Shortly after 2pm Eastern Time the United States House of Representatives voted on the Managers Amendment to the America Invents Act, H.R. 1249. The Managers Amendment passed by a vote of 283 – 140. The House then proceeded to address several amendments to H.R. 1249. It seems that there will be a vote on H.R. 1249 later today, and the way the amendments are going it seems as if the House will pass patent reform.
The one thing in the Senate version of patent reform that everyone agreed on was the end to fee diversion. The House of Representatives, however, has decided that an end to fee diversion should not be included in patent reform, which is causing a great unease within the industry.
The Senate had struggled with patent reform for years, and in February 2011 they broke through with a carefully crafted balance. The Senate version of patent reform is light on “reform” in any real sense, except for one. The Senate voted to end the practice of diverting fees collected by the Patent and Trademark Office to other, completely unrelated purposes. The House of Representatives, lead by Congressman Hal Rogers (R-KY) who is Chair of the Appropriations Committee, demanded that the USPTO do with the amount of funds appropriators want to give the Office, not the amount of funds collected from users who pay for the Office. This is causing many industry groups to openly withdraw support and fight against patent reform; a remarkable turn of events.
Earlier this year we learned that General Electric (NYSE:GE) paid no taxes for 2010. See G.E.’s Strategies Let It Avoid Taxes Altogether. Yes, the largest corporation in the United States had a very good 2010. They booked over $14 billion in profits, with over $5 billion coming from U.S. operations, yet they paid not a dime in taxes to the Federal Government. To add insult to injury, General Electric was able to claim a tax benefit of $3.2 billion for 2010, making its effective tax rate for 2010 substantially negative.
But General Electric was not the only large U.S. corporation not to pay taxes. According to Citizens for Tax Justice, General Electric had some company. In fact, American Electric Power, Dupont, Verizon, Boeing, Wells Fargo, FedEx and Honeywell all had tax rates between -0.7 percent and -9.2 percent for the stretch between 2008 to 2010. See Study finds many corporations pay tax rate of effectively zero.
On the other hand, the United States Patent and Trademark Office continues to have user funds siphoned off, making the USPTO a much larger taxpayer than the largest U.S. corporations.
Thomas Jefferson, author of the Patent Act of 1793
The United States Constitution is a relatively short document, but one that has provided guiding principles for over 220 years. At a time when the nation was struggling to exist under the Articles of Confederation our Founding Fathers met in Philadelphia beginning on May 14, 1787. The outcome of this convention was the U.S. Constitution, which was signed by 38 of the 41 delegates present on September 17, 1787. New Hampshire was the ninth State to ratify the Constitution, and did so on June 21, 1788, causing the Constitution to become the supreme law of the land.
Article I, Section 8 of the U.S. Constitution granted Congress the power to grant patents and copyrights for limited times in order to promote the progress of science and the useful arts. As James Madison stated in Federalist Paper No. 43, the usefulness of the Congresses power to award both patents and copyrights “will scarcely be questioned.” Madison, Debates in the Federal Convention of 1787, at 512-13 (Hunt and Scott ed. 1920). Indeed, the new Congress wasted little time in exercising this power to promote the progress. Clearly demonstrating just how important the Founding Fathers perceived a patent system to be, the third Act of Congress was the Nation’s first Patent Act; the Patent Act of 1790.
As Patent Doc Kevin Noonan pointed out recently, what hasn’t been much discussed is the fact that prior user rights violate the intent of Article I, Section 8 of the U.S. Constitution. I have alluded to this in some articles, and have also alluded to the fact that first to file provisions are more in keeping with the purpose of the so-called Patent Clause to the U.S. Constitution. The very reason for granting Congress the power authorize the granting of patents is to promote the dissemination of information. That is how society benefits, and it is how progress is promoted. I will not go so far as to say that first to invent is unconstitutional, that would be nonsensical. Neither will I go so far as to say that prior user rights are unconstitutional. Nevertheless, what I will say is that first to invent and prior user rights embrace a philosophical choice that is antithetical to the very purpose of the Patent Clause.
I have been watching in utter amazement as individuals with a variety of experience in the patent field debate the constitutionality of the first to invent proposals. This started when those who will not allow truth and accuracy to deter from their arguments started saying that the Supreme Court ruled first to file unconstitutional in Stanford v. Roche. That argument was, and still remains, specious because Standord v. Roche had nothing to do with the issue, nowhere in the case did Chief Justice Roberts make such statement, hint that he was thinking such a thing, or say anything colorably related to such a conclusion. See Did the Supreme Court Rule First to File Unconstitutional?
Now the argument is morphing into a discussion of whether the word “inventor” must mean “first inventor.” This very question is being seriously raised in some academic circles, by some patent practitioners who ought to know better, and by those who simply want to kill patent reform at all costs even if they have to engage in gross misrepresentation in order to do so. Indeed, there are those ranging from neophyte to relatively experienced that are seeking to change history, ignore logic and refuse to acknowledge well established patent law precedent in order to twist the word “inventor” in the U.S. Constitution to mean “first inventor,” which would then call into question the constitutionality of the first to file provisions of patent reform now before the House of Representatives; H.R. 1249.
Earlier this week two key House Republican leaders, 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, wrote Congressman Lamar Smith (R-TX) explaining that they oppose provisions in House patent reform legislation H.R. 1249 that would allow the Patent and Trademark Office to keep and use the fees collected to run the agency. See House Republicans Oppose an Adequately Funded Patent Office. This is an extremely myopic and ill conceived notion. The Patent Office is unlike other government agencies in that it is completely funded by user fees, takes absolutely no taxpayer funds and provides a valuable service for a fee.
Given that House Republicans seem to fear an adequately funded Patent Office I got to thinking — What could they be afraid of? With that in mind, here are the top 10 things that House Republicans just might be afraid of as they seek to oppose an adequately funded Patent Office. Can you hear the black helicopter squad swirling overhead, conspiracy theories in hand?
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 ink is hardly dry on the Supreme Court decision in Stanford v. Roche and already those who oppose patent reform are concocting one of the most ridiculous arguments I have ever seen to oppose first to file provisions. There are some, including at least one Member of Congress, that have started saying that the Supreme Court’s decision in Stanford v. Roche makes it clear that the first to file provisions of patent reform are unconstitutional. Just sit right back and allow me to explain to you exactly why that is perhaps the most specious argument I have ever heard.
Let me begin with attempting to explain how presumably intelligent people erroneously conclude that the Supreme Court earlier today held first to file unconstitutional. The argument goes like this: Chief Justice Roberts wrote, “Since 1790, the patent law has operated on the premise that rights in an invention belong to the inventor.” This was repeated several times and in slightly different ways throughout the decision. So those misconstruing the case twist this beyond all reasonable logic to conclude: “patent rights have to belong to the inventor, so those who file first cannot receive the patent ahead of the person who invented first.” Oh my goodness! Is this the level of debate in Congress? No where in the decision is that said! It is no wonder our leaders have failed us so miserably.
President Obama announces of new Commerce Secretary. Secretary Gary Locke (left) and Secretary Designate John Bryson (right).
Earlier today President Obama announced the nomination of John Bryson as the next Secretary of Commerce. Bryson, the former CEO of Edison International and co-founder of the Natural Resources Defense Council, will replace current Secretary of Commerce Gary Locke who has been tapped as the next United States Ambassador to China. Meanwhile, earlier in the day Secretary Locke continued to work patent reform, sending letters to Congressman Lamar Smith (R-TX), who is Chair of the House Judiciary Committee, and to Congressman John Conyers (D-MI), Ranking Member of the House Judiciary Committee, which set forth the Administration’s position on patent reform.
Notably, but not surprisingly, Secretary Locke explained: “The Administration continues to strongly support the bipartisan efforts of Congress to enact patent reform legislation that will accelerate innovation, and create new jobs, new industries and new economic opportunities for Americans.” Secretary Locke went on to elaborate more specifically about some of the specific provisions of the America Invent’s Act, explaining the Obama Administration supports first to file provisions, supports giving the Patent and Trademark Office the ability to set fees and keep the fees collected to be used to run the agency, supports post grant review and supports allowing individuals to submit prior art references to patent examiners. Unfortunately, however, Secretary Locke explained that the Administration generally supports prior user rights given that it is, on balance, a good policy. I respectfully dissent!