Who is Behind H.R. 5980?

H.R. 5980 is a Bill "To amend Federal law to encourage the repatriation of jobs to the United States, and for other purposes." The bill includes three major tweaks to US patent law.

  1. Ending the publication of pending applications [as discussed here].
  2. Dramatically narrowing 35 U.S.C. 102(e) so that it only applies to patents that were subject to an international patent application.
  3. Giving "priority to the examination" of applications "made by" any "institution of higher education" or any "patent holding company affiliated with such an institution.”

Other portions of the bill would create several commissions and task forces to try to figure out how to bring jobs back to the US.

The sponsor of the bill, Frank Wolf is a Republican from north-west Virginia. Co-Sponsors include Randy Forbes (Republican from south-east Virginia), Daniel Lipinski (Democrat from Chicago), Candice Miller (Republican from northern Michigan), Hal Rogers (Republican from eastern Kentucky), and Rob Wittman (Republican from eastern Virginia).

The patent amendments appear out of the blue and have no logical link to repatriation. 

72 thoughts on “Who is Behind H.R. 5980?

  1. 71

    I want to bring out the secrets of nature and apply them for the happiness of man. I don’t know of any better service to offer for the short time we are in the world. (Thomas Edison, American inventor)

  2. 70

    Explanation We,welfare urban route roof through liberal trade ship flower always congress atmosphere though arise mother article court wear machine leg internal though holiday rather flow energy conference comment video spread direct front there her although size surprise strongly gold almost ensure drink private mind play brief dry few skill most partly fast appoint school remind code boy least strength hill hear grow about so job plenty reflect nobody club count carefully tone service aircraft hope build wash know defence search pick seek head candidate propose initiative provide around reply

  3. 69

    May I please have your attention:

    RE: Giving “priority to the examination” of applications “made by” any “institution of higher education” or any “patent holding company affiliated with such an institution.”

    VIZ: I am a patent practitioner. I have decided to ask my congressman to introduce a bill that would give “priority to the examination” of applications “prosecuted by” “me” or anyone “associated with me”.

    In the alternative, I will seek from Congress back cuts behind institution of higher education who receive “priority to the examination”.

    Should these not succeed, I will seek other forms of cutting per link to en.wikipedia.org

    YOU: When the time comes, I will ask for your support in this.

    Thank you.

  4. 68

    (pardon me if I don’t hold my breadth)

    Ya see, I can get away with not holding my breath in this (poorly unleveled) US of A – not sure I could say the same elsewhere.

    me quoting me (maybe I should hyperlink that)

  5. 67

    “and they don’t have to raise their kids beside a toxic waste dump”

    Can you say “Bhopal”?

  6. 66

    Don’t worry Chris – when wwe even the playing field all those toxic waste dumps will be properly taken care of.

    (pardon me if I don’t hold my breadth)

  7. 65

    We also need to continue to attract the best and brightest from India, China and Eastern Europe to come to America. Many of those super smart foreign students decide to leave the loser country they came from and become Americans, where their hard work and perseverance pays the most rewards, and they don’t have to raise their kids beside a toxic waste dump. “The American Dream” has always been the driving force of immigration, and this nation has reaped many benefits from that over the last 200 years.

  8. 64

    McDegrees in subjects such as communications and philosophy.

    thems liberal bastions – if we stop subsidizing them McDegrees, we lose some of our easier indoctrinated stooges, er um disciples.

  9. 63

    “because Americans can’t compete on a level playing field against the rest of the world.”

    Incorrect. Look at any international ranking of colleges: US schools dominate, and a majority of their students are American. The reason that the international students impress you is that only the very best of the very best are able to come to the US. You are not seeing the other 99%.

    If you want to create a better workforce, emphasize science and mathematics and stop state subsidization of McDegrees in subjects such as communications and philosophy.

  10. 62

    People respond to incentives – freakeconomics. Ergo anything you can do to provide additional incentives for students to pursue the hard sciences/inventive entrepreneur route as a rewarding $ profession/job driver v. having our best and brightest attracted to wall street $ rewards IMHO you will get some more of the former – which I would hope people would agree is more long term productive route to a high value sustainable wealth creating US economy. So the the extent that Wolf’s bill is helping address the problem of invention disclosures (patent publications) being mined by offshore entities and therefore diminishing the entrepreneurial opportunity for the inventor then its a good thing. Wolf BTW is a serious man, in a very safe seat. It is good to see that someone in congress is starting to get it.

  11. 60

    Did you hear that US students are by far no. 1 in only one thing? Confidence.

    OK 6 – stop braggin. Obviously, you all by your lonesome done skewed that stat, both uppin the con and destroyin the creativity.

  12. 59

    “Have you met an international student from India, China, or Eastern Europe? They are freaking smart. H.R. 5980 is just cheating because Americans can’t compete”

    LOLOLOLOL. Smart? Need some creativity and confidence up in this mo. Did you hear that US students are by far no. 1 in only one thing? Confidence.

  13. 58

    a stronger enforcement regime would go much farther than any of these proposed measures or any other measures or plattitudes. Bring back DOE, strengthen the presumption of validity through rigorous examination, end talk of post grant opposition, restore confidence in the entreprenurial process.

    Oh, and get the hacks (including many of the present day “IP” academics) out of the game…

  14. 56

    How about bringing jobs back to US by creating a talented work force by developing a better education system?

    Great idea. Except that the Teabxgger (read: Republican) Party thrives on ignorance and fear and therefore has no interest in promoting a more highly educated population.

  15. 55

    IANAE,

    It is easy to see when you leave your brains behind.

    Wouldn’t that encourage people to keep those applications pending as long as possible?

    Cept for the fact that applicants must respond within certain time limits – or face abandonment. Cept for the fact that asking for an RCE kills the clock. Your phobia of even appearing to attack the Office makes me think you not be a prof., but that you be a counsel in the Office, perhaps the BPAI strong-arm group. It seems like the plague to you to make examiners actually accountable for the work they do.

    An ugly side of you that I just gotta turn my head away from. Must be a socialist thing. That crrp be rotting your brains.

  16. 54

    can’t compete on a level playing field against the rest of the world.

    I got a better idea that all the tree huggers should love – Let’s even the playing field (ya know, since we can’t compete) and have every other nation adopt the business-constraining anti-pollution, minimum wage and tax and miscellaneous laws that companies here must follow – equalize the currency exchanges (sorry China – can’t play those games any more) and we will see exactly who can compete and who be left in the dust. Have you met the rest of the people from India, China or Eastern Europe? Do you know why the freaking smart ones come here?

    Wake up Sunshine.

  17. 52

    How about bringing jobs back to US by creating a talented work force by developing a better education system? Have you met an international student from India, China, or Eastern Europe? They are freaking smart. H.R. 5980 is just cheating because Americans can’t compete on a level playing field against the rest of the world.

  18. 50

    Why don’t we say that all infringement of claims that are noticed and that eventually issue without substantial change in scope are accorded mandatory treble damages from the date of notice.

    Wouldn’t that encourage people to keep those applications pending as long as possible?

  19. 49

    Maybe we need stronger provisional rights? (Then again, that discourages commerce and the advancement of technology for applications that probably have no chance of being granted).
    Posted by: PatentLawNewbie | Aug 26, 2010 at 03:55 PM

    Agreed. If publication continues, we need much better provisional rights. Why don’t we say that all infringement of claims that are noticed and that eventually issue without substantial change in scope are accorded mandatory treble damages from the date of notice. To level the playing field, a noticed party should have right to a post-grant opposition.

  20. 48

    TINLA IANYL,
    Just for grins you may be interested in graphing the following data. It gives US Jobs divided by 1000 in the first column and US patents in the second from 1963-2009

    jobs * 1000 patents
    1963 56116 48971
    1964 57487 50389
    1965 59583 66647
    1966 62528 71886
    1967 65407 69098
    1968 66805 62714
    1969 69438 71230
    1970 71176 67964
    1971 70866 81790
    1972 72445 78185
    1973 75620 78622
    1974 78104 81278
    1975 77297 76810
    1976 78506 75388
    1977 80692 69781
    1978 84595 70514
    1979 88811 52413
    1980 90800 66170
    1981 91031 71064
    1982 90557 63276
    1983 88981 61982
    1984 92657 72650
    1985 96353 77245
    1986 98710 76862
    1987 100655 89385
    1988 103728 84272
    1989 107133 102533
    1990 109151 99077
    1991 109001 106696
    1992 108312 107394
    1993 109725 109746
    1994 112474 113587
    1995 116378 113834
    1996 118188 121696
    1997 121231 124069
    1998 124628 163142
    1999 127480 169085
    2000 130781 175979
    2001 132469 183970
    2002 130591 184374
    2003 130266 187012
    2004 130420 181299
    2005 132453 157718
    2006 135075 196405
    2007 137067 182899
    2008 137941 185224
    2009 133549 191927

  21. 43

    Then it’s wrong. The US population graph suggests that the plots start at 100% and each hash mark on the left is an increment of 50%. On that basis, the world population plot ends at around 300%, which is way too high. Patent grants have nearly quadrupled, so they should handily outpace the world population.

    You’re right. Mea culpa. I’ll fix and repost it.

  22. 42

    It’s basically relative magnitude.

    Then it’s wrong. The US population graph suggests that the plots start at 100% and each hash mark on the left is an increment of 50%. On that basis, the world population plot ends at around 300%, which is way too high. Patent grants have nearly quadrupled, so they should handily outpace the world population.

    Also, the applications are offset upward by one increment, but their just-over-fivefold increase shouldn’t end that much higher than the grants.

    How would a scale on the Y-axis make the graph’s point any clearer?

    Two words: log scale.

  23. 41

    What is the Y axis on that graph?

    It’s basically relative magnitude. Imagine you have 3 graphs on transparencies and overlay them. The US patents granted, World pop, and US pop, all start out at the same point on the left for comparison purposes. The US patent applications are plotted as if on the same graph as US patents granted.

    For world pop, it starts out at 3 billion and ramps up to 7 billion.

    For US pop, it starts out at 180 million and ramps up to 310 million.

    For US patents granted, it starts out at about 50 thousand, and ramps up to about 191 thousand.

    For US patent applications, it starts out at about 90 thousand and ramps up to about 483 thousand.

    The raw data is here:

    link to factmonster.com

    link to uspto.gov

    link to en.wikipedia.org

    I suppose I could graph granted patents of foreign origin too, as if on the same graph as patents granted and patent applications.

  24. 40

    What is the Y axis on that graph?

    What difference does it make?!? How would a scale on the Y-axis make the graph’s point any clearer?

  25. 39

    “A patent is a deal that inventors make with Society to reveal the details of their invention in return for the exclusive right to make, use, and sell the invention (unless you are a NPE).

    Once the details are published Society (the USPTO) has no incentive to issue a patent.”

    There’s been a lot of posts stating this (quid pro quo, etc). I see arguments going both ways. The consideration is disclosure for exclusive right. Since it takes 3+ years for a patent to grant, if both disclosure and exlusive right happen at the same time, that might not be such a good deal for the public. Much of the time (at least in the computer field), 3 years later everyone already knew about it anyway (and you ahve the potential of retarding growth by those 3 years of non-disclosure, which is an eternity in the computer field).

    The counter-argument might just be, that’s the government’s fault for taking so long. Of course, that doesn’t take into consideration submarine patents (which would become a bigger deal again without publication).

    I haven’t thought this completely through. But at first thought, I don’t like the idea of non-disclosure. The sooner it gets out there, the better for the public. Maybe we need stronger provisional rights? (Then again, that discourages commerce and the advancement of technology for applications that probably have no chance of being granted).

  26. 38

    I dont understand this at all. How can 102(e) apply to only international applications? If party A files on an invention, and then months later party B files on the same invention (before A’s application is published), what happens?

    The sponsors apparently have no clue about patent law. This sort of thing can be dangerous.

    Posted by: patent leather | Aug 26, 2010 at 01:03 PM

    So how would this work, exactly? X files an application in 2011 with disclosed and unclaimed matter. Y files an application in 2012 claiming the previously unclaimed matter, and is issued the patent given the repeal of 102(e). X then files a continuation claiming the previously unclaimed matter, getting priority to 2011. Do we revoke Y’s patent in an interference? Have two patents with the same claim? Give Y priority?

    Posted by: TJ | Aug 26, 2010 at 01:32 PM

    No problemo – interference city with the earlier filer being the senior party — meaning he wins 99.99% of the time.

    Might even be provoked by a third party via reexamination.

  27. 35

    Well, since we’re graphing anyway…

    Let’s offset the number of applications from the number of grants by about three years, and offset applications from the population graphs by about 20-25 years to give all those inventors time to grow up. Then, let’s plot them all on a log scale so it’s easier to read off the percentage increases. Also, overlay G20 population since the countries that have all the babies don’t generate that many patent applications.

    Or we can just look at the mildly aberrant 1990s and realize that other factors are way more significant than population growth.

  28. 33

    Just for LOLs, I went ahead and made a graph. It’s kind of interesting and not exactly what I expected, but close. One notable factoid is that the percentage of US Patents granted of foreign origin rose from about 25% in 1963 to about 50% today.

    link to i1232.photobucket.com

  29. 32

    More people should equal more inventors seeking patent protection.

    Maybe eventually, but usually the “more people” don’t get down to any really serious inventing for a couple of decades after they figure into the population numbers, and most of the “more people” are born in countries and parts of countries not exactly known for their technological innovation.

    Also, are you counting total patent grants, unique inventors, or some other metric? If fifty patents are granted to the same inventor, that can hardly be attributed to world population growth. But what if a dozen people collaborate on a single patent?

  30. 31

    And yet there are more patents issuing every week than ever before in the history of human civilization.

    As one would expect as the population explodes. More people should equal more inventors seeking patent protection.

    Yet, I do not think that the number of patents issuing has increased as quickly as the population has increased. I’d like to see a graph of patents issuing per annum normalized for world population growth and for US population growth. I would expect to see a negative slope to that line, especially in the past decade, and a failure as yet to recover to the level one would expect by extrapolation from the historical grant rates.

  31. 29

    So how would this work, exactly? X files an application in 2011 with disclosed and unclaimed matter. Y files an application in 2012 claiming the previously unclaimed matter, and is issued the patent given the repeal of 102(e). X then files a continuation claiming the previously unclaimed matter, getting priority to 2011. Do we revoke Y’s patent in an interference? Have two patents with the same claim? Give Y priority?

  32. 28

    Chris: “If this makes it to a full vote with those 3 “tweaks” intact”

    The sponsor of the bill is a Republican in a Congress run by Democrats. This bill isn’t making it out of committee, and they probably won’t even hold a hearing on it.

  33. 27

    About a third of their total revenue, for virtually zero effort.

    Let’s take away 1/3 of PTO’s ~$2 billion budget and see what happens.

    Oh wait, Congress already tried that . . .

  34. 26

    Patent maintenance fees are a huge portion of PTO’s income.

    About a third of their total revenue, for virtually zero effort.

    But they don’t grant patents to get those applications published. What does the PTO care whether or not your application is published? They only do it because it’s mandated by the statute.

    The idea that the PTO somehow feels less inclined to grant a patent because the application has already been published is laughable.

  35. 25

    Once the details are published Society (the USPTO) has no incentive to issue a patent

    That might be true if Society were only dealing with a single patent application. But real life is more complicated than that.

    Posted by: Cy Nical | Aug 26, 2010 at 01:09 PM

    I was about to post essentially the same thought. Patent maintenance fees are a huge portion of PTO’s income. In reality, PTO has to grant some patents or it “goes out of business.”

  36. 24

    Looking only at tweak #3, this seems interesting.

    University research is conjoined with a lot of tech startup companies. The university shares the patent assignment with its former professors/students in exchange for footing the lion’s share of the bills for research and IP costs.

    However, big business also donates a lot of money to universities to get their own research done. Major corporations often sponsor professor chairs, and often collaborate with univerities to buy expensive scientific equipment, for example. It makes a lot of business sense for major corporations to avail themselves of the scientific equipment and skilled labor that the university maintains.

    So it would seem to me that this provision does not necessarily favor small companies and universities over big business, given the heavy research investments and the fact that the small companies (once they leave the nest of academia) are less likely to co-assign to a university. However, it would seem to favor investment in U.S. universities, at the expense of foreign entities.

    Additionally, this provision would require some legal definition of what is any “institution of higher education” or any “patent holding company affiliated with such an institution.” For example, IIT Industries has many tech companies under its umbrella. So does ITT Tech (which does offer some bachelor’s degrees) count as an institution of higher education if it is a co-assignee? Or on a funnier note, how about McDonalds’ “Hamburger U?”

  37. 23

    Once the details are published Society (the USPTO) has no incentive to issue a patent

    That might be true if Society were only dealing with a single patent application. But real life is more complicated than that.

  38. 22

    No One Once the details are published Society (the USPTO) has no incentive to issue a patent.

    And yet there are more patents issuing every week than ever before in the history of human civilization.

  39. 21

    It seems to me that it’s easy for the uninitiated to be misled when looking only at 10 of 11 facets of the total issue. But the reality is that the current state of affairs has the promise of patent patent protection too weak to do what it is supposed to do, while leaving many of the “lesser evils” in place as annoyances that serve only to fuel outcries to render the promise of patent protection ever weaker.

    Meanwhile other people make hundreds of millions of dollars off their valid, enforceable patents.

  40. 20

    I dont understand this at all. How can 102(e) apply to only international applications? If party A files on an invention, and then months later party B files on the same invention (before A’s application is published), what happens?

    The sponsors apparently have no clue about patent law. This sort of thing can be dangerous.

  41. 19

    You know, if I put on my “Patent Fairness” pocket protector, my “Don’t Be Evil” Google Glasses, and my Red Hat, and look at all of these issues in a vacuum, it’s easy to get riled up about “teh monopolies” and “teh trolls.”

    But then I recognize that, knowing what I do from the experience of practicing patent law for ten years, if I came up with “teh cure” for “teh cancer,” and I could realistically keep it as a trade secret, I’d totally opt for trade secret protection.

    It seems to me that it’s easy for the uninitiated to be misled when looking only at 10 of 11 facets of the total issue. But the reality is that the current state of affairs has the promise of patent patent protection too weak to do what it is supposed to do, while leaving many of the “lesser evils” in place as annoyances that serve only to fuel outcries to render the promise of patent protection ever weaker.

  42. 18

    A patent is a deal that inventors make with Society to reveal the details of their invention in return for the exclusive right to make, use, and sell the invention (unless you are a NPE).

    Once the details are published Society (the USPTO) has no incentive to issue a patent.

  43. 17

    Re: “narrowing 35 U.S.C. 102(e) so that it only applies to patents that were subject to an international patent application” [aka PCT]
    Let’s think that one through [I wonder if they did?] Would not that mean that foriegn applicants would get earlier defensive protection benefit dates than U.S. applicants, to be able to kill more U.S. applicants? And create more interferences with disadvantages to U.S. applicants?

  44. 16

    I’m not an expert by any means, but If I had to guess I’d say that this is mostly just a mid-term election year tactic. “We created a jobs bill while our opponents were focusing on ___ instead. We tried to fix the broken patent system! Re-elect us!”

    If this makes it to a full vote with those 3 “tweaks” intact, while far more useful patent reforms have been sidelined, I will be both stunned and incensed. Anyhow, history tells me that this bill’s chances in the Senate are slim and none, and Slim just left town.

  45. 14

    IANAE, so if it published abroad, or as a PCT, what is the problem?

    English?

    We could require that all US applications containing a priority claim to a jurisdiction that publishes, be published in the US.

    Does that help?

  46. 13

    As I said yesterday, we could fix the problem for most people by simply making it a default rule that patent applications will be maintained in secrecy,

    Patent application publication isn’t a problem for most people, Ned.

  47. 12

    As I said yesterday, we could fix the problem for most people by simply making it a default rule that patent applications will be maintained in secrecy, and provide for optional publication.

    This is the PTO, not Facebook.

    Secrecy is already available, and it doesn’t make sense to make secrecy the default state when most applications are filed by foreign applicants who have likely filed in countries that publish pending applications, and even many US applicants also file abroad.

    Besides which, nobody seems to be able to explain why 18-month publication is inherently such a big problem, particularly since it’s good enough for the rest of the world. The main complaint seems to be “my application got published and I don’t have my patent yet”. We can fix that problem (in theory) by giving you your patent quicker, but it’s still going to get just as published and just as copied.

    As I said yesterday, if you don’t want your invention made public, maybe the patent system isn’t for you.

  48. 10

    As I said yesterday, we could fix the problem for most people by simply making it a default rule that patent applications will be maintained in secrecy, and provide for optional publication. Those who wish to publish their applications, could. We could further provide, if we’re going to eliminate the 102E effect of patents, to allow publication as early as possible after filing.

    One colleague of mine suggested that secrecy be maintained at a cost – providing a small fee that escalates every year that a patent application remain secret. We could modify this proposal by requiring the fee only in RCE’s, and in continuations and divisions.

  49. 9

    Very interesting proposal on the whole. One of the main arguments for publication of patent applications was the problem of 102(e). The problem was the uncertain date that a patent would issue and be published – for when it was published it became prior art not only as of its publication date, but as of its filing date. This would throw into uncertainty patents that had previously issued and which may now be invalid over the secret prior art.

    Simply eliminating the secret prior art, though, somewhat solves the problem.

    I suspect though, to be fully effective, the legislation should address section 102(g) as well.

  50. 8

    It wasn’t an organization, it was Nyarlathotep and one of his 1000 masks or a dumb lobbyist. I think Nyarlathotep was more likely though.

  51. 4

    There should be a ban to prevent retards from holding public office

    Unfortunately, there’s a reason why they are called “representatives”.

  52. 3

    There should be a ban to prevent retards from holding public office

    Or at least some kind of elaborate system whereby the people get to decide who they think is appropriately qualified to represent them in Congress.

  53. 1

    The patent amendments appear out of the blue and have no logical link to repatriation.

    says you.

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