August 18, 2011
While your Senators are home for the August recess, we need you to contact them at their district offices, and tell them to vote NO on Cloture for H.R. 1249, the jobs-killing, special interest patent bill.
When the Senate returns to Washington, they are scheduled to immediately consider H.R. 1249, the “Smith-Leahy Patent Reform Act of 2011,” which the House of Representatives shamefully passed earlier this year. Because the House has already passed this bill, we need your Senators to vote NO on Cloture. Otherwise this bill will speed through final passage and go straight to President Obama, who is eager to sign it.
The bill has gotten little attention in the midst of the contentious fights over Continuing Resolutions and the debt ceiling increase. Harry Reid is pushing this bill to make his “do nothing” Senate appear productive, but the truth is that this is a terrible bill that will kill jobs and cripple our already overburdened patent system.
Large corporations are lobbying hard to get Senators to ignore the Constitution and change our currently strong patent system to a system that favors large corporations over small inventors, making it easier for foreigners to infringe patents, easier to subject patent rights to legal challenges, and more expensive for inventors to defend their patents.
All this is being done in an effort to “harmonize” with the rest of the world. Why on earth would we want to harmonize with Asian and European countries that don’t protect intellectual property rights? Other countries should be harmonizing with us to improve their systems!
Some of our most serious concerns about H.R. 1249 include:
Moving from first-to-invent to first-to-file
H.R. 1249 changes 220 years of patent law from a system of recognizing the first person to invent something to the first to file paperwork on an invention.
First-to-file is unconstitutional
According to seven scholarly law review articles, this is flat-out unconstitutional. Article I, Section 8, Clause 8 of the Constitution requires Congress to protect “inventors,” not someone handing a piece of paper to a government bureaucrat. The Founding Fathers understood the importance of protecting inventions, so they included protection for inventors in the Constitution even before rights to free speech and freedom of religion!
This move stacks the deck overwhelmingly in favor of large corporations who are better staffed and funded to file applications. Supreme Court Justice John Roberts issued an opinion last Monday confirming the constitutional requirement of recognizing the first to invent when he declared: “Since 1790, the patent law has operated on the premise that rights in an invention belong to the inventor. . . . Although much in intellectual property law has changed in the 220 years since the first Patent Act, the basic idea that inventors have the right to patent their inventions has not."
Limiting the grace period inventors currently enjoy
H.R. 1249 also harms individual inventors and startup companies by limiting the grace period inventors currently enjoy. Under the current system, inventors have a one-year grace period to seek investors to take their inventions to market. H.R. 1249 limits the grace period and redefines it in a way that is hostile to small inventors.
Extending post grant review
This allows patent infringers more time to keep inventors tied up in expensive legal battles to defend their inventions. Not only does this bankrupt inventors, it makes it more difficult for inventors to find investors when the patent is open to unlimited legal challenges.
Threatening National Security
A letter from the Inventors Network of the Capitol Area indicates that H.R. 1249 endangers U.S. security. The letter explains that we have serious problems with Chinese hackers stealing U.S. security related innovation secrets while they are under development. H.R. 1249 will legitimize this theft by enabling hackers to then file applications with the U.S. Patent and Trademark Office, where under a first-to-file system, they will become the rightful owner of that technology.
Yet Another Bailout for Big Banks
New York Senator Chuck Schumer secured a bailout for big banks through a provision that allows corporations to attack existing patents that have already been challenged and held valid. Banks want to use this provision to invalidate a patent for electronic check processing so that they can use the technology without paying for it. If this provision is found to be a “taking,” as Professor Richard Epstein, the nation’s foremost authority on property rights wrote in a 15-page letter says it is, we, the taxpayers, will have to pay for a patent on technology that only big banks use.
We need you to call or visit your Senators at their district offices to tell them we need to protect innovation, not just corporations and litigation. Urge him or her to vote NO on H.R. 1249.
Note: This issue does not break down along typical liberal/conservative lines, so do not be discouraged from calling if your Congressman does not generally agree with Eagle Forum’s perspective. Also, some very strong conservatives do not yet understand how badly this bill will impact small inventors and small business, so we need everyone to call your Senators and tell them!
Click here to find your Senators’ District Offices