We've complained in the past when companies, the press and analysts try to use number of patents as a "proxy" for innovation. It's quite misleading -- and various studies have made that clear. You can have tremendous innovation without patents, and you can have tons of patents, without any real innovation. Yet, as reader Nick points out, a report looking at the alternative energy auto space dings Ford for "lagging" in "the alternative energy race" because it doesn't have as many patents as others.
This is a real shame, because we've discussed before how the massive patent thickets in the hybrid car space have been holding back innovation and development in that space. In fact, Ford had a big tussle with Toyota a few years back after Toyota sued Ford and the two companies wasted tons of money and time in court, until the court finally pointed out that Ford did not infringe. On top of that, Ford has been one of the earlier adopters of hybrid offerings and remains the third largest hybrid seller after Toyota and Honda. So, claiming that it's somehow "lagging" because of fewer patents is quite misleading.
You may recall that Ford has been rather aggressive in telling fans of various Ford cars that they have no right to create things like calendars from photos they, themselves, have taken. Basically, Ford has claimed ownership of any photos of Ford vehicles. That, of course, is crazy. But apparently the thinking extends to other car companies as well. Apparently, Toyota is now threatening a site that hosts various "desktop wallpapers" for computers because it offers up a variety of wallpapers made up of images of various Toyota automobiles.
TorrentFreak, who has written up the article, exaggerates a bit in claiming that this is the most "wildly arrogant" DMCA claim. After all, Ford did exactly the same thing earlier, and plenty of other companies have done similar things. Also, apparently Toyota hasn't actually invoked the DMCA yet, simply telling the site's owner he has to remove the images or it would send DMCA notices. Rather obnoxiously, when the guy who runs the site asked which images, specifically, violated Toyota's intellectual property, Toyota's lawyers responded that they would only identify them if the site's owner paid for their time. Of course, the DMCA actually requires you to name the specific infringing files.
You might possibly be able to make a case that Toyota could sorta maybe make a trademark claim here -- that some might assume that the desktop wallpapers were officially offered by Toyota, but that wouldn't explain why they're threatening to use the DMCA, which has nothing to do with trademarks.
However, most importantly, as we noted with the Ford situation, it makes no sense to beat up on fans of your products who are sharing photos of the cars they love and are actively promoting the cars for the automakers. It seems like yet another case where lawyers simply freak out without realizing how much damage they're doing to their client's brand. Update: Good news! In the comments, Ford claims that the earlier story was a misunderstanding (though, don't exactly explain how come it's happened multiple times) and Toyota has also apologized for the threat, saying that it was a mistake.
I've been seeing previews of the new movie, Flash of Genius (which opens today) everywhere, and a few folks have asked my opinion of it. Over at Against Monopoly, there's as pretty good takedown of the premise of the movie. The story of Robert Kearns has plenty of good "movie" elements, and is often held up by patent system supporters as a clear example of a big company "ripping off" an independent inventor. The movie itself is a huge dramatization, that of course, paints Ford as the big evil company that "stole" the idea of intermittent wipers from Kearns. It's highly exaggerated from reality, and perpetuates the big myth that invention comes from a "flash of genius" and is the most important part of innovation.
As anyone who's actually run a business can tell you, the idea is only a tiny part of what's important. The real innovation is in actually turning the idea into something that works, is useful, is cost effective and (most importantly) is something that people want to buy. Almost every actual product is quite different from the initial "idea" that it came from. Furthermore, despite what the movie appears to portray, lots of folks were working on different methods to create an intermittent wiper, and the methods that Kearns used weren't such a "flash of genius" either. They were pretty much the next evolution. As we've seen it's pretty common for multiple parties to make the same "next step" obvious breakthroughs at about the same time.
But, Kearns turned the whole thing into a crusade against the auto companies, so it makes a good David vs. Goliath movie storyline. And, despite the way Ford appears to be portrayed in the movie as deliberately copying Kearns' work, the company was not found to have willfully infringed on the patents. They were found to have infringed -- but through their own work, not from having directly taken Kearns idea (the movie suggests otherwise). As you may or may not know, most patent infringement is not "willful," meaning the company in question didn't "copy" the idea directly from the inventor or his or her patent, but through simply coming up with the idea themselves independently. And, at the time of Kearns case, the standard for willful infringement was even lower than it is today. Yet, because there's no independent invention defense, the automakers will still found to have infringed. The end result? All of the car companies had to pay many millions to Kearns, effectively paying multiple times over what the wipers actually should have cost, increasing car prices for all of us. That's not David vs. Goliath: it's David making cars more expensive for everyone.
The movie itself may be very entertaining (I'll probably wait for it to come out on video to check it out), but it's unfortunate that it promotes the myth of a "flash of genius" being the most important part of innovation, and that it perpetuates the stereotype of "big companies vs. little inventors." At a time when our patent system needs serious reform, a movie like this only serves to falsely promote the value of patents in the public eye. It's propaganda, wrapped in a nice Hollywood veneer.
Back in October, Ford got itself into some hot water over plenty of negative attention after it forced a Jaguar enthusiasts' group to stop selling calendars made up of photos of the cars they actually owned. You would have thought that the folks at Ford would have learned from the negative publicity surrounding that debacle. Apparently, they learned nothing, because they've now done the exact same thing to a Mustang enthusiasts' club, and it's getting even more attention than the last time around. What possible rationale does a lawyer give for suggesting slapping down an attempt by a car company's biggest fans (by their own admission!) to celebrate how much they love their vehicles by promoting them to others? Some may claim that you need to enforce your trademark or risk losing it -- but a situation like this is unlikely to be seen as something that needs to have been enforced. No sane judge will rule that allowing enthusiasts to display a calendar is the equivalent of giving up your trademark rights.
RSS
Twitter
