Rohrabacher: Don't Weaken Our Patent System

Wednesday, 22 Jun 2011 08:24 AM

By Dana Rohrabacher

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The House of Representatives is expected to vote this week on H.R. 1249, the America Invents Act. This bill, and a similar bill in the Senate, is designed to “reform” our patent system.

U.S. Rep. Dana Rohrabacher
Both bills, however, weaken our unique U.S. system by forcing our country to “harmonize” U.S. patent standards downward to the level of the weaker systems in Europe and Asia.

Passing this bill would undermine our patent system, which has encouraged innovation and led to America’s unmatched economic strength in the world.

Chairman Lamar Smith (R-Texas) should withdraw the bill so that the American people — and their representatives in the House — can review this patchwork of bad ideas and carve-outs cobbled together in a back room.

Rep. Hal Rogers (R-Ky.), chairman of the Appropriations Committee, and Rep. Paul Ryan (R-Wis.), chairman of the Budget Committee, sent a letter last week stating that the bill’s provisions related to their committees — and to the constitutional role of the entire legislative branch — had not been thought out well enough.

Other House committees are also worried that this legislation is moving without adequate time to consider the consequences on small business, technology development and job creation.

In addition, the Supreme Court’s recent Stanford v. Roche decision obliterates the argument made by the authors of the bill that “first to file” has always been the basis of U.S. patent law. The ruling, in fact, confirms “first to invent” has always been our standard.

As Chief Justice John Roberts wrote for the 7-2 majority: “[s]ince 1790, the patent law has operated on the premise that rights in an invention belong to the inventor.” Thus, the Supreme Court reaffirmed that issuing patents to the inventor is, and always has been, the law of the land.

The proposed legislation could fundamentally change our system from recognizing the constitutionally-protected rights of the inventor to the government granting patent rights to the first to jump through their bureaucratic hoops.

This change from “first to invent” to “first to file” would dramatically shift the protection from individual and small business inventors to major foreign and domestic corporate entities with an army of attorneys and a huge budget for litigation and legal filings. 

There are other major problems with these patent “reform” bills — including a drastic weakening of the special one-year “grace period,” a hallmark of the U.S. system since 1839. This allows an inventor to refine his invention and put together a team to implement it without losing the rights.

Consumer groups say the bill’s provision on false marking “gives manufacturers carte blanche to falsify information on their labels and deceive consumers.”

There is also a provision granting “prior user rights”— creating a way for companies, including Chinese and other foreign corporations, to claim they were secretly using a technology before a patent was granted. This grants them the right to continue using the now patented creation anonymously, undermining the very essence of patent protection.

This legislation is designed to favor foreign entities and large, multinational corporations, which have the in-house expertise and funding available to avoid the traps set by the proposed new system. Yet, most of new U.S. job creation comes from individual inventors, startups and small companies that need strong patent protection.

True patent reform should focus on resolving funding problems, reducing the backlog of patent applications and increasing efficiency at the Patent Office.
Addressing these key problems may well obviate the need for any major changes to our patent system. The weakening of U.S. patents does nothing to address these key problems.

These dramatic, unprecedented changes to the fundamental premise of securing an inventor’s rights — rather than granting them to the “first to file” — can only weaken innovation, weaken job creation and weaken America.

The importance of these changes has been downplayed by the multinational corporations and the authors of this legislation. But this is a drastic move away from the founders’ intent of the law and what they enshrined in the Constitution.

A growing chorus is now calling for more judicious consideration of this bill’s far-reaching effects before we change for the worse a patent system that has produced the most innovative and dynamic economy the world has ever known.

H.R. 1249 should be withdrawn until thoughtful consideration can take place.

Rep. Dana Rohrabacher (R-Calif.) is the chairman of the Oversight and Investigations subcommittee of the House Committee on Foreign Affairs and is a member of the House Science, Space and Technology Committee.


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