immigration law patent law reform

Innovation has long been a staple of the United States’s place in the global community, and yet in matters pertaining to immigration and patents, the next wave of innovation is mysteriously absent.

Innovate or Die

Peter Drucker is famous for his saying that companies must “innovate or die.” However, even amidst countless similar warnings circulating in Washington today, it often feels like the U.S. government is sitting passively by as other countries – in particular China – edge dangerously close to out-innovating us.

To date, the United States continues to maintain an advantage in innovating to support cutting edge scientific research and high growth potential industries due to H-1B visa professionals an other permanent residents. However, in the areas of patents, immigration law and even basic research, it appears to many that the U.S. is busy resting on its laurels – a dangerous position for any first-world power that aims to stay there.

A Positive Note

On a more positive note, the U.S. continues to serve as the go-to destination for higher education as it plays host to 16 of the 20 top research universities the world over. As well, research and journal articles produced by U.S. researchers continue to receive the highest quality rankings (as measured by number of citations) across all disciplines.

But it is clear China is studying the U.S. closely as it makes its own way into the global spotlight. With investments heavily slanted towards universities that train graduates at the PhD level, China now outpaces the U.S. in sheer number of PhD graduates annually. However, when it comes to breakthroughs in science and technology, the U.S. still maintains a healthy lead.

With the rise of global influencers like Apple, Microsoft and Google plus a growing number of tiny but transformative domestic startup companies, the U.S. also continues to take the lead in international e-commerce and technological innovation.

There is always more that could be done.

Apart from pharmaceuticals, the entire U.S. patent system is both ponderous and outdated. Innovation and patents go hand-in-hand since the one reaches for profit potential and the other promises developmental exclusivity. While global giants such as Apple navigate the challenges and costs of the patent system with relative ease, smaller startups lose much valuable time and funding attempting the same.

In the area of immigration law, as well, the U.S. loses out by making entrance and residence requirements strict enough to prohibit foreign talent from remaining to contribute. Green card weddings and H1-B visa lotteries – both low level tactics at best – are currently still the most reliable means of continuing residency for skilled foreign nationals who wish to remain in the U.S.

Pushing The Benchmark

In this area, Canada, Australia and the United Kingdom have long since surpassed the U.S. both in updating immigration and visa policies and in addressing complementary issues such as border security and resolution of issues related to unauthorized immigrants.

The U.S. has also recently taken a global back seat in the area of basic research. This type of research, fueled in large part by human curiosity and not immediately translatable into profit-based innovation, has long been a driver of future transformation. Perhaps the most famous example of “basic research made good” is the Human Genome Project. Successful mapping of the human genome has now opened the door to other innovations with tremendous potential in every area – including the development of new classes of drugs to treat disorders known to be genetically-based (cystic fibrosis and Huntingdon’s disease are two well known examples).

Innovation Giants

In days past, the research arms of well-established companies such as AT&T/Bell (AT&T/Bell Labs) and Xerox (Xerox PARC) conducted basic research with an eye towards future profitable innovation. Today’s technological giants – in particular Google and Microsoft – continue to dabble in the practice, but its slice of the overall pie continues to shrink. With the shift away from “research for research’s sake” and towards share price and stock value, mainstream capitalism is showing itself to be increasingly risk-averse.

In the same way, university researchers who largely rely on government grant funding are following suit. The key to getting a government research grant today appears to have shifted in favor of the better-established senior faculty engaged in “stable” scientific research pursuits. The young scientist on a quest to transform the planet will have a much harder road to travel to find the necessary funding for basic future-oriented research.

There Are No Unsolvable Problems

While worrisome, none of these appear to be unsolvable problems – at least at the present time. With a few strategic tweaks in government policy in appropriate areas, the U.S. could quickly return to a more holistic approach to future innovation.

Some recommendations include:

  • Patent law. Clarify property lines and update patent lives to reflect the higher incidence on incremental innovation.
  • Immigration law. Overhaul the immigration system to favor more highly skilled immigrants who wish to remain in the U.S. to contribute to innovation.
  • Basic research. Increase government funding towards basic research to balance out cutbacks in the private sector. Add in rewards for reaching towards long-term success (to compensate for the current focus on short-term advances).

As of today, the U.S. is still a first-world power and the world leader in innovation. However, careful strategizing is required if it is to remain so.

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Beeraj Patel, Esq.

Partner at KPPB Law
Beeraj Patel's philosophy is simple - make it easy for talented and ambitious individuals to have access to immigration materials so that they can make the choice which is right for them.

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