How patent laws are harming children and America’s innovative future

I’ve been traveling the country this year meeting with inventor clubs. Even with the significant damage the courts and congress has brought to the patented property of inventors, inventors still believe they can invent something, own the exclusive right to their invention, and profit from it. After all, this fundamental right of the American story, which was taught to us in grade school and lingers in our minds, is the American Dream.

So far, I’ve spoken to more than a dozen inventor clubs across the southeast and in Texas. For the next few months, I’ll be visiting many more inventor clubs and other innovation organizations like makers groups, angel investor groups, chambers of commerce, entrepreneurial groups and small business groups. I can tell you this much… when these folks learn about how much damage has been brought on their own personal version of the American Dream, they understandably get upset and take action. Of course, they call their representatives, but, most of these clubs are also participating with US Inventor and the United Inventors Association in Amicus briefs to the Supreme Court on patent issues that affect inventors. Many have committed to tell ten friends, write op-eds and letters to local papers and to come to Washington. You will hear much more from inventors in the coming months about their opinion on the multinational takeover of the patent system.

Most members of inventor clubs are inventing new consumer goods, the things you see at big box stores and online, but there is a substantial percentage inventing new software and hardware technologies for various industries. Inventor clubs are often founded by successful inventors trying to give back to their community by sharing their experience and contacts to help others succeed. Clubs invite subject matter experts to teach members various innovation subjects ranging from ideation, prototyping, manufacturing, marketing, pitching, patent protection, licensing and more. Clubs are a place for inventors to pitch their ideas to other inventors and to meet the people who can help them succeed.

While all of the clubs are great resources for inventors, there are a few that stand out for community involvement. One example is the Houston Inventors Association. This club is a top-notch club, but it also promotes and manages the Young Inventor’s Showcase. The Young Inventor’s Showcase is nothing short of an amazing academic program in 56 Houston area grade schools. It is well run and supported by the complete ecosystem of education – schools, parents and the Houston Inventors Association. The program teaches grade school kids the entire innovation system from problem identification to the store shelves. The class wraps up with an inventor competition judged by members of the Houston Inventors Association.

I was very fortunate to be invited by the Houston Inventors Association to help judge one such competition in a local grade school. My first student inventor was a third grader just slightly over three feet tall with a world-class smile and a strong handshake. His invention was as complex as it was pragmatic and he pitched it with the professionalism and flair of the late television pitchman, Billy Mays. This eight year old not only developed a product that may be patentable, but he understood the problem, the market gap, how his invention filled the gap, who would buy it, the competition and what differentiated his invention in the market. He had even performed a prior art search at the USPTO and could describe what differentiated his product from the patents he had found. After he concluded his incredible pitch, he pulled out his invention logbook where he had logged his entire process of invention. I could not believe what I had just witnessed from this professional and confident (I have to say it again) eight-year-old kid.

After I graded him in the categories the Houston Inventors Organization had laid out in an evaluation form, I turned to the next inventor. I assumed the three foot tall Billy Mays was an anomaly. Certainly, others would not be nearly as well prepared. However, he was just the first of dozens of inventors that day, all of which were fully prepared. In fact, this program prepares the kids so well that some of the kids in past programs have brought their products to market and a couple are still receiving licensing revenue.

As I drove away headed to South by Southwest in Austin, I thought those kids who had licensed their inventions and how that must make them feel to be an actual inventor. Perhaps this would spur a career as an inventor and bring all of us many wonderful things and jobs. But how many of the inventions I saw in that competition could also be patentable? Billy Mays’ invention for sure, but there were at least a dozen others.

The America Invents Act created a first to file system, which means you really need to file a patent application prior to any disclosure. All of these inventions were disclosed without even a provisional patent application being filed. This omission could cause serious, even irreparable problems. This isn’t just a concern for the Houston Young Inventors Showcase, but is a problem for all science fairs and similar events. It has always been a bit of a concern because once you disclose an invention it is no longer patentable in many countries, but up until March of 2013 disclosure in the U.S. prior to filing a patent application did not create a patent problem here. But today an invention disclosed prior to the filing of a patent application may no longer be patentable in the U.S.

Of course, there is also the problem of human nature — any of these inventions could be patented by someone else. That would be like stealing candy from a baby, but there are many unscrupulous people in this world. Some reading this will no doubt think that an invention made by one person couldn’t possibly be seen by another and then patented right out from under the original inventor. Unfortunately, thanks to changes in U.S. patent law brought into being by the America Invents Act (AIA) that very well could happen. There used to be a grace period for inventors; 12 months from the time of any disclosure to file an application. If you filed an application within that grace period you would be fine and if someone tried to steal your invention it was generally quite easy to prevail by filing a simple affidavit with the Patent Office.

Today, if someone files a patent application on your invention before you the likelihood is you will need to file what is known as a derivation proceeding, which will likely cost you many hundreds of thousands of dollars, and that is even if you are allowed to challenge the stealing party. The AIA created a race to the patent office, so you must file first. If you don’t file first in order to even be allowed the privilege of spending hundreds of thousands of dollars during a derivation proceeding you have to have substantial evidence in your petition that proves your invention was stolen. Legally speaking, that is a very high threshold. This and many other derivation rules are simply stacked against the inventor who had his or her invention stolen. Welcome to America’s new first to file system.

This is another unfortunate circumstance of miserably bad patent reform legislation that really doesn’t reform anything, but instead only makes it worse for inventors. The American Invents Act really needs to be repealed in its entirety and replaced with legislation that strengthens patent rights. But at the very least, there is no reason why the United States cannot and should not have a grace period. This could be fixed immediately, bills have been proposed to remedy the tragic demise of the grace period, but action sadly seems unlikely in this Congress.

The kids of Houston’s Young Inventor’s Showcase would be well served by smarter patent policy. To say America’s innovative future depends on it is an understatement.

Editorial Note: The video below is from the 2009 Showcase. What a program! How is this program not everywhere?