I spent the early part of my career thinking about intellectual property from the trademark side of the system, where my work centered on how words and symbols become legally protected signals of identity. That included my own case that I spent eight years fighting, Matal v. Tam, which went all the way to the Supreme Court of the United States. It was ultimately about who gets to control the terms by which people are recognized in public life, and the Court ruled unanimously in my favor.
It’s not the background most people expect from someone now working in global health policy and access to medicines. But the more time I’ve spent in this second world, the more I’ve come to believe trademarks and patents aren’t separate systems at all. They are two expressions of the same underlying problem: we’ve started mistaking the quantity of intellectual property activity for the quality of public benefit it produces. And both are governed by the U.S. Patent and Trademark Office.
Once that confusion sets in, the system stops rewarding invention and starts rewarding something else: exclusion, dressed up as innovation.
But I didn’t arrive at this idea through doctrine or law review articles. I arrived at it through loss: like many families, mine has lived the grief of watching a treatment exist, work, and still be out of reach because of its price. When that happens, the legal architecture stops being abstract. It becomes immediate and what you end up carrying throughout your life.
This is not rare. It is structural.
Yet in patent debates, this human dimension often disappears. We argue about obviousness standards, examination quality, litigation outcomes, sorting patents into “good” and “bad” as if the system’s job is simply to evaluate inventions correctly. People and patents alike get reduced to statistics.
But the deeper issue is not just weak patents. It is that the system has learned to reward repeatable patterns of exclusion, even without meaningful inventive contribution.
Most reform conversations focus on improving patent quality: raise the bar for obviousness, tighten examination, reduce evergreening. These are worthwhile efforts. But they rest on an assumption that should be questioned: that the core problem is doctrinal, and that fixing evaluation fixes the system.
At its core, the issue is not bad evaluation. It is a system that rewards exclusion as an output in itself.
In pharmaceuticals, the pattern is familiar. A successful drug emerges, followed by incremental modifications, secondary filings, formulation tweaks, dosing changes, or new delivery mechanisms. Individually, these can appear technically defensible. Together, they form a strategy of delay, rarely improving the medicine in meaningful ways, but consistently extending control over the market.
The question is not whether each filing meets the legal standard of non-obviousness. It is whether a repeatable strategy should count as invention at all. Some “innovation” behaves less like invention and more like repeated attempts to re-privatize something that is becoming necessary for competition.
Trademark law, oddly enough, offers a useful way of thinking about this, not just as analogy, but as structure. Trademark law is not designed primarily to reward creativity. It exists to prevent consumer confusion and protect fair competition in how meaning moves through the marketplace. But it also contains a deeper systems logic: rights can lose legitimacy not because they were granted wrongly, but because they stop serving their public function.
A trademark can become generic. Aspirin, Bubble Wrap, Escalator all began as brand names and became ordinary words for categories of products. Once that happens, the term belongs to the shared vocabulary of commerce rather than to its original owner.
What matters is not only that trademark rights are limited, but that the system recognizes when a private right stops functioning as property and starts functioning as infrastructure. Genericness is an ongoing judgment that exclusivity can expire when its public function disappears.
Patent law has no equivalent mechanism at scale. Obviousness operates claim by claim. It does not ask whether a repeated pattern across an industry has become a standardized method of extending exclusivity rather than producing invention.
That gap is where incremental exclusion becomes normalized as innovation.
So should ask of a drug modification what trademark law already asks of a mark: at what point does a follow-on patent stop being an inventive step and become the expected mechanism for extending exclusivity?
If nearly every successful drug produces the same sequence of secondary filings, often delaying competition, then we are not looking at isolated weak patents. We are looking at a system behaving consistently with its incentives.
And systems must be evaluated as systems.
Most reform debates still focus on whether a specific claim meets the legal threshold for obviousness. Even when each step passes review, the cumulative effect can still be anti-competitive. This is also how companies respond when the pattern is challenged. They point to individual filings and ask whether each one is legitimate. And in isolation, the answer is usually yes. But they are answering a different question – and their answer is a distraction.
A system does not need bad actors. It only needs rational actors taking defensible steps, one at a time, for exclusion to compound into something the system never explicitly intended.
Invention expands what is possible. Strategy rearranges what is already known to preserve what is already profitable. On paper, they can look similar. In practice, especially for patients, they are not.
The pharmaceutical industry is often described as innovation-driven. But it is also shaped by strong incentives to convert success into long-term exclusivity through layered legal strategies. None of this requires bad faith. It reflects rational behavior under current incentives: extend protection wherever it is defensible.
The question is not whether this is allowed. It is whether every legally defensible extension should be treated as equivalent to invention, or whether some of it is better understood as maintenance of exclusivity dressed in the language of innovation.
This is where reform conversations need to shift.
Instead of asking whether a patent is technically valid under obviousness doctrine, we should ask whether the system, as a whole, is increasing or shrinking meaningful public capacity, whether that is access to knowledge in trademarks or access to life-saving treatment in patents.
That is the standard: not how many patents are granted, but whether exclusivity, in aggregate, still serves a public function that justifies its existence. This reframes the debate away from outputs, grants, litigation, validity, and toward outcomes: access, competition, affordability, and public benefit.
It also requires harder questions of institutions like the U.S. Patent and Trademark Office, where routine decisions shape entire market structures at a scale few fully intend.
IP debates often split into extremes, the system is either essential to innovation or fundamentally broken but the reality is more specific: the system is doing what it is incentivized to do. Those incentives increasingly reward durable exclusion built through incremental layering. If we want different outcomes, we have to redefine success, not more IP activity, not more filings, not cleaner compliance, but whether the system produces public benefit in practice.
While I was proud of the work of my attorneys in Matal v. Tam, I’ve long expressed my frustration at the apparent contradiction of it: I was fighting for freedom of expression in America’s highest court, but in that room, I was forced to be silent.
Right now, debates for these policies are mostly had between attorneys, industries, and organizations. Many of these groups gain significant financial benefits from an opaque system, obscured by complex legal maneuvers. Patients are mostly unheard. What if policies were rooted by how the public experiences the system instead? How would patients and their loved ones answer questions of balancing investment of new breakthrough medicines, incremental changes to existing drugs, and affordability?
For many people, that is not a question of theoretical legal framework. It is a question answered in the cost patients pay in access, in time, and too often, in lives.
Simon Tam is the founder of The Slants and the central figure in Matal v. Tam (2017), the unanimous Supreme Court decision that struck down the government’s power to deny trademarks on disparagement grounds. He speaks on First Amendment issues nationally and serves as Communications Director at I-MAK.