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
John C. Hughs*