Patent trolls are not real---PTAB's justification for rejection is based on a fictional character---prefer first-person analysis

I was told that elected officials count on—in fact, they need—constituent input to be effective legislators. After my patents were unjustly cancelled at the Patent Trial and Appeal Board (PTAB), I started the journey to do this very thing.

Since January of 2022, I have visited Congress and the Senate two dozen times. I have visited over 200 offices telling my story and advocating for the “little” inventors, like me.

Throughout my journey, I have learned so much about how legislation works and how important it is to share my story through this process. I have also learned that both sides of the story need to be shared and heard as well. This is imperative to be effective in writing legislation. It is important that elected officials listen to and look at the big picture as they write the law.

Finding the Elusive Patent Trolls

I am sitting here in the early morning writing this article prior to my day starting here in DC. I have seven meetings today, before I depart back home for Colorado. There is new legislation in both the Senate and the House that was dropped two weeks ago. My objective was to come to DC to discuss this new legislation and how it affects small inventors like me. Whenever I am in DC, I also like to ask a lot of questions and expand my knowledge of patent law. This helps me understand why past laws were put in place, how we got to where we are today, and how I can productively be a part of the collective fix.

Concerning the PTAB, the administrative tribunal that cancelled my patents, I often focus most on this part of the system because it not only destroyed my business and my livelihood, but it continues to do so for thousands of other inventors.

In 2011, the PTAB was put in place as a faster, cheaper, alternative to district court. When you say that out loud it has a nice ring to it, doesn’t it? Well, it wasn’t nice. I didn’t have a choice about using this “alternative” court; it was my infringer who had the choice. This “alternative” cost me over $500,000 to defend the validity of my patents. Since 2011, this tribunal has found 84% of the strong, commercial successful patents it fully adjudicates “unpatentable”.

So, as I walk the halls and tell my story here in DC, I always ask the question, “why can’t we get rid of the PTAB?” One of the top three responses is “because the PTAB protects businesses from patent trolls.”

Will the Real Patent Trolls Please Stand Up?

The problem is, whether or not we really need the PTAB to protect businesses from patent trolls, the PTAB is also hurting inventors like me. The PTAB is like a big tornado that just sweeps us ALL in, and out comes 16% of us with a “ticket” to go back to district court. But wait—in some cases, even after a PTAB “win” we get another ticket back to the PTAB, and then another and another…

trolls

Yesterday it dawned on me—I thought, gosh, who are all these “trolls” out there? Where is the list of them, who are they, why are they doing this? They are the ones to blame for the PTAB being set up, right? Let’s get to the bottom of this and maybe we can weed out the “trolls” and find a creative solution to keep them at bay while getting inventors like me a fair process again.

Being the inquisitive person I am, I started my journey just yesterday of asking this question to our elected officials and their staff: “Can you please show me the data, the names of the ‘patent trolls’ that are abusing our system and hurting small businesses?” I figured everyone would have this information, right? It is what drastically changed our law.

As I embarked on my journey to ask this simple question, I have been answered with a lot of confusing faces and a standard response of, “I need to get back to you on this.”

Ironically, I was heading to a meeting in the Senate and ran into someone I know walking in the halls. I felt it necessary to ask my question to this person because, if anyone was going to have this information, it was going to be THIS person!

The response to my question was, “Hmm, you mean NPEs, right?”

I said “no, patent trolls. The ones who are hurting businesses and who provoked the PTAB to come into existence.”

The person corrected themselves and said, “I guess you’re right; I apologize an NPE isn’t always a troll”.

I said, “Yes, I know an NPE isn’t a troll, so how do YOU know when an NPE is a troll? I am looking for that particular list because this is why the PTAB is in place, right?”

The response was, “No one has ever asked for this information before; I am not sure if we have it. I will have to get back to you.”

Is Our Legislation Based on a Fictional Character?

I believe in life that everything happens for a reason. My exchange yesterday with this person was totally deflating, yet incredibly insightful. The America Invents Act (AIA) was created and passed on the idea that our patent system was being abused by “patent trolls”.

Did anyone in 2011 ask for the data, the list of trolls? This list should be somewhere, right? This list, these trolls, have drastically changed the course of patent law; they are the reason we are here today. Who are they?

Will the real patent troll please stand up?

When your entire life is taken away like mine was, you fight, you ask questions, and you insist on something fair.

While my “investigation” to find out who the trolls are has just begun, I am feeling really concerned by the initial responses I have received. What if our patent system was changed based solely on a fictional character?

Is all our law based on “characters” and “ideas”?

My hunt to find this list of trolls continues. If anyone has any information on the top 20 “trolls” in the patent world, I would love to know about them. In the meantime, I do know firsthand of the inventors—the real inventors—who are losing their patents, their businesses, employees and faith in our patent system. I hear their stories, I know their names, and my heart goes out to every single one of them, because I know how they feel.