Patent law is not something most Americans are passionate about or have ever contemplated — which is exactly why the Obama White House and Congress got away with making radical changes to our time-tested traditions of protecting the fruits of entrepreneurial inventors' labor.
It's yet another progressive horror story of abandoning what works in the name of what's politically trendy. For left-wing saboteurs and their Big Business GOP enablers, this means throwing our unique patent system and its constitutional underpinnings under an 18-wheeler. So-called "patent reform" proposals continue to plague Capitol Hill. But like health care "reform" and education "reform," these government cures are worse than any purported disease.
As part of his ongoing bid to "fundamentally transform" America, President Obama signed the Orwellian-titled America Invents Act (AIA) in 2011. If truth-in-advertising laws applied to politicians who front massively complex bills that do the opposite of what they proclaim to do, these hucksters would be jailed for their patently fraudulent "reform" legislation. Co-sponsored by Sen. Patrick Leahy, D-Vt., and Rep. Lamar Smith, R-Texas, the law was marketed as a job-creation vehicle that would relieve a backlog of an estimated 700,000 patent applications and crack down on patent "trolls" supposedly abusing the system through frivolous litigation against alleged infringers.
In truth, the AIA and its legislative successors are special interest boondoggles that enrich corporate lawyers, Big Business and federal bureaucrats at the expense of the independent inventors and fledgling innovators the American patent system was created to protect and encourage.
The AIA's primary agenda? "Harmonizing" our patent laws with the rest of the world to reward paper-pushers who are "first to file" at the patent office, instead of those who are "first to invent." These and other measures enacted by Obama threaten to drive garage tinkerers and small inventors — the designers, engineers and builders of American prosperity — out of the marketplace. Longtime venture capitalist Gary Lauder noted that the first-to-file system has suppressed solo and small-business innovation in Europe and Japan. "The U.S. gets 10 times the angel and venture capital of Western Europe — which recently declared an 'innovation emergency,'" Lauder observed. "So why are we harmonizing with them? They should be harmonizing with us."
Amen! Our founders knew that progress would come not merely at the hands of "great" inventors pioneering extraordinary breakthroughs, but also by the widespread invention and improvement of ordinary and "small" contrivances and advancements. In 1790, they created and refined a decentralized, market-based patent system that added the "fuel of interest" to the "fire of genius," in the words of America's only president to hold a patent, Abraham Lincoln.
Rather than denigrate the profit motive, the patent and copyright clause of the Constitution celebrates and encourages "individual effort by personal gain (as) the best way to advance public welfare through the talents of authors and inventors."
But the European-style "first to file" now in place in America is a "forced to file" regime that incentivizes a hasty stampede to the federal patent office. In the name of global harmony, we now reward paper-pushing attorneys — whether or not they're representing true first inventors. Instead of "streamlining" the application process and reducing paperwork backlogs, the AIA induces corporations to inundate patent examiners with incomplete placeholder applications that will inevitably need to be amended, refined and reconsidered. This is not patent "reform." It's a Big Business Patent Lawyers' Full Employment Act.
Like Obamacare, the sheer size and complexity of the AIA nullify the dubious benefits the White House and its statist lobbying pals claim it will bring. University of Virginia law professor John Duffy points out that the law is 140 pages long, "more than twice the length of the entire federal patent statute" since its last recodification in 1952. Stuffed with earmarks and bribes for the banking industry, Michigan Democrats who lobbied for a new satellite patent office in Detroit, and other well-connected cronies, the AIA's 37 sections are intentionally complex. Its sloppy drafting will result in "cases interpreting the law going to the courts for 20 years before lawyers really know how to advise clients," patent lawyer David Boundy predicted.
This week, yet another similar patent "reform" package that supposedly takes aim at a tiny minority of patent "trolls" (again) is being rammed through Congress. But in practice, the "Innovation Act" legislation (H.R. 9) "makes it harder for garage inventors and small businesses to protect themselves from having their inventions and ideas stolen," inventor Louis Foreman warns, by further obstructing their ability to enforce their intellectual property rights and bring legitimate patent infringement cases to court.
Global competitors certainly pose serious external threats to America's role as an innovation leader. But we face grave existential threats within our own borders: homegrown ignorance, apathy and downright hostility toward the independent entrepreneurs who make America great. Real "reform" begins with the repeal of the innovation-stifling "America Invents Act" and a return to first constitutional principles that maintain a level playing field among makers and builders of all shapes and sizes.
Michelle Malkin is author of the new book "Who Built That: Awe-Inspiring Stories of American Tinkerpreneurs." Her e-mail address is [email protected]