International free-riders become inevitable.

Lastly, as an additional criticism of the Supreme Court’s two-part test, many members of the public raised questions regarding the relationship between the Supreme Court test and international norms.305 Some pointed to U.S. obligations under Article 27 of the TRIPS Agreement, which requires that patents be “available for any inventions, whether products or processes, in all fields of technology.”306

Several commenters were also concerned with having a patent eligibility standard in the United States they see as inconsistent with that of other countries. 307 They observed that the scope of eligible subject matter in the United States is narrower than that of foreign jurisdictions, such as Europe and China, which especially impacts software and biological innovations. 308 In fact, several commentators noted that many biopharmaceutical inventions that are patent eligible in other industrialized countries are not eligible for protection in the United States.309 According to a trade association, having inconsistent standards internationally could place the United States at an economic disadvantage if the patent system failed to adequately stimulate future research and development.310 One commentator warned that foreign companies may have an economic advantage in the global marketplace because they will enjoy a “free ride” in the United States.311

Representatives from the life sciences industry stressed the importance of worldwide patent protection for the successful commercialization of pharmaceutical therapies.312 One commenter asserted that there is little incentive to invest in a market that does not provide adequate patent protection, and that trade secret protection is not a viable option internationally due to the disclosure requirements in other countries. 313