[Congressional Record Volume 142, Number 90 (Tuesday, June 18, 1996)]
[House]
[Pages H6499-H6506]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
PROTECTING AMERICA'S PATENTS
The SPEAKER pro tempore (Mr. Fox of Pennsylvania). Under the
Speaker's announced policy of May 12, 1995, the gentleman from
California [Mr. Rohrabacher] is recognized for 60 minutes.
Mr. ROHRABACHER. Mr. Speaker, I agree that we voted today to get to
the root causes and to condemn the hatred that resulted in the warped
mind that resulted in the burning of black churches in America, or
synagogues or any other kind of churches, that this is not something we
can tolerate in America.
But let us say the root causes of that type of bigotry are found in
the same type of actions that try to limit people's right to speak
because they disagree with you. They feel you have a
[[Page H6500]]
right to prevent someone from speaking, whether at a high school
graduation or a college graduation. Discourtesy is one step away from
tyranny, and I have seen that throughout my life.
Clarence Thomas is a man of extraordinary courage, honor, and
intelligence. He has stood up against a liberal political machine that
he knew would try to destroy him personally rather than debate his
ideas. It is tragic that this mean-spirited attack continues on Justice
Thomas. He deserves the respect of America and at the very least he
deserves to be treated courteously. Unfortunately, many liberals do not
know what the meaning of courtesy is.
With that, let me say that one thing about America is that we have
diverse values. This is something we rejoice in. We are a land of
diversity. People cannot say it enough. This is a blessed land. Yes, it
has faults, many faults. We will work together as Americans who love
freedom to try to fix those faults.
That is the way it has been since our founding. We had a lot of
faults back then. While I am grateful to our Founding Fathers and our
founding mothers, I do not idealize them as being perfect. But in those
days 200 years ago, they did have a dream and they did give us
something to work with, and we have built a great Nation. They began
that great Nation and expect us to try to perfect it.
Our Nation was founded not by Puritans alone--Puritans played a role
in it--but also by malcontents, nonconformists, individualists,
pathfinders, free thinkers, explorers, developers, people who were
fiercely independent and lovers of freedom. Yes, there were also slaves
that were brought here against their will, and we tried to correct that
which was a major blot on America's soul.
They were an optimistic lot, those Americans of 100 and 200 years
ago, firmly believing that with liberty and technology, ours would be a
shining city on a hill, a beacon of hope for all mankind, where our
problems and our faults would be corrected but where the common man,
even then, through hard work and responsible behavior could raise a
family in decency, and all would have an opportunity to improve
themselves and build a Nation as they did.
This may sound like hyperbole but it is not hyperbole. Yes, we had
faults, let us admit it. But the fact is we also had dreams. Those who
founded our country were dreamers. They could see fields that would
feed a hungry world and factories that would raise the standard of
living of working people, and in times of great peril would become an
arsenal for democracy to which freedom-loving people of the world could
turn for salvation.
They knew America would succeed. The fundamentals were here. Freedom,
guaranteed rights for all people. Yes, in the beginning it was not all
people. Today we have not totally reached that dream but that is what
we are trying to do. Here was also this richness of diversity that
would make America unique among the nations.
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Our new country would not be held together by a common culture or
common race or common religion. No, it would be a love of liberty that
would unite us and a commitment to the principles of liberty and
justice that would hold us together. One thing else gave them an
unbridled positive view toward the future. They believed that
technology would lift the standard of all human beings with the
production of new wealth.
America would not be about dividing wealth, it would be about
building, planting, engineering, and creating new wealth. After all, we
were the most undeveloped country of the world at that time. Thomas
Jefferson's home in Monticello is filled with his personal inventions,
inventions of little technologies that he know would help lift some of
the burden right there on his own farm and, if emulated, lift the
burden elsewhere throughout the country.
Ben Franklin was not just the grand old man of the American
revolution. He was an internationally acclaimed technologist, having
invented the pot-bellied stove, bifocals and having experimented with
electricity. I do not even know if children these days, when they read
their history books, know about Benjamin Franklin and his technological
endeavors. They might not even know about Ben Franklin, for all I know.
Well, it is no coincidence that our Founding Fathers wrote into our
Constitution a mandate for the establishment of a national Patent
Office where any person could register an invention and would have a
guaranteed property right to ownership of that innovation for a
specific number of years. This was to ensure that inventors and
investors would have an incentive to create the means to solve problems
and to uplift the standard of living of our people. The guaranteed
patent term works. America had the strongest patent laws in the world
and our people reaped an unimaginable reward.
It was no mistake that it was here that Robert Fulton created the
steamboat. How many people know that the steam engine was created long
before Robert Fulton? In fact, in ancient Greece, there was a steam
engine, but they did not believe the common person should have burdens
lifted off of his shoulder, and in fact a steam engine had been put on
a boat crossing the Rhine River much earlier but the boatmen gathered
round and the boatman's guild forced that steam engine off the boat.
But here Robert Fulton was able to put that steam engine on a boat and
able to patent that concept and to create a piece of equipment that
would change the world and uplift the standard of living of mankind.
What about Eli Whitney's cotton gin, which created enough clothing
for people to wear and brought down the price of clothing, or Cyrus
McCormick's reaper, or Thomas Edison's electric light bulb, or Sam
Morse's telegraph, or Alexander Graham Bell's telephone, things that
changed the world forever. Where were they created? Where were they
invented? Right her in the United States.
In the late 1880's, it was seriously suggested, in fact, because our
people had been so creative and created so much that the Patent Office
be shut down because, ``Everything that can be invented has been
invented.'' At that very moment, two working men, brothers who owned a
modest bicycle repair shop, were working on a machine that would lift
mankind into the heavens.
Mr. Speaker, the Wright brothers demonstrated the indomitable spirit,
what was hailed as exemplary, as the best of our country. Yet these two
people were basically on their own. They had some investors. They were
not men of education or wealth. They were ordinary working people who
changed the lives of every person on this planet.
So why has it been America? Why was it that those two individuals
were able to succeed? Certainly not our race because we have many
different races and ethnic backgrounds. It certainly was not our
religion. We have many religions. It is not our great universities. The
Wright brothers never went to college, although I will have to admit
our educational institutions certainly have helped this. The genius,
the unparalleled inventiveness of our people can be found in the fact
that our laws have protected inventors.
We have had the most stringent and all-encompassing patent laws and
patent protection of any country of the world. Our laws have fostered
private investment in innovation. The mainspring of America's progress
can be found, above all else, in the guaranteed patent term and the
honest enforcement of our laws, so that inventors knew their rights
would he recognized and protected, investors knew they would be
permitted to reap a reward for risking their money they invested in
unproven technology.
One of the lesser known inventors in America, a man who had
tremendous impact on the living of our people, was a man named Jan
Matzeliger. He came from the humblest of beginnings and for years he
was eating corn mush and just barely surviving. Because he was an
American of Color, a black American, he suffered unforgivable
discrimination, turned away even from churches where he sought to
worship God. As he labored in a shoe company, strenuously stretching,
cutting and stitching, he visualized a machine that would revolutionize
production. With little education, he wrote and traced his idea for a
complicated piece of equipment.
Living in poverty, he found a couple of old cigar boxes and strings
to simulate a working model, and although he
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had no status, no credentials and certainly no collateral, he caught
the ear and the eye of two investors who bank-rolled his venture for a
hefty share of the profit. On March 20, 1883, a patent was issued by
the U.S. Patent Office.
Within a few years, Matzeliger's ``lasting machine'' is what it is
called, ``lasting machine'' was standard equipment for shoe
manufacturing. The price of shoes began to drop as the average worker,
instead of putting out one or two pairs an hours, could put out 50
pairs an hour. The price of shoes was cut by 50 percent. Untold
millions of people benefited from Matzeliger's invention. For
Matzeliger and his investors, they had the guaranteed patent term of 17
years in which to reap the rewards of an innovation that had uplifted
ordinary people. Matzeliger lived a fruitful life and a full life. When
he died, he left a considerable sum of money to the churches of his
community. But it was stipulated in his will that none of the money
should go to any church that turned him away because of the color of
his skin.
America should have respected all the rights of all of its citizens,
but even in that great time of discrimination, the rights of
technological ownership, through the patent law, was so ingrained in
our people that the patent rights of black Americans and people of
color were protected. This commitment served our Nation well.
Now, I am not saying that all of the patent rights and all the
property rights of black Americans were protected because they
obviously were not. But obviously they were protected to the point
where this black American was able to benefit greatly from his
invention. America went on and basically the history of our country can
be seen in the development of these new technologies. We went from a
desolate frontier to a powerhouse of freedom and opportunity. There
were those who see the fundamental changes in America, and they are
trying to affect what we do in America and they believe in America. But
sometimes people who are trying to affect the course of our history are
not so up front about their goals for our country.
One of the things Bill Clinton did after becoming President, one of
the first things he did was to send Bruce Lehman, his appointee, to
head America's Patent Office to Japan. Now, is that not funny? Right
after getting elected, he appoints someone to head the Patent Office
and immediately sends him to Japan. There, Bruce Lehman, the new head
of our Patent Office, concluded a hushed agreement to harmonize
America's patent law to that of Japan's.
Now, we got almost nothing in exchange for the changes, for exchange
for our changes. We got almost nothing in exchange in the sense that
the Japanese law did not change almost anything. In fact, there were
just a few anemic restrictions that were placed on Japanese corporate
interferences and that is about it. But we, on the other hand, changed
and agreed to totally harmonize our patent law with that of Japan. Now
that may sound really strange to the American people. It may sound
really strange to our colleagues that someone goes overseas and makes
an agreement to change the basic law of our land, which has been in
place since the founding of our Constitution, and make it mirror that
of a foreign country.
We did that in exchange for some little anemic change in the Japanese
law. By the way, that promise may be very similar to Japan's promises
to open their markets. Decades ago, Japan promised us they would open
their markets, and basically they promised and they promised and they
promised. Yet decades later, we still are having trouble getting our
goods into the Japanese market. Perhaps this even weak little thing
that they gave us in exchange for totally changing our patent law,
maybe they will treat that the same way as nothing more than scribbling
on a piece of paper. In the meantime, Bruce Lehman and multinational
corporations, are doing their God-awful best to change our patent law,
our fundamental patent law. They made the agreement with the Japanese
to do it.
Mr. Speaker, now they are coming here with legislation to the
Congress to fulfill their promises to change or law and make it like
the Japanese law. Well, they tried to do it as quickly as possible and
as quietly as possible. Step No. 1 was eliminating that guaranteed
patent term of 17 years. This has been a right of Americans for
American inventors and American investors for 134 years; before that,
it was a guaranteed patent term of 14 years. But it was always a
guaranteed patent term. No matter how long it took you to get your
patent issued, once you had applied, if it took them 10 years to get it
issued, you would still have 17 years of guaranteed protection.
Well, trying to keep this downgrading of American patent rights quiet
while, instead of coming to Congress originally with the very first
attack on the patent system, and that is the legislation of changing
our patent laws, a provision was snuck into the implementing
legislation for the General Agreement on Trade and Tariff. Now that may
sound odd as well. But you see, if you put something in that
implementing legislation for the GATT Agreement, Congress was only able
to vote up or down on this one omnibus bill. No amendments were
allowed. Thus, a Member of Congress would be forced to vote against the
entire world trading system in order to vote against changing our
patent law.
Many Members of Congress had no idea that they put this into there
because this was total, the tactic was a total betrayal because we were
told that the only things that would be put into the GATT
implementation legislation was that which was required by GATT itself.
It was a betrayal on our citizens. The Members of Congress should
understand that that indicates some foul play is going on. GATT again
did not require the eliminating of the guaranteed patent term, so it
should never have been put in there in the first place.
Well, I created a stir when I found out that in the GATT
implementation legislation was this unnecessary or unrequired
provision, something that would dramatically change our laws, and so
that was 1\1/2\ years ago. I was promised that there would be a chance
to correct this part of the implementing legislation, that eventually
on the floor we would get our chance to change this.
Well, changes in the patent term of course are not easy to
understand. Those people who are trying to fundamentally change how our
Government has acted and what or fundamental laws are on the patent
term know that this is a difficult issue for people to understand. They
are relying on that ignorance, on that inability of Americans to focus
on the intricacies of these kind of laws in order to do us in and to
bring down America as the No. 1 leading economic power in the world.
Traditionally, when an American inventor or investor has filed for a
patent, no matter how long it took, remember this was the traditional
law, the Patent Office could take as long as they wanted, and many of
the major patents take 5, 10, even 15 years. But once it was issued,
there was a guaranteed patent term of 17 years to reap the benefits of
new technology. Foreigners or anybody else would use that technology
who have to pay royalties to those people who invented the new
technologies. Again, it was their right to a guaranteed patent term of
17 years, and up until 1\1/2\ years ago, when that provision was snuck
into GATT and the first move to harmonize our system with Japan's was
put in place. During the time before, and this is before this change,
when the patent was issued, everyone was secure in knowing they would
have that 17 years of full benefit.
This system not only encouraged inventors but it encouraged
investors. Thus private dollars by the billions have been allocated in
our society for developing new technologies. Matzeliger's two investors
knew that, no matter how long it took him to get that patent, that,
once he got it, they all would benefit from this invention because they
would have a guaranteed patent term of 17 years. We did not rely on
Government bureaucracy. We relied on private investors. We did not rely
on taxes by the Federal Government. We relief on innovation through the
private sector because we gave people an incentive to invest by
guaranteeing a patent term.
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We relied on freedom and the profit motive. Well, the new system,
which is
[[Page H6502]]
nothing more than the Japanese system superimposed on us, is much
different, though again it is very hard to understand the significance
of these changes and these differences.
Under the new code, and that is under the code that was put in under
this GATT implementation legislation, the day that an inventor fights
for a patent, that day 20 years later he has no more rights, he or she
has no more rights to that patent and to that technology. Twenty years
later, and the time is up.
If it takes 10 years, and, by the way, this is the system now in
place that replaced the old system, if it takes 10 years for a patent
to be issued because the bureaucracy is slow or outsiders are trying to
slow down the process, in the past the investor still had the
guaranteed patent term of 17 years, even if it took 10 years to issue.
Under this new system, after 10 years one-half of the investor's patent
term has been eaten up. He or she only has 10 years left. In other
words, the clock is ticking against the inventor, against the
innovator, and not against the bureaucracy.
Now, anyone who has studied the process knows that it is not unusual
for breakthrough technologies, that is the innovations that change the
world, these are the innovations that we as Americans always invented,
that the innovations that produce the tens of billions of dollars of
new wealth often take from 5, 10, and even 15 years for a patent to
issue.
For example, the laser took 21 years before the patent was granted.
That means under the new system, the inventor of the laser would have
received no benefit, zero benefit, from his invention, and the
investors in that project would have reaped no benefits. The
microprocessor took 17 years. The microprocessor took 17 years. Under
the old system, once it was issued that man had 17 years of patent term
left. Under the new system, he would have 3 years left.
Polypropylene, the plastic they make in which they use to store milk
and other containers, took 33 years before the inventor received the
patent. He would have had absolutely no patent protection, and in fact
would have probably died a dissolute person knowing that his invention
had been stolen from him.
Now, what does this all mean when the clock is ticking against the
inventor? It means the bureaucracy and special interests, not only
domestic interests, but foreign interests as well, have leverage on the
inventor. During negotiations, which are part of the patent process
when someone is looking to get a patent granted, he has to go through
these negotiations, the inventor, if the clock is ticking against him,
he can be ground down, because he will or she is vulnerable. If a
patent can be delayed and the time shortened, what does that mean?
Well, it means all those royalties that were once going into the bank
account, if you can shorten the time period that the person actually
holds that patent, because now you elongated the process and he only
has that 20 years, and it is ticking against him, all those royalties
that were going into the bank account of American inventors, because
they have that 17 guaranteed years, now they do not have it. All that
money that used to be flowing into their bank accounts is now rerouted
into the account of huge foreign and domestic and multinational
corporations.
To claim stolen royalties, of course, someone is eventually issued a
patent. An individual must pay lawyers and legal specialists to go to
court. Get the picture? The little American inventor going to
Samsung or going to Mitsubishi or going to Sony and trying to beat them
in court, especially in a Japanese court? The little guy in our country
gets ground down. The Wright Brothers, had that law been in place,
would be smashed by the Mitsubishis of the world.
Now, get that. The Wright Brothers, the equivalent of a Wright
brother today, beaten down by Mitsubishi, and we end up in the years
ahead with the Japanese building all of the major airplanes flown all
around the world, and Japanese aircraft workers living at a higher
standard of living, and our aerospace engineers living in poverty.
This system which our Patent Commissioner Bruce Lehman wants to
emulate, he wants American law to be like the Japanese, has ill-served
the Japanese people. It might have helped some of these big
corporations and those people who run the corporations, but little, if
any, innovation is born in Japan. Few, if any, inventions are started
there. The Japanese are rightfully known as copiers and improvers, not
inventors nor innovators. Their laws, which Bruce Lehman wants America
to emulate, have permitted powerful business conglomerates to run
rough-shod over their people. They have beaten down anyone who raises
his or her head.
As far as technological development, in Japan an inventor who applies
for a significant patent is immediately confronted with hostile
interferences with the process. Pressures, official and unofficial, are
applied to beat down the applicant so that by the time the patent is
issued it is a hollow shell. The rewards are limited.
However, the rewards are great for some people in Japan. Yeah, the
big guys, the giant corporations envelop the innovation and pay little,
if anything, in royalties for the benefit they receive, or should we
say steal. It is the difference between a society based on individual
freedom versus collectivist egalitarianism. During the patent debate
that we have been having here over the last year, Bruce Lehman, the
head of the American Patent Office, constantly claimed the purpose of a
strong patent law is to facilitate the dissemination of information to
the society as a whole. That is the ultimate in antifreedom,
collectivist freedom, and has nothing to do with what our Founding
Fathers had in mind.
In our country, the rights of the individual are paramount. These
patent laws were meant to protect individuals' property rights over the
rights of necessarily some huge interest group claiming to speak for
the benefit of society as a whole.
We basically believe the individual has the right to own his or her
prompt and especially if it is his or her own creation. That is what
our Founding Fathers did when they put the Patent Office into our
Constitution. Our respect for the property rights of the small farmer
and the individual businessman is based on an understanding that by
protecting the rights of the little guy, especially the property
rights, all of us are going to benefit in the long run.
We believe it is through individual endeavors and personal
responsibility that someone prospers, and when a population of
individuals acts in that way, the society prospers. Lehman's approach
treats individuals as secondary and in a collectivist whole, who if
they insist on their rights for themselves, must and will be crushed.
Of course those trying to challenge our system will never admit this.
Those trying to change the fundamental patent law will never believe
that is what is really guiding them and that is their philosophical
premise.
A change is coming, not as part of a major debate, basically a major
debate in our whole democratic process. That is not the way the change
in our society and patent rights for future technology is happening.
Instead, it is happening by subterfuge, sneaking provisions into treaty
legislation or an omnibus bill so that the evil that is taking place
will be hard to understand and the actual changes will be obscured by
all the rest of the things in the bill.
When one can force the advocates who are trying to press these patent
changes, when we force them to engage, they claim that their goal is
not to destroy America's traditional patent system. That is not what we
are trying to do, they say, no. Instead, they are trying to solve a new
problem that has been plaguing American business, and that is this
problem that basically is enriching inventors. They say these inventors
are being enriched, and these inventors are the ones manipulating and
gaming the patent system so that by the time that a 17-year patent term
is actually granted to someone, that they have actually more time to
collect on the other side of their patent.
What they throw up as an excuse for changing the fundamentals and
eliminating the right of Americans to a 17-year guaranteed patent term
is something we call the submarine patent. Well, that is what they say.
You people are gaming the system.
Certainly, that is true. A few, a very few self-serving inventors
have been
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able to elongate the process in which their patent application is being
considered, thus putting off the issuing date, which means that the 17
years of patent protection which they are guaranteed end a little bit
later rather than a little bit sooner. Of course, they are not getting
the protection up front as well during that time period.
Some inventors enjoy royalty benefits then in the outer years, and if
they had not gamed the system they would not be receiving the same
benefits in the outer years of their 17-year guaranteed patent time,
because their patent would have expired.
Well, making things worse, according to the other side, if the system
is gamed for a number of years, let us say somebody is able to game the
system for 10 years to prevent their patent from being issued. Other
companies may come up with the same idea and those companies must now,
because the other person has already applied for their patent, those
other companies must pay royalties to the submarine patenter when he
comes to the surface and gets his patent. Because a patent application
is secret until the patent is issued, the other companies did not even
know they were going to have to pay royalties for using this
innovation.
Thus, it is a ripoff and unfair. That is the argument on the other
side.
Submarine patents, however, may or may not be the problem. Whatever.
That some people game the process, well, that could be true, but that
is no excuse for eliminating the guaranteed patent term of the American
people. That is like saying if someone abuses the right of freedom of
speech, that we can come in and destroy people's right for freedom of
speech. Or someone abuses a religious freedom, we just eliminate the
religious freedom guaranteed our people.
Let us remember this: The vast majority of all patent applicants, and
I am talking about more than 99 percent, are doing everything in their
power that they can possibly do to get their patent issued as soon as
possible. They beg, they plead, please, issue the patent, because they
will not receive any benefits until it is issued.
By the way, those people who are gaming the system to elongate the
process, some new invention might come along that makes their invention
obsolete and they are taking that chance. That is why almost all
inventors, nearly all inventors, do everything they can to get the
patent issued right away. As you know, this new innovation could leave
them behind, whether they are submariners or people trying to get
through the process and the bureaucracy is not issuing the patent.
A few submarine patents do represent a minuscule part of the system
and have been a problem. So this problem can be dealt with by reforming
the process, not by eliminating the guaranteed rights of all Americans.
My bill, in fact, H.R. 359, which will be on the floor as a
substitute to the Steal American Technologies Act, H.R. 3460, includes
a provision to publish any application of an inventor who uses a
continuance to intentionally delay the process. Over and over again, in
the year and a half that I pushed on this issue, I have offered to put
into law anything that would curb submarine patenting, which some
people claim is a big problem and I am saying it is a minuscule
problem, but I will do anything, put it in my bill, just so long as the
change does not eliminate the guaranteed patent term.
Let us have it flagged. If someone is delaying it, let us try to
change it by getting administrative change. Let us make sure that if
someone is delaying the process, it goes to a special board to make
sure they cannot delay it.
But the other side would have no compromise. They would not agree to
any changes, except eliminate the guaranteed patent term. Why? Because
that is what is in the Japanese law. In order to harmonize Japanese
law, that is what we had to do.
So, what was their motive if they were not going to change the law?
It might have been they wanted to harmonize our law with Japan, and
submarine patent, well, maybe that was just something used as an excuse
or perhaps they were really upset about it. But whatever it is, let us
say this: That if someone tells you that they are concerned about your
health and you are complaining to a doctor, you have trusted yourself
to someone to make a medical decision for you, and have a hangnail on
your foot, if that doctor insists on cutting your leg off in order to
correct that problem with your hangnail, you better get a new doctor.
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And that is what they are proposing here. We have a submarine patent
problem that affects a minuscule number of people, so we are going to
destroy the patent rights of all of the American people to a guaranteed
patent right.
Well, that makes no sense. And if a doctor tried to tell me, well,
no, I am really concerned; I am concerned about your health, and that
is why we are going to cut the leg off. And when I say, well, do you
not want to clip my toenail off rather than cut my whole leg off? No,
no, we will cut the leg off, then you will not have any more hangnails.
You should say wait a minute. Maybe you better think twice about that
person's motives when he is trying to sell that kind of logic.
Let me note that this change we are talking about which they
implemented in the GATT implementation legislation was the first
crucial step in harmonizing our patent laws to those of Japan, and that
is what I assume is the real goal of this legislation of H.R. 3460,
which will be coming, and the real purpose of these people's
activities.
Let us note this push for the harmonization with Japanese law started
long before anyone ever heard of the term submarine patent. This has
been going on for 10 years now, and yet no one ever heard of submarine
patents all those years ago. Those words were not even part of the
patent lexicon when the attempt was made to dismantle America's patent
system and harmonize it with Japan so long ago.
During the debate over patent law, Mr. Lehman has used the bogeyman
of the submarine patents; yet when we have checked his figures, we
found many of the so-called submarine patents he has spotlighted are
not issued and published. Why? Yes, there are some patents that have
not been published and not been issued for a long time. Do you know
why? Almost all of them, not almost all but a huge portion of them are
defense-related technologies.
Yes, the figures Mr. Lehman has given trying to say these are
submarine patents, a lot have been not issued because they deal with
sensitive defense technologies we did not want the world to know about.
But, again, if it is a problem in terms of having people game the
system and delaying the application, we can handle it with basically
administrative reforms, rather than totally obliterating the system and
eliminating the guaranteed patent term.
My bill, H.R. 359, would reinstate the guaranteed patent term of 17
years and facilitate any action against the manipulation of the system.
Then, by mandating the publication of applications of people who are
intentionally delaying the system, we could prevent them from delaying
the system and having a submarine patent.
I am offering this as a substitute for H.R. 3460, which is a patent
bill designed basically to complete the destruction of our current
patent protection system. And basically this whole maneuver to destroy
our patent system and replace it with the Japanese started, step one,
with the GATT implementation legislation.
H.R. 3460 is step two, and better than anything else it demonstrates
what is really going on. This one is easy to understand. It is
understandable to the point that it unmasks the goals of the very
powerful international as well as domestic forces that are at work
trying to change our patent system.
H.R. 3460, which I call the Steal American Technologies Act, is
officially called the Moorhead-Schroeder Patent Act, is a package
that obscures the mind-boggling provisions that it claims by lumping it
together with other things, but not enough to obscure the real facts.
One of the provisions introduced in this bill was introduced last
year under a bill that was entitled the Patent Application Publications
Act. Now this bill is part of 3460, the Patent Application Publication
Act, that was really a title people could understand. Basically, it is
early publication of patent applications. People can understand what
those words mean. The title is
[[Page H6504]]
too self-explanatory, so that is why basically they changed it to the
Moorhead-Schroeder Patent Act.
The provisions of this bill, now get into this, because everybody can
understand what is going on when they hear this, this bill mandates
that after 18 months every American patent application, that is every
application of our innovators and our creators, when they apply, all
this was always kept secret until the patent was issued in the past.
Well, now it is mandated that every one of those applications, whether
or not a patent has been issued, will be published for the world to
see.
Every thief, every brigand, every pirate, every multinational
corporation, every Asian copycat will be handed the details of every
application to our patent office. Our newest and most creative ideas
will be outlined for them, even before the patent is issued to the
American inventor. It is an invitation for every thief in the world to
steal American technology. Lines will form at copy machines and fax
machines to get this information out to America's worst enemies and our
fiercest competitors.
H.R. 3460 is entitled, as I say, the Moorhead-Schroeder Patent Act.
Again, the provisions that we are talking about, it is almost mind-
boggling that someone could, without shame, promote this on the floor
of the House.
The authors of this bill suggest that we should not worry about if
domestic, foreign, and multilateral corporations steal the new ideas.
The patent applicant, once he gets the patent issued, which may be 5 or
10 years down the road, they can sue the new applicant, can sue the
pirates once he has been issued that patent. The price tag on a simple
infringement suit begins at one quarter of a million dollars.
Boy, that makes you feel good, does it not? The average American is
now going to be up against Sony, Mitsubishi, Honda, you name it, every
company in Japan, and you might even have to go to court in Japan or
China or Thailand, or anywhere else, in order to fight them. And you
have to pay your legal bills and they have got the profit from your
technology already to use as the basis to beat you in court.
As this bill was being passed through the subcommittee, this bill
already passed the subcommittee and the committee, I was in my office
talking to the president of a medium-sized solar energy company in
Ohio. And when I asked what would happen if this provision became law,
he clenched his fist and angrily predicted that his Asian competitors
would be manufacturing his new technologies before his patent was
issued; that they would then use the profit from selling his new
technology to defeat any court challenge and destroy his company in the
process.
His overseas competitors would have the further advantage, get into
this, of never having to pay for the research and development of that
new product in the first place. The Americans flip the bill, they use
it, they develop the technology, profit from it, and they beat us in
court with money that we have had to pay to develop the technology in
the first place.
This is a nightmare and it faces every American small and medium-
sized company. Anyone who cannot afford a stable of expensive lawyers
is at the mercy of the worst thieves in the world. Of course, the big
guys and the huge corporations are backing this change in our law
because they want to globalize the world trading system, even if it
means diminishing the rights of the American people.
Those big guys, they have the contacts overseas to make sure their
products are not being stolen, and of course they have the money to
spend on lawyers to deter such thievery. But for the little guys, it is
open season.
Of course, we must do this. You have to remember, now, the reason we
are doing this is to prevent the evil submarines, these evil submarine
patenters who might elongate their patent by a couple of years. We have
to make everybody in this country, we have to make them vulnerable to
the worst thieves in the world because there are a few people who might
want to elongate their patent protection for a few years by gaming the
system in a submarine patent.
Yes, I am sure that is really what it is all about. This provision is
another part of harmonizing our patent law with Japan, and that is what
this is really all about. It is not about submarines. That is baloney.
Another provision of H.R. 3460 is, hold on to your hats because here
is another provision, it is the abolition of the U.S. patent office. It
is in our constitution and it has played a vital role in protecting the
American people and the rights of the American people for all of these
years. Yet now, H.R. 3460, the Steal American Technologies Act, will
separate it from the Government, limiting congressional oversight.
Now it is part of our Government, so Congress has a right to
investigate. It will limit congressional oversight. H.R. 3460, the
Moorhead-Schroeder Act, will make the patent office into a Government
corporation, sort of like the post office.
Now, I am in favor of privatization of services that our Government
need not provide. Corporatization of a core function of Government,
however, is a terrible idea. Something that the Government should do?
Should we privatize all the judges in our country? Basically, we are
trying to corporatize and take out of the Government's sphere the job
of protecting the intellectual property rights of our people. This has
been a core function of our Government since 1784.
Along with corporatization, by the way, what comes with that? That is
the stripping of our patent examiners. They do not have any oversight
by Congress, or very little, and then they will strip these patent
examiners of their civil service protection. This opens up all of these
people to outside pressures and influences.
These are the individuals, these patent examiners, who work really
hard. They are trying to make determinations, basically quasi-legal
decisions, to determine who owns what. Well, taking away their civil
service protection is like stripping the robes off a judge. It opens
the door to corruption of the entire process. And if the patent office
is corporatized, the head of the patent office, guess who it is, Bruce
Lehman, Mr. Harmonizer of our laws with Japan, can make the changes
that he and the board of directors want to make, with very limited
congressional scrutiny, of course.
In the coming era, when technology and creativity will be more
important than ever to determine America's future, we are, through H.R.
3460, decoupling the protection of patent rights from our Government,
cutting it off from congressional oversight and leaving our people in
the hands of an autonomous board of unelected officials. Who will be on
that board? Unelected officials representing Lord knows what special
interests will be represented on that board. Foreign and domestic
special interests. These people will be making determinations as to who
owns America's technology; basically determining our well-being in the
future, which depends on America's leadership in technology.
The Steal American Technologies Act, H.R. 3460, which will be coming
to a vote here in Congress next week, must be defeated. And my
substitute, the Rohrabacher substitute, should take its place, which is
basically the Patent Restoration Act. That is the choice our Members of
Congress will have, H.R. 3460, the Moorhead-Schroeder Patent Bill or
the Rohrabacher substitute.
One might ask why has a bill as obviously detrimental to America's
interest gone so far as it has? First and foremost our big businesses
have been bought off, or they have bought off, excuse me, on the idea
of globalizing the world economy and harmonizing our patent rights as
part of that deal of creating this new global economy, basically, even
if our foreign competitors renege later.
We are going to make sure we make these deals now to create the
global economy, even if our competitors renege on the deals they are
making right now. So we are going to change the law now, the patent law
and other things, to create the global marketplace, and that is going
to be a sign of good faith so that these foreigners that are making
deals with us for our global economy will not go back on their word.
Huge foreign and domestic and multinational corporations have been
visiting individual Members and lobbying hard, spending loads of money,
buying their influence peddlers around town.
[[Page H6505]]
And sometimes those influence peddlers look just like former Members of
Congress, interestingly enough. And that is a big factor of why this
thing is sliding through Congress.
Second, the Members of Congress hear from the biggest companies in
their district, and it makes a difference if the biggest company in
your district comes to you. You do not say, well, you do not represent
the interest of the people as a whole; you do not even represent the
interest of our employees. They do not say that. They listen to what
that big boss in that company has to say.
These big company executives with the dreams of a global market
dancing through their corporate heads basically have no, absolutely no
commitment to the rights and the well-being of the American people
because they are secondary to this great dream. If somebody has a dream
to renew the world, watch out, brother. Whether it is a Communist or
anybody else, if they are going to redo and make this world into a
nirvana, watch out.
In this case they are going to create a new global marketplace, and
in the process, what is going to happen? If in order to accomplish this
they have to cut deals to bring down the rights and standard of living
of the American people, so he is equal to other people's rights, well,
they are willing to do it. We cannot allow that to happen.
Finally, there is another factor. Two Members of Congress pushing
H.R. 3460, the Steal American Technologies Act, these two Members are
retiring from Congress. Mr. Moorhead and Mrs. Schroeder are asking
Members to support their bill because it is their swan song. Carlos
Moorhead has worked long and hard here and he is a good man. Mrs.
Schroeder has worked long and hard, and I am sure many people agree
with her basic philosophy. Well, they are asking others to basically,
well, even if you do not agree with us, vote for it because it is our
swan song. Do it as a favor to us, as a tribute to our many years of
service.
{time} 2215
That is true. They want people to vote in that way to do them a
favor, voting for legislation that will determine America's economic
competitiveness and the standard of living of our people for decades to
come.
After the subcommittee markup of this bill, most of the Members I
spoke to did not even know that H.R. 3460 mandates the publication of
all patents issued or not, whether those patents have been issued or
not after 18 months. They did not know that the bill obliterates the
patent office and corporatizes it, stripping away any Civil Service
protection from the patent examiners and limiting congressional
oversight.
The people on the committees did not even know this. I talked to them
and they were oblivious to it. They knew they were giving Carlos
Moorhead and Pat Schroeder their swan song, the last big piece of
legislation that they wanted. We cannot permit this unsavory tactic to
succeed, as much as we all admire in our respective parties Carlos
Moorhead and Pat Schroeder, and we do admire them, they have worked
long and hard here for the things they believe in, the votes on this
issue are as vital to America's futures as anything I can--I have never
seen anything that is more important than this coming through this
body.
We cannot vote on something so important to America's future as a
part of a tribute to someone in their last year of office. If they want
a swan song, give them a commemorative coin, but do not destroy
America's technological advantage. The swan song argument is nothing
less than no argument at all. They have not been arguing at all. They
have been using the pressure of huge corporations who have no loyalty
to the well-being of the American people and no loyalty to the values
that we talk about overseas.
This battle will determine, this battle that we are in will determine
if America remains the number one technological power in the world, and
these huge corporations are in talking to every Member of Congress. The
only argument that the authors of this are giving is, please pay us a
tribute. They are going to, one way or the other, Members are getting
hammered on this. This is the ultimate, when we really look at it, the
ultimate little guy versus big guy fight. Standing for the Rohrabacher
substitute and a strong American patent system is a coalition that
includes the NFIB, small business organizations and every
inventors association in the country is supporting the Rohrabacher
substitute.
Over 50 top research universities and colleges nationwide who rely on
patent income to bolster their research programs are supporting my
substitute, including Harvard, MIT, the University of Florida, LSU,
Columbia, Northwestern, the University of Wisconsin. Also strongly
supporting the Rohrabacher substitute for H.R. 3460 is Patent Office
union, these men and women who struggle and work so hard to try to be
diligent in their work who are going to find their entire civil service
protection stripped from them.
On the other side is just about every big business organization you
can imagine. With interlocking directorates and foreign ownership, no
one can be sure how much foreign and multinational influence is being
exerted on this issue. But it is considerable.
Who will win? It is up to the people. Members of Congress need to be
personally contacted. H.R. 3460, the Moorhead-Schroeder Patent Act,
which I call the Steal American Technologies Act, must be defeated and
the Rohrabacher substitute put in its place. This vote could well come
to the floor early next week.
Anyone who needs more information, by the way, interestingly enough,
if someone wants to read the bill in fact for themselves, they can. It
is available on the Internet. The terrible details are there for the
American people to see. If someone has got a home computer, they can
get it on the Internet and take the time, if they want to take the
time, to go and do this and to download the information and see it for
themselves.
They actually, they can actually go to their internet computer and
get the copies of the bills and try to decide for themselves. It is
available at WWW dot House dot gov and then slash Rohrabacher. That is
R-o-h-r-a-b-a-c-h-e-r. Here is the internet information again: www dot
house dot gov slash Rohrabacher.
So this decision that we are about to make in this body will
determine the well-being of our people, the standard of living of every
American. It will determine the competitiveness of the United States of
America and it will determine our future.
Is the United States going to be a shining city on the hill, a
shining city of innovation and progress, sparkling there, or a
backwater subservient to the dictates of a global elite? A land of
free, prosperous people looking to the future, or a Nation looking back
and wondering why and how we lost our edge in the world?
Together we can make democracy work. H.R. 3460, the Steal American
Technologies Act, can be defeated and our rights to the best technology
in the world and to make sure America is the technological leader in
the world can be restored by the Rohrabacher substitute. It is now time
for people to become part of the democratic process. Those people who
are trying insidiously to change the law in a way that would, 10 years
down the road, be a sneak attack on the well-being of our people, they
are basically confident that they are going to win because they think
this issue, the patent issue, that people are going to yawn or they
will not be able to understand it or will not be able to understand
just what is going on here. They are thinking this is going to slide
through Congress because they have got these big corporate heads
calling on Members of Congress.
Unless we take the power in our own hands and participate in the
system, which is what our Founding Fathers wanted us to do, I believe
that Thomas Jefferson today would be so proud that internet is being
used to give people the actual wording of the bills that are being
considered here on the floor of the House of Representatives. Thomas
Jefferson, Benjamin Franklin, they would say, that is exactly the kind
of society we had in mind because we knew America would not be perfect.
The Founding Fathers knew there would be special interests working in
our country, but they knew and they trusted in the free people of this
country to get involved.
Let us make sure we do get involved. Let us make sure that Ben
Franklin
[[Page H6506]]
and Thomas Jefferson, who are looking down on us today, will know that
we have picked up the torch because we are, after all, the children of
Thomas Jefferson. We will not give up our rights, and we will fight for
this democratic process.
I would invite all of my colleagues to join me in this effort to
ensure that the American people's right to a decent standard of living,
to freedom beyond anywhere else in the world, that that right, those
rights are protected.
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