Lessons from an Independent Female Inventor: Today’s Patent Laws Preclude ‘SUCCESS’

By Paula Murgia
November 18, 2019

“At the USPTO public hearings on the SUCCESS Act, we told the truth, detailing the emotional and financial pain that accompanies having one’s intellectual property invalidated.  But our comments were all but ignored in the recently published report.”

https://depositphotos.com/13250779/stock-photo-success-compass-conceptual-image.htmlIt has been one year since my software patent was invalidated in the U.S. District Court for the Southern District of New York.  Now, this intellectual property is considered worthless and my dream of paying off extensive student loans with the proceeds from patent licensing fees are in the past. The irony being that if it were not for these extensive student loans, this invention, most likely, would not have come to into being.

My patent No. 6,769,915, issued in 2003, was invalidated under Section 101 and struck down on appeal. The patent covers “a user-interactive behavior modification system” that is in competition with technology pursued by companies that manufacture and market digital health and wellness trackers.

The rules that existed when I applied for this software patent in 2000 no longer guarantee myself and hundreds of other independent inventors the right to collect patent licensing fees. This right was granted to all with The Patent Act of 1790. Yet, over the last 15 years, the U.S. patent laws have been changed drastically by extremely well-financed lobbyists on behalf of the U.S. Patent and Trademark Office’s (USPTO’s) largest customers— global corporations, including the Big Tech industry. This has relieved Apple, Google, Facebook, etc. from the necessity of having to pay independent inventors software licensing fees. With this shift in intellectual property laws, the once small startups of Silicon Valley have become the large monopolies they are now.

Here are the lessons I have learned while adjusting to this new reality.

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Lesson 1: Capital rules, to the detriment of the people

Following my invalidation, I supplemented what little action I could take, in the form of filing an appeal with the U.S. Court of Appeals for the Federal Circuit, by joining up with an inspirational group of independent inventors (www.USinventor.org). This passionate group is determined to educate the public on the recent actions in Congress, the Supreme Court, and ultimately at the USPTO, that have made inventing no longer a viable option for the people.

The state is doing the bidding of large corporations to the detriment of the people.

It was with determination to speak our conscience that we testified collectively in several locations across the United States this past spring.  At these USPTO public hearings, structured to collect testimony for a report mandated by the Study of Underrepresented Classes Chasing Engineering and Science Success Act of 2018 (SUCCESS Act), we told the truth, detailing the emotional and financial pain that accompanies having one’s intellectual property invalidated.  Our comments were all but ignored in the recently published report, relegated to an appendix and excluded from the legislative recommendation published on November 1.

Lesson 2: The current system perpetuates misogyny

The Success Act blatantly encourages our highest “at risk” U.S. populations (women, minorities and veterans) to invent, patent and seek commercialization. By doing so, the U.S. Government is setting a trap to steal their intellectual property, ideas which once provided these same populations a chance to realize the American Dream.

For women of all races and creeds, this theft of livelihood is not new.

The labor of women has historically been disconnected from capital since the end of the Feudal Class system and the beginning of capitalism. During this transformative era the rise in the numbers of women persecuted neatly correlates to the decline of the domestic economy, “the rise of capitalism, the male takeover of traditionally female professions, the tightening moral and religious strictures, and the peasant rebellions.” (Mary Sharratt, Witch Persecutions, Women, and Social Change: Germany: 1560 – 1660). The witch hunts of this time period persecuted old, poor and lower class women. By the 16th century, the only opportunities for women to earn a living were in menial servant and labor occupations.

The parallel transition that can be made in allegory today is our detrimental transition from a self-sustaining (local farms and local manufacturing), democratic society to a globalized, Neo-liberal, misogynist, oligarchic society. While the gap between the rich and the poor widens each day, those in power pull the levers of culture to promote distorted feminist images from Reality TV. As Rabah Omar puts it in New Politics, that of the “empowered” woman leaning-in and striving for high net worth, who contributes to sexism and misogyny by replacing “collective justice for self-help and solidarity for self-reliance.”

This image mightily contradicts the independent minority, female and veteran inventors I bonded with in testimony at USPTO headquarters in Alexandria, Virginia, this past spring. Instead, it is the picture of the ideal corporatized female inventor; inventors who work for and assign their rights to corporations or government entities, showcased in the USPTO’s recently published SUCCESS Act report for President Trump by his political appointees.

Image Source: Deposit Photos
Image ID: 13250779
Copyright: donscarpo 

The Author

Paula Murgia

Paula Murgia is an emerging technology strategist with expertise strengthening global consumer brands through digital innovation, service design and user-centeric design thinking. She has deep experience identifying technology trends, forecasting impact and developing strategic concepts to drive revenue and meet business goals.

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 16 Comments comments. Join the discussion.

  1. orbital November 18, 2019 7:34 am

    “the U.S. patent laws have been changed drastically by extremely well-financed lobbyists on behalf of the U.S. Patent and Trademark Office’s (USPTO’s) largest customers— global corporations, including the Big Tech industry.”

    Well not really, it’s more the Supreme Court intervention in Alice that had an effect.

    Those giants can still deal with litigation, while our small companies can’t.

  2. AAA JJ November 18, 2019 8:09 am

    While I sympathize with you over the injustice you have suffered, I don’t think it was done to you specifically because you’re a woman. People and companies that are anti-patent are anti-patent, regardless of the sex of the inventor.

  3. angry dude November 18, 2019 9:32 am

    Welcome to the club of broke and very angry American inventors !

    It does not matter if your patent is software or hardware, if you are female or male, if you are American born or a filthy immigrant
    US Patent System is very democratic in this regard – all you patents will be invalidated or somehow thrown away one way or another under the current anti-patent and anti-inventor regime

    Big Tech bought and sold all of DC political animals – Democrats or Republicans – does not matter

    What we have here is High Treason by all branches of US Government:

    Actively forcing American inventors to submit their inventions to communist China
    and to keep them secret from USPTO is HIGH TREASON !

    Where is Special Prosecutor ???

  4. Concerned November 18, 2019 9:33 am

    Orbital:

    I find the actions of the USPTO examiners highly suspect also and so have other professionals that have read my file wrapper.

    And in American Axle, the dissent found her colleagues’ actions very concerning, which a contributing attorney to this forum predicted (extremely disturbing).

    Ms. Murgia: I am sorry for your experience. I am currently going down your path.

  5. angry dude November 18, 2019 9:38 am

    orbital @1

    Dude,

    Get a clue !

    scotus, potus, congress, cafc, various district courts… starting in 2006 after Ebay

    To the morgue…

  6. Paul Morinville November 18, 2019 10:02 am

    orbital @1. Yes many of the changes were made by the Supreme Court. But they simply enacted into law what was proposed in Congress by big tech but could not pass. SCOTUS staff took their lead from conservative and libertarian societies like Cato and the Federalist Society, who were both antipatent and simply acting on big tech contributions. Scalia even used the undefined term “patent troll” in one of his decisions. They bought the koolaid served by big tech and big corps. Paula is exactly right.

    Paula is exactly right about the bait and switch that now passes for a patent system, and how it is especially harmful to women.

    The whole thing is a sham.

  7. Jason Lee November 18, 2019 5:03 pm

    “over the last 15 years, the U.S. patent laws have been changed drastically by extremely well-financed lobbyists on behalf of the U.S. Patent and Trademark Office’s (USPTO’s) largest customers— global corporations, including the Big Tech industry. This has relieved Apple, Google, Facebook, etc. from the necessity of having to pay independent inventors software licensing fees.”

    MY QUESTION IS HOW MANY LONG AND HOW MANY TIME DO WE HAVE TO KEEP TELLING THE COURTS THAT SILICON VALLEY HAVE BOUGHT UP THE PATENT SYSTEM, SMALL INVENTORS LIKE MYSELF HAVE GIVEN UP AND I HAVE FILED FOR PATENTS OVER SEAS FAANG IS MAKING TRILLIONS OF $$$$$ WHILE THEY AVOID PAYING THE INVENTORS FOR THE PATENTS THEY ARE STEALING. WHERE IS THE JUSTICE??

  8. angry dude November 18, 2019 8:31 pm

    Jason Lee @7

    Lady Justice is right where she used to be – blindfolded as before, but this time weighing bundles of $$$ on her scales…

    To the morgue…

  9. angry dude November 18, 2019 8:45 pm

    high treason
    US/?h?? ?tri·z?n/

    “the crime of making war against the government of your country, or attempting to help an enemy take control of your country”

    “the committing of a crime that seriously threatens the safety of your country”

    In this case some folks in all three branches of government colluded with the wealthiest multinational corporations that have no allegiance to the nation to help communist China to take control of our country

    Forcing American inventors (including small to midsize R&D intensive companies) to disclose their inventions to communist China and to keep them secret from USPTO is High Treason

  10. anon November 19, 2019 1:33 pm

    Back in 1999, I remember playing a game. It was a dating advice game, and a female character asked you a series of personal questions and would react as you answered them with clear facial cues. At the end she’d tell you what to improve to attract females. Think about everything needed to make that work, then read the claims of the ‘915 patent. The game was nothing big so I wouldn’t be able to remember the name, but that’s beside my point as I’m not trying to determine novelty or not. The problem I see is that the independent claim is so broad it covers something humans do naturally (seek advice through feedback – and hence why it also covers the game I mentioned) performed through what appears to be a computer. That broadness was probably not your intention and I don’t think that you even considered dating games as the scope of your invention, but the patent does revolve around claim language. I have no clue what the opinion of the court was but I bet it revolved around that last couple limitations in claim 1. It does seem the system failed the inventor by not catching these problems back in 2004, before the patent was issued, but to me that says the system was broken back then, not today.

  11. djs November 19, 2019 1:40 pm

    Author: “My patent No. 6,769,915, issued in 2003,…” Sorry I cannot sympathize with you because I don’t know what you are complaining about! The patent is about to expire…so, if by now, in the 16 years since the patent was issued, you did not properly monetize your patent to generate sufficient money to at least pay off your student debt, then why blame the patent Office, law, congress, the courts,…??

  12. Cryptnotic November 19, 2019 4:36 pm

    anon: According to the article, the patent was invalidated under 101, not 102 or 103. So, the decision was based on subject matter eligibility, not any newly-discovered prior art reference.

    Also, the patent here issued under circa 2003 understanding of 101, which considered the subject matter patentable. The inventor here is justifiably frustrated at her loss.

    New applicants claiming ineligible subject matter will receive 101 rejections, but they may be able to amend and claim some limited aspect of their inventions. Patentees like this one are completely out of luck.

  13. anon November 19, 2019 9:57 pm

    @Cryptnotic, read my comment again. I never said anything about it being invalid over 102 or 103, I even said “I’m not trying to determine novelty”. It was invalidated over section 101, under Alice I presume. Alice protects the public by invalidating abstract ideas, abstract ideas include basic human interactions, I simply said her patent is a basic human interaction and mentioned the game only as an example (i.e. that’s the danger of patenting an abstract idea, it would extend or cover unrelated ideas).

    @djs Do you think whoever challenged the patent simply woke up one day and decided to invalidate a random patent? No, she was, in effect, trying to monetize from it according to the terms that were promised to her (20 years). It sucks not because of the current system, it sucks because the terms changed since the previous system was bad. The system *did* fail her, but in my opinion it failed her back when she got the patent.

    note: I also believe that the system is still broken since patents keep getting granted and then invalidated. I don’t question the invalidations, I question the granting.

  14. angry dude November 19, 2019 10:45 pm

    djs @11

    Dude, stfu ok ?

    She’s just collateral damage like Josh of bunch-of-balloons … wtf cares ?(although he won by sheer luck and $$$$$$$$ spent in litigation … for simple water balloon invention…)

    The real targets were dudes like me with fundamental inventions on the internals of smartphones – read ALGORITHMS.

    That’s why they destroyed US Patent System

    So guys like me just disappear from the face of the Earth

    Well, I’m still here, doing ok and angry as hell

    Restore injunctions to pre-EBay and I WILL RIP BIG TECH APART

    They won’t of course

    To the morgue

  15. djs November 20, 2019 2:01 pm

    anon @13: All I’m saying is look at the dates – the issue (or filing) date and the date the patent was invalidated: Issued in 2003 and invalidated in 2018. When did the attempt to invalidate the patent start? Most likely not till SME came into question. What was the inventor doing on the meantime? Licensing it? Doesn’t sound like it. Surely some money was made if it was licensed.

    Notwithstanding, corporations do “something similar” all the time. They secure patent(s) for the sole purpose to block competitors. All inventions, no matter their scope, don’t get productized and/or licensed. Granted that’s not “invalidating” the invention/patent, but it might as well be.

  16. angry dude November 20, 2019 5:50 pm

    djs @15

    Dude,

    Did I tell you to stfu ????

    Patent is strictly NEGATIVE RIGHT – the right to exclude others (designed like that by the Founding Fathers and for a very good reason)

    The inventor of a better improved mouse trap is not allowed to legally produce better mouse traps until patents on basic mousetrap (held by incumbent corporations) expire

    Is that too difficult to understand ????

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