policies.   

Such a disconnect was just seen with poor coordination regarding 5G networks and aviation equipment. The result was embarrassing for perceptions of U.S. technology leadership, as well as the functioning of our government. Yet, despite the disruption, it was ultimately a matter to be solved by testing and engineering. It was a short-term challenge, albeit self-inflicted, that could be overcome. Failed policymaking on something as foundational and important as intellectual property could undercut our technology leadership in the long run.  

Such a failure is happening right now, as the Department of Justice (DOJ) has announced its intention to revisit a 2019 joint policy statement with U.S. Patent & Trademark Office (USPTO), and National Institute for Standards & Technology (NIST) on essential patents. By revisiting this statement, and weakening essential patent holders’ ability to protect their IP, this DOJ is not only making an end-run around coordinated policymaking — coming at a time when USPTO and NIST leadership is not yet confirmed — but also carrying out the kind of counterproductive policymaking that harms our technology leadership.  

Instead of strengthening intellectual property policies in a way that reflects the reality of the current geotech competition, this approach to IP policy suffers from what David Kappos, the former director of the U.S. Patent and Trademark Office in the Obama administration, describes as “cognitive dissonance.” This policy change would discourage U.S. leadership in international technology standards, devalue U.S. intellectual property and set a poor example for partners and competitors on the global stage. Andrei Iancu — the incumbent USPTO director who shepherded the 2019 guidance — jointly voiced concern with Kappos about the drastic change to existing policy. This is not a partisan issue.  

This is counterintuitive at a time when we want our leading companies to set the standards for future technologies and ensure that the cutting-edge is defined in the United States, not China. This approach to vital IP gives an opening for Beijing and its state-affiliated “national champions” to set global technology standards — our companies, be they major players or startups, lose the value of their innovation and their voice on the international stage.  

What underpins the American innovation ecosystem are strong protections for intellectual property that, in turn, serve as the foundation of the innovation ecosystem. Revenue from patent licensing, like essential patents, funds the long-term pipelines for R&D, allowing for not only the research in next-generation technologies but also the jobs and livelihoods of the engineers, researchers and others who make up an irreplaceable innovation workforce. At a time when we are moving more taxpayer and investor dollars to encourage R&D and innovation leadership, why pursue a policy that devalues IP and chokes the resources available for future breakthroughs and job growth?  

Leadership in these technologies can easily be dismissed as hype about faster downloads or connected gizmos, but this technology will be the foundation of our future connected, digital economy. It will make possible revolutionary changes in fields like agriculture and manufacturing, provide the backbone for the data used by artificial intelligence and machine learning, and underpin cutting-edge tools needed by our intelligence community and our men and women in uniform. 

Chinese leadership in advanced technologies ranging from 5G networks to artificial intelligence, quantum computing to biotech, erodes our competitive edge and we are less secure. My organization’s own research as well as the 2020 report of the Senate Foreign Relations Committee have highlighted the risk posed by Chinese leadership in strategically critical technology fields. An approach to essential patent policy that fails to consider what’s at stake in terms of national security and global competitiveness — as the current proposal seems to be — is misguided.  

This relationship between intellectual property, our security and our prosperity was recognized in the earliest days of our republic. The Founders specifically enumerated IP protections in the Constitution, “to promote the progress of science and useful arts…” They listed this alongside our national government’s powers of commerce and war knowing innovations were the sinews of national strength. 

If the priority is U.S. technology leadership and national security, our policymakers should steer away from these counterproductive, poorly made policies and focus on strengthening and valuing American intellectual property. 

Dan Mahaffee is the senior vice president & director of Policy at the Center for the Study of the Presidency & Congress, where he leads its Geotech Program.