Stop the Obamacare Approach to Patent Reform

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Congress is scheduled to consider H.R. 1249, the so-called “America Invents Act” as early as this Wednesday. This is an unconstitutional bill that will kill jobs and innovation and poses a threat to American security.

This is the first time since the new, largely conservative Congress was sworn in, that Members of Congress have expressed concerns about the Constitutionality of a proposed piece of legislation.  More than 50 Members of Congress sent this letter to the House Rules Committee asking for a hearing on the bill’s Constitutionality.

This bill is not getting much attention, because certain Congressmen want to reward big corporate interests in their districts by slipping the bill through quickly before other Representatives and the American people have a chance to discover how bad it is. Just like ObamaCare was, this bill is being fast-tracked, pieced together through back room deals and compromises behind closed doors.

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

Section 18 of H.R. 1249 contains a provision that subjects an existing patent for electronic check processing to retroactive attack in order to allow big banks to 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 your Congressman today and tomorrow to tell them this is a shameful bill that is unworthy of a Congress that pledged transparency, fidelity to the Constitution and an end to favoring special interests. 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 Members and tell them!

Capital Switchboard 202-224-3121


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Used with Permission of Eagle Forum.

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