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
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
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
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
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