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america invents act, IP, Patent

Famous Last Words: US Patent Reform (Far From) A Reality

Call it the blogger’s jinx. Like clockwork, Joff Wild at IAM writes: US patent reform may finally be about to become reality, suddenly, the entire bill starts to unravel.

First, the US Supreme Court gives ammunition to reform opponents by repeatedly reiterating the primacy of the inventor. While the USBIC’s statement was harshly criticized by some supporters, IP Biz correctly pointed out that “the rather fundamental approach taken by the Supreme Court in Stanford might be a problem for first to file and prior user rights.” This position also has the support of noted legal scholars, including patent law historian Adam Mossoff.

Then, Congressman Hal Rogers criticized portions of the bill that would allow the PTO discretion to collect and distribute fees as it sees fit, fulfilling a prediction I made a few months ago. This position was not warmly received by patent reform supporters, like admittedly conservative blogger Gene Quinn who promptly called out fellow conservatives like Rogers, and Paul Ryan for suggesting that congress provide “substantive oversight” of the patent off budget.

To perform substantive oversight? What a novel idea! Too bad that Congressman Ryan, Congressman Rogers and all of their colleagues on both sides of the aisle abdicated that oversight responsibility for so many years.

Read: House Republicans Oppose Adequately Funded Patent Office

Finally, earlier this morning I saw an article from the Heritage Foundation referring to the funding provisions as a “serious flaw.” According to the think tank’s position, our elected representatives, rather than unelected bureaucrats, should decide how the money is spent.

Our elected Senators and Representatives in Congress should not abdicate their responsibility to control USPTO funding. They should not turn over to the Director of the USPTO the autonomous power both to raise and spend money, without any further legislation from Congress.[11] As James Madison said, “[t]his power of the purse may, in fact, be regarded as the most complete and effectual weapon with which any constitution can arm the immediate representatives of the people, for obtaining a redress of every grievance, and for carrying into effect every just and salutary measure.”[12] Congress should not give up the most effective means it has to influence the activities of a government agency—a requirement for annual appropriations—to the USPTO, an organization of more than 9,000 employees that collects in fees from the American people about $2 billion a year.[13]

See Patent Reformers: Don’t Give Away Appropriations Power of Congress

The status quo that Heritage is asking to maintain has resulted in a net gain of nearly $1 Billion over the past 10 years to the treasury. Is it so shocking that members of Congress would fight to keep from giving that up?

Without the funding provision, there’s really nothing to gained by passing the bill, but plenty to lose.

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Discussion

2 thoughts on “Famous Last Words: US Patent Reform (Far From) A Reality

  1. Congress is in the position of a trustee with respect to patent office funds. They can demand they be spent wisely, but they cannot spend them on other programs – that is fraud or theft – PERIOD

    Posted by dbhalling | June 9, 2011, 10:01 am
  2. Until reading this week’s articles on the topic, I thought that ending fee diversion was pretty much universally accepted as being the only sensible option in preventing the USPTO (an important driver of the economy) from imploding. After having read this article, I still can’t see how anyone in his or her right mind would oppose the anti-fee-diversion provisions in the pending patent reform act.

    Posted by patent litigation | June 13, 2011, 6:20 pm

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