Eagle Forum has been following the developments regarding the Patent Reform Act (S. 1145), sponsored by Sen. Patrick Leahy (D-VT). This dangerous legislation could come up in the Senate for a vote. The House version (H.R. 1908) already passed by a vote of 220-175 (Roll Call 863) on September 7, 2007. Despite recent changes made to the bill, it is a terrible cheat on small inventors, and also would be a gigantic giveaway of American technology, which is the key to our standard of living. First, this Patent Act would make it cheaper for infringers to steal patented inventions by limiting damages to the patent's "specific contribution over the prior art" — an unworkable test that would result in artificially low damages awards and increased litigation costs. Because damages are often the only remedy available to a small inventor, this ill-advised provision will decrease the value of patent property rights and undermine the ability of small firms to fend off large infringers.
Second, this Patent Act would make it mandatory for the U.S. patent office to post on the internet the details of all inventions only 18 months after date of application. The big winner of this nasty provision would be Asian pirates who sit at their computers and steal American inventions in the time period between posting on the internet at 18 months and 32 months, which is how long it takes for a patent to be granted.
Third, this Patent Act would abandon the American system of granting a patent to the first person to invent something new, and instead adopt the foreign system of granting a patent to the first person to file an application. There is no good reason to prefer any foreign procedure over the successful American system. And there is a mighty good reason not to: first-to-file would bring an avalanche of applications ground out by the large staffs of multinationals, leaving the small inventors buried in paper. It would also diminish patent quality by encouraging large companies to race to the patent office with poorly drafted applications.
Fourth, the Patent Act would create something called post-grant review, a process that would make it far easier for patent infringers to invalidate a patent anytime after it is issued, thereby making the inventor's property rights vulnerable and reducing his ability to attract venture capital. The big winners again would be the multinationals with lots of lawyers.
Add it all up, and it is clear that the new Patent "Reform" bill is a big attack on the constitutional property rights of individual inventors and small enterprises. About a third of all U.S.-origin patent applications are filed by individual inventors, small companies, universities, and non-profit groups. If Congress wants to do something constructive for our patent system, Congress should reinstate the rule that the Patent Office may not publish a patent application until a patent is granted, and if it is denied the application must be returned to the inventor, secrets intact. The Senate should vote NO on S. 1145, the Patent Reform bill. >Please Contact your senators! and urge them to vote NO!
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