2004 B.C. Intell. Prop. & Tech. F. 060801

I. Introduction.

In a spectrum of governments that range from totalitarian (dictator or communism) to tribal (without any central government), there is a unique form that provides a symmetrical balance between the government and the independent inventor; this symmetrical balance produces technological advancement.^[1] Once this symmetrical balance is discovered, it allows independent inventors to have secure and unchangeable protection from the federal government that facilitates the courage and mentality to take risks of time, effort and wealth.  The willingness of free inventors to take a chance on the free market without government intervention but with inventor controlled government exclusionary protection should be the goal of every patent law system.  At one time the United States (U.S.) government held this precise symmetrical balance.^[2]

The global harmonization of U.S. patent law has initiated a process of destroying that unique, symmetrical, Constitutional balance that fostered the greatest two hundred year period of technical advancement the world has ever known.  The goal of the U.S. government has now been shifted to transform the U.S. patent law system into one of many uniform multinational global patent law systems; the implementation of this new international intellectual property framework began in 1995 through the Uruguay Round Agreements Act (URAA).  A fixed and secure rule (over a hundred years of law) of having a fixed patent term was toppled for a 20-year floating patent term. This change ended the confidence of the financial world in a 17-year fixed term that allowed the investor a more secure rate of return on a high-risk investment.  The American Inventors Protection Act of 1999 (AIPA) patched the four-year blunder by making the 17-year patent term recoverable through extensions.

However, the AIPA was used as a second global harmonization implementation against the U.S. patent law system.  The AIPA now forces U.S. inventors and financial investors who want to test the value of their inventions in foreign markets to publish the application within 18-months of filing corresponding to the Patent Cooperation Treaty (PCT) 18-months of filing publication rule.

Between 1995 and 1999, the U.S. economy began to stagnate and crumble; between 1999 and 2003, the U.S. economy has continued to fall at an alarming and progressive downward rate.

Given the fact that the 20-year floating patent term was a horrific mistake in terms of the U.S. Constitution and the U.S. economy, will the 18-month publication rule start the U.S. on the road to a global market or continue on past the URAA tripping point to the gradual collapse of the U.S. economy?^[3]

A.  The Ancient and True Symmetry that Propels the Intellectual Ascent of Mankind.

What makes inventors invent?  World history proves that mankind progresses when individuals are free from actual or imagined governmental intervention or oppression.^[4]  Two basic forms of government can be categorized within two theories to help explain this governmental intervention or oppression.

The most common theory classifies humans as bees who should sacrifice all personal wealth, energy, and production for the common good.^[5]  This form of government is based on the humanist reasoning that, "Some insects actually do seem to be controlled by an authority outside themselves.  The honeybee, for example, appears to be wholly lacking in self-faith and individual initiative; a will-of-the-swarm seems to control it."^[6]  As an appealing and fashionable idea in the world, it offers economic equality, security, and social order.^[7]  The suppression of religious freedom, personal freedom, freedom of expression, and thought is the result of this type of government.^[8]  The bee theory of mankind is instilled in its subjects through the idea that the individual is not responsible for his or her actions since he or she evolved from animals, and, therefore, the individual must be controlled through the use of force or fear.^[9]  In order to become competitive and stay competitive in the global market, countries that accept and impose the bee theory must steal intellectual property from other countries where the individual is free to invent.^[10]

Another and more rare form of government is based upon the theory that men and women are unique individuals, divinely created with the freedom to benefit or suffer as a result of their own actions.  The self-evident and perpetual truth is that human energy, "cannot be made to work efficiently except in an atmosphere of individual freedom and voluntary co-operation, based on enlightened self-interest and moral responsibility."^[11]

Mankind’s history cycles from freedom, peace, enlightenment, and progress to a reduction of productive energy, an increase in bureaucracy, an increase in taxation, economic stagnation, poverty, and ultimately war.^[12]  In order to perpetuate the growth of U.S. intellectual property, the precise, symmetrically constitutional relationship between inventors and government must be guarded to avoid economic stagnation.

B. The Dark Ages to Europe Were the Light Ages to North Africa and Arabia.

A direct application of these two basic forms of government, dictatorial opposed to tribal, can be found during the dark ages where Europe was covered in technological darkness, whereas North Africa was not.  In Europe, under dictatorial rule, mankind digressed to the stone ages; in North Africa, without a central government, the technology of mankind flourished and progressed.

Free North Africans invented and gave to mankind technical advancement exemplified by the following examples:  mathematics, algebra, Euclid’s geometry, plane geometry, spherical geometry, trigonometry, and astronomy.^[13]  In medicine, these free people conducted medical research and made advances in surgery through the use of medical schools, hospitals, and operated with local anesthesia.^[14]  They invented talcum, sherbet, naphtha, gypsum, and benzine.^[15]

These free people were the Saracens.^[16]  They were formed by the seventh century through the formal teachings of Mohammed, who was building a new religion in response to the simultaneous organization of the Roman Catholic Church.^[17]  The Saracens allowed freedom of religion and the fundamental human rights of life, liberty, and property.^[18]  Jews and the Old Christians were tolerated for religious and industrial reasons.^[19]  The Saracens had no civil law, no organization and no political structure.^[20]  In the year 1492, when the last great stronghold of the Saracens (e.g., Spanish Moors) fell to the Crusaders at Granada, Spain, Christopher Columbus sailed to the New World using essential navigational equipment invented and built by the Saracens, to wit: a sextant and a magnetic compass.^[21]  For approximately a thousand pivotal years during the history of mankind, freedom and its fruits (e.g. the sextant and the magnetic compass) literally guided mankind to a new free world.

The two basic government theories continue to compete; are we bees or are we created self-governing individuals; will we now begin to intellectually digress like Europe during the dark ages or will we intellectually advance like the Saracens?

C. Was the U.S. Constitutional Symmetry of Intellectual Property in America a Furtherance of the True Symmetry that Propels Intellectual Progress?

Symmetry is the correct or beautiful proportion of parts; it is the balance or correct harmony of parts.^[22]

The three main parts to U.S. Constitutional symmetry are the inventors, the government, and the public market. These three main components originated from the first patent law system in Venice, Italy in about 1425.^[23]  Inventors must be confident that the disclosure of their property will not result in theft. The government’s role is to protect this confidence through the nondisclosure of their intellectual property during examination and to secure the exclusive proprietary rights of the inventor to the invention.  The power of the entire Federal government juxtaposed with a single citizen independent inventor is an extremely delicate balance.  A scintilla of abuse of power by the Federal government can cause a colossal and explosive effect on the individual inventor and the incentive of all U.S. citizens who gain hope when a peer is able to elevate up.  Intellectual property law must be conducive to an individual’s incentive to invent or that delicate and personal incentive will be crushed.

Balance is the key to inventor/government symmetry.  The optimal balance must be found with rigorous analysis, allowing for beneficial international uniformity and local diversity.^[24]  A shift in the balance too far in either direction of uniformity or diversity is disastrous.^[25]  A global patent system will be difficult for the small inventors and the nations that produce small amounts of intellectual property.^[26]  What works well for New Zealand may not be good for China, and what is expedient for Japan may not work at all for Egypt.  The inventors of the world are the driving force, not the patent law systems that govern the inventors; the patent law systems must enhance, not inhibit, the incentive to invent.

The proof is overwhelming that the forefathers founded a perfectly balanced Constitutional system that fostered technological progress and economic prosperity.^[27]  The U.S. was a nation built upon a vision of freedom; that vision was dear to the forefathers.^[28]  This heroic motif lingers; America is the haven of the independent inventor where the independent inventor is our greatest natural resource.^[29]  If the American dream is destroyed, whatever value embedded in America will be destroyed with it.^[30]

Our forefathers' patent law system was unique in world history.^[31]  It provided: 1) encouragement to disclose, 2) encouragement to risk capital, and 3) reward to the inventor.^[32]  In the first State of the Union address on January 8, 1790, President Washington stated:

The advancement of Agriculture, Commerce and Manufactures, by all proper means, will not, I trust need recommendation.  But, I cannot forbear intimating to you the expedience of giving effectual encouragement as well to the introduction of new and useful inventions from abroad, as to the exertions of skill and genius in producing them at home...^[33]

On March 10, 1790, Congressv passed the Patent Act of 1790.  On April 10, 1790, President Washington signed the bill into law.  The Patent Act of 1790 was the leading patent act among all nations.^[34]

Symmetry between the individual inventor and the federal government approached the perfect balance. Carefully amended, the patent laws of the U.S. have encouraged individual independent inventors to build devices such as: radios, jet aircraft, automobile transmissions, xerography and transistors.^[35]

For 200 years, these fruits of independent inventors have been the building blocks of life, liberty, and property.^[36]  Currently, there is a determination to destroy the balance between the independent inventor and the federal government.^[37]  The United States and the Philippines are the only two nations in the world that use a first to invent or common law patent system, the remainder of the nations use a code law patent system.^[38]  The U.S. common law patent system is being converted to a code law patent system for the sake of uniformity and harmony, and U.S. inventors are to become self-sacrificing bees to serve the good of the whole world.  The false premise for this trade-off is that the U.S. will reap greater benefits from a global market.

Small businesses employ about 6.41% of the research and development scientists and engineers whereas large firms employ about 4.05% of the research and development scientists and engineers.^[39]  Large multinational corporations favor globalization and use patents mainly as a defensive mechanism whereas small businesses and independent inventors do not generally favor globalization and need patents as offensive mechanisms to protect property.  Large corporations destroy smaller competitors by size, high volume, nationwide service, prompt delivery, and a strong finance system; however, the large multinational corporations cannot easily kill a small competitor with a patent on a product someone wants to buy.^[40]

In order to maintain the current symmetry, changes to the U.S. patent law system must follow the U.S. Constitution, and: 1) improve the system, 2) encourage innovation, and 3) give inventors exclusive rights to their invention.^[41]

D. Do U.S. Intellectual Property Rights Impact the U.S. Economy?

In 1559, in the patent application of Acontius the preamble states:  "Nothing is more honest than that those who by searching have found out things useful to the public should have some fruit of their rights and labors, as meanwhile they abandon all other modes of gain, are at much expense in experiments, and often sustain much loss."^[42]

Those who presented and passed the AIPA of 1999 appear to have forgotten or have never known the enormous risk often required by individual inventors. Without risk, there is no gain.  Without a secure hope of success, inventors will not risk.  An inventor’s fortune depends on several factors: the technology, the market, the competitors, the intellectual property lawyer, the financier, and intellectual property laws.  The intellectual property rights of the U.S. citizens have an enormous impact on both the U.S. economy and the world economy.  Some of the competitors in the world marketplace use quasi-slave labor to build marketable devices with stolen American intellectual property. As the U.S. offers patent applications up for international theft by the easiest method known to man, the internet (i.e., www.uspto.gov/patft/index.html), the value of each U.S. Patent lessens in value each year and the U.S. economy will continue to progressively suffer.^[43]

The floating patent term of URAA in place from 1995 to 1999 damaged the U.S. economy; the extent of the damage is not yet known.^[44]  Prior to 1995, the U.S. patent law was static, based on three incentives:  1) the inventor’s financial incentive to invent based on the premise of retaining exclusive rights in valuable personal property,^[45] 2) the inventor’s incentive to disclose based on the guarantee of a confidential examination, ^[46] and 3) the inventor or the investor’s incentive to risk a capital investment in the invention based on a fixed and secure period of the patent term.^[47]

Since the mid-1960’s, approximately one-third of U.S. intellectual property was invented by independent inventors.^[48]  Prior to 1999, the wholesale theft of U.S. intellectual property has resulted in the loss of billions of dollars and thousands of U.S. jobs.^[49]  The boring of an 18-month hole into an already disrupted patent law system has undoubtedly made the U.S. economy worse.  The reason is that independent inventors, small businesses, and universities are limited to the U.S. market; foreign filing results in publication within 18 months so that the examination process will no longer be confidential and will subject the most vulnerable U.S. intellectual property to easy theft.  The patent abolitionist character of globalization and harmonization will result in severe economic consequences.^[50]

Pre-1995 U.S. patents were not trophies but a means for the creation of new U.S. jobs and industries.^[51]  It was self-evident that the U.S. patent system was a means to promote U.S. interests.^[52]  The U.S. patent system was never intended to be forfeited as a chip on the international gambling/bargaining table just for a seat in the international market place.  Globalization of patent law will result in reduced administration costs and the loss of jobs for patent lawyers, but globalization should be directed towards the international trade restrictions and not the destruction of U.S. patent law designed to protect the inventor.^[53]  As a result of globalization as seen under URAA and AIPA, U.S. patent law has now made the value of a U.S. patent uncertain.  This uncertainty has increased the difficulty of attracting licenses and capital investments in U.S. patents, contributing to a rising U.S. unemployment rate, U.S. trade deficit, U.S. inflation, and a slowing U.S. economy.^[54]  Intellectual property is a major portion of the U.S. economy; it is the most valuable property in the U.S.

II. What is the International Intellectual Property Framework Context that Compels the Conformance of U.S. Patent Laws?

The concept of free international trade in practice is economically wholesome to the well being of any nation.  The robustness of international trade may be tied to a nation’s standards of international intellectual property protection.^[55]  However, this argument does not justify the global harmonization of all intellectual property law to the extent of a global patent application examined in a global patent and trademark office and tested in a global patent and trademark adjudication tribunal.

The topic of harmonization of patent laws has been on the negotiation table since 1873.^[56]  Patent harmonization means patent abolitionism.^[57]  All the same patent reform arguments of today have precedence in the 19^th century.^[58]  For over a hundred years, the U.S. has been the wealthiest and most technologically advanced nation in the world.  Communist dogma teaches that all wealth should be equally shared.  Through theuse of an international intellectual property framework, the U.S. is being forced to share its most precious property with the world at no charge.  The vehicle for the implementation of this framework upon the U.S. government is the United Nations (U.N.), a growing multitude of treaties, and the AIPA.

The whole idea of harmonization appears to be to make all U.S. patent laws conform to European and Japanese standards. This conformation of U.S. patent law into the code law system of social or communist nations may result in a simple set of laws and rules that benefit industry and government.  However, the resulting, severe, and multiple disparities to the individual inventor in the socialistic/communistic nations are of no consequence; the individual bee is to live and die for the good of the whole; this type of system will be hated by most individual U.S. independent inventors.

At the opposite end of the spectrum, the U.S. patent law system was designed to protect and serve the individual inventor, resulting in a complex common law patent system.  Foreign patent office employees, government officials, patent agents and patent attorneys struggle with the complexity of the English language.  They also struggle with the ever-evolving complexity of the U.S. patent laws.  Since foreign patent laws are simple, they reason that U.S. laws should be simple.  If the people of the world can suffer for the good of the whole, then why can’t U.S. citizens suffer likewise?  U.S. wealth has invoked covetousness, envy, and frustration of the world for over a hundred years while more oppressed nations did not enjoy simultaneous technological progression with the U.S. The world has now found the opening to breech the wall and pilfer the U.S. wealth by gaining internet access to published U.S. applications through the doctrine of global harmonization enforced by the U.N. supported treaties.

The plan may be to gain complete control over the U.S. intellectual property rights.^[59] That is the sum of the chips being played for at the international negotiation table.^[60]  The World Intellectual Property Organization (WIPO) is a specialized U.N. agency.^[61]  Although the U.S. is a member of a multitude of international treaties dealing with intellectual property, and the U.S. progression toward globalization has taken a steady and continual pace, President Clinton withheld the U.S. from offering the "first-to-invent chip" to the world for the purpose of reelection in 1994.^[62]  Yet in 1999, President Clinton supported the 18-month publication rule, giving American intellectual property away; he was no longer in fear of not being reelected.  President Clinton and Congressional actions involving the AIPA make it clear that there are domestic and international forces actively engaged to weaken the U.S. patent law system so that the value and quality of U.S. patents will be further diminished.^[63]

The three main forces moving to weaken the U.S. patent law system are as follows: 1) on the domestic side, multinational U.S. companies wanting to strengthen their position in the foreign markets through the harmonization of U.S. patent laws; 2) on the international side, foreign nations wanting to facilitate their encroachment into the U.S. market through harmonization of the U.S. patent laws, and 3) on the domestic side, the U.S. budget and trade deficit are growing as the economy slides downward.^[64]

The U.S. multinational companies may in fact gain a greater global market share from global harmonization of the U.S. patent law system, and foreign companies may more easily encroach upon the U.S. market. However, is the short-term gain worth the long-term loss?  If the U.S. market dries up, the foreign companies have gained nothing, and U.S. multinational companies lose the infrastructure that provided their foundation.  In the long run both players are losers, and the cost to the world is beyond calculation.

The Japanese patent system focuses on providing industrial development by disseminating technology. In contrast to the Japanese patent law system, prior to 1995, the U.S. patent system focused on protecting the individual patentees and protecting personal property rights to further the individual’s pursuit of happiness.^[65]

Instead of working to upgrade the patent law systems of the world by using the U.S. patent law system as the model it has been since 1790, are we downgrading it to level it with the patent law systems producing patents of lower value?^[66]  Given the fact that the U.S. companies have a high degree of dissatisfaction with the Japanese (J.P.) patent law system, how is degrading the U.S. patent law system for the entire world worth the short-term gain in global market share positions by a few large corporations?^[67]

The third force in the forfeiture of the American intellectual property rights is the growing U.S. budget deficit and trade deficit.  The magnitude of U.S. debt combined with the growing lack of U.S. productivity compared to the other industrial nations has caused the U.S. to become more and more dependent upon the global marketplace.^[68]  Therefore, the U.S. is becoming more desperate for international products than the international market is for U.S. products.  Thus, unless the trends of dramatic U.S. economic decline are interrupted, harmonization and globalization will further the  progression toward the collapse of the U.S. economy as it is sacrificed on the global marketplace.^[69]

The international intellectual property framework does have some advantages.  It helps inventors gain international patent protection for a costly fee (PCT); it supposedly improves the U.S. patent system (AIPA); and finally, it helps American inventors gain footage in the Japanese market (TRIPS).^[70]  Harmonization does bring uniformity to the patent systems of the world, and it decreases the amount of duplicative paper work.  However, globalization is a blind alley for those who abhor thought and careful analysis.^[71]  The global viewpoint requires mandatory conformation of patent laws and the irrevocable forfeiture of hundreds of years freedom that has repeatedly been paid for with the highest degree of human sacrifice.^[72]

Patent activity by the independent inventor, the small business and universities, which helps provide the infrastructure to the large multinational corporations and foreign businesses, will diminish as a result of the global harmonization of patent laws.  This will decrease the technological advancement of the U.S. and damage the economy.  The independent inventor feed technology to the large multinational corporations who, by their nature, inhibit and sacrifice freedom of thought for the sake of order and uniformity. Intelligence and creativity are not limited to location nor are they subject or conducive to control and uniformity.

Keeping the patent laws and the constitution of each individual nation allows for diversity.^[73]  Diversity allows for personal preference, an increase in local wealth, and authority for each nation to tailor its laws to meet its own legal and cultural needs.  The goal of the global market should be to encourage those patent law systems producing the patents with the least valuable patents to adopt useable and appropriate parts of patent law systems that produce the most valuable patents.

The U.S. has developed the greatest market in the world.  Wise nations such as the Philippines will seek to duplicate the U.S. system to the greatest extent practicable and useful.^[74]  Diversity permits more rapid innovation and has a naturally progressive effect.^[75]  The reason for this can be seen in the failings of the United Nations.  Global harmonization of U.S. patent laws into a global patent law system will in effect allow the rich nations to form a union with veto power.^[76]  The poor nations will be left with the conclusions of the rich nations.^[77] One false premise of patent globalization is that the World Intellectual Property Organization (WIPO) will have greater expertise than the United States Patent and Trademark Office (USPTO) and that an international patent court will draw judges with greater competence than U.S. judges.^[78]

Changes to the global patent law system will require agreement by the entire world, with the same theory as that of the U.N. and the same results. The government of the world will never be unified; the last world government was the Roman Empire. Therefore, the efforts spent to build a One World government will ultimately come to a waste.  Changing and correcting a global patent system will be expensive, time consuming, and politically impracticable. How will nations agree to patent law changes when they are at war?

Essentially the U.S. is giving away its greatest assets using global harmonization as a vehicle to generate short-term additional revenue for a few large corporations.^[79]  This action is analogous to the forfeiture of human rights to be popular with an oppressive government.^[80]  It is a tragedy of colossal magnitude that cannot be allowed to continue.^[81]

Globalization of patent law systems will most likely fail based on the economic analysis.^[82] It shifts the power and emphasis from the small inventor to the large multinational corporations.^[83]  Globalization will result in the loss of local pro-patent legislation advocates and a drop in the quality of patent services.^[84]  Worldwide domestic expansions in world trade, production, and patenting activity (innovation) is the only way for globalization to be economically viable.^[85]  It is most probably a severe delusion to anticipate an upcoming worldwide domestic expansion in world trade, production, and patenting activity (innovation) accelerating concurrently with global harmonization of patent law.

III. Do the Changes Implemented in the AIPA of 1999 Maintain or Destroy the Delicate and Precise Patent Law Symmetry with the Independent Inventor, the University and the Small Business?

A. Introduction.

The restoration of the 17-year fixed patent term is an attempt to repair or maintain the delicate Constitutional patent law symmetry, but the 18-month publication rule furthers the destruction of the balance. It is well known that universities, small businesses, and independent inventors were targeted by the AIPA.^[86]  As stated by Representative Marcy Kaptur of Ohio, "we [the people of the United States] are being closed out [by AIPA]."^[87]

1. Legislative History.

Portions of the legislative history leading up to the passage of the AIPA are most telling and most disturbing.  About midnight on Tuesday, August 3, 1999, the H.R. 1907 was analyzed for  twenty highly revealing minutes by various congresspersons.

Representative Rohabacher so well said, "this title [publication] is reactive to circumstances beyond our control [emphasis added]."^[88]  In 1995 foreign pressure through the URAA moved the U.S. Congress to make arguably unconstitutional changes to U.S. patent law in favor of global harmonization; in 1999, domestic pressure through AIPA and the 18 month rule moved the U.S. Congress to make arguably unconstitutional changes U.S. patent law in favor of global harmonization.

The first purpose of AIPA was to reduce excessive regulation and to increase the efficiency of the U.S. patent law system.^[89]  The 18-month publication requirement did not increase the efficiency of the system.  At least ostensibly, the applications are to be formatted with real-time on-line updating on the World Wide Web; this task will take additional examiner time and additional technical support.

The second purpose of AIPA was to build a strong system of patent protection for the independent inventors, small businesses and universities.^[90]  Congress forsook all but the large multinational and foreign companies in the passage of the AIPA.

The third purpose of AIPA was to adopt certain reforms that would secure America’s status as the world leader in the production and exportation of intellectual property.^[91]  The third purpose was fulfilled for a short time.  Intellectual property of small businesses, independent inventors, and universities will be produced and freely given or stolen by whomever wants to indulge in American intellectual property of the independent inventors, small businesses, and universities in exchange for bolstering U.S. popularity in the world for a time and giving a few multinational companies a greater position in the global market. In reality, the U.S. economy has continued to fall every year beginning shortly before and definitely after 1999.  The U.S. status as a world leader in the production of intellectual property will continue to fall until the 18-month publication rule is corrected and other rapid, remedial actions are implemented to stop the effects of global harmonization on American independent inventors.  At the implementation of GATT in 1995, a segment of independent inventors and small businesses in the U.S. quit inventing; the resulting economic ripple effect has grown and will continue to affect the U.S. economy.

The stated purposes of H.R. 1907 seemed to be specifically devised to cover up the gaping and glaring crater the 18-month rule bomb left in the U.S. Constitution, the U.S. patent law system, and the U.S. economy.  The AIPA bent U.S. patent law to adhere to the international patent law framework.

Representative Lofgren went on to enumerate the benefits of H.R. 1907 as strengthening of our nation’s technical leadership, protection for American workers, and reduction in the cost of obtaining and enforcing patents in the U.S.^[92]  Contrary to those alleged benefits, the AIPA has damaged our nation’s technical lead, it has exposed and helped to destroy American jobs, and it has made the cost of enforcing foreign filed patents cost-prohibitive for American inventors.  The American economy has plummeted downhill since the URAA.  Representative Lofgren ended by stating that "[t]he five changes that have been made, although not what I necessarily would have crafted, are those that I can tolerate, that I think American inventors can tolerate."^[93]  The American economy may not tolerate the 18-month rule of the AIPA.

Representative Rohrabacher then revealed the five-year battle that he had fought since 1994.^[94]  He fought the 20-year floating term, the 18-month publication rule, and the newly opened application to challenge patents through reexamination.^[95]  He said, "These things caused me great pain and concern."^[96]  Given the enormous pressure to globally harmonize U.S. patent law to an international framework, Representative Rohrabacher performed laudably to deter the complete erosion of U.S. intellectual property law.

The stated compromises were as follows: 1) the patent term can be extended to 17 years, 2) the only pending applications that will be published in 18-months are those that would be published in 18-months under the PCT rules instead of ALL pending U.S. applications, 3) the prior user defense is limited to only those business methods which have only been considered patentable in the last few years, due to case law, instead of a first defense that applies to all inventions, and 4) the PTO is not incorporated but is still an agency of the U.S. Government within the Department of Commerce.^[97]  Representative Rohrabacher "fought long and hard to protect the products of our nation's independent inventors...and to prevent changes in the name of harmonization."^[98]  Representative Rohrabacher stated that he believed that H.R. 1907 continued to respect the fundamentals of our Forefathers while at the same time enhancing the operability of the patent system in modern society.

The AIPA legislation was analogous to GATT in that the spirits behind the bills were the same.  Both pieces of legislation were widely known to severely damage and uproot hundreds of years of productive and useful U.S. Patent Law.  Both seemed to have a life of their own that acted contrary to that beneficial to American innovation, both seemed to come from an outside source, both bypassed the proper procedures of the U.S. Congress, and both were passed in spite of sound, valid, and forceful opposition that could not construct a strong enough defense to stop the beast of global harmonization in the U.S. Congress.

The AIPA was passed on the premise that we are going to pass some kind of patent law reform act and it might as well be this one; no Congressperson can stop it, no constituent can stop it, and no political bulwark can stop it.  In the hearings leading up to this bill, Representative Rohrabacher stated "this bill will destroy the small inventor and in the long run will destroy America’s technological lead that has meant the standard of living of our people and security of our country."^[99]  This statement was supplemented by Mr. Parker who stated, "S-507 falls dramatically short in its treatment of individual inventors and small businesses."^[100]

In the last Senate Hearings on the bill, Representative Kaptur flagged the unconstitutionality of the legislation.  Representative Kaptur specifically stated, "Our concern goes to the constitutional question and the protection of the property rights of the individual."^[101]  How often has a bill already openly known to be in violation of the U.S. Constitution passed in the Senate?

2. The 17-year Patent Term.

The small inventor remains a valuable creative force in this nation.  In 1996, 17,415 patents were the fruits of the efforts of small independent inventors.^[102] Their efforts should be rewarded and fostered instead of sacrificed for the communist ideology of global harmonization. Thankfully, a 17-year patent term can be once again achieved through the use of extensions if the USPTO fails to meet a three-year statutory examination deadline.^[103]  TRIPS extensions can be granted due to examination delays caused by interferences, litigation, secrecy orders and successful appeals.^[104]

The pertinent part of 35 U.S.C. § 154 states:

(b) (B) Guarantee of no more than 3-year application pendency.  Subject to the limitations under paragraph (2), if the issue of an original patent is delayed due to the failure of the United States Patent and Trademark Office to issue a patent within 3 years after the actual filing date of the application in the United States...

3. Reexamination.

Interparties reexamination is an addition to the AIPA.  It allows for yet another means to subject the published application for reexamination.  The changes are incorporated in 35 U.S.C. §’s 311-318.  The purpose behind the interparties reexamination was to: "restore confidence in the validity of patents reissued by the USPTO. Specifically, three principal benefits were noted: 1) resolve patent validity disputes more quickly and less expensively than litigation; 2) permit courts to defer issues of patent validity to the expertise of the PTO; and 3) reinforce investor confidence in the certainty of patents."^[107]

The difference between the current statute and the prior procedure is as follows:

The current statute permits any patent holder or third party to submit prior art in the form of prior patents and printed publications throughout the term of the patent for the PTO to determine whether a substantial new question of patentability exists.  Reexam procedures currently limit a third party’s participation to arguing why there is a substantial new question of patentability.^[108]

4. Right of First Refusal Defense.

In a prior bill in 1998, all patents were to be subject to prior user rights. This Congress limited it down to "business methods only."^[110] The right of first refusal is found in 35 U.S.C. § 273 with the notion that:

the defense applies only to business methods that have been reduced to practice at least one year prior to the effective filing date of the patent in question. Even further, to successfully use this defense a litigant must satisfy a clear and convincing evidentiary standard and risk of being subjected to paying reasonable attorney fees to the prevailing party.^[111]

Representative Manzullo, also noted that the first defense rule is fair and equitable and it should not be stopped by someone who subsequently reinvented the method of doing or conducting business and obtained a patent.^[113]  He noted that the rules for reexamination remain the same:  a) the third party has to rely on his initial written documents and cannot participate in the discussion between the inventor and the patent office; b) the third party has no right to appeal in the event he loses his challenge; and c) if the inventor loses, he still maintains his right to appeal to the Court of Appeals.^[114]

The most significant shift in patent law appears to be the 18-month publication rule.  Accordingly, the 18-month publication rule will be the focus for the reminder of this paper.

B. The 18-month Pre-grant Publication.

The pertinent part of the 18-month rule is stated in 35 U.S.C. § 122 (b):

(b) Publication. (1) In general. (A) Subject to paragraph (2), each application for a patent shall be published, ...promptly after the expiration of a period of 18 months from the earliest filing date for which a benefit is sought under this title....

(2) Exceptions.

(B) (i) If an applicant makes a request upon filing, certifying that the invention disclosed in the application has not and will not be the subject of an application filed in another country, or under a multilateral international agreement, that requires publication of applications 18 months after filing, the application shall not be published as provided in paragraph (1).

(ii) An applicant may rescind a request made under clause (i) at any time.

Other than the GATT legislation of 1995 making the 17-year fixed patent term flexible, the AIPA 18-month pre-grant publication requirement (the 18-month rule), in conformity with the 18-month PCT publication, is the most damaging unconstitutional piece of legislation ever passed against the American independent inventor.^[117]  It forfeits the inventor’s intellectual property most likely before he even receives his first office action.

The 18-month rule serves the nation of Japan and about 170 different patent law systems of the world.^[118]  A majority of those 170 patent systems publish the application prior to the issuance of the patent.^[119]  The U.S. patent law system is being conformed to the international patent law framework.

Representative Marcy Kaptur of Ohio tried to defend the U.S. Constitution but was unable to prevent the passage of H.R. 1907.  Representative Kaptur was "extremely disappointed" that not even twenty minutes was given to talk about the 105 page H.R. 1907 then under the unusual procedure of being brought up under suspension since it had Constitutional implications.^[120]  Representative Hoyer also regretted that only four or five representatives reviewed the legislation.^[121]

Representative Coble stated that there were nine hearings, fifty-five cosponsors, and ninety witnesses to AIPA.^[122]  Representative Coble admitted Representative Marcy Kaptur’s allegations of a lack of representation. He stated: "The gentlewoman from Ohio (Ms. Kaptur) said, well, there is only four or five. Well, this is representative government. We cannot have 435 out here.  This is representative.  If we get a sampling of a dozen people, we have gotten a good input."^[123]  Some representatives supported the 18-month rule, arguing that it now allowed American inventors to see foreign technology filed in the U.S. but foreign competitors could see American technology foreign-filed under the PCT.^[124]

The shallowness of this concept is indicative of third world thinking; it is the epitome of the low emotional intelligent quotient. The premise for their argument is that if you can get half-value of something now do not wait for full-value later.  This premise is then used to justify the requirement that there be an 18 month publication for all foreign filings; this forecloses the prior possibility of filing directly in a country that did not publish within the 18 month timeline and entirely bypasses the PCT.  Under the AIPA, the 18-month foreign filing publication cannot be bypassed; it is the rule, and an avenue of non-PCT foreign filing practice has been lost.

The time it takes to properly examine a patent application in confidence allows businesspersons time to build a business.  Stripping away a confidential patent examination destroys the inventor incentive to disclose.  The proper examination of U.S. patents takes time making them worth more than any other patents in the world. Most other patent law systems encourage poorly prepared, first-to-file patents, with an 18-month pre-grant publication.  The world cannot wait for quality and the world suffers the results.

Passage of the AIPA by the 106^th Congress was an admission that the PCT is a greater power than the U.S. Constitution.  It is appropriate that Representative Mink of Hawaii saw the Japanese attack on the U.S. Constitution in progress and shouted the alarm.  Representative Mink called the legislation "deplorable"^[125] and stated that H.R. 1907: 1) slipped onto the floor of the House of Representatives based on the suspension of the rules, 2) contained name changes, number changes, unpublished documents, and an unpublished bill, 3) was marked up by the Judiciary Committee without the requirement of public hearings, 4) was presented for a vote without a public committee report, and 5) had no proper house debate over it due to a lack of notice and a clandestine switch of the H.R. 2654 to H.R. 1907.^[126] Representative Mink gave a final conclusion of the bill by stating:

This is deplorable. Why must this bill be taken up in such a circuitous way?  If it is a wonderful piece of legislation that protects the rights of the small inventor, why is it not open to more than the minimum debate and why can’t we hold hearings on this final version, whose ink is not dry? ***H.R. 1907 places at risk the right to enjoy the benefits generated by a person’s ingenuity and innovative ideas.  Without this right, we strangle the incentive for people to create and develop vital products and services, which could improve our daily lives and bolster our economy.

H.R. 1907 did go through the House of Representatives under suspension of the rules.^[128] The bill did have a number change.  A Congressional Record was made on August 5, 1999, two days after the bill was argued on the floor.  The Judiciary Committee did not have public hearings on H.R. 1907, but prior to 1999 it had hearings on H.R. 400, the predecessor to H.R. 1907.  H.R. 1907 did have a public committee report, but it was published without advance notice on about the same day the bill was voted on in the House of Representatives (the House).

Representative Kaptur precisely stated the tremendous damage done by this bill by not allowing for a regular debate to proceed and properly analyze the constitutional consequences of H.R. 1907.^[129]  Representative Kaptur correctly foretold the testing of the bill in the courts and reasoned that "we owe it to the American people to do it right the first time."^[130]

The damage caused to the U.S. economy by the disruption of the U.S. patent law system in favor of the illusion of global harmonization of all patent law systems has yet to be calculated.  That damage may never be recuperated, but patching the hole in the U.S. patent law system left by the 18-month rule with a 60-month rule may mitigate it.

Representative Coble stated that the Alliance for American Innovation (a group known to Representative Kaptur) was invited to send a witness to the public hearings and at each occasion the invitation was declined.^[131]  In order to counter Representative Marcy Kaptur’s argument of lack of time to review, Representative Rohrabacher claimed that the gentlewoman from Ohio (Representative Kaptur) had the 18-month publication portion of the bill for a couple of months to review and that the new 105 page H.R. 1907 was the same bill as the old bill except for small changes that needed little time to digest.^[132]

The AIPA was not properly treated by the rules of Congress. It was a "fast ball." It damaged the U.S. patent law system, the U.S. Constitution, and it has probably contributed to the slump in the U.S. economy.  The damage caused by the 18-month publication rule must be repaired.

IV. Solution.

Once common American knowledge of what makes a nation free, happy, and progressive can no longer be assumed to be possessed by Law Professors, Judges/Justices, Congresspersons or Presidents. Indeed history reflects that wisdom, knowledge, and understanding are never long held by any nation, but will cycle back into the opposite of freedom, happiness, and technological progression, which is oppression, sadness and technological digression.

There is an ancient and true symmetry that propels the intellectual ascent of mankind. Man is either a bee to be possessed and treated like a cow and sacrificed for the good of the whole or a free and divinely created individual that self-governs with moral responsibility protected by the rights of life, liberty, and property.

We still have a choice: return to serfdom under the rule of a sovereign having all authority as in the Dark Ages or progress with the peace and harmony of the U.S. Constitution that contains a delicate, precise, and correct symmetrical balance, which has produced the an unparalleled technological advancement for the benefit of all of mankind.

Time and the empty hollow argument of change never have and never will alter the bedrock truth of the symmetrical balance of freedom.  There is nothing new under the sun.  The global market is older than the transportation means of camels, horses, and dogs. The destruction of the most productive patent law system the world has ever known in exchange for a temporary greater global market share by a few is a bad bargain.

There is a disconnection in the U.S. between technological advancement, the economy, and the patent law system.  The U.S. economy is probably currently suffering partially from the unconstitutional manipulation of the U.S. patent law system that occurred between 1995 and 1999.

Three basic schools of thought are popular among Americans.  The most popular group wants to ride the U.S. into socialism/communism one day turning into a harsh dictatorship.  The most popular group presses and pushes to adapt all U.S. intellectual property laws into an international framework.  This is yet another clever mechanism to socialize and harmonize the U.S. with world socialism/communism.  The most popular group is succeeding.  The less popular group tries to ignore the changes in America and attempts to hide and be indifferent.

The most rare group are those who still have a sense of responsibility and who recognize the oncoming horror of serfdom and who are trying to act responsibility and to stop the destruction of the U.S. Constitution, the U.S. economy, and the U.S. market.

With enough correct communication among the American people, a Congressional amendment, to plug the 18-month foreign filing hole AIPA bored into the U.S. patent law system with a 60-month publication rule, can give all U.S. and individual inventors and small businesses a chance to make more money or to start and grow a business.  In essence, the 18-month rule may be functioning as a cut-off mechanism to limit the inception of small businesses in America.  Absent a Congressional amendment, the power of the U.S. federal court system must be invoked to correct the unconstitutional 18-month foreign publication rule of AIPA.

V. CONCLUSION

Representative Coble recognized the foreboding fault line or fissure that is now occurring between the U.S. government and U.S. independent inventors.  The great social contract that once held our nation together and made it great is being progressively severed and broken by the U.S. government; citizens will react to the abuse and misuse of the social contract as the U.S. economy continues to fall.  The momentum of the economic consequences of the URAA and the AIPA is ongoing.

If we repair the damage caused by the AIPA 18-month foreign publication rule and change it to a 60-month publication rule, the economics of venture capital investing in intellectual property should return over time.  If we leave the 18-month foreign publication change and fail to renegotiate the PCT to reflect a 60-month publication rule and continue to amend fundamental U.S. patent law according to the international intellectual property framework of global harmonization, then we may have forever crossed the tripping point to the gradual, yet progressive collapse of the U.S. economy.

a1 J.D., Seattle University School of Law; L.L.M., Franklin Pierce Law Center; Member of Northwest Patent Law - href="mailto:jhughs@northwestpatentlaw.com">jhughs@northwestpatentlaw.com. Special thanks to Professor Gregory Silverman, Seattle University School of Law.

^[1] Henry Grady Weaver, The Mainspring of Human Progress, 31 (1953).

^[2] F.A. Hayek, The Road to Serfdom, 20 (50^th Ann. Ed. 1994).

^[3] Dani Rodrik, Has Globalization Gone too Far?  85 (1997); Malcolm Gladwell, The Tipping Point, 88 (1^st ed. 2000).

^[4] Weaver, supra note 1, at 32.

^[5] Id. at 37-38, 45-46.

^[6] Id. at 37.

^[7] Id. at 47.

^[8] Id. at 50, 53.

^[9] Id. at 55, 58.

^[10] Id. at 51.

^[11] Id. at 73.

^[12] Id. at 83.

^[13] Id. at 107; John William Draper, A History of the Intellectual Development of Europe, 39-49, Ch.2, Vol.2 (1876).

^[14] Weaver, supra note 1, at 109; Draper, supra note 13, at 121.

^[15] Weaver, supra note 1, at 120.

^[16] Id. at 105; Edward Gibbon & Simon Ockley, History of the Saracens, 8 (1870).

^[17] Draper, supra note 13, at 329, Ch. 11, Vol. 1 (1876).

^[18] Weaver, supra note 1, at 114, 129.

^[19] Gibbon & Ockley, supra note 16, at 144.

^[20] Weaver, supra note 1, at 130.

^[21] Id. at 109.

^[22] The Oxford American Desk Dictionary and Thesaurus, 849 (2^nd ed. 2001).

^[23] John F. Duffy, Patent System Reform: Harmony and Diversity in Global Patent Law, 17 Berkeley Tech. L.J. 685, 711 (2002).

^[24] Id. at 694; Rodrik, supra note 3, at  85.

^[25] Duffy, supra note 23, at 692.

^[26] Id. at 699.

^[27] Ned L. Conley, First-to-Invent: A Superior System for the United States, 22 St. Mary’s L.J. 779, 799-781 (1991).

^[28] Q. Todd Dickinson, E-commerce, Business Method Patents, and the USPTO: An Old Debate for a New Economy, 19 Cardozo Arts & Ent. L.J. 389, 397 (2001).

^[29] Mark D. Janis, Patent System Reform: Patent Abolitionism, 17 Berkeley Tech. L.J. 912 (2002); Doris Estelle Long, First, "Let’s Kill all The Intellectual Property Lawyers!": Musings on the Decline and Fall of the Intellectual Property Empire, 34 J. Marshall L. Rev. 851, 896 (2001).

^[30] Conley, supra note 27, at 781.

^[31] Id.

^[32] Thomas L. Irving et al., The Significant Federal Circuit Cases Interpreting §112, 41 Am. U. L. Rev. 621 (1992).

^[33] Isaac Fleischmann, The Patent Office and the Independent Inventor, 47, J. Pat. & Trademark Off. Soc’y. 459, 459-460 (July 1965).

^[34] Id.

^[35] Id.

^[36] Dana Rohrabacher & Paul Crilly, The Case for a Strong Patent System, 8 Harv. J. L. & Tech. 263, 271 (1995).

^[37] Long, supra note 29, at 865.

^[38] Sean T. Cornathan, Patent Priority Disputes - A Proposed Re-Definition of "First-to-Invent", 49 Ala. L. Rev. 755, 758, 769 (1998).

^[39] Dr. B.N. "Biff" Kramer, The Importance of Patent Term and Patent Application Disclosure Issues to Small Businesses and the Impact Proposed Changes in the Patent Laws Upon the Small Business Community, Fed. News Service, 1-2 (April 24, 1997).

^[40] Id. at 5.

^[41] Conley, supra note 27, at 796.

^[42] Giulio Mandich, Venetian Patents (1450-1550), 30  J. Pat. & Trademark Off. Soc’y. 166, 166-207 (1948) citing Calendar of State Papers Domestic, Addenda 1559 (IX, 39).

^[43] Dana Rohrabacher, Pennies for Thoughts: How GATT Fast Track Harms American Patent Applications, 11 St. John’s J.Legal Comment. 491, 493 (1996).

^[44] Id. at 496-497.

^[45] John B. Campbell, Jr., What’s the Deal Now? A Business Perspective Analysis of the U.S. Patent System and Recent Changes to the Patent Laws, 10 Tex. Intell. Prop. L.J. 293, 299 (2002).

^[46] Id. at 300.

^[47] Id.

^[48] Fleischmann, supra note 33, at 459.

^[49] Long, supra note 29, at 858-860.

^[50] Janis, supra note 29, at 923.

^[51] Rohrabacher & Crilly, supra note 36, at 267.

^[52] Cornathan, supra note 38, at 813.

^[53] Duffy, supra note 23, at 700-704.

^[54] Anneliese M. Seifert, Will the United States Take the Plunge Into Global Patent Law Harmonization? A Discussion of the United States’ Past, Present, and Future Harmonization Efforts, 6 Marq. Intell. Prop. L. Rev. 173, 187 (2002).

^[55] Kim Taylor, Patent Harmonization Treaty Negotiations on Hold: The "First to File" Debate Continues, 20 J. Contemp. L. 521, 521, 544 (1994).

^[56] Janis, supra note 29, at 948.

^[57] Id. at 947-948.

^[58] Id. at 949, 952.

^[59] Id. at 947.

^[60] Taylor, supra note 55, at 524.

^[61] Id.

^[62] Id. at 527.

^[63] Rohrabacher & Crilly, supra note 36, 272.

^[64] Conley, supra note 27, at 795.

^[65] Rohrabacher & Crilly, supra note 36, 273-274.

^[66] Conley, supra note 27, at 794.

^[67] Rohrabacher & Crilly, supra note 36, 274.

^[68] Taylor, supra note 55, at 538.

^[69] Hayek, supra note 2, at 160-161.

^[70] Seifert, supra note 54, at 186,198.

^[71] Duffy, supra note 23, at 688.

^[72] Id. at 689; Seifert, supra note 54, at 201.

^[73] Duffy, supra note 23, at 704-705.

^[74] Rohrabacher & Crilly, supra note 36, at 273.

^[75] Duffy, supra note 23, at 708.

^[76] Michael N. Meller, Principles of Patentability and Some Other Basics for a Global Patent System, 83 J. Pat. & Trademark Off. Soc’y. 359, 363 (2001).

^[77] Id. at 360.

^[78] Id. at 360, 372. 

^[79] Rohrabacher, supra note 43, at 503.

^[80] Id.

^[81] Id. at 504.

^[82] Walter G. Park, Globalization, Patent Reform and Patent Professional Societies, 83 J. Pat. & Trademark Off. Soc’y. 303 (2001).

^[83] Id. at 304.

^[84] Id. at 306.

^[85] Id. at 335, 339.

^[86] Rohrabacher, supra note 43, at 501.

^[87] The American Inventors Protection Act of 1999 (AIPA), 145 Cong Rec H6929, *H6945 (1999).

^[88] Id. at *H6944.

^[89] Id.

^[90] Id.

^[91] Id.

^[92] Id. at *H6948.

^[93] Id.

^[94] Id. at *H6942.

^[95] Id.

^[96] Id. at *H6942-*H6943.

^[97] Id.

^[98] Id. at *H6943.

^[99] Patent System Overhaul: Senate Judiciary Committee, (Senator Orrin Hatch, Chairman) Fed. News Service (May 7, 1997).

^[100] AIPA, supra note 87, at *H6934.

^[101] AIPA, supra note 87, at *H6940.

^[102] Cornathan, supra note 38, at 796.

^[103] AIPA, supra note 87, at *H6929, *H6944.

^[104] Id.

^[105] Id.

^[106] Id.

^[107] Id. at *H6944.

^[108] Id.

^[109] Id. at *H6947, *H6942 (stating: The reexamination rules are the same except that hey now allow the requestor the option to further explain why a particular patent should not have been granted. The purpose of the additional reexamination procedures was given by Representative Coble: "Primarily this was done for the benefit of the independent inventors to balance the interest of a third party with those of a patent need, patentee, by allowing a third party to pursue reexamination under the existing system or opting for a strictly limited ex parte reexamination while assuring that a patentee would not be subject to harassment in such proceedings.").

^[110] Id. at *H6947.

^[111] Id. at *H6943-H6944.

^[112] Id.

^[113] Id.

^[114] Id.

^[115] John F. Duffy et al., Symposium: Early Patent Publication: A Boon or Bane? A Discussion on the Legal and Economic Effects of Publishing Patent Applications After Eighteen Months of Filing, 16 Cardozo Arts & Ent. L.J. 601, 611-612 (1998).

^[116] Rohrabacher & Crilly, supra note 36, at 270.

^[117] Janis, supra note 29, at 920-921.

^[118] Cornathan, supra note 38, at 812.

^[119] AIPA, supra note 87, at *H6944.

^[120] Id. at *H6945.

^[121] Id. at *H6946.

^[122] Id.

^[123] Id. at *H6948.

^[124] Id. at *H6949.

^[125] Id.

^[126] Id.

^[127] Id. at *H6945 (where Representative Marcy Kaptur stated: 

The Constitution of the >United States sets up a very precious right of property.  I am going to read it.  It is only 32 words.  It says in [A]rticle I, section 8, "The Congress shall have power to promote the progress of science and useful arts by securing for limited times to authors and inventors the exclusive right" -exclusive right- "to their respective writings and discoveries."

Now, this is not some little amendment that is part of a manager’s effort.  This is the Constitution of the United States.  Therefore, when a 105-page bill comes before us on suspension, those of us who value this document and devote much of our lives to preserving it under the oath that we take are very suspicious of any bill of such consequences that comes before us on suspension when we are allowed only 10 minutes to debate.

I also would say that with all due respect to the excellent minds that were involved in crafting this manager amendment, it is only a handful of Members of this institution. This bill is not up on the web. I cannot ask the inventors I represent back home to go to any site to look at it so I can be advised on how to vote tomorrow morning.

I know a fastball when I see one.  I have been here long enough to know that.  I am offended by this, simply because I think the constitutional issues are so very important.  I am not afraid of sunshine on this issue or any other issue, and I would say to my good friends from California, some of whom are on the floor tonight, I understand a little bit about industry differences, and I know that there are some industries that will benefit more than others from the publication in foreign locales of some of these patents. 

I would say, and I have only marked one paragraph that I will read here, because the public will know nothing of this bill before it is voted on tomorrow, but on page 33 there is this section that is called "United States publications of applications published abroad."  It says, "Subject to paragraph (2), each application for patent except applications for design patents filed under chapter 16 and provisional application filed under section 111(b) shall be filed in accordance with procedures determined by the Director, promptly upon the expiration of a period of 18 months after the earliest filing date for which a benefit is sought under this title."

Now that is an interesting set of words there, but I guess I would want to take sections like that and let the sun shine in, let those back home whose livelihood and futures, and frankly, the future of this country depend on, have an opportunity to think and comment before this particular vote. 

I agree with the chairman; this is complex, it is very important, and it is often misunderstood. I would have to say as a Member, I take some offense that some professor from MIT, and I attended MIT, had more influence with the committee and more ability to review these sections than Members like myself.  You must understand this frustration.

So I do really feel that we are being closed out.  This means that some interests are being looped in, and it means that we are not to be given the chance to review this extremely important measure with constitutional consequences before we are asked to vote on it tomorrow.).

^[128] Id. at *H6929.

^[129] Id. at *H6946 (Representative Marcy Kaptur stating:

Mr. Speaker, I regret the gentleman does not have more time as well.  I wish to say to the gentleman, thank you very much for being here this evening, and to say thanks to our colleagues who have also labored on this bill.

There is regular order here. We should have regular order, especially on a bill of constitutional magnitude.  We all recognize it is.

Let me say for those of us who may question why do we need to change anything about this patent system which protects the seed corn of our country, the lifeblood of our ideas, what is so bad about the current system we have today, when we are the leading industrial-military-arts-power in the world?  Everyone else wants to file their patents here because of the very successful system that we have.  If we do it wrong, we jeopardize our own leadership.

So why are we so afraid to take the time to let Members read these provisions?  If the bill is so good, then it will go through on its own merits, but not through clamping down on regular order in the debate that should precede on a measure with constitutional consequences.).   

^[130] Id.

^[131] Id.

^[132] Id.