Dick Hobbs looks at intellectual property rights

Troll on
by Dick Hobbs
In my column last month I wrote about the Tolkein sort of troll. This month I want to look at another sort: the ones who acquire portfolios of patents not with the intention of making anything useful, but simply to try to extort money from those who just want to earn an honest buck.
I am sure that every one of you reading this column has shopped online at some time in the past. Whether you are buying books or airline tickets, the stores all have one thing in common: you are asked to put your purchases in a shopping basket, trolley or (if it is an American site) cart. It is a simple skeuomorphic metaphor we can all understand.
So the idea of a company, Soverain Software, suing some rather larger outfits for infringing the patented concept of an online shopping cart may seem, on the face of it, a bit bizarre. But intellectual property law is byzantine at best and downright perverse much of the time, so Amazon coughed up $40 million rather than fight to the death. Victoria’s Secret and Avon went to court and found they had to pay 1% of all future revenues as well as a big cash sum.
A rather smaller outfit also the subject of Soverain’s attentions, Newegg, compiled a defence suggesting that the patents were invalid because the metaphor of a shopping cart is blindingly obvious. Newegg’s lawyers rather endearingly called it the “this is bullshit” approach.
It went all the way to appeal, but eventually the lawyers were allowed to demonstrate that the shopping cart dates all the way back to the CompuServe Mall, when the internet ran on steam, and long before Soverain’s patents were granted. Victory for the good guys.
I hope that most people share my outrage at the misuse of intellectual property laws like this. The point of a patent is that it gives an inventor time to exploit a discovery, to develop worthwhile products and bring them to market.
Which brings us to the interesting case of Red and Sony. Clearly Red is absolutely not a patent troll in any way. It is a company which had a vision, got us all excited when they emerged back in 2005, built a market, and delivered product which has satisfied a large number of customers. Last month I wrote about The Hobbit. Shot using Red cameras.
Famously, Red was founded by Jim Jannard of Oakley sunglasses fame. He invested a big chunk of his own money to realise his vision. “I started Red because the other guys had it wrong,” he said, in a recent blog. “Today we look smarter than we did even though our story has not changed.
“The only difference is that other companies seem to want to ignore what we have done,” he added. “I won’t let that happen.”
So he is suing Sony for patent infringement in its F5, F55 and F65 digital cinematography cameras. The suit quotes three patents covering technology which Red alleges Sony has used without proper licencing. Getting close to the summit if not going over the top, it not only demands a halt to future sales of the Sony products, but that existing cameras already in use should be destroyed.
I am not an intellectual property lawyer (I would be much more smartly dressed). I do not know if there is real legal merit in this claim. My suspicion is that there must be, because this is an extraordinarily bold move and not something that would be undertaken lightly.
People who are closely involved in a product, and feel a strong relationship with it, can get emotional. Steve Jobs famously said he was “willing to go thermonuclear war” because he felt that the Android operating system was too similar in look and feel to the iPhone. And yet today we happily live in a world where you can freely express your preferences in smartphones.
So the emotional side of me has a degree of sympathy for Sony. Red came up with some radically new concepts, and used intellectual property laws to give them the time to develop the product, build a market and satisfy customers. The first Red cameras were delivered six years ago, and they did what they said they were going to do: they changed the way we make movies.
Sony is, frankly, playing catch-up. The market is led by Red. If – and I repeat I do not have the skills to understand the legal technicalities, so it is very definitely if – there is an infringement, then the right thing to do is to negotiate and reach a sensible compromise. No-one likes a monopoly. Red has done a great job in changing the way we think. Sony, too, has much to bring to this part of the business.
“We are anxious to resolve this and have everyone move along,” Red’s Jannard said. To which I would wholeheartedly agree. We really do not want our industry to get bogged down in the sort of IP litigation which risks crippling the internet or smartphones.