Brian Pomper, former Chief International Trade Counsel and now a partner at Akin Gump, dives into the complexities of global patent policy. He discusses how the U.S. historically maintained innovation dominance and explores the aggressive tactics of big tech against the patent system. The fierce patent battles, like Apple vs. Samsung, showcase a tech competition landscape. China’s controversial patent litigation raises eyebrows in Europe, while patent policy significantly impacts international trade agreements.
The U.S. patent system was designed to democratize innovation, empowering diverse inventors and contrasting with England's elitist model.
Recent changes to the patent system, influenced by big tech lobbying, threaten smaller innovators' access and the system's overall efficacy.
Deep dives
Historical Foundations of Patent Policy
The U.S. patent system is rooted in the Constitution, specifically Article I, Section 8, which underscores the importance of securing exclusive rights for authors and inventors to promote innovation. This foundational element was intentionally designed to democratize access to patent rights, moving away from the English system that favored well-connected individuals. The early patent acts set the stage for an innovative culture in America, driving economic growth and technological advancement, which persists today. By ensuring that all inventors could obtain patents, the Constitution aimed to encourage wide-ranging creativity among the populace.
Changing Views on Patent Rights
Throughout the 19th century, notable inventors like Alexander Graham Bell and Thomas Edison engaged in litigation to defend their patent rights, an activity commonly mischaracterized today as patent trolling. This historical context contrasts sharply with contemporary narratives that paint patent holders as hindrances to innovation. The establishment of the Federal Circuit in 1982 marked a shift towards a more consistent patent law application, highlighting the recognition of patents as vital for maintaining American competitiveness. In recent decades, however, there has been a concerted effort to undermine patent protections, particularly from high-tech and pharmaceutical sectors.
Impact of Global Agreements on Patent Systems
The establishment of the World Trade Organization (WTO) and the TRIPS Agreement in 1995 represented a pivotal moment in global intellectual property policy, setting standards for member countries to adhere to. This agreement aimed to facilitate international trade while enhancing the protection of patents, benefiting inventive economies like the U.S. Despite its initial success, backlash emerged from developing nations, which perceived the system as biased towards established economies, leading to criticisms of rising drug costs tied to patent protections. The subsequent emergence of companies with limited tangible assets that relied on aggressive patent litigation further complicated the public perception of the patent system.
The Role of Large Tech Companies in Shaping Patent Policy
In the 2000s, major technology firms began lobbying for substantial changes to the patent system, driven by their distinct business models that often do not rely on patents as core assets. The passage of the America Invents Act in 2011 established administrative challenges to patents, providing well-resourced companies with tools to contest patents held by smaller firms, fundamentally altering the landscape. This shift has raised concerns about equitable access for smaller innovators who lack the resources to defend against numerous challenges at the patent office. Consequently, the long-term viability of the patent system as a driver of American innovation is at risk, particularly in the face of growing international competition.
Thanks to The Innovation Alliance for sponsoring this episode. The Innovation Alliance is a coalition of research and development-based technology companies representing innovators, patent owners, and stakeholders who believe in the critical importance of maintaining a strong patent system that supports innovative enterprises of all sizes.
To discuss the domestic and international implications of patent policy, ChinaTalk interviewed Brian Pomper. Brian was the Chief International Trade Counsel to Senate Finance Committee Chairman Max Baucus, and he is now a partner at Akin Gump.
We discuss:
The history of America’s innovation hegemony, from the signing of the Constitution to patent trolls and Elon Musk
Why big tech companies spent decades systematically attacking the foundations of the US patent system
The thermonuclear patent war of Apple vs Samsung
The evolution of Standard Essential Patents (SEPs) as a battleground for emerging tech competition
Why China’s approach to patent litigation is causing controversy in Europe
The intersection of patent policy and international trade agreements.
Outtro music: Minitel Rose - Magic Powder (Youtube Link)
Here's the 2-hour show on global tech standards from the ChinaTalk archives: Global Standards: What's the Deal?Spotify link, Apple Podcasts Link