Mandy Haberman lifts the lid on US patent courts

 

Recommended – nay, required – reading for all inventors, and particularly those thinking of patenting an invention, is UK inventor Mandy Haberman’s Riding the American Rocket. This is the compelling, even hair-raising saga of how she defended the patents for her invention, the Anywayup Cup, in the USA.

The ‘in the USA’ is significant because, while it’s expensive and hazardous for inventors to defend their patents anywhere, defending them in the USA is particularly daunting for two main reasons:

Extreme cost. According to Mandy, easily $4m for a fairly simple case, making it around four times more expensive than in the UK. And get this double whammy: ‘Costs can be so high that they might exceed any damages awarded so, even if you win, you lose.’

Prejudice. Mandy is diplomatic about this: ‘American citizens are a rather loyal bunch and somewhat protective of their own.’ Which is code for ‘Expect a rough ride in US patent courts if you’re not American’. That said, Mandy is gracious enough to conclude that ‘the US system works well and we non-Americans should have more confidence in it.’

As a blow-by-blow summary of lengthy and complex legal proceedings, this is an admirably concise (five pages) and well-written account that will be easily understood by non-experts.

What comes across well is the sense that large companies think they can infringe the IP of inventors or small companies with virtual impunity, and that it is a brave and determined inventor who dares to fight back.

Running through the narrative is the disturbing reality that it’s money, arrogance and dirty tricks that determine most outcomes, not right or wrong. Or as Mandy chillingly puts it: ‘A lawyer once told me that in litigation there is no such thing as justice, just winners and losers.’

Given that US patent disputes can drag on for years (though the USA doesn’t have a monopoly on slowness), the stress cost can be just as much a deterrent as the financial cost. At one point, Mandy writes: ‘If I thought I was stressed before the trial, I clearly did not know the meaning of the word.’

Without passion, most inventors would give up

But the sense of injustice – ‘They were using my invention and taking all the credit’ – probably motivated Mandy, as it does other inventors, at least as much as the loss of revenue caused by infringement.

If passion were taken out of the equation, it’s probable that most inventors would give up without a fight and be regarded as sensible if crushed losers. Which, if course, is exactly the calculation infringers rely on, and which encourages them to carry on infringing.

Despite its general positivity, Riding The American Rocket is a tale of one part hope, several parts despair. Yes, Mandy won – or got satisfaction – which proves that David can win against Goliath.

But the process she describes is so evidently and remorselessly weighted against inventors and small companies – and weighted against them everywhere, not just in the USA – that Goliath is going to be the victor far more often than not.

That just has to change – particularly in the UK, which is now one of the few European states that does not treat patent infringement as a crime.

Until the UK government drops its complacency and starts to stand behind its inventors and innovators, the UK economy will continue to haemorrhage innovative technology to overseas infringers.

By doing no more than read Riding The American Rocket, even the dopiest politician can see how easily IP is stolen from the UK and how hard it currently is to stop it happening.

Riding The American Rocket by Mandy Haberman can be downloaded free from her website. It was first published by Informa Law in its IP Supplement, World Extra 2008.

 

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