Patent Eligibility Neg - Michigan 2024 STARTER

Case
Competitiveness advantage answers
1nc – tech leadership high
China isn’t threatening US emerging tech leadership
James Andrew Lewis, 2024 - Senior Vice President; Pritzker Chair; and Director, Strategic Technologies Program at the Center for Strategic and International Studies “America is Losing the Shoe Race With China” 4/1, https://www.csis.org/blogs/working-papers/america-losing-shoe-race-china //DH
A better question might be who cares. The number of shoes is not a good indicator of national power. In fact, no single technology is a good indicator of national power. The U.S. economy is vast, decentralized, continental in size, and is guided by actively competitive markets. It has been exceptionally innovative for decades. Leading in a single technology (like railroads in the 19th century or semiconductors today) reflects a common analytical error that misjudges how economies and technology actually create national power. The concept of a “race” itself is a questionable legacy of Cold War thinking – the Cold War had a finish line (identified by Eisenhower and Dulles at the onset), while the current situation does not.
Stories about the United States falling behind are so predictable that they form a literary genre. In 1957, the President’s Science Advisor predicted that Soviet performance in math and science education would give it global leadership in a decade. In 1969, the Departments of Treasury, Commerce and Agriculture warned President Nixon that a powerful new economic entity, the European Union, would displace the United States. Starting the 1980s, assorted pundits announced that Japan would dominate the global economy. And until recently, there were routine predictions that China would displace the United States, predictions that still make regular appearances.
These predictions have two things in common. First, they were wrong. Second, they were wrong because they counted the wrong things. They did not place their analyses in the context of larger national economies. Instead, they relied on picking illustrative metrics, usually proxy indicators that provide an indirect measurement of technological success. One recurring problem is the tendency to measure inputs rather than outcomes. A politician may have great staff and spend more on an election, but the ultimate metric is how many votes are received. Claims that the Unites States is falling behind China in 5G because China has deployed more base stations or has more 5G enabled phones reflects a similar confusion over metrics. It is not the number of base stations that is important, it is the ability to use 5G to create new goods and services (or be more efficient in the use of existing goods and services) that is important, and this is best measured by the monetization of new 5G enabled services and products and their revenue.
A report that announces that China leads in 37 technologies out of 44 technologies does not explain why the United States is the center for development of artificial intelligence, quantum technology, and biotechnology. China did not develop successful COVID vaccines, lags in quantum, and there are anecdotes that China’s leaders asked the author of a best-selling 2018 book on China’s coming dominance of artificial intelligence why, if that was the case, were GPT technologies developed first in the United States? Of the 37 technologies listed, China’s alleged lead is open to question in 23. Does China really lead in cybersecurity, as the Report asserts? The digital economy depends on cloud computing, next generation networks (like 5G and 6G), and software (like AI products) and these are technologies where the United States has a strong if not dominant position.
2nc – tech leadership high
Patents are a bad metric for tech leadership – other factors matter more
James Andrew Lewis, 2024 - Senior Vice President; Pritzker Chair; and Director, Strategic Technologies Program at the Center for Strategic and International Studies “America is Losing the Shoe Race With China” 4/1, https://www.csis.org/blogs/working-papers/america-losing-shoe-race-china //DH
There is no easy way to directly measure innovation, so there can be a tendency to use proxies like number patent issued, amount spent on R&D, number of PhDs and publications. It seems reasonable to assume that more R&D spending, more publications, and more patents correlate with more innovation and one of their attractions is that they are easier to count, but by themselves they do not explain strength in technological innovation. Until the last few years, the United States lagged in investment in basic research (the foundation of innovation) and in the infrastructure to support innovation. Yet it has over eighty years outperformed other economies when the measures are the creation of valuable new technologies and national income. The strength of the U.S. “innovation machine” lies somewhere else.
The discussion of technology and innovation relies on indirect proxy measurements, like the number of patents. Patents are a metric that must be used carefully. The assertion that “when a measure becomes a target, it ceases to be a good measure” is particularly true for China’s centrally directed economy, where people perform to meet measures set by Beijing, leading to situation where researchers are rewarded for the number of patents issued (or number of publications) even if no one uses those patents.
Many quantitative measures may not actually measure technological leadership as it relates to national power. Specific metrics such as the percentage of national income spent on R&D or the number of patents issued, are inadequate by themselves to predict technological leadership. It is the ability to use technology for commercial and military purposes that is essential. Looking at the U.S. economy, it is investment in R&D, access to skilled labor, supportive business and intellectual property laws, a dynamic financial system, and an entrepreneurial business culture that explains its overall strength compared to other economies.
Chinese innovation is declining
James Andrew Lewis, 2024 - Senior Vice President; Pritzker Chair; and Director, Strategic Technologies Program at the Center for Strategic and International Studies “America is Losing the Shoe Race With China” 4/1, https://www.csis.org/blogs/working-papers/america-losing-shoe-race-china //DH
China is good at manufacturing what others have invented but no longer so good at innovation itself. This is the result of political change. China was becoming a leading innovator when it was politically open, before 2012. It still has advantages, but now that it is becoming politically closed, idea creation has slowed, entrepreneurs, investors and researchers are leaving, foreign investment is in decline (because of a perception of increased political risk), and geopolitics frays connections to global research and tech. Under different political leadership, China would be a much more formidable competitor, but China made a political decision that values continued party control over innovation and its ability to innovate is at risk.
Similarly, the EU spends significantly on R&D and has excellent research facilities, but its regulations are a powerful disincentive to entrepreneurship and commercialization. Europe’s major economies have shown flat income growth for more than a decade. It is not positioning itself to compete in a digital economy, since this requires a willingness to accept risk and allow entrepreneurship. Europe values privacy over innovation.
Entrepreneurship and commercialization are better predictors of tech advantage, and the US leads in both
James Andrew Lewis, 2024 - Senior Vice President; Pritzker Chair; and Director, Strategic Technologies Program at the Center for Strategic and International Studies “America is Losing the Shoe Race With China” 4/1, https://www.csis.org/blogs/working-papers/america-losing-shoe-race-china //DH
These issues are not binary – an outcome where China makes all the shoes, and the United States makes none. We would need to consider both the number of shoes produced and their quality and type, and then ask how shoes contribute to wealth, power, and military strength and whether there are alternative technologies that can substitute for them (since under duress, nations are inventive). Answering these questions requires a broader view than that taken in many reports that looks at the overall economy and its technological base. The best predictors remain overall national revenue and tech market share.
The keys to technological leadership are at the most fundamental level, access to capital and to ideas (both the ability to create new ideas and to use them). Better measures of success include market share (meaning someone actually buys what you are making), the number of startups (particularly ‘unicorns’), revenue, and the long-term trend in national income. These revolve around the central importance of the ability to commercialize research and innovation. This is an area – entrepreneurship - where the United States has had an advantage over Europe and China, both of which score well on proxy innovation metrics but less well for outcomes. The biggest risks to the U.S. innovation system are political dysfunction and regulatory ideologues. These are domestic problems, not the result of international competition, but is easier to fault China than in the mirror.
1nc – no impact to tech leadership
Tech leadership is irrelevant to military power
James Andrew Lewis, 2024 - Senior Vice President; Pritzker Chair; and Director, Strategic Technologies Program at the Center for Strategic and International Studies “America is Losing the Shoe Race With China” 4/1, https://www.csis.org/blogs/working-papers/america-losing-shoe-race-china //DH
Nor does technological “leadership” guarantee military advantage. Other factors determine military success, the most important being political will, leadership, and strategy. An opponent that has an advantage in these areas will be able to resist and thwart a more technologically advanced opponent (the Taliban, for example). Advanced technology in the service of flawed strategy will not change outcomes. There is an assumption that technology provides an advantage and, in a contest, where other factors are equal, technological leadership can be critical, but in most situations this technological advantage is only one factor among many in determining effectiveness. Specific quantitative measures may not actually measure what we want to assess. It may be better to ask what nations want (wealth, international influence, military power) to determine the contribution of a basket of technologies.
1nc – no patent offshoring
Competitors don’t patent more than the US – their data is cooked
Alex Moss, 24 - the executive director of the Public Interest Patent Law Institute, previously at the Electronic Frontier Foundation and a patent litigator at Sullivan & Cromwell. Letter to Senators Durbin, Coons, Tillis, and Representatives Issa and Lofgren on the Patent Eligibility Restoration Act of 2023, signed by American Civil Liberties Union, Electronic Frontier Foundation, Generation Patient, Public Citizen, Public Interest Patent Law Institute, and the R Street Institute. 1/30, https://static1.squarespace.com/static/60e5457fb89be21d705fa914/t/65b9687cbb120871dd820938/1706649724600/Public+Interest+Letter+re+PERA+-+01.30.24.pdf //DH
• Patent eligibility law does not systematically result in the rejection of patent applications in the U.S. that are granted in Europe and China.
A 2017 essay by Kevin Madigan and Adam Mossoff,34 which purported to report study results supporting this claim has been resoundingly debunked.
According to a detailed study of a random sample of Madigan and Mossoff’s data that was conducted by Abby Rives, nearly a quarter—24%—of the applications in their dataset had never received even a single eligibility-related rejection.35 Another 61% had pending rejections under Sections 102, 103, or 112 at the time they were abandoned, making it inappropriate to attribute the abandonment solely to a rejection under Section 101.36 Stunningly, only 15% of the applications identified by Madigan and Mossoff had received a sole eligibility-related rejection when they were abandoned.37 Of those, almost a quarter (22%) are the basis for still-pending applications to the same invention disclosed in the abandoned application.38 This means that, in many of these cases, the underlying applications were not rejected, and patents may well issue from those that remain pending.
2nc – no patent offshoring
There’s no patenting advantage to relocate overseas
David Jones, 2024 – executive director of the High Tech Inventors Alliance. Questions for the Record from Senator Thom Tillis , Hearing on “The Patent Eligibility Restoration Act – Restoring Clarity, Certainty, and Predictability to the U.S. Patent System” 1/24, https://www.judiciary.senate.gov/imo/media/doc/2024-01-23_-_qfr_responses_-_jones.pdf
4. One of the key concerns from innovators is that, absent additional clarity in this space, we’re going to start seeing American companies start developing their inventions overseas in jurisdictions which have broader standards of patent eligibility. Do you agree with that concern and, if you do, what evidence have you seen to suggest that technological inversion is already occurring?
The TRIPS agreement requires that all signatories treat foreign inventors and patent owners exactly the same as domestic ones. This means that an American company would gain absolutely no legal advantage from moving its development activities to another country because it would be treated no differently by the U.S. or any of the other 163 signatories. So, to the extent that this could theoretically be a problem, there would have to be a concern that American companies were moving development to one of the very small number of nonsignatory countries, which is simply not the case.
1nc – no uncertainty
The Alice/Mayo framework is certain and predictable
Nikola L. Datzov, 23 – Assistant Professor of Law, University of North Dakota School of Law. “THE ROLE OF PATENT (IN)ELIGIBILITY IN PROMOTING ARTIFICIAL INTELLIGENCE INNOVATION” 92 UMKC L. Rev. 1 *, Nexis Uni, accessed via University of Michigan //DH
As the Supreme Court is the only court that can overturn its precedent, absent intervention from Congress, the Alice framework will continue to govern the analysis of whether an invention is patent eligible. However, lower courts led by the Federal Circuit have and will continue to refine the boundaries and application of the Alice framework. The USPTO also has taken steps to provide clarity in this area of law by promulgating iterative guidance to those seeking a patent, including example AI claims that are patent eligible.84 Importantly, such guidance while helpful to practitioners and examiners comes with an important disclaimer, as it is not "the law of patent eligibility, does not carry the force of law, and is not binding on" the courts.85
Despite the criticisms, and the need for further clarity regarding the application of the Alice framework, some evidence suggests that the law is much more predictably applied now86 (and perhaps always has been),87 including with regard to AI patents.
Indeed, a co-author and I's empirical examination of all post-Mayo Federal Circuit decisions on § 101 found that the lower tribunal correctly decided the eligibility issue nearly 90% of the time.88 Additionally, perhaps somewhat surprisingly, the affirmance rate on § 101 decisions has remained incredibly [*14] consistent since 2014 never falling below 81%.89 Moreover, looking more closely to determine whether lower tribunals were reaching the correct outcome but still misapplying the law, the Federal Circuit noted an error in the lower court's analysis in a very small percentage of decisions in which the overall result was correctly decided.90 Thus, it appears that the district courts and USPTO are not only reaching the correct outcomes in nearly all cases, they are also applying the law correctly.
Uncertainty doesn’t impact investment
Nikola L. Datzov, 23 – Assistant Professor of Law, University of North Dakota School of Law. “THE ROLE OF PATENT (IN)ELIGIBILITY IN PROMOTING ARTIFICIAL INTELLIGENCE INNOVATION” 92 UMKC L. Rev. 1 *, Nexis Uni, accessed via University of Michigan //DH
One of the concerns frequently raised with regard to a narrower scope of patent protection for AI as with any software is that investors will be hesitant to provide capital without powerful monopoly rights to exclude others from practicing the inventions, particularly with regard to larger companies that can rely on their market dominance for competition.263 Although there is no shortage of theoretical arguments and opinions on Alice's impact on investment, as Professor David Taylor remarked in his recent study of the issue, "[e]xisting literature provides surprisingly little data even to begin to answer [the question]."264 Generally, the argument is fundamentally sound and well-founded: the less power a company has to exclude others from the marketplace, the less attractive the company is for investment, since any other market player can swoop in to overtake their place. Existing empirical evidence also supports this proposition, generally, at least with regard to some industries.265 However, factors other than patent protection often play a key role, and thus, details very quickly complicate the analysis.
Although Professor Taylor's study found "negative impact of the Supreme Court's eligibility cases generally on investment," it also found that "most investors do not report changing their investment decision making based upon the Supreme Court's eligibility decisions," though a significant portion of those investors were also not informed about the relevant decisions.266 One additional key finding from the study was that "[t]he availability of patents... was not the most important consideration to the investors."267 Instead, "[t]he quality of a target [*47] company's people ranked as most important, followed by the quality of the company's technology and the size of the potential market for the technology."268 Only 6% of respondents identified the availability of patents as the first or second most important factor in deciding whether to invest.269 Additionally, Professor Taylor's second key finding was that "reduced patent eligibility correlates with particular investment behaviors in particular industries."270 As one example, in contrast to biotechnology, "[i]nvestors overwhelmingly indicated... that the elimination of patents would either not impact their firms' decisions whether to invest in companies or only slightly decrease investments in companies developing technology in... software and Internet (80%)."271 In light of Professor Taylor's important findings, perhaps it is not surprising that other evidence also shows that investment and private equity funding for AI, in particular, has continued to increase substantially, notwithstanding the concerns over the patentability of software and AI raised by Alice.272 More so, some evidence shows that when AI startups are acquired there appears to be little focus on their existing patent portfolio,273 suggesting that a lack of patent protection in the AI space, at least at this time, is not as detrimental as might be the case in other industries. Further empirical research in the context of AI companies is necessary.
2nc – no uncertainty
Alice has almost no effect on patent litigation – they are overwhelmingly approved
Nikola L. Datzov, 23 – Assistant Professor of Law, University of North Dakota School of Law. “THE ROLE OF PATENT (IN)ELIGIBILITY IN PROMOTING ARTIFICIAL INTELLIGENCE INNOVATION” 92 UMKC L. Rev. 1 *, Nexis Uni, accessed via University of Michigan //DH
1. AI Patent Litigation
As already explained, even t

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