Bill is key to protecting US economy from patent piracy

Over the last two decades, judicial decisions have made it harder for inventors to keep patent-infringing goods off the market. Intellectual property theft costs the U.S. economy as much as $600 billion annually, indirectly aiding geopolitical competitors like China, which is the primary IP infringer.

The origins of the problem go back almost two decades. For most of U.S. history, inventors who proved that a competitor had infringed their patent could obtain binding court orders — called injunctions — which compelled the infringer to stop.

This practice was in line with the text and spirit of the U.S. Constitution. Article I, Section 8, grants Congress the power to secure “for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”

This built-in market advantage is what keeps the engine of innovation running in the first place. Inventors sink their time and financial resources into novel discoveries because they know that if their idea succeeds, they will be able to generate a worthwhile return for their efforts. Injunctions bolster confidence in this system by assuring inventors that their rights will be not just recognized, but enforced.

Yet in a 2006 case called eBay Inc. v. MercExchange LLC, the Supreme Court abandoned this long-standing precedent and decided that inventors were no longer presumptively entitled to injunctions in cases of patent theft.

This decision has made it practically impossible for small inventors to get the justice they deserve. While a check from an infringer is better than nothing, what inventors want most of all is a chance to produce and sell their own innovations free of unfair competition from copycats.

The absence of injunctive relief has allowed patent infringers — who often manufacture their products overseas — to continue dumping infringing products onto U.S. markets.

Fortunately, a little-known government agency known as the U.S. International Trade Commission is stepping in where courts have fallen short. In recent years, the ITC has issued exclusion orders that keep products made overseas — but based on stolen U.S.-developed technologies — off of U.S. markets.

Sadly, despite the ITC’s crucial role in supporting U.S. innovators, consumers and jobs, some officials are suggesting that the agency may have overstepped its mandate.

Not true. In the absence of injunctive relief, the ITC is often the only recourse inventors have to protect their ideas and the U.S. market.

Still, as important as the ITC is, it isn’t a cure-all. In cases of patent infringement, the agency can only block foreign-manufactured goods from entering the U.S., meaning infringing products made on U.S. soil are beyond its scope. But domestic IP theft is a major problem, too.

That’s why it’s critical for Congress to fully remedy the court’s mistake in eBay by restoring injunctive relief as the default response to patent infringement. Thankfully, the RESTORE Patent Rights Act would do just that. The legislation would effectively overrule the Supreme Court’s decision in eBay so that injunctions can once again be presumed in cases where a court finds infringement.

Protecting — and even strengthening — the ITC and passing the restore Patent Rights Act would help ensure inventors get the justice they deserve.

Andrei Iancu served as the undersecretary of commerce for intellectual property and director of the U.S. Patent and Trademark Office from 2018 to 2021. He is co-founder and co-chairman of the Council for Innovation Promotion.