On Sept. 16, at a ceremony involving some fanfare, President Obama signed the ironically-styled America Invents Act into law. While posed as an effort to “modernize” U.S. patent law by “harmonizing it with the rest of the world,” the bill actually represents an effort by multinational and foreign corporations to crush America’s vital culture of independent inventors.
First, some background. Since the time of our founding, America has been by far the most inventive country in the world. While comprising only 4 percent of the human race, Americans produce the majority of its inventions. From the steamboat, telegraph, reaper, light bulb, recorded sound, motion pictures, airplanes, television through the computer age, America’s legions of inventors have enormously advanced our economy while revolutionizing human existence worldwide. A central reason for this has been our unique system of patent law, which up until now, has strongly protected the right of individual inventors to profit from their own creative labor.
America’s founders viewed the need to encourage and protect inventors as being of such paramount importance that they included provision for doing so in our most fundamental law. Thus in Article 1, Section 8 of the Constitution, defining the purposes of Congress, they gave it 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.” Following directly upon this in the patent acts of 1790 and 1793, they wrote that patents must be awarded to “the first and true inventor.” These laws were upheld by the Supreme Court in Evans v. Jordan (1813), with Chief Justice John Marshall writing that the Constitution guarantees the “exclusive” right “to the inventor from the moment of invention.”
Based upon this foundation, until Sept. 16, U.S. patent law awarded the rights to an invention to the first to invent. However, according to the new law, written under the guidance of such administration corporate cronies as former Commerce Secretary Gary Locke and his senior policy adviser Marc Berejka (both linked to Microsoft) and U.S. Patent Office director (and former IBM lobbyist) David Kappos, patents will now be issued, European-style, to the first to file. Because this change represents a direct violation of both the words and clear intent of the Constitution, a number of conservatives and many legal scholars have denounced the bill as unconstitutional, which it certainly is.
The issue however, is not just one of nostalgia for constitutional governance. As subtle as the distinction may seem, there is an enormous difference in outcome between the traditional American first to invent (FTI) and the foreign first to file (FTF) systems. Under FTI, the inventor has time to perfect his work sufficiently to attract financial backing before he needs to file for a patent. But under FTF, he must file his patent as quickly as possible, even through the invention may still be immature, and then he must keep rapidly filing multiple new patents with every improvement, despite having no financial support lest word leak out while he searches for investors. The net result is an enormous explosion of patent legal costs, severely prohibitive to the individual inventor but easily managed by large corporations with in-house intellectual property departments. In addition, by vastly increasing the number of filings, the FTF system will increase further the patent office’s already-too-great backlog, thereby delaying the issuance of patents and decreasing their value accordingly, since a patent’s term dates from its day of filing.
All this would be bad enough, but the America Invents Act goes much further in crushing the nation’s individual inventors on behalf of megacorporations. Its provisions also include a no-exceptions requirement that all pending patents be published 18 months after they are filed, while providing greatly enhanced powers for third parties to intervene in the patent office process, both before and even after a patent is granted. Thus, under the law, multinational or foreign corporations will be able to hire legal staffs to monitor the published pending patents, and then intervene with an endless serious of legal challenges that will delay patent allowance indefinitely while exhausting the financial resources of the inventor. Furthermore, the law’s provisions for allowing challenges to already-issued patents will subject inventors to legal extortion, as major corporations will be able to threaten to destroy their existing intellectual property if they refuse to give up their interests on the corporation’s terms.
To all this, the law also includes provisions that greatly weaken the ability of “non-practicing” (i.e. non-corporate) inventors to pursue action against infringers.
While a disaster for America’s inventors, the bill has been acclaimed by those wishing to raid their intellectual property. Thus commenting on an earlier version of the bill, Yongshun Cheng, former judge and deputy director of the intellectual property division of the Beijing People’s Court said, “This bill will give the companies from developing countries more freedom and flexibility to challenge the relative U.S. patent for doing business in the U.S. and make it less costly to infringe.”
In recent years, practically all the new jobs created in the United States have resulted from entrepreneurial start-ups based upon the work of individual or small-company inventors. At a time when the nation is crying out for new enterprises and more jobs, a bill to crush America’s culture of invention could not be more poorly conceived.
The America Invents Act is an attack on the American Constitution, American inventive tradition and the American economy. It needs to be repealed.
Robert Zubrin is the president of Pioneer Astronautics, an engineering research and development company.