For many years, Big Tech companies with their legions of DC lobbyists have been on a crusade to weaken the International Trade Commission (ITC), a little-known, independent, nonpartisan federal agency tasked with protecting the United States from imports that violate U.S. laws, including U.S. patent laws. These companies are now at it again, lobbying for a bill that was recently re-introduced in Congress: the Advancing America’s Interests Act (AAIA).
The AAIA would severely restrict the ITC’s ability to block imports manufactured in China that violate U.S. patents. The bill’s title, of course, is classic Washington Orwellian double-speak —this legislation would significantly undermine American innovators and U.S. interests.
A dirty little secret about Big Tech companies is that they profit handsomely from taking the patented ideas of other American innovators. They incorporate these inventions into their products and then they refuse to pay the innovators who created them. It’s called “predatory infringement.” Two recent lawsuits by American startups, Sonos v. Google and Masimo v. Apple, highlight this practice and reveal the tip of the massive IP piracy iceberg by Big Tech companies.
To make matters worse, instead of manufacturing those infringing products in the United States, Big Tech long ago moved manufacturing and supply chains to places like China to take advantage of cheaper labor. Almost every iPhone and iPad, for example, is manufactured in China. Tim Cook, who was first in charge of Apple’s supply chain before he became CEO, is legendary for having built China’s high-tech manufacturing and supply chain capacity over the last several decades.
So the last thing these Big Tech companies want is a federal agency with the authority to protect intellectual property rights by preventing infringing goods cheaply manufactured in China from being imported into the country. That is why they are fighting so hard to stop the ITC from doing its job.
After the ITC ruled that Google infringed Sonos’s patents, Google then argued that the ITC should permit it to infringe Sonos’s patents and not stop its infringing imports because of the “public interest” in buying Google’s infringing products. Google thinks what is good for Google’s profit is good for America.
To the contrary, it is clearly in the public interest to block infringing imports. If we allow patent-infringing products to be imported, we undermine the legal engine that has driven the U.S. innovation economy for over two centuries: the patent system. American inventors and the venture capitalists and investors who fund them need to know that their patents will be enforced, even when infringed by a large, powerful tech company.
In their campaign to close the doors at the ITC to American innovators, Big Tech companies and their backers have promoted arguments again and again that so-called “patent trolls” are using the ITC to hurt U.S. companies. It’s self-serving, false rhetoric that aids their predatory infringement.
In fact, there is no evidence that the ITC is over-run by “patent trolls.” The ITC investigates about 45 to 60 patent infringement cases each year, which is tiny compared to the 3,500 to 4,000 patent cases filed in federal courts. Even if one accepts the “patent troll” moniker, the ITC notes that, among its 59 patent cases in 2022, only 11 were brought by companies that might be called “trolls.” With over 3 million U.S. patents in force and thousands of court cases, this number is paltry and insignificant.
But the AAIA would close the door at the ITC to almost all American innovators. It would impose higher costs on patent owners seeking protection of their rights and it would outright prohibit some patent owners from filing ITC cases at all. And for those able to get past the barrier to entry created by the AIAA, there would be added procedural hurdles creating more time and expenses. Denying patent owners suffering predatory infringement from having their day in court in this way is wrong.
What Big Tech companies want is clear: a free pass to pirate inventions they didn’t invent and to import infringing products manufactured in China. This fuels their massive profit margins. Applying rules of evidence and due process, the ITC has consistently rejected Big Tech’s rhetoric. Congress should do the same and reject the AAIA, a bill that would serve only to hurt American innovators and bolster China.
Adam Mossoff is a patent law expert and professor at George Mason University’s Antonin Scalia Law School. He is chair of the Forum for IP at the Hudson Institute and a visiting intellectual property fellow at the Heritage Foundation.