ED Column #87, original

New Electronic Design Column

Dear Readers: Those in Washington who are selling out our patent system to foreign interests are rushing a new bill (HR 400) through on a "fast track" basis. Because HR 400 will most likely be voted on before my new Electronic Design column can run, I am taking the unprecedented step putting it up on my page before it runs in the magazine. Here is an unedited preview copy of column #87.

John D. Trudel, May 12, 1997

Thank you for all the support during the patent wars. I will try again to close the topic with a summary and move on. The patent wars will, of course, continue.

The bills in Congress, HR 400 and S. 507, are lengthy and linked on my web page. They totally rewrite and sell-off our patent system. There are five key points.

First is to shorten the term of patents. This damage was done in 1994, and we’ve not been able to repair it. In the past, administrative delays were buffered by the fact that patent term was 17 years after issue. Term is now a shorter 20 years after filing.

Second is to publish patent applications 18 months after filing. This gives your trade secrets to your competition before you have a patent to protect them. In the past, these were secret unless and until a patent issued.

Third is that even before your patent is granted, your competitors can oppose (after they have read your trade secrets) your pending patent application, thereby shortening the term of your patent. This "reexamination" is new and unique.

Fourth is that huge firms can focus the full fury of their litigation attorneys against you to oppose your patent in the Patent Office. In the past, hearings were private matters between you and the patent office. Parts of the new bills make the PTO a private entity. Parts legalize [foreign] gifts and donations. This is all new.

Fifth is that the competition will have your attorneys running all over the world to take depositions, review foreign documents in foreign languages, and take evidence under foreign legal systems. This too will come out of your patent term and pocket.

The details are endless. Reexamination can continue even after you get a patent, just by paying fees to the patent office. Prior rights accrue to anyone in the world who has used your invention first. Perjurious witnesses will be prosecuted under the laws of the foreign country which will receive free use of the patent if prior user rights are obtained.

Many think that it will take the courts decades to sort out all the changes. Some expect Constitutional challenges.

The big guns are thundering. Bruce Lehman told the San Jose Mercury News that critics of his bill are "in the Timothy McVeigh category." An April 15 missive to Congress from the Executive Office of the President said the administration "strongly opposes" restoring our patent term because "it would undermine the internationally agreed upon rule for a patent term of 20 years from the filing of the patent application."

Unfortunately, many of America's large multinational firms are lined up on the Japanese side. Astonishingly, even the venture capital community is now neutral.

If Lehman succeeds, the independent inventors and small firms will collapse first, bankrupt, retired, or sold off cheaply. It may take a few years for venture capital to become a desert. Still, by the end, I predict that the Japanese redesign of our patent system will strangle even the largest U.S. technology firms.

"We create our own future," dear friends. We could work together to improve our nation’s infrastructure to create jobs and gain competitive advantage. Instead, we choose to allow foreign interests in Washington to take control, and we fight over the table scraps. That is guanxi capitalism and we allow this corruption at our peril.

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