By Kambiz Shekdar, Ph.D.
According to the group US Inventor, large companies can use the Patent Trial Appeals Group (PTAB) process to challenge innovations that get in their way, and most individual inventors and smaller groups do not have half a million dollars to mount a legal defense. AIDS patients are like cash cows. A cure for AIDS will eliminate the industry that provides only treatments. In particular, Gilead Sciences, Inc., stands to lose billions of dollars annually from its obligatory and life-long AIDS drugs. Does PTAB pose a risk for the development of a cure for AIDS?
PTAB was created on September 16, 2011, as part of the Leahy-Smith America Invents Act (AIA). According to Wikipedia, AIA represents “the most significant legislative change to the U.S. patent system since the Patent Act of 1952.” According to the U.S. Patent and Trademark Office (USPTO), PTAB “decides patentability questions for issued patents raised by third parties in proceedings called AIA trials.” For many small companies and individual inventors, PTAB is a killing ground for their innovations.
PTAB has cancelled claims in 84 percent of the 2,500+ patents reviewed since 2011. Josh Malone is just one example of an inventor who has contested a challenge using PTAB. He had quit his job to take his shot at the inventor’s dream and hit a home run with Bunch O Balloons (https://www.bunchoballoons.com/), which became the best-selling summer toy. As he started to realize success, a large toy manufacturer used PTAB against Josh to revoke his patent. Ultimately, Josh won a $31M award and restoration of his patent rights; but according to statistics, few small inventors prevail.
Josh is now a volunteer for US Inventor, which maintains that inventors should be permitted to opt out of PTAB. Under that scenario, challenges to issued patents would still be pursued, but in a regular court of law as opposed to through the PTAB process, “which is how the U.S. patent system worked for our first 190 years,” says US Inventor. The group is “fighting to restore the rights of inventors and innovative small businesses” via the passage of the Inventors Rights Act.
When Josh asked me to join a rally he was helping organize to mark the ten years since the Leahy-Smith America Invents Act (AIA)—the federal statute passed by Congress and signed into law by President Barack Obama—created PTAB, and to meet with representatives of Vermont Senator Patrick Leahy to fix the process, I said, “Yes,” as an individual inventor myself, because I know how hard it is for any creative person or inventor to bring something new into this world. Josh’s work is vital to protecting all inventors and their innovations, including disruptive (to pharmaceutical companies) inventions with potential to cure disease, including AIDS.
Outside the office of AIA sponsor Senator Leahy in Burlington, Vermont, US Inventor President Randy Landreneau made the case that a strong environment that encourages and supports innovation is a vital aspect of the American experiment. Additional individual inventors from New York City who attended the rally included: Eric Berend, an inventor of wind and water power generation with improved efficacy by conversion efficiency and siting flexibility, Mark Walker, inventor of solar power innovations (https://sunflowerseating.com/), Roberta Lipman, inventor of an improved walking cane, who can be reached at LinkedIn for more information (https://www.linkedin.com/in/roberta-lipman-00637a7/), and Chris Landano who created a novel swivel tool belt based on his experience at FDNY (available at https://trakbelt360.com/).
If you are an individual inventor and would like to learn more, visit US Inventor at https://usinventor.org/.
Rockefeller University alumnus and biotech inventor Kambiz Shekdar, Ph.D., is the president of Research Foundation to Cure AIDS and Science & LGBTQ editor at WestView News. To support RFTCA, go to https://rftca.org/.