Guest column/Nobel-winning economists share a timely lesson
We live in arguably the most innovative and prosperous era in human history. My lifetime alone has seen numerous technological leaps that past generations could never have dreamed of, including the moon landing, the birth of the internet, and now the rise of artificial intelligence.
But this pace of transformation is historically the exception, not the rule — and it may not continue much longer if the infringer lobby gets its way.
That’s the lesson to be drawn from last year’s Nobel Prize in economics, which was awarded to Joel Mokyr, Philippe Aghion and Peter Howitt for explaining how innovation drives growth. Aghion and Howitt’s research shows that the process of “creative destruction” — new, better technologies continually replacing old ones — rests on incentives such as patent rights, which push the best technologies to the top of the market by enabling innovative upstarts to compete with larger incumbents.
Their findings are a timely reminder — because today, powerful corporate interests are pushing sweeping proposals that would erode America’s patent system. Since Congress wants innovation to flourish and future generations to prosper, it must not let these efforts succeed.
Patent rights have underpinned America’s innovation-driven prosperity since our country’s founders enshrined them in the Constitution. By granting inventors a temporary, exclusive right to their inventions, patents give investors opportunities to earn returns on risky research and allow small companies to outcompete established firms on the merits of their products.
As Aghion and Howitt demonstrated, this cycle of research, risk-taking, and reinvestment has fostered dramatic economic growth. Advances in recent times have produced dramatic improvements in medicine, communication, and other technologies, as well as historically high standards of living.
Small-business innovation, in particular, has been fundamental to America’s economic success. Small businesses file more patents per employee than larger ones. They also provide more than 60 million jobs nationwide and almost 45 percent of GDP.
Today, however, Big Tech and other corporate interests are trying to weaken America’s patent system to stifle smaller competitors. For years, some corporations have used efficient infringement” to sidestep patent rights. Rather than license a competitor’s patented technology, they simply copy it, then drag out expensive lawsuits hoping the smaller firm runs out of money.
To level the playing field, small inventors increasingly rely on outside help. Third-party litigation funding agreements — which enable outside investors to finance a lawsuit in exchange for a portion of any damages awarded — allow inventors to have a chance against deep-pocketed infringers.
Unsurprisingly, mammoth corporations are now seeking to suppress third-party funding through multiple bills. One is the so-called Tackling Predatory Litigation Funding Act, which would impose a massive tax on proceeds from litigation funding — essentially reducing incentives for investors to support even the strongest lawsuits.
Another proposal, the Litigation Transparency Act, would require complete disclosure of all litigation-funding agreements, exposing the extent of small inventors’ resources and often their legal strategies and handing big companies a litigation advantage.
By undermining a crucial lifeline for small companies, these bills would effectively allow large infringers to ignore patents with impunity. Congress would be wise to reject them.
This year’s Nobel Prize in Economics underscores a simple truth: America’s economy has flourished because our legal system has historically rewarded innovation.
Attempts to subvert enforcement of patent rights would undermine vital incentives, putting our future prosperity at risk.
(Michel, a retired judge, served on the United States Court of Appeals for the Federal Circuit from 1988 to 2010. He is a board member of the Inventors Defense Alliance.)
