From cancer therapies to clean energy breakthroughs, the fruits of American innovation are transforming lives. But around the world, our strategic competitors are chipping away at the very framework that makes this possible -- intellectual property (IP) rights. And in recent years, the U.S. government hasn't been fighting back.
It's time for a change.
This month, the Office of the United States Trade Representative (USTR) owes Congress an annual report on the global state of IP rights. Congress should utilize its oversight powers to ensure that the USTR delivers a strong defense of American innovation by, among other things, calling out countries that refuse to fairly protect IP.
Congress requires the USTR to produce the "Special 301 Report" to identify foreign governments that fail to protect intellectual property or unfairly block U.S. companies from their markets. When done right, the report is a powerful diplomatic tool. It shines a light on inequitable practices, and it empowers American officials to identify and negotiate appropriate reforms.
But in recent years, USTR officials have watered down their support for global IP rights by occasionally turning a blind eye to significant abuses.
Two troubling trends deserve reconsideration.
First, the report should champion America's historical opposition to compulsory licensing, by which foreign governments override valid patent protections and force U.S. companies to hand over valuable technology, almost always at below-market rates. Compulsory licensing was once considered a last resort for public health emergencies, but it is now increasingly used as a political tool for economic advantage. Instead of denouncing this practice, the USTR has recently offered only tepid opposition, stating that the United States should "respect" other countries' rights to grant such licenses. Such permissive language encourages behavior that leads to negative outcomes all around.
This is a dramatic departure from the 2020 report, which warned that compulsory licensing "can undermine a patent holder's IP, [and] reduce incentives to invest in research and development for new treatments and cures." That warning was prescient. In 2023, Colombia issued a compulsory license for an antiretroviral drug developed by a consortium of companies -- a move based on questionable legal grounds. Colombian officials signaled that more compulsory licenses were coming.
This erosion of IP rights will hinder further improvements in many technological fields, but especially in healthcare. The path from lab to market for pharmaceuticals is particularly risky, lengthy, and expensive. Tear down the IP system, and you tear away the incentive to invent the next cancer therapy or a cure for Alzheimer's.
Second, the USTR should address the growing use of discriminatory patent eligibility requirements by countries like Argentina and India. These requirements are used to deny patent protection for, among other things, new uses or new forms of existing treatments. The practice violates widely accepted practices and obligations under the WTO TRIPS Agreement. Most importantly, it prevents the development of innovations that extend and improve lives.
Without strong enforcement, these discriminatory practices will spread. They already harm U.S. companies that rely on the promise of global markets to justify billions in investment. If unchecked, they'll undermine America's position as the world's innovation engine.
The stakes aren't abstract. IP-intensive industries account for 44% of the U.S. GDP and support 63 million American jobs. American leadership in clean tech, software, life sciences, and advanced manufacturing depends on a fair and transparent global IP system -- one that respects ownership, rewards risk, and deters theft.
When the U.S. fails to defend such a global IP regime, bad actors are emboldened, and innovators are deprived of a fair return on investment. As the global leader in innovation, we must remain diligent in cultivating and monitoring international respect for intellectual assets that have the potential to make all lives better.
We encourage Congress to ensure that the Special 301 Report fulfills its mandate: identify IP practices that violate treaties or international norms; and reaffirm U.S. opposition to prejudicial practices that harm innovators. In so doing, the USTR would restore confidence in America's technological leadership.
Innovation thrives amidst robust and reliable IP protection -- but it withers when that protection is eroded. America can't afford to let that happen -- here or anywhere else.
Patrick Kilbride is a policy fellow at the Center for American Principles. Brian O'Shaughnessy is chair of the IP Transactions and Licensing Group of Dinsmore & Shohl, LLP, and the Bayh Dole Coalition Board of Directors, contributed to this article.
