Patent Reform News Briefs

By Donald Zuhn --

House Issues Report on America Invents Act

On June 1, the House Committee on the Judiciary issued its report on H.R. 1249, the America Invents Act.  The 165-page report indicates that following consideration of the bill, the Committee now "reports favorably thereon with an amendment and recommends that the bill as amended do pass."  The report is divided into sixteen sections, including discussions of the amendment to the bill, the bill's purpose and summary, background and need for the legislation, agency views, dissenting views, and additional views.  Patent Docs intends to provide a more comprehensive analysis of the report in future posts.

Rep. Manzullo Urges House Leaders to Shelve "Patent Reform" Bill

On Monday, Rep. Don Manzullo (R-IL) (at left) issued a press release calling on House leadership to "shelve" H.R. 1249, the "controversial 'patent reform' bill" that could make it to the floor for a vote as early as next week.  The impetus for Rep. Manzullo's request was the Supreme Court's decision in Board of Trustees of the Leland Stanford Junior University v. Roche Molecular Systems, Inc., which he says "upends the basic premise of the bill."  In particular, Rep. Manzullo points to the opinion's opening statement that "[s]ince 1790, the patent law has operated on the premise that rights in an invention belong to the inventor."  He also points to a subsequent statement by Chief Justice Roberts, the author of the opinion, that "[a]lthough much in intellectual property 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."  Noting that the "main premise" of H.R. 1249 "is to switch America's patent system from a 'first to invent' system to a 'first to file' system," Rep. Manzullo contends that the "ruling by the Supreme Court affirms 'first to invent' and indicates HR 1249 would not pass constitutional muster."

52 Representatives Seek Debate on Constitutionality of H.R. 1249

In a letter to Rep. David Dreier (R-CA), the Chairman of the House Committee on Rules, and Rep. Louise Slaughter (D-NY), the Ranking Member of the House Committee on Rules, 52 members of the House have requested that "any resolution reported by the Committee on Rules . . . to provide for consideration of H.R. 1249 include provision for a separate period of at least 20 minutes for debate on constitutionality of H.R. 1249 under clause 8 of Section 8 of Article I."  As most patent practitioners are aware, the clause of the Constitution cited in the legislators' letter confers upon Congress the power "To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries."

In addition to Rep. Manzullo (R-IL), the other signatories to the letter include:  Representatives Michele Bachmann (R-MN), Tammy Baldwin (D-WI), Lou Barletta (R-PA), Roscoe Bartlett (R-MD), Dan Benishek (R-MI), Paul Broun (R-GA), Corinne Brown (D-FL), Mike Coffman (R-CO), Tom Cole (R-OK), John Conyers, Jr. (D-MI), Chip Cravaack (R-MN), Danny Davis (D-IL), Lloyd Doggett (D-TX), John Duncan, Jr. (R-TN), Donna Edwards (D-MD), Keith Ellison (D-MN), Marcia Fudge (D-OH), Charles Gonzales (D-TX), Walter Jones (R-NC), Marcy Kaptur (O-OH), Mike Kelly (R-PA), Steve King (R-IA), Dennis Kucinich (D-OH), John Lewis (O-GA), Daniel Lipinski (D-IL), Frank Lucas (R-OK), Jim McDermott (D-WA), Gregory Meeks (D-NY), Richard Neal (D-MA), Ed Pastor (D-AZ), Ron Paul (R-TX), Collin Peterson (D-MN), Thomas Petri (R-WI), Chellie Pingree (D-ME), Bill Posey (R-FL), Nick Rahall II (D-WV), Dana Rohrabacher (R-CA), Mike Ross (D-AR), Lucille Roybal-Allard (D-CA), Jon Runyan (R-NJ), Bobby Rush (D-IL), Robert Schilling (R-IL), Aaron Schock (R-IL), James F. Sensenbrenner, Jr. (R-WI), Brad Sherman (D-CA), Christopher Smith (R-NJ), Bennie Thompson (D-MS), Edolphus Towns (D-NY), Tim Walberg (R-MI), Allen West (R-FL), and Don Young (R-AK).  The letter was a bipartisan effort, with 26 Republicans and 26 Democrats requesting the period of debate.  Interestingly, two of the letter's signatories, Rep. Conyers and Rep. Sensenbrenner, Jr., are members of the House Judiciary Committee.

House Appropriations and Budget Chairs Seek Changes to USPTO Funding Provision

While some House members have begun to question the constitutionality of H.R. 1249 -- or at least have expressed a desire to debate the issue -- Rep. Harold Rogers (R-KY) (at right), the Chairman of the House Committee on Appropriations, and Rep. Paul Ryan (R-WI) (below), the Chairman of the House Committee on the Budget, have now raised concerns regarding the USPTO funding provision of the legislation.  In a letter sent on Monday to Rep. Lamar Smith (R-TX), the Chairman of the House Committee on the Judiciary, the two House Republicans state that H.R. 1249, which "is likely to be considered on the House floor in the upcoming weeks," would "permit the PTO to collect and spend authorized fees -- all without requiring action or approval from Congress."

Rep. Rogers and Ryan noted that they "strongly oppose this proposed shift of billions in discretionary funding and fee collections to mandatory spending," stating that "[p]utting PTO funding on auto-pilot is a move in exactly the wrong direction, given the new Republican majority's commitment to restraining spending, improving accountability and transparency, and reducing the nation's unparalleled deficits and debt."  The House Republicans add that "H.R. 1249 would also hand the Congressional 'power of the purse' -- bestowed in the Constitution -- to the Obama White House, and essentially eliminate the ability of Congress to perform substantive oversight of the PTO."  Asserting that "[o]versight of the PTO belongs with the Congress," the two legislators argue that "[i]t would be both irresponsible and unwise to allow the PTO to operate solely under the authority of bureaucrats and White House political appointees -- without being held accountable to the American public through their elected Representatives in Congress."  The letter concludes by requesting that section 22 of H.R. 1249, which would create the U.S. Patent and Trademark Office Public Enterprise Fund to cover all USPTO administrative and operating expenses, be deleted or modified prior to floor consideration of the bill.

Patent Reform Is Part of House Republican Jobs Plan

Last week, House Majority Leader Eric Cantor (R-VA) (at right) announced the House Republican plan for job creation and economic growth.  A one-page summary of the plan indicated that entrepreneurship and growth would be encouraged by "[m]oderniz[ing] our patent system to protect our nation's innovators, discourage frivolous lawsuits, and expedite patent reviews."  The full jobs plan provided a bit more detail regarding this goal, characterizing the patent-related problem and the House Republicans' solution to that problem as follows:

PROBLEM: PATENT BACKLOGS

Our patent system protects American ideas and products.  It has historically been the envy of the world, but today it is failing to meet the challenges of the 21st Century.  Under our current patent system there is a backlog of 700,000 patent applications.  The current system of filing, challenging, and litigating patents can also lead to costly and unnecessary delays.

REPUBLICAN SOLUTION

We will modernize and improve the patent system to discourage frivolous lawsuits, expedite reviews, and provide better protection for job creating entrepreneurs.  Streamlining the system will make it easier for existing businesses to grow and allow more start-up companies to flourish.  The House Judiciary Committee voted to approve a bipartisan patent reform bill to address these challenges.

Comments

[staff]

"not pass constitutional muster"

Manzullo and Roberts are right. But there are many other problems with the bill -so many that it should be scrapped completely and permanently.

Just because they call it “reform” doesn’t mean it is. Patent reform is a fraud on America. This bill will not do what they claim it will. What it will do is help large multinational corporations maintain their monopolies by robbing and killing their small entity and startup competitors (so it will do exactly what the large multinationals paid for) and with them the jobs they would have created. According to recent studies by the Kauffman Foundation and economists at the U.S. Census Bureau, “startups aren’t everything when it comes to job growth. They’re the only thing.” This bill is a wholesale slaughter of US jobs. Those wishing to help in the fight to defeat this bill should contact us as below.

Small entities and inventors have been given far too little voice on this bill when one considers that they rely far more heavily on the patent system than do large firms who can control their markets by their size alone. The smaller the firm, the more they rely on patents -especially startups and individual inventors. Yet small entities create the lion's share of new jobs.

Please see http://truereform.piausa.org/ for a different/opposing view on patent reform.
http://docs.piausa.org/

[EG]

Kevin

Once more, Congress reneges on its promise not to divert user fees from the USPTO. Addington from the Heritage Foundation made a particularly misleading statement about Rogers and Ryan's proposal which confuses "appropriation" (which spending of user fees is not) with "authorization" (which is what would happen in allowing the USPTO to spend all user fees it has earned). I am a Republican but I'm dismayed (and angered) by what Rogers and Ryan (who is pretty savvy and should know better the difference between "appropriation" and "authorization") propose. The diverted fees are a drop in the bucket for getting us out of our huge national debt, but are large enough to impact significantly the USPTO's operation. My view on H.R. 1249/S. 23 remains unchanged: this so-called "patent law reform" is a sham and calling this legislation the America Invents Act is oxymoronic.