Improving access for minorities will not fix a ‘broken’ system, say inventors

Responses to the USPTO’s request for written comment on questions about the participation of minority inventors reveal a deep mistrust of the current patent system on the part of many independent inventors.

The United States Patent and Trademark Office in May held the first of three hearings prompted by the Study of Underrepresented Classes Chasing Engineering and Science (SUCCESS) Act.

The Act requires the USPTO Director to provide Congress with a report on publicly available patent data on women, minorities, and veterans, and to provide recommendations on how to promote their participation in the patent system.

The SUCCESS Act was motivated in large part by a study and paper, Who becomes an inventor in America? (see below) by researchers from Harvard, the London School of Economics and MIT that was published in 2018 and addressed in IAM by this writer in Minority Inventors ‘Lost’.

Patents as Liabilities

While many commenters believe lack of IP system access for minorities is potentially undermines innovation, they believe there are fundamental problems that first need to be addressed.

One of the respondents, Deja S. Castro, inventor of the Tear and Toss Trash System and founder of RDC Systems, LLC, was quoted in a recent article in IP Watchdog as saying that, while she supports increasing the number of women, minorities, and veterans who hold patents, “it is crucial that we concurrently increase the enforceability of those patents….

“Patents have become liabilities for independent inventors thanks to the [Patent Trial and Appeal Board] and lack of strong enforcement in court. If the recommended legislation does not include increased protection of patents, the USPTO and Congress will end up destroying the lives [of] women, minorities, and veterans who attain patents.

”When large corporations undergo the IPR process,” commented Tesla Thomas, an inventor and small business owner, “they utilize less than 1% of their resources. When my peers of limited financial means undergo the IPR process then we face business and personal bankruptcy just to afford to defend ourselves.

“If we cannot scrounge up half a million for attorney fees then we cannot defend our patents. And there is nothing to gain even by a successful defense- we will end up spending half a million dollar just to maintain status quo and may still face personal and business bankruptcy. We passed laws to lower fees for micro and small entities for the same reasons – the true disparity is of financial resources and means.”

Sense of Foreboding

Thomas wrote that “as a young, minority, female inventor and entrepreneur, I do not expect that my ingenuity will be rewarded by the US patent system. The problems that my white, male counterparts have faced give me a sense of foreboding.”

In reference to the need to address financial barriers to access at the USPTO, she said that the agency should “eliminate the [inter partes review] process for all of the patents initially filed by a small entity, a micro entity, and for inventor owned and controlled companies.”

Many of the commenters believe that patents have become a burden to inventors, not an asset, because they can longer afford to defend them.

Past History of Success

Dying if not dead is the long history of individual inventors in the U.S. who are able to form companies to exploit their ideas, but who initially do not sell products. Success stories of this nature include:

Westinghouse (air brake), Ford (car), Gillette (razor), Hewlett-Packard (oscillation generator), Otis (elevator), Harley (motorcycle shock absorber), Colt (revolving gun), Goodrich (tires), Goodyear (synthetic rubber), Carrier (air treatment), Noyce (Intel), Carlson (Xerox), Eastman (laser printer camera), Land (Polaroid), Shockley (semiconductor), Kellogg (grain harvester), DuPont (gun powder), Nobel (explosives), the Wright brothers (aircraft), Owens (glass), Steinway (pianos), Bessemer (steel), Jacuzzi (hot tub), Smith & Wesson (firearm), Burroughs (calculator), Houdry (catalytic cracker), Marconi (wireless communication), Goodard (rocket), Diesel (internal combustion engine), Fermi (neutronic reactor), Disney (animation), Sperry (Gyroscope) and Williams (helicopter).

In most cases these inventors worked alone, and without government or corporate support. They were not only able to create and defend new inventions, but build new industries that employ millions of people. Similar success today by independent inventors is unlikely and deprives the U.S. an important resource.

The IP Watchdog piece on SUCCESS Act comments can be found here.

The research paper, “Who becomes and inventor in America? The Importance of exposure to innovation,” is available here.

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