According to the book I’m reading, there’s nothing new under the sun, which is why it’s totally OK to steal my own “-gate” title from my Girdlegate post, which was of course stolen from Watergate. Not the hotel, I’ve never even been there and I certainly didn’t steal anything when I was. As far as you know.
I hear that Glasses.com, owned by 1-800 Contacts, is suing Ditto over patent infringement, and honestly the whole thing could have been avoided if the 1-800 Contacts people would have just stuck with what they knew. They went all greedy and branched off into glasses and from what it looks like, someone beat them to market with an idea for online try-ons.
I am a fervent glasses-wearer, in that I am not a candidate for contacts or lasik surgery on account of a poke in the eye with a sharp object. Ladies? Don’t try and separate your lashes with a safety pin, that’s the moral of that story. Point being I have a vested interest in this story because I buy a lot of glasses.
Here’s where it gets dicey, and we’ve been down this road before with ye old Surfast v. Microsoft. 1-800 Contacts bought “an old patent from a defunct company” and is now suing Ditto over it’s alleged use. This is different from Surfast in that if I recall correctly, the owners of Surfcast actually held the patent for what is now called “live tiles” themselves, whereas 1-800 Contacts purchased it. The underlying issue is the same though: neither company actually made anything that uses the patent, but later went on to sue someone who did.
From the linked article, it looks like 1-800 Contacts at least intended to do something:
1-800 Contacts claims that it plans to its own service as an iPad app sometime soon. But this plan was first publicized on April 17, 2013, while Ditto launched its version a year ago.
So therein lies the rub: If ditto.com is infringing then they should certainly get a spanking in court and take a license and come what may. But how long should a company be allowed to sit on something before they’re made to execute? This is one of the great, real, tangible improvements that the government can make to the patent system: institute a use it or lose it approach. You can patent whatever wonderful thing you want or purchase a patent for same, but if you don’t bring a product to market inside of two years, then it’s fair game.
Could this entire issue be a misunderstanding, where 1-800 Contacts actually spent years pouring money into this concept, only to see a brash startup steal its lunch? Maybe, but 1-800 Contacts’ history of aggressive litigation doesn’t inspire confidence in that interpretation.
The super-competitive part of me thinks this right here is what happened and the lawsuit is sour grapes, only the patent that 1-800 Contacts has is not going to prove to be up to snuff so their wasted time won’t matter. And for Ditto’s side, there are enough stories in the news right now about patent trolling that surely, surely they did their homework on the technology? Who’s their outside counsel, I wonder, and was there proper due diligence before they brought their idea to market? One would hope.
This is also an example of how the free market is better suited to help the plight of startups, which is in serious trouble as noted here:
“If we win this infringement case, we’re still out the millions of dollars we spent winning. That’s why it has become punitive for companies to innovate,” Endress said. “The patent systems is structured in a way where it lets corporations act like patent trolls where they can buy things they didn’t invent.” And in this case, “we are literally going up against a giant corporation,” Endress noted.
This is a tough one, because the 1-800 Contacts/Glasses.com people were at some point a start up too. They managed to get past that stage and are now raking it in, so they should be punished for that? No, certainly not. But neither should they pick on the new kid on the block who swooped in and, apparently, beat them to the punch. They do seem to be the sort that sues over the drop of a hat.
But the point about the market solving the problem is that the SHIELD Act wouldn’t help at all in this case. What would help is invalidating the patent, and perhaps getting Ditto’s counsel in contact with counsel on previous targets of 1-800 Contacts and getting some 411 on them. But are they a troll? Can we call them that?
Look, I hate trolls as much as anyone, but we can’t cry foul unless the ball is over the line. While every troll is a vexatious litigant, not every vexation litigant is a troll, and I have the graph to prove it: