The United States is falling behind in the global race for technological leadership. China now leads the U.S. in 37 out of 44 critical technologies. This includes fields that will define the future, such as artificial intelligence, quantum computing and advanced manufacturing.
If we’re serious about keeping pace with China, 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, revitalize our innovation ecosystem and reestablish the U.S. as the world’s undisputed technological powerhouse.
For inventors, the U.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 a 2006 Supreme Court decision made it significantly harder to obtain this protection.
The result has been predictable. Companies can infringe on patents with little fear. The worst consequence is typically a damages payment, which has become just another cost of doing business for large firms.
For 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’s dangerous.
While American courts have weakened patent enforcement, China has created specialized intellectual property courts, expanded enforcement capacity and routinely issues injunctions.
These policies have accelerated China’s advancement and attracted global investors.
RESTORE would help the U.S. regain lost ground. It reestablishes 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.
It simply restores a principle that served American innovators well for generations. Hundreds of years of world economic history show 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 reforms are also under consideration, including efforts to clarify what types of inventions are eligible for patent protection and fairness at the patent office’s administrative tribunal. These proposals deserve passage.
Passing RESTORE would strengthen our innovation ecosystem and reinforce America’s position as a global technology leader.
If we want 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.
Paul R. Michel served as a judge 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.
