A patent is a legal deeded right to a certain invention that is granted by the government in return for an inventor’s disclosing that same invention to the public. Inventors typically file for patents hoping that it will help spur investment, demand, and market growth. However, our patent system has been neglected by the powers that be for decades. As a result, the government does not stand behind these rights and inventors are left vulnerable. There was a time when America’s patent system was the “gold standard” by which every other country measured itself. This drove America’s technical innovation from the advent of the republic, through the industrial revolution up through the tech boom of the early 2000s. It is important to note that this does not have anything to do with inventors filing dubious applications for patent protection. Rather, this only is in cases where the government grants a patent and then goes back on its promise of patent protection.

Imagine you own a piece of property. It is not just any land but what you have always dreamed of — an acre or two of real estate that you have purchased and cultivated. Over the years you make improvements to the land — you build, improve, put a lot of sweat equity into your land. Your land is not just for you but for your family and future generations. You are living the American dream. What could go wrong... Now imagine that along comes a large company that likes your property. Perhaps they are speculators and feel that there are precious minerals on your land. Maybe they are looking to expand an abutting property and could use your land as part of that project. Or they could just like the view. Either way this large corporation is focused on your property. When you refuse to sell your property at a low price unilaterally set by this company they just move onto your land. You are incredulous — how could this be? When you turn to the government for help, they line up squarely with the corporation. First, the corporation moves to have your deed to the land declared invalid — even though you followed all the rules (filing your deed and making improvements) in buying your land and maintaining the legal rights to your property. Next the corporation moves in and starts to mine your land. They also start developing your land. You quickly learn that there is nothing you can do about this. The odds are stacked against you — in favor of big corporate interests. It becomes too expensive to fight corporate interests in the courts and at the federal agencies where they sue you. Finally, having exhausted all reasonable avenues you pack your bags and move out — abandoning your property and your American Dream. You may think this scenario is far-fetched — even farcical. This could never happen here — in America. However, in the world of business this happens every single day. How, you ask, could this ever occur? Well, this is the state of the current patent system here in America. This was not always the case — in fact it’s a recent phenomenon.

In 2011 Obama — bowing to Big Tech that largely funded his presidential campaigns — signed into law the American Invents Act (AIA) creating the Patent Trial & Appeal Board (“PTAB”). Likened to a patent “hit squad” by the former Chief Judge of the Court of Appeals for the Federal Circuit, the PTAB was created to kill validly issued patents in administrative proceedings — devoid of any due process for patent owners and without Article 3 judges. For example, whereas federal courts (long the arbiter of patent validity) afford patent owners basic protections (procedural and otherwise) the PTAB offers no such protection. The result has been a bloodbath for inventors. Over 80% of the patents brought before the PTAB have claims invalidated — an astounding rate when you consider the fact that these are patents that were granted by the government. It’s the ultimate bait and switch, the government lures inventors to disclose their inventions in return for a promise of a deeded property right patent protection. Then, after the disclosure is made the government reneges and large companies just take the invention for no compensation.

The AIA has also led to the creation of bottom feeding companies that exist on contesting and eliminating validly issued patents in front of the PTAB. These companies collect “patent bounties” from their large corporate clients in return for killing patents at an alarming rate. We are now at the 10th anniversary of the formation of the PTAB. It is time for Congress to remedy this situation and level the playing field for inventors by eliminating the PTAB. A new patent Act is before Congress that would reform the PTAB. We hear the rhetoric about the government being for the people and not the special interests — it is time for Congress to put up or shut up in this regard.

We are now at the 10th anniversary of the formation of the PTAB. It is time for Congress to remedy this situation and level the playing field for inventors by eliminating the PTAB. new patent Act is before Congress that would reform the PTAB. We hear the rhetoric about the government being for the people and not the special interests — it is time for Congress to put up or shut up in this regard.

By David Pridham
Chairman and Chief Executive Officer, Dominion Harbor Group

www.dominionharbor.com