DA - Innovation - JDI 2024

DA---Innovation---JDI 2024
Overview
This disadvantage argues that patents are harmful to innovation---specifically, that innovations in green technology are coming now, but due to the plan’s strengthening of IP protection, those innovations are disincentivized and slowed down, which leaves them insufficient to solve existential climate change.
A few thoughts on the DA that can guide future research:
---There’s not a ton of uniqueness cards---I think the NEG is generally on the side of truth, in that innovation has been increasing under Biden, but (as the cards in this set point out) recent changes in relations with China could change that, though the NEG could potentially sidestep that question by insisting that unilateral US innovation is key. I think it could be strategic for the AFF to instead grant that innovation is increasing now, but that the trend attests to the stronger incentives and IP protections Biden has granted to green energy (i.e., the ‘Thumper---Trump’ section)---I think the AFF’s best angle against this DA, generally, is to win that patents actually improve innovation, and this spin lends itself better to that argument. Either AFF angle seems fine.
---The hardest part of this DA, for the NEG, is the link debate. There’s plenty of great literature about why patents are bad for innovation---what’s hard is that the AFF only increases patents in specific circumstances for a single industry, so you don’t get easy access to those links. I have a couple different link stories started in this file---the one I chose for the 1NC is the most casually complete (patent law applies to all tech now, but Hatch-Waxman excludes non-pharmaceuticals, which opens the door to industry-by-industry lobbying, and lobbying in the green tech industry promotes patent protections for dirty technologies, and abuse of those patent protections stifles green innovation), but there are simpler ones (tradeoff, spillover, or any of the three link cards in the current 1NC shell in isolation) that might have potential if looked into more. I just think, in their current state, substituting any of the other links would require a bit of creative explanation to complete the narrative of the DA. As a more Wave 2 directed note, I think the amount of ground lost from AFFs that defend specific industries, and not patenting broadly, could be a potential T argument---the international TRIPS agreement mandates patents cannot discriminate based on type of technology, which could be a good starting point for definitions and ground arguments.
---I think a lot of cards in this file have warrants that could deployed in creative ways I didn’t think of---I’m always a proponent of really familiarizing yourself with the warrants of each card, and using those---don’t get too caught up in the headings!
----navigating file tips (note all of these terms will be discussed in the disad lecture)
U = uniqueness
L = link
IL = internal link
! = impact
----when extending the disadvantage in the negative block (2nd negative constructive and 1st negative rebuttal) when negative and when you are answering the disad in the 1ar (first aff rebuttal), you will want to extend and explain your argument from your previous speech (rather than just reading new evidence)
NEG
1NCs
1NC
Green tech is coming now---recent investments incentivize innovation.
Sattler 6/4, independent columnist and former editor at Broad + Liberty. (Leslie, 6-4-24, “Biden administration invests over $70M in US solar factories: ‘Boosts innovation, drives down costs for families, and delivers jobs across the nation’”, The CoolDown, https://www.thecooldown.com/green-business/solar-investment-biden-administration-manufacturing/)
The White House just supercharged America's solar future with a game-changing $71 million investment.
This cash infusion will create jobs, slash energy costs, and help build a cleaner future for all, according to Clean Technica.
On Monday, the Department of Energy announced this major funding boost to grow the nation's solar manufacturing muscle from coast to coast. The money, which includes $16 million from the Bipartisan Infrastructure Law, will go toward filling in critical gaps in the domestic solar supply chain.
The investment will strengthen U.S. production of key solar components like silicon wafers and cells that convert sunlight to electricity. It will also fuel research into exciting innovations like solar panels built right into our buildings and solar-powered farms.
All of this will help make solar energy, already the cheapest electricity source, even more affordable and accessible for millions of Americans.
In short, this puts money back in your pocket while helping to protect the one planet we've got. Manufacturing more solar parts here at home will create good-paying jobs, drive down energy bills, and cut the carbon pollution overheating our world. You'll be able to tap into cleaner, cheaper power while knowing you're part of the solution.
The Biden-Harris Administration understands that fighting atmospheric pollution means investing in American workers and innovations. And they're putting our tax dollars where their mouth is. This $71 million down payment is just part of their broader push to achieve a 100% clean electricity grid by 2035 and a net-zero economy by 2050.
By boosting solar energy, the cheapest and fastest-growing power source, the Administration is working to benefit the communities that need it most. Their Justice40 initiative aims to deliver 40% of the gains from climate and clean energy investments to underserved areas burdened by pollution. It's about making sure the sun shines brightly for everyone.
"The Biden-Harris Administration is committed to building an American-made solar supply chain that boosts innovation, drives down costs for families, and delivers jobs across the nation," said U.S. secretary of energy Jennifer M. Granholm.
"Thanks to historic funding and actions from the President's clean energy agenda, we're able to deploy more solar power — the cheapest form of energy — to millions more Americans with panels stamped 'made in the U.S.A.'"
So while $71 million may sound like a lot, it's really a small price to pay for a healthier planet, a thriving economy, and more cash in our pockets.
But, Hatch-Waxman discriminates industries in favor of pharmaceuticals---that opens the door to industry-specific lobbying.
Schellhorn 19, law student at University of Virginia. (Maximillian, Spring 2019, “The Promise and Peril of Industry-Specific Patent Law”, Viriginia Journal of Law & Technology, 22(5), https://heinonline.org/HOL/Page?handle=hein.journals/vjolt22&div=8&g_sent=1&casa_token=mg6xBZPSOVsAAAAA:TuSpKRv-cisCQJuaJYl9Chq_rNzIiISQ5eJpCygCT9HzVy_aRNCeZtlon5_vMzZSqz8VwLyB2Q&collection=journals)
According to § 156(a) of the Patent Act, "the term of a patent which claims a product, a method of using a product, or a method of manufacturing a product shall be extended" if the other requirements of the section are met. The term 'product' is defined in that section to comprise "drug product(s)" and "any medical device, food additive, or color additive subject to regulation under the Federal Food, Drug, and Cosmetic Act (FFDCA)." Drug products include new drugs, antibiotic drugs, and human biological products, as those terms are used in the FFDCA and the Public Health Service Act, and new animal drugs and veterinary biological products, as those terms are used in the FFDCA and the Virus-Serum-Toxin Act.49
Consequently, the statutory framework limits the availability of a patent term extension to a narrow field of products. By its narrow definition of the term 'product', the statute forecloses other products subject to pre-market approval from being eligible for extension of the patent term under § 156 of the Patent Act. A patent term extension for inventions in the pesticide industry can therefore not be issued under that section.
The examination of the USPTO's Manual of Patent Examining Procedure, which devotes chapters 2750-2764 to the extension of the patent term, buttresses the fact that pesticides are not considered to fall within the scope of § 156 of the Patent Act.5 0 Paragraph II of chapter 2751 of the manual outlines the meaning of the word "product" as defined in 156(f) of the Patent Act. The remarks are silent with respect to pesticides or products approved by the EPA. A thorough search of secondary sources and case law did not reveal any means for extending patents on pesticides subject to EPA approval. Therefore, at this point, it appears that patents in the pesticide industry are not eligible for patent term extension in the United States. 51
Medical devices, drugs, and pesticides are all subject to premarket approval by regulatory agencies. The approval process can effectively shorten the time the patentee will have to recoup his or her investments. For the pharmaceutical and the medical device industries, Congress has addressed this problem in §156 of the Patent Act. The pesticide industry does not enjoy a comparable restoration of the time lost during the approval process by the EPA.
This finding raises the question of whether denying a patent term extension for pesticide patents is reconcilable with the TRIPs Agreement. It seems worth highlighting that at the time the patent term extension provision was enacted, the prohibition against discrimination as to the field of technology stipulated in the TRIPs Agreement had not yet been adopted. The Agreement came only into force more than a decade later, in 1995. During the Uruguay Round negotiations the issue of patent term extensions for products requiring pre-marketing approval was discussed, yet not incorporated into the Agreement. 52 , Despite the long-standing tradition of industry and technology neutrality of patent law, at the time Congress passed the Hatch-Waxman Act it was not coerced to craft non-discriminatory rules, but, if anything, bound by tradition. 53 However, the laws of the game have changed: if a country now decides to provide restoration for some technologies subject to premarket approval but not for others, this raises the issue of compliance with the prohibition of discrimination with regard to the field of technology in the TRIPs Agreement. 54
Discrimination can generally be found where there is an unjustified imposition of differentially disadvantageous treatment.5 5 However, differential treatment does not always result in a finding of discrimination. For instance, it may aim to offset recognized differences. 5 6 Instead, Article 27 allows "bona fide exceptions to deal with problems that may exist only in certain product areas." 57
Unlike pharmaceuticals and medical devices, patented products in the pesticide industry do not enjoy the possibility of a patent term extension. Therefore, pesticide patents are treated less favorably. The similarities between the industries are readily discernible. Products in all three industries are subject to lengthy approval processes that reduce the time for recoupment of investments. The former congressional Office of Technology Assessment published a report on the patent term extension in 1981.58 The report focuses on patent term extension for patents in the pharmaceutical industry, but also discusses in its appendix potential extensions in the medical device, pesticide, and chemical industries. It concluded that the pesticide and pharmaceutical industries are "subject to similar regulations."5 9
Looking for potential justifications for unequal treatment, the legislative history of the Hatch-Waxman Act remains mostly unrevealing. In 1980, Representative Robert W. Kastenmeier and Senator Birch E. Bayh proposed bills to introduce a patent term extension that would cover human drugs; animal drugs; food additives; human or veterinary biological products; pesticides; chemical substances or mixtures; and medical devices. 60 However, upon referral to Senate Judiciary Committee and the House Committee on the Judiciary, the possibility of patent term extension for pesticides was not pursued.61 In the following years, further bills for patent term extensions were introduced that also covered pesticides and chemical substances. 62 The congressional materials and hearings that led to the enactment of the Hatch-Waxman Act are not instructive as to why pesticides were not included in the final bill.63 However, the 1981 report by the former Office of Technology assesses three aspects potentially prompting the lawmakers' decision not to expand the patent term extension to pesticides: 1) a high innovation rate despite the increasing costs and time associated with the approval process; 2) the increasing amounts flowing into R&D; and 3) the risk of double rewards for patentees. 64
In 1972, the FIFRA was amended and now requires that companies submit a demonstration of human safety, which has resulted in an increasingly resource-intensive approval process for pesticides. Nevertheless, the report found a continuing increase in innovations from 1967-79, and concluded: "The measures of innovation available in the pesticide industry indicate innovation has, thus far, been virtually unaffected by the increased costs and times required for regulatory approval."65 This suggests that the Office thought there might be no need for a patent term extension. The assertion of uncertainties as to whether research and development (R&D) expenditures would be positively affected if there was a patent term extension for pesticides, points in the same direction. 66 Finally, the federal government is recognized to play an important role in the R&D of pesticides. According to the report, the involvement of the government could lead to a double reward of patentees, where public research funds result in privately-owned patents. 67
Comparing the evaluation of the Office of Technology Assessment, regarding the pesticide industry to the pharmaceutical industry, indicates disparate needs between the two industries. In particular, their innovation trends deserve closer consideration. Unlike in the pesticide industry, the innovation rate in the pharmaceutical industry had shown a less positive trend in the decades prior to the enactment of the Hatch Waxman Act. The report concluded: "[I]nterpretations of trends of innovation depend on the measures used at the time period being measured, but, by most measures, innovation does not appear to be increasing." 68 Due to the tenuous information available on why pesticides were not included in the bill that led to the Hatch-Waxman Act, it will be assumed that the unequal innovation trends were at least one critical factor.69 Allowing different treatment based on innovation data is perilous. All too easily, the gates would be opened for disparate treatment of patents from different fields of technology. The process of innovation is complex and predicting innovation rates is often not more than a shot in the dark. Innovation data is influenced by a myriad of factors-many of them stemming from outside the specific industry sector, like the global economy and user demand. Further, the process of innovation is diverse. 70 Innovation in different industries varies in terms of the pace of innovation, actors involved and degree of change. If differences in innovation pace were sufficient to overcome the prohibition of discrimination against certain field of technology the prohibition itself would become an empty phrase. The disadvantageous treatment of pesticide patents raises serious doubts about the United States' compliance with respect to the discrimination prohibition articulated in Article 27(1) of the TRIPs Agreement.
The implications of this finding are not limited to the pesticide industry. There are other industries subject to regulatory approval. One example is the aviation industry. The Code of Federal Regulations prescribes airworthiness approval by the Federal Aviation Agency (FAA) for certain products related to aircrafts. 71 In order to determine a violation of Article 27(1) TRIPs Agreement, the specifics of each of the approval processes have to be examined. For example, an argument might be made that if the approval process is more akin to a non-time-consuming registration process, there is a stronger case for not granting a patent term extension.72
This Article concluded above that the patent term extension for pharmaceuticals and medical devices is not a bounty for some industries and, in fact, a promising example of industry-specific patent law. This finding still stands, albeit only with some reservations. Denying the patent term extension to the pesticide industry is a manifestation of the perils of industry-specific law: similar industries are treated differently for weak reasons. Cynics might say it is not surprising that the pharmaceutical industry pushed their claim for a patent extension through, given it is represented by the strongest special-interest group in the country. 73 One can have his or her own opinion about the demonization of lobbying groups, but the fact remains that the Patent Act in its current form treats the pesticide industry discriminatorily compared to the pharmaceutical and medical device industries.
That lobbying enables patent holders to forestall green innovation.
Kwon et al. 23, *assistant professor of finance at Wayne State University. **professor of finance at Drexel University. ***researcher at London School of Economics. (*Sungjuong, **Michelle Lowry, ***Michela Verardo, 6-2023, “Firms’ Transition to Green: Innovation versus Lobbying”, European Corporate Governance Institute, https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4300352)
Over the last few decades, increasing attention to climate change has led companies to invest in green innovation, developing new technologies that enable a transition to cleaner modes of production and consumption. Green innovation offers new growth opportunities and competitive advantages, which firms protect through patents. However, these new opportunities are accompanied by new challenges: there is considerable uncertainty about the speed of transition to greener modes of operation. One key source of uncertainty relates to future regulation. In the face of such uncertainty, we examine how firms complement their innovation with efforts to influence the regulatory agenda through lobbying.
Lobbying decisions can be related to firms’ innovation activities in different ways. On the one hand, firms’ efforts to shape the competitive landscape and hedge uncertainty may take the form of lobbying for the new technologies they are developing. That is, firms engaging in green innovation may lobby to increase demand for their products and services. Such dynamics suggest that lobbying would expedite progress toward a greener future. However, lobbying may also have distortionary effects. Suppose green technologies are protected by patents held by firms that derive most of their current cash flows from brown activities. Such firms might employ lobbying to maintain the status quo, i.e., to protect their brown cash flows into the future. As stated by Zingales (2017): “Most firms are actively engaged in protecting their source of competitive advantage through a mixture of innovation, lobbying, or both. As long as most of the effort is along the first dimension, there is little to worry about. (…) What is more problematic is when a lot of effort is put into lobbying.”
To examine the interaction between innovation and lobbying, we construct a dataset that combines information on both the patenting and lobbying activities of public firms over the period 1999-2020. First, we obtain all patents granted to U.S. firms, and we determine whether each patent relates to green technologies and whether it relates to clean or dirty technologies, using the classifications of OECD and Dechezlepretre, Muckley, and Neelakantan (2020), respectively. Second, from the Senate Office of 

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