Protecting Intellectual Property: A Primer

This week, the Taxpayers Protection Alliance released a new report “Protecting Intellectual Property: A Primer.” Intellectual Property (IP) protections are often referred to as a monolith, but copyrights, patents, and trademarks advance different goals, are enforced differently, and have distinct elements that need to be satisfied by claimants. Below is an overview of these distinct systems. In the decade following the Revolutionary War, the Founding Framers worked tirelessly to draft a sweeping blueprint for governing a young nation. Scholars, lawmakers, policymakers, and pundits have spent nearly two and a half centuries analyzing the meaning of phrases enshrined in the Bill of Rights, including, "establishment of religion," and powers "reserved to the States." One provision of the Constitution may not be as exciting as the others but has proven critical in fostering creativity and unleashing a global economy. Article I, Section 8, Clause 8 reads, "[The Congress shall have Power ...] To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries. This provision of the Constitution made clear that a newly centralized government would protect the IP rights of writers, musicians, and inventors, which were not addressed in the Articles of Confederation.2 Lawmakers did not take this newly created power to protect IP for granted. Congress passed legislation in 1790 establishing patent and copyright protections and has since added new technologies, enforcement remedies, and definitional clarifications to IP law. Trademarks, which help consumers distinguish one producer's goods or services from those of their competitors, eventually joined copyrights and patents as federally protected IP with the passage of the Copyright Act of 1870.4 This three-pronged system of IP protection in the U.S. offers unparalleled safeguards. According to the Chamber of Commerce's annual International IP Index, the U.S. consistently has the most robust IP system in the world, with other developed nations such as the United Kingdom, France, and Germany ranking close behind. As a result of the U.S.' consistent advantage in IP protection, countless innovation has taken place in America instead of elsewhere. However, the U.S. cannot take this vaunted top spot for granted. This report details efforts to weaken copyrights, patents, and trademarks and offers recommendations to maintain these critical protections. Section I provides an overview of the three main forms of IP, identifying examples of each and summarizing the scope of protections. 
 
Copyright
 
Copyright law exists to foster creativity by granting creators exclusive control over their works. A quick trip to the movies or a speed-read through a page- turning novel shows this form of IP protection at work. Authors, directors, and screenwriters have a lot to figure out, ranging from character personalities to banter to scenery.
 
Copyright law is built on the "substantial similarity" framework, which provides quantitative and qualitative ways to measure whether one work infringes on another. Courts will continue to tinker with the details of this approach, but several guiding principles are important and must continue to be respected. Even if quantitative copying is small, works can be infringing if they appropriate the "heart" (the fundamental essence of the copied material). Additionally, a sufficient quantitative amount of copying (e.g., 40 percent of an original song) constitutes infringement even if the copied material is not the most memorable part of the original work. Regulators must ensure that AI-based technologies remain respectful of IP rights. However, they must also take care not to choke innovation by barring AI entirely from learning. In short, as with many areas of AI regulation, the answer is to extend the principles of existing law to this new industry. Fair use is fair use, no matter whether the user is a human or an algorithm. However, AI's technical novelty shouldn't be taken as license to steal IP. The U.S. Copyright Office must give writers, coders, and video owners easy reporting mechanisms to report suspected IP violations, while clarifying (with examples) that injecting original elements into works and/or sufficiently blending works will insulate AI from IP- related liability. 
 

Patents
 
Patents are designed to bolster innovation by granting inventors exclusive rights to their inventions for a limited period through the U.S. Patent and Trademark Office (USPTO). In exchange for finding (and funding) a rare cure for a disease, new method of communication, or improved lens apparatus for a camera, the federal government grants innovators a 20-year period of exclusivity in making, using, importing, and selling the product.
 
To supplement patent protections, the FDA and Congress should make greater use of exclusivities, allowing innovators more time to focus on getting their products to market. Lawmakers can do their part by rewriting the Orphan Drug Act (P.L. 94-414) to bolster the exclusivity period from 7 years to 10 years and expand the rare disease definition to encompass any condition that impacts fewer than 300,000 people in the U.S. (from the current threshold of 200,000). The FDA should also make clear that, if any federal agency attempts to exercise march-in rights, the FDA will do what it can legally to expand the use of exclusivities to make up for diminished patent protections. However, Congress must do what it can to preempt inter-agency conflict and limit the allowable scope of march-in rights. Allowing federal agencies to misuse the Bayh-Dole Act to "march in" on innovations created in part with federal funds would spell disaster for pharmaceutical development in the U.S. Senior agency officials should publicly commit to not marching in, which would allow innovators to continue to hold onto IP protections. As a longer-term solution, lawmakers can re-write the march-in provision of Bayh-Dole (35 USC § 203) to clarify that federal assertion of rights is only lawful when, "the contractor or assignee has not taken, or is not expected to take within a reasonable time, effective steps to achieve practical application of the subject invention in such field of use." This way, innovators will have guaranteed patent protection as long as they try their best to produce and sell the patented product.
 
 
Trademarks 
 
Like patents and copyrights, trademarks ensure that entrepreneurs' hard work is not squandered when copycats try to ride on their coattails. However,
trademarks are unique in their focus on preventing consumer confusion. Trademark laws aim to protect consumers by ensuring they can easily identify the source of a product or service.
 
Congress should update the Lanham Act (P.L. 79-489) to prevent attempts by governments at all levels to improperly use trademarks. Lawmakers can achieve this by barring state-owned monopolies (e.g., the U.S. Postal Service and virtually all government-operated transit networks) from asserting trademark infringement unless they have already exhausted all other remedies relating to the service's monopoly status. For example, the USPS would not be able to bring trademark claims against business rivals unless the agency could show that it already unsuccessfully attempted to sue them under the Private Express Statutes. As a result, companies that are not in the same business as government agencies/services (e.g., shops operating along the path of New Orleans streetcar lines) need not fear phony trademark infringement claims. Additionally, lawmakers should clarify that government entities such as airports cannot bring trademark claims based on broad geographic identifiers (e.g., New York and San Francisco). Lawmakers should reject calls by scholars to make it more difficult for private parties to bring trademark claims. If businesses start facing greater difficulty in prevailing on trademark claims, they will use copyrights as a substitute form of IP infringement. This would undermine the purpose of copyright law and clog the courts with unnecessary "substantial similarity" determinations. While trademark law is not perfect and overzealous litigation does exist, tinkering with the threshold requirements will lead to significant unintended consequences.
 
BLOGS:

Monday: Government Watchdog Slams President Trump for Drug Price Fixing Plan and Colorado Lawmakers Reject Healthcare Price-Fixing Scheme

Tuesday: TPA Leads Coalition Letter in Opposition to Deposit Insurance Cap Increases

Wednesday: TPA Releases New Report on Intellectual Property  

Friday: KentuckyWired Customers Could Lose Broadband Service

Media:

May 10, 2025: The Wilkes-Barre Times Leader (Wilkes Barre, Pa.) ran TPA's op-ed, “Silver lining in High Court's vaping rule.”
May 10, 2025: The Times Leader ran TPA's op-ed, “Silver lining in High Court's vaping decision.”
May 10, 2025: 24 Share Updates mentioned TPA in their story, “Experts ask WHO to change to address health issues.”
May 10, 2025: Manila Standard (Philippines) mentioned TPA in their story, “Experts ask WHO to change to address health issues.”
May 11, 2025: Floridadaily.com (Fleming Island, Fl.) ran TPA's op-ed, “Opinion: FDA Stuck in Jekyll and Hyde Mode.”
May 12, 2025: WBFF Fox45 (Baltimore, Md.) interviewed me for their story on a Baltimore City lawsuit with Zyn.
May 12, 2025: WJLA ABC7 (Washington, D.C.)) interviewed me for their story on National Science Foundation funding.
May 13, 2025: RealClearMarkets ran TPA's op-ed, “The DOJ Aims to Centrally Plan the Search Market."
May 13, 2025: DC Journal ran TPA's op-ed, “Taxpayers Deserve the Truth About the Kentucky Wired Disaster."
May 13, 2025: Townhall Finance mentioned TPA in their story, “'Trojan Horse for Increased Regulation': Groups Raise Alarm on Elizabeth Warren's Plan for Banking Sector."
May 13, 2025: WMAL radio (Washington, D.C.) mentioned TPA in a news segment about government spending.
May 13, 2025: KTXS This Morning (San Antonio, Texas) mentioned TPA in their show about government spending.
May 13, 2025: Townhall mentioned TPA in their story, “'Trojan Horse for Increased Regulation': Groups Raise Alarm on Elizabeth Warren's Plan for Banking Sector."
May 13, 2025: The Daily Caller mentioned TPA in their story, “'EXCLUSIVE: Conservative Orgs Sound Alarm On Liz Warren-Backed ‘Trojan Horse’ Effort To Wield Greater Control."
May 13, 2025: AOL.com mentioned TPA in their story, “'EXCLUSIVE: Conservative Orgs Sound Alarm On Liz Warren-Backed ‘Trojan Horse’ Effort To Wield Greater Control."
May 13, 2025: IJR mentioned TPA in their story, “'EXCLUSIVE: Conservative Orgs Sound Alarm On Liz Warren-Backed ‘Trojan Horse’ Effort To Wield Greater Control."
May 14, 2025: Business Mirror mentioned TPA in their story, “Experts ask WHO FCTC to embrace innovation for smoking cessation.”
May 14, 2025: The Baltimore Sun (Baltimore, Md.) mentioned TPA in their story, “Inspector general told to reapply for job.”
May 14, 2025: CapX ran TPA's op-ed, “Does the WHO really want us to stop smoking?"
May 15, 2025: WBFF Fox Baltimore (Baltimore, Md.) interviewed me for their story on the TCJA.
May 15, 2025: I appeared on WBOB 600 AM (Jacksonville, Fla.) to talk about the TCJA.
May 15, 2025: KZIM 960 AM (Cape Girardeau, Mo.) interviewed Ross Marchand for their story on postal reform.

Have a great weekend!



Best,

David Williams
President
Taxpayers Protection Alliance
1101 14th Street, NW
Suite 500
Washington, D.C. xxxxxx