Item No. 2: The Act would make it mandatory for the U.S. Patent Office to publish (i.e., post on the Internet) all inventions 18 months after date of application, thereby repealing the option now used by 37 percent of American inventors to prevent publication by agreeing not to file in foreign countries. The big winner of this nasty provision would be the Asian pirates who sit at their computers and steal American inventions between publication at 18 months and 32 months, which is the average time it takes for a patent to be granted.
Item No. 3: The act would create post-grant review, a process that would enable patent infringers to challenge the validity of a patent after it is issued without going to court, thereby making the inventor's ownership vulnerable and reducing his ability to attract venture capital to produce it. The big winners would be the multinationals with lots of lawyers.
Item No. 4: The act would reduce the damages that a judge and jury can award to an inventor after proof that his invention has been stolen or infringed. Again, the winners would be the multinationals with big legal departments and deep pockets.
Item No. 5: The act would weaken protections under U.S. trade laws that prevent foreign pirates from exporting their products made with stolen intellectual property into the United States. The result would be a perverse incentive to export our technology and jobs to foreign countries.
The advocates of the Patent Act say that it is needed to reduce patent litigation. Au contraire: The bill is more likely to increase, not reduce litigation, and the percentage of lawsuits has remained constant for the last 15 years at about only 1.5 percent of all patents granted.
In 2007, the Supreme Court and the Federal Circuit (which hears patent appeals) handed down several precedent-changing decisions about patents that appear to shift the balance of power away from independent inventors and small businesses. The Patent "Reform" Act was written before any of these important decisions, and we should wait and see their effect before rushing in with new legislation.
There are a couple of problems with our current patent process that need fixing, but the Patent "Reform" Act doesn't address those. Congress should restore to the U.S. Patent Office the revenue from the fees paid by inventors with their applications, which Congress took away in 1999 in order to divert the money to federal spending projects.
With more revenue, the Patent Office could hire and train more qualified examiners so that patent applications could be processed within 18 months. Americans cannot afford to get it wrong about protecting our patent system. It is crucial to maintaining our world leadership in technology and innovation.
Phyllis Schlafly is a national leader of the pro-family movement, a nationally syndicated columnist and author of Feminist Fantasies.
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