As summer draws to close, rural communities like ours have been showcasing our traditions and skills at state and county fairs across the nation. While we have been enjoying the fun and fellowship, another annual event for rural America is upon us – harvest season. Whether it’s wheat, soybean, or corn, fall marks the time when the hard work of farmers finally pays off.
Family farms are the pride and joy of our nation’s agricultural industry. In 2022, family farms accounted for 90% of all agricultural production, with small family farms leading the way in poultry, egg, and beef production.
One thing I hear time and time again from local farmers is how essential the right equipment is for their operations. Whether it’s the tried and true machinery, like tractors, combines and hay balers, or the latest technology, like autonomous tractors and smart irrigation systems, having access to secure, reliable farming equipment can make all the difference between a boom and bust harvest.
In recent years, however, these crucial tools have come under threat by bad-faith actors who are trying to turn a quick profit. Non-practicing entities – that is, shell companies who acquire patents but do not actually produce anything – increasingly bring meritless patent infringement lawsuits against manufacturers of high-tech equipment vital to American farmers.
National Grange, a leading organization committed to the well-being of farming and rural communities, has detailed the ways these “patent trolls” have gone after the $20 billion global AgTech industry. Basically, patent trolls will buy the rights to a minute agricultural technology – say, a vague software patent used in modern machinery – and subsequently sue agricultural equipment manufacturers who use or license a similar technology for infringement. Since patent damages are notoriously inflated and juries can have trouble adjudicating highly technical infringement claims, manufacturers are often forced into expensive settlements.
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Unfortunately, new legislation introduced in Congress would only make this problem worse. The RESTORE Act would bring back automatic injunctions in patent lawsuits so that anytime an American manufacturer is found guilty of patent infringement, it would be barred from using the technology indefinitely, even if the entity bringing the lawsuit has zero production or manufacturing in the United States. This legislation not only goes against unanimous Supreme Court precedent, but also has been rejected under different names by Congress multiple times – and with good reason. If this were to become law, it would supercharge litigation costs, and ultimately, consumers and businesses down the line would pay the price.
A recent American Farm Bureau Federation survey revealed that among its members, over 85% believed that advanced technologies are vital to farmers today. Since family farms increasingly rely on high-tech farming equipment, automatic injunctions are even more dangerous now than they have been in years past. For example, if a non-practicing entity were granted an automatic injunction against the manufacturer of a GPS technology used in automated tractors, not only would the manufacturer have to pay damages, but the many family farms that relied on the tractor and its operating software would be without it at a critical time – literally unable to reap what they have sowed.
This would not only disrupt critical supply chains, but in turn threaten our entire food supply, because if farmers cannot access the tools they need during the harvest season, then their bottom line is at risk and America’s grocery store shelves will be barren. At a time when food prices have already risen over 15% in the past two years due to inflationary pressures and global conflict, creating unnecessary obstacles for farmers is the last thing Americans need right now.
If this problem wasn’t dire enough, it is important to emphasize that these non-practicing entities often enjoy support from foreign-based litigation funders, including adversarial nations that seek to weaken our agricultural production and dominate the industry. Already, we know Chinese-based licensing entities, Russian oligarchs, and Emirati wealth funds are behind patent infringement lawsuits in American courtrooms, even as transparency around these shadowy actors is limited.
If enacted, the RESTORE Act would empower these foreign entities to pursue even more frivolous patent litigation against American companies, as doing so would promise not just a monetary award, but also the potential to eliminate competitors and control a critical industry. In doing so, the legislation would accelerate the concerning trend of countries like China trying to flood the American market with cheap, foreign-made goods.
At this critical juncture, America’s hardworking family farmers – central to our agricultural economy – deserve policies that protect them and their equipment, not policies that will sell them out to China for quick profit. Congress should resoundingly reject the RESTORE Act, so our already squeezed farmers can get back to providing the goods that sustain us all.
Mike Johanns was the U.S. Secretary of Agriculture from 2005-2007 as well as the Governor of Nebraska from 1999-2005 and the state’s U.S. Senator from 2009-2015. As alliantgroup’s Chairman of Agriculture, Johanns brings more than 30 years of experience at virtually every level of government and a strong background in both agriculture and economic development. As the Secretary of Agriculture, he managed 18 different agencies, opened or expanded access to 40 international markets and was responsible for multiple agricultural breakthroughs as a negotiator for the Doha Development Round.