COMMISSIONER LEHMAN:  Next, Mr. Anthony D. Sabatelli.
 
        MR. SABATELLI:  My name is Anthony Sabatelli.  I am employed at the
        Procter and Gamble Company, 11511 Reed-Hartman Highway in
        Cincinnati, Ohio, zip code 45241.  My position is counsel of
        patents.  The phone number there is area code (513) 626-3266.  The
        comments I will be presenting represent the views of Procter and
        Gamble.  Assistant Secretary of Commerce Lehman, Deputy Assistant
        Secretary Kirk, Commissioner Goffney, Deputy Assistant Commissioner
        Kunin, Solicitor Linck, Procter and Gamble would like to thank the
        Patent and Trademark Office for the opportunity to testify at this
        public hearing. Procter and Gamble is also a member of the
        Intellectual Property Owners, an organization that is presenting
        testimony today.  Because of the significance of the 18-month
        publication change, we felt it was important to also testify on our
        own behalf.  Procter and Gamble strongly supports 18-month
        publication.  The major reasons why we support this change are
        provided in our written comments.  In anticipation of the change to
        18-month publication, the PTO is now seeking comments in 14 question
        areas.  I will now address these.  Our position is summarized on the
        handout that I've given you.  We support publishing the enter patent
        application, including amendments as it exists at a fixed point,
        such as three months before publication.  We support providing the
        public with continuing access to the entire application file after
        publication.  We support publishing assignment records and making
        deposited biological samples available to the public.  We support
        three month deadline after filing for making a claim for priority. 
        We believe that 18-month publication should be automatic, unless the
        applicant timely and affirmatively acts to abandon the application. 
        We support allowing third parties to submit prior art at the PTO up
        to a period of three months after publication.  We support the PTO's
        proposal for submitting amendments to the application file. 
        However, we oppose establishing formal, pre-grant protests or
        opposition procedures.  Now, I will address some of these question
        areas in more depth.  Questions three and ten are related.  These
        questions seek comment on the scope of the information to be
        published at 18 months and on the extent of the access to the file
        to be given to the public after that time.  Regarding the
        publication issue, the PTO is proposing four options.  Our position
        is that the PTO should adopt option four, which proposes publication
        of the entire patent application as amended at some fixed, such as
        three months before publication.  This option would make the
        greatest amount of published information available to the public. 
        We do recognize that, this option might not presently be feasible
        because of monetary and logistical restraints.  However, once
        electronic filing and a dedicated CD-ROM system are available at the
        PTO, it should be relatively easy and economical to provide the
        public with the entire application, at least, in electronic format. 
        In the interim, until the PTO establishes such a computer system, we
        would support implementing option two, publication of an abstract,
        similar in format to that now published in the official "Gazette,"
        provided this option is coupled with granting continuing public
        access to the application file.  It is essential that the abstract
        contain sufficient information to enable a knowledgeable reader to
        determine whether seeking access to the application file is
        warranted.  Therefore, the abstract must contain the broadest or a
        representative claim and appropriate bibliographical information. 
        Regarding access to the application file after publication, the PTO
        proposes making the file available for public inspection either as
        originally filed or as exists at some fixed point before
        publication.  We do not agree with this type of limited access.  We
        strongly believe that the public should be provided with continuing
        access to the entire application file at the time that access is
        requested.  The PTO is reluctant to allow continuing access,
        contending that it would require removal of the file from the
        examiner, thereby interfering with the examination process and
        causing delays.  We do not agree with this reasoning and believe
        that any potential delays can be easily minimized by keeping
        duplicate or even triplicate file wrappers as is the practice at the
        European patent office.  Also, once the PTO installs an electronic
        filing and CD-ROM system, the feared disruptions to examination
        should become non-existent.  We believe that continuing public
        access to the complete file will provide the public with the
        greatest amount of information.  An interested party would be able
        to check on the current status of the application, learn what prior
        art is being considered by the PTO and get a reading on the possible
        outcome of the examination.  This information would help reduce the
        uncertainties inherent in the present system and would help reduce
        the potential for post issue litigation.  This reduction in
        litigation will reduce the costs associated with technology
        development and will also provide more incentive for these
        developments.  Regarding questions eleven and twelve, we support the
        PTO's proposal to make assignment information and deposited
        biological samples available to the public.  Regarding question
        eight on handling claims for priority, we support the PTO's proposal
        that a claim should be forfeited unless it is made within a
        reasonable period, such as three months.  Question seven relates to
        the publication mechanism.  We believe that all patent applications
        should be automatically published unless some affirmative action is
        taken by the applicant to withdraw and abandon the application. 
        Publication should proceed whether the applicant timely paid any
        required publication fee.  This procedure is preferable to the
        alternative procedure where publication is made contingent upon
        payment of a publication fee.  The alternate procedure opens an
        loophole whereby an applicant can potentially delay publication by
        submitting a late fee payment along with a petition to revive the
        application.  We believe that the cost of publishing an application,
        where the fee is lacking and the application is allowed to remain
        abandoned, would be relatively small. This cost could be more than
        offset by the benefit of reducing delays and reducing the potential
        for abuse.  Regarding question fourteen, the PTO seeks comment on
        the submission of prior art by third parties and also on the
        establishment of protest and opposition procedures.  We do not agree
        with permitting unrestricted submissions. Unrestricted submissions,
        especially when coupled with continuing access to the file, could
        interfere with examination and could also be abused by third parties
        seeking to delay issuance of an application.  We support a system in
        which a third party would be permitted to submit relevant prior art
        to the PTO up to a fixed period, such as three months after
        publication.  For all subsequent submissions, the third party would
        be required to wait until the patent issues and then request the
        reexamination, as is the practice under the current system.  We do
        not support establishing formal pre-grant protests or pre-grant
        opposition procedures.  Our experience in Japan has shown that these
        procedures are costly and can unreasonably delay the prosecution and
        ultimate issuance of a patent.  Also, pre-grant protests and
        opposition procedures could be abused by third parties seeking to
        harass an applicant by purposely delaying prosecution. Instead, we
        believe that post-grant reexamination and opposition procedures
        should be used for challenging a patent.  Regarding question
        thirteen, we support the PTO's proposal for entering amendments with
        some suggested safeguards that we have in our written comments.  In
        summary, Procter and Gamble supports 18-month publication of patent
        application.  We believe that the PTO should publish a patent
        application as it exists at a fixed point, such as three months
        before publication unless desirable but acceptable interim procedure
        would be to publish an abstract containing the broadest or
        representative claim along with appropriate bibliographical
        information.  In either case, we strongly believe that the public
        must have continuing access to the entire application file.  Any
        potential disruption caused by such access could be minimized.  We
        support publishing assignment records and making deposited
        biological samples available to the public. We support a three-month
        deadline after filing for making a claim for priority.  We believe
        that 18-month publication should be automatic, unless the applicant
        timely and affirmatively acts to abandoned the application.  We
        support allowing third parties to submit prior art to the PTO up to
        a period of three months after publication.  We opposed the
        institution of formal pre-grant protest or opposition procedures. 
        Finally, we support the PTO's proposal for submitting amendments to
        the application.