Judiciary HomepageMr Chairman and colleagues, thank you for this opportunity to testify about my bill, H.R. 811, the Patent Term Restoration Act of 1997, and others before this committee.
This committee is discussing potential changes in the patent law. Never has there been a more stark contrast in the directions being suggested by those who have proposed legislative changes. The patent issue is of vital importance to the United States as a country and to its citizens as individuals. In fact, it will be the most important issue that this Congress deals with because of the long range impact on our citizens and our economy.
The technical nature of these patent reform issues can easily obscure the impact of what the 105th Congress does or does not do. It is our duty to make sure that every citizen knows what we are about in these proceedings, and how substantially different these approaches are. We must let the sun shine on the actions and intent of all those who would change a system that has operated very well for over two centuries.
The founders of our nation recognized the importance of patents to America's future economy and to its citizens as individuals. Even before adding the Bill of Rights to our Constitution, with their unique assurances of freedom of religion, speech and other individual liberties, our forefathers dealt with individual rights to patents. In fact the founders of our nation imbedded this right in the very first article of the Constitution, following only those sections which determined the structure of the Congress itself. In order to "establish Justice ... and promote the general Welfare", the drafters of this epoch document enumerated the several Congressional powers needed to preserve the union including their need :
" To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries"
With wondrous foresight, those who crafted this marvelous document recognized that the vitality and future of their foundling nation lay not just in its lands and resources, but in the unique individuality of its citizens which would give birth to inventions that would shape our economy... but could do so only if the inventors were assured of the rights to develop their creations, for their benefit and that of their fellow citizens. These rights were not similarly protected elsewhere in the world then, OR NOW.
That very protection, coupled with the unique innovativeness of Americans from our pioneer ancestors to present day inventors, has assured the United States of the majority of the world's patents. It has been the backbone of our economy; it has stimulated the development of processes, materials and equipments that have created our nation's wealth, have given our citizens the highest standard of living in the world, have allowed us to protect the cause of freedom throughout two world wars, and are now allowing us to explore our universe and our very being from Earth to outer space.
Other nations have tried to emulate our success and even our Constitution, but none have succeeded because some element of protection for the individual has been missing, either in their law or culture. We will continue our position of leadership in the free world as long as we protect ALL of the individual rights that stimulate innovativeness among Americans.
And so it was with considerable alarm that I saw the rights of American inventors given away in revisions to U.S. law that followed the international agreement (GATT) of 1994.
Instead of encouraging other nations to raise the standards of patent protection to those of the United States, which have been indisputably successful for the past 200 years, we allowed ourselves to be lulled into lowering our standards to those of countries which could not compete against us.
Instead of continuing the guaranteed protection of a patent for a term of 17 years from the time a U.S. patent is granted, we acceded to the self-serving motives of the "one worlders" by adopting the uncertain patent term used by our second-best competitors elsewhere in the world. In 1995, by adopting a new patent term of 20 years from filing the U.S. patent application, we have subjected our inventors to an uncertain and frequently shorter patent protection. This will virtually ensure economic harm, particularly to the individual or small-company inventor, and for what good end elsewhere? Certainly none in the United States.
My bill, the Patent Term Restoration Act, H.R. 811, will remedy that catastrophe, as I'll explain in a minute. However, I'm at least as concerned about new threats to our eminently successful patent system. Not satisfied with partial retraction of Constitutionally-based patent rights, the one-worlders of the political system, guided by our economic opponents in the world market, have a plan to destroy all initiative for U.S. inventors.
I did not make the decision easily to label H.R. 400 ( and its predecessor in the last Congress, H.R. 3460) the " Steal American Technology Act". Certainly the sponsors of this bill are honorable men, but perhaps so misled by 94 pages of complex technical jargon and cross-references, that they believe it will improve the patent system, and are intrigued by its 21st century glitter. But a time bomb is lurking in H.R. 400 as surely as the Year-2000 clock problem is waiting in our computers.
There is no justification to reconfirming the end of the right of Americans to a guaranteed patent term, and its replacement with an uncertain patent term
There is no way that U.S. inventors, or our nation, will be helped by the pre-patent-award publication provisions of H.R. 400. In contrast, this attack on traditional patent confidentiality provisions, offers an open invitation to every copycat in the world to steal the ideas of American inventors. It also is a particularly insidious form of "Corporate Welfare", requiring the small inventor to pay additional maintenance fees so that his confidential data can be published to reduce some corporation's research expenditures.
There is no reason to "harmonize" the U.S. patent system with that of the rest of the world when this means dragging down the rights of American inventors to the poor protection afforded their counterparts in Japan and Europe.
There is no justification for the proposal of H.R. 400 to radically change the entire structure of the Patent and Trademark Office (PTO), form a quasi-private business like the postal service, change the civil service status of the patent examiners , all in order to correct a few problems that can be corrected by the present PTO with modern and efficient management. The only motive, perhaps hidden from beguiled H.R. 400 supporters, is to make the PTO less susceptible to U.S. control and oversight and more subject to foreign influence.
There is no public benefit to "Corporatization" as envisaged in H.R. 400. A government owned corporation does NOT, nor can it ever, confer the benefit of "Privatization" which Congress has endorsed for other functions. There are functions still being performed within the government which can be contracted out to industry with savings that are uniquely achievable in the competitive market place. However, the issuance of patents is an inherently governmental function and not suitable for privatization.
Neither does this so-called "corporatization" provide insulation from legal liability in the usual way that a corporation protects certain individuals. The Government will still own PTO Corp. and be responsible for defending PTO in suits and liable for any damages.
I can conceive of no advantage in allowing PTO to operate under only "policy direction" of the Secretary of Commerce. H.R. 400 affords PTO with the specific powers to amend or repeal patent rules, its own bylaws, and rules and regulations including the interpretation data storage and retrieval and associated confidentiality... all with little oversight.
What purpose is served by permitting PTO Corp to open offices all over the world, a totally unnecessary diversion of manpower and resources hardly needed in this electronic communication environment... UNLESS you want to have the PTO more susceptible to foreign influence
Do you believe that a cost reduction will really occur when PTO is afforded unlimited authority to determine the need for any of its expenditures, to borrow, and to build new facilities without oversight by the Government and the defined audits and inspector general oversight of other agencies
Finally, why authorize PTO to accept gifts of money, services, or property, a provision that is not likely to inspire public confidence in this era of foreign influence in Government affairs via backdoor contributions
... and these are only a few of the unacceptable provisions of H.R. 400.
My bill, H.R. 811, The Patent Term Restoration Act, goes in exactly the opposite direction to H.R. 400. It is certainly more consistent with American traditions in the patent arena, and a lot easier to understand because it effects only a few changes . H.R. 811, would:
#1 - Restore American inventors' guaranteed patent term. It accomplishes this (in section two) by assuring the inventor of the longer of: (a) the historically afforded 17 year term from the time the patent is granted (the patent grant affording inherent protection against infringement); or (b) 20 years from the time of earliest filing ( an interval that could be longer than 17 years from grant but only for an inventor whose application is processed in an unusually short time.)
This last (b) option is consistent with practices in other countries, and with the minimum requirements of the international accords. There is no requirement in such accords for denying an American inventor 17 years to commercialize his or her conception. This guaranteed term has been the motivating factor, and the appropriate reward, for innovations that have made the U.S. the major source of inventions in the world, benefiting both our economy and quality of life.
#2 - Shore up the confidentiality provisions of the present patent law, while specifically defining those few "special circumstances" in which public interest may require publication of patent application data while the patent is pending. Under present law, all data relating to patent applications are held in confidence from the time of filing until the patent is granted. This patent-pending period is one of high vulnerability for the inventor, particularly the individual inventor or one who works for a small company. Normally the applicant is using all of his/her financial and intellectual resources to prosecute the patent, while simultaneously looking for a way to finance and otherwise provide for commercialization needed to will deliver benefit to the public while sustaining the inventor.
In the U.S. we value the contributions of individual inventors because they are the strength of our economy and democracy. That is one reason why we have been so innovative as a nation. Other countries do not favor individual inventiveness; they favor patent development and control in large companies in close cooperation with collectivist governments. Such an environment has led these nations to the practice of publishing all patent application data soon after the foreign patent application is made.
Despite the fact that the early publication is contrary to American interests, H.R. 400 and its predecessors would mandate publication of ALL U.S. patent application data shortly after filing, and well before the protective patent is granted. Moreover, the current patent law gives the Commissioner discretion to publish patent application data in undefined "Special Circumstances", interpreted in PTO regulations as instances in which it is - "necessary to the proper conduct of business before the [Patent] office" - and where the Commissioner believes such publication - "involves an interpretation of patent laws or regulation that would be of important precedent value".
In such an environment, it is imperative to preempt universal early publication of patent-pending data. We must also define and restrict the "Special Circumstances" allowing publication to those that favor the American public and the conscientious American inventor, rather than foreign companies and those multi-national corporations who look at publication of U.S. patent-pending data as a way of subsidizing their research efforts.
Section 3 of my bill, H.R. 811, provides for only three exceptions to the general confidentiality rule ( and also closes the door to any new pre-issuance objections):
Exception one would permit, but not require, the Commissioner to publish U.S. patent application data, but only to the extent ( as a maximum), and after the time, that such data is already in the public domain in other countries..
This exception is not burdensome to the inventor. If a person who files for a U.S. patent, also files for a foreign patent, some or all of his foreign application data will be published overseas, immediately or shortly thereafter. The inventor's technology is therefore made available to our foreign competitors, possibly in their language rather than English. They can immediately build on that technology. U.S. companies cannot do so until they obtain the patent application data in English. This "special circumstances" publication exception does not disclose any patent application data that the inventor has not consented to by foreign filing. The Commissioner can determine if U.S. interests are truly enhanced by publication of the foreign-filed patent data, can publish as much data as already made public in other countries, and can outsource the actual publication allowing the end users to pay for the costs. There is no "Corporate Welfare" in this.
Exceptions two and three are closely related. Both are provisions to publish data from those U.S. patent applications which fit the definition for the so-called submarine patents. However, publication will occur only after the Commissioner has notified the applicant and has afforded the applicant an opportunity to petition and demonstrate reasons against publication.
Under exception two, patents that have been pending in the system for more than five years receive automatic scrutiny to determine whether the public interest will be served by publication. However, there are seven categoric exceptions covering delays caused by circumstances beyond the control of the applicant.
Exception three also provides for publication of submarine patents, but catches them earlier in the process when a dilatory inventor requests delaying continuances for no bona fide reason.
Examination of the patent issuance data indicates that these "submarine patent" exceptions may be rarely needed, but they will serve serve the public's interest. They recognize that the primary thrust of the Constitution is to "promote the progress of science and the useful arts" for the benefit of the country, and as a necessary corollary it does so by "securing exclusive rights to inventors". If an inventor chooses to game the system by deliberately denying timely use of technology to the public, the inventor may benefit in ways not consistent with the Constitutional intent, and in the process may hurt U.S. interests. An inventor wishing to gamble on the advantage of deliberate delaying techniques can do so by keeping data a trade secret, rather than hiding within the protection of the patent system.
I believe that there have been only a handful of "submarine patents" among the hundreds of thousands of patents processed in recent years, and the trend is for these to diminish. This bill will torpedo any remaining submarines lurking in the system.
The confidentiality and publication changes proposed by H.R. 400 are aimed, not at preventing "submarine " patents, which is used as an excuse, but at the harmonizing U.S. patent law with Japan. I submit for the record an agreement signed by Patent Commissioner Bruce Lehman and his counterpart in the Japanese patent office.
I would remind my colleagues that over these last two years, I have offered over and over again, to include in my legislation any legislative remedies for a so-called abuse referred to as a " submarine patent". My only prerequisite was that it not destroy the guaranteed patent term in the process.
Tom Campbell was the only one who took me up on this offer, offered language which assures the elimination of submarine patents, and stands beside me today to oppose H.R. 400 and explain his suport of H.R. 811.
I also am joined today by Duncan Hunter, whose bill, H.R. 812 will deal with those few improvements needed in the infrastructure of the PTO to ensure its continued excellence. A key provision is the retention of the quasi-judicial status that these examiners presently have. I am proud to co-sponsor this bill developed to meet the needs of the professionals in that Patent Office who are the people most knowledgeable about what is needed, and to accept the morale support of these professionals for the bill which best serves their clients, namely America's inventors.
Our patent protections and rights have served our country and its people well.
Don't expect to harmonize our law with Japan's, and to drastically change the fundamentals of how technology is protected without terrible, unanticipated consequences. America did not become the world's greatest innovator for no reason.
Don't expect our country to stay on top when the fundamental laws and protections are changed.
H.R. 400 will become a catastrophe in slow motion. H.R. 811 will put us back on the fast track to leadership in innovation and technology development.
For more information, contact:
Rep. Dana Rohrabacher
House of Representatives
RHOB 2338
Washington DC 20515
Tel: (202) 225-2415
Fax: (202) 225-0145
INTERNET WEB SITE @
http://www.house.gov/rohrabacher/