« BACK  |  PRINT

RS

MEMBER DIARY

What you need to know about Patent Reform . . . and Fast

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.

Email your Congressman 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.

Time is running out to save America’s patent system.  The vote could be as early as Thursday.

COMMENTS

  • justcurious

    Why is no one discussing the extraordinary number of foreign nationals working at the patent office. The number of foreign-born examiners in the PTO (particularly Chinese and Vietnamese) is staggering. Perhaps they are all somehow citizens, but it seems unlikely. And having a bunch of non-citizens not only controlling who we reward for innovation, but also havng first access to all of our technological secrets, seems reckless.
    I don’t understand why no one is talking about this.

    • gekster

      Write a diary about it.
      I’m sure we will read it. :)

  • http://pocketchangeproductions.net/ anotherindyfilmguy

    But if it is this far along will the legislators be patriots or sellouts?

  • http://seekingliberty.wordpress.com fmaidment

    Intellectual property isn’t really covered in our Constitution. In fact, the word “property” in reference to individual property doesn’t even show up until the Fifth Amendment, and that’s part of the Due Process provision.

    You’re right that this is an assault on inventors, but to say that it’s “unconstitutional” is a stretch at best and intellectually dishonest at worst. It should be a right of the inventor, not “first to file”. That’s been our system for years and it’s legally fair to continue to treat it that way. However, if someone fails to file for a patent and it is filed elsewhere, it has always been the duty of the inventor to prove they invented it first. This encourages early filings and, even if initially rejected, stops the process for anyone else following the exact same path.

    There doesn’t need to be any change to our patent law. It works just fine, and “harmonizing” with the rest of the world in every other aspect of our economy is part of what got us into our current economic mess. This seems like a step in a completely wrong direction.

  • fmaidment

    …I discover I’m incorrect. Intellectual property is covered in the Constitution. I should have reviewed it before commenting.

    However, it directs Congress to find a method of determining the rights of inventors. So I still question the “unconstitutional” portion of your argument, if somewhat less vehemently.

  • dblagent007

    No one is proposing granting patents to non-inventors. The party who files the patent must not have derived it from anyone else. The patent reform will implement a first inventor to file system, (i.e., you must still invent it independently and not copy it from someone else).

  • gpclaw

    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;

    The Constitution directs congress to establish a system to ensure that authors and inventors have exclusive rights to their intellectual property.

    The reason this legislation is unconstitutional, is because patent protection will be extended to the entity who files for the patent,which may not be the inventor. This would allow someone to take your idea, file for the patent, and once they have the patent, the enjoy the exclusivity of the invention. Even if you can prove that you are the inventor, it won’t matter, this legislation says it doesn’t matter, because you didn’t file the patent application.

    This clearly doesn’t pass Constitutional muster, and would eventually be defeated in court. Unfortunately, this will take time, and many will miss out on reaping the rewards of their hard work.

  • http://www.hakubi.us/ Neil Stevens

    You should stop posting before you further embarrass your industry.

  • JSobieski

    I agree that in principle, a non-inventor will not be allowed to patent something invented by another person. However, that would require a forum by which the true inventor puts forth evidence of earlier date of conception. The change from first to invent to first to file is expressly designed to avoid such a dispute and such a forum.

    So in theory you are correct, but in practice, you are not. If we are going to allow evidence to show a date of conception to torpedo a patent, why not allow evidence to show a date of conception in granting a patent.

    In a first to file system, there will be fewer patents because the first to invent will also need to be the first to file. If you don’t win both races, no valid patent results.

  • dblagent007
  • dblagent007

    The issue is whether the first to file actually got the idea from someone else. If so, then the first to file is not the actual “inventor” and shouldn’t be awarded the patent. In essence, this is the same bar to patentability as the current provision in 35 USC 102(f).

    I think this inquiry is much narrower than the traditional conception, diligence, reduction to practice, inquiry required under the current first to invent system.

    I don’t think you understand the bill based on your statement that “the first to invent will also need to be the first to file.” You don’t have to be the first to conceive and the first to file to be awarded the patent. You have to be the first to file and you must be a bona fide inventor (i.e., you did not get the idea from someone else). If two people invented the same thing at about the same time, the person who filed first will get the patent. It doesn’t matter who conceived of it first (unless one person stole the idea from the other person, then that person won’t get the patent)..

  • http://www.hakubi.us/ Neil Stevens
  • http://www.hakubi.us/ Neil Stevens

    At least you admit that the first person to come up with the idea gets shafted under the Democrat/ABA plan.

  • JSobieski

    Thus the likelihood of the first inventor/second filer doing something that constitutes prior art to the second inventor/first filer is increased.

    In any case, the key issue is why tip the balance in favor of the first filer? Why should the system be modified to better reward the person who quickly runs to the patent office?

    Existing law handles conception/diligence/reduction to practice pretty well if you ask me. Neither the significant delays at the USPTO nor the embarassing examples of obvious patents being issued by the USPTO would be cured by a first to file rule. Aren’t these the two most important problems with the existing system? If so, why the persistent focus on going first to file which doesn’t address either issue?

    What problem is first to file trying to solve? What are the downsides to the cure?

    The rule change really only serves to simplify litigation and interferences. It do so at the expense of inventors likely to be less quick on the draw to file applications. Savy clients will likely be even more likely to file provisional applications in a perfunctary manner. Less experienced clients will be more likely to find themselves in a situation where they are out in the cold just so there is one less issue of dispute in litigation.

    Comprehensive patent reform is usually bad for the same reasons comprehensive healthcare reform is usually bad. The most pressing problems are ignored in a scattershot approach at addressing less significant problems, while in all likelihood creating a bunch of new problems that are more severe than the problems being addressed.

    First to file is not going to result in a better quality examination. First to file is not going to reduce pendency periods unless people respond to patent reform by giving up on the system and refrain from filing patents. So why to go to first to file?

  • Raven

    That “your” invention, having come After the other person’s invention was not based on or derived from that other invention? Does that other person even get a chance in court to make that claim (ans: not in this bill)?
    Either the requirements to prove the one was not derived from the other will be unreasonably high, or uselessly low (or just unenforced). Either way, the law is no good. And that Only matters if the other inventor gets his day in court (which the current law does not provide for).

    Btw, you’re not the only patent lawyer available for consultation.

  • http://theminorityreportblog.com Repair_Man_Jack

    There are LAW PRACTICES out there that specialize in this sort of thing. Fax them a pre-prepared package with diagrams, descriptions and outlandish claims, and they can have it over to PTO before the truth can get its boots on.

  • bs61

    http://www.speaker.gov/contact/default.aspx