Except for a period of time dating from the 90s to the late 2000’s, the patent system has generally been run by the big boys. They controlled Congress, they controlled the USPTO (they virtually nominated the director or commissioner as the case may be) and they controlled the courts through their amicus briefs.

With cases like VE Holdings, a somewhat inventor-friendly USPTO, and with an overall supportive Federal Circuit, the 90s and the 2000’s saw a strong appearance of contingency patent litigators. This industry was somewhat supported by big business itself who would “sell” their patents to assertion entities for the purposes of monetizing the patent portfolios. Recall, that Rembrandts in the Attic was published in early 90s.

All of this brought a strong reaction from big companies like those located in Silicon Valley, who took up arms and began strongly lobbying Congress and the courts. Thus we have cases like eBay and we have legislation like the AIA. We also have the invention of the word “troll” to defame and bias policymakers against anyone who is not a big boy.

In a sense we have returned to the status quo ante. This is not a good place for the small inventor, or for the startup. All we can do is point this out in places like this blog, and elsewhere. We are fighting City Hall. This is hard to do.

Small inventors and startups cannot afford a patent system with IPRs or reexaminations. Furthermore, a patent system is not a patent system at all without the the injunction. Even the likes of Apple has found it almost impossible to get an injunction even against willful infringers like Samsung.

We need to do something to fix this. I hope the Supreme Court takes Oil States and kills off IPRs. We will learn the fate of the constitutional challenge next Monday.