Josh Malone - My Bunch O Balloons Invention, THE AMERICA INVENTS ACT: A DECADE OF STOLEN DREAMS

by The Bloom Report | 26 Aug 2021

The Bloom Report

THE AMERICA INVENTS ACT: A DECADE OF STOLEN DREAMS - SEPTEMBER 16, 2021
 
My Bunch O Balloons Invention
I quit my corporate job in 2006 to become a full time inventor and entrepreneur. It was a huge investment and risk for my entire family. We gave up my salary as a process engineer, mortgaged our home, depleted our retirement fund, and deferred our children’s college fund. We knew that financial success was statistically unlikely, as most startups fail for a variety of reasons. But I believed that if I invented a commercially viable solution to the problems at hand I would secure ownership of that invention by a U.S. patent. Sadly I was mistaken. I never dreamed that so-called judges inside the Patent Office would take away my patent the moment I needed to use it.

My invention Bunch O Balloons solved a 63 year long problem of filling and sealing water balloons. The commercial embodiment is comprised of 35 balloons fastened to the ends of flexible tubes by tiny elastic rings, the other ends of tubes joined to a garden hose connector. Water flows down each of the tubes to simultaneously fill the balloons, and when the balloons are detached the elastic ring clinches the neck of the balloon shut. You can make 100 water balloons in a minute.
 
My life changed when I posted Bunch O Balloons on Kickstarter and raised $930,000 from 21,000 backers. I signed an exclusive license agreement with Zuru Toys and together we built a fully automated factory to assemble billions of balloons to satisfy global demand for my invention. We went on to win many toy awards and became the number one selling outdoor toy with over $500M in global sales.

My Invention Stolen
When I launched my invention on the Kickstarter crowdfunding platform, a notorious knock-off company surreptitiously purchased a first edition product, reverse engineered it, went into production at their Chinese factory, and flooded the market with copies. They sold millions of infringing copies on television, the internet, Walmart, Target, Bed Bath & Beyond, Toys R Us, Walgreens, Kroger, and Home Depot.

The Patent Office (PTAB) Takes Back My Patent
That’s what courts are for, I thought. I took them to court under Section 271 of the Patent Act and won several preliminary injunctions, multiple appeals, a jury verdict, and a final judgment all upholding my patent as not invalid. Meanwhile, the PTAB – a division of the USPTO created by the 2011 America Invents Act – invalidated my patent.  Among many spurious rulings, PTAB “judges” determined that my claims were indefinite because one of ordinary skill cannot determine when a balloon is substantially filled with water and went on to say that my invention was an obvious combination of a prior balloon filler, a sprinkler, and a gastric dietary balloon.

US Inventor Comes to the Rescue
In my case the PTAB did not serve as a faster or less expensive alternative to district court as advertised during the 2011 debate. Rather it added over $1M in extra legal expense by duplicating and extending the district court litigation, eventually leading us to settle for a fraction of the damages.  It duplicated, contradicted, and confounded the proceedings and decisions of the district court. PTAB permitted multiple petitions per patent and accepted challenges on same prior art considered by the examiner and the Office of Patent Quality Assurance.
 
In my darkest hour, facing annihilation of my rights and livelihood at the hands of the USPTO, I found help from the non-profit organization US Inventor. I decided to join US Inventor and have since met hundreds of other inventors who suffered the same PTAB abuses as I did. Few have survived. I truly hope that my advocacy along with the voices of hundreds of other pleas for justice leads to substantive reforms.

US Patent System Hijacked
I am a firm believer in the provision of the U.S. Constitution that our patent system is to “promote progress in the useful arts” by “securing to inventors the exclusive right to their discoveries”. This Constitutional mandate has been drastically undermined by the implementation of post issuance reviews at the PTAB under the 2011 America Invents Act. I have found it to be impossible to inform inventors as to how they might obtain a patent secure from a PTAB trial and eventual invalidation. Regardless of how groundbreaking an invention or how thoroughly its patent was examined and prosecuted, the PTAB is more likely than not to invalidate the patent if it is used in an attempt to stop an infringer.

The PTAB has instituted review (i.e., indicted) in 4,090 of 5,983 patents challenged (68%) and invalidated claims in 2,469 of the 2,925 patents they have reviewed (84%).  Patents that have survived one or more challenges are still at risk of follow-on petitions which are usually successful.
 
Society needs inventors. Yet, in the United States today, inventors are discouraged from pursuing research, development, and commercialization of inventions due to the implementation of the Patent Trial and Appeal Board (PTAB) under the America Invents Act of 2011 (AIA). Rather than helping small businesses as intended, the PTAB is often weaponized by large corporations to block competition from those who created superior technology. PTAB uncertainty, risk, and expense has become an overwhelming burden for entrepreneurs, stifling our ability to innovate and compete.

Having invalidated 84% of the 3,000 patents they have reviewed and destroyed the hopes and dreams of hundreds of inventors – the PTAB is still going strong. Even Chinese companies like Huawei, ZTE, HTC, and TikTok are regularly utilizing the PTAB to invalidate patents of U.S. inventors.

Restoring the Rights of Inventors
We’re working hard to make our lawmakers and the public know that the PTAB is a big problem, and we’ve laid a foundation to roll back the harmful effects of the AIA. We’ve definitely stopped some further bad things from happening, but we have to restore our basic rights. To invent, patent, and then own your invention is your birthright as an American, and it has been stolen by large corporations and lobbyists.

US Inventor is totally committed to restoring our rights, and we need your voices to pull it off. Many of you have already helped, THANK YOU. Now is our opportunity. Join us on September 16th at a rally near you, and unite against the injustice of the America Invents Act and the PTAB.

Don’t miss out on this key moment in history – come, be a part of it, and help us win this battle!

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A Decade of Stolen Dreams Inventor Rally
All six locations will begin their Rally at 4:00pm local time on September 16, 2021. We recommend you arrive a little early for parking.
  • Alexandria, VA – Eastern Regional USPTO – 600 Dulany Street
  • Burlington, VT – Senator Patrick Leahy office – 199 Main Street
  • Dallas, TX – Texas Regional USPTO – 207 South Houston Street 
  • Denver, CO – Rocky Mountain Regional USPTO – 1961 Stout Street
  • Detroit, MI – Midwest Regional USPTO – 300 River Place Drive
  • San Jose, CA – Silicon Valley USPTO – 26 South Fourth Street
The first 30 people to arrive at each location will receive a FREE Rally t-shirt.
 
Please join other inventors – and those who support American innovation – on the 10th anniversary of the America Invents Act (AIA) at the Decade of Stolen Dreams Inventor Rally. There are six locations across the U.S. where inventors plan to make their voices heard about the consequences of the AIA and the Patent Trial and Appeal Board (PTAB). Details below.
 
 
 Josh Malone
 Inventor of Bunch O Balloons
 Volunteer with US Inventor
 1-972-689-8124
 

toy inventor josh malone patent american invention act