We are at a pivotal moment, working to eliminate the gap between those who have access to the internet and those who don’t. As part of the Broadband Equity and Access Deployment (BEAD) program, in the coming months, states across the country will decide how to spend the billions of dollars that have been allocated to end the digital divide. Ironically, the International Trade Commission (ITC), a little-known federal government agency, threatens this important work just as its momentum is accelerating.
America’s farmers stand to benefit tremendously from the effort to end the digital divide. Like the electrification effort of the 1930s, this whole of government approach to bringing all Americans online will ensure that farmers have the tools they need to feed the world’s growing population. Mobile devices powered by 4G and 5G allow farmers to unlock the capabilities of next generation precision agriculture technology to increase productivity and improve work flows. Advanced farming “agritech” like site specific crop management, autonomous tractors, and the automation of large-scale collection of critical information all depend on these devices.
Unfortunately, access to the cutting edge mobile devices needed to unlock this agricultural innovation is being jeopardized by actions at the ITC, a small federal agency back in Washington, D.C. that has allowed bad actors to abuse its process. The ITC is a trade agency that is supposed to protect American industries from unfair import practices. As part of this mandate, the ITC is authorized to institute import investigations, under a law known as Section 337, to allow American businesses to challenge the imports of products claimed to violate their intellectual property rights. But if the ITC finds that IP infringement did occur, it cannot use discretion, the way a court can, to frame the right remedy. Instead, it can only impose drastic import bans, issuing an “exclusion order” that bars all products with the infringed technology from entering the U.S. marketplace.
Protecting U.S. industries from unfair foreign competition is an incredibly important goal. Unfortunately, in recent years, the ITC 337 process has been exploited by a type of company called patent assertion entities (PAEs), also known as patent trolls. These trolls are shell companies, often backed by hedge funds, who accumulate patents for the sole purpose of pursuing infringement litigation. They don’t want to protect an American industry making anything. They just want to try to squeeze money out of productive companies in the US who participate in the global supply chain to bring innovative products to US users. Over 60% of all patent litigation in the U.S. is brought by these trolls.
Trolls have now weaponized the ITC’s exclusion orders, using them as leverage to try to get large settlements from every technology company they can. Mobile devices, from tablets to phones, are extremely popular targets: a single smartphone may involve over 250,000 individual patents. If a troll alleges that a single patent is infringed, then the ITC can bar that entire category of mobile phones from the U.S. And this threat is real. A PAE backed by an Irish hedge fund started a rash of 337 cases to ban most smartphones used in America. Trolls are threatening the availability of the most essential mobile device tools for farmers, as well as rural communities writ large.
In 2022, PAEs instituted over one fifth of Section 337 cases at the ITC, following a pattern that we at the National Grange have called attention to for years now.
We’re in the midst of an historic, whole of government approach to finally end the digital divide affecting farmers and rural America more broadly. The $65 billion from the BEAD program follows other government efforts from the U.S. Department of Agriculture (USDA) and Congress directed towards deploying rural internet infrastructure. But you need both the infrastructure and the right mobile devices at hand to connect to that infrastructure to make this plan work. The ITC trolls are standing directly in the way.
Action is needed to reform the ITC and fortunately, Congress has offered a solution. A bipartisan piece of legislation called the Advancing Americas Interest Act (AAIA) would maintain the ITC’s power to protect American industries and the public interest but restrict the ability of PAEs to file abusive Section 337 investigations. Rural communities across the country need their representatives in Congress to support this legislation.
This month, President Biden travelled to Northfield, Minnesota to announce another round of funding for rural internet infrastructure, where he highlighted the administration’s efforts to transform communities and ensure that families don’t need to leave the farms they’ve lived on for generations to participate in the modern economy.
If we’re going to realize this vision and connect all Americans, all the oars of government need to be rowing in the same direction. It’s time for Congress to fix the ITC so it’s not standing in the way of connectivity for farmers and rural communities across the country.
Burton Eller, Executive Director, The National Grange
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