We Are Helping China Win The Tech Race, Sacrificing Our National Security

China made no secret of its determination to overtake the U.S. in the advanced technologies of the 21st century, announcing its intention in formal plans it made public. It is sprinting to do so, having already surpassed us in the foundational technology of artificial intelligence and in genetic medicine, among others. An Australian think tank rates it as ahead of the U.S. in 37 of 44 such areas.

Massively investing in tech innovation is easy for China because the Chinese Communist Party and Government control major investments. By contrast, most U.S. tech investments are funded by private capital from VCs and like sources. Their funding decisions require large incentives to balance the large risks, costs and delays. Because the incentives depend heavily on patent protection, the strength of patents is crucial.

Over the last decade, however, we have steadily weakened patents and our patent system, previously the world's Gold Standard. Patent values declined, reliability sank and remedies shrank under ill-conceived "reforms" aimed at the meme of the "patent troll."

The range of inventions even eligible for patenting was narrowed and predictability was reduced under revolutionary decisions of the Supreme Court.

The Court also made injunctions — court orders prohibiting infringement from continuing after the verdict — previously routine, extremely rare. That undermines startups and small businesses, the very ones most in need of such protection and most likely to achieve breakthrough innovations.

Congress, too, impaired the patent system with legislation that made invalidating patents at the patent office's new Patent Trial and Appeal Board easier, faster and cheaper than in court. Yet, board members invalidating patents have less technical expertise than the examiners who granted them in the first place. Yet, the law mandates that patents are presumed valid.

The America Invents Act even lowered the standard for proving invalidity from Clear and Convincing Evidence as applied in court to a mere Preponderance. The Act allowed multiple, serial, overlapping and repetitive challenges.

With its ill-designed PTAB proceedings, Congress largely shifted validity determinations from courts of law to an administrative tribunal in the patent office lacking live testimony and cross-examination of witnesses before the judges, the critical feature of court trials.

During the same decade, China repeatedly strengthened its patent system. It modernized its patent law, created many new patent courts and upgraded its patent office. Now, trials there are fast and inexpensive, injunctions for proven infringement are routine, and eligibility is broad and clear.

In short, our two countries changed places. Now, the U.S. system is weaker. Here, injunctions are rarer, trials are slower and costlier, eligibility is narrower and less predictable and thus patents are less reliable. Consequently, incentives to invest in tech kept rising in China and falling here.

This calamity did not appear suddenly. The Patent Trial and Appeal Board was created in 2011. The Supreme Court's landmark eligibility cases were issued in 2012-14. The patent system withered ever since.

Despite the compelling evidence of increasing harm to our innovation system, nothing was done to revive it. Why not? Certain big-tech companies of immense size, wealth and political heft each spent many millions of dollars, continually blocking reform efforts, all in pursuit of ever-greater profits. They show no concern for the national good, economic and job growth or the national security implications of losing the tech race to China.

Fortunately, several leading senators are actively addressing these problems, despite those self-interested companies still trying to block reform. Those legislators seek the revival of investment incentives. Senators Chris Coons, D-Del., and Thom Tillis, R-N.C., are at the forefront.

On the House side, Representatives Daniel Issa, R-Calif., Thomas Massie, R-Ky., and Hank Johnson, D-Ga., are leading similar efforts.

They surely deserve support from their colleague — all Americans who care about the nation's future economic and national security. If they do not receive it, America will soon be eclipsed by a resurgent China. And our inevitable decline will be self-inflicted.

But it is not too late to recover if we start paying attention.

(Paul Michel served on the United States Court of Appeals for the Federal Circuit from 1988 to his retirement in 2010, and as its chief judge from 2004 to 2010. He currently serves as a board member of the Council for Innovation Promotion.)