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

3/7/2014

2 Comments

 
Picture
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
2 Comments
Peter Wolf link
3/30/2014 12:59:15 am

Hi Jen,

There are always two sides to most stories and before making any kind of judgment, you may want to listen to the other side first.

Let's consider the accusation of "Patent Troll". Please google the term and you will quickly note that I don't fit that definition at all. I abhor Patent Trolls and find it offensive to be called such.

Second, you suggested that we are going 10 for 10 after small companies like Capstone. FYI most of the largest companies are licensed with us and many licensed (including the largest of them) without any legal intervention.

I have been for the past 15 years and continue to actively make my living by taking event photographs just like Capstone Photography. I developed some techniques in 1999 that streamlined the event photography process over the methods used since the 1970’s. These techniques were patented and the USPTO issued those patents to me in 2006.

These patents have stood up against all efforts to show prior art or invalidate them. Many event photography companies including the largest in the industry have licensed with us.

We made attempts to contact Michael Skelps, the President of Capstone Photography several years ago. He never returned our calls and continued to infringe on our patents. Capstone Photography contracted with events in our county here in CA and took business away from us. It caused us hardship while Capstone Photography boasted in being the largest event photography company in the country.

Capstone Photography may assert their process is obvious or different and outside the scope of our patents but our attorneys have determined that Capstone Photography infringes on my patents and Capstone’s Attorney has so far not demonstrated to us how their processes are different and outside the scope of the patents.

I was issued additional patents in 2010 and once again Capstone Photography blatantly infringed on those patents and caused us hardship. The details are described in our claims against Capstone Photography.

I find it interesting that many photographers like Mr. Skelps vigorously defend the copyright laws that protect their pictures from being used for commercial gain by anyone else. However, Mr. Skelps does not seem to recognize patent laws that protect intellectual property like the patents he is blatantly infringing on.

We are reasonable in our licensing expectations and settle for fees that have virtually no effect on our licensees doing business as usual. Generally the infringers have to overcome an emotional or pride issue of accepting that someone invented and patented “their” idea. Usually the amount of attorney fees reaches a pain threshold that forces the infringer to settle. Frequently the infringer will then face maximum, even treble damages and the plaintiff’s attorney fees.

The problem comes in when someone tries to avoid licensing with us and we have to file a lawsuit. According to the latest AIPLA survey, litigating a patent case with damages under $1 million by a 1-3 person firm averages $255,000 just to get through the end of discovery, and $623,000 dollars to take the case through trial. (2013 AIPLA Econ. Survey, p. I-133). Mr. Skelps from Capstone Photography has retained a major law firm (http://onellp.com/ ) in Los Angeles with at least 20 attorneys.

Generally infringers are unaware that the inventor has spent hundreds of thousands of dollars and many man-hours developing the patented idea. Marketing research, software and hardware development plus the cost of patent applications and executing the patent through the USPTO are all very costly.

I am very sorry to see Mr. Skelps head down the path he has chosen.

I immigrated to the United States after narrowly escaping from Communist East Germany in 1960. I am a law abiding citizen trying to build a business and raise a family. I expect others to obey the laws of this land as well. Mr. Skelps has caused me hardship by infringing on my patents.

FYI:
http://youtu.be/2_tKbYysS8k

http://youtu.be/zvXVPctP2jQ

http://www.amazon.com/Because-I-Can-Paul-Cooper/dp/B0029J3Z2A

Reply
Michael Skelps link
10/29/2014 05:55:52 am

BREAKING NEWS (October 29, 2014): A Federal Judge in the Central District of California has struck down all three patents in the lawsuit in which Capstone Photography is a defendant. The Court ruled "that all three of the patents in suit are directed to patent-ineligible abstract ideas, and lack an inventive concept that would make them patent-eligible applications of those ideas." The case is over and Capstone has prevailed. We are excited to have this issue resolved in our favor! However, the legal expenses are very steep and our small business will take quite a long time to recover from the $100,000 in legal expenses we have incurred. Photographers and friends, if you feel that we have helped your business or if you simply want to defend the position of RIGHT, please consider donating at www.endpatentabuse.com

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