We Must Revitalize the American Patent System – The American Spectator | USA News and PoliticsThe American Spectator

President Trump’s motto is “Make America Great Again.” To achieve this, we should recall what made America great in the first place. Our Founding Fathers recognized that robust property rights — both tangible and intellectual — form the cornerstone of prosperity and innovation. A century ago, when the Japanese sought the “secret sauce” behind America’s rapid rise, they found a compelling answer: the U.S. patent system.

In the early 20th century, Japan dispatched a delegation led by Korekiyo Takahashi to study America’s industrial might. They identified our patent system as the cornerstone of our progress. Impressed, the Japanese established their first patent office, creating a system modeled on ours. This transformed Japan from a feudal society into an economic powerhouse — demonstrating that strong intellectual property protections drive economic growth and national competitiveness.

During my more than 35 years in the patent business, I’ve witnessed courts and Congress systematically dismantle this system. In 2006, the Supreme Court’s ruling in eBay v. MercExchange made it nearly impossible for patent owners to secure injunctions against infringers. This decision undercut the fundamental right to exclude — the essence of property rights. When infringers face few consequences, “efficient infringement” becomes business as usual.

The Court’s subsequent decisions in Bilski, Mayo, and Alice expanded a nebulous exception for “abstract ideas” beyond reasonable limits, engulfing patents for tangible inventions. Without clear guidance on what constitutes an “abstract idea,” confusion reigns. Meanwhile, the 2011 patent reform spearheaded by Senator Leahy — the so-called America Invents Act (AIA) — established post-grant review procedures to try the validity of issued patents before the administrative judges at the Patent Trial and Appeal Board (PTAB), which has become notorious for invalidating patents en mass. Judge Rader, former Chief Judge of the Federal Circuit, called the PTAB a “death squad” for patents. AIA did nothing for American inventors but gave American infringers a free-get-out-of-jail-card.

These changes have devastated America’s patent system. Patents became hardly enforceable. Patent values have plummeted, making it difficult for inventors and startups to secure funding. Infringement has become rampant as enforcement grows costly with no prospects of obtaining injunctions. The “efficient infringement” became the accepted business model.

Most troublingly, Chinese competitors now freely copy American innovations with little fear of consequences. The National Bureau of Asian Research estimates that IP theft costs the U.S. economy up to $600 billion annually. While America weakens its patent system, China strengthens theirs. China now files more patent applications than any other country and has established specialized IP courts.

In 2024, U.S.-based companies received 157,955 granted patents — a decrease of 2.8 percent from 2023. During the same period, Chinese companies received 38,775 patents — a staggering increase of 33.8 percent. The Chinese government has made intellectual property development a national priority through initiatives like “Made in China 2025.”

A strong patent system would serve as a far more effective barrier against unfair trade practices than tariffs alone. While tariffs temporarily level the playing field, robust patent protections create sustainable advantages by ensuring American innovations cannot simply be copied overseas.

How to Make America’s Patent System Great

To restore America’s greatness, we must revive our patent system:

First, Congress should clarify what is patent-eligible, eliminating the vague “abstract idea” judicial exception that courts have stretched beyond recognition.

Second, inventors should again be entitled to injunctions against infringers. Courts should preserve the fundamental “right to exclude” enshrined in the Constitution.

Third, Congress should eliminate PTAB post-grant proceedings so patent disputes can be decided by juries in federal courts, not by administrative judges at the Patent Office. Patents should once again enjoy the strong presumption of validity.

America’s patent system is overdue for modernization. One possibility is a multi-tier system: short-term “junior” patents for relatively minor improvements and “senior” patents with automatic injunction rights reserved for significant innovations. Different patent terms commensurate with the economic lifecycle of products in different industries would also help — shorter protection for fast-moving fields like software and longer-term protection where development and regulatory hurdles require more time, such as in the pharmaceutical industry.

Patents are a currency of the digital economy. As our Founding Fathers recognized and the Japanese discovered, robust patent rights drive innovation and growth. Strengthening our system would ensure that the next generation of groundbreaking ideas — and the jobs and prosperity they create — are nurtured here at home. This is a sure way to make America great again!

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Alexander Poltorak is the Founder and Chairman of General Patent Corporation, an IP management firm.