The Hook Brian Elfman: "A Deplorable Track Record" 

1999 Patent "Reform" 

    Tomorrow (Thursday, March 25, 1999) a hearing is scheduled for testimony on a  draft mega- bill titled "American Innovators Protection Act." The principal author is Rep. Howard Coble. This is the revised version out of defeated
HR400/S.507 (S.507) in the 105th Congress; where the S.507 version was revised at least twice before the end of the 2nd Session; but that these bills were themselves a "log-rolling" revision from a group of defeated bills in the104th Congress. A deplorable track record well deserved.

    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 stop
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 cdi@ricochet.net

 

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Brian Elfman is an inventor and entrepreneur. Reprinted with permission.



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