Former Trump official: the U.S. can win the AI race — if it gets patent policy right

Washington is racing to secure American leadership in artificial intelligence. Lawmakers are investing in semiconductor capacity, energy infrastructure, domestic manufacturing, and supply chain resilience — all with AI at the center of economic strategy.

But there is a structural gap in that strategy that few are talking about.

AI leadership depends on more than compute, talent, and capital. It also depends on whether the United States offers predictable and enforceable patent protection for the technologies that companies are building and investors are financing. In the global competition for AI dominance, intellectual property policy is not peripheral — it is foundational.

Recent Federal Circuit decisions affecting applied AI patents have renewed debate over subject matter eligibility under Section 101 of the Patent Act. The U.S. Patent and Trademark Office has issued helpful guidance clarifying examination standards for AI-related inventions — a needed step. But for companies deploying AI into real-world systems, from advanced manufacturing to grid modernization to defense, the operative question is durability: Will a duly issued patent withstand challenge? Will it support financing and commercialization? Will it provide meaningful remedies if infringed?

This distinction is especially significant in applied AI — AI embedded in industrial processes, energy systems, logistics networks, and health technologies. That is where large-scale private capital flows, and where enforceable patent protection most directly shapes investment decisions. When patent rights are uncertain, investors factor in that risk. Some move their capital toward less risky industries — or less risky jurisdictions.

What China and Europe Are Already Doing

Other major economies treat patent policy as a core component of their industrial strategy. China integrates intellectual property objectives into its national AI plans, pairing patent development with enforcement capacity. The European Patent Office has issued structured guidance on AI patentability designed to produce predictable outcomes when software-based inventions demonstrate “technical effect.”

The United States retains extraordinary strengths: leading research institutions, deep capital markets, entrepreneurial dynamism, and a sophisticated patent system. But sustained AI leadership depends not only on technological capability — it depends on legal certainty.

Three Priorities for a Forward-Looking Agenda

1. Maintain clarity in AI patent examination. The USPTO’s AI-related guidance provides a constructive foundation. Continued refinement, examiner training, and transparent application of eligibility standards are essential to ensure consistent outcomes across technologies and industries. Predictable examination reduces friction at the front end of innovation.

2. Strengthen enforceability through legislation. Uncertainty surrounding Section 101 has created instability for software-enabled and data-driven inventions. Congressional clarification of subject matter eligibility would reduce unpredictability and provide clearer guardrails for courts and innovators alike. Patent rights that cannot be defended in practice do not function as meaningful commercial assets.

3. Align IP incentives with strategic sectors. Congress is advancing legislation to bolster domestic manufacturing, energy infrastructure, defense technologies, and supply chain resilience — all areas increasingly powered by AI-enabled systems. Stable and enforceable IP rights encourage companies to develop, manufacture, and scale transformative technologies within the United States, rather than shifting investment toward jurisdictions that offer greater legal certainty.

The policy debate around AI often focuses on inputs: chips, data, workforce development, research dollars. They matter enormously. But innovation ecosystems depend just as much on credible legal institutions. Investors assess defensibility before committing capital. Entrepreneurs evaluate IP strength before entering markets. Global firms consider enforcement regimes when deciding where to locate research, production, and scaling operations.

Predictable patent systems send signals — that innovation will be rewarded, that risk is calculable, and that a jurisdiction is serious about technological leadership.

The global AI race is underway. Winning it will require more than chips and research grants. It will require a patent system calibrated for applied AI — one that provides clarity at the front end and enforceability at the back end. If Washington is serious about AI leadership, it must recognize that the global AI race is also an IP race — and strengthen the U.S. patent system accordingly. 

The opinions expressed in Fortune.com commentary pieces are solely the views of their authors and do not necessarily reflect the opinions and beliefs of Fortune.

This story was originally featured on Fortune.com