Patent law and Constitutional Limits

By Tom Rhodes, 4/26/2011

To bad none of the GOP or newly elected TEA Party legislators actually cares about the constitution. The Senate has passed a bill (S.23) to take away the property rights of American inventors. They held a quick poorly publicized hearing that did not include a single inventor, a small-business person, a venture capital person or a constitutional authority. It’s sister bill in the house is now being pushed without any publicity, H.R. 1249.

This bill is clearly unconstitutional, as rather than acknowledge one of the most valuable individual rights guaranteed in the U.S. Constitution is the right of "inventors" to own "the exclusive right" to their "discoveries" for "limited times” (see Article I, Section 8 of the US constitution), these bills give the right to an invention to the person who first files. Get that, if a company files the paperwork, they have the right to an invention, not the actual inventor.

The right to one’s own invention has been recognized and reinforced by our system of granting patents to inventors, U.S. patents are awarded to the "first-to-invent" a new and useful product. The U.S. patent system was unique when the Constitution was written and is still unique in the world today. It protects individual property rights, not government filing rights. This is one of, if not the primary, reason why the United States has produced most of the world's great inventions and dominates the world in innovation.

Every other country in the world award patents under a system called "first-to-file," i.e., the first person to file a paper with a government office. The rest of the world would prefer that we changed our system from first-to-invent to first-to-file. Harmonizing as it’s called, would take the system that has produced more innovation than any other and proven successful for centuries, and make it match the proven inferior system the rest of the world uses.

Even if harmonizing were a reasonable idea (it’s not) the bigger problem is that it is clearly unconstitutional. The Constitution, Federalist Papers, and centuries of court cases are very clear, and plainly state that the property right belongs to "inventors," not to someone handing a piece of paper to a government bureaucrat. Not a single scholarly law review article proves or claims otherwise, while many which have examined the issue have concluded that the “first-to-file” concept is unconstitutional.

Where are the TEA Party, and other so-called constitutional defenders on this issue? (I hear crickets chirping over the silence). An “inventor” through all of US history, and the writings of our forefathers has always meant the first-to-invent something, not the first to do paperwork. If you look at the “Patent Acts,” laws created in 1790, 1793, and 1836, you will see that historically we have always considered a patent to go to the first “original and true inventor.” First-to-invent, not first-to-file conforms with our tradition and history and over 200 years of court proceedings. First-to-invent is the standard we have used, and the standard that has proven to best protect innovation, and provide a foundation that has resulted in more innovation than the rest of the world combined. We have over 200 years of settled and successful law. Why are our leaders even considering the un-American notion that we should utilize treaties and foreign laws to reinterpret our Constitution and statutes concerning patent law?

Who benefits from first-to-file? This concept elevates paperwork over true inventions. First-to-file favors foreign inventors and big corporations that have the lawyers and resources to file quickly and redundantly, while taking rights away from independent inventors and small businesses.

First-to-file may make patents more efficient, and international agreements easier, but it destroys individual rights in favor of big business, and violates our Constitution. This is a truly perverse constitutional issue that YOU should be outraged over. Get out of your internet browser, fire up your word processing software (if you’re using word note that MS lost a patent case and is now at the US Supreme court trying to defend its theft of another’s invention) , and type out a letter, and sign it by hand and mail it to your US Representative, and urge him to vote against “harmonizing” US Patent Law.