Patent protection--not exactly!
By Gary Forger -- Modern Materials Handling, 11/1/1999
Imagine this. Someone files for a patent. In the 40 years it takes for approval, a complete industry is created around the very idea covered by the pending patent. Furthermore, the industry proves to be wildly successful with wide use of the technology. Once the patent is approved, the holder proceeds to sue companies around the globe for using (not for manufacturing infringing products but for using) the technology covered. The holder seeks multi-million dollar payments from these end users.It's unlikely anything like this could happen, you would probably say. And you would be wrong. About $1 billion wrong, to be specific. Just as bad, industry around the world will be living this nightmare until at least the year 2009.
At the heart of this are four patents for the use of bar codes "in the automated management and control of product inventory, warehousing, distribution and point-of-sale transactions." The wording is from a notice of patent infringement from the law offices of Gerald D. Hosier, Ltd., in Las Vegas, Nevada. The original holder of the patent is the late Jerome Lemelson, who passed away 25 months ago. Prior to his death, Lemelson transferred his patents to the Lemelson Medical, Education & Research Foundation so that the law suits could continue.
Since 1992, "over 200 prominent companies have collectively paid many hundreds of millions of dollars for licenses under the Lemelson patents," continues one notice from Hosier. Companies that have settled include U.S. and Japanese auto companies that sell cars in the U.S. Others range from Apple Computer to Motorola and Mitsubishi Electric (see MMH, Sept. '99, pg. 13 for related developments).
Unfortunately, it takes such a blind side threat to industry before you realize that there's something rotten in the current U.S. patent laws. The system was established in 1836. Way back then, it was considered prudent to keep the application con-tents secret until it was issued or rejected. But in Lemelson's case that meant 40 years elapsed before anyone knew what was in his applications.
Clearly, it is time for a change. The American Intellectual Property Law Association supports limiting the quiet period for an application to 18 months before the contents are revealed. That's still 18 months longer than in Europe where the contents are available the day the application is made.
MMH supports the proposed change. To express your support, visit the association's Web site at www.aipla.org . You can also contact the U.S. Patent Office at www.uspto.gov. While there may not be much we can do about the Lemelson patents, there is something we can do to sidestep this predicament in the future.
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