Science & Technology in Congress
On April 23, the House passed H.R. 400, known as the 21st Century Patent System Improvement Act. The bill, introduced by Rep. Howard Coble (R-NC) would make numerous changes to the current patent system, with the intention of modernizing the patent office, bringing it more in line with other countries, and increasing American competitiveness. H.R. 400 passed the House more or less intact, despite staunch efforts by certain members of Congress to cripple the bill through amendments.
H.R. 400 would restructure both the Patent and Trademark Office (PTO) and the system by which patents are issued. The bill would convert the PTO into a wholly-owned government corporation, operating under the general guidance of the Commerce Department. In this new form, the corporation would be able to keep money that it collects in the form of fees for services. Under current law, some of the funds brought in by the PTO are transferred to other federal agencies. The bill would revise the patent-issuing process so that the PTO is required to print patent applications 18 months after the first date that they are filed. The aim of this provision is to prevent U.S. innovators from duplicating each other's efforts, and to encourage more efficient licensing of new technology. The bill provides a right to royalties for inventors who find that somebody else has begun using their technology before the patent is issued, based on their published application. The bill retains the current 20 year patent term, but includes provisions for extension of the term in case of certain administrative delays.
The bill faced stiff opposition from some members of Congress, led by Rep. Dana Rohrabacher (R-CA). Rep. Rohrabacher was particularly concerned with the provision requiring early publication of patent applications. This provision prompted him to dub H.R. 400 the "Steal America's Technology Act," because of his concern that it made it easier for foreign competitors to profit from American innovation. Rep. Rohrabacher's alternative bill, H.R. 811, never made it out of committee. However, he reintroduced his legislation as a substitute amendment when H.R. 400 went to the House. It was defeated, but the House did approve an amendment offered by Rep. Marcy Kaptur (D-OH) which addressed some of the concerns held by Rep. Rohrabacher and others. The Kaptur amendment exempts small business, universities, and individual independent inventors from having their patent applications published before the patent is granted. Rep. Kaptur argued that her amendment would protect small inventors from the "undue litigation" which seems to many to be inevitable in the proposed patent system revisions. She stated in her introductory comments that her amendment would "offer the small inventor some leg to stand on, a fairer system." It also includes provisions to prevent "submarine patenting," the deliberate delaying of a patent application in order to artificially extend the patent term.
Rep. Kaptur's amendment was adopted by a 220 to 193 vote, and H.R. 400 went on to pass the House by a voice vote. Rep. Coble and other supporters of H.R. 400 are dissatisfied with the limitations imposed by the Kaptur amendment, and remain optimistic that the Senate will pass legislation that does not include it. The Senate Judiciary Committee is likely to begin considering similar legislation, S. 507 in the near future.