How startups should deal with innovation trolls and vampires
How startups should deal with innovation trolls and vampires
Russian company Intersoft Eurasia (DO-RA Project developer, DO-RA is a personal dosimeter-radiometer, compatible with smartphones on various platforms) announced its victory in the patent war for the manufacture of the DO-RA devices and start of its mass production. After five years of confrontation and trials, number of technical examinations, which were made with participation of the leading universities of the country, the Intellectual Property Court rendered a judgment in favor of Intersoft Eurasia. Intersoft Eurasia CEO and Head of the DO-RA Project, PhD, Vladimir Elin gave an exclusive interview for “Invest-Foresight” business magazine about the key principles of the war with "patent trolls" and how to protect rights in the international market of intellectual property.
– Vladimir, what is the history of your personal "war with the trolls," and what is the final?
- In our case, the war with the patent trolls ended with a completely successful outcome, despite the fact that it was not possible to prove the fact of creating a competitive patent which is in fact based on one of our basic patents and our earlier publications and prototypes that had a widespread public dissemination. In more detail, I talked about this in an article: "The history of DO-RA patent war." I can only add: for inventors, such wars are not only harmful, but, in a certain sense, useful. In intellectual battles, you start to understand how important all aspects of the invented product are, as outlined in the clauses of Invention Formula. And if luck, truth and qualification in the field of invention are on your side, then as a bonus from a patent dispute you can get the decision of the Intellectual Property Rights Court (IPR Court), confirming the inviolability of your patents. And the fact of winning such a dispute can itself raise the price of capitalization of intellectual property expressed in intangible assets in the form of patents, certificates of inventions, trademarks and brands, prototypes and industrial designs.
– In the era of globalization and development of the digital economy, what are the main threats facing the inventor as the bearer of intellectual property if he wants to enter the international level?
– The main threats to the inventor in the era of scientific and technological progress, I see in accelerating competition on the basis of the already invented and actually able to improve not in a year, two, three, as it was before, but almost every quarter of the year. In the modern R&D centers, computerized systems with elements of artificial intelligence (AI), capable of greatly facilitating the work of engineers and designers, are operating in a full swing. And they are playing the key role for the inventors, as an engine and accelerator of scientific and technological progress. Another aspect of the threat to creators and carriers of intellectual property in the development of the digital economy is a disdainful attitude, in fact, to proper registration of this property. Many inventors still believe that if they take their inventions to the "know-how" category and protect them with corporate documents about commercial secrets, no one can quickly get to their essence. Alas, this is a deeply erroneous and unconstructive point of view. Our foreign "brothers" with the help of high-tech stands, powerful computers and other wisdoms of the modern world, click such "know-how" for weeks, and create prototype for a few days. Therefore, it is worthwhile to go initially along the line: an application for a Russian patent and an international PCT application, and further registration of intellectual property in key jurisdictions of the world.
Художник: Юрий Аратовский
– Patent trolls and vampires - who are they?
– There are several types of patent trolls, in my understanding. And in certain situations, they can act in different ways - like the "orderlies of the forest", like vampires, even as creators and engines of the progress.
The first type of such people can be provisionally called "Robin Hoods". These are typical and usually not really rich (both in terms of intellectual property and material assets) individualists who have at least one or two or more patents of a general application. For example: "a protocol for transmitting a signal in various ways or methods from analogue to digital, from one device to another or group of devices, etc.". Their main mission is not to create a prototype or serial model of the invented, but to sit on the tail to another inventor with similar technologies, but already producing their products on their basis. In the extreme case - to get hooked on the salary to a shaking inventor colleague, convincing that this third-party patent can ruin him.
Another type of trolls can be called "promo-trolls". Usually there are several people, they can have a lot of experience and a certain material potential. Patents for useful models and images in such a group can be dozens, or even hundreds. These trolls often copy, with minor improvements, other people's designs, adding to them some kind of versatility, for example, "fly swatter" with a fan function, and begin to produce quickly, mainly getting a material profit from sales. At the same time, sometimes they make raids on other people's similar patents. These can sometimes be both harmful and useful to society: if they produce innovative products quickly and inexpensively.
And the third category of patent trolls is "connected by one chain". These are professional associations of lawyers, patent experts, inventors and funds, in a well-coordinated team attacking different goals. They extract the rent from the oversights of the owners of patents and inventions, launched into large-scale production in the form of specific products (again, it is worth recalling the trial of Apple against Samsung).
– What is their arsenal of funds? What becomes the primary target of the attack?
– Arsenal of funds to achieve the goals of trolling is relatively small. They are lawyers and technical experts of the community, they get financial support for patent trolling in the form of funds and a psychological attack through the media. As a rule, people or companies that own patents become targets for patent trolls through a "window of opportunity", to be more precise, holes in a patent for a utility model are weaknesses, less often holes in the invention. Sometimes trademarks and industrial designs fall under trolling. But it always happens when there is something to take from whom to take - that is, with a well-promoted industrial production with controversial signs of novelty or explicit elements of copying someone else's technology.
– How can an inventor recognize that he is a victim of a "patent troll"?
– The patent troll finds you by himself, as in the well-known meme: "Now we are coming to you"! Because the service of patent attorneys for these guys is usually at an altitude, as it forms the basis of business. Their specialists constantly monitor the patent landscape, and technical personnel analyse those areas of scientific and technical progress, where there is a high production potential with a massive introduction of products for patents of a similar confusion. And here comes a letter with approximately the following content: "You are violating the rights of such a patent holder, and according to the article of such and such a code, you have to regulate the relationship in a non-judicial order. And if you do not agree to do this, the cost of the claim for material damage will be so great that you will regret that you have not settled all formalities with us at this stage. "
– And how to defend yourself? Is there any universal tool or, in your opinion, in each case the inventor is forced to work under a new scenario?
– First of all, do not despair about the patent troll's attack: they are also people with their weaknesses. This challenge of fate is to be taken as the "heavenly manna" for the fact that "intellectual filibusters" honoured you with your patent. By the way, this is a good sign: the patent troll attack speaks about the prospects and usefulness of the invention for people. Firstly, you must rely on qualified patent specialists, preferably with considerable experience in your area of expertise. This decision will help to repel at least the first series of attacks of trolls. If this recommendation does not help you beat off the first raid, be patient and look for qualified intellectual property lawyers in a team with the patent specialists already in your company. Now you will be able to get even for "hitting" your patents through IPR Court in an open struggle for intellectual rights!
In this life, there is nothing universal for the battle with patent trolls. Each case is quite unique. What exactly works - is the constant improvement of one's own qualification and developments. This will help the "intellectual filibusters" never catch up with you.
– In your experience: to what extent are the existing administrative and judicial systems ready (and able) to protect the inventor?
– If you will follow the right path when a patent incident occurs, namely, first step is to apply for the Patent Disputes Chamber under Rospatent (now the Federal Institute of Industrial Property (FIPS)). This usually takes from 3 to 6 months, and sometimes even a year. And only in case of refusal you should go straight to the Intellectual Property Rights Court (IPR Court). This also takes from 3 to 6 months, but the time until the victory or loss will be minimal, while the cost of patent war - the optimal. In general, assessing the personal experience of the five-year "patent war", I think: IPR Court is the instance that the inventors really lacked so much in the practical resolution of disputes over intellectual property. By the way, the IPR Court was created quite recently - in 2013, but it was the institute that occupied the key place in the intellectual property protection system for inventors and patent owners.
Interviewed by Kirill Ivanov