Today, the total estimated value of American IP measures approximately $5 trillion. That's higher than the entire gross domestic product (GDP) of every other nation in the world, with the single exception of China.

Tweet

For over two centuries, America's unique emphasis on protecting intellectual property (IP) rights - patent, copyright, trademark and trade secrets - largely explains how we became and remain the most inventive, creative and prosperous nation in history. 

Our Founding Fathers considered IP rights so important that they deliberately protected them in the text of the Constitution.  Article I, Section 8 reads, "The Congress shall have the Power ... [t]o promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." 

During the ratification debate, James Madison wrote in The Federalist No. 43, "The copyright of authors has been solemnly adjudged, in Great Britain, to be a right of common law."  Madison's position reflected the natural rights philosophy of John Locke, who had observed, "Our handiwork becomes our property because our hands - and the energy, consciousness, and control that fuel their labor - are our property." 

Later, with regard to patent rights, Abraham Lincoln noted that, "The patent system added the fuel of interest to the fire of genius," as IP rights serve both a utilitarian purpose in incentivizing innovation, and natural rights by allowing innovators to enjoy the rightful fruits of their labor. 

The payoff from our IP tradition is manifest. 

What nation even approaches our legacy of patented inventions, from the telephone to today's lifesaving pharmaceuticals, approximately two-thirds of which are developed in the U.S.?  Whose copyrighted artistic legacy matches America's, from our motion picture industry to our recording industry?  And who can match our famed trademarks, from the script Coca-Cola label to the Apple icon? 

Today, the total estimated value of American IP measures approximately $5 trillion.  That's higher than the entire gross domestic product (GDP) of every other nation in the world, with the single exception of China.  Our IP industries also account for over half of all U.S. exports, and employ nearly 55 million workers whose average annual earnings exceed non-IP workers' wages by nearly 30%. 

If we allow our worldwide lead to slip, however, we'll pay a heavy price. 

That's particularly salient in an increasingly knowledge-based economy, and amid an increasingly competitive global market. 

Alarmingly, however, a new global IP survey released this week by the Property Rights Alliance (PRA) reveals that we're beginning to tempt precisely that fate by surrendering our leadership position. 

Although the U.S. placed just 14th globally in overall property rights protection in last year's PRA Index, and a disturbing 20th in terms of legal and political ranking, we retained our traditional first-place ranking in the IP category, placing atop the global list in both patent protection and copyright protection.  This year, however, we fell to second behind Finland. 

"Alarmingly," the Index notes, "for the first time the United States fell from being 1st in the world for intellectual property protections to 2nd, yielding to Finland, which also passed New Zealand to become 1st in the Index overall." 

That parallels a similarly disturbing slippage in the latest U.S. Chamber of Commerce Global Innovation Policy Center (GIPC) IP Index.  Although the U.S. retained its number one worldwide ranking in overall IP protection, we slipped all the way to 16th in patent protection. 

That decline is largely attributable to patent system changes that occurred during the Obama Administration, including the creation of a Patent and Trademark Appeals Board (PTAB) that eliminates at least one existing patent in nearly 80% of petitions before it.  Judicial decisions interpreting federal laws in a way that weakened patent enforcement and substantive protections also played a role. 

Fortunately, the Trump Administration appears to understand the importance of IP to America's economy, including its focus on protecting IP from foreign theft. 

Additionally, bipartisan legislation sponsored by Sen. Tom Cotton (R - Arkansas) and Chris Coons (D - Delaware) in the Senate, and Steve Stivers (R - Ohio) in the House of Representatives, entitled the Support Technology and Research for Our Nation's Growth and Economic Resilience (STRONGER) Patents Act, would help return us to our preeminent worldwide position.  It would guarantee that patents receive the same protection as other types of property, permit patent owners to seek injunction against infringement during litigation, improve and clarify the process by which patents are granted and enforced, bring greater balance to PTAB reviews and reform the U.S. Patent and Trademark Office (PTO) fee process. 

Just as important, Congress must reject a misguided proposal by Sen. Richard Durbin (D - Illinois) that would compel biopharmaceutical companies to include list prices in direct-to-consumer (DTC) advertisements.  That not only violates the First Amendment, it would confuse patients and misdirect federal public health resources in an era of increasingly unsustainable healthcare costs. 

Along with other legislation now before Congress, we can interrupt our alarming recent decline in IP protection, and ensure continued American prosperity and global dominance in innovation.  The alternative of continued decay is simply unacceptable.