Securing Patent Law

Belmont Law Review, Vol. 11, Issue 1, p. 101 (2023)

Belmont University College of Law Research Paper No. 2023-5

28 Pages Posted: 23 Dec 2023

See all articles by Charles Duan

Charles Duan

American University Washington College of Law

Date Written: 2023

Abstract

A vigorous conversation about intellectual property rights and national security has largely focused on the defense role of those rights, as tools for responding to acts of foreign infringement. But intellectual property, and patents in particular, also play an arguably more important offense role. Foreign competitor nations can obtain and assert U.S. patents against U.S. firms and creators. Use of patents as an offense strategy can be strategically coordinated to stymie domestic innovation and technological progress. This Essay considers current and possible future practices of patent exploitation in this offense setting, with a particular focus on China given the nature of the current
policy conversation.

To respond to this use of patents as an offense tool, the best approach takes a page from cybersecurity. Patent law cannot simply exclude foreign adversaries, and so the law must be rendered secure and resilient to all potential users, foreign or domestic. Procedures for patent examination and verification, leadership in adjudication fairness, importation of competition principles into patent doctrine, and a whole-of-government approach can help to ensure that patent law is secure from exploitative abuses.

Keywords: Patent Law, Intellectual Property, foreign competitors

Suggested Citation

Duan, Charles, Securing Patent Law ( 2023). Belmont Law Review, Vol. 11, Issue 1, p. 101 (2023), Belmont University College of Law Research Paper No. 2023-5, Available at SSRN: https://ssrn.com/abstract=4672600

Charles Duan (Contact Author)

American University Washington College of Law ( email )

4300 Nebraska Ave NW
Washington, DC 20016
United States

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