The only force in history that drives humankind forward is the creativity of individuals. You won’t find us working for corporations. We are independent inventors.
To our country’s most creative people, the U.S. patent system is no longer a source of protection; it is a place of exploitation. A place where, as the twentieth century’s greatest inventor put it, “men substitute words for realities, and then talk about the words.” The author of that quote is Edwin Howard Armstrong. The source? His suicide note.
Edwin Howard Armstrong, a brilliant American engineer, revolutionized radio by inventing FM radio and developing the regenerative circuit, significantly improving sound quality and broadcast reach. His innovations were copied by RCA, who, under David Sarnoff, masqueraded as FM’s inventor by obtaining copycat patents, ensuring their dominance in the radio industry while Armstrong was left battling legal and financial hardships. This led to Armstrong’s mental and emotional decline. His widow won a wrongful death lawsuit against RCA, but the case highlighted the ruthless exploitation of inventors by powerful corporations, leaving a lasting mark on both intellectual property law and the tech industry’s treatment of innovation. By the way, RCA’s style of corporate theft was later adopted as a business model by many large companies, and was named “efficient infringement.”
The America Invents Act (AIA) has made matters much worse, and the government’s support for these changes was lobbied by large corporations that benefit at the expense of the innovators that it should have been protecting.
The U.S. Patent Office grants protection to an inventor for the life of a patent in exchange for the inventor disclosing the inner workings of their invention. This is intended to incentivize innovation through rewards to those who might otherwise not take the risk of divulging their ideas to the world. However, with the AIA, patents became susceptible to challenge by a process called Inter Partes Review, or IPR. Government statistics say that 80 percent of patents subjected to IPR are either revoked completely or have their most valuable claims stripped away. The system is thus destroying the patent as an asset and making it worthless.
A promise of monopoly is quite meaningless if the patent can be invalidated or gutted at will. Worse still, it is sad knowing that as much as the government has the right to invalidate a patent, the inventor can never “undisclose” an invention since the USPTO announces details of every patent application on its website to the entire world, including foreign adversaries, such that once an invention is disclosed in consideration of a patent, that information is out there in the open to be stolen, and one can never take it back in case the patent is later invalidated or the inventor is unable to enforce it. The transparency intended to foster innovation is instead being used by powerful companies as a shopping mall for stealing technology.
Large corporations commonly rip independent inventors off by digging through the USPTO website and Google Patents in hopes of finding promising patents. They file fraudulent patent applications, claiming inventorship of works they did not create. These businesses take advantage of the system’s weak mechanisms of enforcement: they actually sign declarations under penalty of perjury when they fully well know no meaningful consequences exist for such falsehoods. This is an affront to the integrity of the entire system.
I believe that the government’s backing of the AIA is financially motivated and is an overt conflict of interest. More specifically, Fortune 500 companies have the financial means to file multiple redundant patent applications, known as “continuations in part,” and thus will be given multiple bites at the apple to defend their technology in litigation. These companies are well-aware that — if there is an IPR — at least one of the patents would survive, even if others get invalidated. Each continuation-in-part generates thousands of dollars in application, issuance, and maintenance fees for the USPTO — a cost that the system benefits from. By contrast, a lone inventor — often the victim of patent infringement — can afford only one application — a severe weakness in any litigation process.
Furthermore, the Supreme Court erred in Oil States Energy Services, LLC v. Greene’s Energy Group, LLC, in conflating the concept of patent rights — conferred by government — with the right of inventorship — a natural, inalienable product of human creativity. This travesty allows corporations to game the system in ways that undermine the true purpose of patent law: to protect the rights of the individual inventor. Consequently, the IPR process established under AIA must be stricken or reformed significantly — perhaps even by executive order. As it currently exists, the IPR provision enables powerful corporations to invalidate patents through a process that favors deep pockets and an extensive legal arsenal rather than first creators of innovation.
These systemic failures not only hurt inventors but damage the very fabric that has positioned this country as the leader in technological advancement. Following are some of the changes that I am proposing to bring fairness and balance back to the system:
What Should Change?
Abolish the IPR Provision Through Executive Order
The IPR process must be repealed or struck down immediately; it serves as a retroactive and unjust mechanism for large corporations to challenge valid patents even years after they have been granted. This process undermines the very premise of patent law, making an uneven playing field where only those with vast legal resources can protect their rights. But even worse is the discouraging impact that IPR has on inventors seeking legal representation. Since so many firms recognize that any patent infringement case likely will be met with an IPR challenge — as 80% of all patents challenged via IPR are either revoked or have their most valuable claims invalidated — they simply will not take the case. This makes it nearly impossible for independent inventors to defend their patents, leaving them vulnerable to exploitation by larger, well-funded companies. The IPR provision is not only unjust, but it fundamentally undermines the integrity of the patent system. It must be eradicated if fairness and equity are ever to be restored to the process of patenting.
Patentability Should Be Based on Long-Felt Need and Failure of Others to Solve the Problem, Not Just Obviousness
The current metric of patentability, “obviousness,” is ipso facto unfair to inventors. Inventions are penalized for disclosing their work in detail; invariably the invention then becomes “obvious” to others. Instead, a patent should be granted based upon two core factors: (1) a long-felt need, where the invention solves a problem that has long been in existence but had not previously been solved despite efforts of others; and (2) the failure of others skilled in the art, where others were unable to solve the problem because they fundamentally misunderstood or mischaracterized the underlying problem. This approach would be a better homage to true innovation born from understanding and solving complex, real-world problems.
Preferential Treatment for Health, Energy, and Safety Inventions
Inventions that directly contribute to health, energy sustainability, and public safety should receive preferential treatment both in granting and enforcing their patents. These fields are greatly relevant for furthering the public good and national security. Meanwhile, increasing rates of patents granted for low-impact inventions, including things like novelty gadgets, kitchen appliances, and pet grooming tools, clutter the patent system and prevent more meaningful innovations that truly could have a lasting, transformative impact on society. Smoothening the process for patenting inventions with regard to health, energy, and safety would ensure fairness in ensuring the system selects solutions to pressing challenges facing the globe while ensuring openness to all inventors. This would encourage breakthrough technologies that not only foster business growth but also provide tangible benefits to the public at large.
The Term of a Pharmaceutical/Health-Related Patent Should Be Based on the Affordability of the Resultant Product or Service
In the pharmaceutical and healthcare industries, a patent term should be pegged to the affordability of the resultant product or service. When a patent is granted by the government to a pharmaceutical company or health-related innovator, the former should be given due powers to negotiate the length of the patent term in light of whether the resultant product is accessible to the public at an affordable price. This would ensure that life-saving medications and treatments are made widely available to those in need, while still incentivizing innovation. Similarly, introducing this model provides a better balance between reward for inventors and ensuring public access to essential healthcare by both taming high drug prices and allowing continued medical advancement.
Proven Willful Copying Should Preclude Certain Defenses in Infringement Lawsuits
Certain defenses should not be allowed when a defendant is found to have willfully copied an invention in a patent infringement lawsuit. If a company intentionally infringes a patent, its behavior should prevent it from playing claim-construction word games typically used to escape liability. No other form of intellectual property protection is fraught with the syllable-splitting semantics displayed by the U.S. patent system. Someone looking at our country from the outside would likely conclude that the U.S. government cares more about protecting movies and trade names than life-saving or energy-saving technologies.
Punitive Action for Large Corporation Patent System Abuse
A company found to have systematically abused the U.S. patent system — such as by fraudulently claiming inventorship of someone else’s work — should face significant penalties, including being barred from accessing the USPTO for a minimum of one year. This would mean that the company could not file new patent applications, respond to office actions, pay issuance fees, or maintain patents. If a company is a repeat offender, the penalties must be extended, which also must not apply only to the parent company but also its subsidiaries, divisions, successors, and assigns. This would send a direct message that patent fraud and strong-arming of independent inventors shall not be tolerated.
No Maintenance Fees for Small Entity Patent Holders
For small entities (a category that includes individual inventors and startups), the current regime of maintenance fees when trying to keep patents alive and enforce their rights creates a very large barrier. The fees increase with time, placing a considerable burden on the finances of the small entities, which often cannot afford it. These fees should be completely eliminated for small entities to make it easier for inventors to maintain their patents without worrying about the cost. This would enable more small businesses and individual inventors to continue protecting and benefiting from their innovations, ultimately fostering greater creativity and innovation in the U.S. economy.