A fast-moving bill to redesign America's patent laws has come under fire from small inventors, who say that it will make it easier for others to steal their ideas.
The Senate Judiciary Committee approved the proposed American Inventors Protection Act of 1999 by an 18-0 vote on Tuesday. The House of Representatives passed a similar bill in August.
The bill would give inventors exclusive rights to an invention for 17 years after the Patent and Trademark Office grants the patent--potentially more protection than the current system granting exclusive rights for 20 years after the application is filed. It also provides some of the first protections against invention promotion scams, in which unscrupulous companies milk hopeful but inexperienced inventors, taking their money with promises of promoting their ideas.
The bill would create a "first inventor defense" in the burgeoning area of patenting business practices such as the reverse auctions of Priceline.com. This provision would protect companies that have used such practices before the filing of the patent by a competitor.
The notion that business practices, as opposed to traditional inventions, could be patented at all is relatively new, so the bill would protect companies that have used innovative ideas but were not quick to patent them when it became legal to do so.
The bill's most controversial provision would require that patent applications be published for all to see after 18 months--an approach designed to let others know--before they waste a lot of time, money and energy--that someone has beaten them to the patent office. That would make the American system more like Europe's, but if the Patent and Trademark Office was slow to approve an application, extensive information about an inventor's idea might be published before the idea had gained the full protection of patent law. The bill would also reduce patent fees.
"It's a good bill," said Sen. Patrick J. Leahy (D-Vt.), cosponsor of the bill with Judiciary chairman Orrin G. Hatch (R-Utah). "What I want to do is to make sure that we have the same advantages that are now enjoyed by a lot of European countries." Hatch, before putting the bill up for the committee's vote on Tuesday, said "our patent system must be equipped to handle the challenges of the new millennium and to protect our nation's creators into the next century."
Many independent inventors and their allies disagree. "The effort to rush through the Senate this questionable and potentially highly detrimental legislation is inexcusable," wrote Nobel laureate Franco Modigliani of the Massachusetts Institute of Technology to Senate Majority Leader Trent Lott (R-Miss.). "This bill has the potential to affect the future of the country as an economic power more than any other legislation in recent history."
Economist Pat Choate said that the provisions in the bill constitute "a major major undermining of American inventors--particularly of the individual inventors."
The stakes are high, said Beverly Selby, executive director of the Alliance for American Innovation, which opposes the bill. Patent law and the protection of inventions is "a critical element in making the United States a can-do nation."
The head of a business group that supports the bill said it has been misinterpreted by critics. "This bill provides greater certainty and predictability for American business for protecting and using their technology," said Michael K. Kirk, executive director of the American Intellectual Property Law Association. Kirk said independent inventors should be happy with the bill--especially the parts about invention promoters, which he called "a $200 million-a-year scam."
Anyone whose patent has been published, Kirk said, would have legal rights dating from the date of filing, so publication would not infringe on their rights; under the law, an inventor can decline to have the information published when seeking a patent for use only in the United States. More important, Kirk said, having the information about so many patents readily available would help inventors avoid wasting time and money on ideas that have already been developed by someone else.
With the congressional session down to its final days, the bill is unlikely to pass both houses before recess, but Senate strategists said they might be able to pass a version of the Senate bill that is so close to the House version that they could avoid the cumbersome conference committee process, bringing House action down to a single floor vote on the Senate bill.