While there are many problems with the U.S. health care system, it’s undeniable that our country leads the world in producing the most advanced medical techniques, drugs and lifesaving technology.
Today, our leadership in this field is being threatened - not just by taxes, regulations or the new health care reform law - but also by a patent system that is increasingly ill-equipped to do its job of rewarding inventors and innovation.
Now that we are tantalizingly close to reforms that will modernize and strengthen the U.S. patent system, a small group of misguided ideologues is threatening to derail the effort.
There’s no question that innovation is the lifeblood of our economy and strong patents are innovation’s backbone. But over the years, the U.S. patent system has failed to keep pace with changes in the economy that demand stronger patents, faster approvals and patents that are recognized by our key trading partners.
There are numerous problems. For starters, the Patent and Trademark Office (PTO) faces an astonishingly large backlog of 700,000 patent applications, and inventors typically wait three years before getting a patent. Inventors then face the prospect of lawsuits challenging their patents, which cost an average $400,000 to defend.
Because the U.S. patent system is different from those of most other industrialized countries, inventors can find themselves with patent rights in the United States, but not abroad, cutting the value of their patents.
As Rep. Lamar Smith, Texas Republican, put it: “The current patent system is outdated and bogged down by frivolous lawsuits and uncertainty regarding patent ownership.”
Legislation pending in the House would go far to fix these problems. It would, for example, let the PTO set its own fees so it has the funds needed to do its job, ending congressional raids on the PTO’s budget while protecting small, independent inventors with heavily discounted fees.
It would more effectively weed out wrongful patents and settle disputes through a vastly improved “supplemental examination” process.
But most important, the legislation would shift the United States from a “first-to-invent” system to a “first-to-file” system.
As things stand, if an inventor is the first to file a patent, he still can be challenged by someone who claims to have invented the same thing earlier but failed to file it with the PTO. That results in too much uncertainty and far too much litigation over patent rights, which is why so many other countries moved to a first-to-file system. Under that system, the first to file with the Patent Office is the rightful patent holder, making patents easier and less costly to defend.
Most lawmakers in the United States realize the need to make these changes, and earlier this year, the Senate voted 95-5 to pass the America Invents Act. A similar bill passed the House Judiciary Committee by an equally strong 32-3 vote.
But with the finish line in sight, a small group of conservative lawmakers want to derail the bill, claiming it is an unconstitutional attempt to subvert our patent system in deference to European and Asian governments. Phyllis Schlafly has called it an “un-American” effort by liberals to “put us on the road to a borderless patent system.” Those arguments are misguided at best.
First, the fact that the reforms so far have received overwhelming support from GOP lawmakers shows that it’s not some liberal conspiracy. The House bill’s sponsor, Texas’ Mr. Smith, has a lifetime American Conservative Union rating of 92 out of 100.
Second, the measure is clearly constitutional. In fact, Michael Mukasey, who was President George W. Bush’s attorney general from 2007 to 2009, reviewed the bill and concluded that it was “both constitutional and wise.”
Third, the change from first-to-invent to first-to-file isn’t as revolutionary as critics make it seem. PTO Director David Kappos notes that of the 3 million patents filed in the past seven years, just 25 were granted to inventors who weren’t the first to invent, with just one granted to an independent inventor.
“In the last seven years,” he told a congressional panel in March, “only one independent inventor’s filing would have received a different outcome under the first-inventor-to-file system. That’s one in 3 million.”
What these reforms would do is make the patent system stronger, more transparent, fairer, faster, less costly and more in line with our major trading partners. Does that seem un-American?
In the past, our patent system served our inventors and our country as well. Now we have the opportunity to renew our patent system so it can effectively encourage, protect and reward inventors and keep the United States on the cutting edge of health care well into the next century.
Let’s not blow it.
Peter J. Pitts is president of the Center for Medicine in the Public Interest and a former Food and Drug Administration associate commissioner.