The Patent Troll... Coming To A Business Near You.

I stopped in on a photographer friend the other day. In New England, this is considered the slow season for most photographers. During this season, we tend to let our desk pile up with notes, ideas and thoughts about the many things that may be coming down the pike. Upon entering his office, I couldn’t help but notice his desk was spotless, not a scrap of paper or any random photographs were scattered about. Knowing my own desk on any given day, I was taken aback.  After a brief conversation, I found out that his business was teetering on survival. He was being sued. 

He was cleaning his desk because later in the day, a reporter from a local news station was coming to interview him. He was getting ready to put his best foot forward to show people that his business was the real deal, one that works with integrity as its pillar. His name is Michael Skelps, owner of Capstone Photography, located here in Middlefield, CT.  He is being sued by a patent holder who lives out in California. Michael’s business is different from mine. While I’ll work with a single client for hours, he’ll photograph up to thousand clients in an hour. If you enjoy running, you may recognize Michael or his crew from Capstone capturing the runners as they pass vantage points throughout a race course. There’s a ton of data and much organizing to be done before a cent is even earned by selling photos to the runners. Like many other sport photography companies,  they discovered intuitively, that the only way to identify subjects of their photos was through the race numbers pinned on their shirts. Michael went to work on a figuring a way to identify each runner through a computer model. Was it rocket science? No, but he still  had to figure it out on his own, creating a business model that could work.  The identification program was probably similar to what many of us consider a spread sheet program with searchable fields. He would set up a successful business traveling through out the country, photographing races. The job never promised success, because to become profitable, a certain number of athletes have to purchase photos. But the company slowly grew.   Years later, while celebrating the ringing in of the new year, he was served papers for patent violation. 

These were the three patents that had Capstone under fire:

• 6,985,875: “Process for providing event photographs for inspection, selection and distribution via a computer network” by Wolf. Prosecuted by Kelly Lowry & Kelley, LLP. Includes 40 claims (4 indep.). Was application 09/641,248. Granted 1/10/2006.
• 7,047,214: “Process for providing event photographs for inspection, selection and distribution via a computer network” by Wolf. Prosecuted by Kelly Lowry & Kelley, LLP. Includes 20 claims (3 indep.). Was application 11/261,747. Granted 5/16/2006.
• 7,870,035: “Advertising and distribution method for event photographs” by Wolf et. al. Prosecuted by Kelly Lowry & Kelley, LLP. Includes 24 claims (3 indep.). Was application 12/908,751. Granted 1/11/2011.

The plaintiff had an ax to grind already having sued and settled with 9 small photography companies. He was going 10 for 10, ready to show his world dominance now with Capstone next on the chopping black.  The problem at the very heart of the matter is the validity of the patent. In its vagueness, the patent takes on an entire business genre and monopolizes it. In two short sentences, it requires any innovator who wishes to delve into the field, the need to pay out or get out. In a way, it suggest that this American Dream exist only for the one who can afford to defend it. Was this patent created so competition could be squashed before it had an opportunity to jump in the game?  How does one put a legal finger on a generic process that can be logically dreamed up by virtually anyone?

My understanding of patents are cursory at best. My only run in with any patent validity was when we were trying to figure out if my son’s sixth grade school invention had been previously patented. It was a grey area at best as we wondered if the bicycle helmet that he had lit up had any previous designers?  Unsure if his creative process had been effectivly preceded by someone else, we let him continue with it. The alternative would have led to the inconclusive death of an idea. In the process, he created something that was uniquely his, unfettered by nothing but his own limitations. 

Most of us have built a lego model from the pictures of a glossy step by step guide. The idea of making the model look exactly as it does on the box is pleasing at first. However, the real innovation comes when a Godzilla toy knocks it over and the innovator creates something new and even better from his own mind. 

As I looked at Michael’s empty desk, it became a reflection of a dream being cleared with a powerful swipe of an arm. I felt angry for him and I wanted to dump out a pile of Lego’s or in his case, photographs, and tell him to continue building. No patent troll should hold him back from the dream he’s worked so hard to create. The lack luster economy is enough of a troll on our small businesses. As it goes, it’s hard enough to get over the bridge. I’m all for helping him set a path forward and leaving the trolls behind. For more info about Wolf vs Capstone have a look at this link:

http://www.wfsb.com/story/24879800/photography-company-the-victim-of-patent-abuse-owner-says