Thoughts From the Amtrak: Leaps of Faith and the U.S. Patent System

By Steve Brachmann
July 20, 2017

“All Set for a 4-Hour Amtrak Journey” by m01229. Licensed under CC BY 2.0.

As I write this, I’m seated in an Amtrak train about 20 miles outside of Syracuse, NY, traveling from Buffalo. The train’s been stopped for about 30 minutes or so as an engineer had to “troubleshoot” the engine and, as I started to write this piece, we have only just started to lurch forward at what I can guess is a brisk 20 miles per hour. It’s 12:20 PM. I overheard another passenger say we were supposed to be in Syracuse an hour ago. I’m headed to Boston and it’ll probably be close to 10 by the time I get there.

Even writing these words is an incredible leap of faith: I’m working, as always, off my rusty, trusty Chromebook. Which can’t run executable files so I always work in the cloud. And the Amtrak’s WiFi isn’t working (I’m having DHCP lookup issues, which I’m pretty sure means they need to restart the router). So I’m not sure that I can even save the words that I’m writing. This could get lost in the ether.

Over the past few years, I’ve written plenty on this website about leaps of faith. That’s what the act of patenting an invention is, to me at least: a giant leap of faith that a certain idea is valuable enough to change the world in some way or fashion. Inventing, from testing an idea to obtaining a patent, is grueling work which someone only undergoes because they have an unshakeable belief in the value of their idea.

These leaps of faith spring from the most unusual circumstances. For example, LASIK eye surgery exists today because an engineer at IBM wondered what would happen if they shot lasers at their Thanksgiving leftovers. It’s a moment which could be derided as complete buffoonery and yet it leads to a discovery that’s fixing the eyesight of countless numbers of people. (I would count them, if this blessed Amtrak WiFi started to work and I could do a simple Google search for the stat. But I digress.) Or look at the story of Willis Haviland Carrier, one of my favorite American inventors as we hail from the same tiny little scratch of Earth which is Angola, NY. He gets the idea for air conditioning by looking at mist formed in the humidity of a Pittsburgh train stop, and he realized that he could control the air’s temperature and humidity by manipulating that mist.

It’s 12:40 PM, and we just came to a halt in Syracuse. I have dining car reservations in five minutes so I hope you’ll excuse me while I grab a bite to eat.

That was nice. The WiFi might be stuck and the engine failing, but you can’t beat the burger I just had.

Back to the world of inventing. It’s been said before that, if you build a better mousetrap, the world will beat a path to your door. The U.S. Patent and Trademark Office is closing in on 10 million better mousetraps. With more than 9.7 million patents already on file, the world has beaten a path to America over more than 200 years because of the unique ability in this country to protect a valuable idea as a private right. Before America’s patent system, the ability to protect technological advances with a patent was the right of kings, a droit du seigneur that stifled true innovation from the masses.

Unfortunately, all too often I’m reminded that today’s American patent system is more droit du USPTO than it is the system for the innovative masses as envisioned by Thomas Jefferson and other of our Founding Fathers. It costs thousands of dollars to obtain a patent. It costs millions to defend that patent against an infringer. Yet insidious narratives on “patent trolls” continue to echo in the rank and file at Congress as if infringement suits brought by tech licensing companies is somehow a new phenomenon and not a system which turned Thomas Alva Edison and Alexander Graham Bell into storied heroes of American innovation. Today’s Standard Oils, the Alphabets and Apples of the world, have mounted an impressive smear campaign that has whipped up a debate which is completely out of proportion with the real problem at hand. For every MPHJ Technologies, there are a thousand Smartflashes, companies who had good ideas stolen and have a rightful case of infringement to take to district court. For every Jay Mac Rust, there are countless Josh Malones: good, decent, forthright individuals who believed in a good idea, took a leap of faith, and are worse off for it. They are worse off for having invested in the patent system in the first place even as their invention is proven valuable by the activities of infringers.

How did we get here, to a place where the USPTO giveth, but the good Patent Trial and Appeal Board (PTAB), it taketh away? We’re not throwing the baby out with the bathwater. We’re drowning the baby in that bathwater and then asking, “Where the heck does this bathwater keep coming from?”

It’s about 4 PM and we’re pulling into Albany. Many eschew train travel for the time it takes but, for my money, there’s nothing as scenic as crossing the land by rail. In the interest of preventing this from becoming a day-long diatribe, I’ll try to wrap my thoughts as succinctly as possible.

After four-and-a-half years of writing for IPWatchdog, I think that one of my favorite things is reading the comments. I may not always interact, but over the past two years I’ve tried to read every single one. It’s great to see the interaction and I don’t mind a harsh opinion or two. God save me from all my uncharitable thoughts, but some of the wilder comments make me laugh. Many more of you make me think. Night Writer, I still owe you a follow-up on McDonald’s and how it hasn’t gone under the way I said it could. Not every single leap of faith I’ve taken has been successful.

One of the greatest moments I’ve experienced doing this work is meeting former Chief Judge Paul Michel. To shake the hand of someone who’s spent a lifetime in service to the law, and who continues to do so as a retired Chief Judge, is personally fulfilling in a way that’s tough to describe. Judge Michel, you are a rock star. The way that you testified as a disinterested observer during the July 13th House IP subcommittee hearing on patents was a marvel to watch. You and a scant few others have been voices of reason standing out from a cacophony of grandstanding opinions which have made the patent reform debate difficult to navigate.

When Gene gave me the idea to write a thought piece, he told me to run with a wishlist idea: What are the three or five things I’d change about the U.S. patent system as it is? I see now that I’ve completely avoided that part of this assignment. Begging everyone’s indulgence, here is a quick list of ways that the nation’s current system of innovation could be improved, from my point of view:

 

  • Find ways to reduce costs to stakeholders in the patent system. The American patent system was not intended to be a sport of kings and yet it takes a king’s ransom to obtain and enforce a patent grant. Filing fees are one thing but district court cases and appeals from those cases can cost millions of dollars. Then there are the trial proceedings of the PTAB which amount to a tax on innovation. Which leads to my next wishlist item.
  • End the PTAB. It’s an Article I tribunal with Article III federal court powers to take away property rights. This is a dastardly form of eminent domain and when a patent owner sees property taken from them, there’s a psychological cost, not just a financial one. We are not properly rewarding innovators for the leaps of faith they take in patenting an invention when we open up such an easy avenue for invalidity challenges.
  • Make PACER cheaper than 10 cents per page for digital access. This one’s a bit of a personal pet peeve, but wasn’t the American court system, just like the American patent system, supposed to be highly accessible to all? That should mean low cost for access to information on how that court system is behaving. 10 cents per digitally scanned page sounds low but it can add up when you have judgments reaching 30 to 40 pages or about 20 some-odd motions to sift through to find the particular information needed. Maybe I feel this more acutely as a journalist covering many cases but it doesn’t feel like the world’s most cost-effective system.
  • Revive the concept of a patent as a private right. As a dues-paying member of the Libertarian Party, I often have conversations with those who want to do away with all government intervention. To them, patents and their enforceable rights look like a government-mandated monopoly, the kind of intervention which consolidates power and produces the ills of crony capitalism. But the entities who benefit most from a strong patent system with enforceable rights are the smaller players who do not have big pockets: the only market power they wield is the right to make sure that their idea is being commercialized in the way that they want. Whether my views on most government regulatory activity differ from the mainstream opinion I’m often surrounded by, it’s clear to me that a strong federal-level system of patent rights offers a virtuous cycle through which a private citizen can greatly profit from the value of a good idea.
  • Create a special patent court to replace the either the Federal Circuit or the Supreme Court. How many more times do we have to see damaging jurisprudence stemming from either the Federal Circuit or SCOTUS to realize that we need justices who better understand the complexities of patent law and the ramifications of case decisions in that area? China not only has broader patentability than the U.S. (which is driving venture capital away from our market and into theirs), it has a special patent court which is plaintiff friendly and seems exceptionally fair to foreign plaintiffs. And patent applications are skyrocketing with over one million Chinese patent applications filed in 2015. It seems incredible but, though it may make House IP subcommittee chair Rep. Darrell Issa (R-CA) chortle with amusement, patent owners are offered more certainty in China than the U.S., at least in the current incarnations of both systems. Patents are too important to the nation’s innovation economy not to have a dedicated intellectual property court, especially in the current environment.

 

As I’ve written this article today, a cheery Amtrak attendant has walked up and down the aisles many times, encouraging people to meet strangers in order to earn a free button. Talk about a leap of faith, getting strangers to communicate while on public transportation. You might as well walk into a bar and tell everyone there to go to church the following morning. And yet she continues, sure that she has the right idea: getting people to interact instead of keeping their noses in their smartphones and devices. And wouldn’t you know it, I ended up with one of those buttons.

Inventors, I enjoy watching you continue to make a leap of faith that better solutions to today’s problems remain to be found. Patent owners, including the licensing firms, I’ll continue to watch you make leaps of faith that your private property right is worth defending in court. And if my own leap here isn’t too far off the mark, maybe I’ll be lucky enough to get these 2,000 words published and get a discussion started.

The Author

Steve Brachmann

Steve Brachmann is a writer located in Buffalo, New York. He has worked professionally as a freelancer for more than a decade. He has become a regular contributor to IPWatchdog.com, writing about technology, innovation and is the primary author of the Companies We Follow series. His work has been published by The Buffalo News, The Hamburg Sun, USAToday.com, Chron.com, Motley Fool and OpenLettersMonthly.com. Steve also provides website copy and documents for various business clients.

Warning & Disclaimer: The pages, articles and comments on IPWatchdog.com do not constitute legal advice, nor do they create any attorney-client relationship. The articles published express the personal opinion and views of the author and should not be attributed to the author’s employer, clients or the sponsors of IPWatchdog.com. Read more.

Discuss this

There are currently 18 Comments comments. Join the discussion.

  1. Tesia Thomas July 20, 2017 8:52 am

    HTIA = Evil Eight and Software Cartel

    DOJ could shut them down and undo their dirty law tricks…

  2. Bemused July 20, 2017 11:17 am

    Steve, thank you for writing and publishing this piece. It was clearly a heartfelt and introspective work and you and Gene have done a tremendous service for American inventors during these patent “dark ages” by consistently writing about the dire consequences of the devaluation of US patents and the gutting of patent rights.

    As an active participant in the patent ecosystem, I can’t thank you enough for your efforts to publicize the harm being done to American inventors and to American innovation. Please keep up the great work (particularly, those investigative articles you’ve written!) and I look forward to continuing to read your articles on IPW!

  3. CP in DC July 20, 2017 11:38 am

    Why does your list fail to demand improved examination? I understand the rush to judge the symptoms, but look at the cause.

    The costs you mention come from litigation or IPR proceedings on lousy patents. Want to lower those costs? Improve examination to obtain better patents. A better patent lowers institution of IPR or district court litigation. When challengers cannot institute an IPR or have litigation end on summary judgment, money is spent for nothing. Courts already grant costs and attorneys fees for frivolous IP litigation.
    Why are fewer patents challenged in European opposition proceedings than IPR…. better examination. You don’t hear or experience the same horror stories.

    Abolishing PTAB? Did you mean to abolish IPR? Judge Michel has spoken about reforming IPR, not abolishing the PTAB. Ex Parte appeals, those appeals taken when examiners refuse to listen to fact or law, are important. IPR came about because it costs so much money to litigate poor quality patents (guess where those come from).

    As to China, the State Intellectual Property Office (their PTO) is strict on what can be patented. Claims have to be supported by actual examples (not prophetic), it’s hard, very hard to get broader claims. I could go on and on, but SIPO is improving at a rapid pace, unlike the USPTO that seems to be going in the opposite direction.

    I also understand that it is a Herculean effort to improve examination, but that does not mean we should ignore it.

  4. Castletower July 20, 2017 1:55 pm

    Nothing could better demonstrate the crux of your article than VirnetX versus Apple, wherein Apple lost three infringement trials in District Court (including charges of willfullness). However, instead of settling or paying the court ordered damages, they have co-opted the PTAB to continue their fight against VirnetX and Article lll courts, resolutely thumbing their noses while continuing to infringe. It’s really quite disgusting.

  5. K. Sheehan July 20, 2017 1:55 pm

    Steve Brackman, thank you for writing this excellent article, I am grateful when I see authors speaking truth about this topic!
    90% of patents are being invalidated by the PTAB. If you truly research those patent IPR’s you will see the truth of a large percentage of them invalidated by the deep pockets of large corporations who chose to call the property owners of those patents, ‘patent trolls’ ‘NPE’s’ or as was eluded to by previous comment ‘ bad patents.’ The IPR process is off the charts allowing repetitive filings for the exact same claim by a multitude of entities who have no direct reason to file, and then the PTAB allowing joinders from companies who have been sued but missed the deadline to file. This is a corrupt system put in place by corporations that now earn the title of ‘Efficiant Infringers.’ The little inventor doesn’t have a chance to protect their property with the high level corruption that we see with the PTAB and the justice system. This whole farce was blanketed under the guise to save the poor big corporations from frivolous lawsuits. The court system has those protections in place already. The valid owners don’t stand a chance in this quagmire of deceit. The cost becomes far more expensive and most patent owners are crushed in the process.

  6. PatentGuru July 20, 2017 2:07 pm

    The PTAB is necessary and essential to the modern patent system. The post above is foolish. There will always be an inherent error rate in Patent Examination and Patent Prosecution. The idea that Patents can be held to a second level of examination where all parties reconsider the merits of the patent makes perfect sense. Thinking otherwise just show one’s bias.

  7. Tesia Thomas July 20, 2017 2:56 pm

    Let’s just make the PTAB the examination process.

    Fire all the current USPTO examiners since people say they allow all these terrible patents and make the PTAB people the examiners.

    Then we get great patents issued without anyone losing property! 🙂

    Or allow inventors to modify their claims in response to an IPR.
    If your claims are “too broad” then a narrow claim would likely fit within its scope, and it should be amended as such.

  8. Tesia Thomas July 20, 2017 2:59 pm

    Yeah, I say just make the PTAB another step in the examination process.

    All of this sh*t is just liking one opinion over the other. So let them both say their opinion BEFORE issuance.

    That way, people like me aren’t spending millions just to lose property.

  9. Tesia Thomas July 20, 2017 3:02 pm

    If the goal is REALLY to produce stronger patents then both sides should be in favor: the Software Cartel and independent inventors.

    I want strong property rights.
    And, the Software Cartel says we need stronger IP.

    Adding it to examination would also make sense for the fee diversion to PTAB.
    Now, we’re all getting what we pay for! 🙂

  10. Tesia Thomas July 20, 2017 3:10 pm

    Heck, make a 3rd PTAB-like monster.
    All of them get to vote on my patent claims before issuance.
    Check and balances.

    But after issuance I don’t want to hear ANYTHING!!

    And, make the patent like a trademark. You have to file an SOU to get issuance.
    And, include R&D as use.

    When attorneys make the laws, it benefits attorneys: ability to sue over property rights.
    When efficient infringers make the laws, it benefits them: PTAB
    Inventors…well, all we want is what we paid for: attack us BEFORE issuance.

    I’m bridging everyone’s opinions in one amazing compromise that our Founding Fathers, creators of three branches of govt would probably smile at.

  11. Tesia Thomas July 20, 2017 3:33 pm

    And then none of this patent crap ever needs to go back to the Supreme court or Federal Circuit.

    Make 3 people affirming claims then end.
    Let the inventor say his/her piece (filing and exam fees), the examiner (employee), and competitors (who still pay fees.)

    Then, case closed.
    If you infringe, then you pay up.

    AIA passed in 9 months so with less people, this process shouldn’t drag the patent system down so much.

    I just resolved all of Steve’s “things to improve.”
    Except PACER.

  12. Benny July 21, 2017 8:04 am

    Steve is right about rail travel. Beats flying and the hassle of airports or the stress of driving.

  13. Gene July 21, 2017 9:28 am

    ah Steve, i read your essays years ago as an obligation to a fellow buffalonian, now from enjoyment and learning. today i find out you are from angola—that resonates deep in my heart. i learned to love the place when my dad used to drive me to evangola beach. now i rent a house there every summer for my family at grandview bay. walking distance to connors. we look forward to the fabulous maria’s pizza, charlap’s, and a movie at new angola in the morning! my brother and i keep looking at properties there for when we retire. i need to be able to run in the morning on the beach past mickey rats and get my running shoes drenched trying to leap over big sister creek. how in the world does a weekly rental on the beach in angola cost about 50% more than virginia beach, more than anna maria island in florida? because the owners there know they possess a piece of heaven.

  14. Night Writer July 21, 2017 10:19 am

    Benny >>Steve is right about rail travel. Beats flying and the hassle of airports or the stress of driving.

    That Benny’s take away. Too funny.

    I’ve been saying it for many years now. As long as the Googles are pouring money into burning the patent system down, we are going to lose.

  15. Steve Brachmann July 21, 2017 10:25 am

    @Gene – One of my first jobs was working summers at the Super Freeze next to the old Jubilee. I also did a paper route down Lake St. for a bit (I lived on Glenwood). When I went away to college, every year we would do a Maria’s Appreciation Day: one day where we ate nothing but Maria’s pizza. And you can’t forget the food from Lakeside Market; they might sell better Italian sausage somewhere, but I haven’t found it yet (got a couple links in the freezer right now). I get down every 4th of July to watch the fireworks on the shores of Lake Erie. It is a slice of heaven and I think it’s more than a little poetic, Biblically speaking, to note that we are right next door to Eden.

  16. staff July 21, 2017 12:00 pm

    ‘grueling work which someone only undergoes because they have an unshakeable belief in the value of their idea’

    But that unshakeable belief has been broken. Small entity patents and applications are only running about 1/10th of their historical share. Clearly, that belief that we will be rewarded for our inventions has ended. The patent system is now a sport of kings, if not thieves. While Congress pauses to deliberate and be side tracked to other issues over which some or even many believe it has no authority, it abandons inventors and its true duty to them and to protect as James Madison put it the ‘faculties’ of our minds, which is ‘the first object of government’. Has Congress lost its way? Has it allowed itself to be commandeered by large multinational infringers (thieves)? The wise and principled men and women in Congress must step up and lead the way out of this commercial anarchy. As each day goes by more inventors and small entities are falling off the map and will never return. The longer Congress waits to restore the patent system, the longer it and American jobs will take to recover. American jobs are on fire. Who in Congress will step up to put it out?

    For our position and the changes we advocate (the rest of the truth) to truly reform the patent system, or to join our effort, please visit us at https://aminventorsforjustice.wordpress.com
    or, contact us at aifj@mail.com

  17. Anon July 21, 2017 8:17 pm

    Small entity patents and applications are only running about 1/10th of their historical share.

    Do you have a citation for that?

  18. Marcus August 12, 2017 11:17 am

    It’s funny how the first element on the list is reduced cost at the litigation level…might this article be better printed in a law journal?

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