The present bills being considered in Congress ignore the plight of inventors and small innovative companies and instead focus on what are largely rarely or nonexisting problems fictionalized by large infringers in an effort to cripple or pervert the patent system as a means of destroying their small competitors. Unfortunately, some in Congress and the White House have fallen prey to or been commandeered by these red herring pretended issues and those who make such unsupported accusations. These proposed changes will not protect small entities. What they will do is make it easier for Chinese and large multinationals to rob and destroy inventors and other innovative small competitors.
For example, proponents decry ‘patent trolls’ and vague patents yet they never clearly define or identify. Inventors will tell you that’s because they don’t exist. Rather infringers dodge defining ‘patent troll’ because what they really mean are inventors and small innovative competitors. That is the true aim of Chinese and large multinational originators and proponents of these bills. China is on record as stating these changes will make it easier for them to infringe the patents of US holders. Their goal is not to strengthen the patent system, but to weaken it and the property rights they were intended to protect.
But there’s a reason why the founders of America included rights for inventors in our constitution. As then future president James Madison wrote in Federalist No. 43 regarding constitutional rights of inventors and that portion of the Constitution as proposed, “The utility of the clause will scarcely be questioned. The copyright of authors has been solemnly adjudged, in Great Britain, to be a right of common law. The right to useful inventions seems with equal reason to belong to the inventors. The public good fully coincides in both cases with the claims of the individuals.”
It’s about property rights. In America they should not only exist for the wealthy and politically well connected. That would be tacitly un American and repulsive to the American way of thinking. Congress must now course correct and restore strong patent rights for all patentees -large and small.
As to vague or weak patents: if a patent is truly vague, it will be invalidated in court. What proponents do not disclose is that it costs inventors and other patent holders about as much to assert their patents as it does accused infringers to defend. Plus, in the case of multiple infringer suits defendants are able to share costs so it can actually cost inventors far more in a patent suit than those who would steal their inventions. Inventors and small entities are not so overly flush with cash that they can afford to bring weak or frivolous suits. Capital to them is precious and must be used with great caution. Only fools would bring weak patent suits. This accusation is absurd and unsupported. The only weak aspects in play here are these baseless accusations by proponents.
What is worse, Congress in being misdirected by the proponents of these unjust bills has been diverted from focusing on the true problems inventors are faced with. One great problem is the inability of inventors and small entities to obtain injunctions once infringement has been found. If we cant get injunctions, we have no fair chance at commercializing our inventions. How can we when our large competitors are free to use our inventions and all the capital they will ever need to run us into the ground. Attempting to commercialize without injunctions against our large competitors is commercial suicide and a fool’s errand.
Texas and American Inventor’s must take back the patent system from those who seek to destroy or game it. To truly strengthen the patent system and constitutionally recognized and ‘common law’ property rights for all patentees large and small, the changes that are desperately needed include:
1. Restore injunctions for all patentees -large and small, making them mandatory after a judgment of infringement is entered. Depriving inventors exclusive use of their inventions undermines and destroys their ability to commercialize and is contrary to the intent of the Constitution and America’s founders.
2. Restore the teaching, suggestion, and motivation basis for determining patentability.
3. Eliminate or restrict post grant reviews for patents which were allowed upon appeal to the Board.
4. In any post grant review the burden of invalidity should fall completely on the requestor. Full faith and credit should be given to the allowing examiner, and validity presumed when the patent in question was allowed after consideration by the examiner’s supervisor or any other supporting personnel or department. Prosecution should not be reopened.
5. In kind, patentees should have the right to initiate a PTO admin or commercial ADR proceeding re infringement against adversaries -including requestors of any PGR.
6. Restore the law so that settlements in the course of litigation are not considered in damages as had been the case for over 100 years.
7. Require that at least half the members of the PTO patent advisory board be small entities or represent primarily small entities, as they rely more heavily on patent protection which will help further assure continued strong patent protection for all patentees -large and small.
8. Provide that patent holders may bring suit in any venue where their patents are infringed, which is not inconvenient for both parties.
9. Mandate that the PTO will keep a database with all current relevant data regarding filed and issued patents (entity size, date filed (+issd), apln type, date appealed/decided, etc.) and make it publicly available on its web site for all parties to query and extract data.
10. Ensure that each patent issued has an effective term of at least 17 years.
11. Undo expedited processing, or substantially reduce or waive the fees for small entities (as defined by the Small Business Administration).
12. Delay any publication of applications until at least a patent issues from them or let any issued patent suffice.
13. Often patent offices of foreign countries will follow the lead of the US PTO on any original US apln when filed internationally. When inventors have to fight with the PTO for their patents it affects not only any US patents that may issue, but foreign counterparts as well. Greater transparency is needed at the PTO to restore confidence in its governance by inventors, or they will stop filing patent aplns and protect what they can by trade secret while keeping secret and not commercializing all else. Secret initiatives by the PTO which block or unfairly skew the ability of inventors to obtain their patents fundamentally undermines that trust. A committee of small entity inventors (patent advisory board, etc) to review PTO policies and provide feedback to its management will help.
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