A Loss of Confidence in the Patent System

It is the one-year anniversary of a provisional patent application that I filed. Today is the last day that I can file my patent application and draw upon the priority filing date of my provisional patent application. Even though my patent application is complete and I am prepared to convert my provisional patent application into a full patent application, I have made the difficult and maddening decision not to do so, given the current landscape of the U.S. patent system.

I am an inventor and have commercialized every invention I have patented. This invention is something that would be very relevant to the emerging market of virtual reality (“VR”) which is up and coming, popular in the media, and receiving investments from angels to large corporations who are setting up funds to drive development. VR is also at its infancy and I believe my invention could have a significant transformative impact in developing and growing the overall ecosystem for VR. (For naysayers out there, I invented and commercialized a glove controller for video games in the 90’s – I know the gaming and VR space better than most.) Yet despite my belief that my invention would positively impact an industry, I have come to the dejected realization that our patent system does little to protect anyone who does not have millions in the bank to defend their invention.

Over the past several months, I have attended numerous patent conferences in the Bay Area. (I thank the local universities and institutions for hosting these educational and informative events.) At these meetings, there is an inherit belief that nothing significant is wrong with the system. The topics of subject matter eligibility, how the USPTO and inventors can work to develop stronger claim language, and charts showing that patent filings are up ignores the issue facing inventors that filing for a patent is no longer just a risk, but it could likely be a liability.

Previously, someone would file a patent and have a rough idea of what to expect for costs. Depending on filing fees, attorney costs, and how complicated the subject matter a patent would cost between $10K-$20K and if you were granted your patent you would have your prescribed maintenance fees. The bargained for exchange of disclosing your invention, at this cost, made sense – it was a reasonable risk/reward for an inventor. Step ahead to where we are now and look at how this has changed. Not only do you have the aforementioned costs, but now you also have the potential costs for an IPR if your patent is on point and valuable. Combine the potential costs of an IPR with the reduced likelihood of being awarded a patent (see Alice decisions, Gene Quinn’s article of an MRI machine being an abstract idea, and others) and you start to see a picture that: in applying for a patent you publicly disclose your invention; a patent is becoming harder to obtain with the arguments from the PTO becoming more arbitrary; and the costs to defend and enforce a patent, even if you do not pursue someone for patent infringement, are getting higher.

So why would someone now choose to publicly disclose their invention if the likelihood of being awarded a patent is decreasing and the potential costs are increasing? In this inventor’s eyes, they won’t and I won’t, at least not without a lot of money set aside as a defense fund. That is why my decision today is difficult and why I have chosen to write about this. I have believed in our patent system, as my father did and grandfather does, but I cannot overcome the concern that given the current landscape, I am better keeping my knowledge in my head rather than sharing it with the world.

Our system is no longer promoting the progress of science and useful arts as it is Constitutionally required to do. Inventions are not secure when knock-offs can free flow into our borders (a $300K

challenge at the ITC is not an option for individuals or small businesses) or when an invention, defined in the form of a U.S. Patent, can be stripped away because a 3rd party challenged the protections afforded by the U.S. government. The bargained for exchange is broken.

To any and all attorneys reading this, consider your legal obligations or duty to disclose to your clients that even if your client is awarded a patent, it can be challenged and that defending this challenge costs on average $300K. Long gone is the simple explanation “we don’t know if you will be awarded a patent.” How many small business would file for patent protection once they understand this? If this notice is given and small entity filings plummet, would we better understand how changes in our patent laws are no longer promoting?

What we are experiencing is not a blip or a trend. Our patent system has been gutted by those with deep enough pockets to lobby and steal (which is what efficient infringement really is). I maintain that there are significant and real Constitutional challenges as our system does not “secure” (a patent defines the scope of the invention). The system is no longer promoting the progress of science and useful art when defined machines are labeled as “abstract.” Exclusive rights are a myth when a court can award a reasonable royalty fee rather than enforcing an exclusive right to practice. The argument of disclosing an invention for the betterment of society has changed and it is incumbent on anyone reading this to speak up and protect what has driven the U.S. economy and the American Dream for generations.