About an hour before the Senate adjourned to the House Chambers to listen to President Obama offer up a ‘jobs’ plan, the Senate voted 89 – 9 to pass the America Invents Act. Now the legislation will move to the President’s desk where he will mostly certainly sign it into law. It was passed with no amendments which means fee diversion is still alive and well (because where else could Congress make that type of money.)

It looks like the US will harmonize its patent law with the rest of the world and be a first-to-file system eliminating our unique first-to-invent system. The bill’s sponsors were extremely pleased. Senator Patrick Leahy, D-Vt. said “we could unleash the genius of our country and put our entrepreneur class to work and create jobs. It can let us compete with the rest of the world.” Leahy’s counterpart in the House, Rep. Lamar Smith, R-Texas, said it was the most significant change to patent law since the Patent Act of 1836 and hailed it as “one of the most significant jobs creation bills enacted by Congress this year.” (I guess they should have called the President to tell him they didn’t need his ‘jobs’ plan after all.)

They are right that it’s America’s entrepreneurs that are our future, but I find these comments laughable in light of the legislation that just passed. First-to-file won’t create tech jobs or help us compete. Patent systems don’t do that. Good economic policies do.

I guess no one told them that our entrepreneur class is competing with the rest of the world under the current system, or that first-to-file isn’t really good for bootstrapping entrepreneurs and start-ups. (Let’s be honest. It’s manufacturing and other repetitive task-type jobs that are moving to Asia, not our entrepreneurs, and that has nothing to do with our patent system.)

Of course, Congress didn’t take into account the disarray American business and the American legal system will be in trying to figure out how the new law will actually work either. Should I even mention the money companies will be spending on patent attorneys to figure it all out. (More on that next week.) I guess I do agree with one comment. There will be job creation. Unemployed patent attorneys should expect calls soon.

Maybe someone should tell Silicon Valley that first-to-file is finally here and the good times will be rolling there soon. Thanks, Congress for screwing up what worked, for not fixing what’s broken, and for taking credit for saving U.S. innovation!

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