Institute’s claim that U.S. patents are too strong is misleading–at best
If R Street wants to investigate a national security issue, as it claims, it should be investigating the abusive use of U.S. antitrust laws by the Federal Trade Commission against Qualcomm.
BY GENE QUINN
Here we go again! Another day, another ridiculous attack on the U.S. patent system.
This time the attack comes from the R Street Institute, which claims that patents are too strong and are inhibiting American companies from achieving success in the race for leadership in the 5G marketplace—as well as continued leadership in artificial intelligence.
R Street was to hold a panel discussion on its wildly outlandish theory, for which it can’t possibly have any factual support, on October 15. In the announcement, it claims that patents are inhibiting American companies because Chinese telecommunications company Huawei asserted more than 200 patents against Verizon Communications this year.
Therefore, patents are too strong and American companies are suffering.
There may be legitimate security concerns around Huawei’s infrastructure, but to suggest that the company’s patents are at the root of these threats is absurd.
Patents don’t discriminate
There is one problem with this R Street concoction: American companies are allowed to apply for U.S. patents, too! And American companies are allowed to apply for Chinese patents just the same.
Patent systems are not protectionist with respect to which companies are allowed to file for protection. All that is required for a patent to issue is an innovation to be present and appropriately disclosed, whatever those two things mean in the country granting the patent.
Moreover, U.S. dominance with respect to 5G technologies is not going to suffer because Verizon is getting sued.
This will come as a shock to those who watch TV in America, but Verizon is not the innovator of technologies that enable 5G telecommunications. Companies such as Qualcomm, Ericsson, Nokia, InterDigital, Huawei and others are the innovators. Although the omnipresent commercials for Verizon tout the company’s investment in 5G technologies, companies such as Verizon and AT&T use 5G telecommunications innovations developed by pioneers in the industry, not the other way around.
The innovators do the research and development that provide the first 999 miles; the implementers (i.e., Verizon and AT&T) roll out the final mile to consumers. Without the innovators there would be no 5G, so for R Street to get all upset about an innovator suing an implementer and then claiming patents are too strong and American companies can’t succeed is—well, misleading at best and fraudulent at worst.
If R Street wants to investigate a national security issue, as it claims, it should be investigating the abusive use of U.S. antitrust laws by the Federal Trade Commission against Qualcomm. The egregiously overbroad order by Judge Koh of the Northern District of California against Qualcomm threatens to knock out the only American 5G innovator in the race for the telecommunications system of the future.
That is a national security and economic security issue—not that patents are too strong.
The China factor
For reasons I cannot explain, virtually no one in Congress is worried about the utter disintegration of the U.S. patent system and the associated rise of the Chinese patent system.
Patents are strong in China, with patent owners prevailing more than 95 percent of the time. In the United States, medical diagnostics are unpatentable, any invention relating to software falls to a motion to dismiss, and even garage door openers are considered abstract as if they don’t exist. Pretty soon it will be the U.S. patent system that is abstract and doesn’t exist!
Still, the narrative about what China is doing—and how it is filling the patent void left by the United States and venture capital for artificial intelligence leaving America in favor of Chinese firms—has made no difference in policy or direction.
But don’t be surprised if Huawei suing a U.S. infringer doesn’t kickstart the next wave of misguided, irrational, patent-hating nonsense.