In extraordinary coordination, the judiciary committees of both the U.S. Senate and House of Representatives in the same week approved a bill, which, if it becomes law, will spell the end of America's world leadership in innovation.
Called the Patent Reform Act, it is a direct attack on the unique and successful patent system created by the U.S. Constitution.
Before 1999, the U.S. Patent Office was required to keep secret the contents of a patent application until a patent was granted, and to return the application in secret to the inventor if a patent was denied. That protected the legal rights of the inventor, who could then go back to the drawing board to perfect his invention and try again.
A mischievous congressional "reform" in 1999 authorized the U.S. Patent Office to shift to the Japanese and European practice of publishing patent applications 18 months after filing whether or not a decision is yet made on granting a patent. Congress allowed a patent application, under certain conditions, to be exempt from the publication requirement, but the default procedure is to publish.
The 2007 Patent bill would delete this exemption and require publication of all patent applications 18 months after filing regardless of whether a decision has been made on granting a patent.
By 2006, the U.S. Patent Office had placed 1,271,000 patent applications on the Internet, giving access to anyone anywhere in the world. This foolish practice created a gold mine for China to steal U.S. innovations and get to market quickly.
Chinese pirates don't roam the high seas looking for booty but sit at their computers, roam the Internet, and steal the details of U.S. inventions that the U.S. Patent Office loads online. This practice became China's research and development program, and it is even more efficient than China's network of industrial and military spies.
U.S. policy has always been to grant a patent to the first one who actually invents something. But the new patent bill would change to the foreign system, which grants patents to the first one to file papers.
First-to-file would be a windfall to megacorporations and a big disadvantage to the small-entity inventor. First-to-file would invite an avalanche of applications from the big companies that have the resources to grind out multiple filings, and the small inventor would be lost in the shuffle. The new patent bill offers yet another way for patent pirates to steal U.S. technology. It's called post-grant review: a plan to make it easier to challenge patents during the entire life of the patent.
Phyllis Schlafly is a national leader of the pro-family movement, a nationally syndicated columnist and author of Feminist Fantasies.
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