Most Americans are quite aware that our rights as We the People have eroded.
There is one right many, if not most, people are unaware of that is being shredded on a daily basis. That right is spelled out in Article I Section 8 Clause 8 of our U.S. Constitution.
It is the right of authors and inventors: “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”
That clause is, in reality, a significant and powerful part of the American Dream. That Intellectual Property clause has provided the means for people from all walks of life, who have a bright and useful idea, to capitalize on their innovations and creations.
For more than two hundred years that idea which our Founders embedded in our Supreme Law of the Land for inventors and patent holders held true, for the most part.
To provide some backstory: the U.S. Patent and Trademark Office (USPTO) has numerous Patent Examiners who have been highly trained in their areas of expertise. When a patent application is submitted to the USPTO, the assigned examiner might spend a year or two, maybe a decade, determining if the invention has not been created or described in prior patents (i.e., no ‘prior art’ like it exists) and that it is ‘non-obvious’ (i.e., it would not be obvious to someone in that field).
Based upon their exhaustive review the Patent Examiner would then either issue the patent or reject it. According to recent USPTO statistics, only 52% of all patent applications have been approved.
Once the inventor brought their product to market, if someone infringed on their patent, the patent holder engaged an Intellectual Property attorney and took the offender to court.
Then, along came the America Invents Act of 2011 (AIA).
That innocent sounding piece of legislation included the establishment of the Patent Trial and Appeal Board (PTAB), an administrative tribunal that has devastated independent inventors in favor of Big Tech and multi-national conglomerates, allowing the latter to legally steal patents, their property rights.
The PTAB tribunal consists of a panel of Administrative Patent Judges (APJs) who are not real judges. They are, for the most part, attorneys whose main experience is in law rather than in the technologies or specifics of the patents they are “judging.”
There are PTAB supporters who claim that the “AIA created an alternative process involving trained patent judges.” Trained patent judges? A whopping 76% of APJs have two years or less of technical experience, and 60% have ZERO tech experience (2019).
Yet, these “trained patent judges” regularly overturn the work of the highly experienced USPTO Patent Examiner(s), regardless of how long a patent has been in effect, nor how original and unique it was when it was first discovered.
It should be pointed out that the USPTO now appears to be a two-headed monster. On the one hand, the USPTO employees over 8,000 Patent Examiners who are researching, reviewing, analyzing and then, basically, creating a valuable product; the issued patent. On the other, it also employs less than 200 APJs who are destroying those very same products in contested and very lopsided proceedings.
The result has been catastrophic. PTAB APJs have invalidated 84% of the 3,000+ challenged patents they have reviewed. They have rightfully earned the nickname: the Patent Death Squad, a term coined by former Federal Circuit Chief Judge Randall Rader, back in 2013.
While the rate of patent invalidation is insane, so are many of the reasons provided by the APJs. Supporters of the PTAB state things such as the IPRs “handle the perceived high number of flimsy patents issued by the patent office in prior years.”
It would be interesting to hear a PTAB supporter explain a few examples below.
Emmy award-winning inventors Glenn Sanders and Howard Stark are pioneers of digital wireless microphones and built their company Zaxcom in reliance on their U.S. patents. Their competitors have infringed their technology and the PTAB is helping them by declaring their invention obvious 14 years after the fact. The PTAB allowed the combining of a backpack with thousands of pounds of equipment and batteries to be comparable to a small device hidden on an actor’s person, thus making it obvious.
Apple refused to pay inventor Mark Kilbourne for his remote control deadbolt, so they requested the PTAB to revoke his patent. The APJs did so and ruled that it “would have been obvious” to combine an old-style deadbolt with a Swiss army knife to create the remote.
David Furry invented a leak detection system providing a highly-effective way to detect and view otherwise invisible toxic gas emissions. A large corporation stole his idea and filed with the PTAB to invalidate his patent. The APJs did just that. Even though David’s invention detects near invisible gas leaks that produce a near zero temperature signal, the PTAB stated that his technology was equivalent to a thermal imaging device that detects jet engine exhaust at over 1,000 degrees, thus obvious.
The list of absurd reasons for patent invalidations goes on and on.
Many of these cases involve an independent inventor with the next “best mousetrap” whose invention was stolen by a large corporation that could not create or develop – in their highly funded Research & Development labs – what the original inventor discovered, oftentimes in a garage or make-shift workshop.
Another argument supporting the AIA and PTAB is, “A patent office review costs about $350,000 to litigate fully, whereas in district court it could be $3 million.” The $350,000 is, actually, low. However, the larger point is that those proponents fail to mention that a single patent can have as many as 10 or 20 IPRs filed against it, EACH of them costing $350,000 to $500,000. Now, do the math. And, don’t forget that APJs do not allow due process, as provided in a district court. How much is that worth?
Thus, our once successful patent system, which helped grow the American economy for more than two centuries, is systematically being destroyed. The AIA and the PTAB have killed patent rights and, with that, are ravaging the American Dream.
US Inventor Inc is a 501(c)4 non-profit organization based in Tampa Bay, Florida, with the purpose to end anti-inventor patent reforms, legislation and court decisions, while advocating for strong patent rights for inventors, as our Founders had intended and planned.
Members and supporters of US Inventor include tens of thousands of actual inventors, many of whom have lost their own patents, as well as experienced extreme financial loss, through the Patent Death Squad, as well as American Citizens who wish to see these creative innovators recover their constitutionally guaranteed rights.
The group points out that the astronomical patent invalidation rate by the PTAB is done without lifetime appointed judges (violating the Appointments Clause), and, that patent owners do not receive a trial by jury, nor any form of real due process, as the APJs proceed to strip them of their property (violating three points in our Fifth Amendment).
Suffice to say, America will be a much better country and the American Dream will be restored when Article I Section 8 Claude 8 is returned to its original intent.