Politics & Policy

‘Patent Reform’ Will Hurt Innovation

Let’s not discourage ingenuity or give big banks another bailout.

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.

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.


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