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House Debate on Constitutionality of H.R. 1249 – America Invents (NOT) Act

House Debate on Constitutionality of H.R. 1249 – America Invents (NOT) Act
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The House had their first ever debate last night (6/22/11) on the Constitutionality of a piece of legislation under the new rules requiring the House specifically address the Constitutionality of legislation. The major supporter for the Constitutionality of America Invents Act was Lamar Smith, Republican from Texas and the major Congresswoman challenging the Constitutionality was Marcy Kaptur, Democrat from Ohio.

Kaptur pointed out that the first right ever mentioned in the Constitution, even before the Bill of Rights, was the exclusive right ofinventors and authors to their writings and discoveries – Article 1, Section 8, clause 8.  Representative Kaptur pointed out that the Constitution protects the rights of inventors, not the first person to file for a patent.  The proponents of the Bill have pushed the nonsensical idea that the Bill awards patents to the “first inventor to file.”  There is no such thing as the “first inventor to file.”  Only one person or group can be an inventor, the other people are just clever engineers.  For instance, if I recreated calculus without any apparent training in calculus, that would not make me the discover of calculus, it would just make me clever at math.  Kaptur points out that the inventor has an inchoate right to a patent upon reducing an invention to practice.  The first person to file, even if they recreate the invention, does not have an inchoate right.

Congresswoman Kaptur correctly pointed out that the Bill will institutionalize intellectual property theft.  She explained that this Bill is about Europeanizing our patent laws.  She predicted that if this legislation passes it will be tied up in the courts for years, because of its unconstitutionality.  This uncertainty will hurt inventors and the American economy.

Congressman James Sensebrenner of Wisconsinpointed out that a vote for this Bill is a clear violation of every Congressman’s oath to uphold and defend the Constitution.  He points out that patents are a property right and H.R. 1249 is a clear violation of the 5th Amendment.  The relevant part of the 5th Amendment states “or shall private property be taken for public use, without just compensation.”  The Bill will take the private property of inventors without compensating them and give it to the first person who files a patent application.  Congressman Sensebrenner and many of the opponents of the legislation pointed to the recent Supreme Court case Stanford v. Roche, which clearly stated that a foundation ofU.S. patent law is that the first true inventor is entitled to a patent.  Sensebrenner made the point that inventor means the first person to create an invention, not the person who files first or the second or later person to recreate the invention.

Congressman Lee Terry of Nebraska also brought up the difference between inventors and filers and pointed to the Stanford v. Roche case.

Congressman Scott Garrett of New Jerseypointed out that the purpose of Government is to secure our Natural Rights – See the Declaration of Independence.  He pointed out that only the first true inventor is the creator of the invention and creation is the source of all property rights.  This is a straightforward application of Natural Rights.

Congressman Dana Rohrabacher ofCaliforniapointed out that the clear purpose of this legislation is to weaken our patent rights.  TheUnited Stateshas had the strongest patent rights for INVENTORS since the Constitution was passed.  This is why theU.S.became the economic and technological leader of the world is less than sixty years.  He also pointed out that this legislation is designed to HARMonize our patent laws with other countries to the detriment of the United States.

Proponents of the Bill spoke about patents being monopolies and talked about the supposed problem of run away litigation.  Patent are property rights not monopolies.  People who label patents monopolies are people who do not understand property rights and are pushing a statist agenda.  Judge Michel, former head of the Court of Appeals for the Federal Circuit, the court that hears all patent appeals in the country, has definitely demolished the myth of rampant patent litigation.  He has pointed out that only about 100 patent cases go to trial each year.  In a $14 trillion economy built on new technology this is trivial.  A familiar theme among the proponents was their support for the Wall Street give away of not having to pay for stealing other peoples’ technology.  For more information see Patent Reform a Sham: Data Treasury Story Exposes True Motives.

If this Bill passes the United States standard of living will decline precipitously in the next decade. I predict that our standard of living will be on par with Greece and Portugal by 2020.


  1. Dale,

    Good point.

    It is the first inventor who has a respective “Dis-covery”,
    not the first inventor who has a respective “filing” in a bureaucratic organization.

    To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective … Discoveries.

  2. Perhaps a real life example might drill (baby drill) the point home:

    You are at a coffee shop with your buddy, Watson.

    He steps away to go wash his hands.

    Shortly thereafter, in sketching something on a napkin, you realize you have “discovered” something fabulous.

    “Mr. Watson, come quickly!” you shout out in the public shop, “I have something to show you.”

    He comes. You explain proudly and with excited loud voice what you have “discovered”.

    Result under European Law: No patent.
    Because you blew your bureaucratic absolute novelty by publicly revealing your “discovery”.

    Result under current (pre-1249) US Patent Law: Yes, you get a patent.
    Because current US Patent Law is set up for “securing for limited Times to … Inventors the exclusive Right to their respective … Discoveries” and not for bureaucratically granting only to those who know all the tricky rules and filing procedures a legal right that should have rightly gone instead to the first to discover and not secret away his discovery.

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