By Ashley Sloat, Ph.D., President of Aurora Consulting LLC
In February 2017, the U.S. Chamber of Commerce released its 5th annual International IP Index. The index is used to score 45 global economies, representing roughly 90% of global GDP, based on six categories of IP protection: patents, copyrights, trademarks, trade secrets and market access, enforcement, and ratification of international treaties.
One of the most interesting tidbits from this report is not that the U.S. is ranked first, but that several economies are rapidly gaining on the U.S. The U.K., Germany, Japan, Sweden, and France are all within two points of the U.S. ranking, some within a fraction of a point. Now of course, it is great that other economies are strengthening protections and values around IP; this is desireable in a global economy. What is disheartening is that the U.S. is seemingly becoming a place of uncertainty, at least in certain respects, when it comes to IP. This uncertainty is in large part due to changes brought about by the America Invents Act (2011) and the recent courts cases: Alice Corp. v. CLS Bank International (2014) and Mayo Collaborative Services v. Prometheus Laboratories, Inc. (2012).
In fact, the report states: “looking at the results for Category 1: Patents, Related Rights, and Limitations, the U.S. falls from 1st to 10th behind most European economies included in the Index as well as Singapore and Japan.” p. 18. The report cites new difficulties encountered by patent owners in post-grant proceedings and achieving patent protection for software and biological innovations. I absolutely agree - and we encounter these difficulties almost everyday in our practice (although we are able to fight our way through them frequently!).
The silver-lining is that the ship has not sunk yet and as more court cases are decided, more adjustments will be made to the framework, hopefully helping patent owners regain some of the footing that was lost.