It has now been several weeks since the U.S. House of Representatives passed H.R. 1249, dubbed the America Invents Act, which is commonly referred to as patent reform. In February 2011, the U.S. Senate passed S. 23, their version of patent reform. In their infinite wisdom, or lack thereof depending upon your perspective, the House did not pass a bill that was identical to S. 23, which means that before patent reform will become a reality it needs to once again be taken up by the Senate. But what are the odds of that happening any time soon?
Even the most casual observer likely knows that the United States is in the middle of a debt crisis. According to Treasury Secretary Timothy Geithner we have until August 2, 2011, within which to raise the debt limit and allow for more borrowing. Apparently the failure to raise the debt ceiling will trigger calamitous events that will cascade into an economic catastrophe. Yes, pretty big stuff seems to be at issue over the debt limit, which is consuming all of the oxygen in the room.
The vast number of America’s companies that need patents to prosper and grow should fear the post-grant provisions for challenging patents in H.R. 1249, the patent reform bill passed last month by the House of Representatives. In a system already plagued by delays in granting patents, they threaten to delay courts from enforcing patents once finally granted. This threat has received little attention, perhaps because advocates of the bill promise promptness that they cannot deliver.
Advocates’ promise of completion in one year rings hollow for several reasons. First, the one-year deadline does not count the year, on average, that the inevitable appeal will take. Second, the deadline is extendable to 18 months and, in any event, not enforceable. Third, the one year does not count the petition stage before the proceeding begins. That adds at least another 5 months—two months for the patent owner’s response plus three months, again unenforceable, for the patent office to decide whether the challenger’s petition warrants initiating such a proceeding. So, total elapsed time usually will be not one, but almost three years.
In a rather stunning development, key Republican leaders in the House of Representatives are opposing an adequately funded Patent Office. Indeed, the opposition to appropriate funding for the United States Patent and Trademark Office is becoming a political matter, and the language used to describe the issues suggests that Republicans seem to believe they can score points against the Obama Administration by opposing USPTO funding.
In a letter sent to Congressman Lamar Smith (R-TX), two key Republican Chairmen are opposing the USPTO funding mechanisms currently in place in H.R. 1249, which mirror those passed by the Senate earlier this year. Congressman Paul Ryan (R-WI), who is Chair of the House Committee on the Judiciary, was joined by Congressman Harold Rogers (R-KY), who is Chair of the House Committee on Appropriations, opposing provisions that would allow the Patent and Trademark Office to keep the user fees it collects, which are payment for services to be rendered.
The “America Invents Act,” H.R. 1249, contains several provisions that raise substantial questions of constitutionality. Discussed in this article is an important aspect of the “first-inventor-to-file” provision that received no prior public attention because its drafters have concealed its meaning ever since its introduction in previous sessions of Congress. A day after the Senate voted to pass the bill (S. 23), a “clarification” for this poorly drafted section was entered into the Congressional Record as a fabricated “colloquy” that never actually took place on the Senate floor. The colloquy substantially changes the ordinary meaning of the bill to a meaning that had never been discussed publically – Senators had no opportunity to either learn of the “intended” construction or to debate it. While it is uncertain whether the courts would actually interpret the new statute as the colloquy intends, this paper analyzes H.R. 1249 under a construction which the bill’s drafters and the colloquy purport to achieve.
Counterfeiting and the theft of intellectual property rights is not just a matter for companies. Such theft, or piracy as it is frequently referred to, is a major issue for the United States government. Over the years the piracy problem has continued to grow in importance in both trade relations and in the war against organized crime and terrorists. The United States needs to do what it can to prevent intellectual property theft because of the negative impact it has on job creation and our economy. It is also imperative to shut off the flow of easy money to criminal enterprises. Without money they become starved for resources, a big strategy in the fight against global terror.
On May 5, 2011, in prepared remarks in a speech to commemorate World Intellectual Property Day, U.S. Commerce Secretary Gary Locke acknowledged that much still needs to be done regarding theft of intellectual property around the globe. Secretary Locke said: “[W]hen over 80 percent of all software installed on computers in China is counterfeit and when first-run movies continue to appear on rogue web sites as soon as they show up in the theaters – then we know the problem is still grave.”
Sometimes the problems facing our nation truly are difficult to solve. Reducing the country’s out-of-control budget deficit and fixing our broken public schools systems, for example, each took decades to grow into serious threats to America’s future. And each requires more political vision and national unity to resolve than seem to exist right now.
But other problems are not that difficult to solve, if only our leaders would choose to use some common sense. Take job creation, which is supposed to be the Number 1 policy objective in America right now. The mechanics of job creation are hardly a mystery, after all. We know, for example, that all net new job growth in America comes from startup businesses, not Big Business (see research by the Census Bureau and the Kauffman Foundation). And we also know that the vast majority of these startups need patents to get the funding from investors they need to start hiring people so they can develop their innovative new products and medical treatments for the public (see the Berkeley Patent Survey of Entrepreneurs).
‘Membah that scene in “The Time Machine” when George tries to read about the Eloi only to discover that the books have all turned to dust? That would be bad, at least according to Google, so in the interest of über profits -ahem- literary preservation, it is endeavoring to create the world’s first digital library. Thanks, Google! As it turns out, there are some pesky copyright issues they probably should have sorted out first. Among them is what to do with an orphan work. In copyright law, the concept of orphan works is kind of obscure and doesn’t come up a lot, but I have a feeling it will be a bit more prevalent as we shift from print to digital media. Long story short, an orphan work is a work that still has copyright protection, but for whatever reason, the owner can’t or won’t be found. Congress had the opportunity to address this situation back in 2008, but they didn’t. So now we have a bit of a pickle.
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