September 2018

I knew that a country without a patent office and good patent laws was just a crab, and couldn't travel any way but sideways or backways.

—Mark Twain, A Connecticut Yankee in King Arthur’s Court

A patent helps to secure a place in the market for an invention.  That is why many inventors take time, make an effort, and pay a significant amount of money to patent their inventions.

Inventors often do not realize that grant of a U.S. patent is always conditional.  Like everyone else, patent examiners make mistakes.  The patent office (Patent Trial and Appeal Board (PTAB)) or a federal court can decide at any time during the life of a patent that the patent should never have been granted.  The result is an invalidated patent that provides no benefit to the patent owner.

Truth is often hard to ascertain and reasonable individuals can disagree on what the truth is.  Does our current patent system provide enough certainty for individual inventors and investors to risk innovation?  The recent documentary film, Invalidated: The Shredding of the U.S. Patent System, says no.  The movie argues that the patent office acts with intentional bias against individual inventors and that the office rationalizes, rather than justifies, its final decisions.  The America Invents Act (2011) encourages patent infringement and has significantly weakened our patent system and Constitutional protection of private property.

One focus of this movie is Josh Malone.  He invented and obtained patents for a system and method for quickly filling water balloons (U.S. patents 9051066, 9242749, 9950817, 9527612, 9315282, 9682789, and 9533779).  A company, Telebrands, immediately marketed a product very similar to Mr. Malone’s.  A federal court told Telebrands to stop infringing Mr. Malone’s patents and awarded his partner company $12 M in damages.  PTAB said that the federal court was wrong because several of the claims in Mr. Malone’s first patent were indefinite and therefore invalid.  This year, the U.S. Court of Appeals for the Federal Circuit (CAFC) told PTAB that it was wrong because the claims were definite and asked PTAB to decide instead whether some of the claims were invalid because they may have been obvious to a person of ordinary skill in that technology.  (Remember, Mr. Malone and his partner companies are paying huge legal fees throughout all of this.)  Who knows what the final result will be.

Attempts are being made to rebalance our patent system, for example HR6557 and HR 6264.  Individual inventors would benefit from the proposed changes.

Many thanks to Dave Zedonis and Matt Thie for showing the movie to us!