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Conyers: Patent System Needs Updating

American technological leadership in telecommunications requires companies to make significant investments in research and development. This research and development leads to innovations such as text messaging, cable television and high-speed Internet access that probably would not have emerged without patent protection. Patents protect investment, keep innovation in the marketplace and create countless jobs.

Congress has been a world leader in promoting responsible intellectual property policies for the world’s inventors and artists. For instance, last Congress, I championed passage of the Prioritizing Resources and Organization for Intellectual Property Act to combat counterfeiting and piracy. It toughened our copyright and trademark laws and gave law enforcement more resources to fight intellectual property crimes.

However, Congress has not substantively altered patent law for more than 50 years. The patent system is simply not up to the challenges of the 21st century and is handicapping the American knowledge economy.

Many of the weaknesses in the patent law system are simply beyond dispute. The House Judiciary Committee held a hearing on the U.S. Patent and Trademark Office operations on May 5. It was clear that the USPTO does not have the resources it needs to speedily process meritorious patent applications and to effectively filter out bad patent claims.

The quality and timeliness of the USPTO’s work has a direct impact on the competitiveness of American businesses and on individual inventors. For several years there has been a backlog of unexamined patent applications. According to the USPTO, it takes an average of 34.6 months to complete an examination of a patent application. There are 1.2 million total applications currently in the system. Of these, about 770,000 are awaiting an initial review by a USPTO patent examiner.

When applications do not get examined in a timely fashion, important innovations are delayed or lost to the public. Furthermore, the delay is effectively an opportunity cost levied onto the applicant, in addition to the fees that must be paid for the examination service, and it does a disservice to the public that stands to benefit.

At the Judiciary Committee hearing in May, the USPTO presented a comprehensive plan to improve quality and reduce the backlog in patent applications. The plan included hiring more examiners (or at least retaining at current levels), revising the way examiners’ work is measured, fixing or updating the antiquated IT system and streamlining the application process. The USPTO must be provided with the funds it requires to implement these changes.

The time is ripe for fixing a system that everyone agrees is failing. As courts struggle to apply a relatively ancient statute to the creations of the digital age, they have repeatedly implored Congress to update the law. Most recently, in Bilski v. Kappos, the Supreme Court said its hands were tied with respect to reaching the broad patent law questions presented and that it must rule very narrowly to avoid adopting “categorical rules that might have wide-ranging and unforeseen impacts.”

In Bilski, the court upheld the denial of a patent for a type of business process and observed that with “ever more people trying to innovate and thus seeking patent protections for their inventions, the patent law faces a great challenge in striking the balance between protecting inventors and not granting monopolies over procedures that others would discover by independent, creative application of general principles.”

The court cautioned that “nothing in this opinion should be read to take a position on where that balance ought to be struck.” This is appropriate because Congress, not the courts, must clarify and update patent law.

As uncertainty increases about whether a granted patent will survive judicial review, costly litigation or even the threat of litigation, it chills investment in research and development. Inventors may opt not to patent at all and instead keep their invention a secret. From Congress’ perspective, this is a poor outcome because trade secrets do not enrich the public knowledge and do not foster subsequent innovation.

Over several Congresses, I have worked well with my good friends on both sides of the aisle, in both the House and Senate, for substantive reform of the patent laws. I will continue those efforts to achieve the intellectual property system necessary to protect American growth and innovation in our increasingly global economy.

Rep. John Conyers (D-Mich.) is chairman of the Judiciary Committee.

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