Court decisions weaken IPR protection, particularly eBay, Mayo/Alice, and Myriad.

What went wrong? In a nutshell, U.S. patent protections have greatly weakened in the new millennium. The primary culprits are federal judges, particularly the U.S. Supreme Court.

For example, in several high-profile cases involving human health, the high court shrank the pool of inventions eligible for patenting.

In one case known as Mayo Collective Services v. Prometheus Laboratories, the court held that many diagnostic tests and methods for optimizing drug dosage can’t be patented. Similarly, the Court’s decision in Association for Molecular Pathology v. Myriad Genetics, Inc. held that naturally-occurring gene sequences generally can’t be patented, even if they are characterized, isolated and replicated for use in cutting-edge gene therapies or diagnostics. Two other decisions, known as Bilski v. Kappos and Alice v. CLS Bank, shrank eligibility for ubiquitous computer-implemented technologies.

Another high court decision known as eBay Inc. v. MercExchange, L.L.C. made it harder for patent owners to stop patent thieves from manufacturing products that incorporate stolen IP. In many cases of proven patent infringement today, a monetary award, rather than injunctive relief, is the best patent owners can hope for.

These court rulings came out of the blue from justices who don’t fully understand how the patent system works in practice. The cumulative impact of these cases has driven incentives below the level venture capitalists and other investors can accept. That’s why innovation is lagging.

Meanwhile, as we have been taking actions that weaken patents, global rivals have been moving in the opposite direction. China, the European Union,, the UK, Japan, Korea and others have all revised their patent law, creating patent systems that are in many ways better than ours. There, eligibility is broader and clearer, and injunctions are routine, giving them competitive advantages over U.S. companies.