Completely agree with you. It’s not often nowadays that I, a longtime liberal lurker at RedState, have much to offer by way of comment. But on this issue you are 100% correct

well said, sir.

A first to file system benefits small inventors. For every situation where a small inventor invented an idea but was beat to the patent office by a large corporation, I can show you two situations where the small inventor filed first, but then lost the invention to a large corporation in an interference proceeding (an interference proceeding is the process used by the PTO to decide who should be given the patent rights to the invention). There are two reasons for this. First, small inventors can’t afford to fight a big interference case and small inventors often do not have the evidence need to sustain an interference case. Corporate inventors are taught to keep the required evidence. Joe Schmuck inventing something in his garage isn’t.

The PTO should also be allowed to keep all of its fees. The problem is that when Republicans control Congress they repeatedly divert money paid by inventors in the form of fees to various other sundry government projects. The PTO is treated a tax collection arm of the government. The Democrats usually let the PTO keep all of its fees.

I am somewhat sympathetic to your argument that the PTO’s appropriations shouldn;t be outside the control of Congress, but the reality is that when Republicans control Congress, the PTO does not get to keep its revenue. It doesn’t happen. Congress needs to keep its hands off of this revenue and let the PTO spend it appropriately.

I don’t know about the merits of your constitutional arguments so I won’t comment about them.

Given that the constitution specifically says that patents are for the purpose of protecting “The Inventor” as opposed to Johnny-on-the-spot with the paperwork, is it possible that this law would be unconstitutional?

The proposed patent reform legislation does not change the US from a first to invent system to a pure first to file system. Instead, it changes the US to a first INVENTOR to file system. The patent applicant must still satisfy 35 USC 102(f) which requires that the applicant must not have derived or stolen his invention from another. I do not believe that the proposed legislation violates the Constitution. Whether its better or not, remains to be seen.

Fee diversion by Congress has to end. It is harming innovation in this country. You and I and everyone here knows that Congress (be it controlled by Republicans or Democrats) has no will power when it comes to spending. As long as it can, it will divert funds from the Patent Office to fund pet projects or other political purposes. Take for example, the recent budget cuts made by the current Congress. You know, the one advertised as $32 billion, but which was in reality only $383 million (You can look up the actual numbers). $100 million was cut from the Patent Office.

BTW, I am a Patent Attorney in private practice. I have been a Republican since I turned 18 under Reagan, I have read RedState daily for the last couple of years. However, this is my first post.

The proposed patent reform legislation does not change the US from a first to invent system to a pure first to file system. Instead, it changes the US to a first INVENTOR to file system. The patent applicant must still satisfy 35 USC 102(f) which requires that the applicant must not have derived or stolen his invention from another. I do not believe that the proposed legislation violates the Constitution. Whether its better or not, remains to be seen.

Fee diversion by Congress has to end. It is harming innovation in this country. You and I and everyone here knows that Congress (be it controlled by Republicans or Democrats) has no will power when it comes to spending. As long as it can, it will divert funds from the Patent Office to fund pet projects or other political purposes. Take for example, the recent budget cuts made by the current Congress. You know, the one advertised as $32 billion, but which was in reality only $383 million (You can look up the actual numbers). $100 million was cut from the Patent Office.

BTW, I am a Patent Attorney in private practice. I have been a Republican since I turned 18 under Reagan, I have read RedState daily for the last couple of years. However, this is my first post.

It just so happens that I looked up from … working on a patent disclosure form. As the inventor, I am submitting my documents in preparation for a patent application submission.

Folks, it doesn’t matter. If you are small and poor, like me and my employer, the likelyhood is that you are going to get run over by a larger organization. That is the way the current system works, and that is how the new proposed system works.

The USPTO currently has a terrible wait, even to simply open an envelope. The patent on my PhD dissertation, filed in 2001, is still in litigation. At some point, the patent application was sold, and my wife got a dining room table out of it. My bosses had wanted to start a company, but that just wasn’t in the cards, so the IP was sold to a large corporation to augment their intellectual property warchest. Fewer jobs, but better IP position for a multi-national corporation. The patent examiners currently make some of the silliest arguments against inventions, primarily to A) generate fees for the USPTO, and B) so their lawyer buddies can make a bunch of money submitting rebuttals. It is a corrupt racket right now, and I have long since given up hope that the system can be improved.

The way we work right now, if we think we can sell the provisional in a short amount of time, we patent and sell. If not, we simply don’t bother to patent and just publish the discovery (destroying all economic value), because we can’t afford the legal fees to prosecute a patent unless there is a guaranteed payoff. In a first to file situation, the rules remain the same. Just so everybody is clear, the vast majority of patents are worth … precisely nothing.

Unlike most who have opinions on patents, I’m a small business guy who actually has a patent, which also means I’ve been thru the patent process — the attorneys, the waiting, the back and forth to define the patent, the fees every few years to maintain the patent, etc. IMHO, it’s an overly long, messy and expensive experience.

Typically, if your patent covers anything that is of significant value to others in the industry, there are work-arounds which may or may not end up making your patent all that much protection.

I’m not sure if this bill will or won’t correct any of these issues. I see no particular problem having the patent office set fees according to cost. If they want to do some capital improvement, they still ought to go thru Congress for that. Their wages should be governed by Civil Service laws, which probably should be addressed. This sort of system works for other state government offices I deal with. In summary, fear of abuse hasn’t been born out in other government agencies I’ve dealt with, assuming proper checks and balances are in place.

IMHO, ‘real patent reform’ would involve giving companies with a patent a tax cut for shortening the term of their patent. If the patent lasts twenty years, you pay the corporate tax rate, if you opt to have it last for ten years, you pay half the corporate tax rate. If you opt for no patent protect and just aggressively push the marketplace, you pay no corporate taxes, and anyone else could copy your product (and pay no taxes)…. In other words, let the marketplace determine patent terms and tax rates. In high tech, a patent might only be good for five years, (during which time you might license it), or (in something that takes a decade or more of research to develop), it might make sense to take the full twenty years of protection. Let the marketplace decide these issues… IMHO, this would quickly return the US to exceptionalism, regardless of the nuances of the patent bureaucracy…

To me, first-to-file vs. first-to-invent is a non-issue. Less than 1% of applications need to go through an interference process to determine whether or not another invented before the one who got the earlier filing date, and the standard for showing diligence in going from conception to reduction to practice (thereby showin prior invention) is nearly impossible to meet. I am a registered patent agent, manage the patent portfolio for a $1billion+ company, and have over a dozen patents of my own. I do not see it as an issueone way or another. Attorneys in private practice have a different problem with it, and that is the malpractice insurance impact, since any delay in filing could cost one the patent.
the real issue, though is fee diversion. The USPTO is fully user-funded. Applicants prepay upon filing for search and examination, which is supposed to start within 14 months, The average timenow is around 26 months. The USPTO is not able to spend those fees to fulfill its tasks, since it relies on an appropriation (around $2billion) from Congress. If it collects more fees than the appropriation, those excesses are divertted by Congress to other uses, and the applicants wait. Congressman Ryan is wrong on this one – those funds are derived from general taxation, they were paid by applicants for a specific purpose. Setting up a revolving fund as 22 HR 1249 suggests does not remove the USPTO from Congressional oversight. It should be added that this language was added to Senate S23 in an amendment by Senator Coburn, a strong Republican fiscal conservative.

thing is clear in all these post. If the government can stick it hands in any situation wring money out of it and screw it up, they do.

“If you can’t support our troops feel free to get out in front of them.”

“Proponents of the change argue that it is more efficient and would better harmonize with the rest of the world. It is more efficient, and it would better harmonize with the rest of the world, but that does not mean it is wise. ”

How about we change that last word to “right.”

Erick’s best point is that an invention is the property of someone, and property should be allowed to be kept by its owner.

On the premise that the right to own property is given to us by our Creator, I would have to say NO to this bill.

Just because they call it “reform” doesn’t mean it is. Patent reform is a fraud on America. This bill will not do what they claim it will. What it will do is help large multinational corporations maintain their monopolies by robbing and killing their small entity and startup competitors (so it will do exactly what the large multinationals paid for) and with them the jobs they would have created. According to recent studies by the Kauffman Foundation and economists at the U.S. Census Bureau, “startups aren’t everything when it comes to job growth. They’re the only thing.” This bill is a wholesale slaughter of US jobs. Those wishing to help in the fight to defeat this bill should contact us as below.

Small entities and inventors have been given far too little voice on this bill when one considers that they rely far more heavily on the patent system than do large firms who can control their markets by their size alone. The smaller the firm, the more they rely on patents -especially startups and individual inventors. Yet small entities create the lion’s share of new jobs.

Please see http://truereform.piausa.org/ for a different/opposing view on patent reform.
http://docs.piausa.org/