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The Honorable Christopher S. Bond
U.S. Senator from Missouri and
Chairman of the Senate Small Business Committee
258 Russell Senate Office Building
Washington, D.C. 20510
Wednesday, March 11, 1998
Dear Senator Bond:
Each day, the pro-S507 lobby issues another explanation for why the US should destroy its 200 year old, not-yet-broke patent system.
Small inventors and their organizations are hard pressed to respond to the voluminous outpourings of propaganda by the pro-S507 lobby. Perhaps the pro-S507 arguments should be examined carefully, one at a time.
Here's a recent one:
IPO'S 100 REASONS FOR PATENT REFORM (S.507) — Reason #3. The prior user defense will support U.S. manufacturing by grandfathering firms that independently develop and commercialize an invention in the U.S. before someone else files for a patent on the same invention. [Posted 3/11/98 at http://www.ipo.org/whatsnew.html]
Sounds fair. Right?
No. It is a misguided cow of the same ilk that burned down Chicago. The "public use" and "on sale" provisions of 35 U.S.C. §102 already protect those who have independently developed and commercialized an invention in the U.S. before someone else files for a patent on the same thing. S507 does not serve this innocent-sounding purpose.
Instead it is aimed at protecting those who have not commercialized an invention but have instead chosen to keep it and its benefits secreted away from the public.
We all too often forget that the US Constitution directs the Congress to promote the "general welfare" (see preamble) and not the treasures of a select few in the private sector. To this end, Article I, Section 8, Clause 8 directs the Congress to "promote the sciences and useful arts".
S507 will do the opposite. It will suppress the advancement of the sciences in this country.
Here's how it plays out: A scientist in one of the labs of Monopolistic Company XYZ, (let's call him or her, Dr. X) comes up with a breakthrough.
Unfortunately, the breakthrough will ruin a highly profitable, current technology of the company's. What does Monopolistic Company XYZ do? Hides Dr. X's invention under the rug as a trade secret until pushed into revealing it to the public many years later. XYZ milks its older technology as long as possible. When push finally comes to shove, XYZ plans to argue that it has always been engaging in further "substantial" development of the suppressed breakthrough.
Another scientist in one of the labs of Startup Company ABC (let's call him or her, Dr. B) comes up with essentially the same breakthrough at a later time, but much too soon for the likings of XYZ. Unlike Monopolistic Company XYZ, it is the intent of Startup Company ABC to bring the fruits of this invention to the public as soon as possible. But ABC would like some protection for all the work they have done. So they immediately file a patent application. And because this breakthrough has never been invented by one who has not intentionally suppressed and concealed it, Startup Company ABC gets a valid patent.
Startup Company ABC goes into competition against the older technology of Monopolistic Company XYZ. Thanks to the prior-use clause in the the just-passed S507, Monopolistic Company XYZ claims that it has been continuously engaged in "substantial" development of the suppressed breakthrough. XYZ crushes Startup Company ABC in the market place like an elephant accidentally stepping on a gnat. (If according to an alternate story line, XYZ had not yet possessed the trade secret, it will instead acquire some other company that is willing to swear it had the trade secret. In either case, ABC is dead.)
Too bad, that's business. But what about the "general welfare"? During the interim, the US public has been deprived of the benefits of the breakthrough. Other scientists could have taken Dr. X's suppressed invention and built upon it.
Remember the story about the invention of the "transistor" that led to the "integrated circuit" that led to desktop computers that led to the "Internet"? If not for that serendipitous chain of events (and invents), the US economy might be in ruins today. S507 slows the chain of inventions.
Worse yet, it chills the motivation of small inventors such as Dr. B of our story. Without competition from the likes of Dr. B each breakthrough will be suppressed even longer.
Please think more deeply. Don't fall prey to the siren song of the so-called "Harmonizers" amongst our ranks.
Very truly yours,
Gideon Gimlan
(Registered Patent attorney, Los Gatos, California)
P.S. Although I am a member of a law firm and represent inventors of both the solo kind and those that work for large corporations, these views are entirely my own and not that of any constituency.
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Gideon Gimlan
Fliesler, Dubb, Meyer & Lovejoy
(408) 748-7300
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