One of our most important constitutional rights is the
right of inventors to have, for limited times, "the
exclusive right to their . . . discoveries."
This uniquely American provision in Article I,
Section 8 of the U.S. Constitution marked a profound
turning point in world history. Most of the world's
inventions are American, and they have proved to be an
essential factor in American economic growth and
The inventor's private property right in the fruit of
his own labor is the "engine" that has stimulated the
wonderful inventions that have caused our tremendous
economic expansion and rise in our standard of living.
The principal feature that makes the U.S. patent system
uniquely different from all other countries in the world
is that our United States Constitution recognizes the
exclusive property right of the individual inventor in his
This allows the inventor to keep his ideas secret
until the government issues a patent recognizing his
invention and stating the extent of his rights. The inventor's exclusive right is limited to about 17 years, after
which his invention goes into the public domain.
Our basic constitutional patent right is now under
attack from the lobbyists for Japanese and multinational
corporations. It would be wiped out by two companion
bills now pending in Congress: H.R. 400, the 21st
Century Patent System Improvement Act, sponsored by
Rep. Howard Coble (R-NC), and S. 507, the Omnibus
Patent Act of 1997, sponsored by Senator Orrin Hatch
(R-UT). These two bills have the same objectives and
essentially the same defects, so can be referred to
collectively as the Patent bills.
The Patent bills do not present a controversy between
Republicans and Democrats, or between conservatives
and liberals. This is an epic battle that pits multinational
corporations, plus the Clinton Administration and those
involved in shady Asian trade deals made by the late
Secretary of Commerce Ron Brown, against the "little"
guys who have built America -- the independent inventors who are responsible for the marvelous scientific
discoveries that have made the American standard of
living the envy of the world. Passage of the Patent bills
would bugle taps for the American dream because it
would undermine our job base, prevent new companies
from forming, and limit our future growth.
Supporters of the Patent bills have become highly
intemperate. Patent Commissioner Bruce Lehman, a
Clinton appointee, said that those who oppose H.R. 400
are "in the Timothy McVeigh category" and on "the
lunatic fringe." (San Jose Mercury News, April 17, 1997)
Lehman displayed his personal bias in favor of big
corporations and his disdain for independent inventors
when he said he is outraged by "these people who file
patent applications and never, ever, ever go to market
with an invention, based on their application." Contrary
to Lehman's outburst, there's no reason why inventors
should have to manufacture or market their own inventions. Many inventors, such as Nikola Tesla (who
invented the electric motor) and Robert Goddard (who
invented rockets), did not go into manufacturing. It is
actually remarkable that so many inventors also became
entrepreneurs and built big companies.
H.R. 400 passed the House on April 23 but, as the
result of a tremendous outpouring of grassroots opposition, an amendment sponsored by Rep. Marcy Kaptur (D-OH) removed some of the most objectionable provisions.
The Kaptur Amendment will be described below, but first
let's explain the present law and what the Patent bills,
H.R. 400 and S. 507, are designed to change.
U.S. Patent Law Protects Inventors Under the current American patent system, the U.S.
Patent Office holds inventors' patent applications in
total secrecy until the patent is issued, thus safeguarding
the exclusive right of the inventor. If a patent is not
granted, the U.S. Patent Office continues to keep the
application secret, thereby allowing the inventor to
continue his work without someone stealing his ideas
while they are developing.
Many great American enterprises, including General
Electric, AT&T, Kodak, International Harvester,
Goodyear, Polaroid, John Deere, Westinghouse, Dow,
IBM, and Xerox grew to be great companies because
the patents issued to their founders gave them exclusive
ownership for enough time to start their businesses.
Under present law, once a patent is issued, the
invention itself and its claims cannot be challenged in the
Patent Office without a showing of prior art, i.e., prior
descriptive material about the invention in a reputable
journal of which the Patent Office was unaware when it
issued the patent.
Publication of the application before the patent is
issued would be a scandalous giveaway to foreign and
big-corporation competitors. They could use their
enormous resources against the individual inventor to
challenge and invalidate a patent application before it is
granted, or to steal the idea, make slight modifications,
and beat the individual into production. Big corporations
don't want innovation they can't control or that would
upset their existing markets.
The Attack on U.S. Patent Law
H.R. 400 is titled the Patent Improvement Act, but it
should be called the Patent Giveaway bill, the Steal
American Technology bill, or the Ron Brown Sellout
Legacy. Here are some of the most damaging provisions
of this 93-page bill, all of which are also contained in the
companion Senate bill, S. 507.
H.R. 400 and S. 507 would order the publication of
all inventors' patent applications 18 months after the
application is filed, whether or not the inventor has yet
been (or will ever be) granted a patent. This would
impose a sucker's contract on the inventor: he would be
forced to give up his precious possession now without
knowing when or whether he would ever get a patent or
how broad it would be.
H.R. 400 and S. 507 would greatly expand the
procedure for reexamining existing patents, widening the
issues subject to reexamination. This would allow
anyone, foreign or domestic, to attack all aspects of all
existing patents with the purpose of invalidating or
stealing them. The corporate challenger and its lawyers
would be authorized to intervene in an administrative
process conducted by the U.S. Patent Office rather than
the courts. This dramatic change from present procedure
would make it much easier for corporations to challenge
a patent immediately and to invalidate it later.
Foreign and multinational corporations and their
lawyers would prefer these changes, but the independent
inventor would be hamstrung by a whole new set of
obstacles to getting and keeping a patent. This change
would also impede enforcement of the inventor's patent
rights because the courts usually suspend patent enforcement litigation while a reexamination is in progress.
H.R. 400 and S. 507 would transform the U.S. Patent
Office into a separate government corporation, whose
board of directors (according to both bills) shall include
persons "with substantial background and achievement
in corporate finance and management." You can bet that
these corporate types would ride roughshod over the
rights of individual inventors.
The new corporation would have the power to
borrow and incur debt; Patent Commissioner Lehman
has said that he would like to borrow $2 billion for
priorities such as a "new headquarters." Corporatization
would inevitably put all future policies and regulations
about patents under control of the giant multinational
corporations. It would bias the entire process against
independent inventors and all small businesses and
A corporatized patent office would become a prime
target for Asian and corporate bribes for the issuing of
patents. Of course, the Patent bills don't use the nasty
word bribes; they just say that the newly privatized
Patent Office "may accept monetary gifts or donations
of services, or of real, personal, or mixed property, in
order to carry out the functions of the Office."
The Coble-Kaptur Debate
On April 23, the House rejected some of the worst
provisions of the Coble Patent bill, H.R.400, by adopting 220 to 193 an amendment presented by Rep. Marcy
Kaptur (D-OH). The Kaptur Amendment would
exempt individual inventors, small businesses and
universities from H.R. 400's provision that would
require publication of an inventor's patent application
(which fully describes the invention) 18 months after
the application is filed, instead of being kept secret until
the patent is issued. The Kaptur amendment also
deleted the Coble provision to greatly expand the ability
of foreign and multinational corporations to challenge
all existing patents.
This was a victory for grassroots Americans who
had phoned and faxed their Congressmen, since there
was practically no advance media coverage of the
impending vote. However, the Kaptur Amendment
doesn't make H.R. 400 acceptable; H.R. 400 is bad in
This victory, however, is tenuous and temporary
because well-heeled lobbyists for multinational and
foreign corporations, the Clinton Administration, and
some influential Republicans in Congress are determined to pass the Patent bill in its original form. Their
game plan to circumvent the House decision is to
quickly pass Orrin Hatch's companion bill in the
Senate, S. 507, and then exclude all opponents of H.R.
400 and S. 507, as well as all supporters of the Kaptur
Amendment, from the House-Senate conference committee.
During the House floor debate, Coble's main
argument was that it "levels the playing field between
our inventors and foreign corporations." His mantra
was "harmonization" of our patent law with the rest of
the world. That's a false description of his bill.
"Harmonization" might make sense if it meant that
American patents would be recognized worldwide, or if
we harmonized on the basis of the U.S. patent system,
which has produced most of the world's inventions. It
makes no sense to harmonize down on the level of the
countries that have produced only a tiny fraction of the
world's inventions and whose patent systems are biased
in favor of infringers. The recent harmonization of
copyright laws gives American authors copyright protection throughout the world. Coble's bill doesn't do
anything like that; instead, it just diminishes the rights of
U.S. inventors, who still have to apply in foreign countries in order to protect their patents overseas.
Independent American inventors seldom file overseas because it's far too expensive and far too difficult to
enforce a patent. In Japan, filing would expose them to
patent piracy of their technology through "patent flooding," i.e., inundating the Japanese Patent Office with
hundreds of unworthy patent applications using minuscule modifications of the American invention, followed
by bullying tactics to get cross-licensing agreements.
H.R. 400 does nothing to protect U.S. inventors from
these typical Japanese patent abuses, plus inordinate
delays and a judicial system rigged against independent
innovation. (For an excellent case history of how the Japanese cheat
U.S. inventors, see "Patent Protection or Piracy," by Donald M. Spero,
Harvard Business Review, Sept.-Oct. 1990.)
Rep. Howard Coble's "Dear Colleague" letter,
written on Judiciary Committee letterhead, falsely
asserted that "small inventors benefit under H.R.400"
because, "by requiring publication 18-months from
filing, H.R.400 would afford venture capitalists an early
opportunity to review the application." On the contrary,
H.R. 400 "would afford" the small inventor absolutely
nothing because, as the sole owner of his own invention,
he already has every right to publish it, and to show his
idea to venture capitalists, at any time.
Supporters of H.R. 400 spent a lot of time during the
House debate crying about the alleged problem of
"submarine patents," i.e., when inventors apply and then
deliberately delay the process. This is a bogus issue.
H.R. 400 supporters were not able to cite a single
example of a submarine patent since the Patent Application Locator Management (PALM) system was installed
20 years ago, enabling the Commissioner to deal with
abnormal delays. Furthermore, the General Accounting
Office reported only 627 patents over a period of 23
years that could reasonably be called a "submarine." Of
these, the majority were owned by the U.S. Government
or were delayed by security considerations. The GAO
could not determine the reasons for the other delays.
If there were about 300 "submarines" out of a total
of 2.3 million patent applications, that's only a tiny
fraction of 1 percent of patent applications. That's
hardly a reason to change our entire system and cut off
the rights of all independent inventors.
All provisions of the Coble and Hatch bills sound as
though they were written by lobbyists for the multinational corporations, such as the stacking of the board of
directors of the newly reorganized patent office with
corporation officers, and allowing the new patent office
to accept monetary gifts.
There is no reason to change our superior patent
system when 90 percent of the world's inventions are
American. No reason, that is, unless the purpose of the
Coble and Hatch bills is to appease the Japanese and
favor the multinational corporations over independent
inventors. Rep. Roscoe Bartlett (R-MD), a Member of
Congress who is a real inventor holding 20 patents, said
it best: "Don't vote to give away our secrets to every
copycat around the world."
The Asian-Ron Brown Connection
The U.S. Patent and Trademark Office probably
functions better than any other agency of the Federal
Government. It has not been touched by scandal or
corruption, and it even operates in the black. So why is
Congress trying to pass a 93-page overhaul of the
agency and make fundamental changes in our well-established patent procedures? "If it ain't broke, why
The answer is the Asian-Ron Brown connection.
Foreigners, especially the Japanese, want to change our
system so they can steal or copy our patents more
easily. Also, the multinationals are more interested in
pursuing foreign markets than in standing up for the
interests of American citizens.
In September 1993, the Japan Patent Association
issued a written statement saying that Japan wants our
patent system "changed" because it finds U.S. patent
legislation and practices "unsatisfactory." Specifically,
the Japanese objected to our system whereby patent
applications are not disclosed to the public until the
patent is issued. The Japanese said that our "reexamination system" should be changed "promptly," and
they don't like our system of jury trials.
What impudence! Our American patent system
certainly doesn't have to conform to what the Japanese
think is "satisfactory," especially when it is almost
impossible for an American inventor to get protection
in the Japanese patent system.
The U.S. procedure of keeping the details of an
invention secret until the patent is issued is a fundamental protection for the inventor so that wealthy corporations, foreign or domestic, cannot steal his invention
before he has a chance to raise his own capital to
produce it. The Japanese and the multinational corporations don't like this. They want access to American
inventions before the patents are issued so they can steal
them. So, the Japanese have been demanding that
applications be made public 18 months after an application is filed, regardless of whether or not a patent is
They argue that this is the way other countries do it
and the United States should conform. But so what!
Other countries have hardly any inventions. Inventions
rarely happen in socialist or managed economies.
On August 16, 1994, a U.S. Commerce Department
news release from the office of the late Secretary of
Commerce Ron Brown announced that he had signed
"Letters of Agreement" in his office with Japanese
Ambassador Takakazu Kuriyama promising the Japanese what they demanded. The news release stated that
the Brown agreement "requires the U.S. Patent and
Trademark Office to publish pending patent applications
18 months after filing . . . and expand reexamination
proceedings to allow greater participation by third
Ambassador Kuriyama was ecstatic. He immediately
wrote Ron Brown "confirm[ing]" his understanding that
the United States will do what the Japanese have been
demanding, and that "we look forward to
working with you on a regular basis . . . in the field of
intellectual property." Kuriyama then specifically
restated Brown's agreement "to make applications
publicly available 18 months after the filing date" (i.e.,
before the patent is issued), "expand[ing] the grounds for
requesting reexamination," and allowing "third parties to
participate" in reexaminations.
The purpose of the Patent bills is to write the Japanese demands and Ron Brown's agreement into U.S.
law. They are a sellout to the Japanese demands. In two
days of debate on H.R. 400 in the House on April 17 and
23, no one denied or refuted the paper trail that proves
the Asian-Ron Brown connection. Ron Brown was
at the center of the Clinton Administration's strategy
of selling out American interests to the Asians in
return for political cash to assure Clinton's reelection.
Those who vote for the Patent bills will be tarred with
the same Asian money scandal that is closing in on
the Clinton Administration.
Inventions Caused Our Prosperity
When our Founding Fathers wrote the United
States Constitution, they included a provision that
was original and unique: "to promote the progress of
science and useful arts, by securing for limited times
to authors and inventors the exclusive right to their
respective writings and discoveries." This right of
inventors even preceded our famous rights listed in
the Bill of Rights. This uniquely American right is
completely democratic; it offers the same opportunity, the same protection, and the same hope of
reward to every individual. Foreign patent law was
developed to protect vested interests. American
patent law was designed to protect individual inventors.
President George Washington signed the first
Patent Act on April 10, 1790, which codified the
distinctively American rule that inventions should be
encouraged by guaranteeing to every inventor the
exclusive right to his invention for a fixed term of
years, after which the public is free to use it -- and
the public always benefits far more than the inventor.
Thomas Jefferson, who was himself an inventor, was
the first administrator of the American Patent System. He personally examined all the applications
presented. Before he died, Jefferson was able to say,
"The issue of patents for new discoveries has given
a spring to invention beyond my conception."
We've seen the spectacular results. America has
only five percent of the world's population, but we have
created more new wealth than all other nations in the
world combined and become the greatest industrial
power the world has ever seen.
A study of the inventors honored in the National
Inventors Hall of Fame in Akron, Ohio reveals that 91%
of the world's greatest inventors worked in America
and only 9% in other countries. This is not because
Americans are genetically smarter, but because our
superior patent system provides incentives to inventors
to create new ideas in their garages or kitchens or
bicycle shops, secure in the knowledge that they own a
property right in their inventions. Our patent system
promotes ingenuity, innovation, and entrepreneurship.
It is the fountainhead of American progress -- and,
indeed, of the world's progress.
In honor of the Bicentennial of the United States
Constitution in 1987, Phyllis Schlafly wrote and produced a multi-media program called "American Inventors." The U.S. Bicentennial Commission stated that
this program has "exceptional merit with national
significance, and substantial educational and historical
value." It has been preserved as a 40-minute video and
is available from Eagle Forum, Alton, Illinois 62002 for