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Paul Redmond Michel, former Chief Judge of the U.S. Federal Court of Appeals, J.D. @ Virginia School of Law, Assistant Watergate Special Prosecutor, professor @ GWU Law School, author of Patent Litigation and Strategy, judged several thousand appeals and authored more than 800 opinions, one third concerning intellectual property law, Hall of Fame @ Intellectual Asset Management, former Special Advisor to the Patent Reform Task Force. "U.S. Innovation Competitiveness Summit", 09-14-2021. https://www.youtube.com/watch?t=4164&v=MPKg1uEj0l4&feature=youtu.be. Accessed on 6-28-2024 by NT-JJ. Transcribed with Tactiq. 01:09:37.359- 01:10:15.440. **Edited for ableist language.

Capital is beginning to flee abroad to rival countries that have wider and clearer eligibility laws and stronger enforcement systems like Europe, particularly Germany, but many others as well, and increasingly even China. So, we are suffering compared to rivals and compared to our own needs, medical diagnostic tests are so important, including to combat the ongoing pandemic. But we badly handicapped[impeded]** that industry, almost destroyed it over the last decade.

‐ U.S. Application B relates to digital rights management and the secure provision of content keys used to encrypt streaming content. The B Application is part of an expansive patent family, including a corresponding PCT Application and granted international patents throughout Europe and China. No eligibility rejections were raised in any of the corresponding foreign patents. The B Application, however, faced multiple rounds of § 101 challenges over the course of three years, which were finally withdrawn after subsequent amendments and argumentation.

‐ U.S. Patent C relates generally to digital rights management. The C Patent is part of an expansive patent family, including granted patents in Europe and Asia. No eligibility rejections were raised in these corresponding foreign patents. The C Patent similarly began prosecution, prior to the Supreme Court’s Alice decision, without any eligibility concerns in the first few Office Actions. However, after the Alice decision, the C Patent faced brand new § 101 rejections. After multiple additional rounds of prosecution, including claim amendments, the § 101 rejections were finally overcome, and the patent was granted, 13 years after filing.

Finally, our analysis is closely related to a growing body of research investigating the rela-tionship between offshoring and intellectual property rights (IPR) reform. Indeed, stronger IPR regulation has been observed to be a key driver of both production offshoring (Branstetter et al.,2006, 2011; Canals & Şener, 2014) and innovation offshoring (Ito & Wakasugi, 2007; Moncada-Paterno-Castello et al., 2011). In part, this literature highlights the trade-off between access to low-cost high-skilled labor and the risk of product imitation in the offshoring decision for R&D activity. Interestingly, Bilir (2014) shows that strong IPR regulation attracts offshoring in indus-tries with relatively long product life cycles. Industries with short product life cycles are unaf-fected by IPR reform, however, because products tend to become obsolete before they are imitated. Cohle (2019a, 2019b) introduces employee mobility as a channel for imitation, study-ing the risk associated with researchers leaving firms to start businesses with competing prod-ucts, and shows that stronger IPR increases innovation offshoring, global welfare, and innovation activity. A key result is that high-tech firms are more likely to increase R&D offshoring in response to IPR reform (Cohle, 2021). In addition, stronger IPR protection may generate a brain effect by reducing employment opportunities for high-skilled researchers (Cohle, 2019a).

China is, famously, the world’s factory and a giant market for the world’s companies. More unremarked is its growing role as the world’s research-and-development laboratory. Between 2012 and 2021 foreign firms increased their collective Chinese research personnel by a fifth, to 716,000. Their annual R&D spending in the country almost doubled, to 338bn yuan ($52bn). Add investments by local firms and China now matches Europe’s R&D tally (see chart). Only America splurges more.

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It is often argued that a country's long-term performance depends to a significant extent on the quality of its institutions, including its political and legal institutions (Acemoglu et al., 2005). Economic research mostly focuses on explaining long-term differences in growth rates. As seen above, some researchers argue that high inequality will reduce growth rates, among other things, because it can worsen institutional quality. However, besides facilitating economic growth, public institutions have other functions that matter from a long-term perspective. For example, disaster preparedness, education, public health, foreign policy, science policy, and many other areas could influence the expected value of the long-term future. If such things go badly, they could increase existential risk. Conversely, good institutions will help reduce existential risk. For many existential risk reduction strategies likely require public goods and collective action, which in turn require good public institutions (among other reasons, because some such public goods are unlikely to be provided by markets). So, it seems reasonable to assume that, with most other societal goals, good institutions can help deliver existential risk reduction. Here is a cheesy analogy: targeted actions like washing your hands regularly or getting a flu shot can reduce your risk of dying from an infection. But you will also do well investing in a strong immune system, as that is an ‘all-purpose good’ in lowering your risk of dying from any bacterium or virus. Investing in good institutions might similarly be an all-purpose-good: rather than tackling individual sources of existential risk directly, we improve conditions for tackling whatever existential risks may come our way.

There are several reasons why higher inequality could weaken institutional capacities for longtermist public goods.

We bring our theory to data to test the model’s key predictions. First, our novel prediction from the model is that offshoring has two countervailing effects, complementary effect and substitution effect, on labor markets. We use data on U.S. BEA multinationals and U.S. BLS employment, and link them 45 to U.S. ACS individual-level information, and distinguish individuals by occupation, workers, and managers. Then, exploiting industry-year variation of offshoring measure, we have found compelling evidence that offshoring has differential impacts on workers and managers. We have also found that offshoring generates within task inequality using conditional quantile regression technique. Furthermore, we quantify the relative contribution of offshoring to the widening inequality and find that offshoring explains about 12 percent to 21 percent of the rising inequality during the period 2002 and 2011 in the U.S. Lastly, we use data on U.S. BEA multinationals and Barro and Lee (2013) educational attainment, and set up an offshoring gravity equation to test an inverted U-shape relation between the volume of offshoring and skill overlap between two countries. Using Poisson pseudo-maximumlikelihood (PPML) estimation technique, we have confirmed the inverted U-shape relation, and this explains why the U.S. is shifting most of its production activities to countries such as Brazil, China, Mexico and India whose skill distributions have intermediate skill overlaps with the U.S.

HAASS: No, absolutely. I think it's exactly right. And it's really interesting to ask, why is this the case? And I think you're right Meghna, it is bipartisan, it crosses party lines. I think there's a sense that foreign policy has costs more than its benefited us people look at Iraq, they look at the World War, also in Afghanistan. And they simply, correctly I would say, don't think in any way either was worth it. These issues are not taught in our schools, or if they are taught, they're not required. So, you can graduate from Harvard, or Stanford or Princeton, and have no background whatsoever in international relations or in history. Our media, for the most part doesn't cover these issues. Over the last 20-30 years, there's been a real reduction in the degree of international coverage. So, most Americans simply don't see the connection between what goes on in the world and what goes on here in the United States.

So, you know, here was this place called Wuhan where a virus broke out. And what we've learned in an extraordinarily expensive way, is that nothing stays local for long. What happens in Wuhan doesn't stay in Wuhan, but it travels. And this has cost us trillions of dollars. And already what more than 40,000 lives and the toll keeps mounting by the hour. This is an expensive lesson in why isolationism is not an option in a global world. And the real question is, will we learn that lesson? Will we learn the right lesson? Will we basically say we have got to get more involved in the world to prepare for the next pandemic? To do something about climate change? To do something about structuring the world, the digital world so it's positive and not negative? Are we still going to deal say with the threat of terrorism or proliferation? The real question, for me, is coming out of this, do we have the bandwidth Do we have the resources to have we learned the lesson that we can't isolate ourselves from what goes on in the world and to do that safely?

The inflow of funds into the United States has the benefit of helping the U.S. government finance the policies needed to stimulate the economy, to the advantage of the entire world. On the other hand, the dollar appreciation is delaying the correction of the world macroeconomic imbalances that helped spawn the economic crisis in the first place. The dollar is appreciating against the currencies of most other countries, developed as well as developing. This means the appreciation is hurting U.S. agricultural exports by making them less price competitive compared to output produced not only by importing countries but also by export competitors, such as Canada, Australia, and Brazil.

In the longer term, there are two possible scenarios involving the dollar’s exchange rate. The first is that the dollar continues to appreciate against the Chinese Yuan and currencies of other countries with which the United States has large trade deficits. The trade surplus countries continue to invest the dollars they earn from their positive U.S. trade balance back into the United States. By keeping the dollar strong, this behavior would prevent market forces from eliminating the U.S. trade deficit through dollar depreciation. In this scenario, the world could rebound from the economic crisis, with the financial system strengthened, though with the same general patterns of growth and trade as before. U.S. agriculture would benefit from resumed world growth, unless or until another crisis hits, but not from the benefits that could come from dollar depreciation.

In early 2016, Obama Treasury Secretary Jack Lew cautioned that the dollar’s dominance as a global currency rested, in part, on the U.S. government’s reluctance to fully weaponize it. If foreign markets and governments “feel that we will deploy sanctions without sufficient justification or for inappropriate reasons,” he warned, “we should not be surprised if they look for ways to avoid doing business in the United States or in U.S. dollars.” Lew’s case stemmed from the more fundamental view that the dollar’s international role is “a source of tremendous strength for our economy, a benefit for U.S. companies and a driver of U.S. global leadership”—in other words, a role worth keeping. This view is emblematic of American financial governance since the Second World War. U.S. economic analysts, especially at the Treasury, have jealously guarded the dollar’s role and the many benefits it offers: the ability to run large deficits at low cost and disproportionate influence over the structure of the global economy, among others.

Yet in their recent  in The New Republic, David Adler and Daniel Bessner argue the U.S. should abandon these advantages. In their view, the dollar’s role has encouraged American militarism and should be relinquished to curb such behavior. Dollar hegemony is not without cost, but to renounce it would be a profound mistake. Adler and Bessner’s view neglects the sizable economic benefits the dollar’s role confers on the U.S., as well as its possible use as an antidote to military adventurism. It ignores the enormous good that can be done with deficit spending, much of which has gone to the American military but could instead fund progressive programs. And it elides the inability of the U.S. and its global trading partners to shift away from dollar dominance without creating worldwide financial distress. Adler and Bessner are right that the U.S. has misused its privilege, but Washington should not abandon it; rather, American leaders should seek to transform it.

States have been the primary actors in global affairs for nearly 400 years. That is starting to change, as a handful of large technology companies rival them for geopolitical influence. The aftermath of the January 6 riot serves as the latest proof that Amazon, Apple, Facebook, Google, and Twitter are no longer merely large companies; they have taken control of aspects of society, the economy, and national security that were long the exclusive preserve of the state. The same goes for Chinese technology companies, such as Alibaba, ByteDance, and Tencent. Nonstate actors are increasingly shaping geopolitics, with technology companies in the lead. And although Europe wants to play, its companies do not have the size or geopolitical influence to compete with their American and Chinese counterparts.

Most of the analysis of U.S.-Chinese technological competition, however, is stuck in a statist paradigm. It depicts technology companies as foot soldiers in a conflict between hostile countries. But technology companies are not mere tools in the hands of governments. None of their actions in the immediate aftermath of the Capitol insurrection, for instance, came at the behest of the government or law enforcement. These were private decisions made by for-profit companies exercising power over code, servers, and regulations under their control. These companies are increasingly shaping the global environment in which governments operate. They have huge influence over the technologies and services that will drive the next industrial revolution, determine how countries project economic and military power, shape the future of work, and redefine social contracts.

‐ U.S. Application B relates to digital rights management and the secure provision of content keys used to encrypt streaming content. The B Application is part of an expansive patent family, including a corresponding PCT Application and granted international patents throughout Europe and China. No eligibility rejections were raised in any of the corresponding foreign patents. The B Application, however, faced multiple rounds of § 101 challenges over the course of three years, which were finally withdrawn after subsequent amendments and argumentation.

‐ U.S. Patent C relates generally to digital rights management. The C Patent is part of an expansive patent family, including granted patents in Europe and Asia. No eligibility rejections were raised in these corresponding foreign patents. The C Patent similarly began prosecution, prior to the Supreme Court’s Alice decision, without any eligibility concerns in the first few Office Actions. However, after the Alice decision, the C Patent faced brand new § 101 rejections. After multiple additional rounds of prosecution, including claim amendments, the § 101 rejections were finally overcome, and the patent was granted, 13 years after filing.

Stop weak IP related Capital Flight :Judge Michel also suggested that weak IP rights have caused venture firms to slow investment in areas that deal with patents (like critical technologies) and invest more heavily in trademark/copyright protected fields like entertainment, or in other countries with stronger IP rights.

Despite the fact that the Western creators of the TRIPS believed they were aiding developing countries, the TRIPS agreement comes under the heaviest scrutiny from outsiders as the most concerning patent "reform." The three negotiating forces behind the agreement were Keidanren, the Intellectual Property Committee (IPC), and the Union of Industrial and Employees Confederation (UNICE).1 3 5 Each one of these organizations had strong commercial interests - "IPC is a coalition of 12 major U.S. corporations: Bristol Myers, DuPont, General Electric, General Motors, Hewlett Packard, IBM, Johnson & Johnson, Merck, Monsanto, Pfizer, Rockwell, and Warner. 136 Keidanren is a federation of economic organizations in Japan, and UNICE is recognized as the official spokesperson for European business and industry."137 Concerns arose that the commercial interests would prioritize the Global North over the Global South, who was absent from much of the TRIPS negotiation process. 138 The TRIPS agreement focused on the privatization of the IP system, affirming WTO member patent systems based on private property rights, which successfully negated communal knowledge. 139 Nor does the agreement take into account the varying definitions of comercialization of traditional knowledge. 140 Before TRIPS was enacted, there were no uniform international IP requirements, and states were free to manage their IP, which meant that traditional knowledge could hypothetically be protected.141 But underdeveloped nations were pressured into signing the agreement to keep pace with developed nation's IP systems at the expense of Indigenous populations and community values. 142 India stated that its adoption of TRIPS in 1994 was due to its need "to utilize demanded-for intellectual property rights as a sword and shield against deculturizing [sic] forces of globalization and foreign investment." 143 Thus, it is no surprise that in many scholars' eyes the TRIPS agreement was a failure and has been likened to modern day imperialism.144 Further, TRIPS has not changed or expanded in any meaningful way since its inception in the mid-nineties, and still stands as a hallmark case of bullying by the West. 145 The agreement preys on the interests of Indigenous populations, but is also in direct conflict with the Convention on Biological Diversity, though they both exist in the same universe as one another and in apparent congruence.

Biopiracy is described as the unjust practice of commercially exploiting naturally occurring biochemical or genetic material, especially by obtaining patents, while failing to pay fair compensation to the community from which it originates (such as indigenous peoples). It can be an emotive subject, provoking strong opinions on both sides. Various groups have been founded to combat alleged instances of biopiracy, such as the Peruvian National Commission Against Biopiracy and France Libertés - Fondation Danielle Mitterrand. Patent applicants who are accused of biopiracy may experience negative publicity and, in some instances, may even face revocation of their patent. With the commercial importance of natural products growing, particularly in the cosmetics and personal care sector, applicants for patents to natural products may wish to consider measures to avoid or mitigate allegations of biopiracy.

In of our series on patenting natural products, we saw that European law may allow patents to natural products that are isolated for the first time from the natural environment. In , we saw that known isolated natural products may still be patentable if found to have a new use. In , we saw that known isolated natural products may be patentable if provided in a new combination that shows a synergistic effect. In each of these cases, the invention relates to a natural product that previously existed in nature but may be patentable due to a new technical aspect of its isolation, form or use. For this reason, such patents should not, strictly speaking, be considered "biopiracy", because the patent is granted to a new technical endeavour that goes beyond the naturally occurring product or traditional knowledge. However, in practice, there are complications.

A much different group of scholars is also likely to come to an anti-property conclusion. The skepticism of legal historians is based on lessons learned from the history of infamous English regimes that offered protection for existing knowledge. Queen Elizabeth and King James I raised funds and rewarded successful courtiers by granting rights in existing products and knowledge, including monopolies on saltpeter, alum, ovens and furnaces, window glass, ale, the mining of various metals and ores, sulfur, rapeseed oil, and salt.23 The oppressive nature of those monopolies was known to the framers of the Constitution and inspired the restrictive language of the Intellectual Property Clause: "The Congress shall have the Power ... To 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. '24 By predicating protection on the promotion of "Science," the framers were evidently worried about granting to Congress the same rights that had been abused by the English Crown. With an important exception for new inventions, Parliament ended the era of "odious" monopolies.2 5 The language of the Constitution borrows the same approach, authorizing Congress to grant exclusive property rights only under an incentive theory.26

There are, of course, alternative ways to read English history and to read the Constitution. The point here is that the history of intellectual property law in the United States and England has become a powerful tool for arguing against the creation of new rights.27 Unfortunately for LTOC Advocates, their claim falls squarely within the core of the historical objection. They demand that rights be granted in plant genetic resources and knowledge that already exist. As the Court has remarked, "Congress may not authorize the issuance of patents whose effects are to remove existent knowledge from the public domain, or to restrict free access to material already available. Innovation, advancement, and things which add to the sum of useful knowledge are inherent requisites in a patent system .... "28 Attitudes, hardened by history and endorsed by the Supreme Court, make property rights rhetoric unpromising, at least in the United States.

Classical economists justify protection for public goods 19 (like plant genetic resources) primarily on the basis of an incentive theory.20 The incentive rationale assumes that, in the absence of protection, society may see insufficient creative activity. Therefore, authors and inventors need the lure of a limited monopoly in order to produce valuable new creations. One can understand why most economists are not interested in arguing for new property rights for long-term occupant communities. A theory aimed at providing incentives for new creations does a poor job of justifying protection for existing knowledge. Long-term occupant communities do not argue that they need incentives to invent. The knowledge they have, and the plant genetic resources they cultivate, already exist.

Other, non-incentive-based, economic arguments are similarly unavailing. Although assigning property rights (especially in land) is desirable to clarify issues of ownership in order to facilitate market exchanges, unimproved plants and plant knowledge are not analogous to land. Under the present legal regime, investors do not have to worry about competing claims to existing knowledge. Ownership in unimproved plant genetic resources does not have to be clarified for exploitation to occur. To illustrate, consider that an oil company wanting to drill for oil will not make the investment to do so until it has secured the proper legal rights in the land it wants to exploit. A pharmaceutical company has no parallel concerns about ownership of an existing strain of germ plasm it had discovered in the rain forest. As illustrated in the two hypotheticals, those who want to exploit plant genetic resources currently do so freely, without the need to compensate anyone. In addition, given the diffuse nature of knowledge held by long-term occupant communities and the difficulty of identifying owners and assigning rights within or between groups, an attempt to clarify rights might result in only marginally decreased uncertainty.21 Economic arguments based on clarity do not promise to take LTOC Advocates very far.

But while most former colonies gradually gained their independence, biopiracy is still widespread today. Researchers and major multinationals in richer nations often hijack the natural resources of poorer nations and claim intellectual property rights for their own profit. These include firms specializing in lucrative industries like biotech, agriculture, chemicals or pharmaceuticals — the latter alone was worth an estimated $1.42 trillion (€1.35 trillion) in 2021.

Though some protections have been in place for decades — including a World Trade Organization agreement that covers intellectual property rights for varieties of plants and animals — they haven't always been effective.9

Systematic approaches to data cleaning and quality assessment will also be crucial for understanding the uncertainties and biases in occurrence data before they are applied in research, although there is no one-size-fits-all solution to data cleaning (Zizka et al., 2020). Other sources of valuable biodiversity data, many of which are housed in natural history collections waiting to be identified, should be made available in digital format and this effort should be supported sufficiently by funders (Sousa-Baena et al., 2014). Furthermore, with more emphasis on integrating local and Indigenous knowledge with western science particularly under GBF Target 3, there is an opportunity to engage and train Indigenous communities to empower their skills in collecting species occurrence information, especially in poorly sampled regions (Fauzi et al., 2016). Lastly, a commitment to data sharing should be encouraged, supported and sufficiently funded at regional and national levels to help improve the quality and coverage of digitised biodiversity data, which would greatly benefit future ecological studies, conservation planning and monitoring progress towards global biodiversity conservation targets

The Artemisia case does, however, indicate that scientific and traditional innovation systems can interact in mutually beneficial ways. What is important is that the terms of the exchange between different parties is ‘fair and equitable’. Indeed, there are more cases emerging wherein researchers or companies have successfully established mutually beneficial arrangements with indigenous communities (for example, the commercial use of Argan oil for cosmetics by Cognis and L’Oreal).35 However, what is frustrating about the cases described in this chapter (and in many other biopiracy cases) is that the ‘traditional’ contribution to the innovation is poorly recognised at best (as in the kwao krua case) and completely ignored in others. If we stopped thinking of the indigenous peoples’ contributions as ‘traditional knowledge’ and formally recognised ‘indigenous innovation’, we may well find some patents and plant variety certificates are never actually granted because of their lack of novelty. We may find that inventiveness and obviousness are perceived differently if patent examiners are able to peer through the guise of ‘technical’ language to see that the wheel is being continually re-invented.

[46] Indigenous communities deserve the right to control and profit from the resources in their territories. Biopiracy is an issue that impacts indigenous communities financially, environmentally, and culturally. While international treaties on biodiversity focus on consent and compensation,221 achieving these objectives is up to individual countries. Individual countries must take charge and protect indigenous communities so that their biological resources and TK are not misappropriated. [47] Curbing biopiracy will likely include the combination of laws and innovative technologies. First, I recommend that countries in both the Global South and North create national laws that adhere to the CBD and Nagoya Protocol.