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Patent Reform is a Patent Giveaway

schlafly-postAmericans should beware when members of Congress talk about "reform" and "comprehensive" because those words usually cover a lot of mischief. The latest example of this legerdemain is the so-called Patent Reform now aggressively pushed by Senate Judiciary Committee Chairman Patrick Leahy, D-Vt.

Since we've outsourced millions of well-paying American jobs overseas, the one asset we have to maintain our American standard of living is innovation superiority. The United States is the world's leader in technology innovation, which is due to our private enterprise economic system, our constitutional protections of private property and most especially our unique system of granting patents to inventors.

Other countries can produce things we invent more cheaply because of the pitiful wages they pay, but they have a dismal record of inventing anything. Lacking expertise in innovation, some foreign countries concentrate on stealing ours.

Communist China is the world's top producer of illegal copies of music, movies, software, designer apparel, medicines and other U.S. products. Chinese agents stole or illegally purchased high-tech machines and systems, restricted electronic components, embargoed components for military weapons and communications systems in order to copy them.

Now that communist China has become America's banker, China is flexing its muscles in a new way that threatens our economy and our jobs. The buzzword is "indigenous innovation."

China has promulgated new anti-American trade rules that prohibit imports of our products unless they are based on intellectual property that is developed and/or owned in China, and associated trademarks are originally registered in China.

These rules mean that U.S. products cannot be sold in China unless the U.S. companies give China their current patents plus their research and development of new products. This targets our most innovative manufacturing and service industries, including computers, software and telecommunications.

The Chinese government has issued a catalog of products that are subject to this obnoxious rule, and the list is expected to be expanded soon to other industries. China's "indigenous innovation" rule will exclude many major U.S. firms from the Chinese market or require them to give China their patents and advanced technology.

Yongshun Cheng, former senior judge and deputy director of the Intellectual Property Division of Beijing High People's Court, stated bluntly that the proposed U.S. patent bill is bad news for American innovation and good news for foreign infringers. He pointed out that the bill "is friendlier to the infringers than to the patentees in general, as it will make the patent less reliable, easier to be challenged and cheaper to be infringed."

President Obama has promised that exports are the key to our recovery from the current recession. But China's "China First" policy drives a dagger into our hope for more exports. Free trade now means free to China.

Nineteen U.S. trade associations, including the U.S. Chamber of Commerce, the National Association of Manufacturers and the Business Roundtable, signed a joint letter to six Obama administration agencies calling China's behavior "alarming." The letter warns that this rule poses "an immediate danger to U.S. companies" and to their "ability to create jobs here at home."

The longtime consensus among government and business elites has been that as China became richer, its interests would become more like ours. It didn't work out that way because China is a communist totalitarian country striving for military and economic superiority.

Our American patent system is a precious American property right that the Founding Fathers put into the U.S. Constitution even before they added freedom of religion and speech. The inventor's exclusive right to his discovery for limited times was unique in 1787 — it still is unique, and 220 years of experience have proved it is the world's best system because the overwhelming majority of great inventions are American.

Our successful system is under attack not only by the foreigners who want to steal our innovations, but also by some big corporations. Most of our breakthrough inventions have come not from big corporations, but from independent inventors and small companies.

The big corporations, however, have the lobbyists and the lawyers, and they are breathing hard on Congress to change our patent law to make it easier to challenge the patents granted to small inventors. The big corporations want to challenge a patent after it is issued (known as post-grant review), thereby delaying for many years the inventor's ability to use his own invention and forcing him to spend a fortune on litigation.

Congress should hold a new hearing to listen to the views of real inventors. We also want to hear what the Obama administration and Congress will do to protect U.S. innovation, inventors and small businesses from Chinese theft and arrogant attempts to force us to give away all our patents.

Phyllis Schlafly is a lawyer, conservative political analyst and the author of the newly revised and expanded "Supremacists." She can be contacted by e-mail at phyllis@eagleforum.org. To find out more about Phyllis Schlafly and read features by other Creators Syndicate writers and cartoonists, visit the Creators Syndicate Website at www.creators.com.


2 Responses »

  1. Gee, Phyl wonder who let the China fox into the henhouse? For want of a tax increase to fund the Iraq War the Bush Admin did. I believe paying for our own wars was an American thing until then.

    You seem to want to do say of things with this diatribe.Condemn China and communism. Overtly blame Obama. Big Corporations are greedy. Small businesses are often innovators. Congress idle. Obama weak. Chamber of Commerce strong.

    I know how close to home protecting patent rights are to you. I agree but how petty of you try to use this as a way of ascribing weakness to the current administration.

  2. Leticia Juarez responded: “I know how close to home protecting patent rights are to you. I agree but how petty of you try to use this as a way of ascribing weakness to the current administration.” Leticia, before you accuse others of being petty and of jumping to conclusions, be sure that you aren’t doing so yourself.

    Phyllis Schlafly was correct to ascribe weakness of the Obama administration in succumbing to big corporations’ patent reform agendas, at the expense of startups and small businesses, who produce the majority of new domestic American jobs. This is not a petty assertion. President Obama brought into the Commerce Department and the US Patent Office (USPTO) big-business players who, prior to joining the administration, had lobbied on behalf of big corporations like Microsoft and IBM for patent reforms that serve only their interests. The problem is that these people did not cease the lobbying activity and are now actively doing so within the government while enjoying the deference to their office. Earlier press accounts warned against this trend at http://www.politico.com/news/stories/1109/29002.html. It appears that no one listened and now the blatant lobbying continues more overtly. The USPTO Director David Kappos has used his position and government web sites to lobby for patent reform matters that have much more to do with his former employer’s agenda and much less with his agency’s expertise and responsibilities. He has taken an overt public position in favor of the same things that he lobbied for so strongly while at IBM (see http://www.uspto.gov/news/speeches/2009/2009nov5.jsp#heading-5). In his recent advocacy for the patent reform appearing on the government site http://www.uspto.gov/inventorseye/kapposLetter.htm, he has exposed again his true colors and the success of the conspiracy to get officials in the positions of power to advance their former employers' agendas. Instead of focusing his patent legislation efforts on obtaining USPTO resources to improve examination quality prior to patent grant, Director Kappos advocates introducing new procedures at the USPTO to challenge the patents after his agency issues them (post grant review). He also advocates a transition of the U.S. to the weak grace-period first-inventor-to-file system pushed by large corporations including his former employer. Both of these provisions would not only harm small business patentees, but would also undermine the direct mission of the USPTO. This is because they will increase delays in patent grants and reduce patent quality, if enacted.

    With big-corporate IBM as his only experience, and as the head of an agency that has no expertise in small business invention development processes and entrepreneurship, Director Kappos purports to know better than small business patent applicants how the proposed patent legislation will affect their R&D and their patent application activities prior to filing. He received a December letter challenging his positions and identifying substantive and specific concerns of small business organizations on the proposed patent legislation (see http://j.mp/SB-Coalition-Letter-to-SBA). Nevertheless, in the February “Inventorseye” article linked above, Kappos had deliberately ignored substance and had repeatedly chosen a “red herring” to obfuscate and mischaracterize the concerns as a “First Inventor False Debate”.

    In supporting a U.S. transition to the weak grace-period first-inventor-to-file system, this administration reversed decades of U.S. government international intellectual property policy position that defended and maintained the long proven American system of a strong grace-period protection for the first-to-invent. All past Republican and Democratic administrations have understood the importance of this protection to small business, startups and individual inventors. Unfortunately, the Obama administration allowed its policies to be hijacked by big corporate lobbyist serving within it.