PODIUM | Proposed legislation would combat patent trolls

By Laura Bradford

American manufacturers need the protection patents provide, but they don’t need bad actors trying to extort money from them by filing bogus patent infringement suits. That’s why, as the owner of a small, innovative manufacturing company that has been book-ended on the frontlines of two medical crises — first, the AIDS epidemic and now the COVID-19 pandemic — I support a new bill in Congress aimed at reining in the destructive tactics of patent trolls.

When the AIDS epidemic struck, it became apparent that dentists like my then-boss needed better personal protective equipment to safeguard both patients and caregivers against the disease. As a single mom in the 1980s, it was a struggle to get a Small Business Administration loan to start making protective gear. The system was clearly not set up for people like me, even to the extent that a woman’s application required the signature of a spouse!

But I persevered and today I am the president of the company I founded, ProSafe Products in Grand Junction. We are experts in engineering, manufacturing, inspecting and packaging the highest quality products for the medical, dental and dialysis industries. During the height of COVID, our company had some of the most efficacious products then available and was the only source U.S. caregivers and patients could turn to for them.

Companies like mine deserve to have their innovative designs protected by patents. But patents can also be misused to take advantage of manufacturers. In fact, very unfortunately, there is an active industry composed of companies known as non-practicing entities (NPEs), or patent trolls, that exist solely for the purpose of making money off of patent infringement claims.

These shell corporations produce no products and offer no services, but instead clog the courts with baseless patent lawsuits. They hope to obtain a monetary settlement from their targets — legitimate businesses that actually do contribute to the economy. Even though no one wants to settle, companies frequently do so to avoid the expense and resources wasted on mounting a legal defense. On average, patent lawsuits drag on for five years and cost more than $5 million in legal fees.

Patent trolls are a growing problem. Patent litigation increased by over 43% from first quarter 2020 to 2021, with the frivolous, meritless claims of patent trolls making up the majority of those legal actions. Their victims range from large high-tech and pharmaceutical companies to small manufacturers like me.

I am so concerned about patent trolls that I joined the US-MADE coalition to work with other manufacturers on this issue. It is an organization specifically focused on protecting U.S. manufacturers from frivolous patent litigation.

A promising new development is the recent introduction of the bipartisan “Restoring the America Invents Act” (RAIA), legislation that would reaffirm the benefits of a previous law that has been rendered less effective by counterproductive actions from the U.S. Patent and Trademark Office (USPTO) in the previous administration.

Ten years ago, Congress passed the America Invents Act (AIA). It worked, successfully improving patent quality (far too many patents misused by patent trolls should never have been granted in the first place) and enabling legitimate American employers to better defend themselves from unscrupulous legal actions. Abusive patent litigation dropped thanks to improved access to a post-grant review process the AIA established.

But since its passage, the AIA has been weakened by USPTO rule revisions that run counter to congressional intent and the law. Their unilateral changes have made it harder for manufacturers to challenge bad patents that should have never been issued in the first place, resulting in the highest number of patent lawsuits filed against manufacturers in years. The RAIA, if passed, would restore the AIA’s protections for manufacturers and help curb patent troll activity. Congress should act urgently.

U.S. manufacturing is the lifeblood of our country’s economy and vital to communities across Colorado and throughout the country. Let’s keep it that way.

Laura Bradford is the founder of ProSafe Products and was the first tenant in the Mesa County Small Business Incubator. She has been co-director of the state Womens Economic Development Council and represented House District 55 in the Colorado General Assembly from 2009 to 2013.