“When a patent owner faces District Court invalidity-rates greater than 90% in some years and success rates as low as 9% to 14% to reach a judgment on the merits, is a license that’s priced to promote settlement a nefarious practice that takes advantage of the system or a reasonable business decision that takes into account risks that staggeringly disfavor patent owners?”
When you see a docket report with a patent lawsuit filed by a non-practicing entity (NPE), do you think it’s just another patent troll taking advantage of the system? Or would you be willing to consider that underlying every patent litigation is a human story of invention, which is the embodiment and manifestation of an innovator’s aspirations and sacrifices?
These human stories are too often marginalized in the patent troll debate. One such story is that of Wayne Evans. His life took him from the depths of poverty and loss to the struggles of being an entrepreneur raising a family and, ultimately, to late-in-life success as an inventor, innovator, and author.
Evans was born into poverty in the heart of the Great Depression in 1935. His father left home when he was a child, leaving his mother to raise three children.
The seed for Evans’ lifelong passion was planted when he was five. He recalls wandering off one day looking for his sister. It didn’t take long for him to become helplessly lost. Hours seemed like an eternity before being found, as he repeatedly called out for his sister. Though traumatic, this experience fueled his dedication to help find people who were lost and in need of help.
Instability was a constant in Evans’ childhood. He lost his stepfather and eldest brother in World War II. It was difficult for Evans to process the loss. He harbored an anger towards life, feelings that masked a fear of dying alone.
Evans recalls finding relief from hard times losing himself in stories from his radio. His curiosity would get the better of him—how did his favorite stories come out of thin air from a wooden box? This enchantment planted the seeds for his lifelong quest to understand wireless technology and to help make the world a better place.
His curiosity pushed him to study electrical engineering at a local trade school in Indiana. He worked a midnight shift at a radio station to support himself. After graduation, Evans was of eligible draft age and enlisted in the military. Evans received training and became a military instructor in microwave communications, for which he was honored with the Outstanding Instructor Award in 1957. The military also honored him with the Outstanding Solider Award in 1959.
Due in part to his technical expertise and resourcefulness, the military selected Evans to operate a defense communications outpost to monitor Soviet communications during the Cold War. In 1959, Evans was stationed in the coldest, most desolate military outpost on the shores of the Arctic Ocean, 500 miles north of any civilization. There, he was forced to confront his fears of dying alone when a hurricane struck the base. For three endless days, he endured threats of freezing and radiation poisoning. After the hurricane passed and military personnel rescued Evans, it took him four days to recover from hypothermia and shock.
One Hundred Dollars and a Roast Beef Dinner
When Evans returned to civilian life in his mid 20s, things turned around. He married Annie, the woman of his dreams, and earned an electrical engineering degree with honors from Purdue University.
After graduating in 1965, he accepted a job offer from RCA, the world’s leading consumer electronics company at the time. At RCA, Evans was part of a design team that pioneered innovations in consumer electronics. Evans invented and obtained more than 10 patents on a number of groundbreaking innovations, including the first use of an integrated circuit in a consumer device, the first transistor in a color TV receiver, and the first prototype of a wristwatch wireless communicator.
Evans was even featured in and photographed for Popular Science, for his contributions to the “television set of the future.” Popular Science, June 1970, pgs. 48-49. He delved into his passion for inventing and was elated to be on the cutting edge of consumer electronics. But the meager compensation he earned for his patents left him feeling empty. As an employee, he had to relinquish ownership in his inventions to his employer. In return, he received $100 per invention and a roast beef dinner.
After 13 years at RCA, Evans moved on to GE. His knack for inventing followed him but the opportunities to benefit from his inventions did not. His employer again reaped all ownership and profits from his inventions. After four years at GE, the recession of the 1980s befell the country. GE laid off employees, including Evans.
Determined not to allow poverty to afflict his family, Evans embarked on a journey to create opportunities as an entrepreneur and business owner. But the road of entrepreneurship was a tough one. For the next 20 years, Evans would devote himself to developing location and safety technology, before the military allowed satellite use for civilians. From 1981 onwards, it was a constant cycle of scraping money together to start companies only to see them disappear, years without steady income and countless hours of manual labor, and endlessly negotiating collaborations that didn’t pan out.
Most taxing, though, was repeatedly going back to Annie over the years, explaining why he needed to close a business venture and start over.
Life as an Entrepreneur
As Evans cycled through numerous startup ventures, he took steps to innovate on his childhood dreams—to find better ways to implement location and safety technology in order to find those who were alone and in need of help.
In the 1980s, inspired by his daughter who was a nurse, and to help his elderly mother, Evans developed and deployed a location tracking system in an elder care facility to help identify and locate elderly patients in need of emergency care.
In the early 90s, Evans applied his location technology to vehicles. This time, he worked as a consultant with a South African telecommunications company to convert vehicle analog tracking systems from an analog cellular system to a digital one.
In 1998, Evans put his consulting travels and projects on hold when his mother needed support and came to live with him and his family in Atlanta. The time away from travel gave Evans an opportunity to delve into what he felt was missing with GPS technology, particularly in vehicle tracking.
While working two consulting jobs, Evans began a two-year project to develop a new way to implement GPS tracking. Evans invested thousands of dollars, financed via credit cards, to start a laboratory in his basement. He conducted a costly trial-and-error process to set up his lab, buying and testing various equipment.
Though he wasn’t a programmer, Evans painstakingly developed something that did not yet exist—a latitudinal and longitudinal database with software to correlate GPS coordinates to street intersections.
After two years of trial and error and countless hours in his lab, he invented a telematics unit that he could take in his car and drive to a street crossing, and it would automatically recognize the intersection.
Though he didn’t know it at the time, this was the precursor to GPS location-based services that would 10 years later penetrate the worldwide market.
Inspired to develop technology to help people, Evans developed other innovations, such as emergency reporting systems, road hazard support for the disabled, and automatic collision notification systems.
Evans believed he had developed enough to obtain patent protection on his GPS innovations. But patents were expensive. Evans took on heavy credit card debt setting up his lab and paying for his children’s college education.
With the loving and unconditional support of his wife, Evans used their family’s retirement funds to hire a patent agent. Thanks to his agent accepting delayed payments, Evans filed and was issued a family of patents to protect his GPS inventions.
Evans was elated—in his late 60s he owned the intellectual property to his inventions for the first time in his life. His patents were the culmination of 20 years of researching better ways to implement GPS technology, testing theories in the lab, and investing in his dreams.
But Evans didn’t realize that he had another 10 years of hardship ahead. He still needed to promote his inventions and patents.
Evans was familiar with engineering, but patents were a new terrain. Now in his 60s, he had to learn how to operate in a world of patents. He was a fish out of water, trying to understand lengthy contracts and estimate reasonable rates and terms.
Evans couldn’t afford entry fees for trade shows where he could promote his prototype and patents, so he had to find other ways. He researched and found contacts to companies he believed could benefit from his GPS technology. He created marketing materials and scheduled calls and meetings to pitch his prototype and patents. But time and time again, each group would bow out and leads would go cold.
Evans next worked with IP promoters. He taught them about his inventions and illustrated their market applicability. But the IP promoters all wanted the same thing: upfront cash. It was cash Evans simply didn’t have. He was already in debt and drained his retirement funds to build the lab, design and test the prototype, and obtain his GPS patents.
It was the late 2000s and, now in his 70s, Evans’ health was declining. Emotional fatigue over a three-year long wills-and-trust litigation, stroke, and back injury limited Evans’ mobility and energy.
After 10 years of working to promote his patents, he felt the need to move on. After devoting decades, investing countless hours of labor, and taking on debt, he was at a dead end and fatigued. With a heavy heart, he had to explain to Annie why the investment in his lab and patents didn’t pan out, and why they again needed to move on.
Evans witnessed GPS technology blossom in the economy. He saw location-based services become a growing trend in the automotive industry. With sadness, Evans felt like he missed his opportunity.
Though Evans moved on, his patents were publicly listed on the USPTO database. In early 2010, Evans received a cold call from the author of this article.
Though somewhat skeptical, Evans was happy to hear that our company believed his GPS patents were ahead of his time and had market applicability throughout the location-based services market. He was happier yet that we didn’t ask for upfront money. This began an eight-year working relationship and lifelong friendship.
We presented Evans with a list of companies we wanted to approach. Counterintuitively, we weren’t comfortable approaching operating companies in the location-based services space. We explained to Evans that patent laws were such that if we presented these companies with evidence of his patents’ value (i.e., claim charts that showed how Evans’ patent claims read on their products), that could expose Evans to a declaratory-judgement lawsuit. Without funding to defend a potential litigation, we couldn’t risk that exposure.
We researched the market and learned of other patent buyers, such as IP licensing groups that actively acquired patents. We created a 50+ page slide deck of marketing material illustrating the widespread market applicability of Evans’ patents. We presented market trends and how his patents map to in-unit telematics, personal navigation devices, smartphones with GPS applications, docking stations, and other technology areas.
We set up technical calls and developed an ongoing dialogue with a number of groups. We even extended our reach to European companies. But disappointingly, each group declined to make an offer. We realized IP licensing groups didn’t see the value we saw in Evans’ patents. After two years, we regretfully reported to Evans that our brokering efforts were fruitless.
The Last Resort: Lawsuits
Having exhausted every option to sell his GPS patents, we considered our final option—filing lawsuits to license his GPS patents. But lawsuits are expensive and Evans wanted no part of litigation due to his declining health and the wills-and-trust litigation that had left him physically and emotionally fatigued.
Despite the obstacles, we presented our plan to license his patents to companies in the locations-based services market. Though we’d been unsuccessful for two years, Evans put his faith in us and our plan. He assigned his patents to NovelPoint Tracking and we launched dozens of litigations to begin negotiations.
Litigation afforded us the opportunity to negotiate directly with companies. At the end of our five-year licensing campaign, Evans reaped the rewards of his then 30-year pursuit of GPS technology. More than 80 companies took a license to Evans’ GPS patents. In his 80s, Evans became a millionaire.
After a lifetime of working in industry, founding eight startups, and being the inventor on 18 patents, it was by taking the risk to finance his own patented inventions and filing lawsuits that Evans found his success.
With the money earned through patent licensing, Evans replenished his retirement funds, paid for much-needed healthcare for himself and his wife, and invested in his kids’ and grandkids’ businesses.
Today, Evans has newfound vibrancy. He is a motivational speaker, the author of six books and is working on six more.
Despite the success, Evans’ patent and our litigation efforts received harsh criticism. One critic nominated one of Evans’ patents for the “Stupid Patent of the Month.” The critic contended Evans’ patent “devolves into a wilderness of made-up words and technobabble . . .” and “includes fabricated phrases” that makes understanding its meaning an exercise in “cross-reference and guesswork.”
The critic continued: “Even worse, key terms in the claims . . . don’t even appear in the description of the purported invention, . . .” making it “very difficult, if not impossible, to understand what the claims mean and to guess how a court might interpret them.”
This critic noted none of NovelPoint Tracking’s litigations reached a decision on the merits of the claims and concluded that the patent was a “great example” of “how using fake terms can be used to obfuscate what the patent actually claims, and then used to claim infringement” for something other than the invention.
I’d like to respond to that. When Evans filed the patent applications on his GPS innovations, he didn’t use “fake terms” to “obfuscate what the patent actually claims.” He was thankful to work with a patent agent who accepted delayed payments and relied on him to draft the technical language of his patent applications, to protect the innovations he sacrificed to develop.
Evans never “gam[ed]” the system. When he used his family’s retirement funds to finance his patent filings, he believed that after spending two decades on research, financing his lab, and working late nights to develop his prototype, he made an advancement in GPS technology that was worth the sacrifice to patent.
When Evans developed his prototype that could convert latitudinal and longitudinal coordinates and automatically recognize street intersections, this was a breakthrough in location-based technology for which Evans should receive praise.
If the critic reads Evans’ patent and, contrary to foundational patent law principles, believes it’s limited to what’s described in the “Background of the Invention” regarding automatic location and collision notification, and is further unable to interpret patent claims that had been approved and issued by the USPTO, one must question whether that is a problem with Evans’ patent or the critic’s competency.
Regarding NovelPoint Tracking’s litigations, the critic surmised we were “gaming” the system by intentionally avoiding a decision on the merits and settling for “nuisance value.”
If you believe that, then consider this: when a patent owner faces District Court invalidity-rates greater than 90% in some years and success rates as low as 9% to 14% to reach a judgment on the merits, is a license that’s priced to promote settlement a nefarious practice that takes advantage of the system or a reasonable business decision that takes into account risks that staggeringly disfavor patent owners?
In the end, we licensed Evans’ patents in a manner that honored his wishes to avoid his involvement in litigation. I can’t fault the critic for her opinion, because she was unaware. I hope this article sheds light and facilitates greater understanding.
Evans’ GPS patents aren’t stupid. His 20 years of research to develop GPS technology wasn’t stupid. His sacrifice to delve into his retirement funds to finance his patents wasn’t stupid. And successfully licensing his patents as a last resort after 12 years of attempted IP promotion and brokering wasn’t an example of gaming the system.
It’s honorable. It’s a story worth telling. It’s a story of an American who believed in himself and his dreams and was willing to put it all on the line.
The next time you see a patent lawsuit listed on a docket report, I hope you remember this story.