Last week, Representative David Schweikert (AZ-01) and Don Beyer (VA-08) introduced the Advancing America’s Interests Act (AAIA). If passed, this legislation would help prevent the U.S. International Trade Commission (International Trade Commission) from being manipulated by patent trolls, protecting both American consumers and U.S. industries.
As I have previously discussed, in recent years the International Trade Commission has been co-opted by patent trolls in direct contradiction to the agency’s mission. The ITC’s Section 337 investigations and threat of exclusion orders are now frequently used by trolls as leverage to extract settlements from productive companies, based on meritless patent infringement claims. In fact, according to the ITC’s own statistics, last year nearly 1 in 3 Section 337 investigations were brought by non-practicing entities, the majority of which are companies who acquire patents from others and whose only product is patent litigation.
The AAIA would make a few key changes to deter abuse. First, the bill would require that complainants whose only industry is licensing—patent trolls—must show that their asserted patent has led to the development of products that incorporate the patent. And that product development has to come after licensing the patent, not before. It makes perfect sense that investigations designed to protect domestic industry would require that the patents actually lead to the development of domestic products.
Secondly, the bill reaffirms the ITC’s existing public interest obligation, requiring that the International Trade Commission consider the public interest as paramount and affirmatively determine that any potential An order issued by the U.S. ITC as a result of a 337 action, excluding from entry into the United States goods found to infringe a U.S. patent. serves the public interest. This point of emphasis should help weed-out some of the most egregious potential abuses of agency proceedings.
As Rep. Schweikert noted, “For far too long, the International Trade Commission has been misused by patent trolls seeking to exploit financial gain at the expense of American consumers and businesses. The Advancing America’s Interests Act modernizes the International Trade Commission by reforming its unfair import processes and ensuring public interest is always prioritized above bad actors looking to stifle competition.”
The bipartisan Advancing America’s Interests Act is a commonsense solution to a problem that has been a consistent drag on innovation. Congress should move quickly to pass the AAIA.