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October 3, 2008 6:20 PM

Now Starring on the Silver Screen: A Patent Case!

Posted by Brian Baxter

What are the subjects that Hollywood blockbusters are made of? Superheroes, wars, Harry Potter plots. Patents, on the other hand, might not suggest a thrilling and engaging plot. But the executives at Universal Pictures think they've got just that with Flash of Genius. The movie, opening today on screens across the U.S., stars Greg Kinnear as a lone engineer battling the auto industry.

The film is based on a 1993 New Yorker story of the same name that chronicled the tortured tale of Robert Kearns, an engineering professor and inventor from Detroit whose claim to fame is the intermittent windshield wiper developed in the early 1960s.

For most of his adult life, Kearns, who passed away in February 2005, battled Big Auto--Ford, General Motors, and Chrysler--in a series of patent infringement suits over the windshield wiper. It was the first to allow drivers to adjust the speed of the windshield wipers.

In his decades-long fight for justice, Kearns cycled through several lawyers well-known in patent circles, including William Durkee of Arnold White & Durkee (now part of Howrey) and Richard Aitken of Lane, Aitken & McCann (now part of Venable). Kearns eventually ended up as a pro se plaintiff in many of his cases.

But according to a story in sibling publication The Recorder, patent-loving movie goers hoping for an in-depth examination of the validity of Kearns's patents will be disappointed. The film focuses more on Kearns's own quirky, yet determined personality, and his David-versus-Goliath battle against the corporations that allegedly co-opted his invention.

"They were pitching it as 'little guy takes on behemoth,'" patent litigator Michael Barclay of Wilson Sonsini Goodrich & Rosati in Palo Alto told The Recorder. "It isn't something that patent lawyers get excited about, like prosecution history estoppel."

That statement alone probably explains why movie producers weren't completely insane in green-lighting the film, which went through its own trials and tribulations to get made. (For an excellent review of the movie, check out this piece by Jonathan Ringel, managing editor of sibling publication the Fulton County Daily Report.)

Without spoiling the end--we haven't yet seen the movie ourselves--Kearns did win a few notable victories against auto manufacturers but never achieved the knockout, company-killing blow that he sought. He turned down multimillion dollar settlements in favor of trial while his patents expired and technology improved.

There's a memorable quote in Seabrook's New Yorker story from a lawyer for Henry Ford who once boasted that "[t]here is no power on earth, outside of the Supreme Court, which can make Henry Ford sign a license agreement or pay a royalty."

The bigwigs at Universal will now be hoping for just the opposite.

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"allegedly co-opted"...nothing allegedly about it. the facts were Ford received kearns prototype and later were found guilty of using it. let's be clear on this -Ford stole it. nothing new about that. that's how it goes in big business "so sue me" america.

I agree with dinner bell's comment. I knew inventor Kearns, having been involved in a similar David v.Goliath battle re willful trademark infringement by a multi-national using the same scorched earth court tactics.
I'm sure many IP lawyers will see this film and have pangs of conscience about remaining silent on the issue of willful infringement by their clients. Ford is no exception in how it tricked Kearns to reveal his invention, then shut him out. I hope this film gets an Academy Award.

I met Bob Kearns and had a fair understanding of the struggle he went through to get his day in court, and the personal toll that this took on his family, and himself. However, seeing that struggle portrayed in this film was very powerful. I highly recommend those who care about inventing to see the movie at least twice, to gain practical insights for your own use.

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