INVENTOR RIGHTS RESOLUTION
The time has come to restore patent protection for inventors and mitigate a generation of laws, regulations, and court decisions that have discouraged innovation by failing to secure to inventors the exclusive right to their discoveries. The undersigned individuals call on Congress to pass legislation to address these critical issues.
THE USPTO MUST NOT REVIEW AN ISSUED PATENT WITHOUT CONSENT OF THE INVENTOR
Patents that are infringed are often contested in the Patent Trial and Appeal Board (PTAB), which is an administrative tribunal within the USPTO, purported to be an alternative to traditional federal courts, and created by the 2011 America Invents Act. The PTAB has canceled claims in 84% of the 2,500 patents reviewed since 2011 and most inventors do not have a half a million dollars necessary to fund a legal defense. This has been devastating to inventors and small businesses that rely on patents to protect investments and build businesses. Participation in PTAB reviews should be voluntary at least while the patent is held by the original inventor. If PTAB reviews become a fair alternative to validity challenges in a traditional federal court, then inventors will participate voluntarily. Otherwise, patents that are believed to be invalid can be contested in a traditional federal court, which is how the U.S. patent system worked for our first 190 years.
INFRINGERS MUST NOT PROFIT BY UNAUTHORIZED USE OF A PATENTED INVENTION
Current law limits most inventors who win in court to only a “reasonable royalty”, which in many cases does not cover legal fees and is too little to serve as a deterrent against large corporations with deep pockets. Large corporations simply ignore patents, knowing that few inventors can afford the millions of dollars and many years required to enforce their patents in court. In the rare case that an inventor survives the legal gauntlet, the infringer usually is ordered to share only a small percentage of their profits with the inventor while keeping the rest for themselves. Without penalties infringing is much more profitable as a business strategy than inventing. To restore fairness and respect for patents, infringers that steal inventions should be required to pay back any and all profits from the unauthorized use of the invention. This is consistent with other forms of intellectual property including design patents, copyrights, and trademarks.
COURTS MUST PROHIBIT USE OF A PATENTED INVENTION WITHOUT PERMISSION
In the 2006 eBay decision, the Supreme Court held that in most circumstances a patent will NOT prevent an infringer from using the invention. For instance when a large corporation can produce the invention faster, cheaper, or in greater quantities, they are allowed to keep selling in perpetual violation of the patent. Thus the inventor has no say in who gets to use the invention and what they do with it. The inventor cannot determine the price, quality, brand, features, materials, factory, working conditions, or anything. The eBay decision should be overturned, and the court should issue an injunction ordering the infringer to stop using the invention until they have obtained a license negotiated in good faith with the inventor.