Guy Claims Patent On Photographing People In Races And Then Selling Them Their Photos; Sues Photography Company

from the how-is-that-patentable? dept

The folks over at EFF have yet another story of patents gone wrong. This time it's from a guy named Peter Wolf, who owns a company called Photocrazy, that takes photos of sporting events like running and bike races, and then offers to sell people their photos by matching up their bib numbers. This kind of thing has been around forever, but because Peter Wolf paid a lawyer and said some magic words, he got some patents (specifically: 6,985,875; 7,047,214; and 7,870,035). Here's the primary claim in the 875 patent:
1. A process providing event photographs of a sporting event for inspection, selection and distribution via a computer network, comprising the steps of:

taking photographs of at least one participant of a sporting event along at least one point of a course or field thereof;

associating identifying data with each photograph taken, wherein the identifying data is selected from at least one of: a number corresponding to a number worn by a participant, a participant's name, a code acquired from a component worn by a participant, and a date and time, including hour and minute the photograph was taken;

informing the sporting participants of the identifying data;

transferring the photographs to a computer network server;

cataloging each of the photographs in a web-site server according to the identifying data;

accessing the server at a location other than the sporting event and searching for a photograph of a particular sporting event participant utilizing the identifying data; and

displaying the photograph of the sporting event participant for inspection and ordering.
Or, as EFF's Vera Ranieri summarizes:
In plain English: Take photos of a race, tag and sort by bib number and date, and search for photos based on that tag via the Internet. That’s it.
This, of course, is the problem with many patents these days. You could take nearly any half-competent programmer, explain to him what you wanted to do, and they could build you a system like this without any trouble at all. Because there's nothing tricky here at all. It's just putting together a few basic obvious ideas that were really only limited in the past by the underlying technology not being ready. But now that it is... one guy has patents to block anyone else from implementing such an obvious idea. These patents aren't promoting the progress, they're hindering it. It seems likely that under the Alice v. CLS ruling, this patent is not valid.

Wolf is suing a small (mostly part time!) photography company called Capstone for doing some of this. While it's already likely that the patents are invalid, with Capstone, because of how it works, and because of the Limelight v. Akamai ruling, it's likely that Capstone itself isn't even infringing (that ruling said that if separate parties do separate parts of the claim, you can't say that the original party "induced infringement" because there is no direct infringement). But, still, as we've discussed many times, patent lawsuits are crazy expensive. And Capstone is a tiny company:

Capstone doesn’t have a widely-distributed podcast that it can use to drum up the backing of thousands of fans and supporters. Its owner’s own attempt to crowdfund the defense raised only about $5,000. And although Capstone’s business has been profitable, the owner tells us that because of the patent lawsuit and the costs his company is facing, his business faces the very real prospect of shutting down.

Recent reforms have been helpful to reduce costs for some defendants. For example, the Inter Partes Review (“IPR”) program now being implemented at the Patent Office promises to be a much cheaper way to determine validity.  One problem though, is that it is still too expensive for businesses like Capstone. An IPR costs $23,000 in filing fees alone, and requires paying lawyers and often experts as well. 

Ranieri notes that the US Patent Office is accepting comments about dealing with post-grant challenges, and now might be a good time to highlight that it's impossibly expensive for small businesses being sued over questionable patents:
EFF previously advocated for reduced fees for IPR filings by small businesses and others without the ability to fund patent challenges. Unfortunately, the PTO ignored our request. However, the PTO is currently accepting comments regarding the post-grant challenges such as the IPR process. We encourage the public, especially small business owners, to let the PTO know by September 16 that the costs are still too high for many, and absent a lower cost, patent trolls will continue to assert dubious patents against companies they know can’t afford to do anything but settle.

Filed Under: innovation, patent troll, patents, peter wolf, photography, races
Companies: capstone, photocrazy

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  1. identicon
    CFWhitman, 27 Aug 2014 @ 12:08pm

    Patents out of control

    Thanks to pressure from deep pockets over the years, case law and new statutes have deformed the original intents of patents into something rather ridiculous. Sometimes you see people, even patent lawyers, try to remind people of the original intent by saying things like, "Patents are not on ideas; they are on implementations," but this amounts primarily to lip service in the current patent climate.

    Patents were originally intended to reward someone who figured out a way to do something that was difficult to figure out. It was not intended to reward someone who was the first to think of doing something that was easy to do. In other words, most patents were expected to be awarded to people who figured out a way, or a better way, to reach a specific goal, not people who figured out a better goal to reach for. That is, patents are supposed to be about inventing new technology not doing something new with existing technology.

    It requires no technical expertise to think of a new objective or product made possible by advancing technology. Ideas are a dime a dozen, and they weren't supposed to mean anything from a patent standpoint. It's making an idea work where others had tried and failed that was supposed to be patent worthy.

    The sheer number of patents in existence decries their legitimacy.

    Most of the original intent of patents was to protect someone who did not have a lot of resources from being undercut by someone using his own invention who had a lot of resources. However, since the patent office found it difficult to sustain a legitimate minimum bar for an invention's worthiness, they moved to an illegitimate bar, money. Patents have become primarily a tool of bigger businesses to bludgeon small businesses into submission.

    Whatever technical fine points have been invented over the years for lawyers to argue about in the theatre of modern patent trials, it's pretty clear that these patents don't hold up as non-obvious according to the original intent of patent law. At best, they may be doing something new with existing technology. However, it rather looks like they are only, perhaps, the first to apply an existing technology to an existing idea.

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