The issuance of patents to the “original and true inventor” is as American as the Constitution. But if Members of Congress have their way, the American patent system will soon turn into the European patent system
That’s because a Patent Reform bill approved by the Senate and by the House Judiciary Committee could be scheduled for a vote this week. The legislation will transform 200 years of patent law’s “first to invent” standard and replace it with Europe’s “first to file” standard. It is all part of an effort to “harmonize” America’ patent system with Europe’s.
The only people who can stop this attack on the American system are Speaker John Boehner and House Majority Leader Eric Cantor. Newspapers suggest that Cantor may be on the wrong side and word on Capitol Hill is that the Leadership has green lighted the effort to move the bill next week.
The Patent Acts of 1790 and 1793 legislated that the patent must be awarded to “the first and true inventor.” The Patent Act of 1836 used the language “original and true inventor” and “original and first inventor.” In Evans v. Jordan (1813), Chief Justice John Marshall wrote that the Constitution guarantees the “exclusive” right “to the inventor from the moment of invention.” In Shaw v. Cooper (1833), the Supreme Court upheld the law that vested “the exclusive right in the inventor only.”
This American tradition was affirmed earlier this month when Chief Justice John Roberts, writing for the Supreme Court in Stanford v. Roche, that “[s]ince 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 200 years of American patent law and constitutional precedent.
The Tea Party has asked members of Congress to support and defend the Constitution. It’s clear that H.R. 1249 is patently unconstitutional.
But as they say on TV, “But wait there’s more.”
The bill is fiscally irresponsible. Budget Hawk Rep. Paul Ryan (R-WI), the Chairman of the House Judiciary Committee said the provision “[P]utting PTO funding on auto-pilot is a move in exactly the wrong direction, given the new Republican majority’s commitment to restrained spending, improving accountability and transparency, and reducing the nation’s unparalleled deficits and debt.”
Lobbyists for big banks and Wall Street are lining up to push Section 18 of the bill, a giveaway available only to TARP recipients allowing these entities to seek bureaucratic repeal of patents already issued and tried in court. It’s another giveaway to big banks.
The American standard will end up on the dustbin of history unless the Republican leadership is willing to stand up to big business and big banks that are pushing for fast enactment of the legislation.
ever get the feeling the government could care less and less about the little guy in society?
Looking out for those with the deepest pockets; The ones that can afford the the expensive process of intellectual property protection; Will prevail. Edison and Bell will be spinning in their graves….
The Chinese and other foreign countries have rendered patents almost useless.
The Chinese peruse new patents to see if they are useful to them. If so they just ignore the patent and start cranking out copies. IF the vicitim has the money to take them to court, it will take anywhere from 10-20 years to resolve.
For other patent violators, they simply fold the company and open a new one elsewhere forcing the patent holder to start all over with legal action.
The only good a patent does is keep someone copying YOUR invention from suing YOU for patent infringement because they bothered to get one.
Getting and maintaining a patent these days is an incredibly expensive proposition – couple that with how much it costs to keep a patent valid on an annual basis in other countries makes it much more so. I am convinced the Asians in particular do it this way to make it easier to steal the invention and claim some sort of legitimacy at the same time – by saying a patent is no longer valid in their home country. “Gee, we didn’t steal it – it is just that you didn’t pay to keep up the patent!”
The vast majority of our legislators are completely disconnected from the rest of America – and killing off the small businessman is part and parcel of what they do. It is disgusting – and fundamentally, just why do we need a system that fits better with Europe? Now THAT is one really lame argument.
The European system can be abusive – for example, years ago, the company for which I worked invented a certain nickel-palladium alloy for brazing diamond drilling bits for oil wells, etc. One British company that we sold to was actually able to patent the application – yes, indeed, the UK patent actually named our company and our alloy designation and then claimed that the British company owned the rights to the application using that specifc alloy. I was floored. The British outfit thought they were being clever to prevent their compettiors from using that alloy – because it worked so well. So what happened? Rather than figtht them about it, our scientist went back to the lab, modified the alloy and in the process came up with a better one which we sold to everyone else. The British outfit apparently did not want to eat crow; so they became the sole purchaser of the older alloy – and of course, at a higher price than everyone else. Market conditions, you see.
As has been pointed out above, long standing Constitutional and court cases have upheld the rights of the inventor, or, the “first inventor”, to his/her inventions through the patent system.
Article I, Section 8 states;
In Federalist Paper, no. 43, James Madison writes;
Those two documents are very clear, without having to peruse court cases, that the right to a patent falls to the “first to invent”, and never to the “first to file”. And, what’s more, current law does allow for the “first to file”, assuming the original inventor has not met several requirements regarding the invention. U.S. Patent law is quite a bit more sophisticated and complex than the typical American imagines.
I would hope that the bill is defeated, however, the sister bill passed the senate with hardly any publicity at all, and it looks like the House bill will do the same. Time for people to burn up the phone lines to their congress critter and voice their objection.
As an aside, one will get a very good idea of not only how learned their congress critter is regarding the Constitution, but where they actually stand concerning it, with their vote on this bill.
Patents are broken.
First to invent sounds good, but in reality, it’s a never ending court battle with lawyers reaping the gain.
First to file may not be “fair”, but it’s enforceable, something first to invent is not.
@R Sweeney:
Regardless of how hard it might be to enforce the idea of “first to invent”, by allowing “first to file” one disallows another of man’s private property, and renders the mind of man nearly open to all in society, or at least whoever’s got the money to file on someone else’s idea.
Not to mention, that the Constitution, along with the Federalist Papers, and Supreme Court case history, has established that clause 8, in Article I, Section 8, refers to an individual’s right to patent of “first to invent”. In other words, in order to actually get this changed, a Constitutional Amendment must be brought forth, and accepted and ratified by the States, otherwise the law that will be passed is unConstitutional.
I hold two patents and I’ve filed 5 more and I’ve gone way in hock over the past couple of years trying to lock down international rights. Expense is utterly breathtaking. I pay my US patent firm. They subcontract out to foreign patent firms (I’ve got them on 4 continents and multiple countries). The foreign firms subcontract out work, such as translating patent applications into Japanese and Korean, for example. Ker-ching. Ker-ching. Ker-ching. Idiot dufus foreign patent examiner doesn’t get it and denies. You appeal. Your US patent attorney makes the general arguments. The foreign subcontractor modifies for re-c0nsideration. Ker-ching. Ker-ching Ker-ching. American patent examiner doesn’t get it and denies. I and San Diego based patent attorney fly to Alexandria VA for appeal conference. ker-ching. ker-ching. ker-ching. On and on and on. As I said, deep in hock.
One thing is this: the “first to invent” standard is nice in theory, but illusory in practice. You’ve got to file before you disclose. If you disclose, it’s in the public domain and you can’t patent. If someone beats you to the punch, then, by definition, it’s in the public domain, unless the thieves clearly stole the idea directly from you (e.g. they breached a confidential disclosure agreement or hacked your computer).
I don’t see this as a big deal, actually. As I said, it’s mostly theoretical, in the real world.
– Larry Weisenthal/Huntington Beach, CA
@Hard Right:
Great point.
The Chinese crank out inferior copies of everything.
Some so close-looking to the original that people try to get the ripped off manufacturer to replace them when they fail!
I have seen this with Chinese copies of golf clubs.
The best way the company had to prove it wasn’t their own was to weigh it.
Cheap copy was heavier.
Today I was reading about how our own EPA regulations made it impossible for us to recycle used computer components.
So, we ship scrapped electronics by the shipload to China.
The trash-diggers find circuit boards then melt the solder off so they can sell the chips for $.50 a dozen.
Those used and damaged chips are then coated and reprinted and put into cell phones.
No wonder the darned things aren’t reliable!
Nothing we think we can exclusively patent lasts its first contact with the Chinese.
P.S. to #8:
There is one current prominent difference between US and international patent law. In the USA, you have one year from the time of disclosure to file. Internationally, you have to file before you disclose. So if, for example, I present some research findings at a medical meeting before I file a patent application, then I can retain US rights for one year before losing them, while I lose international rights immediately.
However, as previously stated, this is not really such a big deal. Among other things, it is simple and inexpensive to file a “provisional” patent application (filing fee is only $110 for a small business entity and it can be done with $100 patent application software). The “provisional” works as a placeholder — for both US and international patent rights. It holds your place for one year; if you don’t file a complete, formal, big deal patent application within a year of filing the provisional, you lose it.
But all inventors know this. File before you disclose. As you can prepare and file a “provisional” with only a few hours work (or less) and for only $110, then there’s never any reason to disclose before you file.
I really don’t see the proposed change, to bring US and international patent rules into accord, as being any sort of big deal. I don’t think that it’s at all unconstitutional, given that the principle has always existed that you can’t patent what’s in the public domain.
– Larry Weisenthal/Huntington Beach, CA
@openid.aol.com/runnswim:
Larry, you are quite wrong on the constitutionality of changing the process from “first to invent” to “first to file”. The Constitution itself is not ambiguous on this, as I highlighted the appropriate clause above, in #3. To reiterate, Article I, Section 8, clause 8;
Note that it does not say anything but ‘Inventors’, regarding discoveries. No ambiguity. No room for weaseling in a “first to file” definition. Now, being that it is against what the Constitution itself says, the law will be found not in accordance with the Constitution, and must be struck down, if passed.
Your second part of that statement has little to do with who can file, but rather what can be filed. There is a difference between the two. Also, if the will is there to change it, the correct option for changing that particular part of patent law is to offer a Constitutional Amendment for review and ratification. There is no other possibility, unless one wishes to step on the Constitution itself and render all contained within it meaningless.
BTW, I just commented to Nan G about you not being here lately while I’ve been on. Glad to see you commenting at this time.
Why do we always seem to nowadays, be wanting to “Harmonize” with Europe?? If I recall correctly, didn’t We, Americans LEAVE that bunch, because their ways SUCKED??? So, why are we always now, trying to move BACKWARDS, and become JUST LIKE THEM????