![[Dividing Line Image]](images/div.gif){kind=small}
Report of Mike Kirk's Briefing on HR400
Wed. March 19th 1997
by George Margolin
Notes and comments on the Briefing put on by the advocates of
HR400.
Congresswoman Zoe Lofgren -- made a quick introduction and
hurried off, she said, to vote on House floor.
This left a young woman from IBM to introduce the speakers, the
first of whom was from IBM. He was a pleasant person who gave us
virtually no information about HR 400 other than that IBM wanted
it. Why? It must be good or we wouldn't want it. Oh?
Mike Kirk, the former Deputy Assistant Patent Commissioner, who
left the PTO shortly after Lehman came aboard, was the main
speaker. He is now Executive Director of AIPLA, (American
Intellectual Property Lawyers Association), a group of mainly BIG
corporation IP lawyers.
Kirk spoke about an hour with questions being asked by the
audience made up mostly of legislative staff people that had been
invited. The author of this report, however, found many important
questions were unanswered by this carefully sanitized and limited
presentation and asked a number of pointed questions, which Mr.
Kirk tried to avoid. He was unsuccessful in doing so.
Government Corp -- like the Post Office -- Who would profit from
this? The US? NO! It already makes more money than it spends and
the Congress takes 54 or 90 or 120 millions, depending on the
year.
Wouldn't the fact that it is permitted "to accept gifts of
money or property or services" lead it to favor the Biggest
giver? Will it lower the inventor's cost of getting a patent? No!
The inventor pays for ALL of the PTO operations -- including the
money sloughed off by the Congress, Will making it a private
corporation help the inventor. Not likely knowing the people who
would be running it with no meaningful Congressional oversight
and its hand-picked large-corporation, "directors" who
themselves would have no oversight but themselves. Smacks of
foxes guarding the chicken coop.
18 month Publication -- Mr. Kirk informed his
audience of Congressional Legislative Assistants that "The
Average patent pendency -- was "20.2 months" So, he
said, that early publishing at 18 months was not dangerous to
inventors. I then asked him -- if the patents are going to issue
in only two point two months more, why go to the expense of
publishing them in 18 months. I asked if is possible that the
19.2 month figure of Mr. Lehman before Congress and the 20.2
month figure he had just stated are BOTH WRONG? For instance --
are those figures measured from the ORIGINAL filing date of the
patent as is the beginning date of the 18 month publication
requirement? Or are they measured from the "last
filing" before the patent issues? If the PTO used the
original filing date instead of this Mickey Mouse date --
wouldn't that increase -- considerably the REAL pendency of even
the most average of average patents? Or -- if we used the same
method of stating the age of a used car, wouldn't it be only as
old as the date of its last paint job?
And does this 20.2 month figure apply to the large percentage --
more than 30 percent -- of all patents that are required by the
patent office to be refiled, reissued, continued or divided out
into more than one patent? Isn't it true that these larger, more
complex, more serious -- perhaps even more "important"
patents, have an AVERAGE PENDENCY OF 47 MONTHS OR MORE?
He gave no answer, but the answer is YES -- 47 months or longer
-- as published by the GAO -- (General Accounting Office).
None the less, Mr. Kirk said that these changes would be
"good" for us." But how or why he wouldn't say.
He did say that some of our biggest Multi-nationals say they
think it will "Level the Playing Field." Will it not
Level the PREYING Field for those who already prey on patents?
Who will need Industrial Espionage when the secret, unprotected
premature patent applications are "ripped
unripe" from the womb of the Patent Office and published for
the world to see?
I asked him why would we want to go to the Japanese patent system
since that is just what it was designed to do -- permit the
biggest and richest companies to control the patent office.
When he responded, saying that although it was true that the
Japanese system ill used the premature publishing, ours would be
different. I said "Really? Congressman Dana Rohrabacher, on
the Floor of the House was told by then Congresswoman Pat
Schroeder, Sponsor and Author of the Predecessor bill H.R. 3460,
that "We are going to have the same patent system as they
have in Europe and Japan." It's in the Congressional Record,
I said. Is that what is best for America? Do we want to become
clone of the Japanese Patent system with its "Patent
Flooding?" That's where the large Japanese corporations see
the "Laid Open" patent applications and surround these
unborn fetuses of patents with dozens -- even hundreds of
nuisance variations. Why do they do that? In order to force
inventors and other companies to "Cross License" their
patents for nothing. The alternative to a smaller party is to be
brought to its knees and broken by constant oppositions from
multiple deep pocket corporations and their millions upon
millions of Yollars (a combination of Yen and Dollars).
Prior User Rights equal Prior
User Wrongs ) I asked Mr.
Kirk. Wasn't that brought to this bill by Bill Budinger -- who
"was SHOCKED to discover" that he was supposed to apply
for a patent or his trade secrets might be independently
discovered or reverse engineered by his competitors? He agreed
that it was.
I then informed Mr. Kirk that because of this and the fact that
Mr. Budinger actually had a few of other patents, his intentional
"ignorance of the law" seems less than excusable or
truthful. Despite his patent knowledge he used his
"ignorance ploy" to try destroy the American Patent
System which was created in 1790 Specifically to
discourage the American Inventors of the time, from relying on
Trade Secrets as their only means of protecting themselves from
copiers. Trade secrets, while a possible choice -- as in Coca
Cola -- do not teach and do NOT raise the level of American
Technology, as our enormously successful Patent System has done
so brilliantly these past 207 years.
Worst yet -- this "PU" (Prior User) ploy seems to be
the way Mr. Kirk's backers -- foreign and Multi-national, are
attempting to bring the Japanese and German, First-to-File -
race-to-the-patent-office -- system, to our shores. These
"Prior User Rights" require the FREE LICENSING of any
patent issued on the same process or invention that the PU used,
or prepared to use or seriously thought about using or spent
money investigating the use of -- a year and a day BEFORE THE
PATENTED INVENTOR FILED THE PATENT!!!
Filed the Patent? said I to Mr. Kirk. What if the patent filer
had INVENTED it long BEFORE the "PU" started using it?
Or perhaps the PU learned of the inventor's pre-application work
and "borrowed" the technology?"
Whatever happened to our two hundred year old First-to-Invent
system. Isn't this a means of sneaking First-to-File into our
patent laws? He did NOT deny that this could be a means of moving
us to First-to-File (which he favored), but said they had to
start somewhere so their PU could get a free license -- and a
year before filing sounded to them like a good place to start.
The camel's nose under the tent, said I.
And though a small PU was granted "only" a free
non-exclusive license -- IF he just happened to be bought by a
HUGE company -- Mitsubishi or the like -- wouldn't that HUGE
company own this FREE license on the inventor's patent? Yes! So
much for the worth of the patent, said I.
Submarine Patents -- Then he brought up the subject
of "Submarine patents" -- a ploy, he said, that could
be used by unscrupulous inventors or companies to extent their
secret pendency for years and suddenly pop out of the water to
force companies to pay them royalties on inventions these
companies had never heard of and "believed" were in the
public domain.
Note: In the handouts they passed out, was one titled
"Submarine Patents" and it named two inventor's, one of
them Lemelson with five so-called submarine patents and another
inventor who "no one had ever heard about for 20 years,
until his patent issued." I asked Mr. Kirk if he had any
more names than the two on the handout. He said, "there were
many." How many I asked? Could he name more names. He
changed the subject.
I then said -- Isn't it true that Commissioner Lehman told a
Congressional hearing that there were 627 patents he had found,
which over a period of 22 years had taken longer than 20 years to
issue. He told this hearing that these were "submarine
patents." But, when we examined these patents we found why
they had taken so long. About two thirds were kept from issuing
because they were military secrets or for other national defense
reasons. I told Mr. Kirk that only about two hundred and a few
were slow for unknown reasons. But -- there seemed to be no way
to know which ones, if any, were intentional "submarine
patents." Did he know which ones that were?
But, I told him, if, for the sake of argument, we were to accept
the 'submarine" theory -- during that same 22 year period
there were TWO MILLION TWO HUNDRED THOUSAND PATENTS ISSUED.
Meaning that ALTOGETHER those unexplained patents constituted
only THIRTEEN THOUSANDTHS OF ONE PERCENT!!! -- or about 12 per
YEAR of "possible" dilatory patents. For that minescule
amount -- you are willing to drastically change and risk our
entire 207 year old patent system?
To that, Mr. Kirk replied, "If only one child dies we should
do all we can to stop that from ever happening again."
I answered, "I'm sorry to have to tell you this, Mr. Kirk,
but what I think you're really telling us is that, since you know
that at least one child born in the United States will grow up to
be a killer -- YOU ARE WILLING TO KILL ALL THE CHILDREN IN
AMERICA TO KEEP THAT ONE MURDERER FROM GROWING UP!
Remember, said I, that our patents and inventions are our
children that grow up to be the technologies and industries that
have made us the greatest technological nation in the world. What
you are attempting to do will eliminate our technological
leadership completely.
Dead silence -- and he ended the conference.
In conclusion -- Please remember, when thinking about the above
and about Mr. Kirk's push for H.R. 400 -- the Japanese Patent
System is notorious for being the most biased, unfair and least
enforceable patent system in the world. Among other reasons,
because it does not have our doctrine of equivalents. And the
legal system which is its foundation, does not have
"discovery," the one real way to level the playing
field.
In addition, it allows opposition -- long BEFORE the patent
issues. And these oppositions can keep the patent from ever
issuing or extend its pendency for DECADES. For example, the
Texas Instrument, Kilby patent took 29 years to issue in Japan.
Do we really want to or need to emasculate our patent system and
all of our inventors? Do we really want to make it impossible for
us to ever develop another Thomas Edison? H.R. 400 will guarantee
no new Edisons -- just maybe some foreign built Edsels.
Margolin Development and Rent An Inventor