Representative Kevin Kiley and Eagle Forum President Discuss the State of the Patent System (2024)

On Thursday, May 23, Gene and I attended the Eagle Forum Annual Briefing and Dinner, an event hosted by conservative public policy and grassroots organization Eagle Forum Education & Legal Defense Fund. During the event, both Gene Quinn and Representative Kevin Kiley (R-CA) were presented with the Phyllis Schlafly Friend of American Invention Award.

Prior to the awards being presented, Eagle Forum President Ed Martin sat down with Congressman Kiley for a fireside chat. Government Affairs Leader of IEEE-USA Eric Heilman was tasked with introducing Congressman Kiley:

“IEEE USA has long been a part of this coalition supporting strong patent rights since the very beginning of efforts to reform the patent code. Many of IEEE’s members, starting with Thomas Edison and Alexander Graham Bell, have been the driving force behind the innovation that has made the U.S. economy the strongest in the world, and we’re grateful to leaders like Congressman Kevin Kiley, who give their strong support to the inventor community. First elected to Congress in 2022, representing California’s third district, Congressman Kiley comes to Washington with deep experience in intellectual property law.

Before his election to Congress, Mr. Kiley represented the Sacramento suburbs in the California State Assembly and served as the state’s deputy attorney general. During his time in private practice, he helped prosecute the high-profile civil case against the Chinese company Huawei for theft of intellectual property. In Congress, he serves on the intellectual property subcommittee of the House Judiciary Committee, where he is known as a thought leader on patents and other IP issues.

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He’s quickly won the respect, as we have heard, of senior leaders due to his deep knowledge about patents and IP law and policy. Thank you, Congressman Kiley, for helping to ensure the U.S. has the most robust intellectual property system in the world and for your work to strengthen patent protections so that American inventors continue to have an incentive to innovate.”

Ed Martin then sat down with Congressman Kiley for a Q&A session to discuss his thoughts on the state of the patent system, issues that innovators currently face as a result of it, and what can and is being done to raise awareness about these issues. Following are excerpts from that exchange:

MARTIN:Congressman Kiley, you’re from California, and everybody thinks about IT, technology, and Silicon Valley. But it’s not as obvious to talk about patent rights and what’s happening with them. How do you talk to constituents about Intellectual Property?

KILEY: Well, I think that there is a fundamental belief among people, across party lines, in the power of American innovation and entrepreneurship, and the idea, of an inventor who’s not part of a big company, but through inspiration, a spark of genius, time, sweat and grit, manages to bring that idea into being. I think these things are deeply rooted in our country’s DNA. And just because the typical person isn’t necessarily all that well-versed in the nuances of patent law, doesn’t mean they can’t connect the dots; that we need to protect our IP in order to protect this fundamentally American idea.

And beyond that, I think everyone understands the connection to China and how they overtly steal our IP. I think that also provides a good frame of reference that if we don’t protect our intellectual property, then we’re going to lose our edge when it comes to competition with China.

MARTIN: You were Deputy Attorney General, and you prosecuted a civil IP case against Huawei versus T-Mobile. What is the reality of this fight? What did that teach you about where things are going?

KILEY: This actually was a case I worked on at while I was at Irell. It was a trade secrets case. I was the junior associate charged with building out the case. Our client was with T-Mobile. They had a facility up in Washington for testing smartphones and they’d come up with a Robot arm device with fingers used to test smartphones.

They allowed all of their vendors to come and use it to test their phones, and the Huawei folks stole the robot arm. They literally took it out of the lab, and then tried to reverse engineer it. And so that was the civil case that actually led to these broader federal actions against Huawei. And it provided really good insight for me into just how systematically the CCP goes about trying to get whatever advantage they can.

We need to learn how describe patent infringement in a similar way; that patent infringement is similarly harmful. It’s just done in a little less obvious manner. But fundamentally, both are forms of theft that are deeply corrosive to innovation in this country.

MARTIN: The Biden administration has taken a number of steps to constrain American innovators. I’m going to run through a couple of them, and then maybe you can broadly comment. First, waiving the TRIPS agreements, you know, IP restrictions, five-year protections of COVID vaccines.

Second, Bayh-Dole with the march-in. And, third, whether you’re talking about standard essential patents, pharma patents, patents in emerging technology, the current administration say out loud that they are trying to reduce IP rights and impose price controls. So what do we do about this?

KILEY: Well, I think that these things have the potential to be really, really harmful when it comes to the development of life-saving drugs; when it comes to collaboration with universities and research institutes, and a whole host of other things. And we’re fighting back against each of these however we can. I’ll add another to the list, by the way, which is, there’s some sign that there’s now ideological considerations going into the operation of patent examiners.

It was recently discovered that a patent examiner posted on Reddit that he was considering denying a patent because it was used by an Israeli weapons manufacturer. And so, I wrote a letter to the head of the PTO, along with Daryl Issa and Thom Tillis, that said, we need to get some assurance that we’re actually following the law here, not just throwing out patents because we don’t like what they might be used for.

MARTIN: What about some of the existing patent bills that are out there, such as the Prevail Act. Where do you see that playing field, and where do you see the best ways to influence what’s going on?

KILEY: I think that it’s a heavy lift to get any meaningful reform of the PTAB done right now. Certainly, I’d like to see that and that’s not to say that it can’t change. I’m also currently working on PERA, the Patent Eligibility Reform Act, and we’re going to be introducing the House companion bill on that. But I think it’s understood that this is not something that’s going to become law this term. So, we’re trying to socialize the idea. We’ve had a lot of conversations about it, and we’re trying to figure out how best to move it forward. But they did have a hearing on it over in the Senate earlier this year, I think.

So, we’re making progress. But as we heard in our keynote address, this is a vitally important issue. And it’s served to really hold back innovation in a lot of emerging fields. And that’s very problematic.

MARTIN: Last question. How can we help you convince your colleagues to understand that this issue is so important and that the patent system is so vital?

KILEY: I think the stories of the inventors are really compelling. I have so much admiration for people who are out there creating things that advance science and technology and serve to benefit humanity, and that make our country stronger. And, when you hear the stories about inventors who’ve struggled for years and years and even though they didn’t have a lot of money, put everything they had into their idea and eventually go through the process of commercializing it, just to have it cut out from under them, based upon the forfeiture of their property, rights? I think that that is something that really resonates with people. I think that telling those stories is really important, as well as tying them into these macro issues we’ve been discussing; the overall health and competitiveness of the U.S. economy, and certainly our competitiveness vis-a-vis China.

MARTIN: Well, on behalf of everybody here, anything we can do to help you, especially when you’re talking to your colleagues about how to understand this topic, we’d love to do. And we appreciate you very much and your interest in this issue, your history, and your willingness to understand it. So, thank you for being here with us and we are really grateful.

KILEY: Absolutely. You’re welcome and thank you for all you do!