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Inventors Need Your Help to Protect Their Patent Rights

Tuesday, October 8th, 2024

US Inventor was founded in 2015 after the passage of the America Invents Act of 2011  and the establishment of the Patent Trial and Appeal Board (PTAB) to “restore a solid patent system that ensures small businesses and individual inventors can protect their inventions from theft, regardless of the power and influence of large corporations. Every initiative and action undertaken by US Inventor aims to restore and reinforce the integrity of the American patent system.” US Inventor is the only organization representing small inventors, businesses, and startups to enact change that supports these groups, and it has grown to about 87,000 members over the past couple of years.  If you haven’t already signed the Inventor’s Rights Resolution, you may sign here.

In the past several weeks, US Inventor has been active in opposing two Senate bills that were scheduled for “mark up” by the Judiciary Committee during one of the three committee meetings scheduled in September. The bills are:

S. 2140: Patent Eligibility Restoration Act of 2023 (PERA)

S.2220 – PREVAIL Act

Both bills were introduced during the current Congress in 2023, and I wrote about these bills in a previous blog article, summarizing the reasons why US Inventor is opposed to each bill.  Briefly, US Inventor stated: “PERA must not become law without complete removal of Section 3(b)(1)(B)(i) and (ii) and its support at Section 2(5)(D)(v) and Section 2(5)(E)(i) and (ii).” The full analysis of PERA by US Inventor can be reviewed here.

US Inventor’s position on PREVAIL is that it “could be saved if it had an amendment that “offers inventors the “choice” of not being forced into the unjust PTAB administrative court, but rather being able to choose to face your infringer in a real court with a jury and Due Process.” The full analysis of PREVAIL by US Inventor can be reviewed here.

During the month of September, thousands of USI members called and wrote their Senator expressing their opposition to both bills.  US Inventor also arranged Zoom meetings with staff of the Senators who are members of the Judiciary Committee.  I participated with other California constituents who are inventors in Zoom meetings with the staff of California Senators Butler and Padilla.

When it was my turn to speak, I said that I was a board member of the San Diego Inventors Forum, which is one of the oldest and largest inventor groups in the country with a database of over 600 inventors, entrepreneurs, and service providers. We have noticed that the threat of having the Patent Review and Trial Board (PTAB) invalidate a patent is discouraging inventors from applying for a patent, and they are going to other countries to get their patents. Even China has a more secure patent system, so inventors are giving their technologies to China when they get a patent there. 

It is also causing more inventors to focus on getting licensing agreements instead of starting companies.  The danger is that the some of the large corporations they approach for a licensing agreement steal the technology and dare the inventor to sue them for infringement because they know the case will be handled by PTAB where the inventor’s patent will be invalidated. In addition, the lack of secure patent rights is also hindering the willingness of angel investors to invest in new technologies for startup companies. 

US Inventor held their second annual conference, From Dreamers to Decision-Makers, on September 26th-28th in Washington, D.C. where several inventors shared their stories of having their patents infringed and then invalidated by the PTAB.  The bills mentioned above were discussed in detail during the conference as well as the two new bills introduced last spring:

HR 8134, the Restoring America’s Leadership in Innovation Act (RALIA), introduced by Rep. Thomas Massie (R-KY) and Rep. Marcy Kaptur (D-OH)

HR 8132, the Balancing Incentives Act (BIA) introduced by rep. Marcy Kaptur (D-OH) and Rep. Thomas Massie (R-KY)

Attendees had been encouraged to come a day early to visit the offices of their Senators to express their opinions on patent legislation.  Many were able to make arrangements to meet with the staff of their Senators and express their opinions about the bills.  That same day, Dirk Tomsin of US Inventor hand delivered 7,350 letters to their Senator’s offices, along with petitions signed by over 4,500 signatories.

It appears that as a result of these efforts, the bills were not considered by the Judiciary committee for “mark up” during any of their September meetings. Congress is now in recess until after the election. However, the danger is that Congress will be in session for five weeks before the end of this session of Congress, so these bills could still be scheduled for “mark up” during that brief session.   

 The Senators comprising the Judiciary Committee are:

Chairman, Dick Durbin (D-IL)

Ranking member, Lindsey Graham (R-SC)

Majority Members

Sheldon Whitehouse (D-RI)

Amy Klobuchar (D-MN)

Chris Coons (D-DE)

Richard Blumenthal (D-CT)

Mazie Hirono (D-HI)

Cory Booker (D-NJ)

Jon Ossoff (D-GA)

Alex Padilla (D-CA)

Peter Welch (D-VT)

Laphonza Butler (D-CA)

Minority Members

Chuck Grassley (R-IA)

John Cornyn (R-TX)

Mike Lee (R-UT)

Ted Cruz (R-TX)

Josh Hawley (R-MO)

Tom Cotton (R-AR)

John Kennedy (R-LA)

Thom Tillis (R-NC)

Marsha Blackburn (R-TN)

Suppose any of the above Senators are your Senators. In that case, I urge you to contact their offices and express your opposition to PERA and PREVAIL unless PREVAIL is amended as suggested above. You can call the U.S. House switchboard at (202) 224-3121 to connect to your Senator’s office.

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New Patent Reform Legislation Would Protect Inventors’ Rights

Tuesday, May 21st, 2024

Two new bills have been introduced in Congress that would restore our broken patent system. These bills aim to address longstanding issues with the patent system and ensure fair treatment for inventors and small businesses.

Ever since the America Invents Act of 2011 was passed by Congress, our patent system was changed from being the best in the world to one that has nearly destroyed inventors’ rights.

Today, inventors suffer massive predatory infringement by large multinational corporations, including Chinese controlled multinationals, have their patents declared ineligible for patent protection because of being considered an “abstract idea,” and are denied their day in court to sue patent infringers.  This is stifling the innovation engine of the United States.

 During the 116th (2019-2020) and 117th Congress (2021-2022), several bills were introduced with the purported purpose of restoring inventors’ rights and fixing some of the problems generated by the America Invents Act of 2011. None of these bills made it out of committee for a vote by the House or Senate.

Two bills were introduced last year into the current Congress (118th 2023-2024):

  • S. 2140: Patent Eligibility Restoration Act of 2023 (PERA) was introduced by Senators Thomas Tillis (R-NC) and Christopher Coons (D-DE) on 6/22/2023
  • S.2220 – PREVAIL Act introduced by Senator Chris Coons (D-DE) on 7/10/2023

Neither of these bills have made it out of committee as yet for a vote by Congress, but that is good news as neither bill sufficiently restores inventors’ rights.

The two new bills are HR 8134, the Restoring America’s Leadership in Innovation Act (RALIA), introduced by Rep. Thomas Massie (R-KY) and Rep. Marcy Kaptur (D-OH) on 4/16/2024 and HR8132,  the Balancing Incentives Act (BIA) introduced by rep. Marcy Kaptur (D-OH) and Rep. Thomas Massie (R-KY) also on 4/16/2024.

RALIA seeks to revitalize patent protection by restoring injunctive relief, eliminating confusing judicially created eligibility tests, and abolishing the Patent Trial and Appeal Board (PTAB). By strengthening patent rights and encouraging innovation across critical technology fields, RALIA will help restore America’s leadership in innovation.

RALIA Reverses the effects of several Supreme Court decisions and of the America Invents Act, largely repairing most of the erosion of US patent rights accumulated over the last several decades. Full details below.

I participated in the weekly conference call with US Inventors members on May 8, 2024 when founder Paul Morinville highlighted some of the key things RALIA would do:

  • “Repeal ‘first to file’ and restore ‘first to invent’ as the criterion for granting a patent
  • Abolish the Patent Trial and Review Board (PTAB)
  • Restore the means of defending a patented invention against infringers: in court.
  • Restores injunctive relief to stop infringers from making and marketing the product being infringed
  • Declares that patents are private property
  • Abolishes inter partes review and post-grant validity proceedings
  • Prohibits publishing patents until issued
  • Eliminates fee diversion from the U.S. Patent Office to the General Fund
  • Fixes the problems with abstract ideas, medical diagnostics, and gene therapy”

He also said that The Balancing Incentives Act (BIA) aims to restore balance to our patent system and promote innovation. “BIA addresses issues with the PTAB, ensuring inventors receive fair treatment and protection of their intellectual property rights. BIA requires the patent owner’s consent for a PTAB review. By adding this fundamental right, the Bill aims to realign the PTAB with its original purpose as an alternative to federal court proceedings and a fair venue for all parties involved, rather than a mechanism incentivized for patent invalidation.”

Congresswoman Kaptur posted a paper, titled “At-A-Glance: Balancing Incentives Act & Restoring America’s Leadership in Innovation Act” that goes into more detail of why these bills are needed and what they would do.

The paper states:

“American innovation is falling behind the rest of the world. In 2018 patents filed per capita fell behind China for the first time since data was first collected in 1980. Much of that is because protections for American inventors is slipping. The time, money, and energy invested in creating an invention that can be marketed and sold or used to create and sell a new product is not worth it if the invention can be easily taken away. Originally, patents were tried in court. In 2011 the Patent Trial and Appeal Board was formed, and cases that challenge patents have since been deferred to that board. In FY23, PTAB completely invalidated 28% (see slide 11) of patents put before them; another 38% settled, were partly invalidated, came to mixed outcomes, or ended in a request for adverse judgement. Only 27% of cases were denied or dismissed, and only 7% determined to be all patentable. For solely those cases in which a written decision was reached, only 17.1% of patent claims were fully upheld – an 82.9% full or partial invalidation rate. (Fully invalidated: 67.5%, partly invalidated 15.4%.”

The paper also describes what a few specific provisions of the bill would do:

  • “Remedy eBay v. MercExchange:
  • Reverse the US Supreme Court’s ruling in Oil States v. Greene’s Energy Group:
  • Restore the pre-America Invents Act one-year grace period.
  • Limit the consideration of information disclosed to the PTO as ‘prior art.’
  • Restore the requirement of naming the best mode or preferred embodiment in a patent application.
  • Remedy adverse effects from Bilski v. Kappos, Association for Molecular Pathology v. Myriad Genetics, Mayo Collaborative Services v. Prometheus Laboratories, and Alice Corp. v. CLS Bank:
  • Restore and clarify patentability of certain scientific discoveries and software inventions.
  • Ensure judicial review and the right to de novo judicial review for patent validity determinations.
  • Remedy Impression Products v. Lexmark International:
  • Clarify property rights in the transferability of patents, including by licensing.
  • Strengthen the presumption that an issued patent is valid and protect patents against claims of invalidity, rather than the other way around”

The paper describes what the Balancing Incentives Act (BIA) would do:

“BIA would not abolish the PTAB as the Restoring America’s Leadership in Innovation Act (“RALIA,” below) would, but instead effectively give patent owners the option to have their patents challenged either in court or at the PTAB. (Relevant USC is amended: “The owner of the patent consents to the filing of the petition.” – Referring to a petition to have a case heard at the PTAB rather than in court.) This will naturally encourage PTAB to demonstrate its legitimacy without micromanaging USPTO or the PTAB. Patent owners will choose to continue to work with PTAB so long as they view it as fair and legitimate. This bill is compatible with RALIA (for which we also advocate sign-on) in that it presents a method to balance the PTAB’s authority with court authority while leaving all other provisions in RALIA untouched.”

On March 12,2024, James Edwards, Executive Director of Conservatives for Property Rights wrote a letter to Rep. Thomas Massie and rep. Marcy Kaptur expressing their support for HR 8134 (RALIA) because of the following:

“The Restoring America’s Leadership in Innovation Act would strengthen private property rights in one’s inventions and discoveries. The bill would broadly reverse the antipatent onslaught of recent years. RALIA would counter the ongoing assault by courts, Congress, the Administrative State, and patent-infringer special interests. The harm done to our patent system is reflected in the fact that global venture capital (VC) invested in the United States has fallen. The U.S. share of VC dropped from 82% in 2004 to 49% in 2021 as the Supreme Court’s eBay ruling spares patent infringers from injunction, the Alice-Mayo framework causes patent-eligible unpredictability, and enactment of the America Invents Act’s (AIA) led to infringers’ greater ability to cancel issued patents, game the litigation system, and disrupt commercialization of inventions. Also, patent licensing royalty rates have dropped over the same period.

In short, our patent system desperately needs the restoration of its traditional strengths…”

This letter was cosigned by the leaders of U.S. business & Industry Council, Tradition, Family, Property Inc., Les Government, Let Freedom Ring, AMAC Action, American for Limited Government, Taxpayers Protection Alliance, 60 Plus Association, Family PAC Federal, Tea Party Patriots Action, The Committee for Justice.

We need your help to enact critical patent reform legislation that will protect inventors’ rights and promote American innovation. As a member of US Inventor and Secretary of the board of the San Diego Inventors Forum, I understand the importance of safeguarding intellectual property and fostering an environment where inventors can thrive. We are calling on you to take action today by contacting your Congressional Representative and asking them to sign on as a co-sponsor and support both HR 8134, the Restoring America’s Leadership in Innovation Act (RALIA), and HR8132, the Balancing Incentives Act (BIA).

If you don’t how who your Congressional Representative is, you can find who he/she is using your zip code at this link. Then, you can call the U.S. House switchboard at (202) 224-3121 to get connected to the office of your Representative.  

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Are We Sufficiently Protecting our National Security?

Tuesday, February 6th, 2024

The answer is a resounding, “No!” For decades, we Americans have blithely ignored the long-term effects of allowing foreign investors or corporations to purchase the assets of our country in the form of companies, land, and mineral resources. We have been selling off our ability to produce wealth by allowing foreign corporations to purchase American companies, real estate, mines, and farm land. It is not just foreign companies buying our assets that is the problem ? it is the state-owned and massively subsidized companies of China that are the danger because China uses its state-owned enterprises as a strategic tool of the state. By pretending they are private companies abiding by free-market rules makes us the biggest chumps on the planet.

We didn’t let the USSR buy our companies, real estate, or farmland during the Cold War. We realized that we would be helping our enemy. This was pretty simple, common sense, but we haven’t had this same common sense when dealing with China.

Most foreign countries don’t allow 100% foreign ownership of their businesses, but sadly, the United States does not exercise the same prudence. We allow sales of U. S. companies to foreign companies unless there are national security issues, such as technologies that are utilized by our military and defense systems. We should be equally protective of our natural resources and farmland to ensure the health and welfare of all Americans.

In theory, we have the means to prohibit certain foreign investors or companies from acquiring U.S. assets that would pose a threat to our national security.  The Committee on Foreign Investment in the United States (CFIUS) is the inter-agency body charged with conducting national security reviews for certain foreign investments in the United States. CFIUS retains the authority to review a transaction that could result in foreign control of any U.S. business and has the power to regulate, approve and deny these acquisitions.  Australia, Canada, New Zealand and the United Kingdom are exempt from CFIUS reviews CFIUS submits an annual report to Congress and the most recent report was submitted on July 31, 2023.However, CFIUS has not been a member of the interagency Committee, so acquisitions of farmland were not reviewed with regard to impacting our national security.   

CFIUS reviews were expanded when the President  Bush signed H.R. 556, Foreign Investment and National Security Act of 2007(FINSA) on July 26, 2007 after the Dubai Ports World transaction passed through CFIUS without a formal investigation, leaving a surprised and angry Congress determined to avoid a repetition of that scenario.

The scope of CFIUS reviews was expanded when the Foreign Investment Risk Review Modernization Act of 2018 was passed by Congress on June 26, 2018. “The FIRRMA-amended CFIUS process maintains the President’s authority to block or suspend proposed or pending foreign “mergers, acquisitions, or takeovers” of U.S. entities, including through joint ventures, that threaten to impair the national security.”  It expanded the jurisdiction of CFIUS to address growing national security concerns over foreign exploitation of certain investment structures which traditionally have fallen outside of CFIUS reviews.

According to the IPM News article of June 27, 2023, “Chinese firms and investors own just over 383,934 acres in the U.S., less than the state of Rhode Island, and far less than how much Canada, Netherlands, Italy, the U.K. and Germany, in that order, each own. China is No. 18 on the list of foreign investors.” Sen. Jon Tester (D-Montana) who is skeptical of Chinese land ownership in the U.S., told NPR, “I don’t know that we know for sure all the foreign land that potentially is owned by Chinese individuals or folks controlled by the Chinese government…Any company and any individual living in China that comes and tries to buy land can be controlled by the Chinese Communist Party because they have that kind of control over their people.” Tester said.

What is enabling Chinese companies to go on a buying spree of American assets? Trade deficits – our ever-increasing trade deficit with China over the past 20 years is transferring America’s wealth to China and making millionaires out of many Chinese. In 1994, our trade deficit with China was $29.5 billion, and it grew to $83.8 by 2001 when China was granted “Most Favored Nation” status and admitted to the World Trade Organization. By 2004, it had doubled to $162.3 billion. After a slight dip in 2009 during the depths of the Great Recession, the trade deficit grew to a high of $418 billion in 2018. It dropped down in $352.8 billion in 2021 and $382 billion in 2022 due to the COVID Pandemic shutdowns and was $257 billion in 2023.

On January 26, 2017, Robert D. Atkinson, President of the Information Technology and Innovation Foundation, testified at a hearing on “Chinese Investment in the United States: Impacts and Issues for Policymakers” before the U.S.-China Economic and Security Review Commission.  He testified: “For many years, China has recycled the earnings from its large and sustained trade deficit with the United States into U.S. Treasury bills. But the last few years have seen a marked increase in the amount of inward foreign direct investment (FDI) from China to the United States, across a range of industries. While the underlying motivation for some of this investment is commercial, at least one-third is from Chinese state-owned enterprises, and it is likely that considerably more is guided and supported by the Chinese government, specifically targeting sectors that are strategically important for U.S. national security or economic leadership.”

As reported in The China Project article of  November 6, 2023, “Chinese ownership of American farmland came under increased scrutiny at both the national and local level after the Fufeng Group, producer of the flavor enhancer MSG, announced in November 2021 its intentions to invest near Grand Forks, North Dakota…Arkansas, Florida, Louisiana, Montana, North Dakota, Ohio and three more states have since passed legislation that restricts some land ownership for Chinese citizens or companies.

The Florida law, for example, bans Chinese owners from buying land “within 10 miles of any military installation or critical infrastructure facility” such as seaports, airports and wastewater treatment plants. The law doesn’t apply to purchases made before July of 2023, but current owners must register their property with the state by January 2024 or face fines and the risk of state authorities seizing their land.

Montana’s governor in May signed legislation that prohibits Chinese individuals and companies from buying farmland, critical infrastructure, and homes near military facilities. Other states have passed laws that put a cap on the number of acres Chinese buyers may own.”

However, on February 2, 2024, the Epoch Times reported, “A federal appeals court has issued a limited temporary block on a Florida law that bans citizens of China from buying property in the state that Florida Gov. Ron DeSantis said was needed to counteract the “malign influence” of the Chinese Communist Party (CCP) in his state.”

It is probable that the prohibition of Chinese investors and companies buying agricultural land will have to be handled at the national level, instead of by states.  On January 5, 2024, the Congressional Research Service issued a brief, titled, “Selected Recent Actions Involving Foreign Ownership and Investment in U.S. Food and Agriculture” stating “Some Members of Congress have introduced a series of bills that would amend existing federal law to impose additional requirements on and review of foreign ownership of U.S. agricultural land and/or foreign investment in the U.S. food and beverage industry…Bills in the 118th Congress that would establish additional restrictions include H.R. 212, H.R. 344, H.R. 683/S. 168, H.R. 809, H.R. 840, H.R. 917/S. 369, H.R. 1448, H.R. 3357/S. 926, S. 684, and S. 1136.”

In addition, the House Select Committee on China released a bipartisan report on U.S.-China economic competition on Dec. 12, 2023 that “includes nearly 150 policy recommendations, of which a majority are supported by bipartisan members of the CSC, geared toward strengthening U.S. economic competitiveness vis-à-vis China.”

I am happy that legislators are finally waking up to the real dangers of our relationship with China. The Communist Chinese government is not our friend. China a geopolitical rival that has a written plan to become the Super Power of the 21st Century. Letting Chinese corporations acquire American companies, especially energy or technology-based companies is the biggest threat to rebuilding American manufacturing. Protecting our food supply is also an important component of protecting our national security. Therefore, we must prohibit Chinese acquisition of American farmland. 

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US Inventor Conference Was an Amazing Success!

Tuesday, November 14th, 2023

US Inventor’s First Annual Conference was held on October 19th and 20th at the U.S. Patent office facility in Alexandria, VA to celebrate 10 years of work to achieve its mission “to restore the patent system to what it once was and to empower inventors to succeed.”  About 150 people attended all or part of the two-day event.  It was a resounding success and truly a remarkable event!

I had the pleasure of attending this event because I have been a board member of the San Diego Inventors Forum since 2014 and have been the liaison between our club and US Inventor, which is the only organization representing small inventors, businesses, and startups to enact change that supports inventors.

The conference was preceded by a day at the Capital where about 30 of us broke up into small groups to meet with the staff of Congressional Representatives in Congress to discuss how to fix the broken patent system. The afternoon included a networking event held in the Rayburn building Gold Room to which Congressional staffers were invited to see the new documentary, Innovation Race, directed by Luke Livingston.  Mr. Livingston attended the whole USI conference and handled the live streaming and recording of the event.

US Inventor founder, Paul Morinville, began the conference Friday morning by saying that he started walking the halls of Congress to advocate for Inventor Rights in 2013 after his aspirations of achieving both the Inventor’s Dream and the American Dream were cut short by the America Invents Act of 2011 (AIA) and establishment of the Patent Trial and Appeal Board (PTAB). He was joined by Randy Landreneau in January 2014.  Paul incorporated US Inventor as a 501(c)(4) non-profit corporation on March 17, 2015 to put a stop to H.R. 9, the Innovation Act. After visiting the offices of every senator, the Innovation Act died in committee in  2016 during the 114th Congress (2015-2016). When Josh Malone joined them in 2017, it greatly helped their efforts.

Space doesn’t permit me to give a full recap of the conference, so I am providing highlights from my notes.  The panels both days were interspersed by the stories of inventors who have had their patents infringed or invalidated by the PTAB.  These stores were heartbreaking, and I could mot do justice to them in writing; you had to hear the stories to get the full impact. 

Next, former USPTO Director, Andrei Iancu, discussed “The Importance of Innovation”, saying in part that “patents and inventions ae part of the American fabric. We should stop and think what the world was like before the U.S. patent system…Every change that we use today was backed by a patent…Patents and the right to have patens are incorporated in the Constitution in Article 1, Section 8. He added that “without the patent system, it is very difficult to raise the money needed to produce and market new products.  There is an inextricable link between IP and innovation and without a secure patent system, innovation is stagnating…Inventors have always been the backbone of the American economy and American dream.”

Paul discussed “Where Did our Patent System Go?” He explained that even before the American Invents Act AIA) was passed in 2011, the Supreme Court decision of “Ebay vs. Merexchange” in 2006 “changed Intellectual property from a personal property to a ‘tort’ or “public franchise” and created a “public interest test’ in order for inventors to receive injunctive relief from infringement.” Injunctive Relief stops an infringer from making selling, or using a patent, but it has become difficult for an inventor to pass the “public interest test” against a large corporation that has saturated the market with the product based on the patent they infringed.

The AIA created the Patent Trial and Appeal Board (PTAB). It is a nonjudicial administrative tribunal within the USPTO. A panel of lawyers are appointed “Administrative Patent Judges” and granted bonuses to revoke patents.  There is no jury and no due process of law.  The PTAB is funded by fees of the petitioner (usually a large corporation that is infringing the patent they are challenging for review).  Currently, the PTAB is invalidating 84% of the patents they review.  

A panel discussion of “PTAB vs. Federal Court:  Comparing the Two Forums” followed that was moderated by Warren Tuttle.  Panelists were Rob Sterne, Adam Mosoff, and Molly Metz. A few comments were:

Adam Mosoff – “The PTAB hasn’t lived up to its expectations. I had told people that the ‘first to file’ vs. ‘first to invent’ and PTAB would be problematic. The PTAB didn’t put in any protections for inventor’s rights. PTAB was characterized as easier for people and faster, but they set up a system that was ultimately faster to lose rights.

Molly Metz – “I spent over $400,000 and it took four years, so it wasn’t cheaper or faster.” (Molly had share he heartbreaking story of her patent infringement and invalidation after Paul’s introduction.)

Rob Sterne – “We need a system that is really faster and fair for people.  The way PTAB law is applied isn’t anything like the way it was supposed to be.  It has put a real damper on investment and innovation in this country.”

The Friday afternoon session included a discussion of “Bleeding You Dry:  The Court’s Misuse of Injunctive” by Thomas Woolsten, founder of Mercexchange and main inventor of 30 patents. He said, “The current system provides strong incentives for patent infringement.  No patent of importance is going to get to the injunctive stage.”

The highlight of the afternoon was “The Great Debate: PREVAIL, PERA, and New Legislation.” Moderated by Paul Morinville.  The panelists were:  Judge Paul Michel, Scott McKeown, Rudy Fink, and Steve Daniels. Judge Michel said, “About 50% of American venture capital is now going overseas to China and other countries…The anti-patent lobby is very large and well-funded.” He supports PERA because “it takes the courts out of the issue of eligibility and solves 80-85% of the problems with patents.”

S. 2140: Patent Eligibility Restoration Act of 2023 (PERA) introduced by Senators Thomas Tillis (R-NC) and Christopher Coons (D-DE) on 6/22/2023 was discussed in my article “Inventor Rights Still Being Threatened.”

S. 2220: PREVAIL Act was introduced on Jul 10, 2023 by Senator Christopher Coons (D-DE) – “A bill to amend title 35, United States Code, to invest in inventors in the United States, maintain the United States as the leading innovation economy in the world, and protect the property rights of the inventors that grow the economy of the United States, and for other purposes.”

Friday’s event concluded with remarks from Judge Pauline Newman, followed by a networking cocktail reception.

There isn’t enough space in this article to permit a recap of the topics covered at the Saturday event. The following topics were discussed:

“Does ‘Any” mean ‘Any’? Ask Alice” presented by Robert Greenspoon.

Why and How 97% of IP Portfolio Owners Destroy Most of their Portfolios” discussed by panelists Evan Langdon, Jack Lu, and Russ Genet and moderated by Steve Taylor

“How to Survive the Patent System” discussed by Jeff Hardin, Josh Malone and Paul Bartkowski that was moderated by Eli Mazour.

“New Solutions for New Problems:  Freezing Assets of Online Infringers on Amazon, YouTube, Facebook, and the Internet” presented by Joel Rothman.

The afternoon concluded with a discussion of “Advocating for a Stronger Patent System” by panelists Paul Morinville, Molly Metz, Cliff Maloney, Justin Greiss, and Randy Landreneau.

An awards ceremony and dinner took place that evening at the Holiday Inn Carlyle in Alexandria, VA where attendees stayed. Awards presented were:  Michael Kintner: The Inventor; Molly Metz: The Advocate; John Murray: The Warrior; Jeff Hardin: The Veteran.

In closing, Paul said, “We are honored to have such a significant turnout for our first event and incredibly grateful to our members, speakers, and sponsors for making this event possible. We have so much work to do, and I hope the event, discussions, panels, and presentations allowed USI members to feel empowered and motivated to enact change.”

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Inventor Rights Still Being Threatened

Tuesday, September 5th, 2023

During the 117th Congress (2021-2022), several bills were introduced with the purported purpose of restoring inventors’ rights and fixing some of the problems generated by that Act Leahy–Smith America Invents Act (AIA) of 2011. None of these bills were passed by both the House and Senate, and most didn’t even get out of committee for a vote. A few of these bills would have actually made matters worse, so it was a good thing they didn’t pass. Only one bill was supported by the top inventors’ group, US Inventor.

The bills not supported by US Inventor were:

S.2774 – Pride in Patent Ownership Act was introduced by Senator Patrick Leahy (D-VT) on  09/21/2021.  This bill looked good for either being passed by the Senate separately before Congress recesses for the holidays or passed by being attached to the National Defense Authorization Act (NDAA). The NDAA is “must pass” legislation funding the military at a time when there are credible threats of wars around the world. Attaching the Pride in Patent Ownership Act to the NDAA means it would certainly have become law. Fortunately, neither of these predictions came true.

S. 2891, The Restoring the America Invents Act, introduced by and Patrick Leahy (D-VT) into the Senate on September 29 2021 and referred to the Committee on the Judiciary, but was not voted on by the Senate before the end of the 117th Congress.

HR 5902, The Clear Patents Act, introduced by Representative Darrell Issa (R-CA) on 11/05/21 to the House. This bill was also referred to the Committee on the Judiciary, but was not voted on by the House before the final recess at the end of 2022.

S.4734 – Patent Eligibility Restoration Act of 2022  was introduced by Senator Thomas Tillis (R-NC) on 08/02/2022.  This bill was referred to the Committee on the Judiciary, but was not voted on by the Senate before the end of the 117th Congress.

The only bill supported by US Inventor was:

HR 5874, Restoring America’s Leadership in Innovation Act of 2021 (RALIA), was introduced into the House by Representative Thomas Massie (R-KY) on 11/04/2021 and referred to the Subcommittee on Courts, Intellectual Property, and the Internet. US Inventor supported this bill because it was “designed to restore to Americans a patent system “as the Constitution of the United States originally envisioned it.”

Representative Massie’s press release stated, “The RALIA legislation restores to Americans a patent system as the Constitution of the United States originally envisioned it,” said Congressman Massie. “In Article 1, Section 8 of the Constitution, the Founding Fathers gave Congress the authority to protect the discoveries of inventors. Specifically, they created a patent system to ‘promote the Progress of Science and useful Arts, by securing for limited times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.’  I am sad to say that this bill was also not voted on by the House before the end of the 117th Congress.

The above bills introduced in 2021 were discussed in more detail in my blog article, “Inventors Rights Must be Restored” published by Made in America Movement in January 2022.

What many people do not realize is that bills not passed by the end of the Congressional session, in this case the 117th, are considered “dead” and must be reintroduced in the session of the next Congress, which is now the 118th Congress (2023-2024).

Thus far, none of these bills have been reintroduced by their sponsors, but one of the bills introduced in the 117th Congress has been re-introduced recently.

S. 2140: Patent Eligibility Restoration Act of 2023  was introduced by Senators Thomas Tillis (R-NC) and Christopher Coons (D-DE) on 6/22/2023. The brief description states, “To amend title 35, United States Code, to address matters relating to patent subject matter eligibility, and for other purposes.”

The need for this bill was provided in the “Findings” section:

  1. “patent eligibility jurisprudence interpreting section 101 of title 35, United States Code, requires significant modification and clarification….
  • the Supreme Court of the United States and other courts created judicial exceptions to the wording of that section, thereby rendering an increasing number of inventions ineligible for patent protection…
  • Efforts by judges of district courts and courts of appeals of the United States to apply the exceptions described in paragraph (2) to specific circumstances have led to extensive confusion and a lack of consistency— throughout the judicial branch of the Federal Government and Federal agencies; and among patent practitioners…
  • Many judges of the United States Court of Appeals for the Federal Circuit and of various district courts of the United States have explicitly expressed the need for more guidance with respect to the meaning of section 101 of title 35…”

“Under this Act, and the amendments made by this Act, the state of the law shall be as follows:

(A) All judicial exceptions to patent eligibility are eliminated.

(B) Any invention or discovery that can be claimed as a useful process, machine, manufacture, or composition of matter, or any useful improvement thereof, is eligible for patent protection, except as explicitly provided in section 101 of title 35, United States Code, as amended by this Act, as described in subparagraphs (D) and (E) of this paragraph.”

The statements describing what the bill will do sound good at first reading, but the “devil is in the details” of subparagraphs (D) and (E), as well as the amendments to Section 3 of the bill – Patent Eligibility.

This bill was reviewed in detail during weekly Zoom meetings held by US Inventor for several weeks after the bill was introduced in June.  These reviewers included retired judges, patent attorneys, and inventors.  As a result of this intensive review, US Inventor released a policy paper, titled “PERA Starts by Making Nearly All Inventions Implemented in Software Patent Ineligible:” 

“PERA abrogates all judge-made exceptions, including the abstract idea in its preamble (however,

not in the law), yet it introduces new exceptions disqualifying entire swaths of technology as ineligible for patent protection. An invention is ineligible if:

‘‘(B)(i) Subject to clause (ii), a process that is substantially economic, financial, business, social, cultural, or artistic, even though not less than 1 step in the process refers to a machine or manufacture.’

Nearly any invention can be categorized as economic, financial, business, social, cultural, or artistic. Most inventions implemented in software are claimed as a process. This extraordinarily broad language means that inventions implemented in software are ineligible for patent protection right from the starting gate.” 

According to the U S Inventors end of the year report, “The Patent Trial and Appeal Board (PTAB) has cancelled claims in 84% of the 2,500+ patents reviewed since 2011 and most inventors do not have a half a million dollars necessary to fund a legal defense.”

This is why US Inventor policy paper states, “PERA Must Remain a Vehicle for Section 101 Debate.

Judge-made law regarding Section 101 eligibility is severely restricting U.S. innovation, allowing our adversaries like China as well as others to take the lead in global innovation. This is severely damaging U.S. national and economic security.

Congress must fix Section 101 correctly. The influence of powerful lobbies must be leveled by arguing the merits of the legislation openly and transparently in Congress.

The authors of PERA must provide a clear and sound public policy justification for making such huge swaths of technologies ineligible for patent protection where there are no similar restrictions in other countries.

Once Congress agrees to a public policy position on Section 101, then the words of PERA must be precisely defined to ensure that the policy is effectuated in legislation, leaving no ambiguity for judge-made law to override it.”

The paper concludes, “For the foregoing reasons, US Inventor opposes PERA as written, but PERA should not die. It presents a valuable opportunity to initiate open and transparent debate in Congress so that the U.S. public policy regarding patent eligibility can be properly formed, and legislation can be crafted to effectuate that public policy.”

If you support patent rights you can sign the Inventors’ rights Resolution here.  You can also join US. Inventors as a supporting member here.  If you have the time, you can also attend US Inventor’s first annual conference in Washington, D.C. on October 19-21, 2023 to celebrate years 10 years of work.  There are over twenty confirmed speakers, and the plan is to bring you an event full of presentations, panel discussions, and plenty of networking opportunities. The tickets include access to all presentations, discussions, and informative opportunities, as well as access to event receptions, breakfasts, and dinner.  More Details and Register: www.usinventor.org/usi-conference

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How Could we Reduce Inflation and Balance Foreign Trade & the Federal Budget?

Tuesday, August 1st, 2023

We are now nearing the end of the second year of high inflation, and many are wondering why has it been so hard for the Fed to kill inflation.  Could the Fed improve the efficiency of its inflation fighting and avoid causing a recession? Could it do so in a way that balances both foreign trade and the federal budget?

“Yes” is the answer given by one of my fellow members of the Coalition for a Prosperous American, John R. Hansen, PhD, Economic Advisor, The World Bank (retd.) and Founding Director of Americans Backing a Competitive Dollar (ABCD), He wrote me that he believes the Fed could do all of this plus fulfill its mandate of economic growth with stable prices more successfully – and brighten the future for all Americans, both now and for generations to come with only a small policy tweak.”

He explained that “each of America’s ten recessions since the late 1950s has been preceded by inflation and significant increases in the Fed Funds Rate (FFR). Higher interest rates and tighter credit obviously increase costs and reduce demand for American goods resulting in inflation. Reduced demand reduces both output from U.S. producers and growth. By increasing the cost of doing business, higher Fed interest rates force businesses to reduce output and fire workers, leading to recessions.”

In his opinion, “today’s Fed faces a key challenge because when the Fed raises the Fed Funds Rate, inflows of foreign-source money dilute the Fed’s efforts to reduce the availability and increase the cost of capital. This makes it harder for the Fed to control inflation. Also, excessive stocks of domestic credit tend to reduce the Fed’s ability to raise banks’ lending rates by normal margins.

He added, “When foreign speculators buy up dollars, they raise the dollar’s exchange rate. This makes foreign goods cheaper than those produced in America, destroying demand for American products both here and abroad. U.S. producers find it increasingly difficult to compete with foreign-made goods and many may go out of business.”

Dr. Hansen has developed a solution to moderate inflows of foreign money to make the Fed’s traditional inflation-fighting tools more effective. — a Market Access Charge (MAC) “on any purchase of U.S. dollar financial assets by a foreign entity or individual. As a one-time charge, the MAC would discourage short-term investors, overseas private investors, and return-sensitive official investors such as sovereign wealth fund managers from excessive speculation and trading in U.S. dollar assets.”

He believes that the Fed “can efficiently and effectively use the MAC as a tool to fix the undervaluation of foreign currencies against the dollar. Implementing the MAC could eliminate the U.S. budget deficit, sharply reduce the threat of future debt-ceiling crises, and increase resources available for important industrial policy initiatives, especially those related to national security such as chip manufacturing.”

Furthermore, he wrote that “implementing the MAC would markedly increase the Fed’s ability to control inflation with higher interest rates and tighter monetary policies. With the MAC in place, the Fed’s efforts would no longer generate the massive inflows of foreign-source money inflows that today are triggered by high U.S./foreign interest rate spreads.”

The MAC would be a small fee that would be collected by U.S. banks on all foreign-source money seeking entry to America’s financial markets. The fee, which would be adjusted periodically to eliminate the spread between higher average U.S. interest rates and lower average foreign interest rates, would sharply reduce the speculative gains of foreign-source money. Last year, $90 trillion worth came into America’s capital markets, which was about four times GDP!

Dr. Hansen’s latest calculations indicate that “a 2% MAC charge – about half the spread between U.S. and foreign interest rates that is drawing in foreign cash and making U.S. goods and workers too pricy to compete internationally – would generate about $1.8 trillion of new net revenues per year out of the pockets of foreign speculators – enough to eliminate the U.S. budget deficit and to allow America to start paying down its largest-in-the-world national debt.”

Such revenues would have fully covered the $1.4 trillion deficit for FY2022 with $400 billion left over to support important services, cut taxes, and/or pay down the national debt. Fewer Fed interest rate increases would lower the cost of borrowing for the government. Implementing the MAC tomorrow might not save America from defaulting on its debt this year, but doing so would greatly improve America’s fiscal position, sharply reduce the risk of a recession, stimulate economies of scale, reduce inflation, and reduce America’s growing debt.

Here are a few of the many benefits that America would enjoy if Congress were to approve this trade policy initiative – a policy based on 21st century realities, not 18th century theories.

  1. Reduce the incentives of foreign countries like China and Japan to manipulate the value of their currencies against the dollar.
  2. Increase domestic and foreign demand for Made-in-America goods, thereby creating at least 3-5 million well-paying middle-class jobs, mainly in manufacturing and associated sectors.
  3. Trigger domestic and foreign investments in American manufacturing that would increase output and productive efficiency.
  4. Generate about ten times as much Government revenue per year as import duties on merchandise trade currently generate. And unlike import duties, the MAC would be paid by foreigners, not by people living in America.
  5. Be far more effective than tariffs in reducing overall U.S. trade deficits with countries like China. Tariffs can be evaded rather easily with a large number of widely known tricks like shipping through third countries, rebranding, and under-invoicing.
  6. Make it possible for the U.S. Government to implement important national security, infrastructure, environmental protection, and social investments without raising taxes or increasing the public debt.
  7. Reducing America’s debt service burden would further increase the Government’s ability to invest in high priority programs such as skills training, childcare, and other initiatives that would help the average American and increase America’s productivity without increasing the public debt.
  8. By implementing the MAC, America could roughly double its current rate of economic growth. The MAC would stimulate domestic production and exports while reducing our excessive dependence on imports.

Dr. Hansen and the Coalition for a Prosperous America believe that the MAC would be sufficient to discourage foreign inflows of investment with no material impact on foreign direct investment in factories and other directly productive activities. The MAC or something like it is urgently needed. Implementing the MAC would greatly improve America’s fiscal position, sharply reduce the risk of a recession, stimulate economies of scale, reduce inflation, and reduce America’s growing debt.  Our top priority today should be to protect our national security to remain a free country to ensure the well-being and safety of our children and grandchildren in the future.  

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What Would be The Benefits of the ONSHORE Act of 2023?

Wednesday, July 12th, 2023

The COVID pandemic proved that we cannot rely on imports of products needed to protect the health and welfare of Americans. Offshoring of manufacturing left the U.S. vulnerable to supply chain disruptions. We cannot defend our country if the products needed by the military and defense industry become unavailable because of being sourced offshore, especially in China. It’s time for all Americans to wake up to the dangers of being dependent on other countries for manufacturers goods, especially one that has become a threat to our country.

Strengthening domestic manufacturing capabilities, especially for industries of the future, is critical for economic and national security. We must forge a new path by rebuilding American manufacturing to win the international competition for good jobs, sustained economic growth, and rebuild a strong, secure domestic supply chain if we want to remain a free country.

I am glad to see that Congress is finally paying some attention to this need:  On June 8, 2023, Senator Mark Kelly (D-AZ), Senator JD Vance (R-OH), and Senator Tom Cotton (R-AR) introduced S.1915 – ONSHORE Act of 2023, a bipartisan bill to boost domestic manufacturing and strengthen supply chains that will help bring critical supply chains back to America by assisting communities of all sizes with the site development needed to attract manufacturing facilities. 

The joint press release states: “The U.S. faces a shortage of shovel-ready sites with the necessary infrastructure and workforce for companies to quickly begin construction on new manufacturing facilities. The ONSHORE Act creates a Critical Supply Chain Site Development Grant Program within the Economic Development Administration, which would assist communities, including small towns and tribal communities, with site development to attract manufactures from critical industries to build new facilities in their area.” 

Senator Vance stated, “As our nation takes the necessary steps to reshore critical supply chains and spur innovation, everyone in America should reap the rewards This bill would deploy capital broadly to ensure the foundations of tomorrow’s industry and growth are laid in underdeveloped regions. If enacted, it will deliver good-paying jobs, build vibrant communities, and strengthen supply chains—in Ohio and around the country.” 
 
Senator Kelly stated, “As we work to bring manufacturing supply chains for critical industries from microchips to critical minerals back to America, we have to maximize this opportunity by making sure there are enough sites with the infrastructure and workforce needed for new facilities. For a lot of small towns and tribal communities, the biggest barrier to attracting investment is the cost of getting sites ready for development. We’re working to fix that, which will boost manufacturing and create good-paying jobs in every corner of our states and the country.” 
 
Senator Cotton stated, “We cannot rely on other countries like China for our essential technologies. The technologies of tomorrow should be tested, researched, and made in America. This legislation will help make the necessary investments in our communities to make that possible.”

So far, the OSHORE ACT has received enthusiastic support from the International Economic Development Council (IEDC), the Global Business Alliance, the Greater Phoenix Economic Council, the Arizona Commerce Authority, and JobsOhio..

Nathan Ohle, President & CEO of IEDC said, “The ONSHORE Act will provide communities with essential resources to aid in attracting supply chain manufacturers. Economic developers across the U.S. will welcome this new initiative and IEDC urges the swift passage and implementation of the ONSHORE Act.”

Nancy McLernon, president & CEO of the Global business Alliance, said, “Site readiness is a critical consideration for international companies planning major investments in the United States… and urges all Senators to support this measure and other policies that make it easier to invest in America.”  

Chris Camacho, President & CEO of the Greater Phoenix Economic Council said, “The availability of shovel-ready sites with the necessary infrastructure and skilled workforce is a crucial factor in attracting companies to invest in Greater Phoenix and bolster U.S. supply chains. This program ensures that strategic mega sites and regionally impactful locations are properly prepared for new industrial investment. With enhanced site-readiness, the United States will be better equipped to compete globally, foster the growth of critical industries, and ensure the production of essential products domestically.”

Sandra Watson President & CEO, Arizona Commerce Authority, said, “We applaud Senator Kelly for leading on this important legislation. This ONSHORE Act will significantly strengthen U.S. competitiveness for new manufacturing opportunities, bringing more jobs and investments to Arizona.”

J.P. Nauseef, JobsOhio president and CEO, said, “I applaud the introduction of the ONSHORE Act, which will help Ohio and the rest of the United States more fully capitalize on this generational opportunity by expanding the number of sites that are ready to support major development projects.”

I can see that basic infrastructure, such as road access or water and power utility hookups, is an important factor affecting where a new manufacturing facility is built, but there are so many abandoned manufacturing sites throughout the country that I question the need for the Economic Development Agency’s Critical Supply Chain Site Development Grant Program. There are also large retail stores, such as former K-Mart stores, that could be converted to manufacturing sites by remodeling and changing zoning. The redevelopment of these sites would provide good opportunities to revive the industrial base of states hard hit by offshoring, such as Michigan, Ohio, and North and South Carolina.

In my opinion, there is a greater need for a new type of Small Business Innovation grant program to fund establishing manufacturing plants to manufacture components and systems that are no longer made in the U.S. because of being offshored to China and other Asian countries.  This type of grant would also provide new industrial investment, including in rural and tribal communities, and regions with high unemployment.  These companies would help position the U.S. to compete against adversaries like China, boost domestic manufacturing, and build resilient supply chains. 

Priority for receiving such a grant should be given to proposals that would manufacture critical components and systems needed by our military and defense industrial base.  Semiconductors and batteries are not the only critical products that need to be onshored/reshored.  Components such as capacitors, resistors, inductors, transformers, connectors, and flex circuits also need to be returned to being made in the USA.

This kind of investment will better position the U.S. to compete against international competitors like China and the European Union and ensure more critical products are made in America.  

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Congress Must Stop Abuse of De Minimis Imports

Tuesday, June 20th, 2023

When you order a product online without country-of-origin information being provided, the product may be sent directly to you by a company in a foreign country.  If the product is under $800 in value, it isn’t inspected by Customs & Border Protection (CBP) and no duties or tariffs are charged. How does this happen?

A White Paper, titled “Trade and Tariffs” on the website of the Coalition for a Prosperous America explains: “De minimis imports are the gateway for every fly-by-night foreign vendor to ship directly into the United States. When a package receives de minimis treatment, it arrives without the need of a customs broker or bond, without paying any tariffs or taxes, and without meaningful possibility of regulatory oversight.” [“de minimis” is Latin for “too trivial or minor to merit consideration.”]

The de minimis rule was added as Section 321 to the Tariff Act of 1930…The 1938 Congress set low-dollar thresholds for three different importation scenarios, assigning a $5 threshold for bonafide gifts and personal effects travelers brought with them, and a $1 de minimis for any other situation…There are three types of import situations covered by De minimis:

  1. ‘Bona fide gifts’ mailed to Americans from their friends and family abroad
  2. Articles accompanying travelers from abroad for household use
  3. A “catch all” anything else provision to ensure no undue burden was spent.”

The law’s opening line states its purpose: “to avoid expense and inconvenience to the Government disproportionate to the amount of revenue that would otherwise be collected.” It was meant to serve as an administrative tool to ensure that customs officers aren’t forced to do assessments on low-value goods which would end up costing the government more money than they would generate.”

“ For regular imports, the law requires importers to provide Customs & Border Protection (CBP) an advance manifest of the incoming cargo describing it. But de minimis shipments, including millions of e-commerce packages, typically arrive with no advance information. The information scrawled on the packages is often incomplete and unverifiable. CBP has to process a whopping 2 million of these shipments daily and does not have the capability to detect and seize illicit and dangerous goods.” Goods eligible for de minimis treatment enter the U.S. free of duties and taxes.

For most of Section 321’s history, the lowest threshold of $1 only rose to $5 by the 1990s. However, de minimis was increased to $200 by Congress in 1994, and in 2015, Congress raised the de minimis threshold to a whopping $800 after intense lobbying by express consignment companies like FedEx and UPS and e-commerce sites like Amazon and eBay. In comparison, China’s de minimis is 50 yuan, which is less than $8 USD.

The CPA paper states, “The predictable result is a major calamity putting U.S. producers and traditional retailers out of business and destroying jobs. Our permissiveness is also causing lawlessness at the ports, allowing a tidal wave of counterfeit and dangerous goods to flood in.”

Not only are U.S. companies and workers subjected to a new level of job-destroying competition but dangerous illicit drugs, such as fentanyl, and counterfeit goods are shipped directly to US consumers while evading detection.

In 2022, the U. S. had a trade deficit with China of $382.9 billion up from $353.4 billion in 2021, but down from a high of $418.2 billion in 2018. The question is:  If de minimis imports were counted, wouldn’t they increase our trade deficit with China?

The answer is “yes.”  On May 15, 2023, Jeff Ferry, CPA’s Economist, released an analysis that found that the impact of de minimis on the U.S. economy is large and getting larger.  Key findings were:

  • “Our new estimate puts de minimis China revenue last year at $187.9 billion.
  • The uncounted imports increase the actual 2022 U.S. goods trade deficit by 16% from $1.19 trillion to $1.38 trillion, representing some 8.3 million lost U.S. jobs.
  • De minimis imports are deeply damaging to U.S. manufacturing industry and U.S. brick and mortar retailers.
  • With the incursion of Chinese-owned retailers like Shein and Temu into the U.S. market, we may be witnessing a historic shift away from U.S.-owned e-commerce giants like Amazon.”

CPA has been urging Congress to fix the problem of de minimis by lowering the threshold back to $9 ($5, but adjusted for inflation). The good news is that some Senators and Congressional Representatives have listened to CPA’s statement of the problem and introduced bills that would partially rectify the problems caused by de minimis.

On Thursday, June 15, 2023, U.S. Representatives Earl Blumenauer (D-OR) and Neal Dunn (R-FL) introduced  the Import Security and Fairness Act in the House.  U.S. Senators Sherrod Brown (D-OH) and Marco Rubio (R-FL) introduced a companion bill of the same name into the Senate. The purpose of the bills is “to stop China and Russia from exploiting the de minimis threshold and require Customs and Border Protection (CBP) to collect more information on de minimis shipments.”

While these House/Senate companion bills don’t reduce the dollar value of de minimis, they restrict what countries are allowed to ship de minimis shipments.  The Blumenauer/Dunn House Act states:

‘‘(1) IN GENERAL. —An article may not be admitted free of duty or tax under the authority provided by subsection (a)(2)(C) if the country of origin of such article, or the country from which such article is shipped, is—

‘‘(A) a nonmarket economy country (as such term is defined in section 771(18)); and

‘‘(B) a country included in the priority watch list (as such term is defined in section 182(g)(3) of the Trade Act of 1974 (19 U.S.C.32242(g)(3))).”

According to an article titled, “Is China a Non-Market Economy?” datedApril 2, 2019  by Daniel Griswold and Danielle Parks of the Mercatus Center at George Mason University,  “The US Department of Commerce currently labels 11 countries as NMEs: Belarus, Georgia, the Kyrgyz Republic, the People’s Republic of China, the Republic of Armenia, the Republic of Azerbaijan, the Republic of Moldova, the Republic of Tajikistan, the Republic of Uzbekistan, the Socialist Republic of Vietnam, and Turkmenistan. In the past, some countries designated as NMEs were then converted to market economies (MEs), such as Poland (1993), Russia (2002), and Ukraine (2006).” This means that imports from China would not be admitted free of duty or tax.

With regard to the priority watch list or “Section 182 of the Trade Act of 1974…requires the U.S. Trade Representative to identify countries that deny adequate and effective IP protections or fair and equitable market access to U.S. persons who rely on IP protection.” China is the county that most flagrantly violates U. S. Intellectual Property rights, so is most certainly on the watch list.

On Wednesday, June 14, 2023 Senators Bill Cassidy, (R-LA), Tammy Baldwin (D-WI) and JD Vance (R-OH) introduced the De minimis Reciprocity Act of 2023 “to stop Communist China and other countries from abusing U.S. trade laws that allow small dollar imports into the U.S. duty free.”

Senator Cassidy’s press release states, “The bill would bar Chinese exports from entry via the expedited “de minimis” channel and reduce the threshold for duty-free imports into the U.S. to an amount that matches the threshold our trade partners use, ensuring reciprocity and increasing transparency at our borders.”

Additionally, “The De Minimis Reciprocity Act would also:

  • Exclude untrustworthy countries from using the ‘trusted’ de minimis channel. 
  • Only allow express carriers to facilitate de minimis imports into the U.S. to help better at stop counterfeits and fentanyl at the border.
  • Require more information on every package entering the U.S.
  • Use the revenue proceeds to establish a fund for reshoring industry from China.” 

While China may be the most egregious in taking advantage of de minimis shipments, we also have trade deficits with India, Vietnam, South Korea, and many other countries.  I am sure that uncounted de minimis shipments from these other countries would increase our trade deficits for those countries also.   I personally would like to see a much simpler bill that incorporates CPA’s recommendation of reducing de minimis shipments to $9 for every country.  In my opinion, this is the only fair, long-term solution.    

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Action on China or Yet Another Charade by Congress?

Tuesday, January 17th, 2023

On January 10, 2023, the House voted to pass a resolution “to create a select committee focused on U.S. competition with China, fulfilling a campaign promise Republicans made in the lead-up to the 2022 midterm elections.”

An article in The Hill, stated: “The select committee, chaired by Rep. Mike Gallagher (R-Wis.), will zero in on the Chinese Communist Party’s economic, technological and security progress and the strategic competition between Beijing and Washington. The resolution tasks the panel with investigating and submitting policy recommendations on those matters.” The Committee will be “made up of seven Republicans and five Democrats” and “has the authority to hold public hearings.”

The question that should be on everyone’s mind is — Will this Committee have any real impact when Congress has not taken any action on recommendations provided by the annual report they have received from the U.S.-China Economic and Security Review Commission for 20 years?.  Will this Committee just be another “dog and pony” show to demonstrate that Congress is taking the threat China poses to the U.S. more seriously?

For those of you who have never heard of such a Commission, it “was created on October 30, 2000 by the Floyd D. Spence National Defense Authorization Act of 2001, Pub. L. No. 106–398 (codified at 22 U.S.C. §7002) …” This was after China was granted “Most Favored Nation” status, now known as Permanent Normal Trade Relations (PNTR) and allowed to become a member of the World Trade Organization by President Clinton.

The stated “purpose of the Commission is to monitor, investigate, and report to Congress on the national security implications of the bilateral trade and economic relationship between the United States and the People’s Republic of China. “

The main duty of the Commission is to provide an annual report to Congress — “Not later than December 1 each year (beginning in 2002), the Commission shall submit to Congress a report, in both unclassified and classified form, regarding the national security implications and impact of the bilateral trade and economic relationship between the United States and the People’s Republic of China. The report shall include a full analysis, along with conclusions and recommendations for legislative and administrative actions, if any, of the national security implications for the United States of the trade and current balances with the People’s Republic of China in goods and services, financial transactions, and technology transfers…”

Each report was required to include full discussion of key factors of the U.S.-China relationship that are very comprehensive.  The following briefly summarizes the key factors:

(A) “The role of the People’s Republic of China in the proliferation of weapons of mass destruction and other weapon systems…”

(B) “The qualitative and quantitative nature of the transfer of United States production activities to the People’s Republic of China, including the relocation of manufacturing, advanced technology and intellectual property, and research and development facilities…”

(C) “The effects of the need for energy and natural resources in the People’s Republic of China on the foreign and military policies of the People’s Republic of China, the impact of the large and growing economy of the People’s Republic of China on world energy and natural resource supplies, prices, and the environment…”

(D) “Foreign investment by the United States in the People’s Republic of China and by the People’s Republic of China in the United States…”

(E) “The military plans, strategy and doctrine of the People’s Republic of China…and the implications of such objectives and trends for the national security of the United States.”

(F) “The strategic economic and security implications of the cyber capabilities and operations of the People’s Republic of China. “

(G) “The national budget, fiscal policy, monetary policy, capital controls, and currency management practices of the People’s Republic of China, their impact on internal stability in the People’s Republic of China, and their implications for the United States.”

(H) “The drivers, nature, and implications of the growing economic, technological, political, cultural, people-to-people, and security relations of the People’s Republic of China’s with other countries, regions, and international and regional entities…”

(I) “The compliance of the People’s Republic of China with its commitments to the World Trade Organization, other multilateral commitments, bilateral agreements signed with the United States, commitments made to bilateral science and technology programs, and any other commitments and agreements strategic to the United States (including agreements on intellectual property rights and prison labor imports), and United States enforcement policies with respect to such agreements.”

(J) “The implications of restrictions on speech and access to information in the People’s Republic of China for its relations with the United States in economic and security policy, as well as any potential impact of media control by the People’s Republic of China on United States economic interests.”

(K) “The safety of food, drug, and other products imported from China…”

The report was also required to “include recommendations for action by Congress or the President, or both, including specific recommendations for the United States to invoke Article XXI (relating to security exceptions) of the General Agreement on Tariffs and Trade 1994 with respect to the People’s Republic of China, as a result of any adverse impact on the national security interests of the United States. “

The 2022 Annual Report to Congress was submitted on November 15, 2022 to Patrick Leahy
President Pro Tempore of the U.S. Senate and Nancy Pelosi, Speaker of the U.S. House of Representatives. “The Commission conducted seven public hearings, taking testimony from 74 expert witnesses from government, the private sector, academia, think tanks, research institutions, and other
backgrounds.”

This report contained the following chapters:

Chapter 1 – CCP Decision-Making and Xi Jinping’s Centralization of Authority

Chapter 2 – U.S.-China Economic and Trade Relations

  • Section 1 – U.S.-China Economic and Trade Relations
  • Section 2 – Challenging China’s Trade Practices
  • Section 3 – China’s Energy Plans and Practices
  • Section 4 – U.S. Supply Chain Vulnerabilities and Resilience

Chapter 3 – U.S.-China Security and Foreign Affairs

  • Section 1 – Year in Review: Security and Foreign Affairs
  • Section 2 – China’s Cyber Capabilities: Warfare, Espionage, and Implications for the United States
  • Section 3 – China’s Activities and Influence in South and Central Asia

Chapter 4 – Taiwan

Chapter 5 – Hong Kong

The report made 39 very specific recommendations for Congressional consideration to address the key factors covered in the above chapters of the report. The Executive Summary states: “The Commissioners agreed that ten of these recommendations, which appear on page 10, are the most important for congressional action.” However, the concluding comment of the Executive Summary states: “There remains a gap between America’s growing recognition of the challenges China presents and our responses to date in dealing with them. The purpose of this report is to assess recent developments and to recommend a set of actions that Congress can consider to help meet the challenges, and seize the opportunities they present.”

Space doesn’t permit considering the ten most important recommendations, but I will at quote the shortest recommendation as an example:

#7. “. Congress create an authority under which the president can require specific U.S. entities or U.S. entities operating in specific sectors to divest in a timely manner from their operations, assets, and investments in China, to be invoked in any instance where China uses or threatens imminent military force against the United States or one of its allies and partners.”

I’ve wondered for years if any Congressional Representative actually read the annual report because I never saw any actions taken by Congress with regard to the recommendations I read in the reports of 2008, 2011 and 2016 when I was writing my three books. It seems to me that the new select Committee on China should review the Commission’s 2022 report and propose legislation to act on the recommendations of the report instead of starting all over with holding hearings.

Our national security is at stake, and we don’t have time to “start from scratch” with a new committee conducting hearings to replicate the work that has already been done by the U.S.-China Economic and Security Review Commission. It would be a far better service to our country to have Congress actually take action to pass legislation recommended by the Commission to protect our country from the plans of China to destroy our country economically and militarily to become the “super power” of the 21st Century.

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Inventors’ Rights under Threat Again

Monday, December 12th, 2022

Inventor Rights are being threatened by the Pride in Patent Ownership Act, S.2774, sponsored by Sen. Leahy, Patrick J. (D-VT).  Sen. Leahy was the co-sponsor of the America Invents Act of 2011 that adversely changed the patent system from the best in the world to one that has eroded inventors’ rights.

The bill is looking good for either being passed by the Senate separately before Congress recesses for the holidays or passed by being attached to the National Defense Authorization Act (NDAA). The NDAA is “must pass” legislation funding the military at a time when there are credible threats of wars around the world. Attaching the Pride in Patent Ownership Act to the NDAA means it would certainly become law.

“This bill requires disclosure of certain patent-related information, including information about ownership and funding. Under the bill, if a foreign or domestic governmental entity provides funding for fees related to a patent application or for paying an attorney (or patent agent) to prosecute the patent application, the application must disclose the amount and source of such funding.

Similarly, if any governmental entity provides funding for paying a patent’s maintenance fees or for paying an attorney (or patent agent) to submit such maintenance fees, the patent owner must submit a statement disclosing the amount and source of such funding.

The bill also requires patent owners to record information about the ownership of a patent with the U.S. Patent and Trademark Office (USPTO). Patent owners must also update this information when certain rights or interests in the patent have been conveyed to another individual or entity. A patent owner may not receive increased monetary damages for infringement of that patent that occurred while the owner was out of compliance with this ownership information recording requirement.”

This bill doesn’t sound as harmful at first glance, but a closer examination shows just how harmful it is.  As a board member for the San Diego Inventors Forum, I am the liaison between our group and the national organization US Inventor, Inc., an inventor organization in Washington D.C. that advocates strong patent protection for inventors and startups.

Last week’s newsletter stated: “This bill would make gargantuan penalties for not registering a change in patent ownership in a timely enough manner. The patent owner would lose the ability to collect increased damages for willful infringement. Increased damages are about all that remain to discourage the theft of patented technologies.

The bill would also let the infringer off if the mistake in registering is considered to have been done with the intent to deceive, which every opposing attorney will argue and make you spend more time and money that you don’t have. There are other angles on this bill, like giving Big Tech an early heads up on what patents to attack using the PTAB.”

Paul Morinville, former president and founder of US Inventor wrote an article published on October 12, 2022 by IP Watchdog , titled, “The Pride in Patent Ownership Act is Big Tech Boondoggling”

“The Pride in Patent Ownership Act requires those who acquire patents to publicly register their ownership assignments with the U.S. Patent and Trademark Office (USPTO) within 120 days. Thus, it serves to identify potential patent infringement plaintiffs.

If the patent holder misses the 120-day deadline, this bill would make gargantuan penalties for not registering a change in patent ownership in a timely enough manner. The patent owner would lose the ability to collect increased damages for willful infringement. Increased damages are about all that remain to discourage the theft of patented technologies.

The bill would also let the infringer off if the mistake in registering is considered to have been done with the intent to deceive, which every opposing attorney will argue and make you spend more time and money that you don’t have. There are other angles on this bill, like giving Big Tech an early heads up on what patents to attack using the PTAB.”

He explains, “Patent infringement is about stealing technology protected by a patent – it is not about who owns the patent. Because patent applications are made public by the USPTO, fair notice is given to would-be-thieves that an invention is protected by a patent.

The patent holder is irrelevant to an infringer’s decision to steal an invention, so identifying the owner can only lead to gamesmanship, especially if the patent holder is too small to defend themselves”

He asks, “Why is Congress pushing the Pride in Patent Ownership Act through by attaching it to the NDAA? His answer: “Identifying future plaintiffs and gaming the system so Big Tech can steal patented inventions unfettered is the real reason behind the Pride in Patent Ownership Act.”

He adds, “What really matters to Big Tech incumbents is that a well-placed invention can disrupt their multibillion dollar markets and that disruption is a threat to their relevance in that market. A little guy with a big idea can truly threaten the very existence of their monopolies. Think back to Google and how their patented search algorithm sent the search icons of the day, Yahoo and Alta Vista, into the dustbin of history.”

He explained that the Supreme Court decision on” eBay v. MercExchange opened the floodgates to willful infringement by effectively eliminating injunctive relief – the ability to take the invention away from an infringer. In eBay’s public interest test, a patent holder must prove that they have a product on the market and the ability to distribute the product at the level of the infringer.

But if Big Tech steals the invention and, by leveraging their huge customer base, existing infrastructure, and endlessly deep pockets, massively commercializes the invention, no small entity will be able to pass the eBay test.

Treble damages stand as the only remaining deterrent to willful infringement. But the Pride in Patent Ownership Act will eliminate treble damages if you make an administrative error.”

Remember that besides changing our patent system from a “first to invent” to a “first to file,” the America Invents Act also created the Patent Trial and Review Board (PTAB) that has nearly destroyed inventors’ rights.  According to the U S Inventors end of the year report, “The Patent Trial and Appeal Board (PTAB) has cancelled claims in 84% of the 2,500+ patents reviewed since 2011 and most inventors do not have a half a million dollars necessary to fund a legal defense.”

We don’t need another bill taking away the last right that inventors have to protect their patents.

I urge you to take the time to call the Washington office of your Senators and tell them that the Pride in Patent Ownership Act is bad for American innovation, startups, and inventors.

When you call, you could say, “My name is _____ and I am a concerned constituent. The Pride in Patent Ownership Act is bad for American Innovation. It creates an unthinkably huge penalty for a clerical error in registering patent ownership. It provides the attorneys of huge corporations with more arguments to use against American inventors and startups. It creates another barrier for inventors and startups. It will help Big Tech gain more power and will make it harder to compete with China. 

Senator _____ needs to oppose The Pride in Patent Ownership Act including any effort to amend it into the National Defense Authorization Act. This is important for the future of America. Tell your Senators to oppose this bill.”

If they want to know more, tell them to contact the current president of US Inventor, Randy Landreneau at Randy@USInventor.org.”

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