How small inventors are
fighting back to defend
their creative ideas
By KATHERINE BURTON
WHEN AN ALZHEIMER'S patient at a California group home wandered off one day and couldn't find his way back, Bernadine Narcisse, the administrator, came up with what she thought was a great idea.
Narcisse proposed the development of a transmitter that elderly paitients could wear on their wrists or ankles. If they went too far afield, an alarm at the home base would sound.
So in 1986, Narcisse, a former nun who had belonged to the order of the Little Sisters of the Poor, shelled out $1,800 to patent her idea. Some time later, while she was still trying to bring the product to market, she saw a newspaper advertisement for child safety bracelets that would sound an alarm when a child wandered outside a certain range.
Patent infringement? Experts familiar with Narcisse's storky believe she has a good case. But the 52-year-old amateur inventor laments. "I don't have the money to go around chasing people. I've spent $25,000 to $30,000 on lawyers fees, patents and getting a model built."
Narcisse's situation is not unusual. For years, the geniuses behind a number of successful products have claimed that patent infringement by large companies has cost them millions of dollars in earnings, among them the inventors of Hot Wheels toy racing tracks, intermittent windshield wipers, snowmaking machines and the laser. Gaining restitution was an uphill battle; pursuing a patent infringement case can cost more than $500,000 and take 10 or more years to settle.
But conditions are improving for independent inventors. In recent years, say experts, more patent infringement cases have been brought to trial and more money awarded to plaintiffs than ever before. And patent attorneys agree that companies are taking inventors' patents more seriously.
"This is the golden age for inventors," says Alexander Marinaccio, president of the Atlanta-based Inventors Club of America. "The courts are upholding more patents than ever before."
Statistics show that about one in every 400 patents is involved in an infringement lawsuit, although patent lawyers say only 5% to 10% of all cases ever go to trial. Awards which averaged $2 million in the early 1970s, have climbed to $18 million, according to a survey done at Boston University.
The main reason for the more favorable environment experts say, is the Court of Appeals for the Federal Circuit. This court, established in 1982, hears all appeals in patent related cases from the Federal Patent and Trademark Office and from federal district and circuit courts. Because this is the first centralized patent court, precedents are now established that are passed to lower courts, which means patent decisions in all courts are more uniform and predictable, says Henry Skillman, director of the American Society of Inventors, an advocacy group based in Philadelphia.
Though only a tiny percentage of all inventions are commercially viable, the U.S. Office of Management and Budget says that more than half of the major technological advances of the 20th century have come from individual and small-business inventors.
One of the most prolific independent inventors is Jerome Lemelson, who has held roughly 400 patents (since patents expire after 17 years, he currently has only 150). That is more than any other American inventor except for Thomas Edison and Edwin Land, creator of the Polaroid camera.
Inventions of all kinds:
Lemelson, who has invented products as diverse as the Velero dart and the industrial robot, has had his share of patent infrigement charges against large companies, and is currently in negotiation over half-a-dozen possible infringements ranging from computer vision systems and video cassette recorders to credit-card verification machines.
His greatest triumph came last year over a much less sophisticated product: The Hot Wheels flexible track made by the Mattel toy company. Nineteen years after Lemelson wrote to Mattel about an infringement on his patent, and after two trials, he was awarded $70 million, including interest, the highest jury award ever in a patent infringement ease. The case is under appeal and will probably be heard by the federal patent court in December or January. Lemelson's story is typical. In the mid-1960s, he invented a flexible track for race cars for which he was granted a patent. By 1967, he was shopping the idea around, but no toy companies were interested. Less than a year later, Mattel came out with the Hot Wheels track.
The jury found Mattel guilty of willful infringement, but Lemelson acknowedges that at least some patent infringements are accidental. "I have had a large number of ideas pirated, but there have been other ideas that I'm sure were marketed and manufactured in innocence."
Lemelson's lawyer, Gerald Hosier, says that when Lemelson approaches companies, 99 times out of 100 they will make some excuse or say Lemelson's patent should never have been granted.
"Eventually, you either reach an amicable agreement; a license which is some percentage of the sales price of the product; or you go to trial," says Hosier.
John Pegram, a patent attorney at Davis, Hoxie, Faithfull & Hapgood in Manhattan, feels that companies now are being more careful. "The Court of Appeals for the Federal Circuit has made it clear that a companv must act with responsibility when accused of infringement. It must ask what a' respectable businessman would do under a given situation."
Yet many inventors feel they are still getting squashed by big business. One highly publicized case was Robert Kearns' fight against Ford Motor Co. over the right to produce the intermittent windshield wiper.
Kearns, who declined to be interviewed for this article because of the continuing litigation, was awarded more than $5 million from Ford last summer by a judge who ruled that the car maker had stolen the idea. Kearns has suits pending with more than 20 other car companies.
Blink of an eye:
Kearns' idea grew out of an accident on his wedding night in 1963, in which a cork from a champagne bottle almost blinded him. He realized that blinking helped clear his eyes, and this inspired the intermittent wiper.
A few years later, he got a patent and began six years of talks with Ford, which never went anywhere. In 1972, Ford came out with intermittent wipers of its own, and the invention soon spread throughout the industry.
During his 12-year fight with Ford, Kearns had a nervous breakdown. He also was dropped by three law firms. The firms said he was an uncooperative client and questioned the actions of his son, Dennis, who had allegedly carried a .45-caliber pistol to a meeting with Ford's lawyers and had an affair with a paralegal from an opposing firm in order to obtain documents.
Future inventors may have an easier time in fighting big companies. A few lawyers who have had success with patent infringement cases are starting to take on clients on a contingency-fee basis. At least one insurance company, HLPM Insurance Services of Louisville, offers inventors $250,000 of legal fee coverage for about $4,500.
But that doesn't change the problem of inventors spending time protecting their patents rather than inventing. Most have attitudes similar to Lemelson's:"I spend too much time in court, but that's the name of the game."
