One of the most significant challenges facing our nation today is the emerging battle with China. From potential aggression towards Taiwan and Hong Kong to the theft of Intellectual Property, the emerging threat is a serious one. Most importantly, we must take drastic action to ensure that China does not become the dominant force in global technology leadership.
American leadership in technology and innovation has been made possible by our commitment to the protection of Intellectual Property – namely patents. These property protections gave innovators the certainty they needed to take risks and raise capital to create new technologies, medicines, and other inventions. The U.S. has held an unparalleled spot as the world leader in ideas.
Unfortunately, we have begun to undermine this model in recent years as Congress, and the courts have taken steps to weaken those property protections. Inventors cannot get an injunction to stop someone from using their stolen property, and they have little certainty in what is considered “eligible” to be patented. Perhaps, most dangerous has been the creation of a quasi-judicial agency known as the Patent Trial and Appeals Board (PTAB), which has come to be called the patent death squad. At the PTAB, a vast majority of patents are invalidated, even after being upheld by the courts.
The slow erosion of our patent system puts us in grave danger of losing ground to China and other nations that may control the next generation of technology leadership. China, with its history of I.P. theft, has actually been strengthening its patent system – while we weaken ours. This endangers our economic and national security.
Earlier this year, a report by the National Security Commission for Artificial Intelligence reported that China is “fill[ing] the void” left by weakened U.S. intellectual property and unreliable I.P. rights in A.I. and other strategic technologies. They write that the U.S. “lacks the comprehensive I.P. policies it needs for the A.I. era and is hindered by legal uncertainties in current U.S. patent eligibility and patentability doctrine.” The report says that the U.S. must look at I.P. as a national security priority.
Reports like this should raise alarm bells throughout the nation’s capital. Fortunately, some in Washington are listening. The Republican Study Committee in the U.S. House has introduced the Countering Communist China Act. Mainly geared to address China’s aggressive push for the global innovative lead in critical emerging technologies, this legislation includes critical provisions that would strengthen our patent system.
Their act recognizes the importance of protecting I.P. and patent rights to counter China and includes key provisions from other legislation. This includes bills like the STRONGER Patents Act, a bipartisan bill that strengthens rather than weakens patent rights. The RSC includes the STRONGER provisions that rein in PTAB’s excesses and force on it standards of fairness and due process akin to those of federal court.
The RSC bill also fixes the Supreme Court’s eBay decision, resulting in a steep barrier against patent owners winning injunctions. The legislation puts the United States on the side of the TRIPS agreement’s protection of intellectual property, currently under threat at the World Trade Organization and by the Biden U.S. Trade Representative. The bill allows inventor-patent owners to opt-out of PTAB when infringers challenge their patents there.
Their bill also contains provisions of other important legislation, like the Inventor’s Rights Act and the Stop China’s I.P. Theft Act. As they pointed out in the introduction, “the RSC China bill is not made up primarily of symbolic senses of Congress, statements of policy, and findings, but instead accomplishes real policy by putting into place the legislative solutions necessary to meet the China challenge.”
Protecting America’s role as the global leader in technology is not just about electronics and gadgets, it’s also about technology for equipment used by the military and intelligence agencies. The U.S. must reverse the weakening of I.P. and patent protections to maintain global technology leadership. The RSC and its bill have set a great foundation for addressing the threat from China – especially its provisions on I.P. and patent rules. The STRONGER Patents Act and other measures are likewise critical in strengthening our I.P. system and ensuring China does not become the I.P. and technology leader of the world.
We need our leaders in Washington to take immediate and robust action to reverse the trend and enact policies that will protect our innovations and counter China’s aggressive moves to claim global leadership.
• James Edwards is Executive Director of Conservatives for Property Rights and patent policy advisor to Eagle Forum Education & Legal Defense Fund.
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