Congressman Darrel Issa was the guest at a town hall meeting held at AMN Healthcare in San Diego when he first began pitching the America Invents Act (AIA). I was in the audience. Of those attending, less than a handful were actual inventors. Many were attorneys, but most were socialites following the man who donated $2 million in 2003 to recall Governor Gray Davis in an attempt to replace him. (Arnold Schwarzenegger was elected instead). Few in the crowd had any understanding of the damaging consequences of the America Invents Act.
I am professionally a new product developer and the named inventor on 14 issued patents. I have spent decades inventing and helping hundreds of inventors and startups. All that was needed to protect IP at the earliest stages was to keep an accurate notebook documenting, illustrating, signing and witnessing the process of developing an idea into an invention. This 200 plus year old method was tried and true. I was taught this method when I was an engineer and taught it to engineers that I hired at my business. Their properly documented Laboratory Notebooks became valuable intangible assets. There was no need to change it!
Before the America Invents Act, an inventor’s idea was developed into a proof of concept and business models were vetted for the probability of commercial success at a minimal cost. To refine an idea into a commercially viable invention, inventors must disclose an invention to neighbors, relatives, friends and other early stage investors as well as multiple vendors, prototypers, suppliers, and others. The inventor was free to do this prior to the AIA because there was a 12 month grace period to file for a patent.
This grace period saved thousands of dollars of upfront costs because a patent did not need to be filed until after the idea was fully refined and determined to be commercially viable. After all, if the idea can’t be produced at a profit or if buyers will never buy it, why patent it? No small inventor can justify spending thousands of dollars on an idea with no way to know if it will ever bring a profit.
But that is what the America Invent Act has forced inventors to do.
Congressman Issa began his campaign for the America Invents Act heralding the “benefits” of changing our patent system from a “First to Invent” system, which had been a core tenet of our system for hundreds of years, to a “First to File” system used in many third world countries. When Issa said in that town hall meeting that “First to File” was needed to “harmonize” our patent laws with other countries, I immediately stood and expressed my dislike of “dummying down” our system. A spattering of laughter diluted my point allowing Issa to rebuff me with a short retort about international cooperation and then move onto the next question.
In fact, no inventor testimony was taken into consideration by Issa or Congress during the debate and passage of the America Invents Act. This was frustrating because the patent system is intended to encourage inventors to promote the progress. But we were shut out of the debate.
If inventors had been heard, Congress would have understood the damage they were bringing on America’s job creation engine. The fear that unscrupulous people can take advantage of the new laws and become first to file is very real to inventors. So now the path, the beauty and the fun of inventing and creating by collaborating with friends and associates, colleagues and mentors, engineers, makers and designers is lost to the fear of having to file for a patent before confiding in anyone.
I meet weekly with inventors asking for help to profit from the labors of their minds. Most have never heard of the America Invents Act until I explain it. I make it a major topic at every San Diego Inventors Forum meeting. We also discuss it at the local Maker Faire and recently won an award for raising awareness.
Inventors come with an idea they believe can be commercialized. They want to create jobs. They optimistically count the dollars of profit! Most have naively talked about their idea to anyone and everyone they could before getting coached. The news is unfathomable that our own government changed the law to require them to pay huge patent filing expenses upfront to protect their yet unvetted ideas before even beginning to develop the invention. Most consider it a betrayal because they don’t have thousands of dollars to put at risk while it is still unknown if the invention is commercially viable.
But, First to File was just the beginning of the damage caused by the America Invents Act. When the concept of the Patent Trial and Appeal Board (PTAB) is fully understood even more quit. Their American Dream goes up in smoke because bad legislation tilted the patent system in favor of large multinational corporations.
The AIA was wrong from the start. Forcing creators to file for patent protection first is economically and emotionally thwarting innovation, creating an air of distrust and ultimately disincentivizing inventors. The proof is when I see an inventor excited to begin an entrepreneurial venture realize they cannot afford to take the first step and end their efforts in disappointment.
Inventors are the architects of our future. Our country was built with the belief and right that we can profit from the labor of our minds. The AIA has created a toxic swamp of quicksand laws for inventors and startups that is crippling the economy by stifling innovation for generations to come.
The AIA must be repealed lest we lose our job creation engine forever.