Q&A: Senator Tillis on the Vital Link Between Intellectual Property Protections & Innovation
With the 40th anniversary of the Bayh-Dole Act this year, BIO connected with Senator Thom Tillis (R-NC), Chairman of the Senate Subcommittee on Intellectual Property, for a discussion about the importance of intellectual property and innovation.
BIO: This year is the 40th anniversary of the Bayh-Dole Act. Do you believe the partnership between the federal government and the private sector to foster innovation has been successful?
Senator Tillis: The United States is the world leader in biomedical and life-science innovation thanks to the partnership between the federal government and private companies. Strong patent protections and the legal framework created by Bayh-Dole have enabled American universities, small businesses, and non-profit institutions to thrive. Bayh-Dole rightly allows companies doing the research, and not the federal government, to retain ownership of the intellectual property. This balanced framework more effectively enables private companies that receive government funding to develop innovative technology and conduct research that continues to improve the way of life for all Americans.
Bayh-Dole has also been beneficial to the State of North Carolina. I am proud that North Carolina is home to some of the nation’s most innovative biopharmaceutical companies and top research universities. These research universities and private companies, in partnership with the federal government, are continuously redefining what is possible. The federal funding lifts the burden of worry off an individual or entity that is working on groundbreaking research or a project. The Bayh-Dole Act motivates entities that receive funding to continue their research and innovation not only in North Carolina, but also across the United States.
BIO: As someone who represents North Carolina and its Research Triangle Park area, what do you wish your colleagues in the Senate understood about innovation and the IP system?
Senator Tillis: I believe the main thing that many people forget when they think about the American intellectual property system is the number of high-paying jobs intellectual property intensive companies create. The Research Triangle Park area is home to some of the most innovative technology and biopharmaceutical companies in the world. According to the U.S. Chamber of Commerce’s Global Innovation Policy Center, there are more than 1.7 million jobs connected with the intellectual property system in North Carolina, and there are more being created every day. More importantly, the average wages for these jobs are $52,216. Compare this to the average per capita income for North Carolina, which is roughly $30,000. I have worked hard since I served in the North Carolina General Assembly to make North Carolina a top destination for companies because creating high-paying jobs like the ones associated with the intellectual property system are good for North Carolinians.
The Research Triangle Park area is also home to three of the top research universities in the country. North Carolina State University in Raleigh, the University of North Carolina at Chapel Hill, and Duke University in Durham, which are all within 25 miles of each other. Collectively these universities produce hundreds of highly qualified graduates with advanced degrees in STEM each year. This constant flow of talented graduates feeds the booming IP-related businesses in the Research Triangle Park area and across North Carolina.
I’d welcome any of my colleagues to join me for a tour of the businesses and universities in the Research Triangle Park area to better understand how they can learn from North Carolina’s success to bring more IP-related high-paying jobs to their state.
BIO: You were instrumental in reestablishing the Senate’s Subcommittee on Intellectual Property. Why do you believe it is so important to have a separate subcommittee dedicated to intellectual property?
Senator Tillis: First and foremost, I think it is important to have a Senate Judiciary Committee subcommittee focused on intellectual property because of the importance of intellectual property to North Carolina and our economy. The Senate Judiciary Committee, which I am a member of, has jurisdiction over substantive intellectual property law—something that in my opinion needed additional Congressional attention given the number of challenges facing our innovation ecosystem. It had been over a decade since the Committee had a dedicated intellectual property Subcommittee—and I was grateful that Chairman Graham allowed me to reestablish it in 2019.
Prior to entering public service, I worked for many years in technology and management consulting, where I saw firsthand how intellectual property propelled innovation and economic growth. Innovators should have the opportunity to protect their work and not have to worry about innovation being curbed or at risk from weak IP laws. The Subcommittee allows my colleagues and me to focus on IP-related issues and find common sense solutions to problems. My goal as Chairman is to continue promoting policies that will ensure that America’s innovation and creative industries continue to be the best in the world. Since becoming Chairman, I have had the opportunity to listen and learn on intellectual property issues. Having the Subcommittee allows me to dedicate more time and attention to modernizing our intellectual property laws for the world we live in today – and making sure our intellectual property laws are well-designed for the world of tomorrow.
BIO: What did you learn from the subcommittee’s hearings on subject matter eligibility and how do you think Congress should proceed?
Senator Tillis: I had the opportunity to hear from 45 witnesses with a variety of opinions on subject matter eligibility over three days last year. Witnesses included judges, academics, voices from the private sector, and former Patent and Trademark Office directors. These three hearings were very beneficial because they allowed my colleagues and me to hear about patent eligibility reform and what the best legislative remedies would be.
Surprisingly, most of the witnesses agreed that the current eligibility criteria is impractical and impairing R&D and innovation across all sectors, but especially in healthcare diagnostics and precision medicine. Although there was consensus on the problem, they all proposed different legislative ways for addressing patent eligibility reform. Reconciling all of those equities and finding a legitimate, politically viable compromise has been difficult. Because of that, efforts for a larger, comprehensive section 101 reform have stalled.
While it is unlikely we will see comprehensive patent eligibility reform anytime soon, I am acutely aware of the problem that current jurisprudence has had on investment, research, and innovation. That is why I am working to put forward a very narrow, targeted fix for patent eligibility as it relates to diagnostic methods. I believe that this is a short-term solution to one of the many problems of section 101. Even witnesses who had different views agreed that current jurisprudence was suppressing innovation in diagnostics.
BIO: Some advocates argue that the COVID-19 pandemic requires a weakening of our patent laws. Do you believe patent laws bolster or hurt medical discovery?
Senator Tillis: In short—no. I actually think that this pandemic, and the incredible response by the federal government and private companies, is evidence for why strong patent protections are so important. Strong patent protections bolster medical discovery and without these strong protections, we would not have the innovative medical industry that we do today. We are relying on that same industry to develop a treatment or vaccine to COVID-19 to protect all Americans and allow businesses to reopen safely.
BIO: Patent holders have praised reforms made by the U.S. Patent and Trademark Office to the system of post-grant patent reviews. What is your view of these reforms and do you believe Congress needs to take action?
Senator Tillis: I also think Director Iancu has done an excellent job reforming proceedings at the PTAB under the America Invents Act (AIA). I support Director Iancu establishing the same standard for claim construction at the PTAB as is used by the Federal Circuit. I am confident this change will result in more consistency for everyone. I also support Director Iancu’s changes to precedential decisions at the PTAB. Previously, it was prohibitively difficult to set precedential PTAB opinions. This resulted in varying results across the PTAB. I think this change will similarly provide additional clarity and certainty to everyone. I know Director Iancu is constantly looking for ways to improve AIA proceedings at the USPTO and I support his continued efforts in this area.