Did Congressional Debate Over Patent Reform Bill Open Up A Backdoor For An Independent Inventor Defense?
from the follow-me dept
I have to admit that I had almost entirely checked out on the House debate this week on patent reform. I’ve been writing about Congressional attempts at patent reform for nearly a decade now and, from the very first attempt onward, the proposals had serious problems — and each year the bill would get more and more watered down, removing what few good pieces were in there, until we got the bill this year, which had little of substance. As we noted when the Senate approved it, the bill was pretty useless in that it didn’t address any of the actual problems with the patent system. There was a flurry of activity this week as various Reps sought to make changes to the bill (and I’ve never been contacted by so many press reps or Congressional staffers wishing to get publicity for their boss’s amendment than this week), but nearly all of those proposals failed.
The House has now approved its version of the bill and I can only imagine that it will be signed into law pretty quickly — leading to all sorts of talk about how this is the first “overhaul” to patent law in almost sixty years, and blah blah blah. The truth is that there’s very little in this bill that does much of anything. The people complaining about how it will destroy small businesses are being hyperbolic. The most controversial bit of the bill was the debate over switching from a “first to invent” system, as we have now, to a “first to file” system — which most of the rest of the world has. I explained my opposition to this switch more than seven years ago, and my reasoning still stands: a first to file system encourages filing more patents faster with less effort to make sure the patents are good and accurate, which isn’t good for an already overwhelmed patent system. That said, the actual impact of the change might not really be that big, as so many firms already file pretty quickly and given how rare it has been to have someone challenge a patent by claiming they had invented it first and deserved the patent. There are much bigger problems with the patent system (and this bill addresses pretty much none of them).
That said, there was one element of the Congressional debate on this clause that caught my eye. In order to avoid angry ranting about a “first to file” system, supporters of the bill conveniently changed the language to make it a “first inventor to file,” rather than strictly a “first to file.” They claimed that this helps avoid the “Constitutional” question. You see, supporters of keeping the system as “first to invent” have claimed that a “first to file” system is unconstitutional, because the Constitution’s clause that allows a patent system to exist, famously reads:
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
Those who are claiming “first to file” is unconstitutional point out that the clause specifically says that you can only secure such rights to inventors, so if a non-inventor files first, then that violates this part of the constitution. Frankly, that seems like a stretch (and if taken literally, might call into question whether anyone but authors and inventors could hold copyrights or patents. That said, those in support of the “first inventor to file” setup made some interesting statements:
Rep. Jerrold Nadler (D-NY) said the bill still requires patent seekers to be inventors, and argued that the Constitution is not explicit on how Congress must ensure patent rights. Rep. Bob Goodlatte (R-Va.) agreed.
“This is first inventor to file,” Goodlatte said. “You must be a bona fide inventor to qualify for this.” Both Nadler and Goodlatte are on the Judiciary Committee.
Now that gets pretty interesting. Because, in the past, we’ve suggested that what the patent system really needs is an independent invention defense — such that those who come up with things entirely independently of the patent in question are not guilty of infringement. One of the main arguments against that idea, when we’ve brought it up, is that there’s “no such thing” as an independent invention, since once something’s invented, anyone else coming up with the same thing is no longer the inventor. That is, they were defining inventor by being only the very first person to come up with it.
Now, I don’t believe this is true. I think many people can invent the same things entirely independently, and history seems to support that conjecture. One of my major problems with the patent system is that, despite the claim that it’s supposed to help inventors, it actually harms every single other inventor, except the one who gets the patent. That seems incredibly anti-inventor to me. If, as is common, you have a bunch of different folks working on a particular innovation, and all of them come up with more or less the same solution, why should only one get the monopoly? That directly harms everyone else by taking away their right to use their own invention!
So, now, however, we have Congress pretty clearly stating that multiple people can invent the same thing entirely independently. While not in the law, it is in the Congressional record. If we then look at the plain text of the Constitution, it makes me wonder if someone could craft a legal argument that the patent system, as is, now violates the rights of those independent inventors by excluding them from the right to make use of their own discoveries…