USPTO SealThe United States’ patent system is broken.  It should be fixed.  Doing so will improve America’s competitive position in the world.  Bad patents should not be granted.  Patents should be examined more quickly.  Inventors should be encouraged to invent new technologies and get them to market.

It would be difficult to find anyone to disagree with these sentiments.  And yet, the pending “reform” legislation now before the United States Senate does little, if anything to address the defects in the patent system, and instead introduces new laws that in many respects, are a patchwork of give-aways to large donors and foreign corporations at the expense of small inventors and university-based researchers.  In short, it is Patent Reform that is, itself, broken.

During the Constitutional Convention in 1787, the delegates witnessed a demonstration of a new steamboat on the Delaware River, and realized that promoting technical progress would propel the future of the United States.  They added the Patents and Copyrights Clause to the draft of the Constitution days later, and it was Thomas Jefferson who issued the first patent.  At the time, few nations had any legal protections for inventors.  Today, over 7 million US patents later, a large percentage of new patent applications come from foreign inventors, and Congress has been convinced that patents should be awarded, not to the first to invent, but to the first to run into the Patent Office – the standard used by most of the other countries, but never before by the US.  The only benefit of such a change is the goal of “harmonization” of patent laws – in other words, it’s the “Eat at Joe’s” standard (if 20 million roaches eat there, it must be good!)

The pending legislation is rife with land-grabs, give-aways, and theft of the fees paid by inventors to have their applications examined, and will do little to either decrease the time it takes to get a patent, or increase the quality of patents.  It will, however, make it prohibitively expensive for individual inventors, small businesses, and universities to protect their inventions, or to profit from them – and this will be a boon to large US and multinational corporations, which have long-believed that it is a nuisance for them to have to deal with inventors and researchers, or to pay royalties for using their inventions.

Those involved with the patent bill point out that it has been a long time in the making – legislation was first introduced nearly six years ago, and it is time that it passed.  This argument amounts to urging us to eat a meal that is tainted, simply because the cook has worked so very hard on its preparation.  It is no argument at all.  If it comes to his desk, the President should see the bill for what it is – fatally flawed, and a catastrophic departure from over 200 years of American success in innovation – and he should veto it.  Truly repairing our patent system is a job that requires not only fixing the bureaucracy of the Patent Office, but fixing the way that patents are litigated to provide prompt and efficient justice – both for inventors and those who wish to build on earlier inventions.  It appears that as in so many other areas, this Congress is just not up to the challenge.

— Lawrence A. Husick, Esq.