WEST FARGO — There’s a lot on the line as West Fargo couple Ernie and Gail Brookins stand up to global construction equipment giant Caterpillar.
With no lawyer, the two will head to federal court Friday, Nov. 8, to fight a motion that would dismiss their case, which claims Caterpillar made a false statement that resulted in the loss of Ernie Brookins’ patent for a hydraulic clutch.
If a judge rules for Caterpillar, the case will be dismissed and the Brookinses say they will be bankrupt. If the motion fails, the case will move forward, possibly bringing the couple closer to “monetary damages to the fullest extent possible” and what they call justice.
“We're not doing this for money,” 77-year-old Ernie Brookins said as his 75-year-old wife stood nearby. “If we don’t get a dime out of this, all we want is those people sent to jail.
“Somebody’s got to stop these big companies from stealing their product.”
‘One last try at justice’
Ernie Brookins is an inventor and lifelong mechanic. He worked on his first transmission when he was a teenager, and he built a silver bullet jumping combine that was sponsored by Coors Light. He also drove professionally as a race car driver with the first car that was sponsored by the U.S. Army.
He and his wife work out of a shop in West Fargo that is filled with at least $300,000 in tools and equipment, all of which is at risk, they said.
The two wanted to invent a product that would help solve the nation’s fuel crisis, so Ernie Brookins made a hydraulic clutch that would power the engine without burning fuel.
His invention captures, compresses and stores energy produced when the engine runs. Then that compressed air is used to power the vehicle when the engine isn’t running.
That means less emissions escape into the environment, Gail Brookins said. They have manufacturers lined up to make the clutch and companies that will sell it.
The couple wanted to file the patent as a hydraulic clutch, a continuous variable transmission using the clutch and a hybrid vehicle using the clutch, according to court documents. But U.S. officials told them in 2009 they had to choose one, Gail Brookins said.
“We don’t have anything without the clutch,” she said. “So we picked the hydraulic clutch.”
In 2016, Ernie Brookins filed a federal patent infringement claim against Caterpillar, saying the company was using the clutch in its products.
That led to four lawsuits that were ultimately dismissed. Caterpillar filed an Inter Partes Review (IPR) that challenged whether Brookins should have received the patent in the first place.
The patent office agreed, Brookins lost the patent in 2018 and the four lawsuits were over.
“You can’t win patent infringement if you don’t have a patent,” Gail Brookins said.
Ernie Brookins designed another patent to get his product on the market, but the fight wasn’t over.
“Ernie did not want to give up,” Gail Brookins said. “We decided, ‘OK, we’re going to do one last try at justice.’”
Fight for the little guy
The couple filed the current lawsuit July 2 in Cass County District Court. Caterpillar won a motion to move it to federal court later that month.
The Brookinses argue Caterpillar committed fraud by making false statements when filing the IPR and in federal court filings.
Gail Brookins said she has evidence and multiple examples to prove Caterpillar made false statements. She believes the company used wording in their application to convince U.S. officials that her husband didn’t deserve the patent.
Caterpillar's application states the Brookinses would use the patent for their original intent — powering an engine without fuel — but the finalized patent describes the clutch only as hydraulic, Gail Brookins said.
She also pointed to Caterpillar’s motion to move the current lawsuit from Cass County District Court to federal court. The defendant claimed the Brookinses are asking “nothing more than” the court to address whether the patent claims “are still valid as a hydraulic clutch.”
“That’s another false statement,” she said, stating the lawsuit claims Caterpillar committed fraud.
The company sent the Brookinses a letter saying it would file the IPR if the couple didn’t dismiss a previous lawsuit. Ernie Brookins, who plays poker, said Caterpillar was “trying to buy the pot” and alleged the company blackmailed him when it sent the letter.
Caterpillar filed a motion in August to dismiss the case, arguing the Brookinses failed to state a claim on which relief can be granted, a common move in trying to dismiss cases.
It would cost the couple at least $500,000 to hire an attorney who can represent them in this type of case, Gail Brookins said. They decided to do it themselves. She asked one attorney to read a letter in court they put together since her husband has been diagnosed with dyslexia. The attorney said he or she would charge $50,000, she said.
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Gail Brookins pored through case law, court documents and other resources to write case filings in the lawsuits. The duo will enter the courtroom without an attorney, facing a company that made $54.7 billion in sales and revenue last year.
Caterpillar has more than 100,000 employees around the world. The company is more than 90 years old, has a location in Fargo and West Fargo, is headquartered in Illinois and is incorporated in Delaware.
Ernie Brookins was the only plaintiff in the previous cases, so Gail Brookins could not participate. Now she is a plaintiff, so she can have her say in court.
Court documents don't list a specific amount the couple want to receive if they win, and they said they are going to court for future generations, not money.
Gail Brookins said the ordeal has been hard, and she’s not looking forward to more court dates. She said she doesn’t know the chances of winning, but they want to try.
“We’re not going to get the patent back. We know that,” she said. “I want major companies like Caterpillar to stop stepping on the little guy and quit lying in court."