7431 Teasdale Ave San Diego, CA 92122 November 4, 1994 Rep. Dana Rohrabacher 45th District, California US House of Representatives Washington, DC 20515 Dear Representative Rohrabacher: What you said at Patent Commissioner Lehman's recent hear- ings in San Diego may well be true in the biotechnology field, where big long-term investments are the rule and no other form of intellectual property protection is applica- ble. I don't really know; it's not my field. But I _d_o know that in my field of computers, software and digital communications, the current US patent system is _t_o_t_a_l_l_y out of control. Instead of encouraging innovation by increasing the chances that an inventor, especially an indi- vidual, will profit from his work, patents now actually _d_i_s_- _c_o_u_r_a_g_e innovation by introducing enormous uncertainty over whether an inventor, especially an individual, will ever be allowed to sell or even give away his own work without pay- ing extortionate royalties or facing a destructive lawsuit. Patents now ensure that only large companies with substan- tial financial and legal resources can play the game. There are many reasons for this, including incompetent patent examiners, the lengthy (yet often incomplete) exami- nation process, ridiculously overbroad claims, the abundance of patents well covered by the prior art, the almost com- plete abandonment in practice of any meaningful standard for obviousness, the lack of an open and balanced reexamination process, "submarine" patents, and the excessive 17-year patent term. Recently the Patent Office called for public comment on the obviousness issue. I hope this means they know they have a serious problem on their hands. I have appended my own comments. But the patent problem in my field goes well beyond the sin- gle question of obviousness, and so do my recommendations. Here are a few: 1. Seventeen years is an eternity in a fast-moving field like mine. With product cycles often measured in months, the 17 year term mocks the spirit of the Constitutional phrase "for a limited time". Patent terms should depend on the field and nature of the invention: long terms for major investments in slow-moving fields, and short terms (or no patents at all) for minor, incremental improvements in a fast-moving field. -2- 2. Patent terms _m_u_s_t start at filing, not grant. I know you oppose this change, but I see no other way to stop submarine patents. I recognize that if patent terms were to start at filing, and if the terms depended on the field, proper exam- inations might cause patents in a fast-moving field to expire before they can be issued. Yet this would merely say that patents are inappropriate for that particular field. Alternate business strategies are available, such as trade secret protection and simply getting to the market first. 3. Standards for obviousness must be drastically raised. Patents provide an extraordinary degree of protection, and they should be reserved for truly extraordinary inventions. They are wholly inappropriate for "inventions" that any com- petent engineer could have thought up in a half hour given the same set of requirements. Yet the vast majority of patents I read are exactly of this nature. 4. Software patents should be banned entirely. Bill Gates didn't need them to become the richest man in the US. Now that we have them, don't be surprised if Microsoft is soon the only US software company left. Few real innovations in software come from enormous companies with broad, government enforced monopolies. Most come from small companies, or even individual entrepreneurs with nothing more than a PC and an idea. And we're the ones least able to survive a patent fight. Copyrights and trade secrets are far more appropriate to what we do, and their potential for monopo- listic abuse is far less. I thank you for your time. Philip R. Karn, Jr.