What is the real cost of the US aligning our Patent Laws with the rest of the World?

A few days ago, I wrote about the Wall Street Journal article of March 28, 2011, talking about patents. The primary thrust of that article was discussing some proposed legislative changes in patent law. The primary thrust of patent law changes in the last 15 years has been to make the US system correspond to the patent systems of the rest of the world, as though all other countries were the same, and the US was the only hold-out.

The truth is that every country has its idiosyncracies – things that make its law a bit different from everyone else’s. Granted, there are some common themes – but there are also great differences.

The big difference being considered in the current patent legislation – it’s been around for many years and has not been passed – is a change in who is entitled to file a patent application once something patentable has been invented. The US has said, all along, from the beginning of the country, that the invention belonged to the person, or person’s who invented it, unless they had some other obligation to transfer it to someone else, such as an employer. So US policy has, all along, said that the invention belonged to the mind that invented it.

The proposed patent legislation changes all that, saying that ownership can be had by whoever files a patent application first. Namely, your mental creative genius is yours only so long as the person helping you, your friend, doesn’t file a patent application first, thus stealing it from you.

So who are the winners and losers here, if this patent legislation passes? Let’s see…he who has lots of money for a legal budget has only to scour the world for good ideas, then quickly file patent applications. No need for a research budget anymore. No need for engineers to do creative work. All you have to do is steal whatever you can find.

I have only two questions:

a. First, the Constitution says Congress shall have the authority to grant to authors and inventors rights to their creations…. So the question is how does this legislation fit within the definition of the powers granted by the Constitution?

b. How will this shift in ownership of inventions stimulate creativity, inventiveness, new technological advances?

Perhaps someone smarter than I could explain that to me? Please?

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