Inventors groups are rallying over the recent patent reform debate that favors big corporations and squash independent inventor rights. Pitting inventors against corporations like Apple, eBay, and in the 3D Printing world, Stratasys, is a losing proposition no matter where you fight it – in court, in the Patent & Trademark Office or in Congress. As independent inventors with 35+ patents and experience fighting Goliath(s) like IDEO and Palm Computing, here is why we won’t join the fight and why you don’t need to either.
Patent Reform Debate
We are not disagreeing with inventors groups patent reform debate arguments against the corporate lobbying efforts for Senator Grassley’s PATENT Act, S.1137 and recent court decisions like eBay v. MercExchange, LLC, 547 US 388. These reforms absolutely could reduce the collateral value of patents and “effectively eliminate the Exclusive Right” of a patent holder due to higher standards for injunctive relief. But, independent inventors have never had the upper hand before, so why whine about it now? Defending and enforcing patent rights is an expensive proposition, costing millions of dollars and taking years to complete. Even when you win you lose, just ask winning inventors like Patrick Racz (Smartflash, LLC v. Apple) or Robert & Dennis Kearns (Flash of Genius) – who lost time, relationships and businesses.
Giants Fight with Brute Force – Innovation is Your Strength
Lobbying Congress to lower the standards for injunctive relief is pointless, because most inventors cannot afford the bond even if the injunction were granted. When we successfully defended our patents against Palm & IDEO, we had absolutely no money to fight any kind of legal battle let alone post a bond for an injunction. We won by studying our adversary, learning their weaknesses and leveraging our creativity to attack those weak spots by waging a PR battle.
After getting many “David vs. Goliath” articles written in publications like Fortune Small Business, the press pressure brought a quick settlement. You are an inventor – innovative thinking is your livelihood. Instead of wasting money and time (which is money) engaging in the patent reform debate, use your inventiveness to your advantage against the brute force spending.
Giants are Blind – Fly Your Invention Under the Radar
Patent Reform created the Post Grant Opposition (PGO), opening your patent up to opposition challenges for nine months after issuance. This potentially forces the patent holder to defend the validity of the patent and adds inherent risk factors to investment valuations. But, patent reexaminations are a part of any patent infringement battle. Your patent is never really validated until it is tested. This is usually the key argument for a low investment valuation even without the PGO process. So why not try flying under their radar? If you truly believe in the validity of your idea and the patent (and you should if you spending money filing a patent), then build your product and your business without worrying about opposition and valuations. The business giants in your industry are likely to overlook or underestimate you and your patent so use this time and status for a sneak attack on their product/market share.
Giants are Slow – Fast Pivots & Furious Patenting
We always file provisional patents first. They are the independent inventors most valuable and least expensive tool when trying to fly under the radar. Provisionals can delay publishing the subject matter as much as 30 months after it is filed. It establishes the all-important first-to-file priority date while we explore the market potential of an idea. When faced with challenges, objections or criticisms, we have the flexibility to quickly pivot our idea (and the claims of our patent) to more profitable opportunities. We can also abandon it without having spent significant resources and time.
We use the provisional time frame to sell or license our ideas, seek investors or fully develop our product. We have found that when a company or investor calls for a legal opinion on a provisional patent, lawyers object less than with a fully filed one because they can see an opportunity to craft claims in their clients favor. With less content for any legal opinion of validity and valuation, the business potential of your idea gets the focus.
Fight the Fight You Can Win
Even though we prevailed in our infringement fight, we still lost. It sucked away energy, resources, and much needed profits. No independent inventor can realistically expect to outspend or out-maneuver the lobbying and legal tactics of large corporations. Avoiding the typical battle and changing the field is the only strategy. Analyze their weaknesses and out-innovate. Use your insignificance to your advantage to file furiously and pivot faster. We are spending our resources innovating and strategizing disruptive ways to use our inventions, so should you.
