The Plight of the Patentee

By David Wanetick
July 28, 2018

https://depositphotos.com/10170230/stock-photo-dead-end.htmlInventors face disrespect, derision and hostility at every turn.

Leveraging oneself to the hilt with expensive capital for the right to conduct painstaking research for years on end is completely discounted by anti-inventor forces. Even the mainstream media fails to acknowledge the tremendous work put forth by inventors long before they file their first patent application. Playing by the rules of the patent office year after year to the tune of tens of thousands of dollars in the pursuance of patent protection is portrayed as mere cynical positioning to extort.

Having produced a non-obvious, non-abstract invention and playing by the patent office’s rules is no guarantee of a patent granting. Some examiners have refused to issue patent applications regardless of the merits because doing so would run the risk of them losing their jobs if they received further negative reviews from the Patent Quality initiative. All patents run the risk of expensive oppositions from well-funded competitors.

Even when patents issue, such issuance is accompanied by the full-on pinatatization of the patentee. The U.S. government proclaims that the patent rights you earned are not really rights at all, merely franchises subject to the caprice of the government, which is in turn, subject to swaying with the political winds.

Large corporations often practice patented inventions and refuse to pay. Patentees can only reminisce about injunctions. Those who object to the theft of their patented inventions are likely to have their patents subjected to review by a government tribunal. Patent review by anti-patent crusaders at the Patent Trial and Appeals Board is so twisted that comparisons with kangaroo courts in the Stalinist Soviet Union are legitimate.

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Politically ambitious state attorneys general have trounced on the notion of preemption by vying with one another to establish anti-trolling units. Some states have gone so far as to require patentees to post reverse bonds as a condition of advancing their litigation.

The Supreme Court is also complicit in the dismantling of the patent system. Its decisions have largely dispatched injunctions to the dustbin of history, introduced tremendous confusion relative to which inventions are patentable, given succor to the Patent Trial and Appeals Board, rendered it easier for defendants to change jurisdiction (which is enormously expensive and disruptive for patentees), and have elevated the risks of plaintiffs being forced to pay defendants’ legal fees. The Supreme Court is in need of being taken to task for endlessly amplifying the patent troll depiction of patentees; such is the result of the Supreme Court’s indulging on propaganda pieces masquerading around as amicus curiae briefs. Unfortunately limited optimism for relief comes from Congress; many United States Representatives still subscribe to the ‘all patentees are trolls’ storyline.

In one of his articles on IP Watchdog, Gene Quinn asked: “Where is Congress? Where are the corporations that need patents? For goodness sake, when is someone going to stand up and do something to fix this mess created by an anti-patent cabal that is destroying America’s patent system?”

I am standing up and will try to play a role in fixing the mess that Mr. Quinn referred to. I am now in the process of writing a book (“The Plight of the Patentee”) designed to change the narrative from “patentees are soulless money-grubbing trolls” to “inventors are the hope for future economic growth and solutions to serious problems.” The Plight of the Patentee will make the argument that patentees should no longer be treated as pariahs. Enforcing one’s patents against parasitic users does not make one a parasite. The Plight of the Patentee will also provide examples of how entrepreneurs that have secured patents have benefitted the economy and mankind—by providing jobs and curing diseases, for example.

Why do I think I am qualified to write such a book? I believe I know patents very well. I have been called a world-renowned patent valuation analyst. I also developed and run the Certified Patent Valuation Analyst designation. I am the author of six books, including Business Model Validation: What Makes Business Models Work?; The Strategic Negotiator: A Manual for Negotiating at the Elite Level; and, Solution Nation: One Nation is Disproportionately Responding to the World’s Most Intractable Problems.

What can you do to help? What can you do to stand with me in righting the many wrongs that are plaguing the patent system?

A crucial part of writing The Plight of the Patentee is conducting interviews with inventors (and their lawyers and investors) that have been wronged by the broken patent system. Sharing your stories and insights is crucial for producing a book that will benefit the entire community of inventors, patentees and patent professionals. I would be grateful to those with a stake in the game to step forward and impart their stories and subject matter expertise to me. To get started, please drop me a note at dwanetick@patentfairnessopinions.

The Author

David Wanetick

David Wanetick is the Managing Director of IncreMental Advantage, LLC. He is a world-renowned authority on the issue of intellectual property valuation. His clients include law firms; emerging, mid- and large-sized companies; national laboratories; technology transfer offices; inventors; venture capitalists and private equity firms. The valuations David performs are primarily conducted in the context of negotiating licensing agreements, mergers and acquisitions, patent sales, capital raises and litigation support. He developed and runs the Certified Patent Valuation Analyst designation.

David is the author of The Strategic Negotiator: A Manual for Negotiating at the Elite Level. For more than 20 years, David has negotiated licensing transactions, spin-offs, capital raises, joint-ventures, and exits alongside and against Fortune 500 companies, government entities, universities, commercial bankers, private equity firms and venture capitalists. David is the Chief Executive Officer of The Institute for Strategic Negotiations, which maintains the world’s largest library of negotiating courses.

For more information or to contact David, please visit his Company Profile Page.

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 15 Comments comments.

  1. Disenfranchised Patent Owner July 29, 2018 9:21 am

    Count me in, David. I’d be glad to help.
    Email forthcoming in very short order.
    DPO

  2. PAT CHOATE July 29, 2018 11:10 am

    EXCELLENT. LOOK FORWARD TO THE BOOK. THIS SITUATION IS WHAT IS KILLING AMERICAN INNOVATION AND EVENTUALLY OUR ECONOMIC FUTURE.

  3. LazyCubicleMonkey July 29, 2018 6:57 pm

    Why do you view patents as property instead of limited government-enforced monopolies?

    What are your thoughts on the perverse incentives for patent examiners – that resulted in many bogus patents being approved? https://arstechnica.com/tech-policy/2017/12/these-experts-figured-out-why-so-many-bogus-patents-get-approved/

    Do you think that it’s a coincidence that a large portion of patent cases are heard by a single judge? https://arstechnica.com/tech-policy/2015/06/east-texas-judges-invention-a-method-for-hampering-patent-defendants/ Why was it OK for patentees to shop for favorable forums, but when the Supreme Court put a kibosh on that, it’s a problem?

    And why is the default assumption that the Supreme Court is ruining the patent system instead of an appeals court that’s out of touch? https://arstechnica.com/tech-policy/2012/09/how-a-rogue-appeals-court-wrecked-the-patent-system/

    P.S. While I obviously agree with the opinions cited in the links I provided, I don’t think I’ve ever encountered any good counterarguments (that may even be able to sway me) against them – I’m genuinely interested – and that’s why I read all of: http://www.ipwatchdog.com/2014/11/30/the-history-of-software-patents-in-the-united-states/id=52256/ – quite enlightening from a legal perspective.

    P.S.S. My opinions only apply to software patents since I write software. I do not generalize them to other aspects of the patent system.

  4. Eric Berend July 30, 2018 12:04 pm

    Yearning for change in a positive direction is nominally commendable, in any issue of such importance where representations have been so heavily manipulated by powerful ‘influencers’.

    Has anyone hear seen or heard about the latest ‘agitprop’ fluff piece perpetrated by the IP Pirate gang, called “The Patent Scam”? Rated 4.74 on amazon! Proposes extreme, draconian measures advocating for a wish list of the most virulent patent-haters; for instance, abolish patents altogether, reduce term to five years, “loser pays” no matter what, etc.

    Hundreds of reviewers payed money to become convinced they ‘know it all’ when it comes to the contention in this space, to get their ‘feel good’ moral dander up in a mutual hate-fest, leaving 5 star reviews!

    It’s merely more of the usual misrepresentation straight out of the infringers’ propaganda playbook; for example, in one scene, the protagonist IP-stealing software-centric zealot shows the first part of a patent grant, while covering up the claim limitations to the specification. Viewers never see the limiting language, so are deliberately misled into believing they know all there is to know about the subject.

    Restoration of respect for inventors and the economic role of patents is a lost cause: unless and until large masses of “ordinary people” perceive a great loss or harm to their own future or that of the U.S.A.

    Does anyone reading this, really think the ‘ordinary folk’ (de facto digital peasants) of today’s “America”, will have the respect and patience to read through “The Plight of the Patentee” when they have been already bamboozled into thinking they know all they ‘need’ to know by such rank agitprop pieces?

    Oh, and – make it a film; these morons of “the general public” have not the patience to actually read, especially when a book presents an unexpected, unpopular or intricate issue – as clearly is the case, here.

  5. Eric Berend July 30, 2018 12:08 pm

    Yearning for change in a positive direction is nominally commendable, in any issue of such importance where representations have been so heavily manipulated by powerful ‘influencers’.

    Has anyone here seen or heard about the latest ‘agitprop’ fluff piece perpetrated by the IP Pirate gang, called “The Patent Scam”? Rated 4.74 on amazon!

    Proposes extreme, draconian measures advocating for a wish list of the most virulent patent-haters; for instance, abolish patents altogether, reduce term to
    five years, “loser pays” no matter what, etc.

    Hundreds of reviewers paid money to become convinced they ‘know it all’ when it comes to the contention in this space, to get their ‘feel good’ moral dander up in a mutual hate-fest, leaving 5 star reviews!

    It’s merely more of the usual misrepresentation straight out of the infringers’ propaganda playbook; for example, in one scene, the protagonist IP-stealing
    software-centric zealot shows the first part of a patent grant, while covering up the claim limitations to the specification. Viewers never see the limiting language, and so are deliberately misled into believing they know all there is to know about the subject.

    Restoration of respect for inventors and the economic role of patents is a lost cause: unless and until large masses of “ordinary people” perceive a great loss or harm to their own future or that of the U.S.A.

    Does anyone reading this, really think the ‘ordinary folk’ (de facto digital peasants) of today’s “America”, will have the respect and patience to read
    through “The Plight of the Patentee”, when they have been already bamboozled into thinking they know all they ‘need’ to know by such rank agitprop pieces?

    Oh, and if you really want this commendable project to have a fighting chance to have its intended effect – make it a film: these morons of “the general public” have not the patience to actually read, especially when a book presents an unexpected, unpopular or intricate issue – as clearly is the case, here.

  6. angry dude July 30, 2018 12:13 pm

    Too little and waaaay too late

    Doc said “to the morgue” – to the morgue it is !

  7. Service Time July 30, 2018 8:36 pm

    I cannot imagine anyone inventing anything now. Hundreds of product ideas I have written down will be suspended until rational Constitutional people are in control again. Bad Congress, bad Senate, bad presidents, bad judges, bad companies. Whew.

    A service business is my target now, lets see . . hmmm . . . how about a hamburger store with yellow meat patties or micro brewery that decides what you will drink or a donut store that forces the donut into your mouth, how exciting.

    Our Govt. . .

    Isa 1:5-6
    https://biblehub.com/kjv/isaiah/1-5.htm
    5 . . . the whole head is sick, and the whole heart faint. 6 From the sole of the foot even unto the head there is no soundness in it; but wounds, and bruises, and putrifying sores: they have not been closed, neither bound up, neither mollified with ointment.

  8. Jianqing Wu August 1, 2018 10:37 am

    I love to see more articles like this.

    I recently wrote a letter to the PTO director with an attachment largely copied from the last part of my argument in one of my recently filed appeal brief, the central point is that the examiners rejected patent applications by predetermined mind and passion for rejection. Facts and laws are irrelevant. I will include those materials in my next book. The supervisory examiners are like programmed robots with only the body function of signing for rejection, rejection, rejection, rejection, rejection, rejection, rejection, rejection (10 is a reasonable number) for no tenable reasons. They never need to read the papers. They made stories, cited arbitrary references, ignored laws…. Whether an inventor can get a patent has nothing (absolutely zero: 0) to do with invention merit or claim language, but completely depend upon an end balance between their passion for rejection and applicants’ ability to fight. If their passion is greater than your ability to fight, you will never get a patent. If you can fight more, you might get a patent (making sure you keep spending your money for going through the cycles).

    After this case is closed, I will circulate this brief on the internet together with the letter in the public. If some inventors are angered by this examination culture, they might want to read this letter to entertain themselves for a few minutes. Those arguments can immensely boost their immunity and help them achieve healing.

    This kind of things can happen only in the U.S. patent system. Patent examination is not much better than spinning a coin and citation would be automatically generated by a computer program.

  9. David August 30, 2018 6:43 am

    @lazycubiclemonkey “Do you think that it’s a coincidence that a large portion of patent cases are heard by a single judge?” Then the link you provide tells of Gilstrap who has heard the MOST cases out of any judge…

    … this doesnt mean that he hears a majority or even a substantial percentage of all patent cases… it just means that he has been doing it for a long time, so he has seen THE MOST cases compared to other judges…. the article does not say at all that one judge hears most or even a large portion of patent cases.

    One must presume your other arguments are similarly not very well thought out or misunderstood.

  10. LazyCubicleMonkey August 30, 2018 10:17 am

    @David
    Based on my comment – that you quoted, I only stated that a *large* portion of the cases is heard by one judge.

    I never stated that he hears the majority or even substantial # of cases. Obviously, mathematically speaking, some judge has to hear the most cases. But it’s certainly suspect that a district with so few people (and inventors who actually live there, as opposed to companies headquartered there) hears more patent cases than any other judge. Unless you think that it’s a coincidence that East Texas is the #1 venue for patent litigation, it obviously means that patent owners are forum shopping. However, I haven’t seen any pro-patent people complain about that. But when defendants prefer to litigate elsewhere, all of a sudden, it’s an issue?

    My point was that if forum shopping is a problem, then we have to look at where it was started & by who.

  11. David August 30, 2018 5:44 pm

    @lazycubiclemonkey Right…. but that portion is not a substantial percentage of patent cases… No matter how its set up there will always be one judge (possibly more than one that are tied) who has presided over more cases than any other current judge… that’s not a surprising or incriminating fact.

    FDR has had the most years as president, more than any other president in US history. However, the number of years FDR was president is still a very very very small proportion of the total number of years there has been a president.

    Again, you are trying to use a statistic about a judge having the most cases and trying to imply that somehow this is a corrupt patent system where one judge is able to influence the patent courts by some disproportionate amount. But that is not the case. It is simply the case that you seem unable or unwilling to understand the statistic you are trying to use.

  12. David August 30, 2018 5:59 pm

    In 2017 there were 981 patent cases brought in district court… of those, Gilstrap presided over roughly 3% of them. His district wasnt even the district where most patent litiation was filed, which turned to the District of Delaware.

  13. LazyCubicleMonkey August 30, 2018 6:20 pm

    @David

    Depending on the year, East Texas is where the majority of patent lawsuits are filed most years: https://arstechnica.com/tech-policy/2013/01/east-texas-courts-are-back-on-top-for-patent-lawsuits/

    And it’s certainly not a coincidence that the Eastern District of Texas is where most are filed: https://arstechnica.com/tech-policy/2015/08/why-patent-trolls-go-to-east-texas-explained/

    I’m also not sure why you’re focusing on a single judge instead of addressing the point I’m trying to get across (perhaps not very well) – forum shopping (in the Eastern District of Texas) – for filing patent infringement lawsuits. So when there are complaints of the Supreme Court being anti-patent because of decisions like: TC Heartland v. Kraft Foods, one has to keep in mind that there was already forum-shopping by patent plaintiffs for more favorable venues so decisions like this tip the scales back towards a more neutral position.

  14. David August 30, 2018 6:20 pm

    Also, “forum shopping” is a long established part of being a plaintiff. It is one of the advantages of being a plaintiff is that the plaintiff gets to decide which court to bring his case in…. so long as that court is also one that has personal/subject matter jurisdiction over the defendant.

    So there’s nothing wrong with forum shopping by itself… I think what you may be referring to is the fact that Gilstrap (admittedly) changed that game up a bit by changing the rules on venue to allow more cases to stay in ED texas, arguably in many of those cases without proper venue. So while I agree that misrepresenting venue law as Gilstrap certainly has done wasnt good for the patent system, the idea of forum shopping generally, however, isnt to blame. Rather its how he changed the rules on venue that perhaps improperly allowed his venue to be one of the forums from which plaintiffs had the privilege of choosing between.

    I will concede that Gilstrap has made detrimental rulings on venue, however, this I believe is a distinct issue from the plaintiff’s privilege to forum shop. So long as forum shopping is limited only to those places where the court has (legitimate) jurisdiction over the defendants, then there is nothing wrong with forum shopping.

  15. LazyCubicleMonkey August 30, 2018 6:36 pm

    @David

    I think I see where our difference of opinion lies. While forum shopping may be a long established part of being a plaintiff, I don’t agree that there’s nothing wrong with it – at least in the perverse way it’s being done in these cases. Paper-only companies are being setup with their headquarters there – even though the plaintiff or defendant don’t actually live there. Just like there’s tons of companies incorporated in a single building in the Cayman islands (it’s technically legal), that doesn’t scream that everything is on the up and up. So when there’s ten to hundreds of companies incorporated in a few select buildings in a rural district & all those offices are empty, it’s hard not to draw comparisons – and that’s why I don’t think there’s nothing wrong with forum shopping when such perverse measures are taken to get a particular venue.

    That doesn’t mean that I think all forum shopping is wrong – if plaintiff lives (or actually conducts business) in district A & defendant does business in district B, I see nothing wrong with the plaintiff getting to choose district A or B.

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