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We Can Shut Down the Innovation Act - 3/10/15

Hello Friends,

A lot is happening right now. The information Paul Morinville and I are discussing and dropping off throughout the US House, and that you are calling your Representatives about, is causing a stir. Apparently, a little truth can extinguish a lot of lies. That is why a few crazy inventors can make a difference against ridiculous odds.

You want to talk David and Goliath? Last year, according to the Intellectual Asset Management, over a hundred million dollars was spent by other side trying to get this legislation passed. One hundred million dollars! But the Innovation Act has not sailed through the House like it did last time.

The fact is that there is growing opposition to it. The real question is can we get enough opposition fast enough to stop its passage.

We aren’t the only ones fighting. I think we were January of last year, but not now. I went to the Inventing America Conference in DC last week. There were various speakers and discussions. The highlight was the speech by Carly Fiorina, former CEO of Hewlett Packard, Presidential hopeful and huge ally of ours. Innovation Alliance put on the conference, and I even saw a late-night TV commercial from them while I was in DC.

These efforts of our allies are helping, but the sheer size of the media and lobbying effort of our opponents is overwhelming. However, one thing really cuts through the noise and makes a difference – when real inventors explain why this legislation will hurt them and American innovation.

You carry more weight than some lobbyist who is getting paid to say what some corporation wants. When you contact your Representative, you make a difference. As an inventor, you represent the best of America, and the risk that they could be about to really harm America starts to become real to them.

What we need most right now is to stop the Innovation Act in the House. I mentioned in my last email that there is a bill that will be introduced in the Senate that is actually good for us – it curtails some of the bad parts of the America Invents Act. But if we don’t stop the Innovation Act in the House, the other bill may go nowhere, and we risk the loss of our rights as inventors.

We have momentum. We are turning Representatives our way. The thing that will help us the most now is you calling your Representative. You can find your Representative at http://www.house.gov/representatives/find/ . Use information from our two short papers to make your point (see “Papers” tab above). When you talk to them, get them to let you email these documents.

Right now, we have a better shot than ever to shut down the effort to take away our rights as independent inventors.  But to really shut our opponents down, we have to stop the Innovation Act in the House. If we do, we send a message that will help us roll back some of the negative parts of previous legislation.

This is important. I need your help. America needs you. Please make the call. Let’s win this.

Best,

Randy Landreneau, Founder


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.




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