I hope you are all doing well. If ever you need something to be proud of, consider that you are part of the the most important grass-roots movement of our time, the effort that has so far kept multinational corporations from destroying the heart of America – Independent Invention.
Perhaps you think I’m overstating our importance. If so, you should really take a look at what we represent. Nothing is more American than an individual using his or her intelligence and creativity to solve a problem with a novel concept that then becomes part of a successful enterprise and sometimes, a game-changing step forward for mankind.
Historically, it has been the individual, not the corporation, that has come up with real innovation. You would think that corporations, with all their resources, would be better positioned to innovate. But they, by necessity, have to protect what they already have. A friend who was once an engineer at Hewlett Packard told me that whenever someone there came up with something that was “too good,” it got shelved because it would take income away from already profitable product lines.
The individual is the key to innovation, and the reason that America has out-innovated the rest of the world from the beginning is that our Founders understood the importance of empowering the independent inventor with the rights to the intellectual property created by his or her mind. And they really did mean “his or her” – the Patent Act of 1790 described inventors as “he, she, or they.” Yes, women had all the rights of men when it came to critically important American innovation.
But didn’t other countries have patent systems? What they had were systems designed to benefit those in favor with the establishment and keep the powerful in power. Later, when it became obvious that America had created something revolutionary and the rest of the world was being left behind, other countries made efforts to make their patent systems more like ours. But they never really got there because their general philosophies were far from rugged individualism. Apparently, the aristocrat never really wants to empower those “below” him.
Another thing we have in America that the rest of the world lacks is a legal system that has allowed the independent inventor to get justice. There are two elements to this. In the rest of the world (or at least the vast majority of it), you can’t hire an attorney on contingency (his pay coming primarily from the eventual winnings). Being able to hire an attorney on contingency is the only way that most American inventors can afford to take an intellectual property thief to court.
Also, in the rest of the world, if you sue someone and don’t win, you owe the other person his or her legal costs, called “Loser Pays.” Could the typical inventor risk owing the infringer millions of dollars? Think your wife would be OK with that?
The fatal bills that we have so far kept from becoming law (H.R.9, The Innovation Act and S.1137, The Patent Act) would put Loser Pays in effect and, while not directly addressing the contingency arrangement, would make it infinitely harder to obtain contingency representation. Investors in patent-related innovation could become personally liable for millions if it became necessary to litigate against a patent infringer. For the independent inventor, his or her investors, and future American innovation, these bills are fatal.
If you’re thinking bills like this could never pass, The Innovation Act did pass the US House in a landslide in December of 2013. Paul Morinville and I sprinted to DC in January of 2014 and, with many face-to-face meetings, lots of emails and calls from all of you, and a little luck, helped get it side-tracked in the Senate. Of course, it all came back in 2015 and the fight was harder and longer, but we had a few more allies this time.
The good news is that with all that is going on in Washington right now, and with the ruckus we have stirred up on this issue, it is possible that these bills will not be able to be addressed this year. I will be watching closely along with our allies US Inventor and Innovation Alliance to see if things change.
I’ll be giving updates on this, as well as on some offensive efforts to take back some of what inventors have lost in past legislation. It is possible that we may get some help from the Supreme Court! Stay tuned, and keep inventing.
Randy Landreneau, Founder
Independent Inventors of America