Unreasonably high patent licensing hurdles are a “license to steal” –
In messages from Robert Kearns’ son Dennis received this week by IP Insider (now, IP CloseUp), it is apparent that the rift over his family’s two-decade invention battle with the Ford, Chrysler and other automobile manufacturers while officially resolved has not gone away.
I received this response from Dennis about what he had learned from his father’s experience:
“As long as courts continue to make injunctions on patents ‘hard to get’, where is the incentive for Automotive Infringers to stop? The industry standard continues ‘Take now, Pay later, maybe.’ I liken it to a rapist who when caught, agrees to pay the local hooker’s rates and call it even.”
When I asked Dennis to elaborate, he responded in an email:
“When we went to trial with Ford the most they had ever paid was 11 cents a unit for a license Judge Cohn ruled the only evidence we could put on was what a ‘willing buyer, willing seller’ would negotiate. My father was never a willing seller of a license.”
Kearns won one of the best known patent infringement cases against Ford Motor Company (1978–1990) and a case against Chrysler Corporation (1982–1992), reports Wikipedia, from which he netted about $30 million. He probably could have won more if he had settled, but he was out to make a point about invention theft.
Having invented and patented the intermittent windshield wiper mechanism, which was useful in light rain or mist, he attempted to interest the “Big Three” auto makers in licensing the technology. They took meetings with Kearns, rejected his proposal and proceeded to install intermittent wipers in their cars, beginning in 1969.
In 1976, Kearns’s son bought an electric circuit for a Mercedes-Benz intermittent wiper, reported the Washington Post in a 2005 obituary. Kearns took it apart, only to discover it was almost identical to what he had invented. He had a nervous breakdown soon after.
“Bob Kearns wanted to make and sell electronic windshield wiper systems,” continues Dennis Kearns. “Prof. White doesn’t seem to grasp that if all your customers steal your technology, who are you to sell to? Should you make it and store it on a shelf to be a manufacturer? Without injunctions the Auto Industry is happy to wait you out, drive you crazy, and maybe decades later pay a reasonable ‘willing buyer, willing seller’ royalty plus interest.
“I’ve noticed in the Auto Industry the people you have to sell to are the guys whose job it was to invent what you did,” continues Dennis Kearns. “The in-house attorney’s view their job as 1) minimizing loss, not maximizing gain and 2) sheltering upper management and the public from reality. I recall a conversation with Dr. Ernst Fuhrmann, CEO Porsche. He said as an engineer I feel bad [that] as CEO my job is to maximize profit.
“I am pleased that by the time we went to trial with Chrysler, inventors were thanking my Dad because they were getting royalties of $2 a unit. A long way from the 11 cents. I believe my Father’s lawsuits and publicity helped make that change. That encouraged innovation. I don’t think all the blame for hurting innovation belongs to any one industry.”
Earlier in life, Robert Kearns had been a high school cross-country star, an outstanding violinist and a teenage intelligence officer in World War II for the Office of Strategic Services, a forerunner to the CIA. Kearns died of brain cancer complicated by Alzheimer’s disease in Baltimore, Maryland. The story of his invention and the lawsuit against Ford forms the basis of an illuminating 2008 film, Flash of Genius, which does a good job of depicting the challenges of reclaiming his stolen invention.
For more recent information about Bob Kearns and “Flash of Genius,” see my recent update and review here.
*The article above in IP CloseUp about the Kearns suit has generated more than 90,000 hits.
Someone once wrote: “Some people think Bob Kearns is crazy, if true, the world needs more crazy people like him.”
“Annals of Invention: Flash of Genius,an incisive, 1993 article which appeared in The New Yorker and is the basis for the film about him, is a must read for those interested in Kearns inspiring life and his disputes with multiple automobile manufacturers. It provides a glimpse into the struggles of a unique inventor who was determined to persevere and did.
Note to Readers: The sad situation for U.S. inventors and small businesses has not changed much from the time Bob Kearns attempted to win back his stolen invention. In fact, the unauthorized use of inventions, or patent infringement, has increased.
Many successful businesses simply refuse to pay for a license if they can avoid it, and subject many legitimate innovators to long and costly legal battles. To be fair, a number of patents that are enforced are of questionable quality and scope and should not have been issued.
For those you who can relate to the plight of Robert Kearns, you can support inventors and other creators, as well as educators, by giving to the non-profit Center for Intellectual Property. Gifts are tax-deductible. For more information visit www.understandingip.org.
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Image source: monstersandcritics.com; justwatch.com