Back in the early 1960s, the individual Robert Kearns came up with the idea for an invention that all of us who drive the car routinely use. His invention was the intermittent windshield wiper system. Prior to his invention, windshield wiper systems came with two or three settings: either on or off, or high, low and off. If it was raining very lightly, you had to turn the wipers on, then off, then back to on, etc. This could be rather annoying to the driver.
After developing a prototype for his intermittent windshield wiper system, Kearns arranged for a meeting with executives at the Ford Motor Company. There was interest and a second meeting happened with Ford engineers, but no business deal was ever reached between Kearns and Ford. Instead, Ford and other automobile makers began to introduce cars into the marketplace that included their own intermittent windshield wiper system. These systems, however, turned out to be virtually identical to the one that Kearns had developed.
Kearns was no dummy. After creating his prototype, Kearns filed for and obtained patent coverage for his intermittent wiper system. Upon learning of the industry knock-offs, Kearns filed patent infringement lawsuits against several automakers including Ford.
Unfortunately, Kearns had to spend an awful lot of time and money pursuing his infringement claims. While he had some legal help, on a lot of the cases, he acted as his own attorney, in large part to save on costs. The lawsuits ended up being so stressful that he suffered a nervous breakdown and his marriage eventually dissolved.
After many years of litigation, Kearns did finally settle with Ford for just over 10 million dollars. At first blush, this does sound like a lot of money but really was a pittance as compared to what Ford made in selling cars that included the copycat intermittent windshield wiper system. Indeed, Ford had made over 16 million cars during the term of Kearns patent coverage. At just a 50 dollar per car royalty, which is what Kearns had been seeking when he commenced the lawsuit, Kearns would have earned over 800 million dollars.
As can be appreciated from Kearn’s story, while having a patent is certainly far better than not having a patent, it can often be very difficult to go after big companies with very deep financial pockets. Such companies are prepared to litigate almost to the “death” because of their potential exposure. The case often becomes a modern-day David v. Goliath situation.
So what’s the answer for the Davids of today’s world? First, consider filing your claim for patent infringement as quickly as possible. You then can seek preliminary injunctive relief, which is asking the court to immediately stop the accused infringer from making and selling the infringing product. If the court grants your request, it puts tremendous pressure on Goliath to settle; if Goliath does not settle, it risks losing significant future business.
Second, check out engaging a litigation funding group or firm. Litigation funding offers a patent owner the capital that they need to vigorously assert an infringement claim without the risk of repayment should the claim not be successful. The litigation funding firm will, however, share in whatever recovery is achieved, either in a settlement or an ultimate victory.
Third, many patent law firms will represent a patent owner on a contingency basis, depending of course on the facts. Facts that will be considered include the strength of the patent as well as the potential recovery. Often, before agreeing to a contingency arrangement, the law firm will conduct selective initial due diligence, such as validity search pertaining to the patent or patents at issue.
So the message here is that there are in fact viable options to be considered by a patent owner for asserting an infringement claim, even when the facts define a very classic David v. Goliath scenario.