Opinion: Restoring The Road Less Traveled – American Invention at a Crossroad

As Robert Frost poetically noted, two roads diverged in the woods he was exploring. One road was well trod, easy to traverse, and the other less traveled, difficult and getting weedy. Sadly, although Americans pride themselves on innovation, American innovation, particularly inventorship, is now the difficult road. Bad decisions made in previous forks in the road have gradually undermined the innovative spirit in our nation, but some inventors in Washington, DC, next week want to change course before we automatically go down the well-trod path.

How did we get here? Why has American invention been brought low? The answer is actually quite simple: the silencing of the small inventor community. The lobbying by the big corporations on Capitol Hill for decades has effectively demonized the small inventor community. It was not always this way. Throughout the 1970s, ‘80s and into the ’90s, there was a robust inventor group acting as a bulwark against aggressive moves by companies to legislatively curtail the intellectual property (IP) rights of small companies and individual inventors—a group that is actually the chief source for most revolutionary innovations.

The tech companies, however, did not like being in lawsuits against these annoying inventors, and grew alarmed that Blackberry and other companies had to pay hundreds of millions for the infringement of an inventor’s patent. What a nuisance! So, they acted to change the law, both legislatively, such as through the inappropriately named America Invents Act (AIA), and judicially, by taking many patent cases all the way to the U.S. Supreme Court, where these complex and powerful rights could be curtailed or eliminated entirely. For example, for decades patentees who won at trial had an automatic injunction right to stop the infringement, based on the legal precept that personal property had been trespassed, i.e., the inventor’s personal property right in the patent. This powerful right brought Blackberry (Research in Motion or RIM) to its knees, and big tech soon judicially fixed that through the elimination of the automatic injunction.

The Beginning of the End for Patents

The passage of the AIA, an odious piece of legislation, was the unlikely and unholy alliance of big tech and biopharma seemingly against the small inventor community, as well as the patent system. The AIA created new administrative “death squads” to kill the patents of small inventors through the elimination of the presumption of patent validity, resulting in havoc that persists to this day. Untold misery and lost dreams ensued among the inventive community across the nation, and the value of patents plummeted. Good luck getting funding.

American innovation was enshrined in the words of the Constitution document itself, which singled out patent and copyright rights alone, i.e., all of our other rights are in the attached Bill of Rights, i.e., Speech, Bear Arms, etc. Although the patent system has had its ups and downs over the last two centuries, the last two decades have been a sucker punch to the American small inventor community of individual patentees, small companies and universities. Indeed, it is now so bad that some companies, such as the Cleveland Clinic, a wellspring of therapies, has said they no longer patent their cutting-edge technologies and therapies since they know that copyists will use the AIA against them. Along with some shaky Supreme Court views on what constitutes an abstraction, i.e., all modern innovations it seems, many companies are instead relying on trade secret law for protection. Even though the patent system is geared for the ultimate dissemination of all patent rights into the public domain, to them, the current climate warrants the sequestration of valuable ideas.

Inventors are Speaking Up

Right now, American innovators have apparently had enough., and some are again banding together to take up the mantle of protecting patentees and the patent system. Inventor Josh Malone is an example. He had the big idea, he patented his big idea, and he was thwarted for many years by bad actors using the AIA laws. Finally, through years of litigation, his rights as an inventor were upheld, and he obtained some justice, as well as damages.

Now, Josh Malone, Paul Morinville and others are fighting for the American inventor on Capitol Hill, creating a vocal group and alliance to contest issues that undermine innovation and inventor’s rights. Just as in the previous Century, the small inventor community has arisen and faces new forks in the road. The current fork is whether or not California Congressman Darrell Issa (R-CA) should be appointed Chair of the Subcommittee on the Courts, Intellectual Property and the Internet, which governs patent law. This alliance alleges that previous actions by the Congressman indicate that he has a dim view of the patent system and the small inventor community in particular. Although Rep. Issa strenuously indicates that he “stands ready to work with all sides to improve the patent landscape,” the small inventor group feels that he is anti-patent and pro-big tech, and are requesting the Chair of the Judiciary Committee, Rep. Jim Jordan (R-OH), to pick someone else. Rallies are planned for next week.

The author, as a young attorney, helped the small inventor community in the 1990s and during the days before the AIA, advocating against it, and still helps, now acting on behalf of the Inventors Network of the Capital Area (INCA), and more generally on behalf of all American inventors out there.

It’s Time to Kill the Big Tech Narrative that Demonizes Inventors

The rise of a vocal small inventor community is a good thing for the nation. George Washington in his first inaugural address encouraged inventorship, which was good for both the individual and the nation. The Founders even democratized the patent system, whereby anyone could partake in that system, which was a sharp contrast to Europe. The patent system is now out of balance, and now overly favors large companies that can and do influence the balancing.

The rise of the mega corporations and their lobbying over the last two decades have dwarfed and effectively silenced the voices of the small inventor community. Even now, with the assistance of the press, most inventors are simply labeled trolls, a pejorative coined by big tech to demean inventors suing them (or inventors in general), thereby insinuating that these upstart inventors are unworthy to obtain any benefit from their invention – the Constitution and patent laws be damned. This viewpoint is destructive to our nation. As Eric Schmidt of Google said on national television, the big inventions of today are not made by big tech, but are instead dreamt up by “crazy” inventors or grad students, who should be cherished and supported instead of demonized. Simply put, using one of the big tech companies as an example, Google does not want another Google, and thus big tech squelches actual or potential competition through diminution of the inventors and the patent laws.

So, we should celebrate that a valiant cadre of inventors are out there hewing the weeds on the road less traveled by Congress, trying to clear the brush from that once valuable road, amid the din of the lobbyists. Perhaps the alliance can influence Rep. Jordan to appoint someone who will work to restore that road, and perhaps later take on harmful issues facing patentees. That may make all the difference.