American innovators beware

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The American patent system, although rarely recognized for the role that it plays, has been a tremendous factor in the success of our country. It made possible the technological lead that has given us the edge over competitors and enemies. Yet, there are powerful forces, especially in the electronics industry, that would dramatically change, if not destroy, the patent system that has served us so well for over 200 years.

In 1997, a ragtag bipartisan coalition barely turned back a legislative attack that would have obliterated the rights of small inventors. At the last minute, an amendment to “protect the little guy,” offered by Rep. Marci Kaptor, saved the day. The proposed reworking of our patent system was being justified by the supposed necessity of harmonizing our laws with those in Europe and Japan. Individual inventors in those countries are vulnerable and are routinely smashed into submission and lose their intellectual property rights to powerful corporate shoguns, the “big guys.” Under those other patent systems, that so-called reforms would have us emulate, crucial technological breakthroughs are few, as compared to the achievements of our inventors.

Our own big guys were defeated in 1997 and in 1999 with Rep. Howard Coble’s leadership, a compromise bill was passed that dealt with deficiencies in the patent office without undermining the rights of American inventors. That should have taken care of it. But now the big guys are back, reneging on the compromises of 1999. The vehicle of this larceny is H.R. 1908, which if it were a film script, should be titled the “Steal American Technology Act: The Sequel.”

What are the issues? The United States has operated for 200 years under what is called a “First to Invent” principle. The rest of the world operates under a “First to File” system, under which the fastest to file paperwork is granted the patent, regardless of whether he or she was the first to actually invent the patented product. Such a fundamental change will lead to an avalanche of incomplete applications undercutting the little guy, who doesn’t have the financial resources for multiple filings.

Traditionally and currently, those applications seeking patent protection in the United States exclusively know their discoveries will be kept secret until the patent is granted. Perhaps most disturbing, H.R. 1908 requires all patent applications be made public on the Internet for anyone to view 18 months after they are filed, even if the patent has not been issued. If the corporate elite get their way, patent thieves here and in lawless countries like China will have a field day.

Publishing applications is a direct shot at the small inventor, who cannot hire an army of lawyers to go after thieves who will now be handed all the details even before a patent has been issued. It should be noted that Japan, which publishes applications before patents are issued, has reported that its patent Web site receives 17,000 hits a day from China and 55,000 from Korea. Why do we want a system like that? Why do we want China to have even more access to our cutting edge technologies?

Another proposed change in H.R. 1908 is the creation of a new review process, allowing for challenges to patents that have already been granted. The leverage this would give to large companies with an array of lawyers is evident. Small inventors will be harassed and bogged down until they eventually surrender to deep-pocketed opponents.

Yes, the patent system needs to be made more efficient. Currently, the Patent Office has a backlog of 800,000 applications. It is estimated that it takes 31 months for a patent to be considered. We should look for ways to decrease this backlog and ensure that inventors have a speedy review of their applications. We need, for example, to train examiners and increase their number. We need to have greater protection against the foreign theft of our intellectual property. However, the legislation being foisted upon us, H.R. 1908, has nothing to do with fixing the system. It has everything to do with weakening the rights of the small inventor, using problems at the Patent Office as a screen to mask this power play.

Why is this happening?

The electronics industry does not want to pay royalties. That’s really the bottom line. We’ve seen this from the time RCA’s David Sarnoff ripped off Philo Farnsworth over the patent rights to the television picture tube, a fight that went all the way to the Supreme Court. In a tribute to American justice, Philo Farnsworth, the personification of the little guy, won over a corporate Goliath headed by a bully.

There is a statue of Farnsworth in our nation’s Capitol. Congress shouldn’t let the would-be technology thieves of our day change the law so the Philo Farnsworths of our era will be smashed into submission buy current and future big guys and bullies. If we change the rules like that, the American spirit of innovation will evaporate, and America, not just nerdy inventors, will lose, big time.

Rep. Dana Rohrabacher, California Republican, is a senior member on the House Science and Technology Committee.

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