Prohibiting Adversarial Patents Act of 2026
- Sponsor
- Sen. Moody, Ashley [R-FL]
- Committees
- Judiciary Committee (primary)
- Last action
- Sep 30, 2026
Bottom line
The bill aims to prevent entities deemed a threat to U.S. national security, particularly those linked to foreign military or untrusted communications, from obtaining or enforcing U.S. patent rights, while providing a presidential waiver option.
What it actually does
This bill amends title 35 of the U.S. Code to prohibit the issuance of U.S. patents to entities identified on specific national security-related lists, such as the Non-SDN Chinese Military-Industrial Complex Companies List (NS-CMIC List) and the list of Chinese military companies required by the William M. (Mac) Thornberry National Defense Authorization Act. It also renders any existing U.S. patents held by such entities unenforceable during the period they are on these lists and prevents them from using expedited patent review procedures. The President is granted authority to waive these prohibitions for successive 180-day periods if it is determined there is no essential security interest in applying the prohibition, subject to reporting requirements to Congress.
Proponents argue
Proponents would argue that this bill is a critical measure to protect U.S. national security and economic interests by preventing adversarial foreign entities from leveraging the U.S. patent system to their advantage. They would assert that denying patent rights to such entities reduces their ability to profit from or assert control over technologies developed or patented in the U.S., thereby safeguarding American innovation and military superiority from foreign exploitation.
Opponents contend
Opponents might contend that this bill could be seen as a form of economic protectionism or could lead to retaliatory measures from other countries, potentially harming U.S. innovators operating abroad. Concerns might also be raised about the broadness of the lists used to identify 'adversarial' entities, the potential for due process issues, or the impact on global intellectual property norms and international trade relations, potentially undermining the universality of patent rights.
The bill is very short and its language is direct, making it highly accessible for any informed reader to understand its core provisions and implications quickly.
Section 2(a), amending 35 U.S.C. Chapter 10 by adding Sec. 106(a)(1)
Prohibition on Patent Issuance to National Security Threats
This provision prevents the U.S. Patent and Trademark Office (USPTO) from issuing new patents to individuals or entities (including their subsidiaries or affiliates) that are on specific U.S. government lists identifying threats to national security. These lists include the Non-SDN Chinese Military-Industrial Complex Companies List (NS-CMIC List), the list of Chinese military companies operating in the U.S. (as required by the FY21 NDAA), and the Federal Communications Commission's (FCC) list of communications equipment or services posing a national security risk.
Supporters argue
Supporters argue this provision is essential to prevent adversarial entities from using the U.S. patent system to legitimize or profit from technologies that could undermine national security. It closes a potential loophole where such entities might gain intellectual property rights in the U.S. despite being identified as threats.
Critics contend
Critics might argue that this provision could be overly broad, potentially affecting entities with tangential connections to listed organizations, and could complicate international intellectual property cooperation. Some may also raise concerns about the due process for entities placed on these lists.
Tradeoffs
This provision balances the desire to protect national security with the principle of a universal and accessible patent system. It introduces a national security filter into patent eligibility, potentially at the cost of perceived fairness or predictability for some international actors.
Section 2(a), amending 35 U.S.C. Chapter 10 by adding Sec. 106(a)(2)
Unenforceability of Existing Patents Held by National Security Threats
This provision declares that any U.S. patent, regardless of when it was issued, becomes unenforceable during any period that the patent holder is identified on one of the specified national security threat lists. This means that if an entity is placed on such a list, they lose the ability to assert their patent rights in U.S. courts, effectively preventing them from suing for infringement or collecting royalties.
Section 2(a), amending 35 U.S.C. Chapter 10 by adding Sec. 106(a)(3)
Prohibition on Expedited Patent Review for National Security Threats
This provision prohibits the use of any expedited review procedures, such as those under the Patent Prosecution Highway Program, for patent applications filed by entities on the designated national security threat lists. This means that while these entities can still file patent applications, their applications will not receive accelerated examination, potentially delaying the grant of any patent they might otherwise be eligible for.
Section 2(a), amending 35 U.S.C. Chapter 10 by adding Sec. 106(b)
Presidential Waiver Authority
This provision grants the President the authority to waive the prohibitions outlined in subsection (a) for specific entities for periods of up to 180 days. A waiver can be granted if the President determines that applying the prohibition is not in an essential security interest. Before granting a waiver, the President must submit a detailed report to the Senate and House Judiciary Committees, explaining the rationale, describing the activity that led to the entity's inclusion on a national security list, assessing its significance, and detailing any efforts to secure cooperation from the relevant foreign government.
This subsection clarifies that the prohibitions on patent issuance, unenforceability, or expedited review do not affect an entity's ability to file a patent application, the examination of such an application (except for expedited review), or the ownership or term of any patent owned by that person. This means the bill targets the *rights* associated with patents (issuance, enforcement, expedited processing) rather than the fundamental act of filing or the underlying ownership and duration of the patent itself.
Section 2(a), amending 35 U.S.C. Chapter 10 by adding Sec. 106(c)
Why it matters:This is standard legislative practice to include clarifying language that limits the scope of a new prohibition, ensuring it doesn't inadvertently affect other aspects of the law. It's not necessarily evasive but serves to precisely define the bill's boundaries.
Case for: Supporters would argue this clarification is important to ensure the bill is narrowly tailored to its national security objectives without unnecessarily disrupting the basic functions of the patent system, such as the right to file an application or the established term of a patent.
Case against: No specific case against this clarifying provision is typically made, as it limits the scope of the bill's impact rather than expanding it. However, some might argue that allowing filing and ownership without enforcement or issuance rights creates a 'limbo' state for intellectual property.
Estimated impact: This provision ensures that the core administrative processes of the USPTO related to patent filing and examination (outside of expedited review) remain unaffected, and that the legal duration of patents is preserved, even if their enforceability is suspended.