Patent Uncertainty: Real Ideas, Real People, Real Harm

By Jeffrey Killian
October 9, 2018

https://depositphotos.com/182273390/stock-photo-rejectet-approval-concept.htmlFast cars, big houses, and life on the beach.  The financial rewards for a winning idea can be substantial to the inventor.  It is an easy observation; one single idea can have a major impact on the inventor’s life, their family for generations, society and commerce.   People touch inventions every day that make their life better as a by-product of such winning ideas.  The framers of our constitution understood the preceding facts of life and how to fairly incentivize our society to invent.  It is called the patent system and it is found in Article I, Section 8, Clause 8 of our constitution.

Today, the patent system is fluid due to recent legislation and court decisions that have caused considerable uncertainty and legal maneuvering.  As a first-time inventor, I had no idea as to the legal battles in the background regarding what ideas should receive a patent.  Many of these legal battles seemed to be more about trying to be right for economic gain, than doing right for human decency.

Our eyes have been taken completely off the ball of solving society’s problems and making life better, to focusing more on who can out lawyer who to receive a competitive advantage not deserved by stealing other people’s ideas.  As the founder of IP Watchdog, Mr. Gene Quinn, so rightfully posted on my first article “but let us pause for a moment and reflect on just how tragic it is that one can write: although it may solve a long-standing problem and improve quality of life… it is not patent eligible. That is where we are, and it is utterly disgusting.”  His statement not only speaks volumes, it correctly reflects the mis-placed importance of an invention’s true nature to solve problems and make life better.

In addition, big money ideas attract big players who have motivations that are not always admirable.  I have certainly experienced both the good side and bad side of human nature with my invention that finds overlooked Social Security Disability Insurance benefits (S.S.D.I.) for adult children with disabilities. Many of these experiences were shameful and indecent.  An inventor needs legal protection from the bad side of human nature and the framers of the constitution knew this fact.

IP Watchdog was kind enough to allow me to share my first article titled “Can I hold on long enough until the madness stops?” regarding the challenges I have faced in trying to obtain a patent.   I would like this opportunity to share the rest of my story of how real ideas, touch real people and how uncertainty can do real harm.

Let’s call time out, step back for a moment and observe that the community we leave our children is better than the money they inherit.  That premise should be our guiding light and starting point.  All this legal wrangling to water down patent rights has a hidden cost to the community that outweighs any economic gain.  The hidden cost to society is subtle, not flashy like the buzz words “patent troll” or “non-practicing entity” that make society want to lynch the inventor just from the sound of those terms.  It is clever marketing placed on an unsustainable patent premise to advance an unfair economic gain as far as possible until the premise collapses, just like sub-prime mortgages.  Did we think people without a job really qualified for a loan to own a home?  It was a mortgage situation pushed as far as possible until it stopped.  Sub-prime mortgages had a lot of clever marketing and flashy buzz words just like the patent environment does now, the correlation is easy to see.

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What are the total hidden costs to society stemming from the uncertainty of patents and how can we quantify such cost?  I cannot answer those questions; however, I can speak to the hidden costs specific to my patent application situation.  On the surface, solving the Social Security Disability Insurance (S.S.D.I.) benefit problem ensures that the adult child with a disability gets their rightful benefit as intended by Congress.  The solution also saves both the Federal/State governments substantial Medicaid expense and mitigates Social Security overpayments to other household members.  My company has projections as to those financial losses turned to Medicaid savings.

The uncertainty of my patent, now in appeal process, makes it difficult to attract the necessary investment.  I had strong interest up to the final rejection from the United States Patent and Trademark Office.  I literally felt that I could get in front of any major player and practically did at will.  In a political environment, I would call a patent a definite best practice, do not leave home without one or the possibility of getting a patent.

The uncertainty of the patent is also causing pause from other groups who may wish to gamble and run off with my idea.  One major player is playing a cat and mouse game with me.  A competent risk/reward analysis must handicap the chances of my appeal based both on my legal arguments and substantial supporting evidence.  Also, I have always felt that the big money factor would ensure me legal representation to take on the big boys.  In fact, I am already fielding inquiries after my first article published.  And there is a cause behind my idea, helping people with disabilities, which affords me support from various advocacy groups in ways too numerous to count.

If my story ended here, it could have documented the economic loss to society, but not the human toll.  It just so happens that it is an election year in Ohio.  Both candidates for Governor have priority objectives as Governor that could be funded by Medicaid savings without cutting any treatment.  In fact, treatment dollars are added by the invention.

Based on newspaper articles and television advertisements, one gubernatorial camp wants to provide funding toward treatment of the opioid crisis in Ohio and that crisis is severe.  Nationally there are more than 50,000 annual deaths from drug overdose, causing more deaths than either car accidents or guns (CBS News, Dec. 9, 2016).  In Ohio, the death rate is twice the national average for States.  The other gubernatorial camp through their media efforts want to provide free in state college, expand pre-kindergarten education and has a plan to stem the opioid crisis.  There may be enough Medicaid savings from my invention to provide funding for all three goals based on estimates quoted by the candidates (the treatment of the opioid crisis, free in state college and expand pre-kindergarten education).

I would like to approach the winning camp with proposals for their consideration.

Yet, instead of providing people with disabilities their rightful Social Security Disability Insurance benefits, saving the government substantial Medicaid expense, preventing Social Security overpayments, providing funding for treatment of the opioid crisis, free in state college and expanding pre-kindergarten education, I am in appeal with the United States Patent and Trademark Office regarding whether my invention is routine, conventional or well understood.  And that labeling of my invention as being routine, conventional or well understood is in view of submitted evidence on the official record that no one in my field of technology uses my claimed methods, either individually or as a combination.

Clearly, there is a problem with the patent system in the United States of America.  The new Director of the United States Patent and Trademark Office, Director Andrei Iancu, has promised change and is making change.  I applaud his continued efforts.  Director Iancu has recalled patent applications from appeal, my application would be a good candidate to also recall and review again.  Does the United States Patent and Trademark Office really want to give the impression that the law, evidence and official memos do not count?  If nothing else, recall and suspend the appeal process for me to just sit down with the patent examiner to determine exactly what would make the patent application approvable.  I have no desire to pre-empt the processing of routine Social Security benefits, just correct the S.S.D.I oversights to adult children with disabilities and move forward.

It may be prudent to move forward with the invention in any state and all states, regardless of the uncertain patent outcome.  The details could be worked out with a two-tier arrangement for example.  However, I cannot stress enough the human nature of greed, the big money may be just too much temptation to reach any reasonable arrangement with no risk to all parties.  On the surface, I look like as easy target for big money interest to just run over.  Again, the preceding thoughts speak to the wisdom of the founding fathers, a healthy patent system and human nature.

Whoever invents or discovers any new and useful purpose, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.  The preceding is the law in its entirety with additional requirements that I have already met, and those additional requirements are not in dispute.

Can we forget all the legal maneuvering, opinions and motives as to how the law should read and just focus on the Congressional intent of new and useful purpose?  Are the opinions not expressed by Congress that my invention may be too abstract, not technical enough, uses software, (fill in your opinion) etc. more important than providing people with disabilities their rightful Social Security Disability Insurance benefits, saving the government substantial Medicaid expense, preventing Social Security overpayments, providing funding for treatment of the opioid crisis, free in state college and expanding pre-kindergarten education?

Make no mistake: Uncertainty is about real ideas, real people and real harm.  Stop the gamesmanship of trying to be being right and start doing right.  It’s the law, literally.

 

Image Source: Deposit Photos.

The Author

Jeffrey Killian

Jeffrey Killian is the founder of Automated Benefit Solutions, LLC and has over 42 years of experience in Social Security benefits administration and patent liabilities. He has consulted Governors, Cabinet Members and other policy makers on issues of Social Security, Medicaid and other third-party reimbursements. Although holding several first in the nation accomplishments, Mr. Killian considers his biggest privilege and accomplishment to be both a servant and an advocate for people with disabilities.

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 7 Comments comments. Join the discussion.

  1. Pro Say October 9, 2018 2:06 pm

    Here! Here!

    Great article and insight Jeff. Thanks for being willing to share publicly what you’re going through.

    May the Patent Office return to doing the right thing for us both and all of our fellow independent inventors.

  2. StrongPatents October 9, 2018 2:09 pm

    Keep your chin up and keep fighting for reason and logic within the USPTO (and the examiner core), Mr. Killian. Your plight is worthy, and you have momentum (and Mr. Iancu) on your side.

  3. Benny October 10, 2018 5:42 am

    Jeffrey,
    I followed you up to the last two paragraphs, where I asked myself – if your invention has already been published, and is routine, conventional and well understood, (note the big “if”), what stands in the way of achieving the goal of sorting out the Medicaid and Social securities payments mess? Currently it appears as that particular goal is no longer dependent on whether you are or are not granted a patent. Of course, now no one will thank you for it, financially or otherwise, but the barrier is down.

  4. Concerned October 10, 2018 6:48 am

    Benny:

    As you well know, an inventor has to disclose the invention, which I did. Nothing prevents the States from just doing it with or without my consent. However, to be successful, the process has to be followed step by step (copied).

    The gamble will be whether I will get my patent and will I have recourse. I feel the current patent situation cannot be sustained. Inventors will not continue to disclose their ideas, spend their money and time, just to be ripped off. The well of ideas will eventually run dry.

    Even if the patent environment does not change, there is a reasonable chance I win on appeal. The examiner told me 3 times on a phone interview that my claims have patentability. Nobody in the history of Earth has done any of my claims, individually or collectively. So to label the claims routine, well understood or conventional is interesting.

    I also been contacted for a book interview. My situation is a poster child for why things must change.

    People are also reaching out to my United States House Representative Steve Stivers, co-sponsor of the Stronger Patents Act. I’m a poster child for his cause also.

    I’m the only one who can give the States freedom to pursue the idea without risk regardless of the patent outcome. However, it is a political environment and human greed are in play. The uncertainty is just causing havoc and some interesting calculations.

  5. Benny October 10, 2018 7:10 am

    Concerned Jeff,
    Be careful who you talk to. A whole bunch of uninformed people will point to you as a guy who has the knowledge to cure a societal ill but refuses to do so unless the law bends to his will.
    From my perspective, several companies we work with who sell us SAAS don’t have patents covering their software, but they sure make a living out of it.

  6. Concerned October 10, 2018 8:37 am

    Benny:

    Thank you for the advise. We are signaling a reasonable deal for everyone, with or without patent.

    The hold up is on the State’s end.

  7. Eric Berend October 10, 2018 1:07 pm

    And for those inventors who dare not reveal their invention(s) in the current massively antagonistic milieu, U.S. society cannot even begin to fathom the losses involved: that is the nature of secrets kept, after all.

    You know, that used to be a great motivation for me, as well: the opportunity to improve the world, for others and myself. To leave this life with society being a better place for everyone, based on commitments of my talents applied to ‘real life’.

    Not any more. The sheer scale of the mammoth deluge against inventors in the past decade and more has convinced me of what a naive fool, I was.

    The attitudes and conduct of anti-inventor forces in this nation and beyond, have now so outraged me that I will go to the grave before I reveal the power and lighting inventions I have created, that have not ever been previously seen on this Earth.

    While this fawn-over-technoristocrat-pirates regime holds sway, my position is that my secrets can die with me. This society does not deserve to benefit from my ideas. It has made certain to inform me of my severely derogated status and treatment: so how should this be any problem or issue?

    As an individual U.S. citizen, I have no obligation to disclose – and am naturally discouraged by the intensely emphasized and corroborated publicly promulgated antagonism against me, to the point of casual, impersonal hatred and impassioned death threats made on the Internet (literally, against inventors, as so-called “patent trolls”).

    Society has made it VERY G*DDAMN CLEAR that it does not “need” me nor my inventions. Pardon me if I – and MANY other inventors with any shred of self-respect – got the applied-with-a-sledgehammer hint. LOUD AND CLEAR.

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