- - Monday, July 30, 2018

ANALYSIS/OPINION:

It’s fitting that our nation’s Founders, as they were drafting the Constitution — one of the most original works in human history — were thinking about the need to protect creative works and inventors’ rights to own the fruits of their own ingenuity.

Our Founders included in the U.S. Constitution the protection of property rights — not only for physical property, but also for intellectual property, including both original written pieces of work and manufactured inventions.

The U.S. patent system and the constitutional protections of intellectual property undergirding our patent system have played a vital role in fueling America’s innovation. But the constitutional rights that have made our nation so successful and prosperous have come under assault over the last decade, as a destructive effort now underway systematically chips away at intellectual property rights.

In response to the intentional degradation of our nation’s patent system, Tea Party Patriots Action, where Jenny Beth serves as the honorary chairman, has produced “Invalidated: The Shredding of the U.S. Patent System.” This documentary film tells the stories of American inventors whose patents have been rendered useless, as the U.S. government has caved to a political agenda hostile to property rights.

One of the inventors featured in the film is Josh Malone, creator of Bunch o Balloons. Josh developed a product that simultaneously fills dozens of balloons with water, and then self-seals. (For kids in the summertime, Bunch o Balloons is the Cotton Gin of inventions.)

But what Josh ran into after patenting his invention should worry every American. In his own words:

” [T]he patent grant issued by the U.S. Patent and Trademark Office means nothing to infringers like Telebrands and Walmart. They simply ignore the patent and rush to take over the market with their knock-offs (“Balloon Bonanza” in 2015, “Battle Balloons” in 2016, and “Easy Einstein Balloons” in 2017). Then they use those revenues to hire attorneys and experts to say the patent is invalid. If the patent owner lacks deep pockets or good lawyers, his patent will not survive. If he does have access to infinite funds, he has about a 5 percent chance of survival thanks to the America Invents Act (AIA) and the USPTO’s implementation of the Patent Trial and Appeal Board (PTAB).”

PTAB, it is worth noting, is an administrative tribunal (read: an unaccountable government panel) institutionally biased against patent-holders — which has aptly been labeled a “death squad for patents.”

Josh has been forced into legal battles with the designers of multiple knock-offs. Despite his constitutional right to his invention, he has also had to confront a government that often appears more interested in eroding patent rights than in upholding the law.

The PTAB — the creation of which was established through a previous congressional “reform” of the patent system — has been a critical part of the erosion of patent rights. The PTAB is a parallel forum where patent-infringers are able to challenge others’ patent rights — with a much lower standard of proof than federal courts require. What often happens is that patent-owners successfully defend their patent rights in federal court, but go on to lose at the PTAB.

Since the production of “Invalidated”, we are witnessing several possible remedies. The Restoring America’s Leadership in Innovation Act of 2018 (H.R. 6264), which Thomas, an inventor himself, introduced with Rep. Marcy Kaptur, Ohio Democrat, is one such solution. The legislation would return America to the “first to invent” patent system, abolish the PTAB with its anti-patent agenda, and ensure that the Patent and Trademark Office is given the adequate resources to conduct quality examinations and execute its mission in an efficient manner.

Additionally, Rep. Steve Stivers of Ohio and Rep. Bill Foster of Illinois have introduced the STRONGER Patents Act — which would streamline the legal process regarding patents — and reform the PTAB to protect small-scale inventors and start-ups from the deep pockets and legions of lawyers that can often hamper an inventor as you will see happened to Josh Malone in “Invalidated.” Sen. Tom Cotton, Arkansas Republican, and Sen. Chris Coons, Delaware Democrat, have introduced a similar bill in the Senate.

Lastly, even prior to the release of “Invalidated,” Andre Iancu, President Trump’s recently confirmed director of the U.S. Patent and Trademark Office, had already begun to take the necessary steps to rein in PTAB and bring about a fairer, more transparent and equitable process for reviewing patents. In fact, Mr. Iancu has proposed an important rule to ensure that patent owners are provided with the same claim standard in the PTAB as they are in federal court. These lawmakers and Mr. Iancu have sparked hope for America’s inventors that their rights will once against receive the strong protections they deserve.

As “Invalidated” demonstrates, our nation has a tremendous culture of innovation — and it’s one that deserves strong protections so future generations will aspire to invent and create.

• Jenny Beth Martin is president of Tea Party Patriots Citizens Fund. Thomas Massie, a Republican U.S. representative from Kentucky, is an inventor and patent holder.

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