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MANZULLO: Patent reform proposals threaten American prosperity
Importing foreign patent law will undermine American inventors
Question of the Day
Our nation’s greatness can be tracked to our early days of innovation and entrepreneurship. The United States of America was the place where life-altering inventions were born and marketed to the masses to change the course of history. The great American inventors, including Samuel Morse, Thomas Edison, Alexander Graham Bell and the Wright brothers, set our nation on the path to prosperity.
Despite this impressive track record, which has been the envy of the world, some in Congress want to change our successful patent system, which has guided American innovation for generations. Legislation has been introduced again in Congress this year to dramatically alter our patent system and harmonize it with those in Asia and Europe, regions that do not produce anywhere near the scope of innovation as America. Could it be that our current patent system is better at protecting inventions?
I have had serious concerns with previous patent-reform efforts that have threatened the inventions of American entrepreneurs. I have successfully worked with the House Judiciary Committee to develop lower fees for small inventors and protect them from the premature release of their patents. Unfortunately, contentious issues in patent reform keep re-emerging.
I am deeply concerned that the America Invents Act (H.R. 1249), which was introduced earlier this year, will stall American innovation and send more of our jobs overseas. This legislation reflects an approach to patent reform that stalled previously, in 2007, in the face of massive opposition from American innovators.
Like its Senate counterpart (S. 23), the House bill includes an unfortunate provision that would shift America’s current patent system (in which the first person to conceive of an invention is granted a patent) to a “first to file” system that would turn our system into a foot race to the Patent and Trademark Office (PTO).
The U.S. has always awarded a patent to the first inventor to come up with an idea, even if somebody else beat him to the PTO. The Constitution, in fact, mandates that inventors have exclusive right to their discoveries. It’s one of the main tenets of our nation that have led our citizens to seek the American dream. Yet, some are insisting that we need to abandon our system, which has produced game-changing inventions, and harmonize with the rest of the world. With all due respect to our friends and allies abroad, I would not trade America’s record of innovation with that of any of those first-to-file countries.
The bill also would devastate inventors by expanding prior user rights and dramatically weakening the current one-year grace period for U.S. inventors. This grace period is critical to small inventors, who can use that year to develop their inventions, seek investors and raise funds to begin the expensive patent-application process.
The House bill, like its Senate counterpart, also would create a controversial new administrative post-grant review process. Current law already provides two separate administrative tracks to challenge a patent within the PTO, in addition to the opportunity to pursue action in court. This bill proposes to add a third post-grant review process despite two distinct downsides to creating a duplicative challenge process at the PTO.
First, it would waste resources. The PTO has a backlog of 700,000 patent applications waiting to be examined. That is where the PTO needs to focus its efforts, and using additional resources to duplicate current (and efficient) processes makes no sense. Second, it can be abused. Some companies already specialize in the use of patent re-examinations to tie up valid patents, not to remove invalid patents. We must avoid giving such firms another tool to abuse the patent system.
Many of America’s inventors and innovators are alarmed over these proposed changes to our patent system, and we must hear them out and address their concerns. We should listen to stakeholders of all sizes and perspectives to find a true consensus approach to modernizing our patent system. I urge Congress simply to halt fee diversion from the PTO, allowing the office to improve the patent-application process by hiring sufficient staff and updating its information-technology infrastructure. I look forward to working with my colleagues on and off the committee to craft a solution that will support and encourage all of our American innovators.
Rep. Donald A. Manzullo is a Republican from Illinois.
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By Andrew P. Napolitano
Fourth Amendment says Obama is not at liberty to collect metadata
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