|
|
|
The so-called Patent Reform Act, now under consideration by the U.S. Senate, is fundamentally flawed and objectionable for many reasons. This bill would "dumb down" the American patent system and squander one of our constitutional inheritances. The U.S. patent system has stimulated a level of innovation and creativity that is the envy of the world. There is no valid reason to scrap the features of our patent system that give inventors the incentive to risk their time and talents in exchange for the reward of strong intellectual property rights. Why should America adopt the inferior standards of our competitors in the rest of the world – places that undervalue property rights of every sort? Mandatory Publication: Forcing publication of pending applications 18 months after filing exposes them to piracy during many months of pendency before a patent is granted. That robs inventors of the exclusive right to their creation which the Constitution guarantees. The 1999 law at least provided inventors an exception from forced publication if they did not intend to seek a patent in a foreign country, but S. 1145 would take away even that small protection for small inventors. First-to-File: This would clearly advantage large companies with big staffs to rush an application to the Patent Office. It would disadvantage small, independent inventors who do not have the deep resources of big companies. Post-Grant Review: This would enable patent infringers cheaply to challenge the validity of a patent after it has been issued, without having to go to court. Big corporations with vast resources (many having foreign operations) could whipsaw small inventors and smaller domestic firms throughout the life of the patent. This would further diminish the value of the patent and introduce undue uncertainty into the process by which innovators take their inventions to market, attract investment, and create American jobs. Apportionment of Damages: This provision would render it impossible for innovators who are the victims of patent infringement to recoup the value of their inventions. Infringers would gain the ability to infringe at will, because even if they lose in court, they would only pay a minuscule, "proportional" share of damages. This provision harms small inventors trying to defend their property rights and advantages deep-pocket firms that can "lawyer" the little guy to poverty. It is bad enough that this patent bill would seriously hurt individual inventors and small businesses. But gutting our first-class patent system would inflict terrible harm on the American economy. We are constantly reminded that we must compete with countries that have lower production and manufacturing costs. It makes no sense to give away our innovation advantage. At a time when Congress should be shoring up American industry, innovation, and invention, the Patent Reform Act goes exactly in the wrong direction. We need to discourage (not encourage) foreign patent pirates and big multinationals from robbing the intellectual property of American inventors, small companies, and domestic manufacturers. |
