|Pressure on the American Patent System|
As an inventor, I must speak out about multi-pronged attacks against our patent system by foreign paid American lobbyists and law firms, and by multinational corporations. America's founding fathers recognized that innovation is crucial to a free enterprise system. Foreign governments and multinational corporations have found allies in the USPTO. They are spending large sums of money to change American patent law. Japan is one of the leaders, but by no means is it the only foreign government trying to influence our lawmakers to make changes that are not in America's best interest. It is important that we not compromise our country's prosperity by allowing foreign interests to weaken our patent laws.
A bargain was made during the 'mutual understanding' (in January, 1994) between USPTO Commissioner Lehman and Japan to make a number of changes to our patent system. Some of those changes have been buried in GATT. This deal is a result of a trade with Japanese negotiators, who offered the right to file American patents in English on the condition, that a Japanese language application be filed within 60 days and a limited right to correct translation errors, in exchange for the 20-year from date of filing language.
Another agreement between the late Commerce Secretary Brown and the Japanese was made (in August, 1994), to publish American patent applications 18 months after filing and to allow third parties to participate in re-examination proceedings.
Neither of these agreements is binding and there is considerable question as to whether Brown and Lehman had the authority to enter into such agreements. It is also interesting that both Brown and Lehman have worked as lobbyists for the Japanese in the past. Many inventors feel this is a serious conflict of interest, could these individuals' actions be motivated by future employment opportunities?
Results of previous deals with Japan over many years should have taught the United States that we never get what we bargained for. I see no benefit for Americans in this deal. Most American inventors cannot afford to file foreign patents and those that do find that it is almost impossible to enforce them.
Jack Kilby of Texas Instruments is one recent example of Japan's unfair treatment of American inventors. He invented the monolithic integrated circuit. The Japanese office held up the issuance of his patent for 29 years after its release, Japanese courts then ruled that it did not apply to current chip design.
The Japanese have been studying America's educational system for years, attempting to understand what makes Americans so much more creative than the Japanese. Americans make many breakthrough inventions. Japanese inventions are usually incremental or are small improvements in pre-existing technology.
Japan has demonstrated the ability to successfully commercialize concepts that the U.S. and other western countries have created with breakthrough inventions. Their solution to the problem is to weaken our patent laws, so they can take advantage of our creativity.
A recent article in Japan Times Weekly called Intellectual Property Rights Accord with U.S. Said Necessary, made it clear that changes to the U.S. patent system are important to "facilitate transfers of technology and related investments from advanced economies to the Asian nations, which would help their economic development". Both the 20-year provision and the change to section 104 of the GATT, enabling legislation allowing foreign non-published evidence of when an invention was conceived, are very detrimental to small business and individual inventors.
I have a healthy respect for the Japanese. They are experts at marketing and manipulating politics. They consider both when promoting their interests. They are willing to spend large amounts of money to promote their interests and they do it consistently over a long time frame. It is well known in Washington that people who promote Japan's interests will be rewarded after they leave office. It is no wonder that officials often promote their agenda during their last term.
CHANGES UNDER GATT
The GATT enabling legislation changed America's patent term from 17 years from date of issuance to 20 years from date of filing. This change's net effect shortened the usable life of a patent. That is especially true of the most significant ones that often take a decade or more to issue. For important patents the majority of the income is generated near the end of the term. Loss of just two years of term for such a patent can easily cut the total income by half, loss of ten years would likely mean almost no income. Traditionally a patent received a guaranteed term of 17 years in exchange for disclosing the invention. This policy has served America well for over 200 years. The twenty year language was also included in (103rd congress) S. 1854, H.R. 4307, S.2368, and H.R. 5110.
Prior to 6-8-95 foreign proof of inventorship within the United States was not allowed except where such proof had been published. GATT changed our laws (Section 104) to allow worldwide proof of inventorship. This is going to create many more interferences, which will be extremely difficult to investigate. It will be much easier for multinational companies to avoid compensating American inventors by citing obscure evidence. It also opens the door for large-scale fraud by multinationals, which will be next to impossible to prove. My personal experience has been that large corporate interests often commit fraud to avoid compensating inventors.
OTHER PENDING CHANGES
Other changes to our patent law have also been proposed in several other pending bills. These changes in their totality will cause far greater damage than the threat represented by each alone.
"Early publication" calls for the patent application to be published 18 months after filing. This will encourage interference with a patent by giving potential infringers access to the information before it issues, and will make it much easier for an infringer to fraudulently claim prior user rights.
The published information will be used by dishonest entities to bring the invention to market ahead of the inventor, there by denying the inventor the profits that could be used to defend the patent against infringers. Loss of that profit coupled with the expense of defending patent rights would return America to the conditions we had a decade ago where large corporations with impunity took most inventors property rights without compensation. Early publication will also allow pre-issuance opposition of patents due to an existing provision of American patent law called the "Public Use Procedure". Adding insult to injury is the fact that inventors will be charged an increased fee to publish their patents. (103rd congress) S. 1854, H.R. 4307, (104th congress) H.R. 1733, H.R.3460, and introduced in H.R. 400 / S. 507 in the 105th congress.
"Prior User Rights" says that anyone who claims that they have secretly developed an idea can use it royalty free. This will prevent someone who obtains a patent covering the idea from collecting royalties from any prior user. Since there is no requirement that they publish to establish the right of prior user this will encourage large scale fraud by infringers, who want to establish their right to use the idea to avoid compensating the inventor. I believe that adoption of prior user rights will cause so much litigation that we will have to adopt "First to File". (103rd congress) S.2272, (104th congress) H.R. 2235 H.R. 1733, H.R.3460, and introduced in H.R. 400 / S. 507 in the 105th congress.
"Third party participation in reexamination" would allow third parties an active roll in reexamination of patents. Currently a third party can request a reexamination but only the inventor and patent examiner are active in the process. If adopted, large businesses will be able to bring their full resources to bear against small entities. They could mount a series of attacks through fourth parties and tie the invention up for many years. This is especially insidious when considered with the patent term starting at filing. (103rd congress) S. 2341, (104th congress) H.R. 1733, H.R.3460, and introduced in H.R. 400 / S. 507 in the 105th congress.
All of the bills; H.R.1659, 1732, 1733, & 2235 were combined by the committee into H.R.3460 and released 5-16-96 in the 104th congress. The same provisions have been introduced as H.R. 400 / S. 507. The proponents of this bill actually had the gall to call it the "Inventor Rights Protection and Patent Reform Act of 1996". This bill is not about protecting inventors rights, it is about destroying most of the inventors' rights. It was written by and for multinational business interests, specifically so those interests could return to appropriating inventions and crushing inventors as they did before the formation of the CFAC. The Circuit Federal Appellate Court is a special court for patent cases formed about a decade ago.
All of the changes cited have tilted the playing field in favor of those who copy. The Japanese have always been very good at copying. And I believe that is why they are lobbying so hard for these changes. The United States has always been good at making major technological breakthroughs. And a breakthrough patent's protection is going to be disproportionately weakened by the changes.
These changes will favor those who make small incremental improvements in technology at the expense of those who make more significant breakthroughs. They will favor large companies over startup companies, and favor companies with short-term management goals over companies that plan for long-term goals.