It is critical for America's success that we have a properly functioning patent system. This was well recognized by our founders, who expressly granted Congress the power to issue patents in the Constitution. If you haven't seen it lately, the Constitution grants Congress the power:
"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."
Note the language in the Constitution "to Inventors." This means that Congress may only grant patents to the actual inventors, not to anyone else. To grant patents to people who aren't "inventors" is outside the powers granted to Congress by the Constitution and any attempt by Congress to grant patents to people who aren't "inventors" is not allowed.
The United States is very unique in this respect, as most of the world grants patents to whomever files an application for a patent on the invention first. This means that if you come up with a new invention before me, so long as I get my application into the patent office before you, I get the patent and you're completely out of luck. Such a "first to file" system benefits large corporations who have multiple patent attorneys on staff ready to file patent applications all the time, as it's really hard for small inventors to scrape together the money necessary to hire an attorney to draft an application for them and then pay all of the patent office application fees.
Thus, it's undeniable that under a "first to file" system, individual and independent small inventors don't stand a chance of winning the race to the patent office against large corporations. The only way to protect independent and small inventors who come up with great ideas is to maintain the "first to invent, even if later to file" system we currently have. This is why the Constitution is written the way it is, to ensure patents are granted to "inventors" and no one else. Yes, we're different than the rest of the world, but us Americans have always been independent thinkers. That's what makes us the greatest country on Earth.
Congress is, unfortunately, on the verge of passing the so-called "America Invents Act" (S. 23 and H.R. 1249) that would change our patent system from the "first to invent" system we've had since our founding, to a "first to file" system. This is not only harmful to small entrepreneurs, but it also violates the plain language of the Constitution, which requires patents be granted to "inventors", not "filers." To be sure, the Supreme Court just this week reminded us that the Constitution guarantees patent rights shall vest in inventors, not their employers. In a case involving Stanford University, Chief Justice John Roberts wrote in the very first sentence of his opinion for the Court, "Since 1790, the patent law has operated on the premise that rights in an invention belong to the inventor." The Chief Justice continued to write, "Although much in intellectual property law has changed in the 220 years since the first Patent Act, the basic idea that inventors have the right to patent their inventions has not. ... Our precedents confirm the general rule that rights in an invention belong to the inventor." Thus, the Supreme Court unquestionably believes that the American patent system is based on awarding patents to inventors. Scholars also agree that changing from the "first to invent gets the patent" system that we have today to a "first to file an application gets the patent" system being considered by Congress would violate the Constitution.
So one is left to ask, why is Congress about to pass a law that would benefit large corporations, harm small entrepreneurs and violate the Constitution? I don't know, but maybe if you call your representative (212-224-3121) they can explain it to you.
Scott Dunn: "It has been pretended..." Jefferson was a smart man, he also said we should revolt every 20 years or so. I would agree that patents do hold us back, but w/o a clear understanding of the concept of "ownership" is or isn't, I think protections from human nature are still needed today.
Dennidus: agree
Ben Ford: agree
Buddycor: That $ is typically buying what corporations have brainwashed the consumers into thinking is valuable and needed, like a luxury car, not books. Violence is not an answer to a problem that has a much better solution.
rextrek: are you and schnauzergirl on the right page here?
Justchillinyo: you'll be getting much colder soon too. We need inventiveness (fire?), not homogeny, go work for Microsoft, no wait.... grow a garden.
Changing concepts changes opinions which will change votes, not the pretty carrot of the illusion of power on one human world that we share with all of nature.
The Nature of Theft should be the discussion here. There is a song with this title.... 'Thieves like Us". Instead of an economy of sharing, an economy of giving, an economy of growth, we my dear Americans live in a world Economy of Thieves like Us with the obviously faulty concept of ownership at it's base and the seizing of "inextinguishable" resources in a finite world of life its highest good in the face of a very large black void we like to call death. Gas is running out and so is the clock on the August 1st deadline when our world gets to become a ghetto of descending escalators. Who or what will win the race? You decide? Or is the balance already there?
Balance was perceived in Nature and then applied to the Law of Humanity, not the other way around. If there is a question of balance of power, might I suggest looking to Nature, not the dust of antiquity, for your answers.
The tourists come in droves to drink the pure fresh water from the giving spring and smile as they walk by. I wonder how many of them know of the consequences (which are many), they are about to bear for this island that they hold dear.... btw, I live on Earth, which is a whole planet as far as I can see and my awareness grasp. I know that if my thirst were great enough and my proportions much larger, that I might be able to drink all that water as it flowed out, that water which might have flowed by on it's course to supply nature and consequently life, as far as my human biological apparatus is concerned. Who's to stop me? You, the police, the infinitely large size of my bladder (due to greed), some environmentalist, Napa Valley and other farmers, vigilantes, an army?
Hmmmmm..... The biological apparatus known as "your body" seems to have a much different idea about who really "owns" that water, not to mention that other stuff known previously to us as food. We call this stuff waste, what would the Earth call it if she had a voice like ours? What about when we die to the casket, ashes, dirt, sea or even a pyramid, isn't the saying ashes to ashes and dust to dust? Other biological apparatuses masquerading as corporations seem to think it's theirs too. Does anybody see a problem inherent problem here? cont.
Congress should be of the people and for the people and not the corporation ®
If it works , then don't fix it. ©
"It has been pretended by some, (and in England especially,) that inventors have a natural and exclusive right to their inventions, and not merely for their own lives, but inheritable to their heirs. But while it is a moot question whether the origin of any kind of property is derived from nature at all, it would be singular to admit a natural and even an hereditary right to inventors." (read the entire letter here: http://press-pubs.uchicago.edu/founders/documents/a1_8_8s12.html)
Jefferson is clear in his reservations about patents and their potential harms to society. I doubt he was the only one. The idea that patents are essential for the progress of the sciences is an assumption, not provable fact. One fact that is conveniently ignored is the innovation of the internet. The software, the protocols and the standards used are, for the most part, unencumbered by patents.
The simple fact is that patents hold us back and we don't really need them anyway.
You are entirely correct! That's how patents were issued in Europe centuries ago. The crown would issue a letters patent to a favored courtisan who would for example have an exclusive right to sell sugar or tea in a particular town or city. Such patents are issued as a privilege, not a right.
Just because they call it “reform” doesn’t mean it is. This bill will not do what they claim it will. What it will do is help large multinationals robb and kill their small entity and startup competitors (so it will do exactly what they paid for) and with them the jobs they would have created. According to recent studies by the Kauffman Foundation and the U.S. Census Bureau, “startups aren’t everything when it comes to job growth. They’re the only thing.” This bill is a wholesale slaughter of US jobs. Those wishing to help in the fight to defeat this bill should contact us as below.
Small entities and inventors have been given far too little voice on this bill when one considers that they rely far more heavily on the patent system than do large firms who can control their markets by their size alone. The smaller the firm, the more they rely on patents -especially startups and individual inventors.
Please see http://truereform.piausa.org/ for a different/opposing view on patent reform.