All patent infringement is willful patent infringement

The American Inventor’s Protection Act of 1999 (AIPA) requires the USPTO to publish patent applications 18 months after the inventor files the application. An inventor can ask that the patent application not be published if no corresponding foreign applications will be filed. Some do, but the vast majority of patent applications are published by the USPTO on their searchable public website. Anyone with a web browser can search for and find the inventions, with full detail disclosed, regardless of whether a patent ever issues.

The AIPA creates a tough decision for inventors. Publishing how an invention works obviously means that it can never be protected as a trade secret. The loss of trade secret protection should theoretically be overcome when the patent issues because it becomes an “exclusive Right”, a property right, and infringers can be enjoined. Of course that theory only works if the government enables the exclusivity and provides a reasonable and affordable way to enforce it. Based on trust that the government will uphold its end of the bargain (a very poor assumption in 2017) most inventors allow their invention to be published and forego trade secret protections. That is becoming an increasingly bad choice.

The problem is that once published by the USPTO anyone can simply search the USPTO website to find inventions that apply to their business, pick off the good ones, and commercialize them long before the inventor has patent protection. A case called eBay v. MercExchange effectively eliminated injunctive relief by requiring an impossibly difficult public interest test before a court can grant injunctive relief. So if a big corporation steals an invention made by an independent inventor, or even an invention by a small technology company or start-up, odds are they get to keep on trampling the allegedly exclusive rights even if they are found to be infringing after having lost at trial.

When the inventor finally gets the patent granted (normally years after USPTO publication, and sometimes decades after publication), it is practically impossible to attract investment to commercialize an invention if big corporations have saturated the market with infringing products. Investors will uniformly explain to inventors that the odds of competing with these big corporations in a saturated market post-eBay is effectively zero, so they won’t invest. I was told by several venture capitalists that I didn’t need an investor – I needed a lawyer.

It is difficult to argue with the perspective of these investors. How can an individual, start-up or even a small technology company compete when a big corporation has stolen an invention and saturated the marketplace? Once upon a time strong patents equalized the playing field, but those days are long gone, at least in America.

Of course, if an inventor has a couple of million dollars stuffed in the mattress, they can hire a lawyer and sue infringers. But what can realistically be achieved? Because of eBay, it is nearly impossible to satisfy the public interest test without a product on the market and the means to manufacture it at a scale that can replace the large corporate infringer’s products. A tall order indeed. The remaining option is a compulsory license at an arbitrary value decided by a judge and then re-decided by Federal Circuit, which in recent years only ever seems to vacate or reduce damages awarded to innovators regardless of the fact that infringers who are stealing innovations are making many billions of dollars, sometimes many tens of billions of dollars.

The reality created by eBay in light of the AIPA is simple: If you scrape an invention off the USPTO website and massively commercialize it, you get to keep it. Ubiquity has become a defense. How odd that ubiquity caused by your own initial theft becomes an impenetrable shield in patent infringement litigation.

It is humorous when big corporations say they would never scrape the USPTO for inventions to steal. Apparently we are to believe they are just too honorable to stoop to such a low level. We should all just trust them. But the job of a big corporation is to commercialize technology, to maximize profits, and to protect their business and profits. Scraping the USPTO website aids in all of these business goals. If they aren’t doing that given the current climate in the U.S. and one-sided laws in favor of infringers they are not acting in the best interests of the company and shareholders and shareholder lawyers should demand to know why. Scraping grants access to new technologies that they would not otherwise have access to – and at virtually no cost. And since eBay makes it impossible for most inventors to stop the big corporation from infringing, their business and profits are protected. Only Pollyanna would believe that huge corporations do not scrape the USPTO for inventions.

What’s never talked about is that virtually all big corporations claim they are the leading edge of technology – the experts in the market of that particular technology. They want us to believe that they are the ones who invent the next generation of products and that is the reason we should buy their products over a competitor’s products. The claim of being the leading company necessarily means that they know what technology is coming down the pike. But being the expert is more than a marketing slogan and an inducement to buy their products. They have to be the expert. If they fail, they risk their business. Think of buggy whips, cassette tapes, cathode ray tubes, and wired phones, to name but a few.

There are a lot of ways that big corporations learn what technology is coming. They go where the technology is born. They reverse engineer competitor products, attend trade shows, hire employees from competitors, talk to vendors, enter into acquisition discussions, and they review competitor websites, white papers and technical documents. And they search the USPTO website. It is the one place on earth where those technologies are openly published and enabled so that folks skilled in the art can build it, after all that is one of the basic requirements of an adequate disclosure.

It is not believable when a big corporation denies knowledge of a patent they infringe. That knowledge is freely available on the USPTO website and if they do not know the technologies coming, their business could be substantially damaged, and possibly fatally damaged. Finding those inventions means too much to the continued success of their company and it is disingenuous to say that they did not look and do not know. And if that is true, shareholders and their lawyers should once again start to ask some very serious questions about gross incompetence and substantial mismanagement. Either these companies know what they are doing, or they should know what they are doing. That means their actions are either intentional or reckless, and either should qualify as being characterized as willful patent infringement.

Big corporations argue that it is impossible to know all of the inventions published at the USPTO and therefore they never infringe willfully. With thousands of employees and tens of millions of dollars in revenue, these big corporations have plenty of resources to find inventions on the USPTO website. While there are a lot of patents overall, the number that would apply to any given field is a much smaller number. It is unreasonable to argue that there are just too many patents. Furthermore, these same big corporations regularly search trademark databases maintained by the same USPTO to make sure no trademarks are being requested that come to close to any in their trademark portfolio. So why can’t they do the same for patents? The truth is they just don’t want to have that burden because it is easier to fake ignorance and steal technology rather than respect patents in an era where patent rights are historically weak.

But when a big corporation wants to invalidate an inventor’s patent, they expect the inventor to know not only everything on the USPTO website, but even documents written in different languages and stored on paper in places like Belarus or Zimbabwe. With their vast resources, big corporations on one hand argue they cannot possible know what is in the USPTO because they do not have the resources to do it, and then on the other hand demand that inventors with minimal or no resources at all are required know all that and more. How ridiculous! Requiring inventors to have knowledge of everything in every language ever spoken but not to require infringers to have knowledge of what is carefully indexed, in English and published and searchable for free? Talk about a double standard.

Of course, not all infringers should be liable for willful patent infringement. Some infringers are not the experts in the field. Some are users of technology produced by the experts. If you are a small coffee shop and you purchase a router, you are not an expert and you are not willfully infringing. You just bought a product that some infringer sold you and you reasonably believed could be lawfully purchased and used. But if you are the company producing that router, it must be assumed that you are willfully infringing.

We need to reverse eBay to restore injunctive relief, and we need to make willful patent infringement the rebuttable default for infringing a patent.