116 HR 5475 IH: Prohibiting Adversarial Patents Act of 2023
U.S. House of Representatives
2023-09-14
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I
118th CONGRESS
1st Session
H. R. 5475
IN THE HOUSE OF REPRESENTATIVES
September 14, 2023
Mr. Fitzgerald (for himself, Mr. Issa, Mr. Luetkemeyer, Mr. Gallagher, Mr. Lamborn, Mr. Fry, and Mr. Moran) introduced the following bill; which was referred to the Committee on the Judiciary
A BILL
To amend title 35, United State Code, to require the Director of the United States Patent and Trademark Office to require disclosures in patent applications regarding ties to the People’s Republic of China and other foreign adversaries, and for other purposes.
1.

Short title
This Act may be cited as the “Prohibiting Adversarial Patents Act of 2023”.
2.

Disclosures in patent applications regarding ties to the People’s Republic of China and other foreign adversaries
(a)

Disclosures in patent applications regarding Ties to People’s Republic of China and other foreign adversaries
Section 111 of title 35, United States Code, is amended by adding at the end the following:
“(d)

Disclosures regarding ties to people’s republic of china and other foreign countries
(1)

Disclosure
The Director shall require each person submitting an application for patent under subsection (a), or a provisional application for a patent under subsection (b), to disclose in the application the identity of each person with an ownership interest in the invention being claimed that in the five years before submitting such application received funding from—
(A)
a state-affiliated research fund associated with a foreign adversary; or
(B)
a talent recruitment program associated with a foreign adversary.
(2)

Request for true copies
(A)

In general
After reviewing any disclosure made by an applicant in accordance with paragraph (1), the Director may (as the Director determines appropriate) request such applicant provide true copies of any contractual or financial obligation or other agreement specific to such disclosure.
(B)

Confidentiality
Any true copy provided to the Director under subparagraph (A) may be kept confidential and separate from the file wrapper of the patent application.
(3)

Exemption
Any applicant who is a small business concern and is subject to disclosures pursuant to subsection (g) or (o) of section 9 of the Small Business Act (15 U.S.C. 638) shall be exempt from making the disclosure required by paragraph (1).
(4)

Foreign adversary defined
In this subsection, the term foreign adversary means—
(A)
the People’s Republic of China, including all Special Administrative Regions;
(B)
the Republic of Cuba;
(C)
the Islamic Republic of Iran;
(D)
the Democratic People’s Republic of Korea;
(E)
the Russian Federation; and
(F)
the Bolivarian Republic of Venezuela during any period of time during which Nicholás Maduro is President of the Republic.”.
(b)

Patent bar for persons who pose a threat to national security
(1)

In general
Chapter 10 of title 35, United States Code, is amended by adding at the end the following:
“106.

Patent bar for persons who pose a threat to national security.
Notwithstanding any other provision of law—
(1)
a person shall not receive a United States patent for an invention if that person (or any subsidiary, affiliate, successor, assign, legal representative, or privy of such person)—
(A)
is identified, pursuant to section 744.16 of title 15, Code of Federal Regulations (or any successor regulation), as a person reasonably believed to be involved, or to pose a significant risk of being or becoming involved, in activities contrary to the national security or foreign policy interests of the United States;
(B)
is an entity on the Non-SDN Chinese Military-Industrial Complex Companies List (NS–CMIC List) maintained by the Office of Foreign Assets Control of the Department of the Treasury under Executive Order 14032 (86 Fed. Reg. 30145; relating to addressing the threat from securities investments that finance certain companies of the People’s Republic of China), or any successor order;
(C)
is identified as a Chinese military company in the most recent annual report submitted pursuant to section 1260H of the William M. (Mac) Thornberry National Defense Authorization Act for Fiscal Year 2021 (Public Law 116–283; 10 U.S.C. 113 note); or
(D)
produces or provides communications equipment or service on the list published by the Federal Communications Commission under section 2(a) of the Secure and Trusted Communications Networks Act of 2019 (47 U.S.C. 1601(a)); and
(2)
any United States patent issued to a person described under paragraph (1) shall be unenforceable.” .
(2)

Clerical amendment
The table of sections for chapter 10 of title 35, United States Code, is amended by inserting after the item relating to section 105 the following:
“106. Patent bar for persons who pose a threat to national security.”.