Protecting Innovation Starts with Protecting Small Inventors

by Jamie Simpson

Innovation often starts small. From Mary Anderson conceptualizing the windshield wiper while riding a streetcar, to Jennifer Doudna inventing the CRISPR gene-editing tool in a university lab, many breakthroughs originate with an individual pursuing a singular vision. Yet today, small inventors face mounting challenges in protecting their intellectual property from infringement by giant corporations.

Today’s patent system has become a game in which deep pockets trump true innovation. Inventors and scrappy startups spend years developing new technologies, pouring in their time, money, and ingenuity. They patent their discoveries to prevent copycats, giving themselves a shot at recouping expenses and earning a return. But too often, big companies swoop in and appropriate the technology, rather than trying to negotiate a fair license.

These behemoths have calculated that theft is cheaper than honest dealing. When confronted with accusations of robbery, they challenge the patent’s validity, claiming it never should have been issued in the first place. Essentially, rather than arguing “we didn’t steal it,” they claim that there was nothing to steal. Compounding this cynical approach, the big companies often open two battlefronts at once, fighting their smaller competitors both in federal court and at the Patent Trial and Appeal Board. They keep fighting until the smaller company runs out of money.

For the original inventors, it’s death by a thousand legal cuts. Even if a small startup somehow survives this war of attrition and proves its infringement case in court, the victory may ring hollow. That’s because courts often don’t issue an injunction forcing the losing party to cease and desist. Instead, they allow the theft to continue, merely requiring the offender to pay royalties to the victimized party. In short, inventors are forced to license their innovations to the very companies that stole them.

This system doesn’t just harm current inventors, but creates powerful disincentives for future innovation. When would-be founders observe that their work can be stolen with little consequence, they may choose not to pursue their ideas at all.

The situation is especially hard on women- and minority-owned startups, which already face many more obstacles than other companies. Female-founded startups receive less than 3% of venture capital investment, according to Forbes, and Black women business owners who apply for funding face a rejection rate three times higher than white business owners, according to Stearns Bank. These are just a few of the reasons women are underrepresented as inventors. Though they make up half the workforce, women were named on just 22% of patents issued in 2019.

“This system doesn’t just harm current inventors, but creates powerful disincentives for future innovation. When would-be founders observe that their work can be stolen with little consequence, they may choose not to pursue their ideas at all.”

Three pieces of legislation would restore fairness to our patent system and help policymakers ensure that inventors from all demographic groups are equipped to participate. The PREVAIL Act, which the Senate Judiciary Committee sent to the Senate floor in November, would reform the Patent Trial and Appeal Board to ensure that patent owners face challenges in only one forum at a time. This would make large companies think twice before pursuing a policy of strategic theft.

The proposed RESTORE Patent Rights Act is just as important, as it would encourage courts to grant “injunctive relief” to companies that win their patent disputes — that is, to order patent thieves to stop using the stolen intellectual property. This would return us to a commonsense principle: If someone is stealing your property, you should be able to make them stop, not just charge them rent.

“When we fail to protect their intellectual property, we don’t just harm them — we deprive the world of innovations that could create new industries, solve pressing problems, and generate economic opportunity for all.”

The Senate Judiciary Committee has also advanced the IDEA Act to the floor. This bill would direct the U.S. Patent and Trademark Office to collect data and develop recommendations aimed at expanding and diversifying participation in the patent system.

Together, these three proposals would encourage inventors of all backgrounds to develop and commercialize their innovations, knowing that their intellectual property is secure. If enacted, the bills would help level the playing field between small innovators and large corporations, making sure that the patent system fulfills its constitutional purpose of promoting innovation by protecting inventors’ rights.

Independent inventors and small startups make up a crucial part of the U.S. economy. When we fail to protect their intellectual property, we don’t just harm them — we deprive the world of innovations that could create new industries, solve pressing problems, and generate economic opportunity for all. That makes the choice before Congress clear. We can maintain a system that favors large, well-resourced corporations, or we can ensure that all inventors, regardless of their means or background, have a fair chance.

Jamie Simpson is the chief policy officer and counsel of the Council for Innovation Promotion.

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