POSTGRANTREVIEW.com Notes from a Post Grant Review

What is a Post Grant Review?

Why does fixing the USPTO’s mistake cost me more than any other USPTO fee?

A Post Grant Review is supposed to be the inventor’s remedy when the Office issues a patent it shouldn’t have. Why, then, is it the most expensive line item on the USPTO’s fee sheet? Yes, it costs more than an IPR. And the bill lands on me, not them. I already paid a much cheaper fee earlier in the process to try to prevent this. I was flatly ignored. Stick with me and I’ll prove it.

So now the best and most appropriate† remedy left is one I can’t actually afford (and really shouldn’t have to). The system is set up explicitly to exclude folks like me. These were easily documented procedural errors; this shouldn’t be so hopeless. I’m pursuing it anyway. This is my story — and yes, I welcome constructive criticism on why I’m an idiot for doing it.

The integrity of the entire patent system is at stake here. If you care about Intellectual Property, or if you just want to be a better IP thief, this story is for you.

Read the backstory Latest dispatches

† Yes, there are IPRs and ex parte reexaminations — and, of course, actual litigation. PGR is the one that fits this mess. And yes, this is what “best option” looks like. ↩

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The backstory · in nine panels

My patent was copied (literally)‡ and the USPTO handed them a patent anyway

‡ The USPTO even told me it was inappropriate to point out the copying. (Hopefully you’re as shocked as I was.) ↩

  1. An inventor in a workshop holds up a poster for an 'oil well pump instrumentation system'; an advisor suggests getting a patent.
    01

    The idea

    I’ve had a lot of good ideas (and many more bad ones). I’ve thought about patenting some of them, but I generally just gave them away. This one was different. It was a completely novel way of determining something that’s otherwise pretty hard to observe. This was something worth protecting.†† So I did the responsible thing. (Foreshadowing: the responsible thing is a trap.)

    †† Anything worth protecting is worth stealing, I suppose. ↩

  2. The inventor hands a patent application and a stack of cash to a USPTO clerk.
    02

    I drafted and filed the application

    I’m the inventor, and I drafted a very detailed application. I thoroughly disclosed the invention — which, as it turns out, was my big mistake. Apparently you can get a patent on an embarrassingly thin disclosure, if you’re lucky enough to get a careless examiner. I could have held back the very details that made it a strong disclosure.

  3. The inventor at a workbench examines a circuit board, planning to turn the invention into a product.
    03

    I built the thing

    Patent pending, I went and did the other responsible thing: I turned the idea into an actual product. Soldering iron, oscilloscope, the works. I also started talking to folks about it, looking for investment and trials. I should have been protected, right? Turns out the joke’s on me… more than once.

  4. A corporate figure reads the published application on USPTO.gov and decides 'we should do this.'
    04

    Someone was reading

    Here’s the purpose of the patent system: to get constitutional protection, you publish exactly how it works so anyone can make it. In exchange, you get a time-windowed monopoly (in theory). The flip side is that fancy lawyers can read it and figure out precisely how to get around it (or just copy it outright). Someone at Big Corp found my filing on USPTO.gov and had a wonderful idea — my idea.

  5. Two corporate figures; one suggests licensing the technology, a masked figure says no one licenses technology.
    05

    'Hold my beer'

    The right thing to do would be to license the technology. But that’s not how Intellectual Property in America works these days. In this case, rather than license my idea, they decided to hedge and file their own application. Why license when you can copy — and then use that copy as a reason not to license? It’s so despicably brilliant that all the Big Corps are doing it.

  6. The masked figure points at claims on USPTO.gov and suggests rewording a term; the other asks if it isn't the same core concept.
    06

    Just reword it

    The plan was elegant: take the claims, swap a few words, and file. Now, when this stooge of an inventor (i.e., me) approaches us for a fair license, we can tell him to take a hike — we already have our own IP. Who cares if it’s a ripoff? It’s official.

  7. One figure says this all seems unethical; the masked figure replies 'perfectly legal.'
    07

    Unethical ≠ illegal

    Perhaps somebody in the room noticed this was unethical. The likely answer was the most American sentence ever spoken: “Yep — but perfectly legal.”

  8. The masked figure, finger to lips, reassures the other: 'No license fee, no downside.'
    08

    No downside (for them)

    No license fee. No downside. A win-win — for Big Corp… who cares if they didn’t invent anything.

    I'm giving away the ending here,
    but they got away with it too.

  9. The inventor stares at USPTO.gov showing the inventor's name crossed out and 'Big Corp' listed as owner; the masked figure watches through a window.
    09

    How is that legal?

    The official record now shows their name where mine should be. “They literally copied my text — how is that legal?” That question — and what I hope to do about it — is the entire reason this website exists.

But did they really copy my idea…?

I know every inventor thinks this because they don’t understand claim language. Just stick with me here. I can prove it.

Ask yourself: if they were willing to literally plagiarize text, what are the chances they actually invented anything? The whole point of the patent system is that others build on what came before. So yes, they very well could have added features or invented something novel, and the blatant and obvious text-copying could have been nothing but the work of a lazy attorney… but it’s not. It’s so much worse. Follow my journey, and I hope to prove it — to you, and to the USPTO.

That’s the “before.” The Post Grant Review is the “after” — my attempt to make the official record tell the truth.

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