That’s because a Patent Reform bill approved by the Senate and by the House Judiciary Committee could be scheduled for a vote this week. The legislation will transform 200 years of patent law’s “first to invent” standard and replace it with Europe’s “first to file” standard. It is all part of an effort to “harmonize” America’ patent system with Europe’s.
The only people who can stop this attack on the American system are Speaker John Boehner and House Majority Leader Eric Cantor. Newspapers suggest that Cantor may be on the wrong side and word on Capitol Hill is that the Leadership has green lighted the effort to move the bill next week.
The Patent Acts of 1790 and 1793 legislated that the patent must be awarded to “the first and true inventor.” The Patent Act of 1836 used the language “original and true inventor” and “original and first inventor.” In Evans v. Jordan (1813), Chief Justice John Marshall wrote that the Constitution guarantees the “exclusive” right “to the inventor from the moment of invention.” In Shaw v. Cooper (1833), the Supreme Court upheld the law that vested “the exclusive right in the inventor only.”
This American tradition was affirmed earlier this month when Chief Justice John Roberts, writing for the Supreme Court in Stanford v. Roche, that “[s]ince 1790, the patent law has operated on the premise that rights in an invention belong to the inventor.” The “first-to-file” provision of H.R. 1249, which would allow Congress to award patents to non-inventors, is inconsistent with 200 years of American patent law and constitutional precedent.
The Tea Party has asked members of Congress to support and defend the Constitution. It’s clear that H.R. 1249 is patently unconstitutional.
But as they say on TV, “But wait there’s more.”
The bill is fiscally irresponsible. Budget Hawk Rep. Paul Ryan (R-WI), the Chairman of the House Judiciary Committee said the provision “[P]utting PTO funding on auto-pilot is a move in exactly the wrong direction, given the new Republican majority’s commitment to restrained spending, improving accountability and transparency, and reducing the nation’s unparalleled deficits and debt.”
Lobbyists for big banks and Wall Street are lining up to push Section 18 of the bill, a giveaway available only to TARP recipients allowing these entities to seek bureaucratic repeal of patents already issued and tried in court. It’s another giveaway to big banks.
The American standard will end up on the dustbin of history unless the Republican leadership is willing to stand up to big business and big banks that are pushing for fast enactment of the legislation.