September 1, 2022

Last September, scores of patent-holders demonstrated in six cities across the U.S. wearing black t-shirts that said, Homo sapiens inventoris: Endangered Species.”  These men and women of ingenuity were protesting Americas decade of stolen dreams: the years since the passage of the America Invents Act (AIA) of 2011 and the establishment of the Patent Trial and Appeal Board (PTAB), which together have made it easy for big corporations to steal their ideas and profit from them with impunity.

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Weve had piracy for all the years Ive been an inventor, but the AIA just put it on steroids, in the context that now you can get PTAB-ed and lose your rights without any due process at all,” said Dan Brown at the Detroit rally.  A professor with more than 40 patents, including inventions used in space shuttles, Brown invented the bionic wrench, a one-size-fits-all wrench that obviates the problem of stripped bolt corners.  He says Sears stole his idea, down to the marketing pitch, and replaced his product on its shelves with a Chinese rip-off.

Participants at these rallies, organized by U.S. Inventor, a non-profit fighting for inventors’ rights, had similar stories.  So do others represented by U.S. Inventor.  Among them are Molly Metz, a jump rope champion whose patented idea for a ball-and-eye pivot mechanism for speed ropes was stolen by a rogue competitor; Glenn Sanders, whose patent on Emmy award–winning wireless video recording equipment was invalidated by PTAB; and Gene Luoma, an octogenarian muscular dystrophy patient who lost his patent and millions in royalties on his Zip-It drain cleaner.

These are individuals who came up with brilliant ideas or solutions, worked on them, built prototypes, set up small businesses, and plowed ahead to sell their products.  But the new patent system under AIA is throttling them.  For them, it is destroying the culture of inventiveness, innovation, and creating original products and solutions that made America great and rocketed it into space.

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To understand how that came about, a brief history of American patent law is in order.

As early as during the Constitutional Convention of 1787, our founding fathers recognized the need to promote innovation and finely balance it against the competitive spirit of the free market.  So, under Article I, Section 8, Clause 8, they granted Congress the power to give authors and inventors exclusive rights for a limited time over their writing and discoveries.  They viewed intellectual property as real property and wisely foresaw its protection and nurturing as the road to American prosperity and greatness through creativity.

The third law of Congress was the Patent Act of 1790.  The Bill of Rights of 1791 further affirmed, through the Fifth Amendment, that property rights (which also meant intellectual property, such as patents) were not to be taken away without due process of law or without just compensation.

Then the Patent Act of 1836 gave the first inventor the right to a patent, not the first to file for one.  It also established that the U.S. Patent and Trade Office (USPTO) would issue patents, decide on infringements, and revoke or invalidate patents after holding hearings, and examining expert testimony and material and other evidence.  Though this could entail lengthy and expensive legal proceedings, the system empowered inventors and small businesses with the means to protect their intellectual property.

Two ancillary but relevant facts.  In 1946, the law was amended to change the first-to-invent principle from first to invent in the world to first to invent in America in response to a 1939 SCOTUS judgment (Electric Storage Battery v. Shimadzu) that could have allowed American patents to be invalidated by claims from abroad.  In 1982, the Federal Circuit Court of Appeals was created, with exclusive jurisdiction on appeals over decisions by patent appeal boards or district courts, after inconsistencies that raised forum shopping concerns.  The same year, limits were set on the breadth of a patent so that it would not restrict related inventions.

American innovation thrived from the late 18th century onward, with wars and hard times galvanizing invention and myriad spin-offs that have benefited humankind in unforeseen ways.  Incentivizing invention made America a superpower — took it into space and into the molecular-level research that is unfolding the secrets of life itself.  Not for nothing have Yankee ingenuity and can-do spirit become American shibboleths.