My Reflections on Testifying Before Congress – 2023

Over the course of the last three months, I spoke at a trifecta of Congressional hearings: the House Judiciary Committee, the Senate Judiciary Committee, and the Congressional US-China Economic and Security Review Commission (the “Commission”). The first two meetings were before members of Congress.  The last meeting was before an expert Commission.   These three appearances were all on my own behalf.

My messages were tailored to each hearing.   The meeting at the House of Representatives was the most politically oriented.  However, even in the House efforts were being made to drive bipartisan consensus.  Because of the close relationship between Senator Coons and Senator Tillis, the Senate was the most overtly pro-intellectual property.  The Commission was the most expert on China-related affairs, but the least expert on IP.  The Commission’s hearing was also the longest, with the deepest bench of experts with varied backgrounds. The Commission’s hearing was an especially good learning experience on transnational litigation and China’s practice of international law.  It could have easily taken place in a law school setting.

Here is a summary of my experiences:

A.  In preparing for these meetings, I recognized that it is pointless to try to convince members of Congress that some of their opinions about China’s malevolent intentions are wrong, overly broad, or not well-supported by data.  Rather than criticize the past, I opted to advocate for more informed policy perspectives in the future.  Here are three examples:

1.  Instead of criticizing an often inflated “IP Theft” narrative, I urged Congress to take a more data-driven approach towards threats, including a better understanding of Chinese industrial plans and goals. I also support greater use of WTO remedies, which I believe have historically been underutilized.

2.  Instead of launching broad attacks against China’s efforts to dominate certain technologies, I urged tailored use of trade remedies (including export controls), greater reliance on patent and scientific publications and other data, as well as incorporation of future-oriented technology analyses.   I was honored to be testifying before the Senate with Patent Public Advisory Committee chair Suzanne Harrison, who has also written on this last topic.

B.  I testified at all three hearings on the need to consider the impact of domestic US IP policy on America’s continued competitiveness.  For example, I criticized the recent FTC proposed rule on non-compete agreements for their “Fortress America” approach, which ignored the impact of these rules on international competition. I also believe that we need to look seriously at the impact of unstable patent eligibility criteria on patent incentives in the United States to innovate, as well as the impact of denials of injunctive relief for infringement on the competitiveness of our courts. I also testified on the need of the US IP system to be more small business friendly throughout the IP lifecycle of prosecution, grant, licensing and (where necessary) litigation, and compared the small business participation in our IP system with higher Chinese small business participation in its system.

C. I also supported disclosure of foreign government financing or subsidies for patent and trademark filings in the United States as well as disclosure of government interests in litigation. We require disclosure of US government support for US patent filings.  We should require the same disclosures when foreign filings are supported by foreign governments.  Government subsidized trademark filings at the USPTO have also been highly disruptive to USPTO operations.  I was gratified to hear my concerns echoed by others testifying at the Commission hearing from non-IP perspectives.

D.   I offered several short-term goals, including making some overdue appointments, such as appointing the Intellectual Property Enforcement Coordinator (IPEC) in the White House.

E.   I believe that there continues to be a need for free trade agreements that address modern challenges of IP and innovation, including in areas such as data privacy and providing solid IP protection in countries that are involved in our extended supply chains.

Here’s a checklist of items that I may have contributed to: (1) I may have helped advance the recent nomination of Deborah Robinson to be the IPEC. (2) I may have had an impact on patent reform legislation.  There now appears to be some momentum on patent eligibility issues. (3)  Perhaps there will be an impact on non-compete agreements.  I heard from several members at the House Judiciary committee hearing that my proposal to permit US employees to sign binding non-compete agreements with their employers while working overseas that comply with applicable foreign law may be a pathway forward between the Democrats and Republicans.  (4) There have been some positive developments in the courts, and I hope that Congress and the executive branch will look at mandating disclosures of governmental interests in IP filings and litigation.

I was gratified by the emerging sense of community among all the speakers.  Even if we differed in approaches, we sought to address common concerns.  At the House hearing, William Evanina, a former senior National Security official, spoke about the education that he had just received in my testimony on China’s IP regime.  At the Commission hearing, one of the Commissioners recalled my earlier testimony on the need to address anonymous patent filings in China that may benefit from trade secret misappropriation, which he considered “mind-blowing.”  Rep. Darrell Issa, the chair of the House subcommittee, recalling earlier testimony of mine, showed me the patent that he had obtained in China years earlier, and asked me to confirm it was his – although he stated that it had been of little value.  Rep. Don Johnson, Jr. engaged me on small business concerns.  Several members spoke after the hearings about the need to bridge the gap between the parties and enact constructive legislation.

Before I had testified I was pessimistic about the prospects for positive IP-related legislation in our national competitive interests. I am now mildly optimistic that Congress can pass necessary IP legislation if both parties in Congress and the Administration work together.  Oddly, I believe that some of the credit goes to Rep. Mike Gallagher and his chairing the “Select Committee on the Strategic Competition Between the United States and the Chinese Communist Party”.  Rep. Gallagher’s perspective is that the United States is engaged in an “existential struggle” with China. His dire prognosis has lent a sense of urgency to improving the US IP regime.

If Rep. Gallagher’s negative assessment can drive thoughtful and positive changes in how we approach intellectual property and innovation, the benefits to the United States could be enormous.  In a season of Congressional hearings that are apprehensive about China’s strategic plans, such changes would be a positive initial outcome.

Here are some links to coverage of the hearings:

South China Morning Post (Commission hearing)

IPWatchdog (House hearing)

Wechat/Chinese language blog (Commission hearing)

Wechat/Chinese language blog (Senate hearing)

Left to right: Senator Tillis, the author, Suzanne Harrison and Senator Coons.

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