Along with Raymond A. Mercado, Ph.d., United Inventor Association, Inventor-center, Paul Morris, Adrian Pelkus, and Paul Hayes
in Support of the Petitioner, the Inventor’s Project filed a brief this week for Amici Curiae.
Read the entire Amicus Brief Here.
Our U.S. patent system no longer encourages investment in new technologies.
Patents are now liabilities for inventors. Our USPTO discourages the creation of new technologies by enabling big corporations to crush startups and inventors.
Congress must act to stop this damage to our economic engine and the American Dream.
Eliminate the Patent Trial and Appeals Board (PTAB)
The PTAB is a tribunal within the U.S. Patent and Trademark Office (USPTO) that treats issued patents as a public right, not a property right. PTAB’s invalidate at least one claim in more than 95% of the ISSUED patents reviewed rendering most patents valueless for funding at an early stage. Invalidating just one claim can neuter the enforceability of the entire patent. Big corporations are filing multiple PTAB procedures on the same patent driving the cost of defending it into millions of dollars and scaring investors. The PTAB must be eliminated so patents can attract investment at early stages.
Eliminate the “Abstract Idea” Exception to Patentable Subject Matter
Supreme Court decisions changed the meaning of “patentable subject matter” by creating three exceptions to patentable subject matter: abstract ideas, natural phenomena, and laws of nature.
The abstract idea exception is creating chaos by failing to define what is or is not an abstract idea. Today what is patentable is completely in the eye of the beholder and often different branches of government come to different conclusions on the validity of the same patent.
Abstract idea exceptions mean patents have virtually no value in valuations of early stage startups.
Restore Injunctions and Injunctive Relief
Injunctive relief was the default judgment for infringement for over 200 years serving as a strong deterrent to patent infringement, and was the basis for projecting the future value of a patent at the earliest stages. Patents are critical to attracting investment to commercialize technology.
In 2006 a Supreme Court decision, eBay v. MercExchange effectively eliminated injunctive relief. Investors cannot project the future value of a patent, and as a result investment in patents has dropped. With the most powerful deterrent now removed, “efficient infringement” exists.
End Track I Examination in the USPTO
Track I examination was created to speed examination in exchange for additional fees. While marketed as a tool for small entities to get patent protection faster, most small entities cannot afford the higher fees. Big corporations can, and are the primary users of Track I examination.
Return to “First-to-Invent” from “First-to-File”
First-to-invent changing into a first-to-file system created the opportunity for unscrupulous people to steal inventions by filing for patent protection ahead of the actual inventor. Inventors must now file for patent protection as soon as possible before disclosing it to anyone to determine the invention’s viability, marketability or costs. This adds upfront costs for unproven inventions to the people least able to afford it. First-to-file is discouraging inventors to the point of abandoning the patent system.
While we have damaged our patent system, China has strengthened theirs. Today, China leads the world in new patent filings. Large amounts of venture capital that once fueled early stage startups in the U.S. have moved to China. As a result, startups are fleeing to China.
Congress must act to correct this damage to allow the U.S. to succeed in the modern innovative world.
US Inventor
March 1st, 2017
US Inventor recently submitted an open letter to the Patent Public Advisory Committee (PPAC) at the USPTO. This letter is to inform PPAC of our concerns related to the proposed fee increase, USPTO transparency, and issues surrounding the PTAB including diversion of fees from examination to the PTAB.
US Inventor has signed onto a Brief in support of Petitioners Retractable Technologies, Inc. and Thomas J. Shaw.
INTERESTS OF AMICI CURIAE
Amici include nonprofit inventor clubs and individual inventors and entrepreneurs. The nonprofit inventor organizations represent over 20,000 inventors, startup owners and executives and others interested in their success. The amici have spent substantial portions of their lives inventing, building new companies and competing in new markets as well as educating and mentoring new inventors and entrepreneurs. They represent the driving force of the world’s most powerful economy. Amici’s extensive experience with the patent system, new technologies and starting up companies and the resulting ties to the health of the American economy make them well situated to explain the importance of the issues presented in this case.
Read the Brief in it’s entirety here
Justification
Title 35 USC is the governing law on patents. It defines the requirements of obtaining a patent, among other things. Within 35 USC, Section 101 is effectively the door into the patent system. Without any exceptions, 101 defines what is considered patentable subject matter:
“Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.”
As is stated, just making it through 101 does not mean that the invention is patented. It must be examined under “the conditions and requirements” of 35 USC. These “conditions and requirements” are primarily Section 102 whether the invention is anticipated, Section 103 whether the invention is obvious, and Section 112 whether the invention is enabled.
Supreme Court and Federal Circuit decisions have fundamentally changed the meaning of Section 101 by creating three exceptions to patentable subject matter: abstract ideas, natural phenomena, and laws of nature. These exceptions have no basis in statutory law, nor were they the intent of Congress in enacting Section 101. They are purely a creation of the courts. In fact, Section 101 was written into the Patent Act of 1952 in an effort to limit similar exceptions created in the preceding years by the courts, and it was never intended to be a standard of patentability.
Several court decisions defining the exceptions have thrown the meaning of Section 101 into chaos by failing to define what is or is not an abstract idea, and conflating analysis intended for 102, 103 and 112 into Section 101’s analysis. Today what is patentable is completely in the eyes of the beholder and often different branches of government come to different conclusions.
Some examination groups in United States Patent and Trademark Office (USPTO), particularly those in technical areas of software, reject patent applications at rates above 90% under the abstract idea. Lower courts invalidate 54% of patents challenged as abstract ideas. Many of these patents are invalidated in preliminary motions without defining the meaning of the patents and without any evidence or testimony. Trial courts simply look at the patent and make arbitrary decisions on whether or not it is an abstract idea.
The Federal Circuit has upheld the vast majority of lower court invalidations, often without comment therefore providing no further guidance on what is or is not and abstract idea. The Supreme Court has refused to take multiple cases that could provide concrete guidance.
Many patents invalidated as abstract ideas would likely have been invalidated under sections 102, 103 or 112 had the patents been evaluated in accordance with law, which means that many invalidations under the abstract idea are unnecessary and confuse patent law. Unfortunately, there are a significant number of patents that are patentable under the statutory analysis of under sections 102, 103 or 112, yet are nevertheless invalidated as abstract ideas under 101.
In summary, there is no longer due process of law regarding the invalidation of a property right, and there is no longer a presumption that a patent is a valid property right as is defined in black letter law. The abstract idea has expanded the net of unpatentable subject matter far beyond the scope of the law and far beyond Congress’s intent when writing the law. Statutory law is in direct conflict with case law and this is creating substantial commercial uncertainty which has destabilized patent rights.
Yet commercial certainty is vital to American new job creation. For inventors and startups, those who create the majority of new American jobs, commercial certainty is an outright requirement to commercialize new technology, thus creating new jobs. Commercial uncertainty created by the abstract idea denies justice to inventors, startups or their investors by denying capital necessary to access the courts. If a patent is too risky to be defended, as is the case today, it is not a property right and it is incapable of attracting investment. With no investment, inventors cannot fund companies that commercialize our next generation of technology or defend their private property from theft. This takes away incentive to invent and many small inventors have stopped inventing and stopped filing patents, at least in the United States.
While commercial certainty of U.S. patents has been nearly eliminated, commercial certainty of Chinese patents has become stronger. China now leads the world in patent filings and venture capital investment has dramatically shifted to China. The U.S. is losing its greatest economic engine. Soon we will not only be purchasing goods made in China, but they will be invented there as well.
Patent driven innovations cure deadly diseases, solve world energy problems, defend freedom, entertain us, and improve things we already use. They also fuel most of our job creation and generate much of our national wealth. The damaging effects of the Supreme Court’s abstract idea jurisprudence to these economic and social benefits are extraordinary. Today the validity of all patent rights are in question, and the courts are not willing to correct or explain their own errant case law. Congress must act.
US Inventor proposes legislative changes to 35 USC Section 101 to restrict the courts ability to invalidate patents as abstract ideas, thus focusing analysis to Sections 102, 103, 112 and other existing sections of 35 USC. These changes would bring back stability and commercial certainty to patent rights thus helping to capitalize the startups and thereby create new American jobs.
For Full Position Paper with citations and notes, CLICK HERE.
September 1st, 2016
Dear President Obama and Secretary General Ban Ki-moon:
As we are entering a period of global uncertainty, whether dealing with emerging public health threats like Zika, political and economic changes like Brexit, or larger trade agreements like the Trans-Pacific Partnership (TPP) or the Trans-Atlantic Trade and Investment Partnership (TTIP) we want to outline principles of policies that will enhance innovation, invention, and new solutions for people around the globe.
We, the undersigned, support policies that foster new, useful, and unique products for people around the world. Policymakers should consider these principles when making or debating local public policy or international agreements.
Therefore, we encourage current and future policymakers to use these principles when developing policy in local governments or at multi-lateral international organizations.
Signed: See below
Copy
U.S. Trade Representative
U.S. Department of Commerce
U.S. Senate Judiciary Committee
U.S. House Judiciary Committee
U.S. Senate Foreign Relations Committee
U.S. House Foreign Affairs Committee
UN High-Level Panel on Access to Medicines
Organization of Economic Co-ordination and Development
World Health Organization
World Intellectual Property Organization
Signed:
Warren Tuttle
President, Board of Directors, The United Inventors Association
Steven Stokes
President of Decknet
Jii-chyun Wang
President of Feng & Wang Technology Co., LTD.
Alireza Rastegar
President of International Federation of Inventors’ Associations
Adrian Pelkus
President San Diego Inventors Forum
David Kotecki
President, Blue Hill Innovation LLC
Matthew Stieg
President, Edison Innovators Association
David Johnson
President, Geodata Inc.
Pete Canalichio
President, Licensing Brands
Pete Canalichio
President, Licensing Brands/inc.
Mark Stadnyk
President, Madstad Engineering, Inc.
Keith Mullin
President, Make Ideas LLC
David Bruemmwr
Founder of 5d Robotics
Charles Howerton
Founder RTTmobile
Darko Dobošić
President, Association Inventors
Subrata Khuntia
Founder, Wizy Services Pvt LTD
Kenneth Adair
Founder, Developer, And Testing Coordinator
Kevin Hess
Founder, Patent Technics LLC
Ila Scott-ford
Founder/CEO, Let Family Know LLC
Eric Kanagy
Founder/CEO, Redpost
Alex Feerer
Founder/president Gles R&d Corp
Walter Willis
Fresh Cap
Gary Dubroy
Angelene Fitch-Fredericksen
Google
Spencer Marsh
Graduate Research Assistant, Clemson Bioengineering Department
Nickenson Chery
Health Administrator/ Inventor
Le Etta Scherban
Iasck
Courtney Schumacher
Independent
Kenneth Scherban
Independent Inventor
Albert Hernández
Independent Inventor
Pamela Nye
Independent Inventor
Nandan Kulkarni
Independent Inventor
Christopher Hollerback
Independent Patent Holder Total Containment Fueling System
Phillip Pitts
Independent Senior Developer
Jose Lopez
Individual Inventor
Neatu
President Innovatics Laboratories, Inc.
Mark Gottlieb
Inspired Possibilities, LLC
Frank Valderas
Inventor
Juan Mckenzie
Inventor
Jackie Mckenzie
Inventor
Michal Polubinski
Inventor
Mike Andic
Inventor
Albert Throop
Inventor
Erica Feld
Inventor
Harvey Wicker
Inventor
Clifford Gant
Inventor
Ramy Elmery
Inventor
Jackie Mckenzie
Inventor
Miguel Ortiz
Inventor
Craig Litherland
Inventor
Murilo Luciano Filho
Inventor – Avalanchedrive
George Margolin
Inventor — Margolin Development LLC
John Dale
Inventor / Product Developer
Mones Jaafar
Inventor / Researcher
Hicham Jakima
Inventor – www.asociaciondeinventores.org
Kane Kramer
Inventor Digital Audio Player, CEO British Inventors Society
Janice M Shields
Inventor of Life Saving Medical Products & Equipment
Omar Abass
Inventor Retrastrap
Kevin Hill
Inventor, Self
Lawrence Glaser
Inventor, Self
Bob Krause
Inventor, Self Employed
Ricardo Lopes
Inventor, Self Employed.
David Woods
Inventor’s Council of Central Florida
Allen Nauss
Inventor
Abouzar Hassanpour
Inventors
Kristi Gorinas
CEO Kristi G Co
Arthur Bradley
Managed Maintenance
Johnny Heath
Owner Affordable Wind Turbines
Stuart Anders
Owner Allied Industries
Mark Tracy
Owner Kong Strong Armor LLC
Jesper Boesen Nielsen
Owner of Innoactive
Douglas Cudworth
Owner-the Mentex Group
Mary Kurtz
Owner, Chrio Technologi LLC
Charlie Bright
Owner, Great Plains Diesel Technologies, Lc
Carolyn Florimonte
Owner/Inventor of Ecofenceonline.com
Tom Storm
Partner – Invention Marketing Solutions
Steven Daniels
Partner, Farney Daniels, P.C.
Steven Hoffberg
Partner, Ostrolenk Faber Llp
Tracie Wood
Partner, Trilliam LLC
Skip Yarus
Patent Agent; Ipattitude
Bruce Bernstein
Patent Attorney
Mark Rhodes
Rhodeswork/Patent Illustrator
Sheldon Riehl
Sales Manager Bird In Hand Pet Structures
C. Alvin Scott
Scott Hydrogen Innovation
Brad Scobey
Self Employed Inventor
Jean Lapoint
Showroom Representative, Harvey Building Products
John White
Soryn IP
Michael Deleshaw
Support. Central Florida Inventors Council
William Middleton
Svp, Wilan Inc.
Molham
Kayali Sytems Engineer-Novatech LLC
Lisa Crites
The Shower Shirt Co., Principal/inventor
Tracy Neal
Tracy Neal & Company LLC
Paul Morinville
US Inventor
Richard Baker
President, New England Intellectual Property, LLC
Omar R. Fontanez
President, Puerto Rico Inventor Association
Jeff Hall
President, Severn Safety Supply LLC
Wayne Rasanen
President, Tampa Bay Inventors Council
Bob Zeidman
President, Zeidman Consulting
Iordan Stavar
President/CEO of Worldwide Independent Inventors Association – Washington D.C. USA
Gary Stecklein
President, Inventor’s Association of South Central Kansas
Daniel Marion
Aguadrone LLC
Gary Growden
CEO, CIO Aion Equity Group, LLC
Steve Alvarez
Alvarez Signs & Wonders – Owner
Devlin Hartline
Assistant Director, Center For The Protection of Intellectual Property
Jon Bills
Attorney
Richard Brunner
Bar Co Production Co.
Carolyn Barrett
Barrett International Technology Incorporated
Timothy Bellagamba
Bell Litho Inc. President
Karen O’Brien
Business Owner
Butler Founder
Butler Innovations LLC
Olatunbosun Amoniyan
CEO of Noble Narrator
Mattthew Fremming
Todd Mannik
Leith Emery
CEO – Emery Edgers
Dale Dawson
CEO Davinci Sports
Craig Smith
CEO Dhahran Techno Valley Company
Kiran Rajbhandary
CEO Ezdump Commercial Inc
Glenn Gordon
CEO Founder of Many Intellectual Property
Sinai Yarus
CEO Ipattitude
Brian Federal
CEO Prana Communications
Jeffrey Mangus
CEO Product Developer
Fabio Albano
CEO Solid Flex Energy Inc.
Gyan Kesarwani
CEO The Skillers
Dean Mcbain
CEO True Id, LLC
Azhar Mcneal
CEO-vertical Life Resources
Steven Sedlmayr
CEO, Divinia Water, Inc
Bryan Pate
CEO, Elliptigo Inc.
Pamela Norris
CEO, Icebuddy Systems, Inc.
John Aiken
CEO, Pittsburgh East Inventors Club
Henning Hansen
CEO/inventor, Hansen Energy Solutions
Jan Shields
CEO/President
Leon Stark
Citizen And Independent Inventor
Sarah Prinsloo
Co-founder, Ruggable
Cornel Chin
Cornel Chin Consultancy
Chris Cheah
CTO, Cheah IP, LLC
Dinesh Subhraveti
CTO And Cofounder
Bret Schaller
CTO, Schaller Industries, Inc.
Rick Zemen
CTO, Smart Patent
Kenneth Stanwood
CTO, Wilan
Marijan Pollak
Director And Owner Oberon LTD. Croatia
G. Michael Alder
Director TTO, BYU
David Cys
Director, Special Projects, The Geek Group
Cathie Adams
Eagle Forum Board Member
Angela Loggins
Emble Services LLC CEO
Michael Prokop
Facility Supervisor / United Airlines
Emmitt Wilson
Founder : All In Together Product Productions
David Skadeland
Founder Creative Green Ideas
Mohammad Kiani
Management
Charan Nelms
Managing Director of Ndynamics LTD.
Joe Zheng
Managing Director, Logicpatents
Christian Dubuc
Managing Partner, Longhorn IP
Charles Sauer
Market Institute LLC
Khaleque Zzaman
Mechanical Engineer, Ananda Ship Yard & Slip Way
Richard Breneman
Member – Key Conceptions LLC
Stephen Katsaros
Nokero, CEO
Larry Davis
Not Just Stands
Amnon M Cohen
Owner
Ed Oq
Owner
Diana Comeau
Owner
Everitt Mace
Owner – Mace Enterprises
Walt Hopkins
Adoram Shemesh
Patent Broker Pulseip
Keith Westbrook
Pres. Conservative Party USA Patented Inventor
Robin White
Principal Inventor
Raul Tijerina
Private Inventor
Leslie Freeborn
Private Inventor
Kevin Pearcey
Private Inventor
Rich Hayes
Product Developer/ New Sound Solutions
George Burkhardt
Product Development Engineer
Bryan Bechtol
Program Director
Liz Havlin
Prototype America
Vesty Roze
Qed
Doug Rigney
Retired
Dana Litherland
Retired K-12 Teacher, Novi Comm. Schools
Pia Jensen
Retired
Chris Beckman
Kelsey Knutson
Jeffrey Cargerman
William Morinville
Marcus Melvin
Bryan Hill
Carlos Falconi
David Cross
Tom Christensen
Janet Mlinaer
Daniel Mitry
Tom Hazzard
VP of Design, Hazz Design Consulting, Inc.
Angelene Fredericksen
W.W.W Inventor
US Inventor has signed onto a Brief in support of Petitioners SCA Hygiene Products Aktiebolag and SCA Personal Care, Inc.
INTERESTS OF AMICI CURIAE
Amici Curiae, including US Inventor, are non-profit organizations of inventors and small-business owners with first-hand experience with America’s patent system. They have spent substantial portions of their lives working toensure that the flaws in that system are addressed in a manner that preserves those features that have made it one of the driving forces of the world’s most powerful economy. Amici’s extensive experience with the patent system and its ties to the health of the American economy make them well situated to explain the importance of the issues presented in this case. Amici and their members know from personal experience the difficulties that patentees sometimes face in asserting their patent rights, and how, if the Federal Circuit’s decision is left standing, patentees may be unnecessarily deprived of damages for past infringement of their patent rights.
Read the Brief in it’s entirety here
Amici Curiae are individual inventors and associations of inventors that share a common interest in a robust patent system that encourages and appropriately rewards successful inventive pursuits. Collectively, amici have invested significant energy and personal resources in research and development in their respective technical fields. Amici rely on patents to protect those investments and to commercialize their discoveries through licensing. Due to their small size, amici oftentimes lack the resources or manufacturing ability to commercialize all aspects of an invention themselves and therefore must rely on licensing to bring their products to market.
Amici include:
U.S. Inventor, Edison Nation, Inventors Digest, National Society of Inventors,Inventors Network of the Capital Area, Texas Inventors Association, San Diego Inventors Forum,
Columbus Phenix City Inventors Association, Music City Inventors Group, Small Business Technology Council, Edison Innovators Association, Paul Morinville, James Innes, and Louis J. Foreman.
Read the Brief in it’s entirety here.
This is a request to participate with US Inventor in an Amicus brief to the Supreme Court in support of MCM Portfolio.
This case is asking the Supreme Court to find IPR procedures at the USPTO unconstitutional for two reasons. The first is a separation of powers issues in that the administrative branch of government is extinguishing property rights. The second is that property rights are being taken without a jury trial.
These issues have crashed the value of patents on the market and are severely damaging inventors. We need as many inventor organizations as possible to participate with us on this brief.
Please let us know quickly if your group would like to participate with US Inventor on this brief. Inventor voices are the most important in this fight and are much needed.
There will be no cost to your group if you wish to participate.
This amicus brief details the longstanding protection of patents as fundamental private property rights under the Constitution, reaching back to early 19th-century decisions by the Supreme Court and lower federal courts. This amicus brief builds upon recent briefs filed by CPIP Senior Scholars in several patent cases, including Cuozzo, Cooper, Halo v. Pulse, and others. These other briefs make similar arguments about the protection of patents as property rights, the historical facts about patent licensing, and other important legal and policy points.
Download the Full Brief here.
