$17 million: The real and staggering cost to patent in the US in the PTAB age, by Josh Malone
Published by IPWatchdog
At least $17 million. That is what my Bunch O Balloons patent has cost so far. It could grow to $50 million. Yes, we are talking about water balloons, not smartphones.
How can this be? Because the patent grant issued by the U.S. Patent and Trademark Office means nothing to infringers like Telebrands and Walmart. They simply ignore the patent and rush to take over the market with their knock-offs (Balloon Bonanza in 2015, Battle Balloons in 2016, and Easy Einstein Balloons in 2017). Then they use those revenues to hire attorneys and experts to say the patent is invalid. If the patent owner lacks deep pockets or good lawyers, his patent will not survive. If he does have access to infinite funds, he has about a 5 percent chance of survival thanks to the America Invents Act (AIA) and the USPTO’s implementation of the Patent Trial and Appeal Board (PTAB).
Fortunately, sales of the original Bunch O Balloons have been sufficient to maintain the legal fight. Zuru, the exclusive licensee of my patents, has done an outstanding job producing, marketing and distributing the original Bunch O Balloons. They have cooperated in defending the challenges to the patents brought by the infringers. We have mountains of objective indicia of non-obviousness, including recognition as best selling toy and an admission of copying by the infringer: “[t]his is only the first proto so assume this will have 37 filler rods and balloons…exactly like the original ‘Bunch of Balloons.’” Every fact is in our favor. It is the most cut and dry patent infringement case imaginable. But the outcome is uncertain due to the deteriorated condition of our patent system.