Patent Reform 2007 - Guest Commentary - Are You Aware that Congress is Mulling over Crippling Your Ability to Fend off Patent Infringement?

By Guest Contributor
Mark David Torche, Esq.
Patwrite LLC
An Intellectual Property Law Firm

Editor's Note: While S1145 (The Patent Reform Act) has been officially taken off the schedule of the U.S. Senate for 2008, it doesn’t mean that the issue is dead! It could be slipped through without warning after the elections, and it’s sure to be re-introduced in 2009 under a new bill number or title. After all, attempts to change the U.S. unique patent system have been going on for more than 30 years, but have been the most intense since the late 80’s through now, popping up under different bill numbers and titles. So Mark’s article is very important for you to read about how the issue of damages apportionment in infringement cases will negatively affect independent inventors’ rights. In addition, be sure to read this blog post that summarizes the status of The Patent Reform Act.
A complete waste of time that has weakened the US patent-owning communities
Are You Aware that Congress is Mulling over Crippling Your Ability to Fend off Patent Infringement? What Are You Going to do about it?

Individual inventors stand to lose big if the Patent Reform Act (PRA) passes the Senate. It has already passed the House of Representatives.

What's the Big Deal? I would be glad to explain, but first let me ask you a question. What has traditionally protected patent pending inventions from a greedy, well financed infringer?

Answer: If a patent issues, the inventor can bring suit against the infringer with the threat of triple damages as well as legal fees. Of course the inventor has to prove that the infringer intentionally infringed in order for this penalty to apply.

Why is this so significant?

Present patent law provides the poorly financed inventor the means to take on a well-financed corporation transgressor- if the patent holder has a good case. A legal firm will take the case on a contingency basis anticipating recovering their costs by winning.

Present patent law is a powerful deterrent to infringement. Even the largest of corporations must carefully consider before they start producing a patent pending invention. Big business does not like this threat. They would love to be able to do what they please and pay as little as possible for a new invention.

And that is why we find corporate lobbyists whispering in the ears of Senators about patent reform. Right now, the Senate is considering The Patent Reform Act (PRA). S1145 would effectively end this threat of triple damages and basically eliminate the ability of under-financed inventors to fend off infringers.

The PRA practically eliminates triple damages and legal fees - replacing these provisions with "reasonable royalties." This means that even if an infringer loses, they would simply be ordered to pay what they would have paid if they had legally licensed the invention in the first place.

While this may sound reasonable on the surface, the consequences of the legislation effectively makes it open season on individual inventors. Individual inventors likely cannot afford legal action and they won’t be able to attract an attorney because the financial incentives have been stripped away.

Therefore, the infringers' risk of losing is minimal. Hmm, do you think this might encourage corporations to gamble on infringement with so little to lose? Do corporations ever do anything unethical? Do you feel as an individual inventor threatened under these circumstances?

I am not against big business and they owe a duty to their stockholders to maximize profit. But we cannot let our elected leaders tip the balance of fairness against the individual inventor. The rights of the individual to the "pursuit of happiness" and every individual American having the legal rights to protect and profit from his or her dreams and efforts are the very foundation of the American way of life and our System of Government.

And look in the mirror. If you are an inventor, this will affect you. We cannot let corporations influence our elected officials into making this fundamental error. We need to fight back. We must protect every American’s right to profit from their own labors. You must protect your own interests.

And I am not a litigator. I am not standing here worried about my wallet in all this. I am just a lawyer who works day in and day out to help inventors protect their inventions from those who would try to infringe.

But I certainly understand the critical role that my litigator brethren provide as a countervailing force against powerful and well financed companies who might be tempted to abuse your patent rights. I am sure most Americans understand.

Does anybody need a stark example? Anybody here remember Frank Kearns? In 1963 Kearns offered Ford Motor Company his patented intermittent wiper assembly. Ford decided to offer intermittent wipers on select Mercury models in 1969, but then changed their mind and decided to create their own in-house device.

Here is the clinker.

Kearns first refused to tell Ford how the device worked, but ended up obligated to describe the functions because wipers are a safety device on a car. Just a few months later, Kearns was notified that Ford had changed its mind. They were going to produce their own device in house.

Shortening the story, Kearns moved on to a job with the National Bureau of Standards.
But in 1976, he disassembled a wiper control from Ford. Guess what he found., Yup he found basically his own invention.

Kearns immediately had a nervous breakdown, fled his home, and spent time under medical care. When Kearns reappeared, his hair had turned white.

Just stop and put yourself in his shoes. Can you imagine the sense of betrayal and sense of being abused? How much more helpless would Kearns have felt if he had lived under the provisions of the Patent Reform Act? Where might you find yourself if this current legislation passes?

Well, Kearns sued and won millions. It fact he litigated for years. He won millions and spent millions on legal fees. It is a long, harrowing story. A very good account can be found at www.americanheritage.com

What can you do? What should you do?

I suggest you immediately call your state senators and let them know how you feel. Do yourself a favor. Do every American a favor. Support the rights of Americans to follow their dreams and to continue to have the ability to protect their dreams from patent interlopers.

Why don't you contact your senator right now.

And pass this information on to others. We need all the help we can get.