Member Advocacy Spotlight: The State of Patent Reform

From time to time, we give focus to our CompTIA members’ activities or views in relation to specific policy matters. In May we shared with you developments surrounding patent reform legislation in the U.S. Congress. Below is an opinion piece by CompTIA Member Kevin McDonald of Alvaka.

I’ve noticed a lot of gratuitous talk by our legislators about being all for small business and protecting the individual. They bandy about rhetoric about the Constitution and consistently are finding rights that are not spelled out or even vaguely contained in its language. Then they blatantly violate a key provision that is in fact clearly spelled out. One of the most well-defined responsibilities of Congress is to, “promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.” Now, under what could arguably be one of the biggest precedent reversals in U.S. law, Congress has conspired with America’s mega corporations to change patent law to favor the largest corporations, invention houses and wealthiest individuals.

I say conspired because I am of the opinion that the Leahy-Smith America Invents Act, H.R. 1249’s change from first-to-invent to first-to-file, outright robs the individual and small company inventor of their rights to win a patent based on their simply being the first-to-invent as they are constitutionally entitled. The very definition of inventor is being the first to conceive of an innovation or improvement, not who has the staff, materials, time and labs to build mock-ups, the best lawyers and the most money to go through the process more quickly. The first-to-file provisions also will encourage filers to act more rashly and therefore file far lower quality patents in order to avoid a competitor beating them to market.

This action on the part of Congress is obviously to gain favor with those companies that can write them the biggest checks and apparently to align our laws more closely with Europe. The first-to-invent wins the patent and protection of Congress unlike Europe where the first-to-file wins. The patent law of the United States has served us well for more than 200 years with the last few modifications more than 60 years ago. Our system continues to allow us to compete internationally while protecting the rights of inventors from thieves. Given the right amount of funds, the USPTO would be better able to catch up. We do not need to disregard the Constitution and strip the little guy of his rights to provide the adequate funding needed to process the number of applications being submitted. Based on my experience, it is my guess that in the back-door deal making of “compromise”, this key provision was traded for other less relevant provisions to get the big companies’ support.

Honest observers will admit that the Leahy-Smith America Invents Act, H.R. 1249, is going to benefit those companies with the deepest pockets and dedicated patent filing infrastructure. It will undoubtedly result in far more patent ideas being stolen from those who must go it alone. It predictably will have a chilling impact by causing the pull back of those who cannot finance their own Intellectual Property (IP) advancement. There is an entire industry of incubators and mentoring groups that currently help dreamers to become viable businesses. They spend their time having ideas presented to them and deciding if they think the idea is worth their investment. Most often, those ideas are not yet protected by patent filings and the new system would create a huge risk and understandable paranoia. They will not be able to continue looking for outside help and investors without having the very real likelihood that their idea will be stolen. One would have to be totally naïve or a huge gambler to share any ideas with potential partners and investors before getting a patent filed.

Bottom line, the Constitution’s very existence is to protect the individual’s rights from the power of the masses or, in this case, big companies’ money and influence. This bill is yet another example of how the under-represented class in the United States is being sold out by those who are supposed to represent them equally. I am amazed that the Democrats, who claim to be for the little guy, are leading this and that the Tea Party would sit by as the others in Congress and big companies dilute or wipe out yet another Constitutional right. This bill should not become law, and I predict that even if it does, major portions of it will be found unconstitutional anyway. The big problem is, in the meantime, it will cause a slowdown in innovation, create havoc in the inventor community, damage many individuals and cost many millions for those caught up in its misguided changes.