Red State (www.redstate.com), the most widely read right of center blog on Capitol Hill, published a primer on Patent Reform legislation.
Patent Reform legislation has already passed the Senate. It has been marked-up in the House Judiciary Committee, and if the patriots don’t engage soon, the bill will pass the House by our nation’s birthday. It could be as early as this Thursday.
Unfortunately, many activists do not understand or fully appreciate the implications and dangers of the bill. In short, the bill is a radical assault upon our Constitution that will harm our nation’s inventors, entrepreneurs and our economy.
In order to be more like Europe, the legislation will “harmonize” American patent law with other nations, dramatically diminishing the patent protections offered to American innovators over the history of our Republic.
Who wants this bill? Multi-national corporations who could care less if this leads to more jobs overseas. If this globalist maneuver succeeds it will severely weaken our patent system and America will have lost the value of its greatest asset: the creative genius of our people. I am not alone in making these assertions. Glenn Beck made the same points this week on his radio show.
If enacted into law, provisions of this legislative onslaught will put America’s inventors at the mercy of multi-national corporations as well as state-sponsored cyber thieves. China is preparing itself for a onslaught against American intellectual property which will be made easier if this legislation becomes law.
H.R. 1249 mandates patents not be awarded to the inventor of new technology – as laid out in our Constitution — but instead to the first entity to file for a relevant patent. That means a company with a stable of lawyers will beat out the independent inventor who cannot afford multiple applications. This change is anti-inventor and pro-thief and copier, just the opposite of what our founding fathers had in mind for our patent system. First to invent is being replaced by first to file. It doesn’t take a genius to understand this is going to hurt America’s inventors. It may help big business and state-sponsored cyber thieves, but it will do great damage to our economy as it undermines our technological edge.
Just a few weeks ago, our Supreme Court decided a case that goes to the heart of the debate over H.R. 1249. In Stanford v. Roche, a patent infringement case, Chief Justice John Roberts held that “since 1790, the patent law has operated on the premise that rights in an invention belong to the inventor.” The “first-to-file” provision of H.R. 1249, which would allow Congress to award patents to non-inventors, is inconsistent with this decision. In short, H.R. 1249 violates our Constitution. Their motives may be to harmonize our law with the rest of the world, but that’s not always a good thing.
Making things worse, the bill also contains a special-interest giveaway to big banks and TARP recipients. Section 18 was specifically included in the bill to reward financial services companies with a new power – the ability to invalidate existing patents. Companies that received bailout money should not be rewarded with special privileges, but that is what this bill does. H.R. 1249 is the ultimate “big guy vs. little guy” legislation.
The time has come for action. Patriots need to let the House Leadership know this bill is counter to our Constitution and the values we hold dear. Congress needs to hear from the working people of this nation rather than the multi-national corporations, who could care less what this bill will do to the future of America.
Red State urged readers to Email members of Congress NOW and urge them to vote NO on H.R. 1249, the so-called “America Invents Act” that is in reality the “Patent Ripoff” bill.
The website says time is running out to save America’s patent system. The vote could be as early as Thursday.
About Red State: RedState is the most widely read right of center blog on Capitol Hill, is the most often cited right of center blog in the media, and is widely considered one of the most influential voices of the grassroots on the right.
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It’s really not necessarily true that small or independent inventors are better off under the current first-to-invent system or worse off under a first-to-file system.
For example, this post seems to imply that big companies can hire teams of lawyers that can crank out patent applications at light speed, while independent inventors are left to work with slow lawyers who take considerably longer to prepare and file a patent application. But this couldn’t be further from the truth. The fact is that there are firms that specialize in working with independent inventors that can prepare and file a patent application just as quickly as any big firm (same day in some cases).
Also, if an independent inventor can’t afford to hire someone to help with the preparation of a patent application, then it’s unlikely that the same small inventor would be better off under the current first-to-invent system than he would be under a first-to-file system. Why? Consider the scenario where big corp and small inventor both invent the same thing and both file patent applications. Small inventor came up with the invention first, but big corp filed their patent application first. Well, under the current first-to-invent system, small inventor would need to invoke an interference in order to show that he was first to invent, and therefore entitled to the patent instead of big corp. But the problem is that interference proceedings can be very expensive. So it’s unlikely that a small inventor who can’t afford to have a patent application prepared would be able to afford an interference proceeding.
Now consider an alternative scenario under the current first-to-invent system. Small inventor and big corp both invent the same thing, and both file a patent application, but this time small inventor files before big corp. So in this case, big corp may invoke an interference that small inventor can’t afford. So small inventor abandons his application and big corp gets the patent. It’s not right, but it’s something that could happen under the current first-to-invent system. I think in this scenario the small inventor would be better off under a first-to-file system.
So, my point is that the current first-to-invent system doesn’t necessarily benefit a small inventor any more than a first-to-file system would, and that there are scenarios where a small inventor could fare better under a first-to-file system.
In reply to the commenter, Amos: The scenario you paint is correct, but it’s not the scenario of concern to small businesses. It is extremely rare that interferences occur (0.01% of applications). The concern is that we will have to adopt the standard European practice of applying for patents BEFORE talking with investors (whose money would be useful for patent apps as well as product refinement prior to applying), and BEFORE talking with potential customers to establish whether the idea is even worth pursuing, and BEFORE recruiting other members of the team needed to raise money, develop the product, talk to customers, etc. If one does not, one is at risk that someone else might get wind of it and apply first. Unless one can prove that they got the idea from you, you can’t prevail, and there is no right of discovery that the plaintiff is entitled to. If someone hears about it and writes about the concept, that too can preclude receiving a patent. The net result will be bad for start-ups and our open innovation system. This is one of the important reasons why VC investing is a much smaller phenomenon in Europe, and why the EU recently declared an “innovation emergency.”
This only scratches the surface of the problems of FTF, which is only one part of the many problems with this bill. I have written about it at the following sites:
Venture Capital Journal, 6/1/11 (subscription required (free trial available)):
http://www.vcjnews.com/story.asp?sectioncode=32&storycode=5824547
Patently Absurd or: How to Go From the World’s Best Patent System to Worse-Than-Most in a Single Step (The Huffington Post, 3/7/11):
http://www.huffingtonpost.com/gary-lauder/patently-absurd-or-how-to_b_832703.html?view=print
Venture Capital – The Buck Stops Where? (Medical Innovation & Business, Summer 2010 – Volume 2 – Issue 2 – p 14 – 19):
http://journals.lww.com/medinnovbusiness/Fulltext/2010/06010/Venture_Capital___The_Buck_Stops_Where_.4.aspx
Wikipedia also has more detail.
Call your congressman/woman about this. They have barely heard from anyone.
-GML
Gary –
I agree that interferences are rare. My comments were in response to the statement in the article that “a company with a stable of lawyers will beat out the independent inventor….” I think such statements are very misleading, and I think it’s worth noting that this article provides no evidence in support of this statement.
Regarding the issues you raise, couldn’t those be handled by filing a provisional application before you start talking to investors, etc.? Regardless of whether we have a first-to-file or a first-to-invent system, I think that these types of pre-filing conversations can be wrought with risk.
By the way, big companies often go through some some pre-filing analysis and deliberation, which can also be time consuming. So it’s not as if all big companies fire off patent applications as soon as an invention is conceived.