First we had the world’s best patent system and American ingenuity was the envy of the world.
Next, we let the best Congress money can buy steal patent fees to cripple the PTO, and made the patent laws so complex they became a rich man’s sport designed to protect only big business from new startups and innovators.
However, some inventors still used the patent system to advantage so the best Congress money can buy, to better protect big business and stifle small inventors, passed the Anti-Inventor-Act of 2011 (misnamed the AIA or America Invents Act) designed to prevent and kill patents, which should more properly be called the America Stops Inventing Act or ASIA since that is who it benefits. [see the 1st and 4th post at http://www.burdlaw.com/blog/?m=201109 where "I warned about this"]
Since patent assertion was now made a rich man’s sport, small and medium sized inventors turned to Patent Assertion Entities that have the financial clout to pursue patent litigation by aggregating enough patents to make it worthwhile. Big companies (especially importers that do no inventing and want to sell on price alone) that want to be able to ignore patents and just steal inventions like people steal copyrighted material on the Internet – have been targeted by these PAEs and don’t like it. Some of the PAEs are, in fact, bullies that intimidate with suits designed to extract settlements. It takes a bully to fight a bully sometimes. Of course, Amazon or eBay or Walmart don’t think of themselves as “bullies”, but any inventor who has tried to stop them knows otherwise.
Not surprising! When Congress screws up the patent system, which Congress really does not understand anyway, this sort of mess is inevitable. Now, the best Congress money can buy, is being asked by the patent infringers to stop all the “low quality claims”, “frivolous litigation”, “abusive litigation”, “questionable business method patents” or whatever other terminology marginalizes real inventors and in essence just means “we are stealing your inventions and we don’t want to pay”. The White House is duped into following this, as when it comes to Congress and the White House “money sails and justice fails”. After all, it takes money to buy negative TV campaign ads to get re-elected and that is the real priority. So we see the Asian goods emporiums like Amazon, Dell, eBay, Google, Kroger, Eddie Bauer, J. Crew, Macy’s, Safeway, Wal-Mart. Note there is not an inventive company among them! They are patent thieves who get new ideas by just copying what real inventors create. Again, they don’t do research except to see what sells and what ads work best, so they need to steal patented inventions and they don’t want to pay those who do invent, as paying inventors reduces infringer’s profits.
What is the solution to this mess? We had it back in 1793-1836. A patent registration system that quickly issues patents without the examination. However, as was realized by 1836 someone needs to guard against issuance of patents on “inventions” that do not warrant a patent. That is why the PTO was established, to do it impartially. If we had only added a patent office that conducts examination, determines validity/invalidity, and determines infringement/non-infringement so that we had some tribunal that knew what it’s looking at and what it’s doing. The average patent examiner could do the examination in a day and determine validity or invalidity in a day and the infringement analysis in probably an hour. We could have a fair, objective and reliable answer in less than a week and everyone could move on with certainty and small inventors and big inventors alike could be confident they would get fair treatment.
Of course, we would need to guard against politicians corrupting the PTO. It is very disappointing when IBM’s patent strategist is appointed as the Director of the PTO and then immediately sets about lobbying for and then implementing the Anti-Inventor Act of 2011. It makes small inventors wonder if there is any way to keep big business from stacking the deck against them. For now, the answering is a clear NO, there is NO such way.