things took a turn for the worse in 2011 when another company, GT Water, formed by a former Cobra employee, released a product eerily similar to Gene’s Zip-It. Cobra filed a cease and desist against GT Water, for patent infringement. They did not believe that GT Water would prevail, after all, GT Water had launched a product that was identical to the one for which Gene held a patent for years.
Traditionally, under the U.S. Patent System, a patent was a legal grant, a right to the exclusive use of your invention. If someone else believed they were entitled to the use of your invention, they would have to prove your patent was invalid in a regular court with a trial by jury. Instead, he was summoned to defend his patent in an administrative proceeding, in a specialized court for patent disputes called the Patent Trial and Appeal Board (PTAB). A court known for invalidating 84% of the patents they review.
GT Water challenged the patent’s validity and forced him into this unconstitutional, administrative court- The PTAB. All 12 of the claims that formed the basis for his patent were invalidated. While Gene’s licensing company, Cobra, agreed to share in the legal costs of defending against any patent disputes, the company disappeared when Gene needed them most, leaving him to fight against the giant corporation on his own. To make matters worse, Cobra even began infringing on Gene’s patent. They manufactured their own knock-off of Zip-it and stopped paying Gene royalties. Throughout the battle, Gene invested virtually all his savings with no resolution in sight.
It was during this time, that an appeals court ruled that the administrative judges of the PTAB are illegal under the constitution because judges must be appointed by the President and affirmed by the Senate. After all these years of court battles, it looked like Gene was going to get his chance to plead his case before a real judge. But the Director of the USPTO filed against Gene and a dozen other inventors at the Supreme Court, stating they do not have the right to a fair and impartial judge affirmed by the Senate. Instead, they state that the procedures used when picking these judges are good enough. The USPTO Director petitioned for the Supreme Court to uphold the illegal judge’s decision in invalidating Gene’s patent.
What was supposed to happen, as per the United States Constitution, did not. Instead, the Appeals Court upheld the decision of illegal patent judges that the Zip-it was obvious compared to the 1906 drain cleaner. After eleven years of battles, Gene’s Patent succumbed to the USPTO and the PTAB. Decided on March 11th, 2022, The Court of Appeals affirmed the PTAB’s decision and Gene lost his patent.
In 2003, when the USPTO and Patent Examiner granted the patent, they determined then it was nonobvious. In Gene’s filing for the patent, he included reference to the 1906 patent. The patent examiner, who is an expert in the field, determined that the 1906 patent and Gene’s patent were different and separate from each other in invention. This included, with the millions of sales of the product, show proof that it was nonobvious. But the unconstitutional, administrative court, and its entirety of three judges, decided, without jury, that it was obvious.
The USPTO proved, once again, that they will side with Big Tech over startups and inventors. Rather than protect his patent against infringers, the USPTO revoked his patent, and the appeals court endorsed this injustice.