(MARSHALL, Texas, February 8, 2021) — At US Inventor we are standing up for independent inventors and small businesses whose survival depends on the integrity of the U.S. patent system. A patent is often the only barrier to prevent a multi-billion or trillion dollar corporation from copying superior technology developed by a disruptive startup.
That is why US Inventor sought to intervene in a case filed recently in the Northern District of California by Apple, Google, Intel, and Cisco against the United States Patent and Trademark Office. Judge Edward Davila rejected the inventors request to intervene in the case in San Jose, denying their motion to intervene on Friday February 5. His ruling held that the big tech plaintiffs and the government defendant can sufficiently represent all the relevant interests in the dispute.
On the following business day, February 8, 2021, US Inventor filed their own complaint in the Eastern District of Texas, the headquarters of Tinnus Enterprises, the company owned by Bunch O Balloons inventor and US Inventor volunteer Josh Malone. Case number 2:21-cv-00047 has been assigned to District Judge Rodney Gilstrap. The complaint alleges that the Patent Trial and Appeal Board (PTAB) decision-making is improper and in violation of laws passed by Congress. The PTAB was established by the 2011 America Invents Act, and has since ruled 84% of the 3,000 issued patents they have reviewed to be invalid.
According the US Inventor, the PTAB is the single biggest threat to inventors and has virtually destroyed the integrity of U.S. patents. Unwitting inventors have discovered that no patent is safe from the PTAB, which is utilized almost exclusively by large corporations to eliminate the patents of smaller competitors. The vast majority of PTAB beneficiaries of the 84% invalidation rate are Fortune 100 corporations, who influenced the implementation of the law and hiring of the “judges”. In one instance an attorney for Apple joined the PTAB as a judge, invalidated patents in 23 of 24 cases in favor of his former client, then went back to work for Apple. Failure of the USPTO to pass rules has created a “wild-west” legal system where the big corporations deputize their cronies in the USPTO to open fire on their inventor enemies.
Ray Perkins is the inventor of a slow-release formulation for agricultural fertilizers, whose patent was recently invalidated by the PTAB. “The PTAB rules give these patent bandits a path to steal technology and ultimately the rules themselves kill incentive for small inventors to innovate. In the case of World Source Enterprises, those innovations can cure Red Tides, Algae bloom outbreaks and hypoxia in the Chesapeake Bay and Gulf of Mexico. It is bad for American Business and worse for the American Dream” Perkins’ patent is held by his partner company World Source Enterprises, one of the small businesses that joined US Inventor in this suit.
Larry Golden, CEO of ATPG Technology, LLC has ten patents relating to systems that detect and prevent terrorism. Golden shared his discovery with the government, only to discover that he was being infringed upon. He sued, then consequently faced a brutal PTAB attack by the Department of Homeland Security. Golden is a plaintiff in the newly filed case.
Michael Kintner invented the first multi-camera system to re purpose existing cameras to create high definition, 360 degree video, with super-high resolutions of 24,000 by 12,000 pixels (several times the typical HD). Kintner’s invention actually got into the Guinness Book of World Records for the first 360 degree video from the top of Mount Everest! Because the invention could film one mile deep in the ocean, the navy used it to film things like underwater transfers between submarines, and Shark Week used his invention to get some great footage. Kintner was producing and licensing his invention when GoPro started infringing. Kintner’s company 360 Heros is also a plaintiff in the lawsuit.
David Monroe is the inventor of the cell phone camera. He pioneered wireless video transmission including circuitry, encryption techniques, and compression algorithms. He is the inventor on more than 50 patents and founder of the San Antonio Museum of Science and Technology. A serial entrepreneur, one of Monroe’s companies, E-Watch, has joined in the lawsuit.
In addition Ramzi Maalouf, inventor of a popular version of the selfie-stick and Stragent, a company holding patents on key automotive networking technology, have joined in the lawsuit.
Recently, the PTAB has declined to consider a few challenges on the basis that a duplicate case was underway in a regular court with a jury trial scheduled to conclude before the PTAB could reach its decision. Having filed in excess of 1,000 patent challenges at PTAB, the four tech giants are upset at the recent denials and object to being forced to answer charges of infringement in a regular court before a real judge and jury.
In particular, the federal courts in Texas offer inventors a trial by jury within 18 months – which is faster than the PTAB. Inventors believe that regular courts are much more fair as well. In response to the recent denials by the PTAB, the tech giants began lobbying Congress and the White House to put a stop to the meager reforms overseen by Andrei Iancu, who was appointed by former President Trump to replace Michelle Lee (the former head of patents for Google who led the agency from 2014 to 2017). Their complaint in California asks the court to force the USPTO to accept their PTAB petitions, even when it interferes with an ongoing case in the Texas court.
On one hand, the inventor-plaintiffs agree with the tech giants that the procedures at the PTAB are too loose and unpredictable, and that the USPTO is violating the Administrative Procedures Act and the America Invents Act, which require agencies to promulgate regulations through notice-and-comment rulemaking. The abuses include permitting multiple petitions challenging the same patent, rehashing prior art that the USPTO had already ruled on, and interfering with Article III courts.
The inventors point to the requirement (35 U.S.C. §316(b)) – “In prescribing regulations under this section, the Director shall consider the effect of any such regulation on the economy, the integrity of the patent system, the efficient administration of the Office”.
US Inventor spokesman Josh Malone says that this legislative provision is a lynchpin to prevent abuse of the system large corporations that steal technology from smaller competitors – “In the 9 year history of the PTAB, the USPTO has not passed any rules that consider the integrity of the patent system or effect on the economy”. Malone is the inventor of Bunch O Balloons and notes that this violation by the agency added over a million dollars of expense and several years of delay to his dispute with the company that stole his invention.
While the inventors agree with the tech giants that the PTAB is operating in violation of the law, they diverge on the appropriate remedy. They are asking the judge to compel the USPTO to pass clear rules that will eliminate duplicative conflicting validity trials and other injustices that aid large corporations that steal their inventions.
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About US Inventor – US Inventor, Inc. (“US Inventor”) is a non-profit association of inventors devoted to protecting the intellectual property of individuals and small companies. It represents its 13,000 inventor and small business members by promoting strong intellectual property rights and a predictable U.S. patent system through education, advocacy and reform. US Inventor was founded to support the innovation efforts of the “little guy” inventors, seeking to ensure that strong patent rights are available to support their efforts to develop their inventions, bring those inventions to a point where they can be commercialized, create jobs and industries, and promote continued innovation.