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america invents act, IP, Patent

America Invents Act: Un-American Patent Reform

The current patent reform bills (S.23 and H.R. 1249) are proposed to promote “global harmonization.”  In other words, the changes they suggest would make our patent system look and act more like systems in effect in other countries.  This has led critics to sharply oppose this effort, and laid the groundwork for a partisan split over the bill that previously had broad, bi-partisan support.  Much of this criticism focused on the fact that harmonization is apparently being valued above our own constitutional framework and the best interests of American inventors and businesses.

Unfortunately, this criticism is viewed abroad as “beating up on foreigners,” which is unfortunate since the American conception of patent law is simply morally and economically superior to other patent regimes in the world.  Prior to the adoption of the US Constitution, obtaining a patent held entirely different significance than  it does today.  The history underlying adoption of patents in the United States begins with Queen Elizabeth who, in the fourteenth century, issued patents to achieve government policy objectives.  Leading patent law historical scholar Adam Mossoff explains:

When the crown thus wished to buttress the realm’s lagging industrial development at the end of the Middle Ages, the issuance of letters patent was central to enticing tradesmen and industrialists to come to England. This policy is the progenitor of the doctrine of patents for inventions.

See Rethinking the Development of Patents: An Intellectual History, 1550-1800

In the constitution, however, patents were specifically promised to be secured to “inventors” for their “discoveries,” which (by its omission) curtails the type of privilege bestowed upon the aristocracy under the 14th and 15th century patent systems.  The constitutional language is also brought into context by James Madison’s comments in Federalist no. 43:

The copyright of authors has been solemnly adjudged in Great Britain to be a right of common law. The right to useful inventions seems with equal reason to belong to the inventors. The public good fully coincides in both cases with the claims of individuals.

For more background, see Mossoff’s paper Who Cares What Thomas Jefferson Thought About Patents? Reevaluating the Patent ‘Privilege’ in Historical Context

It should be no surprise, then, that patents are granted, in America, to the first to invent, rather than the first to complete a bureaucratic process.  It should also be no surprise that those who recognize the primacy of the inventor would vehemently oppose any attempt to circumvent it for the benefit of the aristocracy.

Economic superiority can be a matter of opinion, but as evidence Mossoff points to the industrial revolution.  In a lecture at the Ayn Rand Institute, (summarized here by author Dale Halling) Mossoff explained that, while the revolution began in England (with the invention of the steam engine), the United States quickly surpassed the empire thanks to the patent system.  By giving every individual an equal opportunity to seek exclusive rights, a level playing field is created that allows the best inventions to succeed, not simply the inventor’s with the most funding.

I truly believe the US patent system has long been the envy of inventors around the world, and the US still ranks first in patent filings.  However, patent filings in China are growing at an alarming rate.  The country now tops heavily industrialized countries like South Korea, Britain and France. Which way do you think the America Invents Act is likely to push the meter?



8 thoughts on “America Invents Act: Un-American Patent Reform

  1. “The American conception of patent law is simply morally and economically superior to other patent regimes in the world.” – Or at least it was until the US instituted publication and put the joker, Jon Dudas, in charge.

    “Which way do you think the America Invents Act is likely to push the meter?” – I think we the US will have the worst of the US system with the worst of the European system

    Posted by dbhalling | May 30, 2011, 4:51 pm
    • Dale,

      Thanks for the comment. I originally wrote “the American patent system is simply morally and economically superior.” For the reasons you suggest, I changed it to what you quoted above. The goal of the American patent system is admirable. The execution has obviously left much to be desired.

      Posted by Patrick | May 31, 2011, 8:48 am
  2. Hi Pat – just to clarify my remarks. I don’t have any problem with a debate in the US which focuses on the superiority or otherwise of the current US patent system; or on Americans claiming they have the best patent system in the world. Furthermore, it’s really none of anyone’s business outside the US whether reforms are compatible with the US constitution or are in the best interests of American inventors. All of that is an internal matter and is up to Americans to decide.
    My problem is much more about the tone of the debate and about the language that some people use. To my eyes, and the eyes of many other non-Americans, this seems to paint Asians, Europeans etc as some kind of “enemy” determined to bring down the US and deprive the country of jobs, wealth and economic dynamism. That strikes me as unfortunate to say the least. Not everyone is using that kind of language; in fact most aren’t – but some people are and it jars. For those of us who have always admired the US, have many American friends and see the country as a powerful force for good in the world it’s unfortunate, to say the least, to see ourselves being viewed in such a negative light.

    Posted by Joff Wild | May 31, 2011, 12:53 am
    • Joff —

      Thanks for that clarification. I suspected that’s what you meant. I fear that my impressions of the patent debate will likely be used as fuel by the xenophobes, which is an unfortunate side effect. I prefer to avoid political discussions for reasons such as this, but when the patent system is involved, I am unable to ignore the debate.

      Posted by Patrick | May 31, 2011, 8:56 am
  3. I’m all for increased efficiency and cross-border collaboration and cooperation. One difficulty, however, is that some of the attempts at harmonization in the U.S. create provisions that potentially conflict with long-standing US law and/or tradition. The House version of the current patent reform bill presents just one example of this. Appropriate heed to national sovereignty is a big issue in harmonization, and it still hasn’t been adequately addressed, in my opinion.

    Posted by patent litigation | June 6, 2011, 5:23 pm


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