America is the envy of the world when it comes to innovation. The early American inventors — Samuel Morse, Thomas Edison, Alexander Graham Bell and the Wright brothers — changed the course of history with their ingenuity and entrepreneurship and motivated succeeding generations to think big and pursue the American dream.
Our success as innovators can be attributed partially to our strong patent system, which has protected American ideas and inventions the last 220 years.
Despite our impressive track record, some in Congress want to weaken our patent system that has guided these American innovations for generations.
Legislation has again been introduced in Congress this year to dramatically alter our patent system and harmonize it with those in Asia and Europe, regions that do not produce anywhere near the scope of innovation in America.
I am deeply concerned that the America Invents Act (HR 1249) will stall American innovation and send more of our jobs overseas.
The fatal problem is that the bill rejects the main premise that has guided American patent law for more than two centuries — that the first person to conceive of an invention is granted a patent.
Instead, HR 1249 would switch America’s patent system from “first to invent” to “first to file” that would turn our system into a race to the Patent and Trademark Office.
This change would put America’s small inventors at a huge disadvantage against their larger, foreign competitors with resources to more quickly patent their products.
In fact, Chinese technology firms can’t wait for the bill to pass. When Congress was considering similar legislation in 2007, one of China’s leading Intellectual Property experts was baffled the United States would consider weakening its patent protections.
Yongshun Cheng, former senior judge and Deputy Director of the IP Division of the Beijing High People’s Court, noted the bill was “friendlier to the infringers than to the patentees in general as it will make the [U.S.] patent less reliable, easier to be challenged and cheaper to be infringed.”
The U.S. International Trade Commission issued a report last month concluding that American companies lost $48 billion in 2009 alone because of China’s IP infringement and requirement that Chinese companies must purchase IP products made by Chinese firms.
Also, the bill is blatantly unconstitutional. On June 6, the U.S. Supreme Court affirmed the rights of inventors to patent their inventions. Writing for the majority in a patent infringement case, Chief Justice John Roberts wrote:
“Since 1790, the patent law has operated on the premise that rights in an invention belong to the inventor.” Later in the opinion, Roberts added, “Although much in intellectual property has changed in the 220 years since the first Patent Act, the basic idea that inventors have the right to patent their inventions has not.”
Based on this clear Supreme Court opinion that upends the “first to file” premise of HR 1249, I asked House leaders to shelve the bill.
The bill would also devastate inventors by dramatically weakening the one-year grace period small American inventors use to develop their inventions, seek investors and raise funds to begin the expensive patent application process. It would also create an extra review process that will slow an already lengthy process.
The PTO has a backlog of 700,000 patent applications, and using additional resources to duplicate current processes makes no sense. It would also give unprecedented authority to the head of the PTO to increase patent fees without congressional approval.
Many of America’s inventors and innovators are alarmed over these proposed changes to our patent system. We should listen to stakeholders of all sizes and perspectives to find a consensus approach to modernizing our patent system.
I urge Congress to simply focus on hiring sufficient staff for the PTO and updating its IT infrastructure so we can reduce the backlog. I look forward to working with my colleagues to craft a solution that will support and encourage all of our innovators and keep jobs in America.
U.S. Rep. Don Manzullo is a 10-term Illinois Republican.