Very soon, the U.S. Patent and Trademark Office (PTO) will decide whether to correct a quiet but serious failure – one that risks turning the American legal process into a tactical weapon for foreign infringers that could undermine American innovation.

The case involves Efficient Power Conversion Corporation, a California-based company that holds patents on core semiconductor technology. After developing and patenting this innovation under U.S. law, the company found itself undercut by a Chinese competitor, Innoscience, which began selling copycat products in the U.S. market at artificially low prices.

The American company, EPC, did exactly what innovators are supposed to do in such cases: it sought relief from the U.S. International Trade Commission, the federal agency tasked with investigating – and, when necessary, halting – unfair imports.

The ITC's process is deliberately rigorous. First, an administrative law judge conducts a full evidentiary hearing. Then the six-member Commission – three Republicans, three Democrats, all confirmed by the Senate – reviews the ruling and decides whether to affirm it. Finally, the President has 60 days to intervene if the result conflicts with broader policy interests.

In this case, every step played out in favor of EPC. The administrative law judge ruled that Innoscience had violated U.S. trade law by importing products that infringed EPC's valid patents. The Commission affirmed that finding. The White House declined to intervene. The result was a binding exclusion order, blocking the infringing Chinese products from entering the U.S. market.