GOP Infighting Erupts Over Patent Terms

The small inventors who dreamed up everything from supermarket scanners to Kitty Litter are making a new discovery here in the nation’s capital: Lobbying the federal government can be just as frustrating as building a cutting-edge contraption out in the garage.

The inventors’ attempt to change U.S. patent law has prompted an ugly intra-party battle between Rep. Carlos J. Moorhead (R-Glendale), who is chairman of the key subcommittee handling patents, and Rep. Dana Rohrabacher (R-Huntington Beach), who is doing everything he can to force Moorhead to bring the inventors’ agenda up for a vote.

Moorhead is not budging.

The inventors may be full of bright ideas, but Moorhead calls their tinkering with the patent law “of dubious merit.” In his eyes, they are really scheming to re-establish a loophole in the patent system that allowed them to shake down large corporations.

The financial stakes are huge, with the inventors scrambling for patent terms that could mean hundreds of millions of dollars when that one cutting-edge invention explodes into the marketplace.

The independent inventors involved in the fight--whose creations also include fluorescent lighting, the magnetic resonance imaging scanner and the water bed--are pitted against corporations that rely on the latest technology to edge out the competition.

At issue is a provision of last year’s GATT world trade agreement that alters U.S. patent law. Under the change, which took effect earlier this month, patents are no longer valid for 17 years from the date they are issued. Now, the patents will last 20 years, but the clock will start winding down as soon as the application for a patent is filed.

What may look like a technicality has some inventors anxious that their patent terms may now be far shorter. Just before the change took effect June 7, there was a rush on patent offices as inventors sought to have their hard work judged under the old rules.

Inventors contend the change could be devastating for them because some patent applications can be bogged down in the bureaucracy for years, and even decades, before they are finally issued by the U.S. Patent and Trademark Office.

That time will now eat away at their patent rights, the inventors say.

“It’s now going to be a lot harder for an independent inventor to have his rights respected,” said Paul Heckel, who creates computer software from his own Los Altos, Calif., firm called Hyper Racks.

His latest creation is a group called Intellectual Property Creators, which is made up of several dozen inventors opposed to the patent change in GATT. To help their cause, the inventors have enlisted the aid of Rohrabacher, who relishes a good battle--even against a fellow member of the GOP.

“This has nothing to do with political party,” said Rohrabacher, a former writer who says he appreciates the creative spirit. “Carlos [Moorhead] is doing something that is very detrimental to our country. He is being bullheaded about it. . . . I think it’s a combination of arrogance and stupidity.”

Moorhead, new to his position as chairman of the judiciary subcommittee on courts and intellectual property, says he will not be bullied by anyone. An affable, laid-back lawmaker known for getting along with his Democratic colleagues, Moorhead has largely kept a low profile during his 22 years in Congress.

Recently, House Speaker Newt Gingrich (R-Ga.) bypassed Moorhead for two coveted committee chairmanships, saying he wasn’t tough enough. Moorhead was left with the subcommittee post, one he never expected would lead to public brawling with a Republican colleague.

“He’s like a bulldog that’s got ahold of a bone,” Moorhead said of Rohrabacher. “I’ve never seen this kind of behavior in the years I’ve been in Congress. He’s trying to turn this into name-calling. Usually people in your same party are at least halfway polite to each other.”

Together, Rohrabacher and his band of independent inventors have waged war on Moorhead. Rohrabacher has handled the impassioned floor speeches, while the inventors are using press releases and full-page newspaper ads throughout Moorhead’s district.

“Congressman Moorhead, why won’t you support H. R. 359?” asked the ads, which ran recently in the Los Angeles Times, the Glendale News-Press and the Pasadena Star News.

Last week, Rohrabacher took the floor of the House, with C-SPAN cameras rolling, and spent a good 40 minutes browbeating Moorhead for holding up H. R. 359, the code number for Rohrabacher’s bill to extend patent terms.

The inventors’ group has the support of Senate Majority Leader Bob Dole (R-Kan.) and, at last count, 177 co-sponsors in the House, including Rep. Howard P. (Buck) McKeon (R-Santa Clarita).

Moorhead, after rattling off the many supporters on his side, suggests that some of those supporting Rohrabacher are doing so just to quiet him down.

“Most people think he’s just off the wall,” Moorhead said. “He badgers folks until they co-sign his bill. They do it to get rid of him.”

Rohrabacher, who has taken on the fight as his cause celebre , first tried last year to have the patent change removed from the General Agreement on Tariffs and Trade. He rounded up supporters, but few wanted to doom the entire trade pact for one provision alone.

On the opening day of the 104th Congress, Rohrabacher was ready. He immediately introduced his bill to allow inventors to benefit from whichever is longer--17 years from the date the patent is approved or 20 years from the date the application is filed.

With his fellow Republicans now in charge, Rohrabacher was optimistic it would pass.

But then he ran right into another “gentleman from California,” as Moorhead and Rohrabacher have called each other during floor speeches, even as the tension between the two has escalated.

“I’m not going to call Carlos’ motives into question, but I think other people who are not constrained by congressional courtesy may do that,” Rohrabacher said in an interview.

In the next breath, however, Rohrabacher questions Moorhead’s motives:

“Carlos Moorhead is doing the bidding of major industry groups. He’s basically telling his colleagues they can go to hell because he doesn’t care what their opinion is.”

Moorhead, who voted against GATT, disagrees that the patent changes in the trade agreement will be a bane to inventive souls, and he accuses some inventors of being creative with the facts. The average patent will actually be longer under GATT, Moorhead argues, and those inventors whose terms are shortened can file appeals.

The government patent office took an average 19.5 months to examine and issue a patent in 1993, and expects this year to reduce that span to about 19 months, officials say. The average time to process a biotechnology patent is longer, closer to two years.

Rohrabacher contends that those numbers are deceiving because they include patents that are quickly rejected and routine patents that are processed without delay. Significant patents for complicated technologies take many, many years, he noted.

But Moorhead argues that the statistics show that the changes called for in GATT will not wreak havoc on the patent system. What the new provisions will do, according to Moorhead, is discourage inventors from abusing the system by using so-called “submarine patents.”

That’s the lingo used to describe patents that are intentionally delayed by inventors through the filing of frequent amendments. Their goal is to extend the process so long that large companies stumble upon the same technology themselves. When the patent is finally issued, and publicized for the first time, companies suddenly learn that the processes they thought they discovered were really invented by someone else.

The inventor then demands that the company pay up.

“I think it’s a problem and everyone who’s involved in industry thinks it’s a problem,” said Moorhead. “It does not happen every day, but the effect it has when it does happen is substantial.”

The inventors say the real problem is unscrupulous companies stealing their ideas, and Rohrabacher says he’s more than willing to include language in his bill to handle submarine patents if it is the critical problem Moorhead and others contend.

“There is probably a very small abuse of the patent system [by inventors] but it’s minuscule,” inventor Heckel said. “The bigger problem is big companies taking advantage of the system. That’s the real abuse.”

Jack Miller, a Pasadena inventor who has more than 100 patents to his name, including a fluorescent converter for lamps, says it is far too costly for inventors to intentionally delay their patents.

“Inventors want to make some bucks,” he said.

For his part, Moorhead has introduced a separate bill aimed directly at the submarine patent problem. His bill would lift the current shroud of secrecy on patent applications beginning 18 months after they are filed, a convention used by many other countries. Patent applications are now kept private until they are issued.

By making the applications public, inventors would no longer have an incentive to delay the processing of their applications, Moorhead argues.

If such a change is approved, Rohrabacher says, foreign countries will be able to use technologies while patents are being processed and “we might as well install a huge neon sign over the United States saying: ‘Steal your technology here.’ ”

One of those funding the inventors’ ad campaign against Moorhead has become a master at the submarine patent technique, which was perfectly legal under the old rules.

Jerome Lemelson, working out of his parents’ home in Staten Island, N.Y., filed a patent application for a “machine vision device” in 1956. The application was processed for decades. In the ensuing years, bar code scanning technology was developed around the world and installed everywhere from supermarkets to automobile assembly lines.

In 1989, when Lemelson’s patent was finally issued, it shocked entire industries and he collected hundreds of millions of dollars from Japanese and European auto makers. He has sued Ford, General Motors and Chrysler and is investigating numerous other industries for patent infringement.

Moorhead, a strong backer of business interests whose campaigns are heavily supported by industry, has the backing of industry groups in this fight. They have placed full-page ads of their own defending Moorhead for “not caving in to well-financed pressure.” Among those supporting Moorhead’s position are the American Intellectual Property Law Assn., the Pharmaceutical Research and Manufacturers Assn. and the Intellectual Property Owners.

Moorhead says the subcommittee is too busy now with other matters to take up Rohrabacher’s bill. He has told Rohrabacher that the subcommittee will get around to it sometime next year.

But that is not soon enough for Rohrabacher, who sees America’s economic future hanging in the balance.

“Here we are entering an age of technology and we are destroying our biggest asset--the incentive for our most creative citizens,” Rohrabacher said.

And Moorhead’s position has frustrated the independent inventors as well, sending them back to their drawing boards.