China exercises tech dominance through exploiting PTAB

Inventors naturally solve problems that others have not. Tom Waugh had a successful business in Alabama, providing fittings and parts for utility poles and electrical systems. Utility poles must be strong and durable, especially tall ones with many lines. The metal utility poles that existed before Tom got involved required taking large sheets of metal and bending and welding them into poles. It worked but took a lot of time and money. Also, these poles had seams that were potential weak points.

Tom wondered if they could be cast in one piece by pouring molten metal into a rotating mold that would force the molten metal to the outside wall of the mold, where it would harden. Considering that the poles could be as long as 100 feet and weigh several tons, developing this into a workable invention wouldn’t be a simple project. There were also problems like the fact that the pole is wider at the bottom than at the top, so there would be a tendency for more metal to collect at the bottom of the pole.

To have the equipment needed to test and develop his invention, Tom had to go to Turkey. He succeeded. The video below shows some of the process. This technology could make a tall, seamless pole made of ductile iron in one minute. One minute!

Tom found a large utility corporation interested in licensing the technology – McWane, Inc. He entered into an agreement with them and proceeded to show them everything. But things didn’t go according to the agreement. Rather than pay Tom royalties, McWane decided to use the PTAB to invalidate Tom’s patent.

The Destruction Of The US Patent System

For any readers who aren’t up to speed on the destruction of the US Patent System, the PTAB is the Patent Trial and Appeal Board. This administrative court was created by a law that was lobbied into existence by Big Tech and a few other large corporations. Before the PTAB, patent infringement battles would take place in a real court (Article III) with a lifetime-appointed judge, a jury, and adequate due process. The inventor had a reasonable ability to win. Now, most infringement battles end up at the PTAB, where three government employees are called Administrative Patent Judges, there is no jury, and very limited due process. 84% of the time, the patent is effectively invalidated!

Denied Right To Defend Your Rights

A particular part of Tom’s story helps explain how unjust the PTAB is. There was a key point during the PTAB trial, where Tom’s attorney was asked an important question about the invention that he couldn’t answer. Tom realized that everything could hinge on this answer. The attorney was totally stuck, so Tom stood up and said, “I have the answer,” and the judge said, “NO, YOU CAN’T SAY ANYTHING!” Tom sat back down and watched his life’s work being taken from him.

Why doesn’t the inventor get to say anything in a PTAB trial? Would an inventor answering a question actually have any negative effect on the trial? How great is the injustice of not allowing him to speak when his livelihood is on the line? In a real court, Tom would have been able to testify and answer that key question. Which might have been the difference between winning and losing. Every inventor and patent-based startup should at least have access to actual justice, which is only afforded in real courts now.

Like many other inventors with hugely valuable patents, Tom’s patent was invalidated. McWane has now sold hundreds of millions of dollars worth of these seamless poles. Wherever you are, if you see a metal utility pole that is round and smooth, it is one of Tom’s.

If you’ve read my other articles, this is just another example of an inventor developing and patenting something truly valuable and then having a large entity use our broken US Patent system to take the invention without paying the inventor anything. This is as un-American as it gets.

The right of intellectual property ownership of any American, from any walk of life, was the revolutionary idea that the Founders of America had. It immediately made America very different than the rest of the world. It enabled America to lead the world in innovation, stay ahead of our adversaries, and become the place of the American Dream. This right has been almost entirely lost due to a bad law and bad Supreme Court Decisions. The result is a handful of corporate monopolies heading toward the eventual control of nearly everything, and China, rather than America, leading in 37 of 44 crucial technologies.

If we are to have any chance of achieving the kind of prosperity and security we’ve had in the past, we must restore this key cornerstone of America – effective patent rights for inventors and startups.