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We are Gaining Momentum - Help Defeat the Innovation Act

Hello Friends,

I want to update you on the fight for inventors’ rights. I was in Washington DC last week with Paul Morinville, and am back again this week. For anyone reading this who is not already aware of why the Innovation Act, H.R.9 is fatal to inventors and innovation, click the “Papers” tab above and read the two short papers.

“Experts” said there was no chance to keep the House from passing the Innovation Act. It passed overwhelmingly last time. The vast majority of those who voted for it last time will vote for it again, we were told. “Don’t waste your time in the House, start working on the Senate.” Well, inventors like to forge their own paths, and we decided to forge ours right through the House.

Now, after a lot of meetings, things are changing. Just like last year in the Senate, many in the House were not even aware of our side before our meeting. A shift is starting to occur, and a lot of folks are now seeing the House as the battleground.

A big part of this is your help in calling and emailing your Representatives. I really need you to keep doing this. Another thing you can do is call the local office of your Representative and try to get a personal meeting when he or she is in town. You can find your Representative here: http://www.house.gov/representatives/find/

Originally, our plan was to somehow keep the Innovation Act from passing, and then work toward rolling back some of the bad previous legislation that is harming inventors right now. A good example is the Post Grant Opposition (PGO) procedures from the America Invents Act of 2011 that are now invalidating 75% of the patents they are directed at! We thought this effort could take years and face terrible odds, but something is happening right now that changes everything.

A bill is about to be introduced by the Senate – the Strong Patent Act. From what I have seen so far, this bill is actually good for us. Not surprisingly, this bill has a number of things in it that Paul and I have been pointing out as needed in our meetings with Congressmen this year and last.

Naysayers are already saying that it could never pass. Ignore them. All we need now to achieve what was previously considered impossible is simply to stand together and, in quantity, make our position known to our Representatives.

If we can definitively kill the Innovation Act in the house, we have the best shot at starting to roll back the negative changes from recent years. If we barely win in the House, or worse, we will be in a weak position.

This is history in the making. Be a part of it! Call and email your Representative. Set up a local meeting with him or her. Then let me know what happened. Whether your Rep is an ally or opponent, let me know – Paul and I are keeping track. If you are going to DC, we may give you access to the database to assist in the fight.

If you still have doubts, consider that a Republican hopeful for president, Carly Fiorina, former CEO of Hewlett Packard, is totally on our side and speaking at a hearing in DC tomorrow. Rick Santorum, who was a front-runner for president last time around, has written a couple of articles that totally back our side. Others are ready to lean our way – help them.

Our momentum is growing. We can make ground-breaking gains right now. Be a part of this. Make your position known to your Representative, and forward this information to anyone you know that cares about the future of this great nation. Thank you.

Best,

Randy Landreneau, Founder
Independent Inventors of America


The Innovation Act is Fatal to Inventors and Completely Unnecessary - 2/16/2015

There has not been an “Explosion” in Patent Litigation

The claim that there has been an “explosion” of patent litigation in recent years is simply not true. In 2014, the number of litigants in US patent suits dropped to the lowest level since 2009.[1] Any previous appearance of an increase in patent litigation is due to a procedural change from the America Invents Act of 2011, wherein similar infringers that used to be able to be sued in one case now have to be sued individually. When you compare the actual number of suits to the number of patents issued, a much higher percentage of litigation occurred in the 1800s than now.

Loser-Pay Greatly Harms Inventors and is Not Needed

The claim is that Loser-Pay is needed to stop an allegedly large amount of frivolous litigation. The truth is that frivolous litigation is no longer occurring without recourse.

In the past, it was difficult for a judge to award attorney fees to the prevailing party in a frivolous case. A case had to be “exceptional,” and they were very rarely found to be so. This has changed significantly with the Supreme Court decisions in the Octane Fitness and Highmark cases. “Exceptional,” in patent litigation, is now defined as a case that “…stands out from others with respect to the substantive strength of a party’s litigating position (considering both the governing law and the facts of the case) or the unreasonable manner in which the case was litigated.” Now, it is very easy for a judge to award fees in a frivolous case.[2] In the 8 months following the Octane Fitness decision, there were 40 district court decisions where attorney fees were awarded to the prevailing party.[3]

Fee shifting is now occurring where it is needed, and bringing a frivolous patent litigation case now is very dangerous to the party bringing it. But the Innovation Act includes Loser-Pay language that makes the inventor guilty until proven innocent. A liability of $1,000,000 or more from trying to defend one’s patent will stop the vast majority of inventors from being able to defend their patents from theft.

Loser-Pay will Stop Investment in Patent Related Small Businesses

The Innovation Act will make investors in a patent related business personally liable for Loser-Pay fees if the patent holder does not prevail in the defense of the patent. This liability could easily be over $1,000,000. This greatly changes the risk-reward scenario, and will likely scare away the vast majority of investors. Further, if an investor does not have greater than a 50% interest in the patent, the inventor could defend the patent without the consent of the investor, still making the investor personally liable. This provision will eliminate many potential future patent related startups in America.

The “Patent Troll” Narrative is Greatly Biased

An inventor who has a patent being infringed and does not have the financial resources to defend it may choose to sell the patent to a Non Practicing Entitity (NPE) that can defend it. Because NPEs are able to defend patents that are being infringed, a tremendous effort has been made by large corporations to paint them as villains. The term “patent troll” was specifically created for use in making a defender of a patent look bad.

While supporters of patent “reform” claim that the target is the bad actor, not the legitimate patent holder, this has been proven to be false. The author attended a luncheon in Washington DC last year where lobbyist supporters of patent “reform” were speaking. One of the speakers said that Eli Whitney (inventor of the cotton gin) was the first “patent troll.” Eli Whitney was nothing more than an independent inventor who tried to defend his valuable invention that was being ripped off. Attorneys for a party being sued for infringement will often try to make the opposing party look bad, and the term “patent troll” has been part of a huge public relations campaign to pave the way for legislation that will make it much harder for a legitimate patent holder to defend his property.

The Alleged Damage from “Patent Trolls” Is Highly Questionable and Unverifiable

A common number thrown around regarding how much alleged “patent trolls” cost American businesses is $29 billion. This number is based on private, unverifiable data from entities that have a vested interest in the “patent troll” narrative. But more important is the fact the majority of the number, whether it is $29B or much less, is voluntary and court ordered settlements by those found to be infringing patents. Being able to successfully defend one’s intellectual property from theft is one of the most basic rights of an American.

The Innovaton Act Expands “Death Squads Killing Patent Rights”

Prior to the passage of the America Invents Act in 2011, the “Junk Patent” narrative alleged that way too many patents of dubious value were being allowed. Proponents of the “Junk Patent” narrative pointed to a few examples of patents that should not have been issued. Fair enough, there have been a few issued, but they have been inconsequential – if a junk patent is litigated, the case will fail. But the America Invents Act created new ways to invalidate issued patents to fight this alleged problem, called Post Grant Opposition Procedures (PGOs). Now, 75% of patents that these procedures are directed at are invalidated. Former Chief Justice Randall Rader referred to this as “death squads killing patent rights.”

This rate of patent invalidation is way beyond anything that makes sense.  But rather than curtailing these procedures in any way, the Innovation Act, H.R.9, actually expands their use. Under current law, a Post Grant Review (one of the new PGOs) prohibits the petitioner from later arguing “any ground that the petitioner raised or reasonably could have raised during the initial post-grant review.” H.R.9 strikes “or reasonably could have raised.” This will allow a petitioner to effectively daisy chain Post Grant Reviews filing a PGR under one ground while holding back other grounds until the first PGR is completed. If they do not get the result they want, they can file another PGR under the grounds they held back. This can be used to deplete an inventor’s funds and render him defenseless.

Summary

The Innovation Act, H.R.9, will greatly harm independent inventors and patent related small business formation in America. The reasons for this legislation are unfounded. This bill and future efforts to weaken the American Patent System in the name of patent “reform” need to be stopped.


Stop the Fatal Innovation Act Now - 2/12/2015

Hello Friends,

In December of 2013, the US House passed the Innovation Act with hardly a discussion. If we hadn’t been able to stop it in the Senate, you would now be in a more anti-inventor environment than has ever existed in America. Well, the Innovation Act is back in the House.

With “Loser Pays,” trying to defend your patent could make you liable for the infringer’s legal costs if you do not prevail. Do you have an extra $1,000,000 or more available for this? Could you defend a patent with this kind of liability? How about any investors working with you? They will be personally liable. This will drastically reduce investment in patent related startups.

If you’ve kept up with my earlier emails, you know that the Post Grant Opposition (PGO) procedures that were created by the America Invents Act are now invalidating 75% of the patents they are directed at. As shocking as this is, rather than curtailing them in any way, the Innovation Act expands their use!

“Enhanced Pleadings” and “Limiting Discovery” require the patent holder defending a patent to spend more money up front and operate with less information than is needed. These weigh heavily against the patent holder’s ability to defend a patent.

There’s more, and all of it hurts the independent inventor. This legislation is fatal to innovation in America. The good news is that you are hearing about it before it has been passed, and there is still time to stop it.

Next week, Representatives will be in their home districts rather than in Washington DC. This is the time to visit them and get them to see our position. Honestly, many of them have been bombarded with “patent troll” propaganda and haven’t heard any of our message. You can inform them and help stop this tragedy from happening.

If you can’t visit them, please call and email them. When you email them, it will help if you include a great document that Paul Morinville of USInventor.com is handing out in DC right now. You can read and download it here: http://usinventor.org/assets/Googled_-_HR9_V2.pdf. If you visit your Representatives offices, I encourage you to take this document with you – it really hits hard at what has been happening in DC and makes the right impact. It will also help Paul and I get into more offices when we are in DC.

Inventors from coast to coast are getting this email. We are all in this battle together, and we can make the difference. Let’s not let this legislation see the light of day. Call and email your Representatives, and visit them when they are in your state next week. Do this and we will show that the American independent inventor cannot be trampled!

Best,

Randy Landreneau, Founder

Independent Inventors of America

www.IndependentInventorsOfAmerica.org




Read and Sign Our Petition to Preserve Inventor Rights