By Greg Mills
Recently my worst fears about the US Patent legal landscape have been fulfilled. Last summer Apple won a landmark judgment against Samsung for literally stealing the look and feel of iPhone.
Incriminating evidence was presented that convinced a jury that Apple had clearly been intentionally infringed on a handful of the hundreds of iPhone patents they hold. The court limited the number of patents and claims that she would consider in one trial.
After the legal “victory” came the inevitable “post trial motions.” Incredibly, the jury has been overruled by the judge in their finding that Samsung’s infringement was legally willful. Even worse, Apple’s patents, found to have been infringed, might not even be valid? On top of that, Apple has not been granted an injunction by the court on undisputed issues to keep clearly infringing Samsung phones out of Apple’s back yard.
Apple’s immediate appeal over the lower court’s refusal to grant them an injunction lost in the first stages before next higher court. If one of the biggest companies in the US, with billions of dollars in the bank and thousands of patents has been frustrated in enforcing its rights, what chance does an independent inventor have? Slim to none is the answer.
I was “allowed” my 11th utility patent by the US Patent Office in December: ”ADAPTIVE RE-USE OF WASTE INSULATED GLASS WINDOW UNITS AS THERMAL SOLAR ENERGY COLLECTION PANELS”. My excitement is somewhat restrained, as a seasoned inventor. The sad reality is that over the last 20 years or so, the patent office has become far less friendly to independent inventors.
Patents might as well be considered expensive wallpaper in a majority of cases. Only 1 patent out of 100, issued to independent inventors ever generate enough money to even repay the $350 Patent Office filing fees. While the Patent Office can’t be blamed for stupid inventions, there is far more at work here. The fundamental notion of what a patent is, is under attack.
Independent inventors getting meaningful Patent protection on an invention is statistically futile. The false promises found in the Constitution of the United States, verses the modern realities of life are hollow indeed. Patents appear to be just about worthless these days for Apple and for independent inventors alike.
My complaints are that modern patent protection is: too lame in meaningful enforcement, too expensive to obtain in the first place, too expensive to maintain long term, too prone to be invalidated if tested in court, too narrow to be practically useful, too slow a process to obtain timely patent protection on cutting edge technology and soon, there will be a mad race to file, since it does not matter who actually invented the device.
One complaint at a time.
1. Too lame enforcement of US Patents. Most people don’t know that when you receive a “letters patent” as described in the US Constitution, on a new and useful invention, what you really get is is the right to sue in Federal Court anyone you allege is infringing upon your patent derived monopoly. That sounds very powerful, but what it really amounts to is a path to personal bankrupting for most inventors, a long term legal fight only a well heeled company is able to wage. Apple proves even with unlimited money a company can’t win even under ideal conditions.
I had a situation a couple of years ago, where a large company was shown one of my patented inventions, despite an agreement to not steal the idea, they did exactly that. Five years later I discovered my exact invention on the market at a local store. They had stolen my invention down to the last detail but for one tiny added element. I bought one of the devices and took it to a local patent attorney, along with my still valid utility patent. After spending another thousand dollars for his opinion, the patent attorney told me I had at least a 50/50 chance of winning in Federal court. Did I have $100,000 to purse it?
The problem with them taking the case on contingency was that the company was privately owned, thus it would be a long way down the money pit to know how many device they had sold, to then anticipate what potential damages I might obtain if I won. What good is the right to sue if the process is so slow and costly you can’t meaningfully purse it, even when you have a pretty darn good case? Even in a situation where the patent attorney agrees to split the judgment money with you, normally the inventor will have to pay all the court costs, etc. The pass/don’t pass line at the Craps table at the local casino sounds better all the time.
2. Patents are becoming too expensive for Independent Inventors to obtain. The PTO filing fees and other direct PTO fees have increase over the years and with attorney fees included, figure spending between $5,000 and $10,000, depending on the hourly cost of the attorney and the complexity of your case. Keep in mind that despite a “patent search” for prior art, a magnitude of 50% of applications filed are abandoned or found by the patent office to be unpatentable at the end of the process. No Refunds, buster.
3. Issued Patents are too expensive to maintain long term, the US Patent Office instituted “maintenance fees” for patents filed after Dec. 12, 1980. If you spend the money to get a patent, once you actually dodge all the bullets and a patent is actually issued, you have to pay the PTO more money over the years to keep the patent from going invalid. The fees are due at 3and a half, 7 and 11 years from the date of issue. The fees increase each time and may be increased by the congress, whenever they get around to it. The notion is that this policy puts technology into the “public arena” far sooner if fees are not paid. Great if you manage to sell the technology but disaster if you have to wait a while to find the right situation.
At one time I had 10 issued patents in my portfolio and maintenance fees were coming up I couldn’t pay… Which of my patented inventions would have to be sacrificed for lack of funds rather than lack of creativity? In the old days, patents cost $3 to be issued, were good 21 years, were pretty much uniformly enforced in court and were broad enough to actually fully cover an invention.
The real problem is that inventors are often unable to anticipate which invention will become valuable. There is a natural development of technology, where things begin to make sense down line that were too far ahead of the time when patented. For example, Leonardo DeVinci invented a helicopter several hundred years before a practical motor to operate it came along. That is an extreme example, but canceling a hard won patent over not paying maintenance fees is very unfair to independent inventors.
4. US Patents are too prone to be invalidated if tested in court. While legally there is a “presumption” that valid patent on their face are enforceable, it has been estimated by experts that fully half of all issued patents when throughly “re-examined” will be found invalid as issued. I will restate that. A patent when actually used in court against a well funded infringer will be found invalid half the time.
This is due to a poor work product by the Patent Office and the vast amount of material from which “prior art” can be found. Ironically, the computer searchable body of material turns out to be a growing source of obscure prior art. Famously, Samsung found possible prior art to invalidate the Steve Jobs patent for “pinch to zoom” on touch screens, long after the trial was underway where Apple relied upon that patent to win a billion dollars. Going into a knife fight with a rubber dagger isn’t smart.
5. US Patent may be too narrow to be useful without a number of additional patents on the same invention. The patent office has created a classification framework upon which every patent is categorized. If you patent is too “broad”, the patent office will demand that you narrow your claims to fit within one specific classification to make life easy for your examiner.
The PTO and the even attorneys who work the system make money on the sheer number of patents in the system. Only the poor independent inventor gets screwed by “dividing” the application into multiple patents instead of allowing broader patents that cover the entire invention. Classification of patents came long after the right to patent inventions was enumerated in the US Constitution.
6. Soon a race to file, no matter who actually invented the item will change the landscape in favor of the well funded. The long term American concept of first to invent, as opposed to the first to file will be the rule. If your idea gets stolen and someone else gets to the patent office an hour before you file, you loose and they win. This will tend to be in the favor of those with money rather than the independent inventor in most cases. This will also result in half baked patents filed before the technology is fully developed.
7. Too slow a process to obtain timely patent protection. It takes so long to obtain a patent that in some industries, by the time a patent comes out, the technology is already out of date. Waiting to find out if a patent is going to issue can slow down the development of new technology. Currently it takes 3 years or longer to find out if a patent is going to issue.
8. Not enough is being done to stop the “invention development” companies that “like” your invention proportionately to the money you are willing to pay them. They actually like your money rather than your invention. Statistically, roughly 1 out of 1,000 “inventions” that get into the clutches of these companies ever get developed. The rest of the independent inventors get gouged out of between $10,000 and $20,000 for nothing.
Then after being burned, they are far less likely to follow up on the next idea that might actually be a winner… but they will never know. Once cheated by the invention submission service type companies, their days as an inventor are over and the patent certificate will fade on the wall until the PTO cancels it for lack of maintenance fees… how sad. How profoundly discouraging.
Half of all applications for patents fail to ever issue, half of all issued patents that get “re-examined” are invalidated. It costs upwards of $100,000 to enforce a patent over the 5 years a typical federal lawsuit takes to go to trial or settle. An independent inventor has a statistically low chance of significantly prevailing in court against a well funded infringer. The one in a thousand cases where John Doe beats the Jones Corporation is rare indeed. One begins to see why only one patent out of one hundred, issued to an independent inventor ever generate enough money to pay the PTO filing fees. This does not take attorney fees into account.
When people tell me they have a great idea and the money to patent it, I sarcastically tell them to buy lottery tickets instead. You have to be pretty smart to invent things and pretty stupid to patent them these days.