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Posts Tagged ‘IP’
August 3rd, 2021 at 10:07 am
Free Webinar: Debunking Patent & Antitrust Myths — Register Now
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Throughout its history, the United States has led the world in protecting intellectual property (IP) rights. On that foundation, we’ve also led the world in artistic, commercial and scientific innovation, particularly with lifesaving medicines and vaccines.

Yet patent rights are under increasing assault, with anti-patent activists charging pharmaceutical makers with “antitrust” violations for utilizing and building upon their patents for the greater good. Their rhetoric and false critiques under the guise of “antitrust” typically rely upon an array of misleading and pejorative labels, to the point where they take on a meaning that bears no resemblance to reality.

The Center for Individual Freedom (CFIF) and IPWatchdog, Inc., have partnered up to offer a free webinar conversation that will debunk the myths associated with patent thickets and pejorative terms used to denigrate innovators and patent owners.

Join us on Thursday, August 5 at 12pm ET.  Register now by clicking here

Gene Quinn, President and CEO of IPWatchdog, Inc., will be moderating the discussion. Joining Gene will be…

  • Timothy Lee, SVP of Legal and Public Affairs, Center for Individual Freedom
  • Chris Israel, Executive Director, The Alliance of U.S. Startups for Inventors and Jobs
  • Andrew Spiegel, Executive Director, Global Colon Cancer Association
  • Adam Mossoff, Professor of Law, Antonin Scalia Law School, George Mason University and Senior Fellow and Chair of the Forum for IP, Hudson Institute

During the webinar the panel will discuss:

  • The important role innovators play in the technology economy;
  • Why so-called “patent thickets” actually increase innovation;
  • Why claims of “product hopping” are not about pharmaceutical coercion but instead are about preventing follow-on pharmaceutical innovation so generics can compete with the drug being sold by brand name pharma companies;
  • Why courts have ruled “pay-for-delay settlements” are a valid by-product of a patent holder’s exclusionary rights.

Register here!

 

July 29th, 2021 at 10:02 am
Ramirez Cartoon: China IP Theft
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Below is one of the latest cartoons from two-time Pulitzer Prize-winner Michael Ramirez…

May 13th, 2021 at 8:59 pm
Image of the Day: Private Sector Pharmaceutical Investment Propels Innovation
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As we’ve highlighted, the dangerous effort to weaken critical patent protections for U.S. pharmaceutical innovators often minimizes the role of private investment and exaggerates the role of public funding.  This offers a critical corrective at a moment when American drug and vaccine innovation is more important than ever:

The Critical Role of Private Pharmaceutical Investment

The Critical Role of Private Pharmaceutical Investment

January 25th, 2021 at 1:07 pm
CFIF Joins 75-Group National & State Coalition Opposing Socialized Medicine and Importation of Foreign Price Controls
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Today, continuing our longstanding opposition to the ruination of American healthcare by importing foreign price controls and socialized medicine, CFIF proudly joins a 75-group coalition letter to the Centers for Medicare and Medicaid Services opposing the interim final rule to implement the “Most Favored Nation” (MFN) model under Section 1115A of the Social Security Act, which forces physicians, patients and providers into a mandatory demonstration under the ObamaCare Center for Medicare and Medicaid Innovation (CMMI), and which ties prices paid for medicines in Medicare Part B to the prices paid in socialized healthcare systems of foreign nations.

Specifically, the letter explains in detail how the rule will do nothing to stop foreign freeloading off of American pharmaceutical innovation, it will reduce access to new cures (just as it has in those foreign nations), it threatens millions of high-paying American jobs, it moves America one step closer to government-run healthcare and it utilizes ObamaCare to circumvent Article I of the U.S. Constitution.

As demonstrated once again by U.S. pharmaceutical leadership in quickly developing coronavirus vaccines, we’re the envy of the world in this regard.  The last thing we need at a moment like this is to undermine our status with a potentially catastrophic unforced error like this.

January 4th, 2021 at 9:51 am
Image of the Day: Medical / Pharmaceutical / Healthcare Sector Approval Skyrockets
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Although the year 2020 was a trying one in so many ways, one bright spot that we at CFIF repeatedly highlighted is the wondrous way in which America’s pharmaceutical sector came to the rescue, achieving in one year what typically takes a decade or more:  devising and perfecting not one, but multiple lifesaving vaccines.  It’s therefore no surprise, but welcome nonetheless, that Americans’ approval of our healthcare sector and its workers skyrocketed.  Their remarkable achievements have not gone unnoticed:

Medical Sector Approval Skyrocketed

Medical Sector Approval Skyrocketed

 

August 28th, 2020 at 9:58 am
Image of the Day: Private R&D Dwarfs Public Funding
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As we’ve continued to highlight, Joe Biden, Bernie Sanders and others dangerously seek to weaken U.S. patent protections, which for centuries have led the world and account for the fact that the U.S. pharmaceutical sector introduces more new drugs than the rest of the world combined.  Their logic is that federal research and development funding justifies confiscation, not realizing that, as former patent attorney Abraham Lincoln once noted, the U.S. patent system added “the fuel of interest to the fire of genius.”  From our friends at AEI, a new graphic highlights again how private R&D actually dwarfs federal funding, which understandably peaked in the 1960s during the Cold War and Space Race.  It’s simply no justification for weakening America’s ongoing legacy of strong patent protections:

Private R&D Leads the Way

Private R&D Leads the Way

 

July 24th, 2020 at 4:10 pm
CFIF Opposes White House Executive Order Importing Foreign Nations’ Socialized Medicine and Drug Price Controls
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Regrettably, the White House today announced an executive order that effectively imports drug price controls from foreign nations with socialized healthcare systems.  We at CFIF strongly oppose the order and encourage immediate reconsideration.  Below is CFIF President Jeffrey Mazzella’s statement:

“Price controls simply do not work, regardless of the product targeted or the location they’re attempted, and real-world experience establishes that pharmaceutical price controls are no different.  The new executive order would impose what’s known as an International Pricing Index (IPI) for U.S. drugs administered by the federal government, meaning that foreign governments’ drug price controls would suddenly control our own reimbursement rates.  That would upend our current system, which has actually already reduced the cost of the 50 most popular Medicare Part B drugs sold by approximately 1%.  Our current system already includes the discounts negotiated between hospitals, healthcare plans and payers.  In contrast, foreign governments whose price control schemes we would import don’t negotiate, but instead dictate prices while threatening to violate patent rights and employ a ‘take it or leave it’ approach.

“As a direct consequence of foreign nations’ price control approaches that disrespect patent rights, those nations receive far fewer new lifesaving and life-improving drugs than American consumers.  For example, 96% of all new cancer drugs over the past decade were made available to U.S. consumers.  In contrast, only 56% of those same drugs became available in Canada, only 50% became available in Japan and only 11% in Greece, as just three examples.  Simply put, consumers in nations whose governments impose drug price controls don’t enjoy access to nearly as many new drugs as Americans, or nearly as soon.  As The Wall Street Journal found, that’s why America outpaces European nations in terms of cancer survival rates, among other advantages.

“Even the Trump Administration itself has highlighted the destructive effect of importing foreign price controls.  In 2018, its Council of Economic Advisers affirmed that, “If the United States had adopted the centralized drug pricing policy in other developed nations twenty years ago, then the world may not have highly valuable treatments for diseases that required significant investment.”

“Currently, the United States accounts for nearly two-thirds of all new drugs introduced worldwide, and our more market-oriented system and protection of patent rights explains why.  Very few potential new drugs ever reach the market, due to astronomical research and development costs, lengthy government safety tests, laboratory effectiveness trials, possible product liability lawsuits, patent protection limitations and other bureaucratic hassles.  Imposing artificial price controls would add to those headwinds by making it less possible to recover the massive costs of developing new medicines and R&D, leading to fewer new drugs for U.S. consumers.

“Instead of importing foreign nations’ price control schemes and their consequences, America should be exporting our superior system to their shores.

“Today’s executive order contravenes the Trump Administration’s broader agenda of deregulation, free-market approaches and strong intellectual property (IP) protections.  Hopefully, the White House quickly realizes the potentially catastrophic consequences of this order, lest American consumers suffer in the same way as consumers in the foreign nations that impose the price controls that it now seeks to import.

“In his State of the Union Address earlier this year, President Trump reassured Americans that, ‘To those watching at home tonight, I want you to know that we will never let socialism destroy American healthcare.’  Unfortunately, the White House’s executive order announced today regarding drug prices would do precisely that.

“We therefore urge President Trump to reconsider this potentially catastrophic order in the strongest possible terms.”

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July 14th, 2020 at 11:47 am
Image of the Day: The Shocking Cost of Chinese Intellectual Property (IP) Theft
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Shocking but necessary perspective on the cost of Chinese theft of U.S. intellectual property (IP) from National Review employing Congressional Research Service numbers:

 

The Shocking Cost of Chinese IP Theft

The Shocking Cost of Chinese IP Theft

 

July 6th, 2020 at 2:32 pm
“Blanket Licensing” – a Collectivist, Bureaucratic, One-Size-Fits-All Deprivation of Property Rights Proposal
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America’s legacy of unparalleled copyright protections and free market orientation has cultivated a music industry unrivaled in today’s world or throughout human history.

From the first days of the phonograph, through the jazz age, through the rock era, through disco, through country, through hip-hop and every other popular musical iteration since its advent, it’s not by accident that we lead the world in the same manner in which we lead in such industries as cinema and television programming.  We can thank our nation’s emphasis on strong copyright protections.

Unfortunately, that reality doesn’t deter some activists from periodically advocating a more collectivist, top-down governmental reordering of the music industry in a way that would deprive artists and creators of their property rights.  Some advocates simply will not relent in their unceasing and misguided campaign to undermine copyright protections that have provided the wellspring for U.S. musical preeminence.  They seek to replace strong copyright protections and the freedom of market participants to mutually negotiate, ultimately to consumers’ obvious benefit, and replace them with a government-determined rate and a one-size-fits-all bureaucratic approach that eliminates market participants’ autonomy.

As just the latest example, British activist Cory Doctorow of the Electronic Freedom Foundation (EFF) now proposes a “blanket licensing” idea under which anyone wishing to offer music to pubic audiences would be required to open an account with a collecting society.  His heavily bureaucratic proposal would curtail the ability of copyright owners to negotiate royalties as they see fit with internet music platforms.

In an era of endless musical genres and methods to access them according to one’s preference, how does imposing such a collectivist, centralized, one-size-fits-all regime make sense?

The obvious answer is that it doesn’t.

Doctorow’s proposal betrays a fundamental flaw by misconceptualizing the nature of copyright itself by misstating “copyright’s real purpose:  spurring creativity and innovation.”

While Doctorow can be forgiven for his unfamiliarity with American constitutional principles, and while the utilitarian goal of creativity and innovation is indeed a primary feature of copyright and other intellectual property (IP) protections, that’s an inaccurate and incomplete statement of its “real purpose.”  Rather, copyright through common law and American constitutional history is valued as a natural property right of the creator, as we at CFIF articulated in our policy manual entitled ”The Constitutional and Historical Foundations of Copyright Protection”:

The Copyright Clause in the U.S. Constitution and the pre-existing rights it secures both arose from a long intellectual and historical tradition that reflected both the importance of economic incentives (the utilitarian argument) and the notion that individuals have an inherent and inviolable right to the fruits of their own labor.  As the Supreme Court has explained, ‘[t]he economic philosophy behind the clause empowering Congress to grant patents and copyrights’ is the conviction that:  ‘(1) encouragement of individual effort by personal gain is the best way to advance public welfare through the talents of authors and inventors in “Science and the useful Arts”’ and (2) ‘[s]acrificial days devoted to such creative activities deserve rewards commensurate with the services rendered.’  Mazer v. Stein, 347 U.S. 201, 219 (1954).  Another early decision emphasized that only through copyright protection ‘can we protect intellectual property, the labors of the mind, productions and interests as much a man’s own, and as much the fruit of his honest industry, as the wheat he cultivates or the flocks he rears.’  Davoll v. Brown, 7 F.Cas. 197, 199 (D. Mass. 1845).

Accordingly, Doctorow’s proposal violates the central concept that copyright holders possess a natural right to their creations.  Even ignoring the natural right foundation of copyright, however, no other system of copyright protection has resulted in greater utility than our own, given America’s uniquely prolific music industry as noted above.

In addition to violating the fundamental rights of copyright owners to mutually bargain with music platforms, Seth Cooper of the Free State Foundation cogently summarizes how EFF’s proposal doesn’t accord with the obvious realities of today’s music marketplace:

[T]he EFF plan sidesteps the fact that there are several major Internet music service providers and numerous smaller providers.  Popular interactive (or ‘on-demand’) streaming music providers include Spotify, Tidal, Apple Music, Amazon Music, and Google Play Music.  Popular webcasters include Pandora, iHeartRadio, and Deezer.  And there are many others.  SoundExchange reported that some 3,600 webcasting services were operating in 2019.

Importantly, consumer choices also include nationwide satellite radio broadcaster Sirius XM and local AM/FM radio broadcasters.  Indeed, radio broadcasts are widely available through apps on smartphones and other devices.  Additional choices include digital downloads from major Internet music service providers as well as independent and individual artist websites.  CDs and vinyl records are also available at retail.

Given the number of competitors and platform choices, it is highly unlikely that Internet music services possess market power – or the ability to charge consumers above-market prices and otherwise engage in anti-competitive conduct.  There’s no showing of market power here and so the case for government intervention falls apart.” 

Accordingly, the EFF proposal contravenes fundamental concepts of copyright protections, it proposes to reorder a music marketplace that continues to function well for all of its stakeholders and it clashes with contemporary market realities.

We currently enjoy a functional market with innumerable market participants, and copyright owners across the spectrum possess the freedom to negotiate with a wide variety of potential distributors.  EFF’s proposal nevertheless aims to strip creators of the property rights they currently enjoy without justification.  The market simply isn’t broken.  Supporters of EFF’s proposal curiously assert that today’s market is corrupted by monopolies, but as Mr. Cooper sets forth nicely above, a broad global spectrum of potential avenues exist for consumers to freely access as they prefer.

Accordingly, the notion that we should upend a market in which consumers can access an ever-greater variety of music at low cost is an untenable one.

A better option would be for Congress to expand copyright holders’ protections to the sphere of terrestrial radio via the Ask Musicians for Music Act (AMFM Act), to extend what we know works, rather than foolishly venture into demonstrably defective novel proposals.

May 18th, 2020 at 10:37 am
New Gallup Report Undermines the Myth of “Superior” European Healthcare
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Socialized medicine advocates curiously but persistently suggest that European models offer a superior alternative to the American healthcare system that relies more on private market forces and strong intellectual property rights.  Gallup offers an important corrective, even if unintentionally.  Whereas the percentage of Americans rating their healthcare as positive has remained within a high 76% to 83% window for years, Europeans consistently rate their healthcare satisfaction substantially lower, with only Germany matching American satisfaction levels:

 

Germany:  84% approve/15% disapprove

United Kingdom:  76% approve/22% disapprove

France:  74% approve/25% disapprove

Spain:  68% approve/31% disapprove

Italy:  51% approve/487% disapprove

 

That’s important to remember as calls for socialized medicine become louder amid the coronavirus pandemic and as November elections approach.

April 17th, 2020 at 9:59 am
Image of the Day: Free Markets Bring Innovation
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In this week’s Liberty Update, we highlight how cheap slurs against “Big Pharma” have suddenly and rightfully fallen silent amid the coronavirus pandemic, as people understand that private pharmaceutical innovators offer the best hope for new vaccines and treatments.  Along with strong patent protections, one of the key components in unleashing America’s pharmaceutical innovators – who lead the world by producing an astounding two-thirds of new medicines worldwide – is an emphasis on free-market principles, as opposed to socialized models that stifle innovation and prevent new drugs from reaching even developed nations’ consumers.  Our friends at the Heritage Foundation offer a nice illustration of that correlation:

 

 

Freedom Means Innovation

Freedom Means Innovation

 

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March 23rd, 2020 at 10:22 am
Trump Administration Stands Up for U.S. Copyright Protections Under Potential South African Threat
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At CFIF, we’ve unceasingly highlighted the foundational role of intellectual property (IP) rights – patents, copyrights, trademarks and trade secrets – in what we know as “American Exceptionalism.”

No nation matches our legacy of IP protection throughout the decades and centuries.  Our Founding Fathers specifically inserted IP protections in Article I of the Constitution, even before the First Amendment or other Bill of Rights protections.

As a direct result no nation in human history remotely matches our legacy of scientific inventiveness, artistic innovation, global influence, power and prosperity.

And today, IP-centric industries account for about 40% of the total U.S. economy, and 45 million jobs – nearly 30% of the U.S. labor force.  For perspective, that U.S. IP economic sector outsizes the entire economies of every other economy on Earth with the sole exception of China.

Recently, we’ve particularly highlighted the role that patent rights play in medical innovation, which has obviously taken on increased importance amid the coronavirus pandemic.  Believe it or not, America accounts for an astounding two-thirds of all worldwide pharmaceutical innovation, due in large part to the IP incentives that allow innovators to receive the fruits of their difficult and costly labor.  That continues today, more than ever.

But in the IP realm, copyright plays just as vital a role in America’s legacy of innovation, influence and prosperity.  After all, just ask yourself what nation today or throughout history even approaches our artistic influence from music to cinema to television to any other form of artistic creation.  That’s the direct result of strong copyright protections for innovators in the U.S.

Unfortunately, other nations not only don’t respect copyright and other IP rights to the degree that we do, they actively seek to undermine U.S. protections.  As the latest example, the nation of South Africa, which hasn’t adequately or effectively protected U.S. copyrights.  And making matters worse, the South African legislature recently passed two proposed laws that further weaken copyright protections and sent them to the South African president for signature.

Fortunately, the Trump Administration is standing up for U.S. copyright and must remain so.

By way of quick background, the U.S. government practices what is known as the Generalized System of Preferences (GSP) program, which allows for duty-free importation of various goods from developing nations that we designate as beneficiaries of the program.  In April of last year, as part of our annual review of GSP beneficiary nations, the International Intellectual Property Alliance (IIPA) formally requested that the U.S. government specifically analyze South Africa’s status under GSP eligibility criteria because of South Africa’s longstanding inadequacy in terms of copyright protection for American copyrighted works.  In October, the administration accepted that petition and commenced a review, including a public hearing that occurred on January 30 of this year.  As the U.S. government rightly reconsiders South Africa’s GSP eligibility, petitioners ask that its legislature reconsider the two proposed bills and remove the defective anti-copyright provisions.

If that corrective action by South Africa’s government does not occur, the U.S. should in fairness withdraw South Africa’s continuing enjoyment of the GSP program’s benefits.

Unfortunately, some groups here in the U.S. seek to undermine American copyright laws, and are acting to pressure the Trump Administration and government officials to give South Africa a free pass.

That mustn’t be allowed.  Our protection of copyright and other IP rights is a primary – if not the primary – reason for America’s unrivaled legacy of innovation and prosperity.

The Trump Administration has strengthened America’s IP legacy after eight years of decay under Barack Obama.  For example, the administration strengthened IP protections during renegotiation of the North American Free Trade Agreement (NAFTA) in the new U.S.-Mexico-Canada Agreement (USMCA).  That included stronger patent protections for pharmaceuticals, as well as higher enforcement against counterfeit copyrighted and other goods.  It is doing the right thing with regard to South Africa as well, and it mustn’t allow domestic or overseas interest groups to pressure it into doing otherwise.

Particularly at a time like this, we cannot allow other countries to undermine our legal rights globally, whether South Africa or others.

 

March 13th, 2020 at 1:13 pm
Image of the Day: Patent Rights and U.S. Pharmaceutical Leadership
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In our Liberty Update this week, we emphasize the critical role that strong patent rights play in U.S. pharmaceutical innovation.  Although the U.S. accounts for just 4% of the world’s population and 24% of the global economy, we account for an astonishing 2/3 of new drugs introduced worldwide, as this helpful image illustrates perfectly:

Patent Rights Protect U.S. Pharmaceutical Innovation Leadership

Patent Rights = Global Pharmaceutical Innovation Leadership

 

Strong patent protections, along with our more market-oriented approach, have made America the world leader in pharmaceutical innovation.  At a moment like this amid the coronavirus pandemic, it’s more important than ever to protect that legacy and oppose misguided efforts by some in Congress to undermine it.

December 6th, 2019 at 12:41 pm
Members of Congress Stand Up for Property Rights
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In rare but refreshing bipartisan good news out of Congress, Senator Thom Tillis (R – North Carolina) and Representatives Ben Cline (R – Virginia), Theodore Deutch (D – Florida), Martha Roby (R – Alabama) and Harley Rouda (D – California) have just taken a firm stand protecting property rights – copyrights specifically – and merit our praise.

As we’ve long highlighted, property rights constitute a central pillar of “American Exceptionalism,” and that includes intellectual property (IP) rights – copyrights, patents, trademarks and trade secrets.   Our Founding Fathers considered IP so important that they deliberately and explicitly singled it out for protection in the text of the Constitution.  As a direct result, we’ve become the most innovative and prosperous nation in human history.  And it’s not even close.

For that reason, it comes as welcome news that Senator Tillis and Representatives Cline, Deutch, Roby and Rouda recently sent a letter to the American Law Institute (ALI) to question its curious decision to develop what’s known as a “restatement” of copyright law, which Congress has already legislated over years, decades and even centuries.

For non-lawyers unacquainted with ALI, it’s an organization established in 1923 that issues what are known as “Restatements” that summarize common law principles such as contract or tort laws.  Accordingly, Restatements can assist law students, lawyers, judges or other professionals about various legal concepts as a helpful handy reference.

As Senator Tillis and Representatives Cline, Deutch, Roby and Rouda correctly point out in their December 3 letter, however, the ALI has joined too many other organizations such as the American Bar Association (ABA) in undertaking a more left-leaning political and ideological mission in recent years.  None other than Supreme Court Justice Antonin Scalia cogently highlighted that concern, as the letter notes:

The late Justice Antonin Scalia, who was the most frequent author of opinions citing ALI publications in nine opinions, wrote that ‘modern’ Restatements “are of questionable value, and must be used with caution.’  He added that, ‘[o]ver time, the Restatements’ authors have abandoned the mission of describing the law, and have chosen instead to set forth their aspirations for what the law ought to be.’  In his dissent in Kansas v. Nebraska, Justice Scalia stated that newer Restatements ‘should be given no weight whatever as to the current state of the law, and no more weight regarding what the law ought to be than the recommendation of any respected lawyer or scholar.’”

Their letter notes that Justice Scalia was not alone.  Rather, “many states have also begun to repudiate the more recent and controversial Restatement projects,” and the U.S. Copyright Office, the U.S. Patent and Trademark Office, the ABA’s own IP Law section and numerous judges and academics have expressed similar concerns.

And as it relates to copyrights, the letter wisely emphasizes that the ALI’s latest effort is particularly inappropriate:

Traditionally, Restatements have focused almost exclusively on areas of common law because judicial rulings across different jurisdictions may vary and ALI’s interpretations are predisposed to assembly, analysis, and summaries.  By contrast, laws created through federal statute, including federal copyright law, are ill-suited for treatment in a Restatement because the law is clearly articulated by Congress in both the statute and the legislative history…  Throughout its almost 100 years of history, the ALI has never chosen to draft a Restatement of an area of law that is almost exclusively federal statutory law – until now.”

The letter concludes by expressing concern that the ALI may seek to issue similar questionable Restatements on such areas as patent law, and by emphasizing that copyright law is and remains within Congress’s authority, rendering the sort of action attempted by ALI inappropriate and potentially damaging.

For that important wisdom and initiative, Senator Tillis and Representatives Cline, Deutch, Roby and Rouda deserve our respect and praise.

October 1st, 2019 at 4:32 pm
Cicilline Bill Would Jeopardize Pharmaceutical Innovation by Weakening Patent Protections
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In the ongoing debate over healthcare reform, it’s important to keep our collective eye on the ball.  In that vein, as CFIF has repeatedly emphasized, we must ensure that free market principles prevail, and that includes protecting patent rights rather than weakening them.  Otherwise, American consumers will pay the price in fewer pharmaceutical innovations, shortages and worse health outcomes.

After all, as we’ve often pointed out, it’s not by accident that the United States accounts for an astonishing two-thirds of all new pharmaceuticals in the world.  That reflects the fact that we lead the world in intellectual property (IP) protections and avoid the destructive price controls that nations favoring socialized medicine impose.  As a consequence, patients in those countries don’t receive the new lifesaving and life-enhancing drugs that we do.

Unfortunately, there’s bad news to report in that regard, as Representative David Cicilline (D – Rhode Island) has introduced the misnamed “Affordable Prescriptions for Patients Through Promoting Competition Act.”  Most conspicuously, his proposal would begin prohibiting patent protections for pharmaceutical innovators developing improvements to their existing products.

Here’s why this is important.  Existing laws that have made us the most innovative nation in history allow for patent protection for new and useful improvements to existing pharmaceuticals.  Such improvements can help patients in such ways as eliminating side effects, reducing the necessary frequency or dosage, enhancing potency, boosting effectiveness or even addressing other illnesses beyond the drug’s original purpose.

But if innovators can no longer expect patent protections for the billions of dollars and years of hard work invested in developing them, then those innovations will begin to dry up.  Developing new or improved drugs typically requires over 10 years, and only approximately 10% of new discoveries actually make it to market after regulatory approval.  Accordingly, we must enhance the prospect that the fruits of innovators’ labors will be obtainable, not diminish them.

Representative Cicilline’s proposed bill is therefore a potentially catastrophic one for American consumers, who rely upon pharmaceutical innovators more and more to save lives and maintain health.  We therefore call upon all Members of Congress to oppose it.

 

July 9th, 2019 at 5:48 pm
Patent Protection at a Critical Juncture
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At CFIF, we’ve consistently and unapologetically celebrated the central role of intellectual property (IP) rights – patents, copyrights, trademarks and trade secrets – in making America the most innovative, prosperous and powerful nation in human history.

Recent legal developments domestically, as well as growing focus upon Chinese IP malfeasance internationally, provide new emphasis on the importance of strong U.S. patent protections for American inventors, and highlight some increasingly obvious concerns regarding patent infringers exploiting the U.S. Patent Trial and Appeals Board (PTAB) for nefarious and selfish purposes.

A couple of weeks ago, patent holder plaintiff TQ Delta won on all eight counts in its first case in a series against 2Wire, Inc. over digital communication technology patents.  The win thereby sets a strong precedent of IP enforcement in what will be the first trial over its DSL patent porfolio.

In another recent example that will instantly resonate with parents as their children splash amid water balloons in their backyards this summer, a federal judge in Texas went to the rare extreme of actually doubling a multimillion-dollar jury award in favor of toy company Tinnus Enterprises, maker of “Bunch O Balloons” water balloon devices, in its patent infringement case against Telebrands.  More often, judges reduce jury awards that they consider excessive.  In this case, however, U.S. District Judge Robert Schroeder III held that the “serial infringement” of Tinnus’s patents and “flagrant” litigation misconduct merited more than doubling the original damages assessment.

The ongoing case of EagleView v. Verisk offers another salient example, a proverbial David innovator versus a Goliath infringer.  It also presents a perfect opportunity to correct a patent infringement injustice and offer a deterrent lesson to other potential patent violators of the consequences they will face.  In a nutshell, the plaintiff EagleView develops products that create 3-D models from aerial images of rooftops, from which insurers and construction companies can more accurately reach repair cost estimates.  After defendant Verisk unsuccessfully attempted to purchase EagleView in 2014, it allegedly shifted to using its subsidiary Xactware Solutions to infringing EagleView’s patented technology, triggering EagleView’s lawsuit for willful patent infringement.

Since that date, Verisk has employed an array of tactics to prevent EagleView’s lawsuit from reaching a jury, such as filing multiple petitions at the PTAB to invalidate EagleView’s underlying patents, which a federal Court of Appeals found “unpersuasive.”  Verisk has also petitioned the District Court multiple times to invalidate EagleView’s underlying patents, which the Court rejected similarly.  Now, Verisk has even resorted to joining the LOT Network, an openly anti-IP group that includes Google and other titans.  Hopefully, those tactics will be put to an end at long last.

All of this serves to highlight once again the need to protect IP, and patent rights specifically, at the legislative, executive and judicial levels.  At the Congressional and executive levels, legislation to address patent eligibility and U.S. Patent and Trademark Office (PTO) reform are critical, as CFIF has previously emphasized.  Additionally, abuse at the PTAB level must not be tolerated.  And at the judicial level, courts must hold patent infringers accountable, and grant injunctive relief to patent holders to halt violations.  By holding violators accountable, we can not only deter other potential violators, but also provide the incentive to innovators by creating greater assurance that their work will be rewarded and protected.

America’s tradition of leading the world in innovation and IP protection is ultimately at stake.

February 14th, 2019 at 5:08 pm
Want to Address Drug Costs? Avoid Price Controls, Eliminate PBMs and Don’t Weaken Patents
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In an excellent piece in today’s Wall Street Journal, Scott Atlas of Stanford University highlights how Americans enjoy far greater access to new lifesaving drugs than patients in Europe and elsewhere, and how the movement to impose government price controls would only restrict access to new drugs and degrade Americans’ health outcomes, as we at CFIF have been emphasizing:

America has superior treatment results for virtually all serious diseases reliant on drug treatment, including cancer, heart disease, stroke, high blood pressure and diabetes.  Price controls would jeopardize that advantage…

Pegging drug prices to those of foreign countries, as both Bernie Sanders and Donald Trump have proposed, would ultimately lead to the same consequences Europeans endure – reduced access to critical drugs and worse outcomes, including more deaths from disease.”

Mr. Atlas also notes how the Trump Administration has taken positive steps toward actually reducing drug prices, by targeting rebates received by pharmacy-benefit managers (PBMs) from drug manufacturers:

The Trump Administration has announced a proposal to do away with rebates paid by drug manufacturers to pharmacy-benefit managers, replacing them with discounts to beneficiaries at the point of sale.  PBMs are middlemen that control ‘formularies,’ the lists of drugs covered by a plan.  Rebates from drug companies to PBMs are payments for influence – either to position a drug on the formulary as ‘exclusive’ or to give it preferred status over competitors.

PBMs act counter to patient interest while aggravating the lack of price transparency.   These complex behind-the-scenes payments – $179 billion in 2016 – reward inflated list prices, on which patient premiums are often based.  This prevents patients from taking account of price…  Go-betweens like PBMs should be eliminated.”

Finally, and just as critically, Mr. Atlas adds that weakening patent and intellectual property (IP) rights would constitute a particularly destructive course:

Drugs are the most significant reason for the past half-century’s unprecedented gains against deadly disease.  But policies that aim to reduce drug prices – price regulation and weaker patent protection – are also associated with delayed availability, less innovation, and limited access.”

Mr. Atlas delves into statistics showing the enormous advantage that Americans enjoy in terms of new drugs and health outcomes, and his piece is well worth the full read.  Hopefully policymakers at all levels of government are listening.

May 25th, 2018 at 8:50 am
Stephen Moore: Trade Deals Must Protect Intellectual Property Rights
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CFIF recently highlighted the importance of strengthening intellectual property rights as part of ongoing trade negotiations in a piece entitled “Intellectual Property:  NAFTA Renegotiation Priority #1.” Days later, Senator Pat Toomey (R – Pennsylvania) echoed that call in his Wall Street Journal commentary.

This week, celebrated economist Stephen Moore added his voice in a brilliant commentary entitled “Trade Deals Must Protect Intellectual Property Rights”:

American investments, ingenuity and entrepreneurship have made intellectual property one of our nation’s most important assets.  IP-intensive industries, including software, biotechnology and entertainment, now support nearly one-third of all U.S. jobs.  But too often, our foreign trading partners take unfair advantage of our IP innovations to enrich themselves at our expense.”

Moore proceeds to highlight the pharmaceutical sector as one particularly abused by foreign governments, and notes the enormous cost of IP theft to the U.S. economy by nations like China, then stresses the ominous danger if we fail to act:

Intellectual property is every bit as vital to our economy – if not more so – than steel or aluminum.    America leads the world in computer software;  drugs;  artificial intelligence;  patents;  trademarks;  and music, entertainment and other creative industries.  But how long can that last when competitor nations are ripping off our entrepreneurial companies to the tune of half a trillion dollars a year?”

It’s an excellent piece worth the read, and a welcome call from someone to whom the White House listens.

May 11th, 2018 at 1:03 pm
Sen. Pat Toomey in WSJ: Strengthen IP Rules During NAFTA Renegotiation
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In this week’s Liberty Update, we emphasize how intellectual property (IP) protection should be priority number one for the Trump Administration as it renegotiates the North American Free Trade Agreement (NAFTA) this month.

In that vein, we’re pleased to see Senator Pat Toomey (R – Pennsylvania) echo that point in his commentary in today’s Wall Street Journal:

[T]he administration can accept the advice from many members of Congress and others to modernize Nafta in ways that expand trade opportunities without curtailing American consumers’ freedom…  Nafta’s pre-internet intellectual property rules could be strengthened.”

Well said, and hopefully the message resonates within the Trump Administration to continue its remarkable recent string of economic and international successes.

April 11th, 2018 at 5:17 pm
Great News: Comprehensive Music Reform Legislation Introduced in Congress
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CFIF steadfastly supports America’s world-leading tradition of strong intellectual property rights, which have made us the most creative, inventive and prosperous nation in human history.

That includes the music industry, which stands unrivaled in terms of worldwide influence and fecundity, but which we’ve noted merits attention from Congress:

Under byzantine laws, artists receive just compensation whenever their post-1972 recordings are played, but in many cases not for their pre-1972 recordings.  That’s an indefensible and arbitrary artifact that has persisted far too long.  Why should Neil Diamond receive payment whenever ‘America’ is played, but not classics like ‘Solitary Man?’

Fortunately, the opportunity to correct that unfairness has arrived.  Even better, legislation to correct the existing flawed system arrives alongside other music legislation that galvanizes the coalition to finally correct the situation.  As a result, a broad coalition of music organizations representing everyone from songwriters, composers, performers, publishers and labels support three new pieces of legislation…”

Well, this week offers very welcome news.

The Music Modernization Act (H.R. 5447) has been introduced in Congress, as cogently summarized by the musicFIRST Coalition:

Introduced by House Judiciary Committee Chairman Bob Goodlatte (R – VA) and Ranking Member Jerrold Nadler (D – NY), the Music Modernization Act combines music licensing reforms outlined in the CLASSICS Act, Songwriters Equity Act of 2015, the rate standard parity provisions of the Fair Play Fair Pay Act, and AMP Act into a single, consensus piece of legislation.  The MMA addresses specific music legacy issues such as establishing federal copyright protection for artists who recorded before 1972, creating a single licensing entity to administer music publishing rights for all digital music and ensuring producers and engineers receive royalties for their contributions to the music they help create.

The consensus legislation introduced today in the House would not have been possible without the leadership from Chairman Goodlatte, Ranking Member Nadler, Rep. Doug Collins (R – GA), Rep. Darrell Issa (R- CA), Rep. Hakeem Jeffries (D – NY) and other leaders from both parties who worked together to craft legislation that is broadly supported by the entire music industry, streaming services and music creators.”

This legislation is long overdue.  CFIF therefore applauds the Committee for its unanimous support, and urges swift passage by the House to finally rectify the existing unfairness in the nation’s music laws.