Josh Malone had given up the safety and security of his corporate job to, instead, work as a consultant, entrepreneur and inventor. He started his own company and was also a design consultant for others, working on a wide range of products.
Having bootstrapped his business for eight years, Josh and his family were fast becoming financially strained, depleting savings and college funds, with all other resources pretty much exhausted. It seemed that the time had come to return to a day job.
And then came the miracle.
Like many families, Josh and his kids enjoyed the decades old game of playing with water balloons. The frustrating part, of course, was how long it took to fill up a single balloon, let alone dozens, in order to have some real fun. There were times the family would spend hours filling up hundreds of balloons so they could really enjoy getting each other soaking wet.
Although it took a while, he did eventually create something quite original and totally unique. In order to take it to market, he decided to raise funds through the Kickstarter crowd-funding platform. His invention, called Bunch O Balloons, went viral and, in just a few days, over $900,000 was raised.
Production started, sales were brisk and to Josh’s utter amazement and absolute delight after years of struggle, his innovation had captured America’s love of fun and Bunch O Balloons became the number one selling summer toy.
Unfortunately, his success on Kickstarter and in the retail marketplace made Bunch O Balloons stand out and become a target for patent thieves.
A friend had called Josh and told him that his product was being advertised on TV, but under a different name, Balloon Bonanza. Josh soon discovered that a serial infringer, Telebrands, had ripped off his design and the firm was selling via television and through other outlets. When a cease and desist letter did not work, Josh and his licensee, Zuru, filed a lawsuit. An injunction was issued and Balloon Bonanza was stopped.
Not wanting to lose a good thing, the next year Telebrands launched another copycat, Battle Balloons. Another lawsuit filed. Another Injunction. Another halt to infringement. However, the following year Telebrands released yet a third copy, Easy Einsteins. Thankfully, Josh was able to obtain another injunction.
Instead of backing down, Telebrands decided to change course and filed an Inter Partes Review (an attempt to invalidate patents) with the Patent Trial and Appeal Board (PTAB). In short order, without any due process whatsoever, the PTAB did revoke Josh’s patents, depriving him of his constitutionally protected patents and taking away his constitutionally guaranteed right of property.
Telebrands would discover they messed with the wrong inventor.
Josh and several other inventors held a protest on the sidewalk in front of the US Patent and Trademark Office (USPTO) where they burned their actual previously granted, now invalidated, Patents, symbolizing their worth after the PTAB (aka the Patent Death Squad) basically destroyed their livelihoods. The result was international media and a turning of the tide.
Josh won his first lawsuit and the PTAB did a complete about-face and his patents were restored.
“When confronted in a federal court with their misdeeds, Telebrands alleged my patent was invalid because the patent office made a mistake,” Josh said. “My patent says that when the balloons are substantially filled with water, they fall off and automatically seal. They paid an MIT professor to testify that no one knows when a balloon is ‘substantially filled with water.’ The federal judge and the appeals court found their argument absurd and ruled in my favor.”
The upside to his tale is that Telebrands finally offered a settlement, which Josh and his legal team accepted.
The battle for the right to keep his Bunch O Balloons patents intact was long and arduous. Most inventors and small business innovators who have lost their patents through the PTAB are not as fortunate, basically losing their invention to patent thieves forever.
After winning his fight, Josh and his family moved near the nation’s capitol in order to help others through lobbying for inventors’ rights and working to re-establish what used to be our country’s gold standard patent system.
“For 200 years America had the best patent system in the world,” Josh points out, “and we benefited from that for a long time. Now we must acknowledge that we don’t have that anymore. If we want it back, we’ll have to go get it.”