By Nate Jones
Staff Writer
If you’ve seen the “inventors wanted!” advertisements on television, you might have thought about what it would be like to invent something, and maybe even had a specific idea. While many may dream of collecting royalties, for people like Ian Engelman of Scarborough and Shalom Mertzberger of South Portland, inventions and patents are a part of everyday life.
Although the inventor community in Maine is a small one, it is speaking very loudly about a recent patent reform bill that could affect most, if not all of the country.
The Patent Reform Bill (H.R. 1908) has been a controversial topic ever since it passed in the U.S. House of Representatives on Sept. 7. The bill has been backed by large corporations since its inception; Mark Bohannon, general counsel and senior vice president for public policy of the Software and Information Industry Association (SIIA), one of the nation’s largest group of software developers, said that the new bill will “enhance and make the patent process stronger.”
The Coalition for Patent Fairness, with members including Microsoft, Time Warner, Visa, Apple, Amazon.com, Google and Intel, has also supported the bill.
Opposition to the bill has come mostly from politicians concerned about implications it may have for individual inventors and small business owners such as Engelman and Mertzberger. Congressman Michael Michaud (D-Maine) said “there is no question the patent system needs an update,” but voted against the bill, which he called “fundamentally flawed.” Mark Sullivan, a spokesperson for Congressman Tom Allen (D-Maine), who voted for the bill, said Allen “believes that [the bill] will make important reforms to the patent system.”
Mertzberger, president of Saltamar Innovations Patent Practice in South Portland, and the inventor of the soon to be advertised “Static Off!” anti-static light switch cover, agreed with Michaud by saying the current patent law does have its flaws. Mertzberger said although there are some people who try to abuse the current patent system by making unfounded claims and challenging valid ones, it is not often that they are successful.
“The system isn’t perfect,” said Engelman, the president of Insightful Products in Scarborough. “But it still fosters innovation.”
Engelman holds patents on several medical ankle braces, and invented the “Foot Funnel,” a hands-free shoehorn for people with limited maneuverability.
Bohannon said the bill is aimed at curing many of these existing litigation problems in the patent system, and will help streamline the process as a whole. Allen also believes the bill “will encourage technological innovation and economic opportunities,” Sullivan said.
As a patent agent, Mertzberger works with inventors such as Engelman throughout the patent application process, which he said “gives inventors the right to prevent others from using their inventions.”
“It’s like putting your stake in commonly owned ground,” he said. “And then letting people know that you own the stake.”
The bill in question, H.R. 1908 enforces a “first to file” rather than the current “first to invent” clause, which Mertzberger said small inventors and businesses “could still work with” since most modern inventors know when to release their inventions and when to keep them private.
While the “first to file” clause may not affect inventors who know how to keep a secret, the bill also mandates that inventors release their invention to the public 18 months after beginning the application process.
After going public, “the patent will go to whoever gets money to the patent office faster, and you know who that will be,” Mertzberger said.
“We’re really beyond this issue,” Bohannon said. He said the SIIA believes “first to file” would have little effect on the inventing community.
The bill also aims to change the current “damage apportionment” system. The term refers to damages awarded when a patent is infringed upon by another inventor. The current patent system “promotes inventors to share licensing rather than to settle in court,” Mertzberger said, since the potential revenue from a shared license are often greater than a single court settlement.
According to “Business Voice,” a publication of the U.S. Business and Industry Council Educational Foundation, about 1.6 percent of 183,000 patents granted in 2006 resulted in a lawsuit being filed, out of which 1,409 settled before pretrial, 1,307 reached a licensing agreement during trial, leaving only 102 cases to reach a court decision.
Under H.R. 1908, the damages awarded to inventors would only consider the cost of the physical parts and labor required in improving an existing product, and would not allow courts to take into account the years of development and financial investments Mertzberger said are often required to obtain a patent.
Mertzberger said the changes to apportionment, along with a two-strike policy for patent infringers, would significantly reduce large corporations motivations to share licensing rights with inventors. Engelman  agreed with Mertzberger, also saying it could potentially reduce royalty revenues by as much as 300 percent.
“Right now I can send a letter and threaten triple damages to infringers,” Engelman said. “This bill removes that power of the small inventor.”
The proposed apportionment system, combined with granting the patent office the power to change patent law internally, is aimed at eliminating what Bahannon called “the many abuses of the patent system” by overzealous inventors and their claims.
Sullivan said Allen also believes it will “make important reforms to the patent system, including streamlining the process and challenges to questionable patents.”
Mertzenberg, however, believes the reforms are extreme.
“You have some people that drive drunk,” Mertzberg said. “They’re trying to eliminate driving.”
H.R. 1908 is making an impression overseas as well, according to Michaud.
“U.S. competitors are watching the debate, and they are poised to take advantage if we make a mistake with our patent law,” Michaud said.
Michaud referenced an Indian publication “Economic Times” which said the bill will “give a new inexpensive option for Indian drug makers to attack” certain patents held by U.S. drug companies.
“And surely, Indian pharmaceutical interests are not the only ones watching,” Michaud said.
Mertzberger and Engelman said they will immediately feel the effects of H.R. 1908 if passed in the Senate and signed by the president, which Michaud said could be very soon.
“I will go from a research and development company to a service provider,” Engelman said.
However they believe it may take some time for general consumers to realize the gravity of the change.
Mertzberger said he believes that large corporations would “stagger technological progress” for economic gain once individual inventors are stifled by the bill. This would result in the public constantly being several steps behind technological advancements in products varying from computer chips to modern medicine, Mertzberger said.
 “Why should corporations jump to innovation?” Mertzberger asked, “And why should I, as an inventor, let people know about my ideas if they are not protected?”
Engelman said he worried about the technological progress being dependant upon large corporations for a different reason.
“Big corporations are lousy at inventing,” Engelman said. “Most inventors need an environment free from judgment to allow the kind of out-of-the-box thinking that creates useful products.”
Engelman said he fears that even if the bill does not pass in the Senate, it would end up in limbo. The threat of such a large change in patent law is nearly as effective as its passing, Engelman said, forcing current inventors to “roll the dice.”
Engelman said he hopes that the bill is “trashed” in the Senate and results in a more moderate reform in the patent law.