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Tuesday, June 26, 2007
Phyllis Schlafly :: Townhall.com Columnist
So-called patent reform cheats U.S. inventors
by Phyllis Schlafly
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The globalists are making a new attempt to circumvent and weaken a right explicitly recognized in the U.S. Constitution: Americans' exclusive ownership of their own inventions.

Fortunately, Sens. Tom Coburn, R-Okla., Charles Grassley, R-Iowa, Jon Kyl, R-Ariz., Jeff Sessions, R-Ala., and Sam Brownback, R-Kan., have exposed this mischief and called on Senate Judiciary Committee Chairman Patrick Leahy, D-Vt., Sen. Arlen Specter, R-Pa., to slow down and discuss the proposed legislation before making costly mistakes.

As we've learned with "Comprehensive Immigration Reform," we should all be on guard any time politicians patronize us with pompous talk about "reform." The so-called Patent Reform Act of 2007 is not reform at all; in one package, it betrays both individual rights and U.S. sovereignty.

It's no accident that the United States has produced the overwhelming majority of the world's great inventions. It's because the Founding Fathers invented the world's best patent system, which was a brilliant stroke of inspired originality when the Constitution was written in 1787, and still is stunningly unique in the world.

The political pressure for the new bill comes from the "world is flat" globalists who want to level the U.S. patent system with other countries. "Harmonization" is a favorite trigger word in their arguments. For example, in introducing new bill, Rep. Howard Berman, D-Calif., said it will "harmonize U.S. patent law with the patent law of most other countries." The explanation of the bill issued by Leahy's office states that the bill's purpose is to eliminate "a lack of international consistency."

But because the U.S. system produces more important inventions than the rest of the world combined, why should we legislate "consistency" with inferior foreign policies?

The uniqueness of the American system is that "inventors" are granted "the exclusive right" to their inventions "for limited times" (usually about 18 years) after which the invention goes into the public domain. Exclusivity was assured because U.S. courts would uphold the inventor's patent against infringers, and the U.S. Patent Office would not disclose any information in a patent application unless and until the legal protection of a patent was granted. Rejected patent applications were returned to the applicants with their secrets intact.

The so-called patent "reform" of 1999 radically changed this to allow the U.S. Patent Office to publish the details of inventions 18 months after they are filed, unless the inventor agrees NOT to file a patent application in another country. Other countries do not respect inventors' rights granted by the U.S. Patent Office.

Inventors say the U.S. Patent Office is now taking an average of 31 months to grant a patent! So, when the Patent Office publishes (i.e., posts online) a patent application before a patent is granted, this gives patent pirates all over the world an average of 13 months (31 minus 18) to study detailed descriptions of virtually all U.S. patent applications, steal and adapt these new American ideas to their own purposes, and go into production.

Foreign governments, foreign corporations, and patent pirates are thus able to systematically "mine" U.S. patent applications and steal American-owned inventions. The 2007 "reform" bill's "harmonization" is a fraud because it does nothing to require or induce other countries to respect U.S. patents.

The unconscionable delay in processing patent applications resulted when Congress diverted the fees paid by inventors into pork and other pet projects. That meant the Patent Office could not hire the additional examiners it needed to process the rising number of domestic and foreign patent applications, and so a massive backload built up.

What recourse does the inventor have? If the infringer is in another country (China is a notorious thief of intellectual property), the U.S. inventor must have filed a patent application in that other country and the lawsuit must be filed there.

The proposed Patent Reform Act of 2007, sponsored by Sens. Leahy and Orrin Hatch, R-Utah, and Reps. Berman and Lamar Smith, R-Texas, would further reduce inventors' rights. For the sake of "international consistency," it would convert the U.S. system to a "first to file" system, thereby replacing our unique and successful U.S. "first to invent" system.

The U.S. gives priority to the first one who actually invents something rather than to one who simply files papers about what he plans to invent. The change to "first to file" would create a race to the Patent Office and would severely disadvantage the small and independent inventors who lack the resources of big corporations.

Much more is wrong with the Patent Reform Act of 2007, but I've run out of space, so stay tuned.

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About The Author

Phyllis Schlafly is a national leader of the pro-family movement, a nationally syndicated columnist and author of Feminist Fantasies.
 
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Not sure I should
bother with "Sir Crybaby" (the "baawa" is apparently a mis-spelling of "bwaa-haaa"), but here goes.

Freedom means you own yourself and ALL your activities- certainly, all the products of your work. If I as an inventor or author (if I were one) was not entitled to legal protection of my creative outputs, than you as the shop worker are only entitled to what you could earn if you were performing all processes manually. Anything over & above that amount should go to the owner of the automated machinery (i.e. the shop owner or investors) that make the additional productivity possible.

your help is needed
Mrs. Schalfly has called our attention to an urgent matter. We should all contact talkers, people who have talk shows, and mention this matter to them. While we still have conservative talk radio.

Attack aftr attack on our sovreignty
By those who wish to be the 'first filers' and steal all the profits from those who bled and cried to make/keep this country what it is.

T R A I T O R S ! ! !



Thanks for the heads up!

knightofbaawa baloney

to knightofbaawa: perhaps you believe "intellectual property isn't propery" because you've never had an original idea in your entire life

Unbalance in patent durations
Here's a question that nobody has answered: Why does a head-banger "smoke a joint, write a song, and a check is in my mailbox" (Rick James) ... And get lifetime plus 99 years of copyright protection; but a pharmaceutical company spends north of a billion dollars in R&D to develop a lifesaving drug, yet only receive ~15 years of protection (18 years minus the 2-3 years at the Patent Office)??

Could it be that the entertainment industry has more powerful lobbyists than "real" industry has hired?

Could it be that the Government is a large buyer of pharmaceuticals?

In any case, we need to address the inequities in our own intellectual property (patent AND copyright) laws.

By the way...
By the way, congress critter Jim Boucher (D-Va)has been on top of intellectual property issues in a surprisingly conservative way, especially the MPAA.

Dan Schwartz
Expresso@Snip.Net

Shameful
Shameful Shameful Shameful Mr. And Mrs. Congressman

This is the kind of thing that so typifies Congress's willingness to sell America down the drain for money. Hopefully, Fred Thompson will bring up this and other outrages in a national debate, when all of the moonbats are actually listening. They want to sell our sovereignty. The lawyers are on the march.

Whoever proposed this should be tried for treason.

The issue is not the issue ...
.
...the REVOLUTION is the issue. Socialism cannot compete with capitalism, so socialists must constantly concoct schemes to restrict success. Along with “global warming”, this is just another one of those schemes.

There are several problems with the
present patent process.

First, as she points out, it takes too long. This is endemic in anything where there are lawyers involved.

Second, we are now granting patents to things which probably shouldn't be patentable. Like a way of mixing bread dough, my DNA makeup and other stuff of this ilk. Where to draw the line? I don't know enough about intellectual property to be able to define the line, but as they say, "I'll know it when I see it." I assume that most people have a good idea of what is reasonable.

Third, the patent and copywrite laws and systems are hopelessly confounded and need to be reexamined. The analogy of drug invention and music is pretty good; I'd add fine art to this, too.

I think it's time for a close look at the whole process, but I shudder to think what might come out of Congress if they go after it.

Barry


Patent Reform
I have been a patent attorney since 1980 and appreciate this article. When it takes too long to get a patent, or when the examination is not done in a professional way, it really harms inventors and the consumers who would have benefitted from their inventions. Instead of devoting our energies to "harmonization", we need to devote them to improving the function of our Patent Office so it handles applications promptly and professionally. I have seen a real deterioration of the U.S. Patent Office in the past several years. If we want more innovation, our politicians need to devote attention to restoring the proper functioning of the U.S. Patent Office.

Thank You!
...for explaining this issue. You've completed the puzzle for me with salient info.

Mrs. Schlafly, you are a missionary of the highest order. Thank you for all your hard work and fearlessness. God bless you.

How many inventors...
really benefit from their patents? Not many would be my guess. The majority of them live with the bitter taste of having sold their ideas for pennies to someone who could produce and mass market them.

The real winner in the patent war are the large multinational corporations and their lawyers that have the resources to fend off their competition.

Patents
Resa et al: I have a patent (6846967) and it took over 3 years to obtain it. It's being reviewed at DoE to see if it can be used to dispose of all levels of nuclear waste safely and permanently. DoE has to get back to Congress before 9-30-09 with alternative methods of waste disposal. Without a waste disposal solution, nuclear power remains a dead issue.

There is a real need to increase the number of examiners at the USPTO ASAP. When ideas can't be marketed without being stolen, there is no real incentive for a single non-corporate inventor to do anything. Large corporations can afford the fight to protect ideas; individuals can't. With no protection, it degenerates into oligarchies controlling ideas.

knightofbaawa
Yes, a patent creates a monopoly. And monopolies are bad. They create market situations in which consumers are forced to pay higher prices than they would have to pay if there were competitors making the same products.

That said, it is obvious that the monopoly created by the issuance of a patent is a NECESSARY evil. For without such exclusive rights to their own inventions, inventors have no incentive to invent. And if they do invent, they have no incentive to share their invention with the world. Undoubtedly, many of the things that make life so very comfortable today would never have been invented if their inventors could not count on exclusive rights to those inventions, at least for a time.

Personally, I believe the "for limited times" provision is the ideal balance between intellectual property rights and anti-trust. Inventors have the profit incentive, in the amount of profit they can generate in 18 years of exclusive rights. On the other hand, after 18 years, the patent is void and competitors can move in, breaking the monopoly. The length of "for limited times" can be debated, but the concept itself is a work of genius.

Is it fair that consumers have to pay twice, or even a hundred times, as much for a product because someone has a patent on it? See, the fault with that question is consumers don't HAVE to pay ANYTHING for the product. They can simply do without it! We are talking about a BRAND NEW PRODUCT here, something that has never existed before. So, presumably, no one could buy it, at any price, prior to its invention. So how is anyone any worse off because the new product has been invented? Sure, it's expensive after it has been invented, but at least it's AVAILABLE! Maybe the average consumer can't afford it. But he's no worse off than before the invention, is he?

What about life-saving drugs? Is it ethical for pharmaceutical companies to charge $10, $100, or even $1000 per pill for a drug that keeps people alive? Maybe it costs only $1 to make the pill. But that completely ignores the vast sums of money put into research and development, not to mention to legal and other fees required to get the drug through a dozen government agencies and to the market. And then there are the dozens, perhaps hundreds, of drug research products that never make it to production, or don't make it through the government agencies. All these cost money too, and the drug companies have to recoup these losses on the products that DO make it to the market. But is it fair that drug companies have this monopoly on life-saving drugs? Look at it this way. If they couldn't count on that patent, and the profit it would bring them, they would not have poured all that money into developing the drug in the first place. So what's worse? Having to pay $1000 for a pill that will save your life? Or not being able to buy that pill AT ANY PRICE, because it was never invented?

What about a process, as opposed to an actual product? Is a new, cheaper, more efficient, more environmentally friendly method of creating a product any less of an achievement than a brand new product? If I invented a method of generating electricity that eliminated the use of carbon-based fuels (and the resulting CO2 emissions), and made it half as costly to produce electricity, is there not some benefit to humankind for that process? Should I not be rewarded for that invention? Should I not be able to charge electric companies outrageous fees for using my process? After all, they're going to be making a lot more profit themselves, and the electricity users will be saving a hell of a lot of money, too! What did the electric companies and the electricity users do to DESERVE such a windfall?! Not a damned thing, that's what! I'm the one that had the idea, the one that made it work, the one that saved the world from global warming (if it really is a problem)! And what does knightofbaawa think I deserve for all that? Zip! Zero! Nada!

Which is exactly how much intelligence knightofbaawa has.

Regards,
Trevor

Great Minds Think Alike
I've had plenty of great ideas that have later showed up on the market as someone else's patented invention. Where is it written that only one person at a time can have the same idea?

I'm willing to listen
but, knightofbaawa, you actually have to make a point. You say Trevor's explaination of the "necessary evil" is lame and not true, but you don't explain why?

Arguments against Intellectual Property
There is a referenced paper written by a patent attorney (remember, Congress and State Houses are full of attorneys) that argues agains IP rights:

Copyright case:

You own printing press, paper, and ink.

I copyright a book (pattern of words).

You can't use your real property to reproduce it.

My IP rights have therefore transfered partial ownership of your property to me, as I can control your use of them to some extent.


Patent case:

You own machine shop and metal.

I patent a mechanical device.

You can't reproduce it with your own materials.

My IP rights have therefore transfered partial ownership of your property to me, as I can control your use of them to some extent.

--------------------------

These examples give some libertarians heartburn, which is why you see arguments against IP above. Agree or search for flaws.

---------------------------

Trademark/Service Mark example:

I sell hamburgers under the name Gargantua Burgers.

Joe opens a shop and uses my name to sell hamburgers.

Some libertarians say that the customer should only be able to sue Joe for misrepresentation, as he wanted a Gargantua hamburger, but didn't get one, and that I (Gargantua Burgers) can't received damages from Joe.

----------------------------

Don't yell at me - I'm only the messenger.

Result of "draining the bathtub"
It is interesting that conservatives always decry that (gasp) taxes are raised to fund government, end up defunding government at least a bit, and then after the government fails in providing a service because it was defunded, that government should not be perfomring that service. This philosophy is a classic positive feedback loop.

The patent office should not be spending so long on these applications, and taxes should be raised to hire the bureaucrats to do the jobs to make the patent office work.

knightofbaawa
Refuted to death? Hardly. It has NEVER been refuted! It CANNOT be refuted! The profit incentive has been proven, time and time again, to be the most effective incentive for production, innovation, modernization, and yes, INVENTION. If it's been refuted so many times, knight, then you won't have any problem presenting such a refutation.

Tell me, knight, without a profit incentive, what incentive remains that would have driven the kind of innovation and invention that we have seen in the US over just the last 100 years? Do you think Thomas Edison would have invented the electric light bulb, and all his many other inventions, just for the warm feeling he got from helping mankind? Even if that had been enough incentive, he wouldn't have had the TIME to invent all those things, because he would have had to work 60+ hrs a week to feed his family, probably in some factory. You see, as intelligent as Edison was, that intelligence is meaningless in an economy that does not respect intellectual property rights. His only MARKETABLE skill would have been his manual labor. I, for one, am glad that Edison lived in a country that respects intellectual property rights, and invented all those wonderful things that make life for us now so comfortable. I'm glad he didn't WASTE his gift toiling in an oil-lamp factory, installing 100,000 wicks, but instead invented the ELECTRIC light bulb.

(Note: Edison did not, technically, INVENT the electric light bulb. It had been invented many years earlier. He is commonly credited as its inventor because he was the one that made it PRACTICAL, by inventing several components, from the filament to the power source, that made the concept of widespread, cost-effective electric lighting feasible. So yes, for all practical purposes, he did invent the electric light bulb.)

Regards,
Trevor

swampwiz
You are so full of sh!t.

First of all, as it pertains to the topic at hand (patents), conservatives, to my knowledge, have never called for any cutting of funds. If they did, it was only because they recognized waste and/or fraud in the system. But conservatives have always respected individual property rights.

As a response to your more general statement about cutting funds, conservatives oppose funding these programs because they believe that it is not within the government's constitutional authority to provide these programs, generally some form of income re-distribution, at ANY funding level. Of course, it helps the conservative cause that these programs almost unanimously fail to resolve the "problems", and in fact make the problems WORSE, to a degree that is directly related to the amount of money spent on the program. Part of that failure is the government monopoly on these services - the government has no competition, so there is no drive to improve service or decrease cost. But the biggest part of the failure is that income re-distribution programs NECCESSARILY encourage dependence. They turn the profit incentive upside down, discouraging achievement, education, labor, and independence.

But that's not the main reason for conservative opposition to these programs. Again, the main reason is that the government has NO CONSTITUTIONAL AUTHORITY to re-distribute income! And don't give me that crap about "provide for ... the general welfare". The key word there is "GENERAL". The purpose of that clause is to give the government the power to enact policies that will maximize the OVERALL well-being of the people of the nation, not any one specific person, or group of people. Nowhere in the Constitution is any branch of government given the specific authority to take money away from any one individual and give it directly to another individual.

Regards,
Trevor

Various
The article says that patent office fees were diverted, not that the budget was cut.

It's "promote", not "provide" the general welfare (as it is for defense), so the intent is clear.

Trade secrets were held by individual craftsmen and/or guilds to protect the techniques and to maintain economic success. Formal patents and trademarks go back to the 1200s. I don't know of a historical period where people created stuff (products, tools, and methods, or even music and art) just to give it away. The limited monopoly is to force disclosure.


Patent Applications Are Not Returned
Ms. Schlafly's article contains a factual error. Patent Applications are never returned to the applicant. Non-published applications are maintained in secret by the U.S. Patent and Trademark Office.

Don Marks
Patent Attorney

knightof baawa
ONCE AGAIN! If it has been so thoroughly refuted, you should have no difficulty giving us a SOURCE for such a refutation. The fact that you CONTINUE to refuse to give us this source is all the evidence I need that no such refutation exists at all.

As for inventions before patents, what are we talking about? The wheel? Fire? The crossbow? Come one, dufus, you're just proving MY point! What is the most complex invention that occurred before the advent of patents? I haven't thought about it long, but I'd say it's a toss-up between 1) the clock, 2) the flint-lock rifle, and 3) the printing press. Compare that to the complexity of an automobile; or an airplane; or a television. Don't get me wrong - the pre-patent inventions I used as examples were all very IMPORTANT. But their COMPLEXITY just doesn't measure up to even the simplest of inventions that have occurred SINCE the advent of patents.

And that is my point. Yes, there was some incentive to invent prior to the advent of patents. But that incentive pales in comparison to the incentive that is provided by patents. Just look at all the wondrously complex inventions that have occurred since the advent of patents.

If, as the saying goes, "necessity is the mother of invention", then the profit incentive is its father, and intellectual property rights is the womb.

Regards,
Trevor

Rich D.
I know you're on my side here, but I wanted to correct your correction of me:

Rich D.: "It's 'promote', not 'provide' the general welfare (as it is for defense), so the intent is clear."

Yes, the PREAMBLE says "promote the general welfare". I wasn't referencing the preamble. I was referencing Article I, Section 8, the first sentence of which reads:

"The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and PROVIDE for the common Defence and GENERAL WELFARE of the United States;" (emphasis mine)

The preamble is brilliant, and thanks to Schoolhouse Rock on Saturday mornings, is the only part of the Constitution that is memorized (though in a slightly incorrect form) by any significant percentage of Americans. But the preamble does not actually carry any weight. It is simply a statement of the reasons why the Constitution was written. It is the power granted to Congress in Article I, Section 8 that is used by liberals to justify their wealth re-distribution schemes. Of course, they are STILL mis-interpreting the clause, because they don't understand (or they just ignore) the word "general"

Regards,
Trevor

Trevor
Trevor writes: Thursday, June, 28, 2007 12:35 PM

"The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and PROVIDE for the common Defence and GENERAL WELFARE of the United States;"

Agree - the context here is the US as an entity, not the people.

"As for inventions before patents, what are we talking about?"

Your answer and mine were apparently not good enough.

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