Statement of
Paul Heckel
Independent Inventor
Submitted to the
Subcommittee on Courts, the Internet, and Intellectual Property
of the
House Judiciary Committee
June 20, 2002
OVERSIGHT HEARING
ON
PATENT REEXAMINATION AND SMALL BUSINESS INNOVATION
Intro -- IPC is
Technology patents provide costs nothing to US.
Points made in our Zurko Brief
Small guys disproportionately inventive
Insider outsider needed to get justice
Same insider outsiders observed in death penalty cases.
One of our signatories was Nobel Economist Franco Modigliani - issues are of economics
He Peruvian Economist Hernando de Soto
Why capitalism has not worked in third world
Problem is Third world has Bell jar of laws works for the rich, poor faced with inability to capitalize their property in deeds.
Example: Egypt to register land takes 77 bureaucratic steps, 41 agencies, 5-14 years
Major problem is lawyers “No group - aside from terrorists - is better positioned to sabotage capitalist expansion. And unlike terrorists, the lawyers know how to do it legally.”
“The difficult is that few lawyers understand the economic consequences of their work”
My experience of reexamination
10 years comes out of my 17 year patent term
Difficult to pursue business, attract investors, plan without clear understanding of what patent rights are or even when will be clarified.
During 10 years, Technology and competitors advancing
Having won reexam, now faced litigation
Small inventor must almost always face the deSoto complexity of litigation
Laws often unambiguous allows bias to flood in
Reexamination and litigation often take forever.
Zurko and DNA studies show bias against outsiders, those outside the bell jar.
Economics of regulation suggest regulators protect insiders, keep out outsiders appointees likely to be industry insiders (George Stigler)
Federal Circuit is captive regulator
In Zurko held for DeSoto complexity de novo review rather than simpler APA review
In Festo held for DeSoto complexity to amend patent
Many other decisions (often unpublished) are anti outsider.
Supreme Court came down hard on Federal Circuit as It “chose to ignore earlier” in unanimous decision.
Recommendations if do something
APA Standards arbitrary and capricious
Extend period of patent by time of appeal for both reexaminations and litigaton (Drug companies get extensio9ins for waiting for FDA approval)
Why is this not being considered by a subcommittee of Commerce or Science
Issues are those of business and economics
Cited 3 economists (De Soto, Modigliani, Stigler), 2 of whom are Nobel Laureates, no lawyers
By putting patent issues in judiciary Congress signals to industry that the issues are legal and should be left to the lawyers-- the creators of DeSoto complexity. This only increases Desoto Complexity