Unofficial history of the Patent Wars (1993-99):

• 1991. A very smart Japanese (one at their top levels of trade policy setting), Fumio Kodama, publishes a book saying the key to continued growth in Japan's economy is to take a new view of technology. Kodama notes that wealth accrues to those who apply technology, not those who create it. (For those who seek deeper understanding, the original Japan that can say No! - legendary, unauthorized, and banned in the West - reflects early [late '80s] Japanese ponderings on the consequences of world economic leadership. Morita's chapters show a deep, possibly sympathetic, understanding of U.S. weaknesses.)
  

• 1991. Kodama's book wins the prestigious Sakuzo Yoshina prize for the best book in the social sciences - the first time that an engineer had ever won this coveted award.
  

• 1993. Japan writes a white paper saying that the U.S. patent system is "unacceptable." (That's pretty bold: Our Constitutional right is "unacceptable.") The Japanese keritesu see our patent system (correctly) as a major barrier to accomplishing their economic objectives. The primary goal is to secure cheap access to U.S. technology and to slow or shut down our innovative "gazelle firms" (those that are creating the most new jobs and capturing the new high-growth industries). A most subtle divide-and-conquer strategy is devised to position this foreign assault as merely a conflict between our large and small domestic firms.
  

• Open war on the U.S. patent system is declared on October 7, 1993. Bruce Lehman, Commissioner of Patents, holds public testimony for his "select panel on patent harmonization." Notes: HARMonization, in the limit, sells off government functions to international interests. It seems to involve 1) appointing a Czar with broad powers, 2) selling off the function, and 3) removing oversight of the Czar and the function from Congress and the U.S. courts. Europe has harmonized extensively. Also, various international organizations, like the UN's WIPO, had been nibbling at U.S. patent law for a decade before Japan declared all-out war. Everyone wants cheap access to U.S. technology. 
  

• 1994. The patent sell-out letters of agreement are signed by Ron Brown and Bruce Lehman. Their first attack on our patent system succeeds, via a clause snuck into the voluminous GATT treaty, unnecessarily shortening U.S. patent term to 20 years after filing" (versus 17 years after issue).

• 1995. John D. Trudel writes his famous Upside column and is drawn into the Patent Wars.
  

• 1995-1996. On September 29, 1995 the highly regarded, 23 year old, non-partisan Congressional Office of Technology Assessment is suddenly closed, allegedly as a cost saving measure. This leaves Congress without objective professional counsel on technology issues, in an age where technology is crucial. The watchdogs are silenced, and bills are introduced to complete the sell out of our patent system. Trade organizations like NAM (National Organization of Manufacturers) and others are dominated by the subsidiaries of Asian firms and used to lobby for passage of the sell-out legislation. The press is mostly silent.

• 1996-1997. Hope surges when Ron Brown is placed under indictment. He says he will testify, but dies on April 1996 in a plane crash before his testimony can be taken. Charges are dropped after his death. As it becomes obvious that NAM had become a front for foreign influence, the leadership baton for the legislative attack on our patent system was shifted to a specially formed organization," The 21st Century Patent Coalition." Members consist of large-cap U.S. firms, most notably IBM and Microsoft, who apparently embraced the Japanese plan when they became convinced that it would shift advantage from small innovative firms to those with deep pockets, especially in the new fast-growth markets like the Internet. The attack on our patent system was thus framed as "reform." The foreign connections and influence-peddling aspects of selling off the PTO were politically hidden. 

• April, 1997. The patent sell-out just misses succeeding. Congress votes to pass HR 400, which would convert the U.S. patent system into a replica of Japan's. Disaster is narrowly averted when Rep. Marcy Kaptur (D) of Ohio gets her amendment passed, thus gutting out HR 400 and slowing the steamroller. The press takes little notice.
  

• May 1997. The battle moves into the Senate. The strategy seems to be to complete the patent sell-out before Congressional investigations into foreign "donations" raises awareness. After only perfunctory hearings, S. 507 is rushed through the judiciary committee. Senator Orrin Hatch, the committee chair, frantically tries to slip S.507 through, appending it to other bills in a stealth manner. Senator Kit Bond, and others, put a "hold" on the bill, thus preventing it from going to the Senate floor.

• By late 1997 the sleeping giant is starting to stir. Opponents gather strength. Groups from a coalition of Nobel laureates, to the Association of American Universities, to the venerable Daughters of the American Revolution, to the Coalition of American Veterans are now opposing S. 507 and demanding "extensive hearings."

• 1998. Fought to a standstill, with their WTO "trade trap" exposed, and with time running out, the powerful attackers of U.S. patent rights open a second front. They plan to HARMonize the Internet. A related, and outrageous, multi-year attempt to use copyright law to make web browsing illegal failed. (It came back in a narrower form-- see next item.)

• Late 1998. Wannabe technology Czar Bruce Lehman reportedly "resigns" under clouded circumstances, then denies it and remains as a lame duck until the end of the year.  After attempts to append it to several bills S.507 died, but it was a near thing. Lehman's copyright bill, "The Digital Millennium Copyright Act of 1998," did slip through, unnoticed, and it is very bad news. It gives the publishers total legal power over almost anything a reader might do with an e-book. Even reading an electronic book without authorization is a crime! (See for example: Richard Stallman, "Freedom or Copyright," Technology Review, May/June 2000.)

• 1999. The patent sell-out bill is back. Congressman Coble holds hearings on his "son of HR 400" in March. This bill, H.R. 1907 (or see Thomas and search for HR 1907), has the same bogus issues ("submarine patents") and traps. The "end game" strategy was to use a sledgehammer and exploit "suspension of the rules" to force a vote on the bill without debate. This succeeded and the bill passed the House on August 4. 

• Black Friday, November 19, 1999. Foreign lobbyists and their friends in Congress, used every trick in the book to pass the patent legislation BEFORE the appalling WTO meeting in Seattle at the end of November. Frantic efforts to slip this bill through in the middle of a report on satellite television (House Conference Report 1554) were blocked by Senators Kit Bond and Richard Shelby, who threatened to filibuster unless the patent bill, S. 1798 was removed.

Note: Our enemy has no face. This legislation is the direct result of a broken campaign financing system and intensive foreign lobbying. 

In the end, we lost! America's best-in-the-world patent system is no more. In the waning hours of the 1999 Congress, the foreign-led cabal stuck a different bill, S. 1948, in HR 3194, the budget bill. Section 4001 is a refined version of HR 1907. All the old HR 1907 Titles are still there. Title VI (which creates a Patent Czar without effective accountability, allows PTO functions to be moved offshore, allows pre-issue copies of patents to be given to foreign governments, etc.) is now in sections 4711-4714. This bill passed without discussion late Friday night as the Senate was adjourning for the holidays. President Clinton quickly signed it into law.

To get a copy, go to Thomas and check for S. 1948 and then get the searchable "pdf" version, in all its 214 page glory. I doubt that most Senators and members of Congress knew what was in this legislation.

The only good news is that our enemies are reported to be worried. They know their bill is flawed and that the underhanded methods used to pass this legislation were egregious. Their arguments consist of little more than sound bites ("submarine patents") and personal attacks on critics. All it will take to reverse matters is bright light. If the open debate that the Nobel laureates requested occurs, those in Congress who agreed to compromise the laws that govern American Innovation will scurry for cover. Campaign reform is probably coming in a few years.

 

Note: This page tracks only one aspect of the foreign-led assault on our patent system, the fight to sell-off the patent office itself and change patent law to make it difficult for innovators to protect their inventions. There have been reports of other forms of attack, including many about systematic efforts to dumb-down the system and lower the quality of issued patents. (See, for example, the Washington Post "Computer System from Hell" article.)  Software and Internet companies in particular report that they are being harassed by "junk patents" and copyrights issued to large firms. I leave it to those closer to the patent office to report on how the old cadre of loyal, competent patent examiners have been systematically replaced with inexperienced worker-wonks, militant minorities, and temps. Finding out the details of abuses and mismanagement inside the PTO is simple, but difficult. PTO Director and Czar, Q. Todd Dickenson reportedly has the patent office (POPA)  workers muzzled, as did his predecessor, Bruce Lehman. Workers are, at present, not allowed to talk with Congress or the press! If they talk, they risk losing their jobs. Solution: Congress should insist that free speech apply. It should aggressively protect the identities, jobs, and rights of any POPA workers who dare to testify.

 

The 6-year pattern: foreign "donations" (Asian money) drove > loss of our trade and economic sovereignty (to WTO, etc.) > loss of our nuclear weapons and delivery systems (to China) > world HARMonization -- loss of our technology (patent) ownership rights > harassment of small U.S. firms by junk patents (legalized extortion?) > and more to come ... Is this in the U.S. national interest? Is it in the long term interests of any U.S. firm?

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