Are the Planned Changes in U.S. Patent System Patently Evil?

An unusual community was gathered in Pasadena last weekend, a group of (mostly) men who refer to themselves as “individual inventors.” They were having a trade show, the “Invention Convention,” where they could show their latest gadgets and look for investors and boast about how many patents they had. And they were also rallying the troops for a political battle: Some changes are being made in the patent system, and the inventors are vehemently opposed to them.

For most people, the intricacies of the patent system are, to put it politely, of little interest. But, say the inventors, that’s only because the world doesn’t understand that the U.S. patent system is integral to democracy and individual freedom, a vital component of our governmental system.

Or, as former Patent Commissioner Don Banner put it more bluntly at the Inventors’ Voice round table dinner: “There are so many stupid people who don’t understand what the patent system is.”

Such condescension aside, it’s true that patents are important. Invention is, after all, the mothers milk of technological development and economic growth, a form of practical creativity at which Americans excel. Individual inventors, who tend to be rumpled, idiosyncratic and a little bit paranoid, are a distinctly American breed, taking pride in their struggles against hostile multinational corporations and inept government bureaucrats, and appreciating the subtle brilliance of a new gadget for lifting Sparkletts bottles, or a ski carrier that doubles as a fanny pack.

*

The changes to the patent system seem innocuous enough. As part of the General Agreement on Tariffs and Trade, the United States has moved to bring its patent system into line with those of our trading partners. Under the new rules, approved as part of the legislation implementing the GATT treaty, a patent is valid for 20 years from the date that the patent application was filed, rather than 17 years from the date the patent was issued. Commissioner of Patents and Trademarks Bruce Lehman also backs legislation, sponsored by Rep. Carlos J. Moorhead (R-Glendale), that would require publication of patents 18 months after application.

But the individual inventors say that changing the patent term will deprive them of their rightful protections, because many patents take more than three years to issue. Publication, they say, will simply enable big companies to steal their work. As for bringing our patent system into line with those of our trading partners, well, they think other countries should adopt our system.

And to hear the inventors tell it, the proposed changes are not merely wrong-headed, they’re evil, the product of Japanese conspiracy aimed at stamping out technological creativity in America. It’s kind of like Pearl Harbor, several speakers offered at the dinner. “This is a war,” intoned David Hill, president of a Connecticut group called the Patent Enforcement Fund. “We are again being attacked by a familiar old enemy.”

Lehman, according to this demonology, is a mere stooge, a corrupt official in the pocket of Japanese multinationals. He’s the proverbial fox guarding the henhouse. He was a lobbyist in the pay of the Japanese before he took the job, inventor George Margolin asserts, incorrectly. “Persons who promote Japan’s interest are rewarded after they leave office,” a man named Ron Riley declared knowingly.

Speaker after speaker attributed the changes to an implausible plot involving Lehman and the Japanese. Then, to add a little extra venom to the evening, Rep. Dana Rohrabacher (R-Huntington Beach) took the podium and offered an angry denunciation of the ill-defined “elite” that apparently is also in league with Lehman and the Japanese to take away the rights of individual inventors. Rohrabacher has offered legislation fixing the patent term at 20 years from filing or 17 years from issuance, whichever is longer.

In their eagerness to construct conspiracy theories, though, the inventors sidestep a very salient fact: American industry is nearly unanimous in its support of the changes. Proponents say that the actual term of most patents will hardly be effected, because most are issued in less than three years. And U.S. companies are getting something in return, namely easier patent filing procedures in Japan and better protection in some other countries.

*

Big companies like the changes for other reasons too. Under the current system, patent-savvy inventors can extend their patent applications for years, even decades, by continually filing revisions to the original claim. The result can be an unknown inventor suddenly emerging to claim patent rights to a widely used technology--as happened famously in the case of the bar code readers and the microprocessor.

Large corporations hate this. They say that such “submarine” patents, as they are known, merely reward people for manipulating the process. But for the individual inventor, people such as Jerome Lemelson, who has earned hundreds of millions of dollars on the bar code patent, and Gilbert Hyatt, who is doing similarly well on the microprocessor patent, are heroes.

The independent inventors’ position on all this seems to contain a kernel of truth, but what’s mystifying is why they are so caught up in nationalist demagoguery. If the changes in the patent system simply help large companies and undermine individual inventors, and don’t offer broader benefits for the American economy, then they are certainly worth re-examination.

But in falling back on xenophobia, the inventors fail to make that case. They constantly cite the purportedly unique effectiveness of the American patent system, though French, English and German historians would surely dispute their sweeping assertions about the primacy of American inventiveness. They dismiss the importance of global harmonization without acknowledging the obvious interest many U.S. firms have in protecting their intellectual property overseas.

And the nonsensical conspiracy theories and personal attacks on Lehman are all too symptomatic of a broader disease in our political system. Even in a technical, arcane area such as patent law, it seems, there is no such thing as an honest disagreement anymore: Anyone whose views are different than mine must be evil, stupid, or in somebody’s pocket. Never mind that the changes in patent law, far from being a scheme concocted by Lehman, were originated during the Bush Administration. There is, apparently, no room for discussion here. Thomas Jefferson, that inventors’ hero, would be appalled.