One of our most important constitutional rights is the right of inventors to have, for
limited times, "the exclusive right to their . . . discoveries." This uniquely American
provision in Article I, Section 8 of the U.S. Constitution marked a profound turning point
in world history.
Most of the world's inventions are American, and they have proved an essential
factor in American economic growth and prosperity. Our marvelous inventions are
fundamental to our enviable standard of living and to building America into an industrial
Our basic constitutional patent right is now under attack from the lobbyists for
Japanese and multinational corporations. It would be wiped out by a bill that has already
passed the House Judiciary Committee and is rushing toward a vote in the House.
H.R. 3460 would order the publication of all inventors' patent applications 18
months after the application is filed, whether or not the inventor has yet been (or will ever
be) granted a patent. This would be a dramatic change from our traditional treatment of
patents, and would be a grievous injustice to the individual inventor.
Inventors' patent applications have always been held in total secrecy by the U.S.
Patent Office until the patent is issued, thus safeguarding the exclusive right of the
inventor. It is kept secret forever if he is not granted a patent, so the inventor can
continue his work without someone stealing his ideas while they are developing.
Publication of the application before the patent is issued would be a tremendous
giveaway to foreign and big-corporation competitors. They could use their enormous
resources against the individual inventor to challenge and invalidate a patent application
before it is granted, or to steal the idea and beat the individual in getting a patent and
going into production with it.
H.R. 3460 would make the U.S. Patent Office a private corporation, inevitably
putting all future policies and regulations about patents under control of the giant
corporations. This would freeze the individual inventor and all small entities out of the
invention process, wiping out their constitutional patent rights.
H.R. 3460 would allow outside parties, including foreign entities, to challenge all
existing U.S. patents in a reexamination process conducted by the U.S. Patent Office
rather than in the courts. Previously, once a patent was issued, the invention itself and its
claims could not be challenged in the Patent Office without a showing of prior descriptive
material about the invention of which the Patent Office was unaware when it issued the
This dramatic change from past procedure would make it easier and far cheaper for
outside parties to invalidate a patent. This change would also impede enforcement of the
inventor's patent rights because the courts usually suspend patent enforcement litigation while a reexamination is in progress.
H.R. 3460 would thus amount to a major power shift from the courts to the Patent
Office. Foreign and multinational corporations might prefer this, but the individual
inventor would lose his traditional protections of due process, rules of evidence, and jury
H.R. 3460 is sponsored by Rep. Carlos Moorhead (R-CA) and Rep. Patricia
Schroeder (D-CO), the ranking members of the two parties on the Intellectual Property
Subcommittee. Both are retiring from Congress this year and will then be available to
lobby for the big corporations and foreign interests that will benefit from this bill.
Passage of the Moorhead-Schroeder legislative swan song would bugle taps for the
American dream. It would undermine our job base, prevent new companies from
forming, and limit our future growth.
Many great American companies, including General Electric, AT&T, Kodak,
International Harvester, B.F. Goodrich, Goodyear Tire, Polaroid, John Deere,
Westinghouse, and Xerox exist today because the patents issued to their founders gave
them exclusive ownership for enough time to start their businesses.
Another serious infringement of inventors' patent rights was concealed in the fine
print of the GATT Agreement, passed by Congress in the infamous lame duck session of
November 1994. This changed the term of exclusivity granted by a patent from 17 years
from date of issuance of the patent to 20 years from the date of application.
This curtails inventors' patent rights in cases where the processing of the patent
application suffers delay. The Patent Office may be dilatory in processing the
application, big corporations may falsely assert ownership of the patent, or the process
may be slowed by the harassing litigation made possible by H.R. 3460.
Fortunately, some Congressmen are alert to the interferences with patent rights
under both GATT and the Moorhead-Schroeder bill. Rep. Dana Rohrabacher (R-CA),
with 55 cosponsors, is pressing for a vote on H.R. 359. It would correct the mistake in
the GATT Agreement by making the term of patents the longer of either 17 years from
the date the patent is issued OR 20 years from the date the application was filed.
In introducing the companion bill in the Senate, S. 284, Bob Dole said, "Our
inventors and creative Americans all over the country deserve the maximum protection of
their intellectual property. We should not jeopardize their investment in ideas. The new
[GATT] rule threatens that investment. [We must] restore the most important aspect of
an inventor's livelihood: the period of time he owns his invention."