Obama Administration: The Harmonization Capitulation
|Written by Gene Quinn
Patent Attorney & Founder of IPWatchdog
Zies, Widerman & Malek
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Posted: Oct 8, 2009 @ 12:34 pm
If you have not already read the letter from Commerce Secretary Gary Locke to Senator Patrick Leahy (Chair of the Senate Judiciary Committee) and Senator Jeff Sessions (Ranking Republican Member), you absolutely need to read it to comprehend the massive changes the Obama Administration is supporting with respect to patent reform. It would be difficult to over exaggerate the magnitude of the changes being supported by the Obama Administration. Simply put, if the Obama Administration gets its way US patent laws would be completely re-written and substantively changed to a greater extent than at any time since 1790. In fact, if the Obama supported patent reforms become enacted into law it would probably be much easier to simply pass legislation withdrawing all US patent laws and putting in its place the patent laws presently in existence in the European Union. If you do not believe a European style patent system is in the best interest of the United States then you had better step up to the plate, because the stars seem to be aligning and before you know it there may not be any remaining US patent laws. The steaks are high and it seems as if the once hopelessly derailed patent reform legislation is back with a vengeance, like a resurrected Jason a la Friday the 13th.
There are so many bad ideas being supported by the Obama Administration when it comes to patent reform that I almost do not know where to start. The Obama Administration supports substantive rulemaking for the Patent Office, supports post-grant review of issued patents and does not support provisions in the Senate Bill that would require examination duties to be carried out in the United States. All of this is troubling, particularly opposition to provisions that would require examination to be done in the United States. Work-sharing is one thing, but do we really want to have examination being conducted by those in other countries? I need to look more into this, and will, but as bad as this could be it is simply the icing on the cake.
Under “Miscellaneous” in the Locke letter, Secretary Locke explains the Obama Administration position on a variety of changes to US patent law:
We endorse the change in the inventor’s oath requirement to facilitate an assignee’s filing and prosecution of patent applications, and support expanding pre-issuance submissions by third parties to improve the efficiency of the examination process. Finally we support extending the existing prior user defense for patent infringement; removing sanctions for failing to comply with the best mode requirement; limiting the applicability of revised approaches to interlocutory appeals and codifying recent judicial decisions improving the handling of venue changes; and creating a pilot program that enhances judge’s patent expertise. However, we have a number of technical concerns with the bill’s language on these issues and look forward to working with the Congress to craft language that addresses these concerns and passing legislation that improves our patent system.
On top of this, the letter under the heading “Patent Quality & Harmonization” says:
The Administration supports the transition of the United States to a “first-inventor-to-file” system from the current “first-to-invent” system. The transition would simplify the patent process, reduce legal costs, improve fairness, and make progress toward a more harmonized international patent system. AS global trade increases, more and more applicants are seeking worldwide patent protection. However, given the differences in national laws, obtaining patent protection in numerous jurisdictions is complex, time-consuming and resource intensive. Patent law harmonization will not only lead to enhanced efficiency, but will also provide greater predictability, reliability, and competitiveness for American innovators.
Now let me tell you what I think of this — GARBAGE! This is not international harmonization, it is US capitulation! This will not lead to greater competitiveness for American innovators. What it will do is dumb down US patent laws to make our laws just like the laws of the rest of the world, but for what gain? Is this just another effort by the Obama Administration to provide a gift to the rest of the world without getting anything in return? Exactly what specific and identifiable benefit would any of this be to US companies and US innovators? None! The United States is the dominant market in the world, all companies want US patents and there is simply no reason to harmonize our laws. NEWSFLASH… the world already has harmonized patent laws because if you want your application to be granted priority in the United States it needs to satisfy US patent laws at the time of filing, which is exactly what happens in the overwhelming majority of cases. US patent laws are the standard that everyone follows, and changing US laws will provide absolutely no benefit to independent inventors, small businesses or start-up companies. Those who will benefit are large corporations and foreign corporations, but oddly enough it is small businesses in the US that actually employ the overwhelming majority of US workers, so why would we want to do anything that is a detriment to the largest employer group in the US? Maddening!
There are a lot of things coming into focus, and the picture is really tremendously bad. It is extremely peculiar and interesting that the Obama Administration does not want a prohibition on outsourcing of examination from the US and is also looking to make US laws compatible with the laws of other jurisdictions. Is this a coincidence? I don’t think so, and there will be some things coming to light over the next several days that I predict will cause even more cause for alarm. If we change our laws to match the laws of the rest of the world and simultaneously carve away at patentable subject matter by eroding or eliminating patent rights for biotechnology advances, for example, we will find ourselves not only harmonizing process, but harmonizing substance. This assault on pharma and biotech, not to mention the assault already ongoing in the courts with respect to software, would leave US law exactly like the laws of other jurisdiction and it would cripple the US economy and industries that are needed in America to employ workers and innovate.
All of this, together with what may start to leak out over the next several days regarding assaults on patentable subject matter in the United States casts an entirely new light on the recent urging of Microsoft’s Deputy General Counsel Horacio Gutierrez regarding a truly global patent system. At the beginning of September Gutierrez wrote:
The logical next step is to accelerate the work underway to align patent approval procedures and application formats, including a common digital application, and to collaboratively set standards for patentable subject matter, adequacy of disclosure and enablement requirements, and the completeness of the examination record. Bold action is needed. Stringent criteria must be established and clearly understood so patent search and examination results can be accepted by patent authorities around the world.
I addressed this in Why a Global Patent System is a Bad Idea, and I think many thought I may have been running around acting a little like Chicken Little. Trust me, I have not interest in being Chicken Little, and I really wish I didn’t have to say I told you so, but there is more here than meets the eye here. It is time for those interested in a strong and vibrant US patent system, the continued vitality of US patent laws and a growing US economy to stand up and be heard. The manufacturing jobs have gone and they are not coming back, and if we are not exceptionally careful so to will our high-tech jobs.
Proposals that would have the US cave and adopt international patent laws without any discernable benefit to the US are nonsensical and destructive. And mark my words, if all of these changes go through there will be nothing to stop the outsourcing of patent examinations and a truly global patent system, with a global patent. Of course, that will mean a good many things that are patentable now in the US will no longer be patentable. This will be devastating, capital will dry up and innovation will at least substantially slow, if not grind to a halt. Patent rights is what has lead to the creation of enormous industries and extraordinary advancements in science, technology and innovation. Greed provides the necessary capital required to fund innovation in the US, and killing US industries that are dominant worldwide is just plain stupid.
About the Author
Gene Quinn is a US Patent Attorney, law professor and the founder of IPWatchdog.com. He is also a principal lecturer in the top patent bar review course in the nation, which helps aspiring patent attorneys and patent agents prepare themselves to pass the patent bar exam. Gene started the widely popular intellectual property website IPWatchdog.com in 1999, and since that time the site has had many millions of unique visitors. Gene has been quoted in the Wall Street Journal, the New York Times, the LA Times, USA Today, CNN Money, NPR and various other newspapers and magazines worldwide. He represents individuals, small businesses and start-up corporations. As an electrical engineer with a computer engineering focus his specialty is electronic and computer devices, Internet applications, software and business methods.