Don’t hit the brakes on small inventors

By: Jeffrey Birchak

Donald C. Miller wanted to make the world’s fastest bike. A cycling enthusiast, he embarked on this quest in 1998 and quickly realized the transmission was the problem he needed to fix. The traditional gears and chains that transferred pedaling power into forward momentum were very inefficient. So he set out to make something better.

Less than two decades later, the continuously variable transmission (CVT) he developed – and that our company, Fallbrook Technologies, continues to improve, manufacture, and license – has drawn praise from customers and biking enthusiasts across the world. It’s unclear whether he had created the fastest bike. But Don’s technology has succeeded in making bicycles, lightweight electric vehicles and even electric cars and wind turbines better and more efficient.
What made it possible for a small inventor to turn an idea into a product and then a thriving job-creating company? Ingenuity, R&D, and the legal protections afforded by the U.S. patent system. 
Fallbrook Technologies has invested more than $150 million over the last decade to develop and improve Don’s invention. But research and development is a risky and slow process. There is no guarantee that a project in development will ever become marketable. And even if the research bears fruit, the harvest might be years later. For example, software companies operate on a 12 to 18 month development cycle. Consumer electronic companies develop products on a 3 to 5 year cycle. And for manufacturing companies like Fallbrook Technologies, some of our innovations took 15 years to usher into the market.

How can companies afford to risk so much on such an expensive, time-consuming process? Patents. Patents provide the protection for people to reap the rewards of their inspiration and hard work. They protect and sustain a company’s competitive position in the marketplace from those who would simply copy its developments. And in our case, our investors and employees simply could not continue their work to change the way the world uses mechanical energy without the real protections provided by patents.
Unfortunately, if some large corporations have their way, that protection might disappear – and with it the small inventors who power our nation’s innovative spirit. The proponents of legislation now being considered in Congress, H.R. 9, the Innovation Act in the House, and S. 1137, the PATENT Act in the Senate, say these bills would stop deceptive and unfair business practices within the patent system. They tell us the bills would curtail so-called “patent trolls” who abuse the system to extort businesses and consumers. But in truth, the legislative proposals would have one effect: to handicap small inventors and make it virtually impossible for them to protect their innovations. 
That is because the legislative proposals would put in place costly, burdensome and unrealistic hoops for small inventors to jump through to defend their patents in court, or to even respond to patent assertions by larger competitors. Take the proposed heightened pleading standards. Both the House and Senate bill would require a patent owner to identify, in detail, “each accused instrumentality” of “each claim” infringed on “each patent” at issue.  Patent plaintiffs would essentially be asked to prove much of their case before even filing a complaint.  This is not possible in most patent cases, where substantial information about the full extent of infringement may not be available in the public domain or even knowable without discovery.  Under both proposed bills, large corporations, whether using the technology of others without a license or asserting questionable patents against disruptive upstarts, would have a new tool in their arsenal to bury the small guy in paperwork. 
No doubt, there are instances of abusive practices in the patent system – like the sending of vague demand letters asserting patent infringement to businesses using off-the-shelf products. But these abuses represent only a small part of the larger system. They are no justification for undermining a system that is necessary to protect the nascent, inventive technologies of tomorrow. If a tire has a small leak, you don’t scrap the bike. The legislation being considered would slash the tires and melt the frame.
More than allowing inventors to be fairly compensated for their work, strong patents empower Americans to turn their vision into reality, their dreams into opportunities. Instead of hitting the brakes on small inventors by weakening patent rights, we should be strengthening the patent system so that small inventors can continue to drive American innovation and progress.  
Birchak is the associate general counsel and assistant secretary of Fallbrook Technologies Inc.

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