Crushing America's Inventors; New Law Will Worsen Pilfering of Intellectual Property

Article excerpt


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. …