New Patent Law Embraces First to File, un-American July 4th

[Note: On September 8th, 2011 the Senate passed  89-9 to approve the American Invents Act (H.R. 1249). On September 16th, 2011 President Obama signed it and the patent office immediately began to implement it.]

Today is the 4th of July when Americans celebrate so many wondrous things. One thing we won’t be celebrating is the new Patent Law that recently passed the House [and which is expected to pass in the Senate] and which changes a very key element of current patent law which granted a patent to the person who was “First to Invent” something in their garage to the person (read company) that was “First to File” the patent at the patent office. I’m hoping that the President won’t sign this into law. It’s an insult to all inventors, tinkerers and all that we hold dear – the lone person working in their garage to come up with something that can transform the world. Where was the Venture Capital industry on this one?

To add further insult to injury, this is coming on the heels of a whole lot of hooplah surrounding the launch of Change the Equation a major push to re-invigorate science education and innovation in America. Do you really think we’re that stupid? How long will it take some high school inventor to figure out that the game is stacked against them? And, this is supposed to provide our next generation with hope? You’ve got to be kidding!

Sure, I understand the argument that this will put our legal system in line with other countries like Canada and Europe. But, when did it become American to be in line with anybody?

Let’s just consider this from a common sense point of view (Thomas Paine where are you when we need you?). You’re in you’re favorite chair and you think why don’t I go to the garage and invent that new mouse trap. You think a moment and you say “ah, heck even if I invent it I don’t have the money to file a patent now, someone will just steal my idea and file the patent first and I’ll have nothing, so why don’t I just sit here in the my chair and do nothing”. A sad day in America indeed.

So, as they say in French detective novels “Chercher la femme” – “look for the woman” or the person most likely to benefit. Is that the lone inventor? No! It’s those that can afford to pay the patent filing fee. It’s the established companies that benefit. As the New York Times reported “The change in the application system was favored by the large technology and pharmaceutical companies.” There is no more underdog. Simply: the fireworks of innovation are over, dossed in a bucket of legal water and special interests.

There is one small hope though, and that is that some legal scholars think this might be unconstitutional (see here and here). I hope and pray that it is true ’cause that would greatly rekindle my faith in an America where one can invent in one’s garage and build a business from the ground up.

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