Mr. SMITH of Texas. I yield myself such time as I may consume.
Mr. Chairman, individuals who raise questions about the constitutionality of this legislation perhaps should review the Constitution itself. The Constitution expressly grants Congress the authority to ``promote the progress of science and useful arts.'' That is precisely what this bill does. H.R. 1249 improves the patent system, ensuring the protection and promotion of intellectual property that spurs economic growth and generates jobs.
The bill's inclusion of a move to a first-inventor-to-file system is absolutely consistent with the Constitution's requirement that patents be awarded to the ``inventor.'' A recent letter by professors of law from across the country--from universities including Emory, Indiana, Washington University in St. Louis, Missouri, NYU, New Hampshire, Wisconsin, Albany, Stanford, Chicago, Georgia, Richmond, Vanderbilt, and Washington--states that claims of unconstitutionality ``cannot be squared with well-accepted and longstanding rules of current patent law.'' And [Page: H4421] former Attorney General Michael B. Mukasey has said that the provision is both ``constitutional and wise.'' In a letter to PTO Director David Kappos, General Mukasey stated that the bill's constitutionality is assured because it ``leaves unchanged the existing requirement that a patent issue only to one who `invents or discovers.' '' Also, this provision actually returns us to a system that our Founders created and used themselves. Early American patent law, that of our Founders' generation, did not concern itself with who was the first-to-invent. The U.S. operated under a first-inventor-to-register, which is a system very similar to the first-inventor-to-file.
It wasn't until the 1870s, when the courts created interference proceedings, that our patent system began to consider who was the first-to-invent an invention. These interference proceedings disadvantaged independent inventors and small businesses. Over time, interference proceedings have become a costly litigation tactic that has forced some manufacturers to take the path of least resistance and move operations and jobs overseas rather than risk millions or billions of dollars in capital investment.
The America Invents Act does away with interference proceedings and includes a provision to address prior user rights without jeopardizing American businesses and jobs.
Opponents of the first-inventor-to-file system claim that it may disadvantage independent inventors who cannot file quickly enough. But the current system lulls inventors into a false sense of security based on the belief that they can readily and easily rely on being the first-to-invent. Inventors forget that, to have any hope of winning an interference proceeding, they must comply with complex legal procedures and then spend over $500,000 to try to prove that they were the first-to-invent.
In the last 7 years, under the current system of interference proceedings, only one independent inventor out of 3 million patent applications has proved an earlier date of invention over the inventor who filed first, one out of 3 million. In fact, the current patent system's costly and complex legal environment is what truly disadvantages independent inventors, who often lose their patent rights because they can't afford the legal battle over ownership.
The America Invents Act reduces frivolous litigation over weak or overbroad patents by establishing a pilot program to review a limited group of business method patents that never should have been awarded in the first place. Section 18 deals with mistakes that occurred following an activist judicial decision that created a new class of patents called business method patents in the late 1990s. The PTO was ill equipped to handle the flood of business method patent applications.
Few examiners had the necessary background and education to understand the inventions, and the PTO lacked information regarding prior art. As a result, the PTO issued some weak patents that have lead to frivolous lawsuits. The pilot program allows the PTO to reexamine a limited group of questionable business method patents, and it is supported by the PTO.
Former 10th Circuit Federal Appeals Court Judge Michael McConnell sent me a constitutional analysis of the bill's reexamination proceedings. He stated that ``there is nothing novel or unprecedented, much less unconstitutional, about the procedures proposed in sections 6 and 18. The application of these new reexamination procedures to existing patents is not a taking or otherwise a violation of the Constitution.'' Supporters of this bill understand that if America's inventors are forced to waste time with frivolous litigation, they won't have time for innovation. That's why the U.S. Chamber of Commerce, National Association of Manufacturers, PhRMA, BIO, the Information Technology Industry Council, American Bar Association, Small Business & Entrepreneurship Council, Independent Community Bankers of America, Credit Union National Association, Financial Services Roundtable, American Insurance Association, Property Casualty Insurers Association of America, the Securities Industry and Financial Markets Association, the American Institute of CPAs, industry leaders, the Coalition for 21st Century Patent Reform, the Coalition for Patent Fairness, independent inventors, and all six major university associations all support H.R. 1249.
To quote the Chamber of Commerce: ``This legislation is crucial for American economic growth, jobs, and the future of U.S. competitiveness.'' We can no longer allow our economy and job creators to be held hostage to legal maneuvers and the judicial lottery.
[Time: 19:40] American inventors have led the world for centuries in new innovations, from Benjamin Franklin and Thomas Edison to the Wright Brothers and Henry Ford. But if we want to continue as leaders in the global economy, we must encourage the innovators of today to develop the technologies of tomorrow.
This bill holds true to the Constitution, our Founders and our promise to future generations that America will continue to lead the world as a fountain for discovery, innovation and economic growth.
Mr. Chairman, I reserve the balance of my time.