On July 28, 2025, The Wall Street Journal reported that the U.S. Department of Commerce is considering a new proposal to impose a tax of 1% to 5% on the “value” of issued patents. If implemented, the tax would be in addition to the existing maintenance fees currently charged at only three times after a patent issues.
Background: The Existing Patent System and Economic Incentives
The patent system is a core business right enshrined in the United States Constitution. Article 1, Section 8, clause 8 grants Congress the power to “promote the progress of science and useful arts” by granting exclusivity to inventors and authors for limited times. The U.S. patent system provides a tradeoff between the government and inventors. In exchange for full public disclosure of an invention, the U.S. government provides a 20-year right of exclusivity. The rationale for this system is that without some incentive for full disclosure, ideas will be kept secret, thus inhibiting technological improvements and innovation.
Key Concerns: Patent Valuation and Market Impact
The proposed tax raises several practical and policy concerns. First, the proposed basis for the tax is the value of the patent, a figure that is often difficult to determine. The true value of a patent may not become apparent until it can be tied to an exclusive benefit, which may not be realized until late in the 20-year patent term. Second, most patents lack any economic value as determined by success in litigation, licensing, or sale of the patent. Any deterrent value of a patent absent hard economic data (i.e., a sale, license revenue, or damages in litigation) is speculative at best. Third, a tax on patents could reduce the number of patent applications filed, especially in cash-strapped industries such as biotechnology. A value-based tax could deter patent filings among startups and companies that lack the resources to pay increased fees without clear commercial returns. That may result in companies in the innovation economy making every effort to keep technology secret, further deterring innovation. Fourth, taxing patents may have an adverse economic impact on the United States, akin to what we have observed in Europe where patents and patent applications suffer annual taxes called “annuities.” The result of the annuities in Europe is that companies limit their filings and focus their market strategy on low-tax jurisdictions, such as the United States, where they can currently file more applications at low cost. The exclusivity that results from robust patent filing here is an incentive for companies to focus on the U.S (in addition to other market incentives).
Looking Ahead
While the proposal is still under consideration and no formal regulatory action has been taken, stakeholders across industries should monitor developments. A tax on the perceived value of patents is likely to have an adverse impact on innovation and negative economic consequences for the United States. If implemented, the tax could represent a fundamental shift in the cost-benefit analysis of participating in the U.S. patent system.
