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.
Happy World Intellectual Property Day! What, you didn’t buy a card or make dinner reservations? Did World Intellectual Property Day sneak up on you again this year? How could you let that happen? At a time when the United States Congress seems hell bent on destroying the patent system by inadequately funding the United States Patent and Trademark Office we really should celebrate something that seems to be functioning, so why not celebrate the World Intellectual Property Organization (WIPO) and the innovation policies of nations who are stealing research and development away from the United States? What a tragedy that the World has better innovation policies than the United States.
ARLINGTON, VA — In April 12, 2011 letters to House and Senate leaders, the American Intellectual Property Law Association (AIPLA) expressed deep concern about the serious shortfall in the current legislation to fund the U.S. Patent and Trademark Office.
H.R. 1473, the Full-Year Continuing Appropriations Act, 2011, is the legislation reflecting the compromise on the Continuing Resolution to fund the government for fiscal 2011. The letters point out that the provisions of the bill related to the USPTO appropriate $100 million less than the projected user fee revenues to be collected, essentially diverting that money to other government programs. In addition, the bill lacks the appropriations “buffer” language included in previous bills to ensure that the Office may utilize the fee revenue that exceeds the original projected collections for the fiscal year.
Earlier this week the United States Supreme Court granted the petition for a writ of certiorarifiled by lawyers from Stanford Law School’s Fair Use Project (FUP) and Wheeler Trigg O’Donnell LLP and will review the constitutionality of a federal statute that removed thousands of foreign works from the Public Domain and placed them under copyright protection. The case presents a two-pronged constitutional challenge to the 1994 law passed by Congress, which amended the Copyright Act. The case will test whether Congress has the authority to remove works from the Public Domain under the “Intellectual Property Clause” of the United States Constitution and whether the 1994 law violates the First Amendment rights of those who performed, adapted, restored and distributed works which had previously been in the Public Domain.
The Fair Use Project filed the petition in October, 2010 on behalf of orchestra conductors, educators, performers, film archivists and motion picture distributors who relied for years on the free availability of works in the Public Domain, which they performed, adapted, restored and distributed. The 1994 amendment to the Copyright Act, the Uruguay Round Agreements Act (URAA) (see copyright highlights of URAA), removed these works and many others from the Public Domain and placed them under copyright protection in conjunction with the implementation of international intellectual property treaties. That amendment affected the copyright status of thousands of works by foreign authors that had previously fallen into the Public Domain in the United States.
Yesterday from the floor of the Senate, while debating whether the Senate should pass patent reform bill S. 23, Senator Amy Klobuchar (D-MN) cited a letter from Louis Foreman in support of patent reform, which was entered into the record without objection. The name Louis Foreman is well known to those in the inventor community. Foreman is the publisher of Inventors Digest, the Executive Producer of Everyday Edisons, an inventor himself and a serial entrepreneur.
Foreman, who supports patent reform efforts generally and S. 23 specifically, started his first business as a sophomore in college twenty years ago. He has successfully started 8 business in that twenty year period and has been an integral part of twenty additional ventures. Foreman has ten U.S. patents and his firm, enventys, has helped develop and file for another 400 patents. This experience easily has shown Foreman, in his own words, that “the USPTO is hampered by a system that is in dire need of reform.”