The Story

The even longer version is broken up into the dispatches. That's where the really interesting details are. I'll update those as new developments occur.

I had an idea, and I did everything right

I am an inventor. Not the venture-backed, hoodie-wearing kind — the soldering-iron, oscilloscope-on-the-bench, this-actually-has-to-work-in-an-oil-field kind. The idea was an oil-well-pump instrumentation system. It involves detecting a very slow rotation. It involves inertial sensors like in your cellphone, but used in a completely different way. The details aren't important here, but I thought it was good enough to protect.

So I did the thing everyone tells you to do. It's at least part of the American Dream. I filed a patent application. I paid the fee, I made a Constitutionally backed bargain. The United States Patent and Trademark Office cashed my check without hesitation — funny how the money never has trouble finding the door. But the most important end of that bargain was pulled out from under me.

Then I did the other thing you're supposed to do: I built it. I turned the drawing into a product.

The Corporate IP Pirate

The bandit. I'm not saying this is a person, just a persona. In reality, there were many individuals, and I doubt any of them wore a mask like this. This is just my interpretation and personification of the party that helped run this ship aground.

The examiner

The examiner was driving the ship. The examiner had the responsibility. The gatekeeper. The one who actually could have, and should have prevented all of this. In reality, there were two examiners, and they share the responsibility. Hey, people make mistakes.

I get it, mistakes can be fixed. But these are big ones (a ~$60,000 mistake). And it falls on me, the guy on the sidelines, stranded on that island, to call out the flaws and try to fix the screwups. No one else in the picture above will face any consequences, only me… the innocent party.

The system worked exactly as designed — against me

Here is the bargain at the heart of the patent system: in exchange for protection, you publish precisely how your invention works. You hand the world a complete, public, taxpayer-hosted instruction manual, on the promise that the law will have your back if someone copies it.

Someone copied it.

Someone at what I'll politely call Big Corp found my published application on USPTO.gov and had a terrific idea — specifically, my idea. Did somebody suggest they simply license the technology?

Pay for it?

Do the right thing?

No, the Corporate IP Pirate had a better plan. In reality, it was almost certainly not any single individual but a whole committee of pirates who orchestrated this — because it takes a village to get a bad patent. And the USPTO built that village.

"Just reword it"

The plan was elegant in the way that all bad plans are elegant: simple, bold, too simple to actually work. Take the actual text, change a few words, and re-file. Isn't that the same core concept? Yes. Of course it was. That was the entire point. At worst, muddy the waters. At best (and they got their best possible outcome), show the actual inventor they have no intention of behaving ethically. No intention of licensing the technology. It's theirs now, blessed by what I can only call an incompetent examination. On my most cynical days I've wondered whether it was something worse — but that's a suspicion and an opinion, not a claim of fact, and I'll get to it eventually.

Did somebody ask if this all seemed a little unethical? If so, the response was the most quietly American sentence I have ever encountered:

Yep — but perfectly legal.

No license fee. No downside. A genuine win-win, for everyone but the guy who actually invented and developed the technology in the first place.

I tried to stop it — and I paid a fee on top of that

When their reworded application published, I didn't sit on my hands. There's not much you can do when you see a bad patent being examined. There's almost nothing you can do when you see a bad patent being examined poorly.

But, there is one option that, at least in theory, is perfectly suited for this scenario. I filed a third-party preissuance submission against it — the exact mechanism Congress built for this situation, under 35 U.S.C. § 122(e) and 37 C.F.R. § 1.290 (see MPEP § 1134.01). I paid the fee. I thoroughly cited the prior art — including my own published application, the very document they had been reading. I also cited another incredibly relevant reference. That's a whole story of its own, but the short version is that it was basically my invention too — only written up by someone else, through the grapevine, so to speak.

That's right: for the fee I paid (see the statutory refs above), the USPTO should have taken a closer look, and all of this would have been avoided. And here's the maddening contrast — there are two examiners in this story. My own application got a rigorous examination: my examiner pushed back hard, over multiple office actions, and made me earn every claim. Their examiner, reviewing the knockoff, did the opposite. I'll get to the specific line items in a future post, but for now, trust me when I say that examiner clearly did not read the thoroughly documented content in the submission. None of that highly relevant content was discussed in the examiner's correspondence. If it was irrelevant, that's one thing (it wasn't), but nothing of substance made it into any office action. Why did I even bother to prepare that submission? It's as if the examiner treated entering the document list in the record as the whole job — as if checking that box magically indicates the documents were considered. Not reading them. Not understanding them. Not combing through them for clearly preexisting claim elements. (To be fair to the rule, the MPEP says the opposite: the documents “will be considered by the examiner” — see below. My gripe is that here, that consideration plainly never happened.) Literally another cut & paste job (the document numbers this time, not the actual substance). I wish the examiner had cut and pasted literally anything from my third-party submission.

“Considered.” Realize that single word is doing a heroic amount of work. Yes, the art went into the file. Yes, a box somewhere got checked. But the substance — the exhaustive, squarely-on-point prior art I had paid to put directly in front of the examiner — never got a rigorous review. Their examiner did not do the one thing that would have made all of this unnecessary: actually read the cited art and apply it.

And that's the whole tragedy in one sentence: had their examiner done that job, the patent would never have issued, and I would not be writing any of this. You don’t need a Post Grant Review when the ordinary review works. The PGR exists because, upstream, a fee I paid bought a rubber stamp instead of an examination.

And now the record is wrong

So here is where I am. The official record — the public, government-stamped, this-is-the-truth record — now shows their name where mine should be. I read it and I had exactly one coherent thought, the same one you'd have:

They literally copied my text. How is that legal?

They copied my idea, how did the USPTO allow that?

The examiner screwed up, how am I on the hook for yet another, much bigger expense?

Those questions are the whole reason this website exists.

So what is a Post Grant Review?

A Post Grant Review (PGR) is a proceeding at the USPTO's Patent Trial and Appeal Board that lets you challenge a patent shortly after it issues. It is, in the framing of this site, the inventor's last best hope to fix things when the USPTO screws up — a formal do-over for an Office that got it wrong. At my expense, not theirs.

It's good that the process exists. Everyone makes mistakes; institutions need a way to correct them. But the thing is: by the time you need a PGR, the system has already failed you at least once. In my case, multiple times. I had already paid the fee for a third-party preissuance submission that put the dispositive prior art squarely in front of the examiner, earlier and far more cheaply. It was flatly ignored. Prior art was ignored (I shouldn't have had to lead the examiner straight to the very paragraphs). Huge and obvious mistakes were made on a procedural level. Typos, proofreading, misapplied precedents, the list is quite long.

For the record, I'm not frustrated that my goals were not achieved or that I was effectively robbed of my constitutional right. I'm frustrated that the knockoff application didn't have to address very substantive questions. Questions I had to survive in my patent. They literally didn't have to answer any hard questions. And, on a woefully thin disclosure. This alone should raise some red flags. There are easy examiners and hard examiners. That's way too subjective for such a critical process. There are ZERO safety valves in the process. Only expensive corrective measures after the damage is already done.

And the further irony of my situation, the PTAB (aka, the Patent Death Squad) until very recently was a strategic tool used by these big corporations against folks like me. And here I am with a painfully obvious case of a bad patent, heck anyone with eyes and a high school diploma can see and understand what happened to me. But, the way the system is structured, it is financially untenable to get justice, even though I did everything right.

I am not going to pretend I'm a disinterested observer, and I'm not going to pretend pursuing this is the financially rational move. Yes, I know I am an idiot for pursuing this. I welcome constructive criticism — genuinely.

My goal here isn't sympathy. It's daylight. I want to document, step by step and in plain language, how the US innovation economy treats the people it claims to celebrate — and what it's actually like to fight back through the one process that's supposed to make it right.

Congress needs to fix this mess. What good is a patent if the gatekeepers (the USPTO) don't adequately keep that gate secure?

Follow the dispatches →  ·  See the docket →