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Belmont Law Review

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.

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