recognize that there are a number of distinguished authorities on patent law present today that we were not able to invite to testify today. In particular, I would like to note the presence of Herb Walmsley of the Intellectual Property Owners Association as well as representatives from a variety of intellectual property groups here in town. It is my hope that today's hearing will help the members of this subcommittee better understand what works well, and what should be improved, in our current patent system. Before we attempt to fashion any legislative fixes to the patent system, it is essential that we carefully identify the problems we are attempting to solve. We have learned time and time again the Digital Millennium Copyright Act and the American Inventors Protection Act come to mind — that it can take a lot of time-consuming and hard work to forge successful consensus on IP legislation. I stand ready to roll up my sleeves and work with my colleagues in Congress and other affected parties on intellectual property issues. One area where I hope we can join together on a broad bipartisan basis is working to help curtail international piracy of U.S. intellectual property. We must be vigilant in our trade negotiations to make sure that our trading partners do not merely talk the talk they must walk the walk on enforcing intellectual property laws. Not to put too fine a point on it, many of us in Congress are watching USTR closely to see what the agency will do in relation to IP theft in the next Special 301 Round with respect to countries such as China and Russia. While there may - I emphasize the word may be a case to support Russia's entry into the WTO, Russia should not be permitted to become the new China when it comes to only half-heartedly enforcing laws, that some experts believe are only half-baked to begin with, intended to protect against the piracy of intellectual property. The Subcommittee plans to hold a hearing on piracy of intellectual property in the week following the next recess. Let me close by saying that I think the fact that thirteen of the very busy eighteen members of the full Judiciary Committee have made it a priority in their already crowded schedules to join this new subcommittee speaks volumes about how important we on both sides of the aisle view intellectual property matters to the continued success and growth of the American economy and the quality of life for U.S. citizens. I look forward to today's hearing and the future work of this new subcommittee. Thank you. ### Statement of Dean Kamen President DEKA Research & Development Corp. Before the Subcommittee on Intellectual Property On Perspectives on Patents April 25, 2005 1 Mr. Chairman, Members of the Committee, thank you for the opportunity to be here today at this important hearing. I am Dean Kamen, President of DEKA Research & Development Corp., a technology development company based in Manchester, New Hampshire that I founded in 1982. As a holder of more than 100 U.S. patents, I am pleased to speak to you today from the perspective of an inventor. As a small businessman whose company relies heavily on intellectual property, I feel that maintaining strong patent protection for America's inventors is critical. From my perspective, some of the proposals currently being discussed such as the weakening of injunctive relief, post-grant opposition, and the elimination of the presumption of patent validity – are extremely concerning. Specifically, I would offer the following perspectives as the Congress considers how to maintain and improve our country's patent system: 1. The purpose of the patent system in the United States, as set forth in Article 1, Section 8, Clause 8 of the Constitution, is to "promote the progress of...the useful arts by securing to...inventors for limited times the exclusive rights to their ...discoveries." As President Abraham Lincoln stated, our patent system "adds fuel of interest to the fire of genius." To work correctly, the patent system must appropriately reward innovation and risk. 2. In exchange for the right to exclude others from practicing the invention for a period of years, the public gains the benefit of the technical knowledge contained in the patent disclosure. The public also gains when the technology enters the public domain at the end of the patent term. 3. A strong patent system, at its core, must ensure that the U.S. Patent and Trademark Office issues patents of the highest possible quality. To accomplish this, patent applications must be examined effectively by highly qualified examiners, using the best available technology and prior art. Any patent reform must fundamentally focus on ensuring patent quality prior to the issuance of the patent. 4. It is my understanding that one reason this examination process is in need of improvement is because funding for the U.S. Patent and Trademark Office has not kept up with the increased number of patent applications being filed. Ending the diversion of patent fees to other parts of the government would certainly help address this underfunding. With the proper funding, I am confident that the Director of the U.S. Patent and Trademark Office, Jonathan Dudas, could find ways to hire, train, retain and reward examiners with the requisite credentials to solve the quality problem at its roots. With state of the art search tools and access to the world's technical literature at their fingertips, along with proper training, supervision and adequate time to do a quality job, many of the real and perceived problems with the patent system should fade away. 5. I fear that some of the patent reform measures currently under discussion are not only unnecessary to address the issues that exist in our patent system today, but have the very real potential to create substantially worse problems. Fundamentally our existing patent system is not broken. It is uncontested that a vast majority of the patents issued by the U.S. Patent and Trademark Office are sound. While we should strive to further improve patent quality, we should not allow the limited number of cases of poorer quality patents to drive changes to the patent system that has served this country well for more than 200 years. Before enacting the most dramatic change to our patent laws in the past 50 years, I would suggest that Congress carefully evaluate whether the various provisions that are being proposed will indeed benefit the economy and support innovation. 6. One of the areas of consideration for patent law reform that gives me particular concern is the weakening of injunctive relief. Particularly troublesome is the elimination of the rebuttable presumption of irreparable harm when seeking a permanent injunction after a patent has been found to be valid and infringed. I believe that reversing the burden of proof to obtain a permanent injunction will have catastrophic consequences in our patent system and is particularly problematic for independent inventors. It is a fundamental principle of United States patent law to recognize patents as forms of property (like real property). That is, the holder of a valid patent has a right to exclude others from trespassing on that owner's private property. The Constitutional right to exclude others is properly enforced by using the mechanism of a permanent injunction. It is important to note that a permanent injunction can only be granted after a patent is found to be valid and infringed. · Parties may be less likely to settle disputes if money is the only risk or penalty that party would face for trampling on the valuable property rights of others. Reversing the presumption of irreparable harm, therefore, may discourage parties from settling their disputes, thus prolonging and increasing the costs of litigation. Weakening the standard for granting permanent injunctions would be tantamount to adopting compulsory licensing. The United States has fought hard to eliminate these types of compulsory licensing schemes in the international arena through the TRIPS agreement. 7. Finally, to require a patent owner to personally manufacture and sell products covered by his or her patent before being entitled to an injunction would diminish the individual inventor's incentive to invent. Indeed, the individual inventor is seldom in the best position to personally commercialize his or her invention. For example, my company focuses on doing what we do best - creating innovative technology - and then seeks to partner with established corporations in the relevant field to allow them to do what they do best - manufacture, market, and sell these products. This business practice is entirely consistent with the fundamental purpose of patents, to promote the benefits of technology, by getting these innovative products, as quickly and efficiently as possible, into the hands of the people who need them. Conclusion As innovation becomes ever more important to America's global competitiveness, a strong patent system is more important than ever. I strongly urge you to be extremely hesitant to move any legislation that could undermine an enduring component of the economic system that has made America the envy of the world for more than two centuries. AIPLA AMERICAN INTELLECTUAL PROPERTY LAW ASSOCIATION 2001 JEFFERSON DAVIS HIGHWAY SUITE 203 ■ ARLINGTON, Virginia 22202 Statement of Michael K. Kirk Executive Director American Intellectual Property Law Association Before the Subcommittee on Intellectual Property Washington, D.C. On Perspectives on Patents April 25, 2005 |