PART TWO - SMALL BUSINESS SUCCESS STORY(Michael D. Warner) THE PATENT PROCESS

Part Two of Small Business Success Story by Michael D. Warner

Copyright 2112 by Michael D. Warner All rights reserved.

Okay, time to apply for a patent. The patent attorney came highly recommended by a lawyer completely trusted by me. They had gone to school together and, “This guy is smart,” I was told. Hey, that’s a good enough introduction for me, so I high-tailed it the twenty or so miles to his office. We settled on an estimate of $2400 to secure the patent.

He had me explain to him how it worked. (Remember, I trusted this guy.) He had me back down there several more times to re-explain and to redraw simple circuit sketches of my system. Then, a couple months later, he had a young associate now working there who had me down a couple more times to re-explain the whole thing to him.

Whoa! I began getting bills from him at $90 per hour. I paid them, and waited patiently. Meanwhile, I was pretty busy making, selling and installing my boxes. Time flew. Glancing at the calendar one morning, I gasped. Uh-oh!! I knew only one calendar year was allowed in which to obtain a patent after making a device public (such as selling it or describing it in a magazine article or etc). My one-year was nearly up.

I called the attorney. He put me on hold then returned. “I’ll get it right out, he promised.”

Well, that day he put it into Fed Ex overnight delivery and it reached the U.S. Patent and Trademark Office (USPTO) on the deadline day. Time passed. The rejection notice came with notations: There were no less than fourteen errors in the application and some of the text obviously did not fit nor match up with the drawings. Turned down. Damn!

After hearing my complaint, the attorney told me it was typical to be turned down the first time and blah, blah, and he wanted the rest of his money which now amounted to $3500 plus, before he would continue. Geeze! I had already paid him more than $1200. So, I talked it over with the lawyer who had recommended him in the first place. He was aghast. He advised me to take it to the Bar Association’s Fee Arbitration Committee.

I did so. The nice lady there had me mail in my complaint along with all the circumstances. A couple days later, she called. Yes, they would accept my case. She also informed me that it would take at least eleven months before coming under consideration and I should just sit tight. Meanwhile, I informed the patent attorney that I had asked for arbitration. He told me he himself had served as a member of that board and that I had not a prayer of succeeding. I told him, “I guess time will tell.”

That conversation occured on a Friday afternoon. Two days later, Sunday afternoon, the phone rang. It was him. “Okay,” he told me. “Bring down the rest of the original $2400 and I’ll just forget the balance.”

What a dummy I was. I toted the remaining $1200 to his office the next day on Monday. His wife awaited, rather impatiently as I was running about forty-five minutes late. In fact, she was fuming.

“I’m late getting ‘my child’ to day-care because of you,” she hissed at me.

Dear Hearts, How often have I wished I had just torn up my check, dropped the pieces on the floor, and simply walked away. No, not this dummy. I apologized and handed her the check. It seems he was closing his office, and it did look pretty bare. No sign of the two secretaries. He had taken a job with Piper Aircraft somewhere in Florida as the attorney who would handle aircraft damage claims or something like that. What a faker! I really don’t hope the best for him, but you know fate always rewards behavior with like behavior. He’ll get his somehow, I’m sure. What a disappointment.

No, I never was able to overcome that miscreant’s poor performance. The USPTO does not allow amendments made to original drawings although one can amend the text-explanation. So, I was forced to use the “trade secret” method of protecting myself. Hey, Coca-Cola Company uses exactly that tactic. In many ways it’s better than patent protection, and a whole lot less costly. For any patent application to be successful it is required to be described so completely that, and I quote from the law: “..a person ordinarily skilled in that (same) art shall be able to construct a working model..”.

It’s rumored that Coke adds extra molecules that “cloud” their precious chemical formula so that a prying analyst is unable to determine just what the real formula is. I don’t know about that but I immediately began “clouding” my electronic circuitry with needless extra components hoping to achieve the same protection should anyone actually get into my boxes.

An experience one inventor suffered by someone stealing his idea gave me pause to reflect upon the practical side of the patent process. Here’s what is likely to happen: I file the drawings and the accompanying explanation of them with the USPTO. Let’s assume a patent (called ‘letters patent’) is granted. Now, my circuitry and its complete description has become public record and anyone at all can view it at their leisure in any of the USPTO repositories, like at the Price Memorial Library at Georgia Tech and many other locations around the U.S. (This is before the internet existed.)

Let’s say that an unscrupulous person or company copies my invention, produces it, sells it and makes money from their theft. I hold the valid patent. What are my possible (practical) recourses? Well, a lay person immediately will scream: “Sue ‘em!”

Oh, really? Let’s give that some thought. First, I have to be aware of the theft. Meaning: How do even I find out someone is producing and selling my stuff? A very good question. Much time might pass before I would even have an inkling that something was going on.

Now, suppose I do have a suspicion that someone has copied my circuit, boxed it and installed it on a customer’s communication line. What do I do? Should I sneak in, bust open that box and take a peek? How do you think the owner is going to respond to that? Or, maybe I should ask permission first? Do I think there is even a remote chance someone with expensive protection equipment will let me “tamper” with it?

Let’s get real. That is a big problem. Anyway, let’s assume I do find a copy somewhere. Okay, here’s the expected outcome: A large corporation will tie you up in court for several years while they make money from your idea. (Just how much money have you set aside to fight a big company in court? It ain’t free, Honey!)

Okay, a small operator will simply make his money then bankrupt out from under your action. Yes, you might pursue criminal penalties, if you can figure out just which one of them actually did it, but what will that get you and your company? In other words how much money and time are you willing to waste? My thought is that it depends entirely on the present and future value of your idea.

The case I referred to above is when General Motors as I recall (of all companies) stole patented ideas for the laser which had been invented by J. Gordon Gould. It took over thirty years for him to finally receive justice in court. The attorney who took his case had not yet begun high school at the time of the invention. His eighteen year old daughter had not yet been born. Yet, J.G.G. stayed the course and fought as well as he could afford.

His young attorney faced a battery of opposing lawyers who represented the well-heeled client. The defense literally had boxes and boxes of “evidence” supporting their (illegal) claim to the idea. The judge heard arguments, and somehow decided reviewing the multitudinous boxes of papers would be entirely unnecessary.

The true inventor was awarded his claim! The first payments ordered were so-many million dollars per month for the first six months then a “negotiated” amount to follow, based on agreed-upon future profits the Detroit company would be expected to realize.

Our Inventor’s Club feted that valued inventor with a dinner at the Marriot in Atlanta. That night, the Nobel Laureate addressed our group of inventors, telling us that, yes, it was nice to finally get his due rewards but he was now sixty-four years old and he had really needed that money many years earlier. Then, his attorney gave a short talk. Later, those of us who had been awarded the Inventor’s Club “New Product Award” mounted the stage to accept our plaques. Mine hangs on the wall overlooking my shop area. It’s a bit dusty now, but brings back serious memories of that occasion.

That night, my eldest son and myself shared another “New Product Award”, an automotive device which cuts out the air conditioning compressor during vehicle acceleration. Its obvious advantage is use in smaller, low-powered vehicles, like when attempting to speed up upon entering an interstate lane and etc the a/c compressor, drawing much of one’s horsepower, really retards one’s acceleration.

To sum up this chapter of my business experience: I do occasionally wonder whether anyone has stolen my idea to date. I did discover that at the time my failed attorney ineptly handled my application he also was handling a case for a company who would have killed to learn my secrets. Why? Because, they manufactured fuel control systems which suffered the same damage as the ones I had been protecting and my stuff would have worked magnificently on their’s as well.

Now recalling the low character displayed by my miscreant lawyer, I do really sometimes wonder. I know where some of their installations are but I don’t hold a patent and actually have made enough money ...why waste that time? Anyway, writing about it is much more fun!

Coming Next: Several episodes of “learning it the hard way” among other misadventures.

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