Several years ago some were bashing the patent system, decrying that ‘bad patents’ were issuing. Undoubtedly, some patents issued that should not have. That is to be expected. However, rarely are those patents ever of consequence because it takes millions to enforce them and those who obtain such patents if they have that kind of money surely would think twice about risking it on ‘bad’ patents. Also, recently the courts have taken a more aggressive stand against those who assert patents which subsequently are invalidated or are found not infringed and have awarded counter judgements and issued sanctions. That’s another reason why ‘bad’ patents are not enforced. Far more likely those patents simply sit in someone’s desk or adorn their walls and shelves collecting dust. No one wants to throw good money after bad and certainly does not want to open a bad faith can of worms.
But while those patents themselves are of no consequence, the problem is the frantically over hyped existence of such patents by some who were trolling for business to perform searches attempting to uncover prior art was used as pretense by large multinational infringers and their partners in crime to con law makers, the courts, past administrations and federal agencies into overreacting and barring the issuance and enforcement of the vast majority of other patents which truly were just. So all the hype about what they called ‘patent reform’ was really nothing more than a concerted Chinese style propaganda campaign to legalize theft of our inventions. It worked, so much so that according to our study the small entity share of issued patents and most probably filed applications has cratered to only about 10% of their historical shares, if not less and still falling.
There are many reasons why for us now the patent system is too expensive, slow, and hard. A patent attorney recently described to us how in a post issue admin review where he represented a patent holder the proceeding was the most contentious he had ever experienced in about 35 years of practice. Those proceedings to us are anything but unbiased. If attorneys are finding it so, it’s far worse for inventors who have no choice but to represent themselves pro se as we cannot afford the up to a million dollars just one such proceeding will cost us. An inventor described his experience in a post issue review and said while it took him 10 years fighting the PTO to get his patent he lost it in mere minutes in a post issue review. To him the outcome had already been determined before the process had begun. He spoke of how an employee of his largest competitor was now a “judge” at PTAB. Is it any great wonder why we are ground into dust there? That by itself explains why Judge Rader has described these proceedings as ‘death squads killing property rights’. Many regard those proceedings as shams.
Therefore the problem never was about patents that were issuing. Now more than ever the problem is the patents that are NOT issuing. These reproachful conditions and more explain why the inventor/small entity share of issued patents has so plummeted. Our patent system has been ‘reformed’ to death by large multinational infringers (thieves) and those they have conned, black mailed, or otherwise commandeered by propaganda…the doctrine of theft.