This week, the House of Representatives is scheduled to vote on legislation that will overturn 200 years of legal precedent, destroy constitutional protections afforded inventors and innovators, hurt our economy, and reward big banks. Yet some people have the temerity to claim that the bill — H.R. 1249, the America Invents Act — is “conservative.”
Patent reform is an issue that has lingered for years, but a small band of House conservatives joined forces with icons Phyllis Schlafly, Ed Meese, and others to block it. Never before have we been so close to defeat.
Drafted by Sen. Pat Leahy (D., Vt.) and passed by the Senate, patent reform is moving through the House at lightning speed. Unless the House leadership pulls the bill from the House calendar or House conservatives rally to defeat the measure, it will “harmonize” our patent system with Europe. This is a fancy way to say it will gut our patent system. Proponents of the legislation want to abandon the American patent system’s “First to Invent” standard and replace it with the European “First to File” standard.
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This is a critical distinction. “First to Invent” means that if one person applies for a patent that isn’t rightfully his, the real inventor can file, show his evidence in court, and be awarded the patent. Under “First to File,” by contrast, the person who filed first is simply assumed to be the true inventor. “First to File” gives large corporations and their lawyers an opportunity to steal ideas from innovators.
The change is a long-time dream of multinational corporations and their K Street lobbyists. Some legal experts even believe it is unconstitutional. Under the Constitution, Congress is empowered “to promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” Note the use of “Inventors,” not “Filers.”
And regardless of whether the Constitution mandates this particular system, American law for 200 years has protected inventors and fostered an environment of economic growth. Just a few weeks ago, Justice Roberts, writing for the majority in Board of Trustees of the Leland Stanford Junior University vs. Roche Molecular Systems, Inc, noted that “since 1790, [American] patent law has operated on the premise that rights in an invention belong to the inventor.”
To add insult to injury, a lobbyist-crafted provision to reward big banks and Wall Street firms was added to the patent-reform bill. The last people on earth who deserve another handout from Congress are TARP recipients, but their death grip on Congress appears to be as tight as ever.
Section 18, crafted by Sen. Chuck Schumer, provides banks with “patent relief.” Tired of paying fees to patent holders, the banks successfully lobbied to allow them special powers to try to void patents they find onerous. Rep. Aaron Schrock (R., Ill.) intends on offering an amendment to strike the provision.
The patent office, with its backlog of cases, needs help. But pushing a wholesale radical change in our patent system in order to help the Patent and Trademark Office is overkill, and deserves to be defeated.
— Rep. Dana Rohrabacher (R.) represents California’s 46th district.
Well said. It is shocking that congressmen can swallow the "harmonizing" argument. Which patent system has been more successful at promoting innovation over the last 200 years?
I have a lot of respect for Rep. Rohrabacher, who for many years was my representative, but here he has completely misconstrued the law to make a controversy where none exists. As someone who works in patent law, I have some experience with the process.
The *only* difference between "first to file" and "first to invent" is the way to resolve claims of multiple, simultaneous, and independent inventions. That is, one person files a patent, and another pops up and says "well actually, I invented the same thing last week."
In a "first to file" system, this is very easy to resolve -- look at whoever filed first. In a "first to invent" system, however, this involves a very costly and drawn out "interference proceeding." Lawyers for both sides will present to an examiner any bits of evidence to claim that their client came up with the idea first -- scraps of paper with scrawled notes, vague recollections of colleagues, lab billing and inventory records to attempt to prove by implication that if certain ingredients were used they must have already created the product. As you might imagine, this is very costly and expensive -- interference disputes have been known to go on for years.
And all this is for nothing. Even under "first to file," the person filing must be the inventor or his/her designee. If someone can prove that a patentee stole their work and fraudulently claimed to be the inventor, this will invalidate the patentee's rights -- just as in "first to invent." Nothing about this reform changes that. Rep. Rohrabacher's statements to the contrary are simply wrong.
This patent reform is a simple, commonsense procedural reform that will save millions in litigation costs, and have no effect on innovation (not to mention that if two people were able to invent a product simultaneously and independently, was it so novel that it needs to be sold under an exclusive monopoly?). It is unfortunate that Rep. Rohrabacher is so short sighted on this issue that he would attempt to use this as a political talking point.
I have to disagree with cdecoro (and agree with Rep. Rohrabacher). There are plenty of times a company may choose not to patent an invention but to keep it instead as a "trade secret".
If a competitor tries to patent and claim exclusive rights, then those internal records demonstrating prior art can be used to establish freedom to practice.
If first-to-file is adopted, then a company will be motivated to file every single invention that may or may not bear fruit in order to avoid being shut out.
"The *only* difference between 'first to file' and 'first to invent' is the way to resolve claims of multiple, simultaneous, and independent inventions."
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I'm no expert on IP, but if the above referenced statement from the previous commentor is correct, there would be no added pressure on companies to file an invention.
If competitor's claim was not in any sense "simultaneous," (i.e., if the competitor clearly did not create the invention at a previous or simultaneous time), then a company would have no fear that a competitor could claim its invention currently held as a "trade secret."
Rightly, the bill seeks a reform over disputes between "simultaneous" inventors. In those instances, it is both fair and efficient to resolve the dispute by seeing who filed first, instead of engaging in a hearing to decide whether one party adequately "invented" the product two days prior to the other. To say otherwise is, I think, stretching the idea of "inventor" a bit thin.
First to file undermines the idea that internal records, reports, etc are sufficient to establish prior art.
Suppose Ed Tommison of ABC Corp comes up with a potentially lucrative invention in 2011. He writes a report describing the invention and a "pitch" to management requesting product development funds including filing of a patent application. Management is interested but puts it on the backburner due to other priorities.
Then in 2013, competitor CDE Corp files a patent on a substantially similar idea.
Under first-to-invent, ABC Corp would, on the basis of their internal records, still have freedom to practice on Tommison's invention though they could not lock out CDE Corp.
Under first-to-file, CDE Corp would have exclusive rights to that invention and ABC Corp would be locked out. That is why first-to-file creates a motive to file more patents of unknown value.
You took the words right out of my mouth. I have been shocked by some of the rhetoric about this reform and this article was especially egregious in suggesting that it would allow non-inventors to "steal" inventions from inventors. There is genuine cost/benefit analysis to prepare regarding first-to-file vs. first-to-invent, but the arguments I'm hearing against this act barely focused on that.
You must be a congressman. If the point was publication, why wouldn't inventors just publish instead? Why would google bid a billion dollars for nortel's (published) patents? No, it's about protecting Philo Farnsowrth when RCA files first.
The whole point of patents is to promote the progress of science and the useful arts. Trade Secrets - which are just another variant of intellectual property law authorized by the constitution are equally valid.
Ladies and Gentlemen, Leftists and Rightists, Rational and Irrational:
By objective measures, I was the brightest in my class. To put this in perspective, the second and third brightest went on to be a famous corporate-defender attorney and a famous feminist academic, respectively.
But I was told that with my intellect, I ought to go on to great discoveries that would help humanity, except for the facts that my parents weren't alumni of prestigious universities, and I didn't play football or basketball, so the best universities would not admit me, and I should instead go to a state college and learn how to mop floors.
Nevertheless, I tried. Unfortunately, the silly patent protections granted to corporations (who would simply out-lawyer me in cash), as well as bribe politicians, meant that I was discouraged.
As a result, cancer has not been cured, AIDS still is rampant, polar bears are dying, the globe is warming, free markets are still defeated, pot has not been legalized, women are still not getting paid the same as men, unions dictate terms to corporations, English beer is still awful, and Rooney is still regarded as a great Manure player.
Please help me to right this terrible state of affairs, by affording patent protection to a limit of ten years, and lawsuit recovery not exceeding $10,000 dollars.
I am sure that The Founders would agree, if they were alive and sober.
The only thing the congressman is correct about is that harmonizing with the EU is not an inherently good idea.
Over the past 200years the patent system has been an abysmal failure. Contrary to the oppinion of the IP industry, ownership of ideas is with the public, patents and copyrights are a temporary lease granted by congress in return for a provable public benefit. As numerous studies have indicated there is no provable public benefit, there is no rational justification for patents. With very few exceptions - primarily the drug industry today, the patent system is on net a negative. Companies build patent portfolios solely as a defense measure, and the effort directs resources away from innovation.
The whole concept that an idea can be owned is ludicrously stupid. Libertarians - the strongest advocates of property rights who agree on little else have mostly concluded that intellectual property rights violate libertarian principles, they create artificial scarcity in fictitious property. They constitute a theft rather than a benefit.
The entire debate of this article is focused on what should be a non-issue, how to solve the problem of independent invention, and the answer is clear, neither first to publish or first to invent, are sufficient to give one person the exclusive rights to something they both conceived.
"The whole concept that an idea can be owned is ludicrously stupid."
Patents are on specific and detailed designs for inventions, not ideas. An idea by itself cannot be patented or copyrighted.
As for inventions, the reason we have patents is so that when you work to design and test an invention (which is hard), other people can't copy it (which is easy) and steal the fruits of your labor.
This in turn should encourage people to invent more, or at least not discourage them.
It has become dangerous to invent anything in today's litigious climate and there is almost new products that does not generate lawsuits.
In fact patents now are more of a method to keep others from innovating or to destroy competition.
Very few things are invented by the lone inventor and many times things are invented simultaneously by independent inventors. Our current system is mainly tailored to the lone inventor which in reality is extremely rare.
There is nothing conservative about our current patent system. It destroys the pioneering spirit of ingenuity. Long patent terms stifle competition and give very little incentive to actually implement the invention.
Our current patent system is a form of government protectionism and does not conform with our ideals of self-reliance, free markets, competition, and the limited role of government. Inventors do not need government protection to be successful. Inventors and entrepreneurs do not need to be a protected class. The thought of someone needing government protection as opposed to competing in a free market should offend the sensibilities of all conservatives.
It has become dangerous to invent anything in today's litigious climate and there is almost new products that does not generate lawsuits.
In fact patents now are more of a method to keep others from innovating or to destroy competition.
Very few things are invented by the lone inventor and many times things are invented simultaneously by independent inventors. Our current system is mainly tailored to the lone inventor which in reality is extremely rare.
There is nothing conservative about our current patent system. It destroys the pioneering spirit of ingenuity. Long patent terms stifle competition and give very little incentive to actually implement the invention.
Our current patent system is a form of government protectionism and does not conform with our ideals of self-reliance, free markets, competition, and the limited role of government. Inventors do not need government protection to be successful. Inventors and entrepreneurs do not need to be a protected class. The thought of someone needing government protection as opposed to competing in a free market should offend the sensibilities of all conservatives.
