Patent Rights — Inventor Rights — Where Did They Go?

There was a time in America when inventors and small business innovators were cherished for their invaluable and, at times, disruptive, creations. Their contributions helped make the American Dream real to virtually anyone, through advancing technology as well as providing fun or useful items.

The list of American inventors is long and illustrious. That is how our Founders intended the system to work. They knew invention and innovation would greatly assist in driving the economy and growth.

That is a major reason why the following is included in our U.S. Constitution: Article I, § 8, Clause 8 states, “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.”

About one year after ratification, the Patent Act of 1790 (1 Stat. 109) was enacted and granted the applicant “the sole and exclusive right and liberty of making, constructing, using and vending to others to be used, the said invention or discovery.” This was conditioned upon the patent applicant submitting to the Secretary of State a specification, and, if possible, a model describing the invention.

To give an idea of how important inventors and patents were to our young nation, consider that the first board members included three of President George Washington’s cabinet; Secretary of State Thomas Jefferson, Secretary of War Henry Knox, and Attorney General Edmund Randolph.

The Patent Board members, who were also known as the “Commissioners for the Promotion of Useful Arts”, were given the authority to grant or refuse a patent after deciding if the invention or discovery was “sufficiently useful and important.” The duration of each patent was assigned by the Patent Board and could be of any length as long as it did not exceed fourteen years.

The very first patent was issued to inventor Samuel Hopkins for the improvement he designed “in the making of Pot ash and Pearl ash by a new Apparatus and Process.”

Our patent system grew from there.

For the next two centuries the granting of patents and the rights secured by said patents were fairly secure. That was true despite the fact that there have been numerous legislative and organizational changes to the patent system following its inception in 1790.

However, since the passage of the innocent-sounding America Invents Act of 2011 (AIA) and the creation of the Patent Trial and Appeal Board (PTAB), patents, inventions and inventors are far from safe. In fact, they are in great danger.

To provide a bit of a 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 comes in the assigned examiner may spend a year, 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 the most recent USPTO statistics, approximately 52% of all patent applications have been approved.

Keep in mind, these USPTO examiners are highly qualified and trained. They know what they are doing.

Since PTAB started, things have changed dramatically.

Due to the ambiguous language and abundant loopholes found in the AIA, multinational conglomerates and Big Tech have descended upon inventions and innovations for the ideas or tech they, themselves, could not create. As a result, they have literally stolen patents from independent inventors and small business innovators.

In a nutshell, through the PTAB anyone can challenge one or more claims in a patent, or patents, through an Inter Partes Review (IPR), an attempt to invalidate (revoke) a patent.

Deep pocket corporations know that few independent inventors or small business innovators can afford the half million or more that it would take to defend their patents through an IPR, or several IPRs as the case may be. And, worse, the PTAB has already invalidated 84% of the 3,000 patents it has reviewed. Knowing these odds, most inventors cannot assume that hazardous possibility.

This staggering amount of patent invalidations is conducted by “Administrative Patent Judges,” who are basically attorneys whose main experience is in law rather than in the technologies of the patents they are second-guessing. Yet, after a short hearing they overturn the work of the patent examiner(s), individuals who are actual experts regarding the technologies of the patented inventions.

As just one outrageous example: one patent was invalidated because the accuser, claiming prior art and that the invention being attacked was obvious, compared a backpack and a number of prior inventions consisting of thousands of pounds of equipment to a device small enough to be hidden on an actor’s person. That is ludicrous, at best. Criminal, at worst.

Many such cases exist.

The apparency of the newly created system, supposedly established to protect innovation under the AIA and the PTAB, is that the PTAB is working against innovators by consistently ruling to allow the outright theft of their hard-earned patents. And, in many cases, ruining lives in the process.

The USPTO and the PTAB are single-handedly jeopardizing the integrity and sovereignty of the U.S. patent system.

The facts are available for anyone who wishes to look.

The time has come to restore patent protection for inventors and mitigate laws, regulations and court decisions that have discouraged innovation by failing to secure to inventors the exclusive right to their discoveries, as guaranteed in Article I Section 8 Clause 8 of our United States Constitution.

US Inventor, since its founding, has supported the innovation efforts of the “little guy” inventors. Our broad experience with the patent system, new technologies, and creating companies, gives us a unique perspective.

Please volunteer your support by signing the Inventor Rights Resolution and getting other, like-minded people to do the same.

Randy Landreneau
President, US Inventor

US Inventor is a 501(c)(4) organization fighting to restore the rights of inventors and innovative small businesses.