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PATENT PAGE
Perils Lurking in Patent Reform

July 27, 1999

Frank Gaffney's Washington Times column on patent reform.

In the post-Cold War period, even people who should know better seem to believe economic performance and national security are separable, if not mutually inconsistent, priorities. The truth is that, properly understood, the two are inextricably intertwined - and, arguably, this is more true today than ever.

After all, at the dawn of the 21st century, the obvious nexus for U.S. prosperity and security is technological innovation. And at present, as for much of this country's history, the climate for fostering such innovation has been created by the American patent system.

This system, established under the Constitution, has rewarded inventors for sharing their creativity with others by assuring that their rights to earn royalties from their breakthroughs would be protected for 17 years. The result has been a position of unrivaled U.S. dominance with respect to intellectual property. By some estimates, we own 10 times as much as the rest of the industrialized world combined.

In the national security field, this dominance has rarely been more evident than it was in the recent coalition warfare in Serbia. Due to the disparity in high technology, many among the allied militaries were unable to operate on a par with their American counterparts. In some cases, the result was to compromise the mission's effectiveness; in other cases, the safety of U.S. personnel was jeopardized.

The disparity has not only made the United States technology base the envy of the world. It has also made it a pre-eminent target for the world's intelligence services. According to the FBI, at least 23 countries are actively engaged in industrial espionage and dual-use technology diversions in this country. The recently released report by the select House committee chaired by Rep. Chris Cox, California Republican, illuminated some of the more successful of these operations conducted by Communist China in recent years.

Unremarked in that report, however, was one narrowly averted windfall for the Red Chinese. In 1996, Bruce Lehman, who was serving at the time as U.S. Commissioner of Patents, sought to give Beijing CD-ROMs containing the entire American patent data base, some 160 years of valuable information. This outrageous idea - like so many other initiatives taken by the Clinton administration as part of its campaign contribution-lubricated policy of engagement with the PRC - was reportedly rationalized as a means of helping the Chinese avoid infringing upon U.S. patents!

Unfortunately, the Chinese and other foreign competitors are not interested in preventing infringements on Americans ownership of U.S.-produced high technology. To the contrary, they are determined to acquire and exploit such technology in any way they can.

Toward this end, they have mounted a sustained and multifaceted effort - one that is far less obvious, but every bit as insidious an assault on America's economic interests and national security as the episodes documented by the Cox Committee. The objective is to weaken the U.S. patent system by making it over (read, dumbing it down) so it will conform to the inferior approach utilized with such dismal results by our international competitors.

The blueprint for such an effort was mapped out in 1993 by the Japanese Patent Office, which presides over an economy that has, in the past at least, proved far better at exploiting advanced American inventions than at coming up with its own. The Japanese paper proposed that its U.S. counterpart change the way it does business so as to bring it more into line with the practices followed in Japan and most of Europe.

The danger, were the United States to adopt these changes, is that it could literally kill the hen that lays the golden egg of our competitiveness. This could happen if, for example, the rights of large multinationals and foreign governments were allowed to take precedence over the sorts of protections and rewards that have traditionally inspired American inventors.

Regrettably, the U.S. government has already agreed to adopt some of these changes pursuant to the GATT accord. Others - including some particularly pernicious ones - now are being advanced in the name of in legislation now awaiting action in the Congress. Patent deform might be a better way to describe H.R. 1907, the so-called American Inventors Protection Act of 1999.

Far from protecting American inventors, the restructured U.S. patent system contemplated by H.R. 1907 seems designed to protect the interests of multinationals and foreign governments and other entities bent on gaining earlier, freer and cheaper access to our inventions. This would be abetted by a number of the bill's provisions, including:

  • An explicit mandate that the promotion of export of goods and services for those companies that rely on intellectual property. While increased exports is generally a beneficial result of American innovation, making their promotion an explicit objective of the Patent Office may skew the patent-granting process or otherwise open up its review and decision-making processes to pressures that could prove inimical to such innovation.

  • Virtually every title of H.R. 1907 opens up new opportunities for litigation that could prove back-breaking for individual or small business inventors going up against well-financed and determined competitors.

  • The patent office's director would be granted excessive authority, including the right to contract out to foreign governments and international organizations functions on behalf of his organization. In important areas, his decisions would not be reviewable or subject to adequate congressional oversight.

For these reasons, among others, 24 American winners of Nobel Prizes in economics and scientific research have publicly opposed H.R. 1907, claiming it poses a fundamental threat to the national security of the United States and the integrity of scientific research in this country. Their expert opinion about the contribution that the present patent system makes to both endeavors must not be lightly disregarded.

The proposed dumbing-down of the U.S. patent system would be a triumph for those who object to the principle of American exceptionalism.

They believe U.S. sovereignty and national interests should be subordinated to the lowest common denominator favored by champions of international organizations and global enterprises. Such a course of action may or may not profit a relatively small number of large corporations. What is certain, however, is that the country as a whole will suffer, in terms of its economic well-being and, in due course if not immediately, in terms of its security.


Frank J. Gaffney Jr. is the president of the Center for Security Policy and a columnist for The Washington Times.

Copyright 1999 News World Communications, Inc. The Washington Times July 27, 1999, Tuesday, Final Edition PART A; COMMENTARY; Pg. A18 1140 words



 
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