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Experts urge Congress to restore patent eligibility, strengthen injunctive relief and coordinate enforcement to compete with China
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Summary
Mark Cohen and other witnesses told a Senate IP subcommittee the U.S. must reform patent‑eligibility law, improve PTAB processes, restore injunctive relief and rebuild international IP engagement — including a USPTO deputy for international affairs and an enforcement coordinator — to respond to China's state‑led IP practices.
Mark Cohen, senior technology fellow at the Asia Society Policy Institute and a former USPTO official, told the Senate Judiciary Committee’s Subcommittee on Intellectual Property that the United States needs both domestic patent‑law reforms and a more coherent international strategy to address China's rapid gains in patenting and technology development.
Cohen recommended several specific reforms and structural changes. He told the committee that patent‑eligibility law in the United States has been "broken" since about 2012 and that the Patent Eligibility Restoration Act (PERA) — mentioned in testimony and by senators — is a correct pathway to narrow judicially created ineligibility doctrines that he said have chilled investment in diagnostics, biotechnology and other emerging fields.
Cohen also discussed the Patent Trial and Appeal Board (PTAB), injunctive relief, and the need for a deputy director for international affairs at the U.S. Patent and Trademark Office as a counterpart in international negotiations. He cited differences in litigation dynamics: according to testimony he summarized, Chinese courts can produce a first‑instance decision in about six months with a high rate of injunctions (witness cited an injunction availability figure of about 98% for successful IP claims in China), and he said those differences give Chinese firms an enforcement advantage in some cases.
Cohen recommended better U.S. government capacity for long‑term, expert technical engagement with China, including a comprehensive inventory of China’s state approaches to IP and a revived capability akin to the former Office of Technology Assessment to provide depth and continuity to congressional oversight.
Senators and witnesses also discussed related topics: potential trade enforcement, the need to speed USPTO examination on critical technologies (patent pendency concerns and a backlog were raised), and the intersection of AI policy with copyright and patent frameworks. Cohen and other witnesses recommended a coordinator role to align disparate enforcement efforts spanning customs, criminal enforcement, consumer safety and civil enforcement.
The committee indicated it will send technical follow‑up questions to witnesses and continue bipartisan work on bills addressing patent eligibility, PTAB reform and trade enforcement.
