Patent Harmonization - Individual Sovereignty at the Expense of National Sovereignty

© 1999 John Berryhill, Ph.D.

I. The Case for Uniform International Protection of Intellectual Property

In The Sovereign Individual, authors Davidson and Rees-Mogg posit that global economic development is proceeding toward a near future in which intellectual property is the predominant source of personal wealth. They believe that the information revolution will proceed unguided to a situation where "those who can educate themselves will be almost entirely free to invent their own work and realize the full benefits of their own productivity." Similarly, former labor secretary Robert Reich has been a leading proponent of the idea that the key to international economic competitiveness lies in the development of workforce more adapted to abstract symbol manipulation and problem-solving skills, as opposed to traditional industrial skills. These conclusions are based on the observation that the traditionally integrated functions of product design and manufacturing are increasingly divided between independent small groups or individuals engaged in the design function, and larger-scale general-purpose manufacturing facilities engaged in high-volume manufacture. In key industries, such as the electronic and automotive industries, the "shop-floor engineer" is becoming a thing of the past. New products are developed on computer-aided design workstations, and the resulting design specifications are electronically transmitted to remote manufacturing facilities. With the post-war trend toward lowering trade barriers among nations, such manufacturing facilities can be located anywhere on the planet, and finished products can be transported across national boundaries with increasing freedom. Hence, the functions of design and manufacture can be carried out by independent economic entities on a contractual basis.

The semiconductor industry has largely adopted this bifurcated model of independent design and manufacture. A production facility for manufacturing semiconductor chips can easily cost several millions of dollars. Hence, it would not be economically feasible for a chip designer to build and tool such a facility for the production of a single specialized integrated circuit. By distributing the multi-million dollar cost of a semiconductor process facility among a large number of relatively low-volume commercial and educational customers engaged in the actual design of integrated circuits, "silicon foundries," as they have come to be known, are able to obtain a profit without as great a risk of product obsolescence as would be encountered by a facility built for the production of a particular chip. Similarly, chip designers are freed to develop application-specific integrated circuits (ASICS) for which the economic return on a low volume production run would not be worth investing in a manufacturing facility.

This paradigm of bifurcated design and manufacture in the semiconductor industry has reached the point where it is now commonplace for undergraduate engineering students to design their own ASICS using standardized personal computer software, and to obtain working prototypes of their designs within the span of a single semester, and with a cost to the University commensurate with a traditional laboratory course in the physical sciences. Many of these students graduate to become independent chip designers without ever having set foot in the silicon foundries that reduce their specifications to working models, and without having more than a superficial awareness of the manufacturing processes involved in the production of semiconductor chips. Indeed, the art of integrated circuit design and the art of integrated circuit manufacture, which were once considered to comprise a single body of knowledge have become distinct technical fields, resulting in the continuing, mutually-reinforcing increase in complexity of chip design and manufacturing methods.⁽¹⁾

However, the same technological infrastructure that has unshackled the inventor/designer from having to raise sufficient capital to manufacture finished products also simplifies the production of unauthorized, copied, reverse-engineered, or independently-developed competitive products based on the same essential innovative design concept.⁽²⁾ The model of the small-scale designer reaping the benefits of intellectual capital thus relies on the existence of a secure legal framework in which his or her interest in the economic fruits of problem-solving effort are protected.

With the fragmentation and global distribution of design, manufacture, and trade, there has been a corresponding growth of interest in providing a uniform international framework for the protection of intellectual property, which has traditionally been an area subject to exclusive sovereign control. As between a designer and a manufacturer, the designer can obtain protection by contract. In the international context, such an agreement should include appropriate choice of law and/or arbitration provisions to ensure reliable enforcement independent of the relative degrees of commercial sophistication of the legal systems in the respective nations of the designer and the manufacturer.⁽³⁾

A significant measure of protection from direct copying of certain classes of products is provided under copyright law. While the legal systems of some countries are more effective at enforcing copyrights than others, the existence of national copyright statutes is the norm, and international conventions on copyright are widely accepted in form, if not in substance.⁽⁴⁾ The near-universal acceptance of the copyright as a legitimate legal interest is likely due to its ready justifiability on moral and philosophical grounds.⁽⁵⁾ Moreover, registration of copyrights, and identification of flagrantly infringing articles by comparison with a registered article, are easily administered. However, while copyrights can encompass such things as blueprints, design specifications, software code, and microcircuit and printed-circuit layout patterns, they are ineffective against reverse-engineered products or independently-developed products which embody the designer's original innovative concept in an altered form. Protection against these last-mentioned activities falls within the domain of patent law.

II. Three Levels of Debate Over Harmonization

The campaign for patent harmonization involves what initially appear to be three distinct debates. The first debate involves persuading nations with little or no provisions for patent protection to adopt at least some form of patent system. The second debate, among countries having patent systems, revolves around what sorts of inventions should be eligible for patent protection, and what the standard and extent of uniform protection should be. The third debate is a domestic argument as to whether a uniform international patent system is desirable at all. This third debate is a largely American (in the U.S. sense of the term) phenomenon due to the fact that U.S. patent law is recognized as having a number of unique provisions that stand little chance of being adopted under any proposed system of harmonization.⁽⁶⁾

Contributing to the intractability of these debates is the lack of a universally accepted apologia for patents in the first instance. It is no accident that the word "arcane" is more often associated with the phrase "patent law" than with copyrights or trademarks. While copyright and trademark infringement usually apply to unjustly enriching activities that can aptly be analogized to theft, patent infringement often more closely captures the sentiment that imitation is the sincerest form of flattery.⁽⁷⁾ Unlike copyright infringement, patent infringement need not be willful. Although U.S. patent law renders willful patent infringement subject to treble damages and attorney's fees, so-called "innocent" patent infringement is nonetheless proscribed.⁽⁸⁾

Patents evolved from a medieval system of inducing talented artisans to produce works of public value, such as mills, in a given vicinity in exchange for an exclusive license to practice in that vicinity or for a share of the proceeds of the work. With the advent of dissemination of technical information by publication, and a literate class of engineers, patent grants grew to become further conditioned on various notions of novelty, while retaining vestiges of territorial, as opposed to absolute, novelty.⁽⁹⁾

Under the U.S. Constitution, Congress is empowered to institute a patent system "to promote the progress of science and the useful arts."⁽¹⁰⁾ However, just how it is that a patent system promotes such progress is not obvious. Under the "contract theory" of patents, the inventor is provided with the right to exclude others from making the invention for a period of time in exchange for teaching the interested public how to make and use the invention. Hence, it is the public disclosure of the patent itself, and the concomitant dissemination of the inventor's hard-won knowledge that promotes progress. Under an incentive-based theory of patents, the exclusive rights conferred by a patent provides an economic incentive for the inventor to engage in his or her inventive activity.⁽¹¹⁾ A patent monopoly thus provides a return on investment in research and development. Under a competitive theory of patents, progress is served in the efforts of the patentee's rivals in having to be forced to invent new ways of achieving the objective of the patent in order to lawfully compete in the same market.⁽¹²⁾ Perhaps the most commonly advanced argument in favor of patents is the mere observation that the most technologically-developed countries have long had, and continue to have, some form of legally-enforceable patent protection.⁽¹³⁾

None of these justifications for strong patent protection is particularly compelling from the viewpoint of the political leaders and industrialists in developing countries.⁽¹⁴⁾ The citizens and corporate entities of industrialized nations have a tremendous head start in ownership of existing intellectual property, and have invested heavily in public and private research and development institutions, for generating new intellectual property. Interestingly, the educational and industrial research institutions of the industrialized world are disproportionately populated by minds that have been recruited from developing countries⁽¹⁵⁾. Recognizing and enforcing the standard contractual assignment of IP rights in their work product to such institutions would render it more difficult for developing countries to attract such researchers to return to their native countries. Additionally, it is not desirable for developing countries to employ much-needed technically-educated citizens as patent examiners. But, most importantly, developing countries are not eager to surrender sovereign control over their industries and economies to foreign patent holders. A distant theoretical benefit from adopting and enforcing a system of patent law, in the absence of any immediate economic benefit, is a poor inducement to persuade developing countries to adopt a body of law that, for the foreseeable future, would primarily serve to grant rights to foreigners to constrain the actions of their own citizens.

In order to provide a sufficient immediate incentive for developing countries to institute or strengthen patent protection, the U.S. has led an effort to include provisions for the protection of intellectual property in bilateral and multilateral trade agreement negotiations. For example, the most recent round of negotiations for the General Agreement on Tariffs and Trade (GATT) included an Agreement on Trade-Related Aspects of Intellectual Property Rights, Including Trade in Counterfeit Goods (TRIPS) specifically directed to requiring minimum standards for intellectual property protection as a price of admission to the World Trade Organization. A cynic would suggest that the resulting combination of GATT/TRIPS was to lower tariff barriers to international trade while heightening one non-tariff barrier that distinctly favors industrialized countries, whose citizens currently own the rights to the majority of intellectual property.

Intellectual property agreements such as TRIPS can motivate developing countries to adopt formal, statutory changes in their legal systems, but it cannot be taken for granted that such laws will be enforced or that enforcement will be sufficiently aggressive. The European experience with patent harmonization is instructive in how a "uniform" patent system may be less uniform than might be supposed. Under the European Patent Convention, a central patent examination and granting facility, the European Patent Office, processes patent applications and grants patents that are intended to be uniformly valid in each of the designated nations under an issued European Patent.⁽¹⁶⁾ Each signatory country to the European Patent Convention is required to adopt substantially the same statutory provisions for patentability and infringement, but remedies for infringement are to be determined by national law. Hence, even under the most thoroughly harmonized international patent system yet devised, the extent of protection, in terms of available damages for infringement, varies from country to country. Moreover, since infringement suits are brought in national courts, the courts of each nation tend to view the uniform statutory infringement provisions through the lenses of their respective national legal traditions.⁽¹⁷⁾

Recognizing that formal codification of patent agreements often falls short of providing substantive protection of intellectual property, the U.S., through the office of the U.S. Trade Representative, has repeatedly undertaken unilateral coercive action, authorized under section 301 of the Trade Act of 1974, against nations considered to provide less than adequate intellectual property protection.⁽¹⁸⁾ The GATT/TRIPS agreement has itself provided a justification for further unilateral coercive procedures to be adopted by the U.S. Although TRIPS provides a staggered timetable for various developing countries to meet the specified levels of intellectual property protection, several bills are pending in the U.S. Congress to provide incentives for earlier adoption of the TRIPS-specified standard. For example, S. 1426, "Rights of Intellectual Property Owners Fairness Facilitation Act of 1997" (RIP-OFF) would authorize withdrawal of duty-free treatment of exports under the Generalized System of Preferences for any country that is not in compliance with TRIPS or any other intellectual property agreement between the U.S. and the subject country.

Unilateral "strong-arm" tactics on the part of the U.S. have been generally successful at increasing the level of intellectual property protection when employed against countries with whom it is clear that the U.S. could survive a trade war. Results have not been as clear with more economically influential targets. In the spring of 1996, spurred by complaints primarily from the software and recording industries, the Clinton Administration threatened not to renew China's Most Favored Nation trade status on the ground that China did not provide sufficient protection of intellectual property. The Chinese government responded by, among other things, conducting raids on several compact disc factories in Guangdong province hat had been identified by the U.S. as a major production center of pirated software.⁽¹⁹⁾ Concurrent with the Chinese government's decision to re-consider a proposed purchase of Boeing aircraft, the Clinton administration expressed its satisfaction with the Chinese efforts to crack down on piracy.

Among countries having established, functional patent systems, there are significant disagreements over appropriate subject matter for patents and the extent to which patent rights merit protection. Again, these disagreements arise from the lack of any universally-applicable or accepted theory of the circumstances, if any, in which patents work to the public's benefit. In key decisions affirming the applicability of U.S. patent protection for such inventions as computer-implemented processes⁽²⁰⁾ and for living organisms⁽²¹⁾, the U.S. Supreme Court has determined that it was Congress' intent in the Patent Act of 1952 to make patent protection available for "anything under the sun made by man."⁽²²⁾ In other industrial countries, commonly excluded subject matter for patent protection includes computer software, single or multi-cellular animals or components thereof, plants, medical procedures, weapons, and occasionally medical devices and pharmaceuticals. Another relative peculiarity of U.S. patent law is that the patentee is under no obligation to manufacture the invention or to license others to do so. Many other countries provide for withrawal of patent rights or compulsory licensing of the patent if the invention is not worked in the country for a specified period of time, or when such withdrawal or licensing is deemed to be in the "public interest." The ability to define patentable subject matter is viewed as a sovereign function, which is not to be surrendered lightly.

The Patent Cooperation Treaty (PCT), enacted in 1978 and administered by the World Intellectual Property Organization, has provided a convenient process for initial filing, conducting a search of prior art, and prelimary examination for novelty of a patent application. Under the PCT, filing a single patent application with a designated receiving office is effective to obtain a national filing date in all of the 78 PCT member countries or regions. The application is then forwarded to an International Searching Authority (usually the U.S. Patent and Trademark Office or the European Patent Office, acting under the PCT as agencies of WIPO) for a search report, which is provided to the applicant. The applicant may then choose to withdraw, amend, or file the application as a national application in any of the countries initially designated in the application. If the application is not withdrawn, it is then published. The applicant may further choose to proceed to obtain a non-binding International Preliminary Examination Report setting forth a written opinion on whether the claimed invention is novel and sets forth an "inventive step."⁽²³⁾ Ultimately, individual national or regional applications must be filed after the PCT procedure is completed. During subsequent national prosecution, each designated country or region then conducts its own search and examination of the application. The main benefit of the PCT to applicants is that it provides a vehicle for deferring the cost of paying as many as 78 national filing fees until the PCT procedure is completed.⁽²⁴⁾ During that time the applicant is able to begin commercialization of the invention and identify what countries or regions are ulitmately desired for national patent protection.

The PCT was original envisioned as the first step toward building a procedure that would provide for a unitary document that would be examined and issued as a World Patent, and would be universally effective. A draft treaty establishing such a procedure was proposed by WIPO in 1991, and the final round of negotiations on the draft treaty for the World Patent was scheduled to begin in July of 1993. In April, 1993, however, the final round was postponed at the request of the U.S., which at that time did not have a confirmed Patent Commissioner. The final round was never re-scheduled, however, primarily because the delay in negotiations provided sufficient time for organization of substantial and vociferous U.S. domestic political opposition to such treaty provisions as a first-to-file system, an effective patent life measured from the filing date of the application, and mandatory pre-grant publication of applications. It has also been made clear that the rest of the world patent community is equally resolute in demanding such provisions. Since then, the Clinton Administration has pursued a policy of legislative measures to enact the domestically objectionable provisions piecemeal, rather than to attempt passage of the entire package of alterations as would be required for treaty ratification. In the process, the U.S. has also been able to obtain concessions in bi-lateral patent harmonization negotiations with Japan by using each of the desired changes in U.S. law as a bargaining chip for desired alterations in Japanese patent law.⁽²⁵⁾

Domestic opposition to the changes in U.S. law that would be required to reach an acceptable middle ground for international harmonization is passionate, and tinged with a distinct nativist point of view. The recently-introduced "Patent Sovereignty Act of 1997," H.R. 812, ostensibly intended "for preserving the technological leadership and economic well-being of the United States" finds that the "quality of United States letters patent is inextricably linked to the professionalism of patent examiners" and provides for amending 35 U.S.C. § 3 to include the following:

All examination and search duties for the grant of United States letters patent are sovereign functions which shall be performed within the United States by United States citizens who are employees of the United States Government.

If enacted, H.R. 812 would practically rule out the possibility of international patent harmonization along the lines generally agreed upon by the member nations of the PCT. For legislators who are generally unaware of the context in which H.R. 812 has been proposed, opposition to the bill would seem politically foolish and difficult to justify. The sponsors of H.R. 812, and supporting organizations such as the American Inventors Alliance, believe that patent harmonization is an attempt by multi-national corporations and foreign countries to weaken the U.S. patent system.⁽²⁶⁾

III. The Need for a Coherent Economic Theory of Patents, and a Sense of Proportion by Patent Holders

Each of the debates that must be settled in order to acheive patent harmonization - the debate between countries with and without substantial patent protection, the debate among countries with patent protection, and the domestic debate over changes required to obtain harmonization - ultimately reduce to a question of to what degree it is worth sacrificing a measure of national sovereignty in order to secure internationally uniform rights in technological innovation. These debates are likely to continue for the foreseeable future without resolution because of the absence of an accepted quantitative theory, or philosophical justification, for patents generally; the wealth of anectodal evidence supporting either side of each debate; and the viscerally emotional resistance to exchanging national sovereignty for speculative returns.

In the meantime, it should be appreciated by intellectual property owners that innovation is a perishable commodity, and the continued development and improvement of high-IP content products provides competitive advantages even in the absence of any system of patent protection. In some areas of technological development, the economic value of innovation in terms of product life-cycle can expire long before any national patent system is equipped to provide for protection. Hence it is primarily the unusually successful intellectual property owner that has the luxury of being concerned with whether the full measure of legal advantage has been exploited to obtain further returns on the development of a successful innovative technology.

1. For example, Andrew Grove, the CEO of Intel Corporation was initially known for his work in solid state physics, which is virtually irrelevant to the design work of the microprocessor architects employed by Intel.

2. These terms are used herein to denote distinct acts of: (i) unauthorized production - non-royalty production and sale of the product by the contract manufacturer; (ii) copying - direct duplication of the product by third parties; (iii) reverse engineering - similar products developed on the basis of knowledge obtained by dis-assembly or other analysis of the designer's product; and (iv) independent invention of the innovative concept embodied by the product. The extent, if any, to which the initial designer should be rightfully able to discourage the last-mentioned activity is not agreed upon as a philosophical matter, which, as discussed infra is a key impediment to any program of patent harmonization.

3. Model rules for international trade dispute resolution have been promulgated by such organizations as the American Arbitration Association (AAA), the United Nations Committee on International Trade Arbitration Legislation (UNCITRAL), and, with greater emphasis on intellectual property-specific issues by the World Intellectual Property Organization (WIPO) (see World Intellectual Property Organization: Mediation, Arbitration, and Expedited Arbitration Rules, 34 I.L.M. 559 (1995)). Relatively uniform international recognition of arbitration provisions is provided under the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, 21 U.S.T. 2517, (June 10, 1958), which has been adopted by more than 95 nations.

4. E.g., the Berne Convention for the Protection of Literary and Artistic Works, as revised July 24, 1971, 828 U.N.T.S. 221.

5. The notion of copyright as a property interest is congruent with Western thinking on property generally. See, e.g., the prototypical limited distribution license included in the Bible at Revelation of St. John 22:18-19. The practice of invoking divine wrath against unauthorized reproduction was common to scribes of various ancient traditions. Similarly, trademark infringement, as a false indication of the origin of goods, is proscribed by the Ninth Commandment (against bearing false witness). It is interesting to note that acceptance and enforcement of intellectual property rights has historically been difficult in countries more closely associated with Taoist and Dharmic concepts of a transcendent unity of all things, which itself cannot be possessed or even named (e.g. Lao Tzu, Tao Te Ching, verse 1).

6. For example, the U.S. patent system is characterized as a "first-to-invent" system in that patents are required to be granted to the first inventor of a given invention, whereas most countries follow a "first-to-file" system that awards a patent to the first inventor to file a patent application. In the U.S. the term "inventor" is so intimately connected with the notion of being the original true and first inventor, that the possibility of later independent invention often has to be made explicit in order to capture the distinction between the "first-to-invent" and "first-to-file" systems.

7. "Outright and forthright duplication is a dull and very rare type of infringement." Graver Tank & Mfg. Co., Inc. et al. v. Linde Air Products Co. 339 U.S. 605.

8. Similar distinctions are made in other countries. German patent law, for example, provides for imprisonment of patent infringers in particularly egregious circumstances.

9. Under U.S. law, patents are granted for inventions that are "new" 35 U.S.C. § 101. What is "new" is defined as that which does not satisfy any of several novelty-defeating conditions set forth in 35 U.S.C. § 102. The concept of local novelty is retained in that an invention is not considered new if it was "known or used by others in this country, or patented or described in a printed publication in this or a foreign country before the invention thereof by the applicant...." 35 U.S.C. § 102(a). Similarly, § 102(b) provides that public use or sale of the invention "in this country" more than one year prior to the application date will defeat the novelty of an invention. The requirement for foreign use, sale, or knowledge to involve a written disclosure of the invention in order to be novelty-defeating, as opposed to U.S. domestic use, sale or knowledge, is often cited as an obsolete local novelty concept that is unfavorable to accused non-U.S. patent infringers who may have engaged in sale of the invention in other countries long before introducing the product in the U.S.

10. U.S. Const. Art. I Sect. 8. Jefferson was originally opposed to having a patent system, on the ground that scientific advancement should not depend on crude economic incentives. Benjamin Franklin, who was not coincidentally a prolific inventor, is credited as being the father of the U.S. patent system for having persuaded Jefferson otherwise.

11. Abraham Lincoln, himself a patentee, succinctly stated this theory as having added "the fuel of interest to the fire of genius."

12. This theory persists despite the fact that patentable improvements on an invention are often subject to domination by the earlier patent. It can be supportably argued that patents actually discourage innovation in that the patentee may be content to enjoy his or her rights without further improving the product, while the patentee's competitors are prevented from producing improved products that nevertheless fall within the scope of the earlier, broader patent.

13. This is at once the fallacies of appeal to tradition and post hoc, ergo propter hoc. The jet engine, controlled fusion reactors and manned spaceflight, to name but a few ready examples, were pioneered under nominally socialist economic systems having little or no substantive patent protection.

14. See, Gutterman, Alan S., "The North-South Debate Regarding the Protection of Intellectual Property Rights," 28 Wake Forest L. Rev. 89 (1993).

15. At least one IBM semiconductor research facility is affectionately known to its employees as "Indian Business Machines" due to its high population of employees native to India. (Dr. Shekhar Wadekar, private communication)

16. Although the procedure for examining and granting each European Patent is the same, the applicant for a European patent is required to select, or designate, which one(s) among the 16 member nations are desired for patent protection, to provide notice to any interested parties in the designated countries when the application is published prior to grant. After a European patent is granted, the granted patent is translated, if necessary, and registered with the national patent office in each designated country.

17. For example, in what have come to be known as the "Epilady" cases (so named for the brand name of a patented feminine depilatory device), identical patent suits were brought on the same European patent against the same infringer in the United Kingdom and in Germany. Applying the same statutory standard of infringement prescribed in Article 69 of the European Patent Convention, the British court found that there was no infringement, while the German court found that there was infringement. Such results are not comforting to a manufacturer seeking legal advice on infringement of a European patent prior to marketing a proposed product in Europe.

18. E.g. 62 Fed. Reg. 60299 (report of the U.S.T.R. that Honduras has failed to adequately protect the intellectual property rights of foreigners, and announcing hearings to withdraw duty-free treatment for Honduran goods provided under the Generalized System of Preferences and the Caribbean Basin Initiative). Similar actions, under the Tariff Act provisions commonly referred to as "Super 301" and "Special 301" sanctions, have been considered successful at obtaining enhance intellectual property measures in Taiwan, Thailand, and South Korea.

19. "U.S. and China Agree on Pact to Fight Piracy" New York Times, June 8, 1996, Section A, Page 1. The raids were conducted by the People's Liberation Army, which is also part-owner of the such factories. The P.L.A. was no doubt shocked, shocked, to learn that copyright infringement was taking place there.

20. Diamond, Com'r Patents v. Diehr, 450 U.S. 175.

21. Diamond, Com'r Patents v. Chakrabarty, 447 U.S. 303. Despite popular concerns, it should be noted that this decision was limited to recognizing an intellectual property interest in non-human living organisms produced by methods of genetic engineering. Regardless of the novelty of any conceivable manner of engineering a human organism, a property interest in the organism would likely be precluded by the thirteenth Amendment.

22. S. Rep. No. 1979, 82d Cong., 2d Sess., 5 (1952). The relevant statutory provision defining patentable subject matter is 35 U.S.C. § 101, which defines eligible inventions as "any new and useful process, machine, manufacture, or composition of matter, or any improvement thereof...."

23. The inventive step criterion under the PCT roughly corresponds to the criterion of obviousness codified in 35 U.S.C. § 103.

24. The full PCT procedure can be as long as 30 months from the initial filing of the application. Since the EPO can be designated as a regional patent office, yet another deferral can be obtained during European prosecution before paying national registration fees for the countries designated in a Euro-PCT application.

25. The Japanese patent system is perennially criticized by U.S. applicants as being slow, laden with formal requirements, and oriented to granting unduly narrow patents. In exchange for agreeing to set the term of U.S. patents to 20 years from filing, and by agreeing to begin publishing applications prior to grant, the Japanese have altered their filing procedures to allow applications to be filed in English, have relaxed certain other formal requirements, and have altered their claiming requirements to allow broader coverage of inventions. Additionally, there are indications that once-rare judgments of infringement are becoming more frequent in the Japanese courts.

26. The bill's author, Rep. Dana Rohrbacher, introduced the bill in response to the statutory changes enacted to obtain concessions from the Japanese, which he referred to as the "Steal American Technology Act." In his view, independent U.S. inventors generally cannot afford to seek foreign patent protection, hence any concessions made by the U.S. in the effort to harmonize with the patent laws of other nations do not provide any benefit to independent U.S. inventors. The image of the rugged, pioneering American basement inventor being cheated out his just reward by foreigners and multi-national corporations evokes considerable sympathy for his position than a less sentimental discussion of the relative economic value of the potential foreign patent rights that would be obtainable by U.S. industry under a harmonizaed system. It has been estimated that U.S. industry loses on the order of at least $50 billion per year due to inadequate foreign protection of intellectual property rights. No similar figures have been produced to assess the economic loss to independent inventors due to a potentially shorter patent term or potential competitive activity between the time that an application would be published and the grant of a patent.