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

“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.”

roads, fork

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.


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Join the Discussion

7 comments so far. Add my comment.

  • [Avatar for Anon]
    January 29, 2023 03:47 pm

    Mr. Lewis,

    I concur here as well — I have often posited that Citizens United must be abrogated, and the notion that a juristic person (a corporation) should have as much power as a true real person (citizen) is (quite frankly) asinine.


    Two quick notes (again – small potatoes in view of our larger agreements):

    1) the AIA was ABSENT in view of patent eligibility – and expressly stated that its aim was largely limited to updating the prior art regime.

    I think this an important point to stress, given as some pundits will attempt to say that Congress accepted what the Courts had rewritten, and there is a powerful argument that such is just not so with the AIA.

    2) “automatic” was a position successfully argued against (in view of injunctions), which is why I have pushed for the dual fundamental understanding of both the essence of shared authority, and the critic al nature of the patent rights when viewed with what equitable remedy for transgression of that right entails.

    When these are viewed in full legal understanding, there is NO NEED for a call of “automatic” (even though that would be — in essence — the result 99.9999995% of the time. It would not be automatic on a per se basis, but would take a truly exceptional set of circumstances to disregard the essence of Separation of Powers (as function of shared authority must be construed on a Strict basis) and turn the combination of what equity means for a finding of a patent holder to have been transgressed in view of the negative right nature of what a patent right actually is. There simply is NO OTHER better way of achieving making the transgressed whole for that negative right than an injunction (which when viewing the nature of the patent right, injunctions are NO LONGER the ‘atom bomb’ that otherwise they may be considered to be).

  • [Avatar for David Lewis]
    David Lewis
    January 29, 2023 02:22 pm

    Although I certainly hope small inventors can effectively band together to change the current unraveling of the US patent system, the candidates of both parties depend on money from big tech/big businesses for funding their campaigns. As long as that remains the case, changing the US patent system to favor individual inventors will likely remain an uphill battle. Fixing the US patent system may require serious campaign finance reform or at least changing who finances the campaigns of politicians.

  • [Avatar for Raymond Van Dyke]
    Raymond Van Dyke
    January 29, 2023 12:56 pm

    Anon: thank you for your comments. Judge Rich and the CAFC decades ago established the automatic injunction “rule.” I agree that this is an interpretation of the law in favor of patentees, the property holders, but the legal justification (trespass) to me is sound. Justice Thomas’ curtailing this automatic “right” to a conditional right, removed a significant leverage in favor of the “little guy” against deep pocket corporations. RIM would hardly have settled the Blackberry case without this Sword of Damocles looming over the judgment.

    I also agree that the Supreme Court’s Alice, Mayo and other decisions have cast an unnecessary pall over all innovation today. The test’s almost forgone conclusion that the claims cover an “abstract idea” have been the fodder for many district court judges’ dismissals. Of course the invention is “directed to” an abstraction, isn’t everything nowadays! The Court should be ashamed to leave this law standing. This 101 infection naturally infected the AIA proceedings as well. Thus, the Cleveland Clinic and others have been plagued by unjust 101 actions and irresponsible Supreme Court rulings – a one-two punch that harms us all. Until balance is provided, the small inventor community and the public will not be properly served.

  • [Avatar for Michael E, Zall]
    Michael E, Zall
    January 29, 2023 08:26 am

    I accept the general position of this article, but what SPECIFIC changes are needed? These need to be elaborated and put forth so that SPECIFIC legislation can be put forward.

  • [Avatar for Josh Malone]
    Josh Malone
    January 29, 2023 07:50 am

    Thank you Raymond. So many of your colleagues turn a blind eye or condemn inventors standing up for justice. You encouragement is strengthening.

  • [Avatar for Pro Say]
    Pro Say
    January 28, 2023 07:18 pm

    There can be no return to the Gold Standard as long as the Big Tech Goliaths hold the lion’s share of the gold.

  • [Avatar for Anon]
    January 28, 2023 01:41 pm

    While “won an automatic injunction” has a certain ‘grist’ to it, the phrase is both legally wrong, and easily challenge-able (as was done in the courts).

    The more accurate representation (and one that I fervently wish had been applied), is that the shared authority (from the Congress to the Courts) directly on this point hinges on two fundamental understanding of the nature of the patent right itself and the nature of what equity means in cases of remedy for a shown transgression of that right.

    I have posted many times previously on these two aspects. Articles – such as this one – would do everyone a favor by hewing more to the legal foundations in play.

    Another small quibble with the article: Cleveland Clinic’s exit had nothing to do with the AIA.

    Rather, it was entirely the action of the Supreme Court that chased Cleveland Clinic from patenting (and the related technology development to which such patenting was to be applied).

    This was entirely a 35 USC 101 issue — which the AIA notably did NOT address.

    Other than those two (small) quibbles, I am aligned with the author and the push to reclaim the United States as having the Gold Standard in innovation protection.

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