The Eunuch Patent Office

On average, it takes about 3-4 years and costs about $5000 to obtain a patent from the Patent Office, from filing of the application to the granting of the patent. However, a patent issued by the Patent Office guarantees nothing, in violation of the Constitutional Provision (ART. 1, SEC.8, CL.8):

• The Congress shall have power . . . To promote the progress of science and the useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries

Instead, Congress, responding to its corporate paymasters, has neutered the Patent Office by enacting statute 35 USC 282 which allows a party to challenge the validity of a patent in federal court. Few issued patents survive in court. For example, one source studied 14 cases brought by pro per inventors; 13 lost their patents and were heavily sanctioned, and some went bankrupt¹. See http://inventors.coolissues.com/fcourts.htm or http://ourworld.cs.com/patentreform/fcourts.htm

There are two options to correct the constitutional violation: either abolish the Patent Office or remove the patent validity issue from the courts.

1. Since the granting and issuing of a patent by the Patent Office guarantees nothing and since the validity of patents is now determined by the federal courts, the Patent Office is surplus baggage and should be abolished². It makes more sense that the presumption of a patent be made by registering a patent application by notary public thus saving time and money for applicants, especially in rapidly moving technical areas. Just like an issued patent, a registered patent application is nothing but a presumption of validity, a piece of paper that secures nothing. However, it has the merit of not wasting the applicant's resources and, most importantly, it does not violate the Constitutional Provision. This option is not likely since it would give to the corporations what they already have, namely, a Eunuch Patent Office and the real ability to invalidate patents in court cases.

2. Removing the patent validity issue from the courts means striking statute 35 USC 282. This option is not likely since it favors individual inventors, a strong Patent Office and the ability to have secure patents when facing corporate infringers in court.

Correct the Constitutional Violation - Strike statute 35 USC 282

¹ Motion for Leave to File Amici Brief and Brief in Support of Petition of Robert W. Kearns for Writ of Certiorari. Intellectual Property Creators and United Inventors Association of the USA. Supreme Court Case No. 97-1860. http://www.heckel.org/SC/Kearns/kearns_amicus.htm

² Since the Patent Office makes money, the government would lose this revenue and, therefore, be reluctant to abolish this agency.

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