The United States is falling behind in the global race for technological leadership. China now leads the United States in 37 out of 44 critical technologies, according to an in-depth analysis from the Australian Strategic Policy Institute. This includes fields that will define the future, such as artificial intelligence, quantum computing, advanced medicine, and advanced manufacturing.
If we are serious about not just keeping pace with China but out-inventing it, we must restore the legal foundations that once made America the global leader in high-tech innovation. That means passing legislation like the bipartisan RESTORE Patent Rights Act. By strengthening inventors' ability to stop the proven theft of their ideas, this legislation would encourage investment, help revitalize our innovation ecosystem, and reestablish the United States as the world's undisputed technological powerhouse.
For too many U.S. inventors and small businesses, our nation's patent system no longer offers meaningful protection. Even when a court confirms that a valid patent has been infringed, the violator is often allowed to keep using the stolen invention. In many cases, the only consequence of infringement is a court-ordered royalty payment to the patent owner. That outcome, while better than nothing, strips patents of their core value: the right to exclude others from using an invention without the owner's permission.
The legal mechanism that enforces this 'exclusive right' -- the only individual right explicitly granted in the original U.S. Constitution -- is called injunctive relief. For generations, courts routinely issued injunctions once infringement was proven. That changed after 2006, when the eBay Inc. v. MercExchange LLC Supreme Court decision made it significantly harder to obtain this essential protection.
The result over the last two decades has been predictable. Companies can now infringe on patents with little fear of being stopped. The worst consequence is typically a damages payment, which for large firms has become just another cost of doing business.
But for many individual inventors and startups, the loss of injunctive relief has been devastating. Without the ability to block ongoing infringement, they lose leverage for licensing negotiations, struggle to attract investment, and in many cases are unable to commercialize their ideas at all.
The stakes are not only economic, but geostrategic. Today, even companies based in China that infringe on U.S. patents may be allowed to continue using copied or stolen technology, as long as they pay a fee. That is a dangerous loophole in both our legal system and our national strategy.
And while American courts have weakened patent enforcement in recent years, China has moved in the opposite direction. It has created specialized intellectual property courts, expanded enforcement capacity, and routinely issues injunctions.
These policies have helped accelerate China's advancement in several critical technologies and made its innovation environment more attractive to global investors.
The RESTORE Patent Rights Act, which was reintroduced in Congress by Senators Chris Coons (D-DE) and Tom Cotton (R-AR) earlier this year, would help the United States regain this lost ground. If passed, the bill would reestablish the presumption that, when a court finds infringement, the patent owner should be allowed to stop it. Courts would retain discretion in exceptional cases, but the burden would shift back to the infringer -- where it belongs.
This is not a radical idea. It simply restores a principle that has served American innovators well for generations. Hundreds of years of world economic history have shown that predictable and enforceable invention systems support investment, promote fair competition, and protect the rights of those who take risks to develop new technologies.
Other legislative reforms are also under consideration in Congress, including efforts to clarify what types of inventions are eligible for patent protection and to improve the fairness at the United States Patent Office's administrative tribunal. These proposals are important and deserve passage.
But Congress should prioritize passing the RESTORE Patent Rights Act -- a focused, bipartisan fix to a recent breakdown in the system. It would immediately strengthen the United States' innovation ecosystem and reinforce America's position as a global technology leader.
If the United States wants to win the technology race of the 21st century, we must restore the rule of law for inventors. Passing the RESTORE Patent Rights Act is the most important step.
Judge Paul R. Michel (ret.) served on the United States Court of Appeals for the Federal Circuit from 1988 to 2010. He is a board member of the Inventors Defense Alliance.