Below is an address Congressman Rohrabacher gave in the House recently. We applaud him for his understanding and recognition of the mess the patent system has become.
Show us a country with weak or ineffective property rights and we’ll show you a country with a weak economy and high unemployment. This in part explains why America can’t find a good paying full time job.
Even inventors who wish to commercialize their inventions are unable to as a result of all the recent changes dating back to the SCOTUS eBay decision. Adding to that other decisions, PTO perceived if not actual bias, and AIA -all these changes have done is legalize theft of our inventions and helped our large infringers rob and crush us while shipping more and more American jobs overseas. When they cant export jobs they import workers that displace Americans. Don’t buy the Chinese style propaganda of large multinational infringers (thieves). It’s time to stop ‘reforming’ the patent system and restore -completing the vision of America’s founders.
For our position and the changes we advocate (the rest of the truth) to truly reform the patent system, or to join our effort, please visit us at https://aminventorsforjustice.wordpress.com
or, contact us at firstname.lastname@example.org
ASSAULTING PROPERTY RIGHTS TO ONE’S INVENTIONS
HON. DANA ROHRABACHER
in the house of representatives
Thursday, December 8, 2016
Mr. ROHRABACHER. Mr. Speaker, I would
like to call to the attention of my colleagues an
analysis of our recent government actions to-
ward intellectual property rights titled ‘‘Assault-
ing Property Rights to One’s Inventions,’’
which shows how we are undermining our po-
sition as the world leader in innovation and
preventing the creation of new wealth.
For a country with a momentous beginning,
whose intellectual-property-rights approach
produced the most iconic inventors and inven-
tions in the world, recent changes to Amer-
ica’s patent system should be alarming.
Mark Twain wrote, ‘‘[A] country without a
patent office and good patent laws was just a
crab and couldn’t travel any way but sideways
America made writing ‘‘good patent laws’’
that secure intellectual property rights a high
priority. The Founders enumerated the Patent
Clause in Article I, Section 8 of our Constitu-
tion—the only individual right named in the
The Founders moved quickly to implement
this property right. The Patent Act of 1790 was
the third law enacted by the first Congress.
What did the Founders regard as ‘‘good pat-
ent law?’’ Deeding newly created property to
its creator. One that democratized the property
right to one’s inventions. The 1790 law
achieved this by awarding a patent to the ‘‘first
and true inventor.’’
But lately, Congress, the courts and the ad-
ministrative branch have diverted America to-
ward the way of the crab. Our own govern-
ment has whittled away at our patent system,
degraded patent rights, devalued patents and
IP and diminished inherent property rights.
What would inventors like Thomas Edison,
the Wright Brothers and Alexander Graham
Bell think about this new direction? Or Found-
ers such as James Madison?
In recent years, Congress has shifted patent
terms to 20 years from when a patent is ap-
plied for, though the average patent applica-
tion pendency is 36 months—far longer for so-
Congress changed the law to require vir-
tually all patent applications to be published
18 months after filing, even if no patent has
issued. That’s a problem because it gives IP
thieves a head start by providing them an in-
vention’s blueprints early. If a patent doesn’t
issue, disclosure makes the invention ‘‘prior
art’’ and unpatentable.
Congress enacted the antiproperty-rights
‘‘America Invents Act.’’ AIA denies inventors
de novo judicial review if the patent office in-
validates a patent. AIA also lets patent infring-
ers off the hook if they used someone’s pat-
ented invention for a year before a patent was
filed. It seriously disrupts the one-year grace
period, when inventors could discuss their
ideas with investors and partners, improve
their details and make a stronger patent appli-
The AIA allows third parties to anonymously
submit ‘‘prior art’’ while a patent application is
being considered. Use of an invention any-
where in the world now makes an invention
subject to being invalidated here.
AIA changed from a first-to-invent to a first-
to-file basis for winning the patent. This runs
counter to the American principle of a property
right to one’s ideas
AIA also put the post-grant challenge proc-
ess, started in 1999, on steroids. Now anyone,
with or without standing, may ask the Patent
Trial and Appeal Board to invalidate an issued
patent, with a low burden of proof. Infringers,
hedge fund sharks or anyone can bring patent
holders into double-jeopardy-like patent reex-
amination in this quasi-judicial administrative
setting. Judge Randal Rader has called the
PTAB a ‘‘patent death squad’’ because it re-
vokes patents 80 percent of the time.
Courts are making it harder to secure a pat-
ent, in rulings like KSR v. Teleflex, Bilski v.
Kappos and Mayo v. Prometheus. Judicial rul-
ings have also raised the bar for patent own-
ers to win infringement, in such cases as
Global-Tech Appliances v. SEB, Abbott Labs
v. Sandoz and Quanta Computer v. LG.
Even if an inventor gets a patent, then
proves someone is infringing the patent,
courts have put permanent injunction against
infringers out of reach under eBay v.
MercExchange. A patent is supposed to en-
sure exclusive rights, but if you can’t stop in-
fringers from making, using or selling your in-
vention even when you’ve proven IP theft,
where is the private property right to exclu-
Agencies like the Federal Trade Commis-
sion, myopically fixated on antitrust and
unproven theories of patent litigation abuse,
miss the core constitutional goal of patents,
namely to vest in individual inventors enforce-
able property rights, which include the right to
sell or license that intellectual property. The
FTC’s recent ‘‘study’’ of certain patent asser-
tion entities, or PAEs, paints with such a
broad brush; it sheds little light on this area of
The FTC lacks sufficient data to draw con-
clusions, especially with an unrepresentative
sample of 22 firms and no data on the poten-
tially abusive practices of large infringers.
Making sweeping policy recommendations on
such a thin foundation only picks sides in a
manner that hurts inventors who have no in-
terest in setting up manufacturing plants and
threatens property rights, including the right to
buy or license IP.
Meanwhile, countries like China, South
Korea and Taiwan take advantage of the
FTC’s and U.S. Justice Department’s efforts to
weaken the rights and remedies of American
These foreign governments enable their
countries’ businesses’ theft of U.S. IP. How?
By depriving American firms of due process,
equating exclusive patent rights with
‘‘anticompetitiveness,’’ and running judicial
proceedings based on predetermined out-
comes favoring domestic players, rather than
the rule of law.
In Federalist 43, Madison explained that the
right to inventions belongs to their inventors,
and ‘‘the claims of individuals’’ to their IP
rights ‘‘fully [coincide]’’ with the ‘‘public good.’’
The exclusive property right benefits society
while inventors enjoy the fruits of their cre-
ativity. It worked exceptionally well for about
But today, our property rights-centered pat-
ent regime is shifting. These changes to
America’s once-world-class patent system
must be reversed and our course righted if we
are to continue as the world leader in inven-
tion and creation of new wealth.