Inventors
Pressure
on the American Patent System |
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Part1:
The Japanese Influence
by
Ronald
J. Riley
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 inventor’s
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.
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