Opinions and Editorials

Aug. 31, 2018

The Hill: Congress and Trump are out of step on intellectual property by Russell Slifer

This post originally appeared in The Hill on 8/30/2018

The Trump administration started its trade war this year with China under the auspices of countering Beijing’s theft of U.S. intellectual property. There is no doubt that China, with its Made in China 2025 plan, has been actively acquiring U.S. intellectual property for years. The U.S. intelligence community acknowledges that China is a leader in economic espionage. The Chinese government has required U.S. businesses to transfer technology to Chinese companies as a precondition of entering the Chinese market. Further, China and Chinese companies are investing heavily in U.S. companies to gain access to their underlying intellectual property.

The White House and Department of Commerce actions to reduce foreign IP theft is important but equally important is having a strong domestic policy. China does more than import IP from the U.S., it has consistently revised its laws to strengthen patent protection and is stepping up enforcement of intellectual property rights protection. So while China has strengthened its domestic patent system over the last 20 years, the U.S., thanks to Congress and the Supreme Court, has gone the other way.

American inventors and innovative companies have been under assault for more than a decade by Supreme Court decisions. At the same time, Congress pushed the U.S. patent system to new lows with legislation intended to eliminate abusive patent litigation. After 228 years since the first Patent Act, the U.S. should lead the world by a wide margin, but sadly the U.S. Chamber of Commerce now ranks the U.S. as 12th in the world, tied with Italy. The U.S. is still ranked ahead of China in overall intellectual property protection, but not for patent protection of key technologies necessary for our future economy. How did this happen?

The Supreme Court has had an obsession with patent issues over the past 20 years, having decided more than 30 patent related cases. These decisions are wide-ranging but have generally weakened U.S. patent protection in significant ways. The heavy erosion of patent rights started in 2006 when the court all but eliminated the ability of inventors to stop continued patent infringement, even after a successful trial. The Court then hurt inventors by lowering the standard required to show that their issued patents were obvious. In 2017, the Court changed what appeared to be settled law since 1990 that infringers could be sued in a jurisdiction where patent infringement occurred. That decision has forced inventors to challenge multiple infringers in numerous different courts, significantly increasing costs and time.