The recent meeting between President Biden and Chinese President Xi Jinping, on the sidelines of the Asia-Pacific Economic Cooperation (APEC) summit, came amid growing concerns that China is surpassing the United States as a global innovation leader.

This is no accident. China has consistently invested in the foundation of its innovation economy and is reaping the benefits. Now, the United States must do the same, or risk being left behind.

Nowhere is the U.S. failure to support our own innovative industries more obvious than in the intellectual property abuses that are festering at the U.S. International Trade Commission (ITC), as unfair trade practices investigations have repeatedly set back American innovation and economic productivity.

The ITC’s investigations have been in the spotlight lately. In October, the agency ruled that the Apple Watch infringes on a patent held by the medical device company Masimo and issued an import ban that would prevent Apple Watches from being sold in the U.S. market. This exclusion order is a result of a Section 337 investigation, where petitioners like Masimo ask the ITC to address alleged unfair trade practices including patent infringement. As this ruling shows, once the ITC determines that infringement occurred, it has a powerful tool to address the unfair behavior and, in theory, protect American economic interests.

Unfortunately, increasing numbers of ITC cases are being brought by patent trolls, which use the threat of ITC exclusion orders to compromise, rather than promote, American innovation. Patent trolls – also sometimes called non-practicing entities (NPEs) – do not make new technologies. Their business model centers around acquiring patents on the secondary market and using them in lawsuits to pursue lucrative verdicts or settlements.

The ITC tracks how often NPEs petition the agency. Last year, NPEs requested a record one in three Section 337 investigations. The Apple Watch exclusion order reveals why trolls have gravitated to the ITC as a venue. The potential downside for accused infringers – having a product blocked from the U.S. market – gives patent trolls all the leverage they need to enter settlement negotiations at a massive advantage. Accused companies face pressure to take the patent trolls’ terms, even when they are confident that they are innocent.

Patent trolls’ use of Section 337 investigations against productive companies slows innovation and wastes resources on legal fees, extorted settlements, and production line changes to absorb potential bans, instead of being put toward creating new groundbreaking technologies.

This same dynamic was previously in play during federal court cases. Patent trolls would bring patent infringement lawsuits and, if the court ruled in their favor, be granted an automatic injunction that blocked the accused infringer from making, selling, or using the infringing product. Similar to an exclusion order, the looming threat of an injunction gave patent trolls a significant advantage over their targets and allowed them to demand outsized settlements.

The Supreme Court’s unanimous decision in eBay Inc. v. MercExchange, L.L.C. helped parties resolve patent disputes without the threat of injunctions hanging over defendants’ heads. The ruling instructed lower courts to use a four-part test when deciding whether to issue an injunction, including whether the plaintiff suffered irreparable harm, whether remedies like monetary damages were adequate, and whether an injunction would harm the public interest.

The eBay decision tried to bring the patent system into balance so that innovative companies were put on more equal footing with the patent trolls that were, and still are, initiating wasteful lawsuits in massive numbers. Despite critics’ claims that eBay harmed innovation by weakening patent rights, researchers have found “no evidence of a decline in American innovation – whether measured as patents, R&D, venture capital or productivity growth,” in the years following the decision.

The eBay policy changes should be a model for reforms to stop abuse at the ITC. In particular, the ITC should prioritize conducting its public interest determination at the start of any investigation. This would sift out obvious patent troll abuses like seeking to ban almost all touchscreen devices or attempting to exclude U.S. auto manufacturers from accessing electronic vehicle parts, before patent trolls can use the investigation to turn the screws on American companies.

Building a durable U.S. innovation economy starts with addressing cracks in its foundation, and right now the ITC is full of cracks. Through prior reforms we have shown that we can make necessary patent system improvements that promote innovation and contain waste and abuse. As the U.S. risks ceding innovation superiority to competitors like China, it’s the ITC’s turn to look inward and ensure that the agency’s investigations aren’t holding back economic and technological progress.

Patrick Leahy was U.S. Senator from Vermont from 1975 to 2023, former Chair of the Senate Judiciary Committee, and Chair of the Judiciary Subcommittee on Intellectual Property in the 117th Congress.