Wealth of Ideas Newsletter, April 2009
Patent law doesn’t often make for riveting drama. But in the case of inventor Robert Kearns, one man’s David-versus-Goliath battle against the big automakers is also the tragic story of how his efforts to enforce his patent also brought about a mental breakdown and the end of his marriage.
His story is profiled in the 2008 film "Flash of Genius," recently released on DVD, as well as the book, Gadget Nation: A Journey Through the Eccentric World of Invention.
Robert Kearns was a colorful character whose accomplishments include being a talented violinist, a teenage intelligence officer during World War II, and the inventor of a comb that dispensed hair tonic (his first invention). But Kearns is best known for inventing the intermittent windshield wiper for use in mist or light rain – and for fighting the big carmakers for decades.
Kearns filed his first patent for the intermittent wiper in 1964, then offered licenses to the “Big Three” automakers, but was turned down (although Ford led him to believe that he would be on their development team). However, beginning in 1969, all of them were soon installing intermittent wipers in their cars.
Robert Kearns was shocked. According to the Washington Post’s obituary of Kearns after his death in 2005, all Kearns really wanted to do was to run a factory with his six kids and build the wiper motors he’d invented – which he would then sell to the automakers. More than a settlement, more than acknowledgement that he’d invented the intermittent wiper, Kearns wanted a lucrative, ongoing licensing deal and a chance to be the carmakers’ exclusive supplier of wiper motors. But they had already found suppliers and weren’t interested in changing their arrangement.
In 1978, Kearns filed a patent infringement lawsuit against Ford Motor Company. The lawsuit dragged on for 12 years and cost Kearns his marriage, his job and, at times, his mental health. His fight netted him $30 million, but the victory was bittersweet.
The “Flash of Genius” Test
The name of the film comes from the Flash of Genius Test (or Doctrine), a patentability test used by US Federal Courts from 1941 to 1952. To pass this test (and therefore be deemed patentable), the idea for an invention had to enter the inventor’s mind in a “flash of genius” and not as a result of tinkering. Kearns claimed that the idea for the intermittent wiper came to him while driving in the rain. The combination of the rain and the movement of the wipers made it difficult for Kearns to see the road, especially since his vision in his left eye had been somewhat impaired when it was hit with a champagne cork on his wedding night.
Despite his dogged, decades-long battle against the big car companies – which cost him his marriage and was the cause of bitter feelings among his children – Kearns was surrounded by most of his loved ones, even his ex-wife Phyllis, when the verdict against Ford Motor Company came down in his favor.
At Robert Kearns’ funeral, a light mist was falling – requiring every car in the funeral procession to use Kearns’ invention.
What’s the Lesson?
Contingency patent enforcement was next to nonexistent when Kearns filed his first patent infringement lawsuit back in 1978, so it is likely that he could not find an attorney to represent him on a contingency basis. Unable to finance massive legal fees and disbursements himself, he tried the case on his own – which is never the safest or smartest strategy for an inventor to choose.
The good news for the patent owners of today who face infringement of their patents by large corporations is that the contingency patent enforcement model does exist – linking patent owners with the experienced patent attorneys and IP experts who can help them prevail, at no upfront cost. And that means today’s patent owners do not have to face the hardships and personal sacrifices that Kearns went through decades ago to enforce his patents.