For those new to the issue of inventors having lost the ability to stop large corporations from just taking valuable, patented technologies, here’s a quick rundown:
1. Patent Trial and Appeal Board (PTAB): The America Invents Act of 2011 (AIA) created an easier way to invalidate (revoke) an issued patent. The PTAB is an administrative court with no jury and much less due process than a real court. Rather than a lifetime-appointed judge, a PTAB trial typically has three attorneys who are called Administrative Patent Judges (APJs). Since inception, 84% of the patents that go through a PTAB process get fully or partially invalidated (partially usually means the parts of the patent that matter).
When you attempt to stop a large corporation from infringing your patent, they will try to use the PTAB to invalidate your patent. If you win one PTAB attack, you can still be pulled into additional ones by the same or other infringers. According to the AIPLA (American Institute of Patent Law Association), a reasonable PTAB defense costs $400,000 to $800,000. Historically, the typical inventor would hire an attorney on a contingency basis to fight an infringer (where the inventor doesn’t pay much up front and the attorney gets a percentage of the verdict award or settlement amount). Today, it is extremely rare for an attorney to take any PTAB case on contingency.
2. Injunctive Relief (the ability to stop an infringer after you have won your case): The U.S. Supreme Court decided that it was in the “public interest” for a proven infringer to continue infringing because it could serve the market better than a startup (Ebay, 2006). As a result, even if you win your case, you will have to pass a “public interest” test before an injunction can be issued to stop the infringer. A startup vs an entrenched corporation will typically fail this test, so you can’t stop the infringer. You end up with a court-ordered royalty that you cannot negotiate, and the infringer keeps your invention and the market. This is often an impossible barrier for what would have been, until recently, the next great American disruptive startup.
3. Abstract Idea: The U.S. Supreme Court’s Alice decision (2014), put into law that an “abstract idea” cannot be patented, but did not define this term. The result is that a sharp attorney can often convince a judge, who may have little tech experience, that a patent should have not been issued. This argument is most often used for software related or medical diagnostics patents. The patents of many important, future technologies that are invalidated on this issue in America are valid and defendable in China and Europe, so that is where startup funding is going.
A U.S. Patent is supposed to provide the inventor with the exclusive right to his or her invention (U.S. Constitution Article I, § 8, Clause 8). You should be able to legally stop any infringer, no matter how powerful. You should be able to create a disruptive startup, or license your invention at a market rate. This is what created the incentive to invent that enabled America to lead the world in innovation for over 200 years and has been a major part of the American Dream.
This is what US Inventor is fighting to restore.
Help this vital effort by signing our Inventor Rights Resolution and getting your U.S. Representatives and Senators behind this effort.
