Russia’s 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 mass production. After five years of confrontation and trials, numerous technical examinations which were made with participation of the leading universities of the country, the Intellectual Property Rights Court rendered a judgment in favour of Intersoft Eurasia. Vladimir Elin, Intersoft Eurasia CEO and Head of the DO-RA Project, Ph.D, gave an exclusive interview to Invest Foresight business magazine about the key elements of the war on “patent trolls” and on ways to protect one’s rights in the intellectual property international market.
– What is the history of your personal “war on trolls”, and what was its outcome?
– In our case, the war on the patent trolls had a quite successful outcome, even though it was not possible to prove the fact a competing patent was virtually copying one of our basic patents and our earlier publications and prototypes that had a widespread public coverage. In more detail, I described the situation in my article The History of DO-RA Patent War. I can only add that for inventors, such wars are not only harmful, but, in a certain sense, useful, too. In copyright battles, you come to realise how important all aspects of the invented product are, as outlined in the clauses of Invention Formula. Then if luck, truth and qualification in the field of invention are all on your side, then as a bonus from a patent dispute you can get a decision of the Intellectual Property Rights Court (IPR Court), confirming the inviolability of your patents. And the fact of winning such a litigation can itself raise the capitalization of intellectual property existing as 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 an inventor as the holder of intellectual property if he wants to enter the international market?
– The main threats to an inventor in the times of scientific and technological progress, I see in an accelerating competition on the basis of the already invented things which can actually be improved not within a year, or two, or three, as it was before, but on a quarterly basis. 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 holders of intellectual property emerging in the process of the digital economy development is a disdainful attitude, in fact, to a proper registration of this property. Many inventors still believe that if they put their inventions to the “know-how” category and protect them with corporate disclaimers on commercial secrets, no one can quickly get to their essence. Alas, this is a deeply erroneous and unconstructive point of view. Our colleagues abroad with the help of high-tech testing devices, powerful computers and other tricks of the modern world, crack such “know-how” within weeks, and create prototype in a few more days. Therefore, it is worthwhile to go from the start along the line: an application for a Russian patent and an international Patent Cooperation Treaty application, and subsequent registration of intellectual property in key jurisdictions of the world.
– Patent trolls and vampires – who are they?
– There are several types of patent trolls, in my understanding. And in varying situations, they can act as different actors, as “forest cleaners”, as vampires, even as creators and engines of the progress. The first type of such people can be tentatively called Robin Hoods. These are typical and usually not really rich (both in terms of intellectual property and material assets) individuals who hold one or two or more patents of a general application, something like “a protocol for transmitting a signal by various means or methods whether analogue or digital, from one device to another device or group of devices, etc.” Their main goal is not to produce a prototype or serial model of the invented item, but to stick to another inventor who had come up similar technologies and now employs them in manufacturing some original products. At the very least they want to be on a payroll of a colleague who goes soft and allows being convinced that a third-party patent can ruin his business.
Another type of trolls can be called Promo-Trolls. They usually are a team and may have significant experience and financial resources. Such a team may hold dozens, or even hundreds of practical patents and inventions. So such trolls often copy, with some minor improvements, other people’s designs, adding some universalism thereto, for example, patenting a “back scratcher fly flap with a fan function”, and launching production immediately deriving financial proceeds from the sales. At times they also raid other inventors’ similar patents. This kind of trolls may be evil, but may be useful to society, too, if they swiftly come up with inexpensive innovative products.
Finally, the third category of patent trolls is about a conspiracy. These are communities of professional lawyers, patent experts, inventors and funds who team up for well-coordinated attacks against various targets. They generate revenues through manipulations with the oversights of the patents and inventions owners who have already launched large-scale production of certain items (it is worth recalling again the Apple vs Samsung trial).
– What is their arsenal of tools? What becomes the primary target of an attack?
– The range of tools to achieve the trolling purposes is quite limited. It includes lawyers and technical experts of the community, financial support of patent trolling through ad hoc funds, and a psychological attack in the media. As a rule, victims of patent trolls are individual or corporate patent holders, Troll attacks are launched through a “window of opportunities” or, to be more precise, breaches and weak points in a patent to a practical model or, less to a lesser extent, in an invention. Sometimes, trolling is aimed at trademarks and industrial designs. But trolling only happens if there is some money which may be extorted, that is, if there is a well established industrial manufacture of products which bear disputable novelty characteristics or apparent reproductions of someone else’s technology.
– How can an inventor diagnosticate becoming a patent troll victim?
– A patent troll will find all by himself, just as the saying in the well-known meme goes, “Now, we are coming to you!” Patent attorneys for these guys are going very good job since that is the core of their business. These specialists permanently monitor the patent landscape, while technical specialists analyse those areas of scientific and technical progress, where there is a high production potential in mass production of goods based on patents which are analogous to a degree of confusion. In this case one will get a letter saying, roughly, “You are in breach of the rights of such and such patent holder, and hence under such and such article of such and such code, you have to settle the relationship extrajudicially. Should you decline to do so, the amount of the claim for financial losses will be so tremendous that you will regret having failed to settle all formalities with us at this stage.”
-How can one defend oneself? Is there any universal tool or, in your opinion, in each case an inventor have to employ a new scenario?
– First of all, do not loose your heart or get scared by a patent troll’s attack. Trolls are also huan and have their own weaknesses. See this challenge of fate as the heavenly manna since you and your patent earned attention of “intellectual property filibusters”. By the way, this is a good sign as a patent troll attack attests to the outlooks and usefulness of the invention. First of all, go to qualified patent specialists, preferably with a considerable experience in your area of expertise. By doing so, you will be able to repel at least the first wave of troll attacks. If this recommendation does not help you beat off the first attach, be patient and look for qualified intellectual property lawyers to team them up with the patent specialists already working for your company. You will then be able to get a revenge for the attack on your patents through IPR Court, launching an open fight for your intellectual property rights. In this life, there are no universal tools for battles with patent trolls. Each case is quite unique. What works for sure, is a incessant improvement of your qualifications and developments. This will help you to always be out of reach of “intellectual property filibusters”.
– Judging by your own experience, to what extent are the existing administrative and judicial systems ready (and able) to protect the inventor?
– If you follow the right path when a patent incident occurs, the first step is to apply to the Patent Disputes Chamber under Federal Service for Intellectual Property (now Federal Institute of Industrial Property or FIPS). This process usually takes 3 to 6 months, sometimes even a year. In case of a negative ruling go straight to the Intellectual Property Rights Court. This process also takes 3 to 6 months, but the time – to ultimately win or loose – will be minimal, while the cost of patent war optimal. Assessing my personal experience of a five-year patent war in general, I think, IPR Court is the agency that the inventors really lacked so much to practically resolve disputes over intellectual property. By the way, the IPR Court was established quite recently, in 2013, but it now is a centrepiece in the inventors and patent holedrs’ intellectual property rights protection system.
Interviewed by Kirill Ivanov