By allowing ads to appear on this site, you support the local businesses who, in turn, support great journalism.
A U.S. agency you’ve never heard of is destroying innovation
Peter Roff

Recent and expected Supreme Court rulings regarding the authority of federal regulators have put the regulatory bureaucracy in the spotlight.

Too many of them have the power to make or break industries. Some, like the U.S. International Trade Commission, are begging to have their wings clipped. Its mission is to protect American companies from unfair business practices by foreign companies, but in recent years it has inserted itself into patent infringement cases, a problematic and exceedingly complex area.

The agency needs to be put back in its lane. Judges and juries should resolve patent disputes, not regulatory bodies – which, like the International Trade Commission, often have the power to impose a ban (called an exclusion order) on imports of all products a company alleges used their intellectual property without permission or compensation.

Exclusion orders can be devastating to U.S. innovators whose supply chains extend overseas. A single order can cause billions of dollars in damage to the U.S. economy. The International Trade Commission regularly grants them because it is its only enforcement mechanism.

Unlike the penalties that a judge can impose, these all-or-nothing orders are not scalable. Worse, the International Trade Commission has ignored its own rules for decades by issuing orders that harm the public interest. Shockingly, it has refused to deny the request for an order on those grounds for more than 35 years.

Many of these requests come attached to suits filed by shady entities known as “Patent Trolls” who are not producers or manufacturers but pursue patent infringement claims to make quick cash.

In other infringement cases, suits involve a legitimate dispute between competing manufacturers in the U.S. who could readily solve their problems through nuanced court decisions.

A prime example of all this is playing out now as Masimo Corporation, a U.S. medical technology company whose products include noninvasive patient monitoring devices, has dragged Apple before the International Trade Commission.

Masino alleges the Apple Watch Series 6 infringes on its patent on light sensors that gauge blood oxygen levels. In January, an International Trade Commission administrative law judge ruled in Masimo’s favor. Now the full commission must decide whether to issue an exclusion order.

If it did, Apple could no longer sell its Series 6 watch in the U.S. market. That would not only be financially damaging to one of America’s best high-tech innovators, it would be a blow to consumers.

It is not a trivial matter. For some people, the Series 6 is essential to self-monitoring their health, and encouraging complainant patent holders to threaten a complete ban on entire product lines in the high-tech space discourages them from pursuing more innovation.

The drag a ban would create affects their operations and the entire economy.

Masimo didn’t just file with the International Trade Commission. It accused Apple in federal court of stealing trade secrets. Those pleas failed to persuade the judge, who declared a mistrial and gave Masimo no relief.

Masimo’s approach is a perfect example of how not to deal with intellectual property disputes. Filing multiple cases that make various claims in different legal venues is wasteful. Not only that, it’s particularly taxing on the system when the issues involve very complex high-tech patents and the devices they support.

The International Trade Commission’s willingness to encourage these disputes while ignoring the public interest imperative leads to chaos and drag on U.S. innovation. The commission is venturing far beyond its intended role of protecting U.S. businesses from unfair foreign competition. It has the structure and the expertise to handle unfair import competition issues. Still, its lack of technical knowledge means it has no business interceding in patent disputes between competing American companies.

Congress must step up. Reps. David Schweikert R-Ariz.) and Don Beyer (D-Va.) recently introduced the Advancing America’s Interests Act, bipartisan legislation to reorient the International Trade Commission back to its core mission of protecting American jobs and the U.S. economy.

The legislation is needed to help the American economy, its industry, and its innovators grow and prosper. Congress should prioritize these changes to protect U.S. innovators and consumers.


Peter Roff is former U.S. News and World Report contributing editor and UPI senior political writer now affiliated with several DC-based public policy organizations. He writes for numerous publications and appears regularly on international television talking about U.S. politics. You can reach him at and follow him on Twitter @TheRoffDraft