[Congressional Record Volume 157, Number 91 (Thursday, June 23, 2011)]
[Extensions of Remarks]
[Page E1191]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                          AMERICA INVENTS ACT

                                 ______
                                 

                               speech of

                           HON. ALLEN B. WEST

                               of florida

                    in the house of representatives

                        Wednesday, June 22, 2011

       The House in Committee of the Whole House on the State of 
     the Union had under consideration the bill (H.R. 1249) to 
     amend title 35, United States Code, to provide for patent 
     reform:

  Mr. WEST. Madam Chair, the most sweeping patent reform legislation 
that has come before the House of Representatives in over half a 
century, the America Invents Act, H.R. 1249, makes significant 
substantive, procedural, and technical changes to current United States 
patent law.
  Article I, Section 8 gives the United States 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.''
  Congress passed the first patent law just one year after ratifying 
the Constitution when it enacted the Patent Act of 1790. The law 
granted patent applicants the ``sole and exclusive right and liberty of 
making, constructing, using and vending to others to be used'' of his 
or her invention, clearly maintaining the intentions of patent 
protections the Framers had when they drafted Article I, Section 8, 
Clause 8 of the Constitution, commonly referred to as the Intellectual 
Property Clause.
  Before discussing the ramifications of the America Invents Act, it is 
important for the American people to understand the reasoning behind 
the Intellectual Property Clause of the Constitution. The Framers 
recognized that a crucial component for success of the newly formed 
United States was economic strength and security, and they knew that 
American ingenuity and innovation was key to economic success.
  Thus, for more than 200 years, American patent law has used a first 
to invent system that addresses the circumstances when two or more 
persons independently develop identical or similar inventions at 
approximately the same time. When more than one patent application is 
filed at the Patent and Trademark Office (PTO) claiming the same 
invention, the patent is awarded to the applicant who was the first 
inventor, even if the inventor was not the first person to file a 
patent application at the PTO.
  Section 3 of H.R. 1249 would change this established system for 
determining which inventor obtains patent protection to a ``first 
inventor to file'' system. Under this new ``first inventor to file'' 
system, the law would not recognize the patent of an individual who did 
not file an invention first even if he or she was the first to complete 
an invention.
  Proponents of Section 3 will argue that the United States is the only 
patent-issuing nation that does not employ a ``first inventor to file'' 
system, and that making this change will simplify the process for 
acquiring patent rights.
  However, I believe that Section 3 on its face is unconstitutional. 
Over 200 years of evidenced-based, legal determination as to who is the 
true inventor of an invention should not be overturned because the rest 
of the world does it, or to make it easier for government bureaucrats 
to resolve patent disputes.
  The United States is the greatest Nation on the face of the earth not 
because we conform our ways to the rest of the world, but instead 
because we operate in a way that makes the rest of the world want to 
follow our example.
  Finally, and most importantly, I believe that awarding a patent to an 
individual who simply files before the inventor, violates the Framers' 
intent laid out in the Intellectual Property Clause. There can be no 
such thing as a ``first inventor to file'' since there can only be one 
inventor. Small inventors--the backbone of the American spirit of 
innovation--who do not have the funding or the legal staff to race to 
the PTO to file a patent will without question lose inventions to well-
funded and well-staffed corporations.
  I also have constitutional concerns with Section 18 of H.R. 1249. 
Section 18 of the America Invents Act would create a new Transitional 
Review proceeding at the Patent and Trademark Office that would only 
apply to ``business method patents'' dealing with data processing in 
the financial services industry. The Transitional Review would be 
available only to banks sued for patent infringement--even if the 
patent has already been upheld as valid by the PTO in a reexamination, 
or upheld by a federal court jury and/or judge in a trial. This new 
review process would ultimately lead to a delay, via a stay, of court 
proceedings that would interrupt inventors from capitalizing on their 
patents.
  Constitutional scholars Richard Epstein and Jonathan Massey have 
concluded that Section 18 language constitutes a government taking by 
allowing banks to challenge all business method patents--even those 
that have been reexamined and affirmed by the PTO and upheld by a jury 
in federal court.
  The House Judiciary Committee's consideration of H.R. 1249 proceeded 
rapidly. The committee held a hearing focused primarily on the broader 
patent provisions of the bill, and only the banking industry was 
invited to testify with regard to Section 18. Furthermore, there have 
been no hearings specifically relating to the implications of Section 
18.
  I have met with and spoken to a number of individuals representing 
both sides of this issue in order to fully understand the intent of 
H.R. 1249, as well as both its intended and unintended consequences. I 
have spoken to Director Kappos of the Patent and Trademark Office, and 
more importantly I have spoken with constituents in the 22nd 
Congressional District of Florida who are inventors that have received 
patents who would be adversely affected by certain provisions of this 
bill.
  Madam Chair, I voted against H.R. 1249 because I believe that the 
major sections I have outlined raise serious Constitutional questions. 
Section 3 clearly violates the intent of our Framers when they drafted 
the Intellectual Property Clause. Section 18 opens the door for the 
Executive Branch to overturn the Judicial Branch, a clear violation of 
the separation of powers laid out by the United States Constitution.
  As a 22-year Army combat veteran, and now as a Member of the House of 
Representatives, I swore an oath to protect and defend the 
Constitution. Voting in favor of passage of H.R. 1249 I believe goes 
against this very sacred oath I took, both as a young Second Lieutenant 
over 25 years ago, and as a Congressman in this body earlier this year.

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