{"id":7166,"date":"2018-10-25T20:21:30","date_gmt":"2018-10-25T20:21:30","guid":{"rendered":"https:\/\/cpip.gmu.edu\/?p=7166"},"modified":"2026-02-10T20:28:48","modified_gmt":"2026-02-10T20:28:48","slug":"new-invalidated-documentary-highlights-the-problems-with-the-ptab-free-screening-on-october-26","status":"publish","type":"post","link":"https:\/\/blogs.uakron.edu\/ualawip\/2018\/10\/25\/new-invalidated-documentary-highlights-the-problems-with-the-ptab-free-screening-on-october-26\/","title":{"rendered":"[Archived Post] New \u201cInvalidated\u201d Documentary Highlights the Problems With the PTAB: Free Screening on October 26"},"content":{"rendered":"<p><strong style=\"font-size: revert\"><em>By <a href=\"https:\/\/cip2.gmu.edu\/about\/our-team\/devlin-hartline\/\" target=\"_blank\" rel=\"noopener\">Devlin Hartline<\/a> and <a href=\"https:\/\/www.linkedin.com\/in\/aditi-kulkarni-84596613\/\" target=\"_blank\" rel=\"noopener\">Aditi Kulkarni<\/a>*<\/em><\/strong><\/p>\n<p>[The \u201cInvalidated\u201d documentary will be screened this Friday, October 26, at 5:30 PM in Washington, D.C. To register for this free event, which features a presentation by Bunch O Balloons inventor Josh Malone among others, <a href=\"https:\/\/www.eventbrite.com\/e\/invalidated-the-shredding-of-the-us-patent-system-oct-26-in-washington-dc-tickets-51365299995\" target=\"_blank\" rel=\"noopener\">please click here<\/a>.]<\/p>\n<p>Imagine that you\u2019re a father of eight children who puts everything on the line to bring your invention to the marketplace. After a successful Kickstarter campaign that brings in close to $1 million, you protect your invention by securing several patents on the innovative technology. Your invention is a huge market success, and sales exceed your wildest dreams. When the copycats come along, you think your patent rights will protect you. After all, that\u2019s what the patent system is for. But you quickly realize that the system is stacked against you, the lone inventor, and it instead favors the large companies that willingly violate your rights for profit.<\/p>\n<p>While this horror story may sound farfetched, it\u2019s exactly what happened to Josh Malone, the inventor of <a href=\"https:\/\/www.bunchoballoons.com\/\" target=\"_blank\" rel=\"noopener\">Bunch O Balloons<\/a>. And the unfortunate reality is that Malone is not the only inventor to be let down by the patent system that is meant to protect inventors from unscrupulous infringers. Thankfully, Malone is not taking things lying down. Not only is he <a href=\"http:\/\/www.ipwatchdog.com\/2017\/07\/16\/real-staggering-cost-getting-patent-ptab\/id=85639\/\" target=\"_blank\" rel=\"noopener\">fighting for his rights<\/a> in the courts and at the U.S. Patent &amp; Trademark Office\u2014the very Office that granted him the rights in the first place\u2014but he also has become a vocal activist <a href=\"https:\/\/www.ipwatchdog.com\/2018\/05\/07\/ptab-reform-urgent-request-independent-inventors\/id=96922\/\" target=\"_blank\" rel=\"noopener\">fighting to reform<\/a> the patent system. In fact, Malone is now telling his story in a new documentary entitled \u201cInvalidated.\u201d The full video, which prominently features CPIP Founder <a href=\"https:\/\/cip2.gmu.edu\/about\/our-team\/adam-mossoff\/\" target=\"_blank\" rel=\"noopener\">Adam Mossoff<\/a> and runs about 50 minutes long, is available at both <a href=\"https:\/\/itunes.apple.com\/us\/movie\/id1407074454\" target=\"_blank\" rel=\"noopener\">iTunes<\/a> and <a href=\"https:\/\/www.amazon.com\/dp\/B07G2WGTK6\" target=\"_blank\" rel=\"noopener\">Amazon<\/a>.<\/p>\n<p>You can watch the trailer here:<\/p>\n<p><iframe loading=\"lazy\" title=\"&quot;INVALIDATED&quot; The Shredding of the US Patent System - TRAILER\" width=\"560\" height=\"315\" src=\"https:\/\/www.youtube.com\/embed\/wPL-RZeRN0Q?feature=oembed\" frameborder=\"0\" allow=\"accelerometer; autoplay; clipboard-write; encrypted-media; gyroscope; picture-in-picture; web-share\" referrerpolicy=\"strict-origin-when-cross-origin\" allowfullscreen><\/iframe><\/p>\n<p>Inspired by childhood memories, Josh Malone invented Bunch O Balloons to solve a real-world problem. His invention allows anyone to fill and tie around 100 water balloons in just one minute. As a child, he spent days filling up hundreds of water balloons to play with his friends. Though he eventually stopped playing with balloons, the idea of finding a better way to play never left him. His idea finally materialized through a method to save his children\u2019s time by filling several balloons at once. Malone burned the midnight oil perfecting his invention, and his family also invested their time and efforts backing his venture. After failing through several experiments and exhausting their savings, Malone finally succeeded with Bunch O Balloons.<\/p>\n<p><img loading=\"lazy\" decoding=\"async\" class=\"aligncenter wp-image-7169 size-full\" src=\"https:\/\/cip2.gmu.edu\/wp-content\/uploads\/sites\/31\/2018\/10\/Bunch-O-Balloons.png\" alt=\"Patent figure for Bunch O Balloons: fluid source leading down to balloons, which are fastened to a series of small tubes extending from the nozzle\" width=\"297\" height=\"558\" srcset=\"https:\/\/blogs.uakron.edu\/ualawip\/wp-content\/uploads\/sites\/1670\/2018\/10\/Bunch-O-Balloons.png 297w, https:\/\/blogs.uakron.edu\/ualawip\/wp-content\/uploads\/sites\/1670\/2018\/10\/Bunch-O-Balloons.png?resize=160,300 160w\" sizes=\"auto, (max-width: 297px) 100vw, 297px\" \/><\/p>\n<p>Ready with the product\u2019s final prototype embodying his invention, Malone shot a video for a <a href=\"https:\/\/www.kickstarter.com\/projects\/bunchoballoons\/bunch-o-balloons-100-water-balloons-in-less-than-1\">Kickstarter campaign<\/a> to advertise his product and to raise some much-needed funds. The campaign was a hit, bringing in close to $1 million. Malone was even <a href=\"https:\/\/www.today.com\/parents\/dad-creates-efficient-way-have-water-balloon-fight-tests-it-1D79990757\" target=\"_blank\" rel=\"noopener\">interviewed<\/a> on the Today Show, where he got into an impromptu <a href=\"https:\/\/www.today.com\/video\/today\/55747143\" target=\"_blank\" rel=\"noopener\">water balloon fight<\/a> with Carson Daly. The purchase orders then started pouring in from toy manufacturers and big retailers like Walmart. They were all interested in profiting from the competitive advantage they would get from Malone\u2019s novel\u2014and fun\u2014invention.<\/p>\n<p>On realizing his invention\u2019s strength and wanting to protect it from potential infringers, Malone filed several patent applications with the U.S. Patent &amp; Trademark Office (USPTO). While the patent applications were pending, Malone came to know that a product nearly identical to his own was being advertised and sold in the marketplace under the name, \u201cBalloon Bonanza.\u201d Investigating further, Malone realized that Telebrands, the marketing company that originated the \u201cAs Seen On TV\u201d advertisements, had stolen his idea and begun selling knock-off versions of his invention.<\/p>\n<p><img loading=\"lazy\" decoding=\"async\" class=\"aligncenter wp-image-7170 size-full\" src=\"https:\/\/cip2.gmu.edu\/wp-content\/uploads\/sites\/31\/2018\/10\/Balloon-Bonanza.png\" alt=\"Image comparison of Bunch O Balloons versus Balloon Bonanza. Almost identical, except for differences in colors (Bunch O Balloons has a medium blue attachment and blue tubes. Balloon Bonanza has a darker blue attachment and clear tubes.)\" width=\"526\" height=\"305\" srcset=\"https:\/\/blogs.uakron.edu\/ualawip\/wp-content\/uploads\/sites\/1670\/2018\/10\/Balloon-Bonanza.png 526w, https:\/\/blogs.uakron.edu\/ualawip\/wp-content\/uploads\/sites\/1670\/2018\/10\/Balloon-Bonanza.png?resize=300,174 300w\" sizes=\"auto, (max-width: 526px) 100vw, 526px\" \/><\/p>\n<p>Malone sued Telebrands in the Eastern District of Texas, seeking a preliminary injunction to prevent the marketer from further infringing his rights. The district court granted the injunction, agreeing with Malone that <a href=\"https:\/\/patentimages.storage.googleapis.com\/3a\/12\/74\/fd5bce7988d005\/US9051066.pdf\">his patent<\/a> was likely valid and infringed. Telebrands fought back, appealing the injunction to the Federal Circuit and again challenging the validity of Malone\u2019s patent on indefiniteness and obviousness grounds. The Federal Circuit <a href=\"http:\/\/www.ipwatchdog.com\/wp-content\/uploads\/2017\/02\/16-1410.Opinion.1-19-2017.11.pdf\">sided<\/a> with Malone, holding that it was not clear error for the district court to conclude that he was likely to succeed on the merits. The Court of Appeals rejected Telebrands\u2019 arguments as failing to raise a substantial question concerning the validity of Malone\u2019s patent.<\/p>\n<p>Telebrands also challenged the validity of Malone\u2019s patent before the Patent Trial &amp; Appeal Board (PTAB) in a post-grant review (PGR) proceeding. During the pendency of Telebrands\u2019 appeal to the Federal Circuit on the preliminary injunction, the PTAB rendered its <a href=\"http:\/\/www.ipwatchdog.com\/wp-content\/uploads\/2018\/05\/066-PGR-final-decision-1.pdf\">final written decision<\/a>: Telebrands had shown by a preponderance of the evidence that Malone\u2019s patent was invalid as indefinite. Of course, had the issue been decided in the district court, the mere preponderance standard would have been insufficient to overturn the presumably valid patent. But in the PTAB, the <a href=\"https:\/\/regproject.org\/paper\/crippling-innovation-economy-regulatory-overreach-patent-office\/\" target=\"_blank\" rel=\"noopener\">rules are different<\/a>, and they favor challengers such as Telebrands that use the additional venue to game the system.<\/p>\n<p>The Federal Circuit was well aware of the PTAB\u2019s decision to the contrary when it <a href=\"http:\/\/www.ipwatchdog.com\/wp-content\/uploads\/2017\/02\/16-1410.Opinion.1-19-2017.11.pdf\" target=\"_blank\" rel=\"noopener\">upheld<\/a> the district court&#8217;s determination that Malone was likely to succeed on merits in assessing the propriety of the preliminary injunction. In fact, it mentioned the PTAB proceedings in a footnote, noting that its decision was not binding and that it was nevertheless unpersuasive. When Malone subsequently appealed the PTAB loss, the Federal Circuit finally got its chance to directly address the PTAB\u2019s decision on the merits. The Court of Appeals <a href=\"http:\/\/www.cafc.uscourts.gov\/sites\/default\/files\/opinions-orders\/17-1726.Opinion.5-29-2018.1.pdf\" target=\"_blank\" rel=\"noopener\">held<\/a> that, even applying the PTAB\u2019s more relaxed standard, Malone\u2019s claims were not unpatentable for indefiniteness. The Federal Circuit thus made good on the earlier indications from both itself and the district court that Malone\u2019s patent was indeed valid.<\/p>\n<p>While Malone ultimately has been victorious so far, he\u2019s been forced to spend millions of dollars protecting his rights. He reported in July of 2017 that he\u2019d already <a href=\"http:\/\/www.ipwatchdog.com\/2017\/07\/16\/real-staggering-cost-getting-patent-ptab\/id=85639\/\" target=\"_blank\" rel=\"noopener\">spent<\/a> $17 million, and that it might grow to as much as $50 million before it\u2019s all through. That\u2019s an insane amount of money for most lone inventors, and Malone is fortunate enough to have made enough revenue in sales to be able to afford it. Most people aren\u2019t so lucky. And the battle for inventors is certainly far from over, especially when infringers with deep pockets can repeatedly play the game and wear down their victims in multiple forums. As Malone laments, &#8220;the PTAB simply encourages infringers like Telebrands to double down on the expense of litigation, rather than acquiescing to the adjudication by the District Court.&#8221;<\/p>\n<p>It\u2019s no wonder that, in his dismay, Malone joined other frustrated inventors to symbolically <a href=\"https:\/\/www.c-span.org\/video\/?432438-1\/patent-trademark-policy-protest\" target=\"_blank\" rel=\"noopener\">burn their patents<\/a> outside of the USPTO in the summer of 2017. Malone\u2019s story is a stereotype example of how the big infringers attempt to overwhelm the little guy by simply outspending them should they dare to challenge the wrong. Such gamesmanship at the expense of inventors is not the purpose of the PTAB. As Professor Mossoff notes in the documentary: \u201cThe original argument for why we needed the PTAB is that, every once in a while, there will be a mistakenly issued patent they shouldn\u2019t have issued, and that these patents can clog the gears of the innovation economy. Unfortunately, what Congress created was a completely unrestrained, unrestricted agency whose job is to cancel patents.\u201d<\/p>\n<p>America\u2019s Founders recognized that a stable and effective patent system is vitally important for the innovation ecosystem to thrive. American inventors like Josh Malone have made a significant difference in people\u2019s lives, and the patent system exists to reward them for their efforts. Inventors should be able to trust that the patent system will be there to protect them when others trample on their rights. They need those rights to be meaningful in order to recoup their investments and to realize their just rewards. The Founders understood that benefiting inventors through such private gains would redound to the public benefit. But as Malone\u2019s story demonstrates, we will need to make some changes to the patent system before the Founders\u2019 vision can be fully realized.<\/p>\n<p><strong><em>*Aditi Kulkarni is working towards an LLM Degree in Intellectual Property at Antonin Scalia Law School, and she works as a Research Assistant at CPIP.<\/em><\/strong><\/p>\n","protected":false},"excerpt":{"rendered":"<p>By Devlin Hartline and Aditi Kulkarni* [The \u201cInvalidated\u201d documentary will be screened this Friday, October 26, at 5:30 PM in Washington, D.C. To register for this free event, which features a presentation by Bunch O Balloons inventor Josh Malone among others, please click here.] Imagine that you\u2019re a father of eight children who puts everything [&hellip;]<\/p>\n","protected":false},"author":3627,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"_monsterinsights_skip_tracking":false,"_monsterinsights_sitenote_active":false,"_monsterinsights_sitenote_note":"","_monsterinsights_sitenote_category":0,"_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[26,30,40],"tags":[83,86,235,427,726,786,1100,1131,1146,1177],"class_list":["post-7166","post","type-post","status-publish","format-standard","hentry","category-innovation-2","category-inventors","category-patents","tag-adam-mossoff","tag-aditi-kulkarni","tag-bunch-o-balloons","tag-devlin-hartline","tag-invalidated","tag-josh-malone","tag-patent-trial-and-appeal-board","tag-pgr","tag-post-grant-review","tag-ptab"],"jetpack_featured_media_url":"","jetpack_sharing_enabled":true,"_links":{"self":[{"href":"https:\/\/blogs.uakron.edu\/ualawip\/wp-json\/wp\/v2\/posts\/7166","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/blogs.uakron.edu\/ualawip\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/blogs.uakron.edu\/ualawip\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/blogs.uakron.edu\/ualawip\/wp-json\/wp\/v2\/users\/3627"}],"replies":[{"embeddable":true,"href":"https:\/\/blogs.uakron.edu\/ualawip\/wp-json\/wp\/v2\/comments?post=7166"}],"version-history":[{"count":3,"href":"https:\/\/blogs.uakron.edu\/ualawip\/wp-json\/wp\/v2\/posts\/7166\/revisions"}],"predecessor-version":[{"id":16193,"href":"https:\/\/blogs.uakron.edu\/ualawip\/wp-json\/wp\/v2\/posts\/7166\/revisions\/16193"}],"wp:attachment":[{"href":"https:\/\/blogs.uakron.edu\/ualawip\/wp-json\/wp\/v2\/media?parent=7166"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/blogs.uakron.edu\/ualawip\/wp-json\/wp\/v2\/categories?post=7166"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/blogs.uakron.edu\/ualawip\/wp-json\/wp\/v2\/tags?post=7166"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}