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    GOP-Backed Patent Reform Ignores the Constitution, Costs $1 Billion +, and Taxes Innovation

    GOP-Backed Patent Reform Ignores the Constitution, Costs $1 Billion +, and Taxes Innovation

    You probably haven’t heard about yesterday’s passage of the “America Invents Act” in the House, but as the bill goes into reconciliation after gaining the support of all but 67 Republican Representatives and three Republican Senators (along with two Democratic Senators and 50 Democratic Representatives), it’s important that you know what it means for the future of American innovation.

    The Copyright Clause ( Article I, Section 8, Clause 8 ) of the Constitution states that Congress has the power, “[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.”

    But the patent reform legislation that passed the House yesterday throws this out the window, turning the procedure one follows to get a patent on their idea into a European-style “first-to-file” system.  The bill also gives the patent office the ability to raise fees and hands over the legislative authority to appropriate that revenue to Executive Branch bureaucrats.

    Essentially, small business owners and individual inventors without the resources or ability to navigate a more difficult patent procedure are going to lose their ideas to larger, more connected corporations or, even worse, not pursue their idea at all.

    Congressman Dana Rohrabacher (R-CA) spoke Wednesday on the House floor a few times on this issue and laid out a good last minute argument against the changes, while also pointing out the $1 billion in new spending the bill contains that is not being made up for with other cuts, as his colleagues had promised they would do under their “paygo” rules.

    In one of the clips at the link above, Rohrabacher cites the Hoover Institute, which, in addition to the Constitutional conflicts, lays out the practical argument against the changes:

    A final big problem with the proposed bill’s shift to first to file is that, not surprisingly, a first to file approach creates a serious incentive to rush to file. That’s a problem because rushing a filing causes the technological disclosure in that filing to be anemic for all but those huge companies with teams of lawyers on call just waiting to make rich filings. Not only is this just another provision of the bill that favors large players at the expense of smaller ones, it also is likely to have the practical effect of stripping the U.S. patent system of those patents that might otherwise have been of a broad scope . . . The rush to file quickly under a first to file regime significantly decreases the chance that a broad patent will issue. That’s one big reason why the U.S. has long been unique in the world for having a decent number of significantly broad patents. These pioneering patents were key to the successful commercialization of many of the world’s most important technological advances from television, to the gasoline distillation process, to the catalysis of modern plastics.

    Why a bill that so clearly stifles innovation, creates additional taxes on the drivers of the American economy, and increases spending by creating a billion dollars worth of more bureaucracy isn’t attracting more grassroots opposition from groups like the Tea Party is beyond me.  But the good news is that, as the bill still has to go through the reconciliation process, there is still time to stop it.


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    This is a horrible development for me: I want as little to do with the patent system as possible! If a “first-to-file” rule is adopted, it would make it impossible for me to defend an idea I develop as “prior art”.

    I have absolutely no desire to get patents, or to get into lawsuits about who came up with what idea first. As our system currently stands, I can at the very least write up my ideas, notarize them, and publish them, so that someone else who patents the idea later wouldn’t successfully claim that I “stole” their idea.

    Even then, I’m not sure what I’d be able to do: I wouldn’t be able to afford a patent lawsuit!

    The entire concept of patents is flawed, and needs to be done away with. It inevitably favors the large corporations over the small startups, because small startups cannot develop large patent portfolios.

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