Pat Roberts: Patent bill puts American farmers at risk of foreign manipulation | Opinion
During his first term, President Donald Trump prioritized American farmers with policies to protect them from unfair foreign competition. Now that he’s back in office, the Trump administration is once again taking bold action on trade, immigration and a range of other issues related to the future of our agriculture economy. But a troubling proposal in Congress threatens progress in agricultural innovation by introducing European-style legal rules that would leave the entire industry vulnerable to legal exploitation.
Those unfamiliar with modern farming practices may not consider agriculture to be a high-tech industry, but thanks to the broad adoption of technological advancements, total U.S. agricultural output has tripled over the last seven decades, all while requiring fewer resources such as land and labor. Because of advances in what’s known as precision agriculture, farmers can now boost yields and profits, while more efficiently using resources such as water and fertilizer.
But as American farmers become increasingly reliant on agricultural technology to remain competitive in the global marketplace, a new suite of issues are emerging. Among the most pressing are intellectual property concerns.
Non-practicing entities, commonly known as “patent trolls,” do not bring agricultural products to market, but instead acquire patents on inventions such as broadband technology, and employ them to sue the businesses that actually market products in those areas. The National Grange identified patent trolls “piling up cases against the kinds of smart devices farmers rely on” as a serious threat to the $43 billion precision agriculture industry. For farmers already operating on razor-thin margins, the stakes couldn’t be higher.
While lawmakers and courts have taken some steps over the last twenty-plus years to mitigate patent trolls’ impact, that progress could be rolled back if Congress advances the RESTORE Patent Rights Act of 2024, legislation that would reintroduce anticompetitive legal injunction practices similar to those in Europe.
An injunction is a powerful legal tool that empowers courts to order a stop to the manufacture or sale of a product that is found to infringe on another patent. Following the Supreme Court’s unanimous 2006 decision in eBay v. MercExchange, U.S. courts went from almost automatically issuing injunctions in patent infringement rulings to only issuing them if certain criteria were met — most notably when monetary damages are insufficient and when the injunction would not harm the public interest.
This was a critical shift because it prevented patent trolls from using the threat of an injunction penalty to demand undue settlement payments. While it preserved access to injunctive relief for actual productive businesses, it put an end to these legal ransoms from patent trolls, which drive up costs for manufacturers and consumers alike.
The RESTORE Patent Rights Act would turn back the clock to the pre-eBay status quo, when patent trolls and U.S. competitors could wield injunctions as a weapon to harass and extort companies in critical industries, such as agriculture. Take Kinze Manufacturing, Inc., for example, an agricultural equipment manufacturer based in Iowa. Kinze builds the planters and grain carts that help farmers produce at a cheaper cost for consumers, employing several hundred workers in the process. Kinze was targeted by a patent troll called Clear With Computers — an entity that employs no factory workers and has filed dozens of lawsuits — using patents related to so-called “electronic proposal preparation systems.” As is, Kinze faced the choice of settling or expensive litigation, but without the protections established by eBay, the cost of settling could have been much higher.
In Europe, where injunctions are easier to obtain, we’ve already seen the consequences of easily-accessible injunctive relief. Netgear, a U.S.-based computer networking company, was sued by China’s Huawei for patent infringement, despite accusations of anticompetitive and fraudulent practices against Huawei. Still, the court ruled in Huawei’s favor, issuing an injunction this past December, which would have banned Netgear’s Wi-Fi routers from being made or sold in seven European countries.
If the RESTORE Patent Rights Act were to pass into law, the U.S. could see similar actions, whether it be at the hands of patent trolls or Chinese-based competitors that are doubling down on U.S. patent applications. If American agricultural manufacturers were to be accused of infringement by a patent troll or a foreign-based competitor seeking to undermine them, the threat of an injunction could force them to choose between giving into outsize settlement demands or risk halting the manufacture and sale of their products. Under either scenario, prices for consumers go up and access to technologies that farmers depend on decline.
Congress has a duty to support President Trump in securing the strength and prosperity of American agriculture. This means removing obstacles that hinder farmers’ access to the innovation and technology they need to lead the global ag-economy of the future.