Monday, June 26, 2017

The Patent Troll and the Scavenger Hunt

The Patent Troll and the Scavenger Hunt



Ken Cooper runs a small business out of his home. Unfortunately Ken’s business was not so small that it avoided the notice of a patent troll.



Ken has been writing code since 1973. His life in programming has ranged from small personal projects to founding a software company that was acquired by Microsoft. Today he runs a company called Coopercode. The company’s main project is a mobile scavenger hunt app for the iPhone and iPad called Klikaklu. Ken created the app to do scavenger hunts with his kids. It ended up being featured by Apple as a ‘New and Notable’ app and became popular with teachers. The app has been used at conferences, college orientations, and institutions like the Smithsonian and the National Gallery of Art. What began as a hobby project turned into a real business.

But Ken’s new business hit a roadblock. On January 6, 2017, a patent troll called Locality Leap, LLC, sued Coopercode alleging that Klikaklu infringed U.S. Patent No. 6,320,495 (the ’495 patent), entitled “Treasure Hunt Game Utilizing GPS Equipped Wireless Communications Devices.” The patent claimed a method of playing a game that involves receiving a message, generating a message, and then having a player move to a location based on those messages. It didn’t involve any new technology. Rather, it suggested using messaging and GPS technology to assist with the age-old pastime of treasure hunts.

Ken was stunned by Locality Leap’s patent. He’d had some experience with the patent system from his time at Microsoft. In fact, Ken is a named inventor on six patents. But his first thought on reading the ‘495 patent was: “Wow, you can patent that?” The patent seemed trivial. All it did was combine things Locality Leap didn’t invent – like GPS and wireless messaging – with an ancient game.

Even though the patent seemed frivolous, Ken faced the prospect of ruinous costs from the litigation. Locality Leap filed its suit in the Eastern District of Texas. That made no sense to Ken. Coopercode is based in Washington State and Locality Leap is incorporated in California. Then Ken learned that the Texas forum had a reputation as being both patent-friendly and expensive for defendants. Instead of spending time growing his business (with marketing or creating an Android version of the app), all of Ken’s time was sucked into the litigation. Ken soon realized that the case might force him to close his business entirely.

Fortunately, thanks to Alice v. CLS Bank, Ken was able to fight back. Locality Leap’s patent was likely invalid under Alice because it simply applied well-known computer functionality to an old practice. Since Alice can be raised early in a case on a motion to dismiss, it also offered Coopercode a way to defend itself without going through ruinous discovery and trial. As Ken described it, Alice was “manna from heaven.”

With EFF’s help, Ken was able to find an experienced patent litigator who took the case for a reduced fee. Ken’s lawyer wrote to Locality Leap explaining that its patent claims were invalid under Alice and also invalid as obvious. She explained that if Locality Leap didn’t dismiss the case voluntarily, Coopercode would file a motion to dismiss raising Alice and would also seek attorney’s fees.

Facing a defendant willing to fight back, Locality Leap folded completely. It dismissed its claims with prejudice and Ken did not have to pay any money. Instead of closing his company he could return to it full time and work on growing the business. Without Alice, he likely would have faced a very different result.

Source: The Patent Troll and the Scavenger Hunt | Electronic Frontier Foundation