Obama Administration: The Harmonization Capitulation

If you have not already read the letter from Commerce Secretary Gary Locke to Senator Patrick Leahy (Chair of the Senate Judiciary Committee) and Senator Jeff Sessions (Ranking Republican Member), you absolutely need to read it to comprehend the massive changes the Obama Administration is supporting with respect to patent reform.  It would be difficult to over exaggerate the magnitude of the changes being supported by the Obama Administration.  Simply put, if the Obama Administration gets its way US patent laws would be completely re-written and substantively changed to a greater extent than at any time since 1790.  In fact, if the Obama supported patent reforms become enacted into law it would probably be much easier to simply pass legislation withdrawing all US patent laws and putting in its place the patent laws presently in existence in the European Union.  If you do not believe a European style patent system is in the best interest of the United States then you had better step up to the plate, because the stars seem to be aligning and before you know it there may not be any remaining US patent laws.  The steaks are high and it seems as if the once hopelessly derailed patent reform legislation is back with a vengeance, like a resurrected Jason a la Friday the 13th.

There are so many bad ideas being supported by the Obama Administration when it comes to patent reform that I almost do not know where to start.  The Obama Administration supports substantive rulemaking for the Patent Office, supports post-grant review of issued patents and does not support provisions in the Senate Bill that would require examination duties to be carried out in the United States.  All of this is troubling, particularly opposition to provisions that would require examination to be done in the United States.  Work-sharing is one thing, but do we really want to have examination being conducted by those in other countries?  I need to look more into this, and will, but as bad as this could be it is simply the icing on the cake.

Under “Miscellaneous” in the Locke letter, Secretary Locke explains the Obama Administration position on a variety of changes to US patent law:

We endorse the change in the inventor’s oath requirement to facilitate an assignee’s filing and prosecution of patent applications, and support expanding pre-issuance submissions by third parties to improve the efficiency of the examination process.  Finally we support extending the existing prior user defense for patent infringement; removing sanctions for failing to comply with the best mode requirement; limiting the applicability of revised approaches to interlocutory appeals and codifying recent judicial decisions improving the handling of venue changes; and creating a pilot program that enhances judge’s patent expertise.  However, we have a number of technical concerns with the bill’s language on these issues and look forward to working with the Congress to craft language that addresses these concerns and passing legislation that improves our patent system.

On top of this, the letter under the heading “Patent Quality & Harmonization” says:

The Administration supports the transition of the United States to a “first-inventor-to-file” system from the current “first-to-invent” system.  The transition would simplify the patent process, reduce legal costs, improve fairness, and make progress toward a more harmonized international patent system.  AS global trade increases, more and more applicants are seeking worldwide patent protection.  However, given the differences in national laws, obtaining patent protection in numerous jurisdictions is complex, time-consuming and resource intensive.  Patent law harmonization will not only lead to enhanced efficiency, but will also provide greater predictability, reliability, and competitiveness for American innovators.

Now let me tell you what I think of this — GARBAGE!  This is not international harmonization, it is US capitulation!  This will not lead to greater competitiveness for American innovators.  What it will do is dumb down US patent laws to make our laws just like the laws of the rest of the world, but for what gain?  Is this just another effort by the Obama Administration to provide a gift to the rest of the world without getting anything in return?  Exactly what specific and identifiable benefit would any of this be to US companies and US innovators?  None!  The United States is the dominant market in the world, all companies want US patents and there is simply no reason to harmonize our laws.  NEWSFLASH… the world already has harmonized patent laws because if you want your application to be granted priority in the United States it needs to satisfy US patent laws at the time of filing, which is exactly what happens in the overwhelming majority of cases.  US patent laws are the standard that everyone follows, and changing US laws will provide absolutely no benefit to independent inventors, small businesses or start-up companies.  Those who will benefit are large corporations and foreign corporations, but oddly enough it is small businesses in the US that actually employ the overwhelming majority of US workers, so why would we want to do anything that is a detriment to the largest employer group in the US?  Maddening!

There are a lot of things coming into focus, and the picture is really tremendously bad.  It is extremely peculiar and interesting that the Obama Administration does not want a prohibition on outsourcing of examination from the US and is also looking to make US laws compatible with the laws of other jurisdictions.  Is this a coincidence?  I don’t think so, and there will be some things coming to light over the next several days that I predict will cause even more cause for alarm.  If we change our laws to match the laws of the rest of the world and simultaneously carve away at patentable subject matter by eroding or eliminating patent rights for biotechnology advances, for example, we will find ourselves not only harmonizing process, but harmonizing substance.  This assault on pharma and biotech, not to mention the assault already ongoing in the courts with respect to software, would leave US law exactly like the laws of other jurisdiction and it would cripple the US economy and industries that are needed in America to employ workers and innovate.

All of this, together with what may start to leak out over the next several days regarding assaults on patentable subject matter in the United States casts an entirely new light on the recent urging of Microsoft’s Deputy General Counsel Horacio Gutierrez regarding a truly global patent system.  At the beginning of September Gutierrez wrote:

The logical next step is to accelerate the work underway to align patent approval procedures and application formats, including a common digital application, and to collaboratively set standards for patentable subject matter, adequacy of disclosure and enablement requirements, and the completeness of the examination record. Bold action is needed. Stringent criteria must be established and clearly understood so patent search and examination results can be accepted by patent authorities around the world.

I addressed this in Why a Global Patent System is a Bad Idea, and I think many thought I may have been running around acting a little like Chicken Little.  Trust me, I have not interest in being Chicken Little, and I really wish I didn’t have to say I told you so, but there is more here than meets the eye here.  It is time for those interested in a strong and vibrant US patent system, the continued vitality of US patent laws and a growing US economy to stand up and be heard.  The manufacturing jobs have gone and they are not coming back, and if we are not exceptionally careful so to will our high-tech jobs.

Proposals that would have the US cave and adopt international patent laws without any discernable benefit to the US are nonsensical and destructive.  And mark my words, if all of these changes go through there will be nothing to stop the outsourcing of patent examinations and a truly global patent system, with a global patent.  Of course, that will mean a good many things that are patentable now in the US will no longer be patentable.  This will be devastating, capital will dry up and innovation will at least substantially slow, if not grind to a halt.  Patent rights is what has lead to the creation of enormous industries and extraordinary advancements in science, technology and innovation.  Greed provides the necessary capital required to fund innovation in the US, and killing US industries that are dominant worldwide is just plain stupid.


Warning & Disclaimer: The pages, articles and comments on IPWatchdog.com do not constitute legal advice, nor do they create any attorney-client relationship. The articles published express the personal opinion and views of the author as of the time of publication and should not be attributed to the author’s employer, clients or the sponsors of IPWatchdog.com. Read more.

Join the Discussion

8 comments so far.

  • [Avatar for herbert]
    July 12, 2010 03:02 pm

    Dear Gene:

    Thank you for your quick answer! You are right, the Europeans are “somewhat” of the opinion that harmonization means: US please take our law.

    In my opinion that is mainly for the reason that in Europe you always have a dozen people discussing on the table before anything it is decided and all these dozen people (or countries) simply completely distrust each other. Because it takes the Europeans so long to come to terms with themselves they are simply not open to any compromise since that would destroy any solution they have found in Europe. To put it short: Europe cannot move – not because they don’t want to but simply because that would kill it. So they try to avoid an open discussion about this and the Americans have any reason to be annoyed about that. Furthermore they were lucky that most over Asia took over the European (= German) law so that they can say they are the majority.

    On the other hand I am of the opinion that some central differences between the (formal) European and American Patent Law (i.e.: First to File, Oppositions, No Discovery, No Inequitable Conduct, No “Fraud”, Patent Litigations for 50.000 bucks) simply make sense and the Americans should seriously consider whether they should not adopt some of those.

    All of this is formal Patent law and you might say: What about the material Patent law (i.e. Patent on Biotech, Software etc.)

    You are right in that sense that the European have quite lost some terrain by being to harsh on Biotech-Patents and also on Software. But (unfortunately I have to admit) in my view the Biotech sector was never heavily dominated by Europe, so there was no movement to the US since there was simply nothing to move.

    Europe has the problem that only in a few countries (i.e. IMHO Netherlands, Germany, Denmark, Austria, Scandinavia, Switzerland – although the latter is not really Europe or only partly) exists an innovative industry whereas in the other countries simply more or less nothing is invented. That goes for France, the UK, Italy where it is not much, but also for e.g. Spain and Greece where it is simply disastreous. Therefore many countries in Europe are frankly not interested in having strong patents plainly for the fact they do not have any industry that would benefit from it. They fear that patenting would increase prizes and that’s why they even (secretly or openly) oppose patents.

    On the other hand Europe has the EPO and the EPO due to the “EPO 2000” simply makes its own law now. Therefore rules and granting procedures concerning Biotech and Software have moved quite heavily concerning the US position (although not explicitly stated it is so). You may therefore expect that the EPO will take over many of the US positions concerning these fields in the future.

    The EPO does not like business methods, however. But (as I learned from Bilski) at least the CAFC doesn’t like them, too. And the “machine or transformation” test (although de jure denied but maybe de facto the test to be applied in the future) is much harsher than (e.g. ) the Hitachi-Decision of the EPO, where the EPO more or less declared everything technical. So maybe there will be somewhat of an alignment (or “harmonization”) in the future – and that would be that the EPO shifts its position.

    Sorry that I took so much of your time, but thank you for reading all this! I look forward to your answer!

    Best regards,


  • [Avatar for Gene Quinn]
    Gene Quinn
    July 11, 2010 03:54 pm


    I wonder if you have actually read my writings. You ask whether I have ever considered whether some parts of European Patent Law that are not different from the US just to be different but because they make sense. Of course I have thought of that, and if you read what I have written you wouldn’t ask the question. I ALWAYS say that the appropriate path should be to figure out what makes sense and choose that. Unfortunately, the Europeans are by and large opposed to that philosophy. They invariably believe harmonization talks are talks about having the US adopt European law, principles and philosophies. If you are familiar with the debate you know that to be true.

    So let me ask you… why doesn’t Europe adopt those aspects of US law that make for a better patent system? Why must Europe always demand that the US change to meet its laws and not do things that make sense?

    Anyone who seriously and objectively looks at the issues knows that the European view of patentable subject matter kills industries in Europe and forces them elsewhere and the expansive view of patentable subject matter in the US is why our economy has far more innovation and both large companies and start-up companies than does Europe. It is also why the biotech sector, which used to be heavily dominated by Europe, has largely moved to the US. So why would Europe continue to pursue laws that make no sense and drive away innovative businesses?


  • [Avatar for herbert]
    July 11, 2010 01:33 pm

    Dear Gene,

    first of all: I am from Europe (actually from Germany to explain).

    Did you ever think about the following: That some parts of European Patent Law are there not to oppose U.S. law but simply because they make sense ? And that the U.S. should take them simply because they are better ?

    If the U.S. Patent Law is so good, why was it not adapted by the Chinese when they started they patent system in the early 80s of the last century ?

    I have been in China quite often and talked to some of the people which were in charge when China “made” their patent system. China did it like always: They studied which systems were available worldwide and then picked they thought would be the best system. And that was not the U.S. System. It was the German system.

    China send a couple of hundred patent examiners to the GPTO to study how patents should be examined. Many of them eventually left the SIPO to found their own firms (which is a funny situation for me when you visit these firms and the big boss of them all tells you – in German – how much fun it was to drink beer in the Englische Garten in Munich).


    You write:

    “The United States is the dominant market in the world, all companies want US patents and there is simply no reason to harmonize our laws. ”

    That may be true for now – but what happens when China and Japan want their money back ? (As you have correctly quoted in one of your other blogs: its not your money you borrow it from China and Japan).

    Interested in your thoughts and (possible) answer, I remain

    Truly yours


  • [Avatar for Tony]
    October 22, 2009 02:32 pm

    This article caught my attention… but doesn’t it occur to anyone else that Obama’s administration is pushing us farther and farther away from being an Independent United States and moving us towards a merged world government that disregards the voice of the people and the pursuit to the freedom that our founding fathers fought for.

    To see how they are treating Fox news and disregarding freedom of speech and right to press makes me wonder what other barriers will they cross on their way to dissolving our common law constitution. Today people are looking at the here and now and not looking at the principles in which his administration and cut down anyone who has questioned them.

    When a president can’t be questioned he moves into the role of a dictator (good or bad) and when that occurs we the people lose the voice (and vote) of the people.

  • [Avatar for anon]
    October 12, 2009 11:06 pm

    BIDEN for president 2011

  • [Avatar for John White]
    John White
    October 8, 2009 11:15 pm

    I think once the lobbyist groups are done, none of these admin aims will be achieved. The devil is in the details. Some of these ideas are not bad in principle, in practice, poorly executed, it will be miserable for all. Divide and conquer on the work front is good, but if others do not do the same work in differeing subjects as does the U.S., bad outcome. 1st inventor to file works, but what about enablement and description? Other national filings can be pretty skimpy on that front. Details matter, and they need to be done right.

  • [Avatar for Gene Quinn]
    Gene Quinn
    October 8, 2009 06:35 pm

    American Cowboy-

    Amen! I think you hit the bullseye!


  • [Avatar for American Cowboy]
    American Cowboy
    October 8, 2009 01:50 pm

    The Obama administration assumes that whatever is good for big outfits is good for all. All they need to do is listen to big labor, big business, big finance, big lobbyists for guidance and act on whatever consensus they can get from those voices. It is true of healthcare (we have to reform healthcare because otherwise GM and the UAW are not competitive), banking reform and now the patent system.

    No wonder so many individuals cling to their guns and religion.