Political Maneuvering & Patent Reform

Next week the House is expected to begin floor debate on the America Invents Act…maybe. Further amendments are expected to be offered prior to the floor debate, however, two recent sticking points have emerged that may stall recent progress.

The first, although not new, appears to have gathered some steam lately, namely, the debate over the proposed “first inventor to file” provision. Having been unsuccessful in defeating this provision previously, opponents now insist that the U.S. Constitution requires that the “first true inventor” be protected. The reasoning goes that the language “first and true inventor” appeared in the Patent Acts of the late 1700s (which were written by the some of the same guys) so the Constitution must be interpreted similarly. The IEEE has gone as far as to suggest that the recent Supreme Court decision in Stanford v. Roche somehow impacts Patent Reform…it doesn’t.  Yet, desperate times call for desperate measures.

The second sticking point has emerged in the last few days and has the greatest potential to derail efforts until after the July 4th break, that is, renewed efforts to continue fee diversion from the USPTO. Appropriations Committee Chairman Hal Rogers (R-Ky.) and Budget Committee Chairman Paul Ryan (R-Wis.) expressed their concern over the current bill provision enabling the USPTO to keep fees to fund and update the U.S patent system. The Congressmen explained:

We strongly oppose this proposed shift of billions in discretionary funding and fee collections to mandatory spending. . . .Putting 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.

The fact that the USPTO is a self funded organization that has been cash starved to the point of near collapse was not mentioned.

The growing Republican faction opposing a fully funded USPTO has now enlisted an economist who describes the problem as a matter of “democracy and liberty.” 

Our elected Senators and Representatives in Congress should not abdicate their responsibility to control USPTO funding. They should not turn over to the Director of the USPTO the autonomous power both to raise and spend money, without any further legislation from Congress. As James Madison said, “[t]his power of the purse may, in fact, be regarded as the most complete and effectual weapon with which any constitution can arm the immediate representatives of the people, for obtaining a redress of every grievance, and for carrying into effect every just and salutary measure.”

Evidently, a fully funded USPTO is a danger to democracy. 

Unfortunately, due to the growing opposition to the fee diversion provision, and the potential parliamentary complications, it is almost certain that this provision will be either stricken altogether or modified to the point of insignificance. 

Earlier in the week, Senate Majority Leader Harry Reid (D-Nev.) criticized the House’s inaction on several bills, including patent reform calling the House a “big dark hole” where job-creating legislation created in the Senate goes to die. He stated that “[o]ne of the most important things we can do is protect our patent system and make it better than it is. . . We did that here. We passed it here, sent it to the House. Nothing has happened on that. They haven’t voted on it.”