What has changed is [the banks'] size as they are now more powerful than they were in 2009 when Assistant Senate Majority Leader Dick Durbin complained that banks "own" Capitol Hill. While the phrase "too big to fail" is often bandied about, the operative question is whether they are too big to govern or are somehow exempt from the rule of law itself? Or even worse, who is master of whom?
Phyllis Schlafly, founder and president of the conservative public policy organization Eagle Forum, denounced the compromise on H.R. 1249, the so-called "America Invents Act," as "inadequate," and declared that the bill is "still an unconstitutional job killer that attacks small businesses." Apparently, a compromise on Section 22, dealing with funding for the U.S. Patent and Trademark Office, has been reached to satisfy Congressional appropriators. However, declared Schlafly, "The compromise is inadequate to fully allow the USPTO to fully carry out its mission, and the bill is still unconstitutional and a devastating blow to individual inventors and start-up companies, the economy's primary U.S. job creators."
Beyond the job chrun at existing firms, there is a dynamic in firm birth that seems to be very important for understanding job creation—specifically, the unique effect of new firms, or startups. Put simply, without startups, there would be no net job growth in the U.S. economy. This fact is true on average, but also is true for all but seven years for which the United States has data going back to 1977.
Jonathan S. Massey
21st Century contends that existing laws provide that the actual inventor may forfeit a patent if he or she abandons, suppresses, or conceals an invention, and that H.R. 1249 simply places a different condition on obtaining a patent: a true inventor must be the first to file. But H.R. 1249 is not analogous to existing rules requiring the first inventor to act diligently lest he lose his rights.
Jonathan S. Massey
Historically, our patent system is based on ingenuity and hard work, not administrative filings or ministerial acts. There is no reason to depart from this tradition, because the bill will actually undermine innovation and cost American jobs. Our nation's founders understood that technological progress depends on securing patent rights to genuine inventors, to enable them to profit from their talents, investment, and effort… If the bill's provisions had been law in the Twentieth Century, the Wright Brothers would have been denied a patent for the airplane.
Jonathan S. Massey
Section 18 bestows a unique benefit — a third bite at the apple — on financial services companies defending infringement actions. It is special interest legislation, pure and simple… It would change the rules of the game, after the fact, and reduce the enforceability of constitutionally protected forms of private property.
[T]he drafters of § 2 of the America Invents Act know that there is a constitutional problem with this radical change to the American patent system, and they are engaging in linguistic legerdemain to obscure this substantive defect in the legislation. In shifting from a first-to-invent to a first-to-file system, the America Invents Act contradicts both the text and the historical understanding of the Copyright and Patent Clause in the Constitution.
Richard A. Epstein
As a matter of simple prudence Congress should not authorize this radical transformation of the entire patent system without some detailed consideration of the consequences of that decision. Yet the procedures set out in Sections 18 and 5 make just those changes on the strength of threadbare arguments that do not withstand any serious examination insofar as they apply to the protection of individual patent rights and to the structure of administrative and judicial powers under the Constitution.
F. Scott Kieff
[T]he patent system is one area of law where a call to update is least apt. Every patent lawyer will tell you that the patent law doctrine known as "anticipation" works, by design, to ensure that anticipated technologies are not patentable. Patent law is entirely directed towards those technologies that are unanticipated. It's easy, for instance, to envision our nation's founders sweating out drafting sessions over long summers in Philadelphia's Independence Hall, with the then-un-anticipatable aid they could have enjoyed from central air-conditioning, or other modern marvels like the Internet, cell phones, airplanes, automobiles, telephones, and television, all of which were brought to market through patents.