I shall repeat that figure, so that it may sink in…
That is what my Bunch O Balloons patent has cost.
Yes, we are talking about water balloons, not smartphones!
How can this be? When a patent is issued by the U.S. Patent and Trademark Office it means nothing more than an invitation to infringers like Telebrands and Walmart to make cheap knock-offs. They simply ignore the patent and rush to take over the market with their knock-offs (Balloon Bonanza in 2015, Battle Balloons in 2016, and Easy Einstein Balloons in 2017). Ironically, they use the revenue from the knock-off to hire attorneys and experts to challenge the patent, claiming it is invalid. If the patent owner lacks deep pockets (most commonly the case) or good lawyers (often the case), their patent will not survive (only 16% of patents survive this process). Even if the inventor does have access to infinite funds, they have the slimmest chance of survival, thanks to America Invents Act (AIA) and the USPTO’s implementation of the Patent Trial and Appeal Board (PTAB).
In 2011, Congress created a new administrative tribunal in the U.S. Patent Office with the power to cancel previously granted patents, called the Patent Trial and Appeal Board (PTAB). The PTAB was created to provide an efficient and inexpensive administrative process for eliminating what are called “bad patents.” The PTAB takes away the property of inventors without due process. Inventors have endured risky journeys to invent, develop, and bring to market inventions and technologies with the understanding that the American patent system will afford them substantial protections and thereby reduce the risks for them and for their investors. That promise does not materialize. AIPLA reports that the average cost for an AIA trial is $450K. How many inventors have that kind of money laying around?