|Disclaimer: The views expressed in the articles on this page are those of Rick Martin or other authors as specified and do not necessarily reflect the opinions of this firm’s staff, associates, or clients.|
|Select an article below: American Capitalism Gone with a Whimper
FIRST TO FILE HELPS LITTLE GUY By Rick Martin · U/A Press Release
“Patently Absurd. Patent Reform Legislation in Congress Amounts to Little More Than a ‘Get Out of Jail Free’ Card for Microsoft”
Rick’s Letter to Senator Michael Enzi of Wyoming · Legal Q&A
Response to: Patenting Good Ideas Could Hurt Companies…
The War on Drugs: An Impossible Dream · WHY BOTHER?
TORT REFORM ARTICLES · Soak the Trial Lawyers · SUE THE DOCTOR
Export goods, not factories · Litigation Summary
|American Capitialism Gone with a Whimper
By Stanislav Mishin
| Note from Don Wildmon: For years I have refused to use words such as Marxism, socialism or similar words when describing our current situation. However, it is time to call a spade a spade, regardless of how those who oppose us label us. Rome is burning. The article below was written by Stanislav Mishin, a blogger and columnist for the Russian newspaper Pravda. American capitalism gone with a whimper . . . . .
It must be said, that like the breaking of a great dam, the American decent into Marxism is happening with breath taking speed, against the back drop of a passive, hapless sheeple, excuse me dear reader, I meant people.True, the situation has been well prepared on and off for the past century, especially the past twenty years. The initial testing grounds was conducted upon our Holy Russia and a bloody test it was. But we Russians would not just roll over and give up our freedoms and our souls, no matter how much money Wall Street poured into the fists of the Marxists.
Those lessons were taken and used to properly prepare the American populace for the surrender of their freedoms and souls, to the whims of their elites and betters.
First, the population was dumbed down through a politicized and substandard education system based on pop culture, rather than the classics. Americans know more about their favorite TV dramas than the drama in DC that directly affects their lives. They care more for their “right” to choke down a McDonalds burger or a BurgerKing burger than for their constitutional rights. Then they turn around and lecture us (Russia) about our rights and about our “democracy”. Pride blinds the foolish.
Then their faith in God was destroyed, until their churches, all tens of thousands of different “branches and denominations” were for the most part little more then Sunday circuses and their televangelists and top protestant mega preachers were more then happy to sell out their souls and flocks to be on the “winning” side of one pseudo Marxist politician or another. Their flocks may complain, but when explained that they would be on the “winning” side, their flocks were ever so quick to reject Christ in hopes for earthly power. Even our Holy Orthodox (Russian Orthodox) churches are scandalously liberalized in America.
The final collapse has come with the election of Barack Obama. His speed in the past three months has been truly impressive. His spending and money printing has been a record setting, not just in America’s short history but in the world. If this keeps up for more than another year, and there is no sign that it will not, America at best will resemble the Wiemar Republic and at worst Zimbabwe.
These past two weeks have been the most breath taking of all. First came the announcement of a planned redesign of the American Byzantine tax system, by the very thieves who used it to bankroll their thefts, loses and swindles of hundreds of billions of dollars. These make our Russian oligarchs look little more than ordinary street thugs, in comparison. Yes, the Americans have beat our own thieves in the shear volumes. Should we congratulate them?
These men, of course, are not an elected panel but made up of appointees picked from the very financial oligarchs and their henchmen who are now gorging themselves on trillions of American dollars, in one bailout after another. They are also usurping the rights, duties and powers of the American congress (parliament). Again, congress has put up little more then a whimper to their masters.
Then came Barack Obama’s command that GM’s (General Motor) president step down from leadership of his company. That is correct, dear reader, in the land of “pure” free markets, the American president now has the power, the self given power, to fire CEOs and we can assume other employees of private companies, at will. Come hither, go dither, the centurion commands his minions.
So it should be no surprise that the American president has followed this up with a “bold” move of declaring that he and another group of unelected, chosen stooges will now redesign the entire automotive industry and will even be the guarantee of automobile policies. I am sure that if given the chance, they would happily try and redesign it for the whole of the world, too. Prime Minister Putin, less then two months ago, warned Obama and UK’s Blair, not to follow the path to Marxism, it only leads to disaster. Apparently, even though we suffered 70 years of this Western sponsored horror show, we know nothing, as foolish, drunken Russians, so let our “wise” Anglo-Saxon fools find out the folly of their own pride.
Again, the American public has taken this with barely a whimper…but a “freeman” whimper.
So, should it be any surprise to discover that the Democratically controlled Congress of America is working on passing a new regulation that would give the American Treasury department the power to set “fair” maximum salaries, evaluate performance and control how private companies give out pay raises and bonuses? Senator Barney Franks, a social pervert basking in his homosexuality (of course, amongst the modern, enlightened American societal norm, as well as that of the general West, homosexuality is not only not a looked down upon life choice, but is often praised as a virtue) and his Marxist enlightenment, has led this effort. He stresses that this only affects companies that receive government monies, but it is retroactive and taken to a logical extreme, this would include any company or industry that has ever received a tax break or incentive.
The Russian owners of American companies and industries should look thoughtfully at this and the option of closing their facilities down and fleeing the land of the Red as fast as possible. In other words, divest while there is still value left.
The proud American will go down into his slavery with out a fight, beating his chest and proclaiming to the world, how free he really is. The world will only snicker.
|Top of Page FIRST TO FILE HELPS LITTLE GUY
By Rick Martin
|After serving the needs of the over 1,500 entrepreneurs, I support a first to file system for the little guy because I have battled the “big guys” for over 20 years. Avoiding litigation expenses helps the little guy. For example, when the potential of interference as to inventorship is eliminated, the little guy is protected from litigation, at least on this issue. If the little guy cannot afford $2,000 to file a professional provisional application, then he is not in the game anyway. Several of my clients, including Thermark, had copycat patents filed by billion dollar firms, which caused early lawsuits on inventorship. This billionaire tactic scares potential investors away and tends to force the little guy to sell out cheap early in the game because all he has at this early stage is marketing potential and no cash flow. This same logic leads to opposing a post grant opposition, which is after all just another lawsuit and favors the billionaire. Special trial courts are needed, like in Germany, as are mandatory triple damages for the little guy in a win over a big guy. For example, when my client won over Wal-Mart, the judge chose not to award triple damages; she only awarded attorney fees. Each side still had to pay its own appeal costs, which totaled about $200,000 for each side. In today’s system, which is engineered by billionaire lobbyists and courtroom lawyers setting percedent, even when the big guy loses so does the little guy. Theft is encouraged. Wealth is sucked to the top before the little genius puts his gloves on. With outsourcing on the rampage killing pensions at United, Enron and IBM and stealing ideas before they hatch out of the ege with “patent reform”, one might say America is doomed to join in third world countries. Read Ronald Regan’s economist, Kevin Phillips’ book, Wealth and Democracy and realize that under Clinton and Bush, America’s richest persons got ten times richer while both Democrats and Republicans robbed the patent office of $100 million a year. Realize further that only the little non-tech inventor, like my searchlight client against Wal-Mart, needs a patent. Hi-tech firms have ten thousand man-years of secrets behind their products, so patents merely serve as trading chits among like giants. The tiny battle being lost by the small inventor in the House of Representatives’ latest round of “patent reform” may be the tip of the iceberg of the decline and fall of the American empire. My client, TherMark™, has a link from this website. The President, Paul Harrison, survived open heart surgery after the initial lawsuits and 6 years later he has a small joint venture going with the successor to the firm that sued him first on inventorship. Could they have hurt him this badly if they could not have tied him up so early over inventorship? The only positive initiative in the current round of “patent reform” is the proposed first to file change. My proposals to preserve the patent system as a referee between the “haves” and the “have-nots” are seen in my open letter to U.S. Senator Mike Enzi, entitled “Nobody is Listening.”
|Top of Page|
|Where have 100,000 local jobs gone?|
| Wal-Mart gets most of its products from China, and has had over 50 patent theft lawsuits against it at once. IBM just sold its PC business to China. Corporate multinationals have gutted the U.S. patent system by killing the doctrine of equivalents, limiting plain meaning of claims resulting in about half the patents litigated being invalidated. One top patent judge is quoted as saying our top patent court has created a blueprint for foreign copyists (to pluck ideas from Colorado inventors). Recently the entrepreneur’s patent fees were increased 25%. This money is siphoned off the Patent Office to help pay for the deficit. Organized U.S. corporate theft of American ideas is aimed at destroying America’s middle class in exchange for giant wealth concentration by elite corporate shareholders. In spite of all this, we fight the good fight for over 1,000 entrepreneurs.
|Top of PageLetter to Senator Enzi
Feb 16, 2005
|Senator Michael B. Enzi
Office of Senator Michael B. Enzi
379A Senate Russell Office Building
Washington, DC 20510
|Dear Senator Enzi:Thank you for considering me to help with the upcoming inventors workshop March 17 and 18, 2005, in Riverton, Wyoming. I will handle my own expenses. Roundtable local area inventors could include Bill Oviatt (307) 332-5200; Michael Goldberg (307) 322-4040; Jeff Giacomino, PCS, (303) 857-4222; and Jerry Gohl (308) 278-3131.My homepage contains a speech I created for the U.S. Department of Energy in a program called The National Innovation Workshop Series. This marketing oriented outline might be useful as an introductory or opening remarks subject for your seminar. I could include some warnings on scam companies as well.
My passion (after a twenty year career as a patent lawyer serving over 1500 entrepreneurs) is to move the U.S. Senate toward a course to protect home grown American ideas. The following represents my preferred course outline.
The U.S. Small Business Administration estimates that 22.9 million small businesses in the USA create 75 percent of the new jobs and employ over 50 percent of the private workforce. My law firm represents over 1000 small businesses in Colorado and Wyoming. We probably help protect over 500 jobs in Colorado and Wyoming from theft of ideas by big corporations such as Wal-Mart (whom we sued and received an $850,000 damages award).
I can speak as an expert in the court manipulated patent law for the past 20 years. Since Ronald Reagan created a single court of appeals for patent cases in 1982, the patent system protection for entrepreneurs has slid constantly downhill at the hands of corporate lawyers in a courtroom.
Only corporate America lobbies the U.S. Senate, as well as the courts, to slant the U.S. patent system totally in favor of multi-national large corporations. Raise the ante in a poker game to $50,000 a patent and only large corporations can play the game. The easiest way to visualize the theft of entrepreneurial rights in favor of corporations is to look at the status of the largest patent appeals case in U.S. history coming up this year, Phillips v. AWH, see www.faegre.com/custom/page_2185.aspx. The main issue is whether a court can use a dictionary to interpret what I write as a patent claim. About 35 amicus briefs have been filed on behalf of a group of patent rich companies, including Microsoft, Intel, IBM, and Google. Not a single brief has been filed by an entrepreneur or a small firm like mine that primarily represents entrepreneurs against the super rich corporations!
IBM and group want to put blinders on the court to limit the definitions of key words to primarily the drawings the inventor provided. Thus, a rotating searchlight must rotate 360? or more to infringe, so argue the super rich. Therefore, IBM and group can copy a new searchlight, stop the rotation at 359? and put the creative entrepreneur out of business. Furthermore, after stealing an American’s idea by diminishing the power of U.S. patents, the super rich will outsource the production to the Pacific Rim.
IBM taught me as a street salesman in 1969 to bring solutions, not problems, to your boss. So I offer you my help to accomplish these goals to help restore some of Colorado’s and Wyoming’s lost jobs:
In my view, at age 60 (presently raising an eleven year old, and eight year old, and a three month old child), a healthy nation is a fully employed nation, wherein self-fulfilled employees can raise well-balanced families giving hope to future generations.
Please contact me if I can be of service.
|Top of pageResponse to: Patenting Good Ideas Could Hurt Companies…
September 2, 2004
Re: Article in WSJ on 8/23/2004 entitled:
Patenting Good Ideas Could Hurt Companies…
The “Patenting Good Ideas” article touches on the past twenty years of my experiences as a patent attorney serving the needs of over 1000 entrepreneurs. My five-lawyer firm is trying (unsuccessfully) to catch the ear of Congress and the President and Presidential Candidate. Big business has systemically weakened the U.S. Patent system over the past twenty years in order to steal American ideas and put jobs overseas. IBM, Wal-Mart and other Fortune 500’s are paying lawyers and lobbyists to gut the U.S. Patent system with queer arguments that this bolsters the economy by forming bright lines at the edges of a patent so that other firms can do research and create new products and jobs very close to but not inside the patent rights of others. This is trash logic. See www.patencolorado.com for more detailed articles on the gutting of the U.S. Patent system.
Ronald Reagan’s greatest contribution to the U.S. economy was the establishment of a single, knowledgeable patent appeals court for all the nation’s patent trial appeals (CAFC). However, since then Republicans and Democrats over the past 12 years have stolen about $500 million dollars from the U.S. Patent and Trademark Office to buy votes. If the President did this to the U.S. Postal Service, your mail would arrive in a week, if at all. A brave little group of lawyers has a three year-old lawsuit pending against the U.S. government to try to stop this double taxation of our inventors. See inventorsdigest.com for details.
Congress has proposed doubling the patent fees for small inventors while IBM gets a modest 30% increase. This increase of federal fees alone is a good way to chase entrepreneurial Americans away from the U.S. Patent system entirely, thereby facilitating the theft of ideas from America’s small businesses and entrepreneurs. Has corporate America purchased the Presidency and the Congress lock, stock and barrel?
As to the U.S. Supreme Court and President Reagan’s CAFC, they have been lobbied into destroying the doctrine of equivalents. The doctrine of equivalents was created in 1850 by the U.S. Supreme Court to give stretch to simple words that inevitably fail to fully capture the essence of a new technical creation like a John Deere plow. So when we sued Wal-Mart for patent infringement for copying a searchlight (the Golight case reported by the Wall Street Journal on April 19, 2004) only claim 11 survived out of the entrepreneur’s fourteen claims. Good work to our top judges! They have created a blueprint for (mostly foreign) copyists to steal American technology, add a pinch of lime and avoid the U.S. Patent system! Of course, the results are lost American middle class jobs, wherein the wealthy shareholders of corporate America reap the same profits by owning an interest (tax free) of foreign knockoff artist factories. If this trend continues, the consumer purchasing power of America will dwindle along with the loss of jobs. At some point America will be in a depression, and the wealthy corporate shareholders will buy up all the foreclosures, banks, and smaller companies. International cartels will brazenly own the U.S. Presidency, Congress, and Courts, and the American middle class will perish.
As a footnote, the demise of the U.S. middle class may be irreversible, given the power of organized international money and control of the media and key governmental policy makers. My experience fighting for the rights of over 1000 entrepreneurs over 20 years gives me a certain limited expertise on how to improve the U.S. Patent system. Since 90% of patent attorneys are paid by corporate America, my voice, even when coupled to the few hundred patent lawyers who work for American entrepreneurs, is small. Upon graduation from law school in 1985 at age 40, I was a speaker for the National Academy of Science on much-needed tort reform. Nothing has happened at the federal level since then. Will this small voice also perish for this patent reform plea?
cc: Bonnie Kaake, RMIC
|Top of pageTORT REFORM|
|Could terrorist attacks bring needed tort reform?
As a native New Yorker I will never see our country in the same light. No matter how perfect our revenge and our reconstruction, 5,000 of our buddies disappeared from their loved ones while at work. They were New Yorkers — people who average 40 miles commute each way daily to put the bread on the table. They work an extra day a week compared to most Americans. They are the heart and soul of much of out national economy. Five thousand of our best are gone.I left the business world to attend law school at age 40, and in 1986 as a brand new patent lawyer I wrote some articles on how our economy was at risk from collapse because of lawyers. Florida, where I attended law school, had been nicknamed “the sue me state,” and doctors had stopped delivering babies because lawyers were suing and collecting their third on ridiculous lawsuits on the negligence of doctors and nurses. Fully a third of my graduating class were studying on how to sue their first doctor. The national think tank, The National Academy of Sciences (NAS), invited me to partake in a yearlong series of lectures on reforming our tort laws. One scenario I lectured on depicted two airliners colliding over New York killing thousands with falling debris.The scenario depicted how America’s lawyers filed lawsuits on behalf of thousands of victims against every conceivable company that might have been at fault. At $5 million per victim, 10,000 victims would yield $50 billion. Companies to sue included two airlines, navigational instrument manufacturers, radar manufacturers, fuel suppliers (they caused the fires) and so on and so on.
This type of financial hit to key segments of industry caused a domino effect, and the second Great Depression. This Great Depression was caused by America’s lawyers. Since 1986 minor adjustments to reduce jury awards against manufacturers, tired overworked doctors and so on have been enacted piecemeal by individual states, including Colorado. Although President Reagan made a tort reform speech, the first by any American president, no federal restraints on American lawyers were enacted.
That brings us to Sept. 11, 2001. Already a $20 billion aid package for New York City is funded, a small first step. Forget the military budget needed to protect our citizens from future terrorism, what protection is afoot to protect us from our lawyers?
Are you ready to stand by and see the airline industry, building architects and tired rescuers and doctors fall victim to 5,000 lawsuits? Is it time to write to your U.S. senators to enact a federal tort control bill? Perhaps our citizens can realize that God has a hand in all our tragedies and injuries and death. Why should our courts be full of lawyers pulling money out of everywhere (for their third) when an American is injured in a car, in an operation or in a terrorist attack?
If some good can come from our fallen buddies, then maybe clipping the wings of the vulture segment of our legal industry would be a start.
Printed in The Boulder County Business Report – Oct. 2001
|Top of pageKyl, Cornyn Propose that Tobacco-Suit Lawyers Return Exorbitant Fees
Soak the Trial Lawyers
By Stephen Moore
|This is a story of one of the greatest heists in modern American history. It is a story of how billions of dollars were transferred from taxpayers to a small group of avaricious trial lawyers.Five years ago these trial lawyers became fabulously wealthy off of other people’s pain and suffering – and they did it with impunity.That is, hopefully, until now. I am referring to the 1998 tobacco litigation agreement reached between states and tobacco companies. This famous legal settlement required the tobacco companies to reimburse states nearly $250 billion over 25 years for the smoking-related health care costs incurred by state-financed Medicaid programs.
Here is where the highway robbery is involved. In that deal, a small gang of several hundred trial lawyers walked off with settlement money of an estimated $10 to $15 billion. If you filled Madison Square Garden three fourths of the way with millionaires, their total wealth would be just slightly less than what the trial lawyers received in these settlements.
$50,000 An Hour
Some trial lawyers received fees of more than $50,000 an hour in contingency fees for lawsuits that never even went to court. Never before have so many billionaires been created for doing so little. In the past five years they have bought luxury yachts, Rolls Royce autos, Citation jet planes, and politicians (through millions of dollars of campaign contributions). In 2002 the trial lawyers were the second-largest giver to Democratic candidates.
“These fees were outrageously excessive,” fumes Michael Horowitz, a legal expert at the Hudson Institute. “This money should have gone to states, not to make billionaires out of lawyers.”
He’s right: in a sane world, these funds should have been used to develop new treatments for cancer; they should have been used for anti-smoking campaigns; they should have been used to help balance state budgets. The trial lawyers have acted no less greedily or dishonorably than the tobacco firms, which tried to hide the health consequences of smoking.
But this grotesque story of lawyer abuse may have a happy ending after all. Last month, two courageous Senators – Jon Kyl of Arizona and John Cornyn of Texas – decided to take on the trial bar by demanding that a good chunk of the tobacco settlement lawyer fees be returned to states from whom it was pilfered. Kyl and Cornyn have discovered that the multi-billion-dollar settlements awarded the trial lawyers violate legal ethics rules.
Under decades of legal precedent, lawyers are prohibited from receiving fees that are “excessive or unreasonable.” If there were ever a case of unreasonable fees it is this one. As a Missouri court has ruled: “Reasonableness is an implied term in every contract for attorney’s fees.”
Here is what Kyl and Cornyn propose. If a reasonable fee of $400 an hour were to be applied, and if the tobacco lawyers were permitted to receive settlement money that paid them a contingency fee of even five times that amount (i.e. $2,000 an hour in fees), the states will be bale to recapture a net present value of an estimated $9 billion from the tobacco lawyers. And that is money that many indebted states can use to help balance their budgets.
Kudos to Kyl and Cornyn. They are trying to right an egregious wrong. They have come up with a formula in which everyone wins. States win because they get $9 billion which can be used to avoid tax hikes. Children win because some of this money will be used for anti-smoking campaigns to educate school kids on the dangers of smoking.
And trial lawyers still win a jackpot – just one that will make most of them millionaires, rather than hundred-millionaires and in some cases billionaires. They will still receive fees that will pay them more for an hour’s work than many Americans earn in a month.
And for this they will moan and complain about the injustice of it all. This will be a wonderful test of the priorities of the Democrats in Congress, who are largely funded with trial lawyer dollars. Will they side with states and cities and children and cancer patients? Or will they side with their millionaire benefactors and their mountainous bag of campaign contributions?
To ask the question is to answer it.
Mr Moore is economics correspondent for Human Events and president of the Club for Growth.
|Top of page|
|SUE THE DOCTOR
Copyright ©1987, Rick Martin, Esq.
|Sue lives and works in Boca Raton. She spent ten years as a full time student. Then she worked double and triple shifts as a resident doctor. Her salary was barely enough to pay for life’s necessities. She is out on her own now. She saves lives for a living. Sue is a surgeon.Sue is often awakened at two in the morning to save a child’s life or help an accident victim make it through the night. Any of us could be the next to die if Sue is not constantly diligent in her work. She possesses a superbly high sense of professional dedication to her job.Recently the law has made Sue the victim of her own profession. The big money for many lawyers is to sue the doctor. Given enough time to delve into medical records, some amount of negligence can be found anywhere. Given joint and several liability, pain and suffering, high medical costs and economic damages, big money is made on a little negligence.
Florida is known as the “sue me state".; Lawyers have created record highs in million dollar lawsuits. Several millionaires a day are created nationally by suing doctors and other deep pockets. Lawyers pocket about half of this money.
Does all this help Sue perform her delicate operations on you and your children at 4:00 a.m.? Does the constant prospect of personal bankruptcy and humiliation of defending an attack on her professional credentials help Sue raise the standards of medical care?
American history has never seen such an awesome intrusion of big government and lawyers into our personal lives until post WW II. Modern joint and several liability was born. Pain and suffering has become a national pastime. Negligence abounds. Poor Sue is still trying to save children’s lives.
The answer lies in tort reform. Make people be responsible for their own negligence, not the negligence of others. Accept pain and suffering as the natural human condition, not a source of income. Limit legal fees to the fair market value of the hours worked. Would you like to put Sue on a contingency fee if she saved your daughter’s life?
Some Americans feel that if doctors acted like lawyers, the life expectancy in America would drop by twenty years. How do you feel? Is there room for compromise?
|Top of pageExport goods, not factories
by Stanley Blumenthal
|I say Congress and the president should declare factories national treasures, like historical sites, not to be moved out of the country without a proper review. Had this been done, we wouldn’t have the trade deficit, national debt, tax burden, unemployment and social problems we now have.Apparently there are no restriction to protect the few factories left. CEOs who outsource offshore are, in the long run, disloyal to their workers, community, country and their own families. Karl Marx’s observation – that capitalists for a profit would sell rope to a hangman that eventually would be used to hang them – appears credible. China – the biggest recipient of foreign factories – takes them in while putting U.S. taxpaying competitors out of business. In many cases, buyers are forced to look outside the USA because we’ve lost the plants and skills to make products.Unless we save our manufacturing, I predict that in due course China will replace the USA as the most powerful nation on Earth. That monster hydroelectric dam being built is not ust to make toys. The current 72-cent-an-hour average wage is bait to lure foreign industries. Note how well it works by the American-name products made in China.Temporary high profits and low consumer prices at the expense of domestic jobs is like endless quick drug fixes that eventually destroy the user. Normal profits, wages and prices from a fair share of domestic plants are the way to go. Free trade shouldn’t mean uncontrolled exporting of factories; a service economy doesn’t fill the gap.
Profit-motivated free-trade globalization would work if properly controlled. Begging China to up-value its currency (by how much?) to make our goods cheaper, theirs more expensive, is inflationary undermines confidence in the dollar, won’t bring the factories back and won’t stop new ones from moving there. Plus, they don’t tolerate being told how to run their country and so can be quite dangerous.
Stanley Blumenthal is a resident of Sunrise.
Printed in the South Florida Sun-Sentinel January 5, 2004.
|Top of PageWhy Bother To Invest In Small Start-Ups When The
U.S. Supreme Court Has Made it Easy To Avoid Patents?
By Rick Martin
Editorial assistance provided by Barry Satlow
|The world of intellectual property has become bipolar. The U.S. Supreme Court just affirmed for Walt Disney Co. 20 more years of copyright protection on Mickey Mouse of 1928 as well as protection for hundreds of thousands of books, songs and movies, including Gone with the Wind. Congress’ 1998 20-year copyright extension was affirmed as constitutional. It is easy for any small or large outfit to copy and duplicate Mickey Mouse. Therefore, big media business needs copyright protection to prosper. Notice how big media business lobbied both the Congress and the U.S. Supreme Court to get its wayBut the opposite is true for the needs of big business when it comes to patent protection. Little guys and most big guys cannot compete against IBM, GM, Hitachi, Sony, Dow Chemical and the Fortune 500. The reason is simple. IBM owns millions of man-years of know-how, a fortune in reputation and a worldwide service and support network. IBM and the Fortune 500 really don’t need patents to keep competitors out. The market barriers of high tech know-how, loyal employees, wealth and marketing savvy were powerful enough to push RCA, Univac, Singer Friden, Honeywell, NCR, Burroughs and others from the mainframe business. It was not IBM patents that crunched the competition.Fortune 500 firms use patents as gentlemen’s trading chips, stock value chips and licensing royalty instruments. However, small to medium businesses and individual inventors need patents to survive because simple products are easily knocked off without a patent to protect them.America’s patent system is systematically being weakened by the Fortune 500 and the majority of the 30,000 or so patent lawyers who are employed by giants (directly or indirectly). Last month 50 patent lawyers in Denver participated in a seminar that focused on a ten-year legal trend in Congress, the U.S. Supreme Court and the Federal Circuit (appeals court for patents) to weaken the U.S. patent system.
Why is corporate America undermining our patent system? Because it is cheaper to steal an idea from a little firm than to do the research in-house. Another reason is to harmonize U.S. corporate interests with multi-national giants like Hitachi and Siemens. What is good for worldwide corporate giants is being pushed in America’s congress and courts. (One difference: in Europe a corporation may be the inventor; here the inventor is an individual, although the patent is often assigned to an employer.)
I resent this trend since I service over a thousand small firms and inventors who provide hundreds of jobs in Colorado. About 75% of America’s employment base consists of small businesses. I believe that simple but novel products invented by an American deserve the protection intended by the U.S. Constitution.
Here is a short laundry list of dirty deeds by our Congress and courts. Billions of dollars are siphoned from the Patent Office to pay for general government expenses. Thus an inventor is taxed twice as much as an ordinary citizen. This is the subject of a class action lawsuit out of Puerto Rico. The proposed fee increases for the Patent Office will simply keep most of the little inventors out altogether. In the meantime the patent office is two years behind in filing patent assignments and five years behind in granting software patents. The 150-year-old Doctrine of Equivalents created by the U.S. Supreme Court to allow words to more readily capture the essence of an invention has been virtually killed by the Court. Two new doctrines of death for a patent were created by the Federal Circuit in the past year. They are the doctrine of prosecution laches (better not delay in presenting your patent just because money is tight) and the dedicate to the public doctrine (if you describe it and don’t precisely claim it, you gave it to the “public,” which equates to the Fortune 500 who can afford to launch your product).
Wal-Mart has more than 50 patent theft lawsuits against it at any one time. Countless small inventors don’t even bother to fight a Fortune 500 gorilla. Thus the small firm based in American never blossoms, and a child labor sweatshop puts out an American idea. Only a few corporate shareholders reap the profits from the American inventor, who doesn’t know what hit him.
The Supreme Court essentially affirmed the death of the doctrine of equivalents for any claim element narrowed by prosecution of the patent. I estimate about a third of the value of the million or so current U.S. patents went down the drain.
A patent is useful only to the extent that it can stop someone from copying the invention. If the patent is narrowly defined when enforcement is sought against an infringer, the patent has less scope. Most of the damage has been done by changing the legal rules that define infringement.
It is difficult to crunch into a page 200 years of patent law, but here’s a go at it. For literal patent infringement, each element in a claim must literally be found in the knock-off product, but it is too easy to get around that by some trivial change.
In the mid-19th century, the Supreme Court realized that the words in a patent would not fully capture a technical device such as the plow invented by John Deere, a farmer. The words in a patent claim have to be stretched to fit the function of the device and its elements, to cover a knock-off that performs substantially the same function in the same way. Thus the equitable Doctrine of Equivalents was born, making a screw equivalent to a bolt and making a patent claim reach beyond the claim’s literal reading. This protection is necessary because all patents live an inevitably short life of 17 years or so. Then everybody may legally copy the invention.
On the other hand, competitors must be able to determine whether an alternative to the invention falls within a patent claim. Under this rubric, the Supreme Court last year cut down the Doctrine of Equivalents to a sliver in Festo Corp. v. Shoketsu Kinzoku Kogyo Kabushiki Co., 535 U.S. 722, 122 S. Ct. 1831 152 L. Ed. 2d 944, (2002). For any patent claim narrowed in the patent process, in amendments designed to meet objections by the patent office – and initial broad claims to an invention are almost always honed in interaction with the examiner – infringement may only be literal; anything slightly smaller, bigger, lighter, denser, etc. than what is described is not covered by the patent.
Only three narrow exceptions are left by Festo. For example, if technology changes in a way that was unforeseeable by the person writing the patent, so that he could not have written a claim on it, a patent claim may cover new technology doing the same thing. These minimal exceptions just cover up the destruction of the doctrine. As Judge Newman wrote in her dissent to the Federal Circuit, opinion below, 234 F. 3d 558 (2000): “The result is to negate infringement by equivalents…, thereby providing a blueprint for ready imitation of patented products.”
The only trick to maintain the old days is to file one very narrow claim at patent filing time. Then wait over a year for the patent office search. Then craft some broader claims and fax a draft of them to the examiner. Then call the examiner and verbally craft the rest of your 20 to 50 claims, making sure the examiner will allow them before you officially mail them in. Then receive a second office action with all your claims allowed. Never “narrow your patent,” and you are back to the good old days. But here are some problems. First, my time and costs will go up at least 25%. Next, you’ll wait an extra six months for your patent. Finally, the patent office will grind to a halt if everybody uses up examiner interview time like this. Maybe that will make the justices happy – more taxes and more government employees for the patent office!
The Supreme Court has made the patent process fit only for the rich and patient large-firm inventors. You little guys are going to start losing lawsuits and licensing opportunities. Soon most small inventors will get the picture: Why bother to patent anything? Why bother to be an entrepreneur and add wealth and jobs to America’s middle class? Why bother to invest in small start-ups when their patents will be easy to knock off?
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|The theme is David and Goliath. The firm completed six patent litigations in 2001 and has continued litigating nationally ever since. In five cases, we represented a small firm or solo inventor suing a larger firm for patent infringement. In the last case, we defended a small business on a claim of patent infringement.We settled four of the plaintiff cases successfully for our little “David” clients. Two of these cases were done on a partial contingency basis where the client paid a small amount of money and the firm was paid primarily out of the settlement. In the other two cases, the clients paid hourly and each received a good settlement within six months of filing suit.The Wal-Mart case went all the way to trial in Denver in November 2002. The trial judge found that Wal-Mart had willfully infringed the patent at issue. The case was argued on appeal. Wal-Mart lost the appeal and paid our client $850,000.00 in 2004.In the defense case, the firm defended a patent client in a design patent infringement lawsuit filed against it. A successful settlement was negotiated with a small amount of hourly charges.
Rick Martin’s initial class action styled racketeering lawsuit filed in 1994 created the database of 2000 victim statements that the criminal cases were based upon.
Our firm is seeking other “Davids” to even the odds against an accused patent infringer.
In the meantime, our primary focus is to write every patent claim as best we can to hold up in a courtroom challenge. We attended the weeklong Advanced Intellectual Property CLE course in Steamboat Springs, Colorado. This investment adds to our efforts to keep current in the changes of all related law including patents, trademarks, copyrights, trade secrets, as well as in the international developments in these areas.
Building a winning team is a methodology we’ve adopted. In the Wal-Mart lawsuit, we teamed up with a 300-person law firm, Michael Best & Freidrich LLP in Wisconsin to bolster our research and courtroom capabilities. The client only had to pay for this expertise on an as-needed basis.
For growing businesses, we utilize Rick Martin’s span of high tech marketing, licensing and deal-making experiences dating back to 1967. Before entering law school at age 38, Rick sold, designed and installed over $20 million of computer systems for manufacturers, distributors, bankers, and government agencies. Our clients brainstorm with Rick on overall company strategies including joint ventures, mergers, royalties, financing, pricing, prototyping, trade show presences, packaging, importing, and key employee retention.
Please review our entire home page for articles and client links to explore whether we can be of service to you. Does a big idea need a big law firm? Our clients say, “NO.” Call anytime for a free chat.
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|U/A Press ReleaseNews Update: Press Release from United Inventors Association
Date: Thu, 10 May 2001Press Release
American Inventors Corp. which was originally exposed on WGGY TV-40 “On Your Side” and then on ABC News 48 Hours in 1995, goes on trial Monday, May 14, 2001, in US District Court, Springfield, MA.
This prosecution, led by Assistant U.S. Attorney William M. Welch, marks the first federal criminal action against a company whose business is to help inventors promote their ideas, according to the Federal Trade Commission. Ronald Boulerice, 62, who was president of the company, and other high-ranking employees are scheduled to go on trail May 14 for mail fraud and other crimes. The trial is expected to last two months.
Boulerice, of Westfield, MA; John Samson, 61, of Hatfield, MA, a former vice president; and John Hoime, 51, also of Westfield, a sales manager, will be tried before U.S. District Judge Michael A. Ponsor.
Besides facing charges of mail fraud, the three are accused of money laundering and Samson and Boulerice with filing false income tax returns.
They have all pled innocent.
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