In sum, this is legislation that seeks to shift constitutional
and legislative rights from American Independent Inventors to large
international corporate interests. (American Independent Inventors include both individuals and small business.)
This all has been packaged in different forms. In
the 104th, it was harmonization. In the 105th, it was the 21st C. patent
reform. Now in the 106th, its the "American Innovators Protection Act."
Through all this, the then management began running the PTO as a private
business. Congress was successfully lobbied to increase fees. In the course
of several years, the
Clinton-Gore Administration raked in hundreds of millions of dollars in revenue into the general fund. The losers were (and still are) American Independent Inventors -- whose patents are expiring for nonpayment of maintenance fees at a rate of very close to 85% by the end of the twelfth year from issue.
1998 seemed to be a good year for the American Independent
Inventor. We sort of got the Administration to acknowledge withholding
the full patent text from the internet was illegal. We killed S.507. We
got rid of an administratively insecure and technically incompetent management.
We got a 25% reduction of maintenance fees. The Administration agreed to
taking fees out of the PTO. So, where do things stand now? Alas, its only the wind; if you look at the shore the ship is in much the same position.
First, Lehman saw to it that the "full text" was
sufficiently altered so as to essentially defeat the availability of an
actual patent for free off the internet. A real patent is only available
from a repository CD-ROM or from a private dealer. Remember, we had the
entire thing on CD-ROM at all libraries. The drawings or graphics called
"images" in PTO terms still a year later do
not appear. Lehman spent a lot of money to see that the American public could not access an actual patent unless they engage a private document firm or attorney.
Second, a reading of the "Moving into the 21st Century"
("21st C.") by Dickinson, (which appears to have been removed from the
PTO website having been posted on about March 4, 1999, See PATNEWS, March
14, 1999) clearly demonstrates that the PTO continues to be run as a transaction
based enterprise. Inventors are "customers". The public are "stakeholders."
Interestingly, the section of the 21st C. paper relating to achievements under Dickinson -- like the restoration of reasonable time for turn-around of filing receipts and the time to issue after allowance -- actually prove the previous mismanagement. This effectively continues the treatment of the PTO like it was a private corporation. Just like it was under Lehman. (Indeed, the 20th C. paper cites Vice President Gore denoting the PTO is an “impact” agency on the public.)
The Commissioner is the Chief Judicial Officer of
the PTO. See U.S. v. Duell, (1899) 172 U.S. 576. Under the principles set
out by Chief Justice Fuller, it makes no difference whether the PTO is
a Title 5 independent agency or an adjunct to the Dept. of Commerce. It
must be wholly independent of encroachment by the Administration. Through
the Clinton-Gore Administration that principle has not been observed. Its
wrong for the Commissioner's office to involve itself in this controversial
legislation. Hardly, would the PTO as a transaction or performance based
organization under present policies meet Chief
Justice Fuller's constitutional standards he crafted 100 years ago. The shenanigans of the Lehman era can only be prevented by codifying Duell.
I do not see any thing objectionable to the patent office as an independent Title 5 agency, and maybe that's a better way. As long as the head of the patent office is the Chief Judicial Officer and must be appointed and approved by the Senate. However, all the attributes of the original proposed private corporation seem to remain in Rep. Coble's bill.
Congress apparently is ready to come to grip with
having to do away with maintenance fees. Only then will the American Independent
Inventor be assured that her or his patent will be good for the entire
statutory period. Let's not forget a most remarkable document, the letter
signed by 26 Nobel Laureates in September 1997, that reminds us of our
traditions -- a patent committee is how we have dealt with reaching such
times as may require us to keeping the PTO up with technical advancements.
Accordingly, its time we do precisely that.
Brian Elfman email@example.com
Brian Elfman is an inventor and entrepreneur. Reprinted with permission.
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