Phyllis Schlafly

That's not a problem with first-to-invent, however. Last year, there were only 47 challenges out of 500,000 first-to-invent patent applications.

The core principle of our system is awarding the patent to the true inventor. It's wrong, and probably unconstitutional, to take that away for presumed administrative ease.

The Senate bill would also institute a European-style post-grant challenge process to invalidate the patent. In Europe, competitors use this process to tie up the patent in expensive administrative legal proceedings, which independent inventors and small businesses can't afford.

Canada recently shifted to a first-to-file system and found that it imposed a special hardship on independent inventors, startups and small businesses that don't have in-house lawyers or resources to hire expensive outside counsel.

The Leahy bill eliminates the grace period from offering an invention for sale or making public use of it, leaving only a grace period from "disclosure" of the invention. The bill does not define disclosure, so bring on the lawyers to litigate its meaning.

The value of first-to-invent over first-to-file was explained by inventor Steve Perlman, CEO of Reardon, OnLive and MOVA. He experimented with 100 inventions over five years of development, but only six were actually used and filed for patents.

He explained that a large part of invention is trying out a vast number of ideas, such as Thomas Edison with thousands of light bulb filaments and the Wright Brothers with many wing shapes. First-to-file means flooding the Patent Office with dead-end applications.

Another unfair and biased aspect of the Leahy bill is that not a single practicing inventor or representative of small business was called to testify during five years of Senate hearings on patents.

The first-to-invent system has served us well. If it ain't broke, don't fix it.

Phyllis Schlafly

Phyllis Schlafly is a national leader of the pro-family movement, a nationally syndicated columnist and author of Feminist Fantasies.
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