By Tom Still

MADISON – Be very afraid when a member of Congress announces that a major reason to “reform” the U.S. patent system is that no one else in the world does it like us.


Even during an era when America-bashing is back in vogue, there are certain things this country does well – and has always done well – much to the consternation of our rivals and competitors overseas.


One of those things is innovation. In fact, the United States is the greatest engine of innovation that has ever existed. The reasons start with the Founders, who were wise enough to envision a patent system when they wrote the U.S. Constitution. The first patent law was adopted by Congress in 1790, and three years later the law embraced a definition of what is “patentable” that lives on to this day. That definition was written by none other than Thomas Jefferson.


Fair and predictable patent law has been a solid foundation, but American innovation has other pillars. Personal and political freedom, a business culture that encourages people to take risks, honest bureaucrats, nimble financial markets and an unparalleled system of higher education have all combined over the past two centuries to turn American ideas into global products.


Despite lapses by some core industries that forgot – for a while – how to innovate, America is still the envy of the world. Perhaps America is dominant in fields such as biotechnology, medical devices and information technology because our patent system, albeit flawed, has done a lot more to encourage new ideas than to thwart them.


Two hundred-plus years of success is no deterrent to U.S. Sen. Patrick Leahy, D-Vt., who earlier this spring trotted out his latest attempt to rewrite existing patent law. Among other changes, Leahy and a bipartisan list of co-sponsors called for creating a pure “first-to-file” system.


“The United States stands alone among nations that grant patents in giving priority for a patent to the first inventor, as opposed to the first to file a patent application for a claimed invention,” Leahy wrote. “The result is a lack of international consistency, and a complex and costly system in the United States to determine inventors’ rights.”


Proponents of first-to-file claim it would simplify the patent process, reduce legal costs, improve fairness and enhance the opportunity to make progress toward a more harmonized international patent system. Opponents say they’re worried that “first-to-file” would promote a rush to the U.S. Patent and Trademark Office with hastily prepared disclosure information, resulting in a decline in patent quality at a time when the patent office is already struggling to keep up.


Also, because many independent inventors and small entities lack the money and expertise, they would be unlikely to win a “race to the patent office” against large, well-endowed entities.


Leahy’s call for “international consistency” could be read as “dumbing down” our patent law to fall into line with those nations that can only wish for America’s record of innovation. But the troubles with the Leahy bill don’t stop there.


In a letter written in mid-May, about 70 organizations ranging from venture capital firms to biotech companies to academic institutions such as the Wisconsin Alumni Research Foundation expressed strong concerns about bill (H.R. 1908/S. 1145).


“We strongly believe that certain provisions … will not strengthen our patent system but instead will fundamentally undermine patent certainty, discourage investment in innovative technologies, and reduce publication and collaborative activities among academic scientists,” the group wrote.


For companies (directly and as university licensees) in industries such as ours, the consequences – greater bureaucracy, inability to rely on valid patents, weakened protections against infringement and a decreased access to capital – would be devastating.  The harm to investment in tomorrow’s technologies would be felt immediately, and would hurt U.S. competitiveness for years to come,” they continued.


The bill receiving a hearing last week before Senate Judiciary Committee, which Leahy chairs. Committee members include both Wisconsin senators, Herb Kohl and Russ Feingold. The politics swirling about the bill are intense because some major Internet players support it and the ever-unpopular drug companies oppose it. As the debate builds this summer, however, senators should remember the June 6 testimony of one biotech executive from Massachusetts who said:


“When considering changes to (the patent system), we urge the committee to consider carefully the cautionary language embraced by the Hippocratic Oath: First, do no harm.”


Still is president of the Wisconsin Technology Council. He is the former associate editor of the WisconsinState Journal in Madison. This column does not necessarily reflect the opinion of the Tech Council board of directors, which has yet to take a position on the reform legislation.