Fix the Backlog, Don’t Revamp Entire System
The American patent system has been instrumental in the success of our country. It has resulted in technology that expanded production, created wealth and thus elevated the standard of living of our people. Yet there are powerful forces that would dramatically change the basic patent system that has served us so well for more than 200 years.
In 1997 we barely turned back a legislative attack that would have obliterated the rights of small inventors, rights guaranteed to them in our Constitution and first delineated in the Patent Act of 1790, one of the first pieces of legislation passed into law by the new country’s first Congress. The proposed reworking of our patent system was justified by the supposed necessity of harmonizing our laws with those in Europe and Japan, where individual inventors are vulnerable and routinely smashed into submission by corporate elites. Our American system, in contrast, was designed to protect and nurture the inventor.
In 1999 we passed a compromise bill that maintained America’s traditional protection for the little guy while making some meaningful and necessary reforms.
Unfortunately, this year those same corporate scavengers who came close to destroying the system in 1997 have reneged on the compromises of 1999 and are again maneuvering to fundamentally change the nature of America’s patent system.
What are the issues? First, obviously, the patent system needs to operate more efficiently and do a better job at meeting its responsibilities. Currently, the Patent Office has a backlog of 800,000 applications. It is estimated that it takes 31 months for patents to be considered. Fundamentally altering our patent system, however, has nothing to do with this. We should look for ways to decrease this backlog and ensure that inventors have a speedy review of their applications. We need to train examiners, pay them more and increase their number. We need to have greater protection against the foreign theft of our intellectual property. The legislation being foisted upon us has nothing to do with fixing the system. It has everything to do with weakening the rights of the small inventor, using problems at the Patent Office as a screen to mask this power grab.
The United States has operated for 200 years under what is called a “first-to-invent” principle. That is, the person who is the first to invent something is the rightful owner. The rest of the world operates under a “first-to-file” system, by which the fastest to file paperwork is considered the owner regardless of whether he or she was the first to actually invent the product. Changing our patent laws to “first to file” will result in a mad dash to the Patent Office, with inventors filing their applications prematurely out of fear that someone else would beat them to the door. The quality of filings will go down as the volume goes up. Little guys, without the resources for multiple filings, will be left out.
The current legislation requires that all patent applications be published on the Internet for anyone to view 18 months after they are filed, regardless of whether the patent has been issued. Every thief in the world will have all of the details outlined in patent applications long before our inventors have any legal standing, long before we can produce or commercialize the innovation. If the corporate elite get their way, they and America’s economic adversaries overseas will have a field day.
Furthermore, this legislation facilitates new avenues of attack against inventors both before and after a patent is issued. It will enable anyone to challenge the validity of a patent for any reason, 12 months after the patent is issued. It should be noted that Japan dropped this program in 2004 because of increased litigation logjams. The Senate version of the bill even creates a new review process, available for the life of the patent that allows someone to challenge the patent if a patent causes them significant economic harm. The leverage these changes will give to large companies with an array of lawyers is evident. Small inventors will be harassed and bogged down until they eventually surrender to deep-pocketed opponents. They call this reform. More accurately it is the plan for a mugging of American inventors by powerful corporate and foreign interests. In fact, every one of the so-called reforms are aimed at weakening the inventors and strengthening the infringers.
Why is this happening?
The electronics industry does not want to pay royalties. That’s really the bottom line. We’ve seen this from the time RCA’s David Sarnoff did his best to rip off Philo Farnsworth, a little guy from Utah. That fight, over the patent rights to the television picture tube, went all the way to the Supreme Court. In a tribute to American justice, Farnsworth, the personification of the little guy, the small inventor, the individual with creative genius, won over a corporate Goliath headed by a bully.
This Congress will determine what the patent law of the United States will be for this generation and future generations of Americans. Trashing the traditional ownership rights of the little guy is not going to make a better America. Congress seems to be siding with foreign and home-grown Goliaths just waiting to steal the American people’s golden eggs. If we let them, they surely will kill the goose in the process. Instead, let’s hope the Senate kills this rotten legislation.
Rep. Dana Rohrabacher (R-Calif.) is a member of the Science and Technology Committee.