[Congressional Record Volume 162, Number 177 (Thursday, December 8, 2016)]
[Extensions of Remarks]
[Pages E1656-E1657]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




             ASSAULTING PROPERTY RIGHTS TO ONE'S INVENTIONS

                                 ______
                                 

                         HON. DANA ROHRABACHER

                             of california

                    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 toward 
intellectual property rights titled ``Assaulting Property Rights to 
One's Inventions,'' which shows how we are undermining our position 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 
inventions in the world, recent changes to America'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 or 
backwards.''
  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 Constitution--the only individual 
right named in the Constitution itself.
  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 patent 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 administrative branch have 
diverted America toward the way of the crab. Our own government 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 Founders such 
as James Madison?
  In recent years, Congress has shifted patent terms to 20 years from 
when a patent is applied for, though the average patent application 
pendency is 36 months--far longer for sophisticated inventions.
  Congress changed the law to require virtually 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 invention'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 
invalidates a patent. AIA also lets patent infringers off the hook if 
they used someone's patented 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 application.
  The AIA allows third parties to anonymously submit ``prior art'' 
while a patent application is being considered. Use of an invention 
anywhere in the world now makes an invention subject to being 
invalidated here.

[[Page E1657]]

  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 process, 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 reexamination in this 
quasi-judicial administrative setting. Judge Randal Rader has called 
the PTAB a ``patent death squad'' because it revokes patents 80 percent 
of the time.
  Courts are making it harder to secure a patent, in rulings like KSR 
v. Teleflex, Bilski v. Kappos and Mayo v. Prometheus. Judicial rulings 
have also raised the bar for patent owners 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 ensure 
exclusive rights, but if you can't stop infringers from making, using 
or selling your invention even when you've proven IP theft, where is 
the private property right to exclusivity?
  Agencies like the Federal Trade Commission, myopically fixated on 
antitrust and unproven theories of patent litigation abuse, miss the 
core constitutional goal of patents, namely to vest in individual 
inventors enforceable property rights, which include the right to sell 
or license that intellectual property. The FTC's recent ``study'' of 
certain patent assertion entities, or PAEs, paints with such a broad 
brush; it sheds little light on this area of patent litigation.
  The FTC lacks sufficient data to draw conclusions, especially with an 
unrepresentative sample of 22 firms and no data on the potentially 
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 interest 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 patent owners.
  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 outcomes 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 creativity. It worked exceptionally well for about 200 years.
  But today, our property rights-centered patent 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 invention and creation of new wealth.

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