PublishedMarch 19, 2014

A Troll in Inventor’s Clothing

Sometimes this debate over patent reform seems surreal. “Small inventors” are coming out of the woodwork to make bizarre claims, like arguing that making it easier to penalize patent owners who bring frivolous litigation will destroy innovation.

Here’s an example. Last week, an inventor named David Barstow published an op-ed in the Austin American-Statesman, pleading with Congress not to include fee-shifting reform in the final package.

According to Barstow,

The little guys already are at a great disadvantage in litigation — big guys with deep pockets can win, even when they are wrong, simply by outlasting the little guys.

He points to his own story as an example:

In the late 1980s, my brother and I invented a way of using telecommunications and computer simulation to allow fans to follow live sports events like baseball games on their home computers. My brother and I patented our technology, thinking the patents would protect us from the big players who dominated the sports media industry. Unfortunately, we were wrong.

At first, the big players ignored our technology. When we started providing sophisticated real-time animation of Major League Baseball games on the Internet, some of the leagues tried to stop us, claiming that we were violating their media rights. Ultimately, the leagues and media companies started providing their own play-by-play simulation services, and by the early 2000s, the technology had become pretty widespread.

Barstow certainly tells a sympathetic story. It’s a shame it’s not, you know, true.

First, the NBA went after the company that was providing statistics to Barstow, STATS LLC, not Barstow’s company. STATS LLC was founded in 1981 (long before Barstow came along). The trigger for the NBA’s action was Motorola’s intention to provide a pager that could receive live game stats. The NBA sued, claiming that it owned those statistics under copyright law.

(It’s ironic that Barstow complains that the NBA’s desire for strong intellectual property rights would have shut down his business, given that he’s arguing for his own strong IP rights.)

Oh, and for all that Barstow argues that big companies have a big advantage, none of the companies Barstow sued managed to beat him. So far they’ve all settled. It’s hardly credible to claim Barstow was at a big disadvantage when he took on much better-funded opponents and got settlements from them.

But besides that, did big companies really take Barstow’s “technology”? Well, it depends on how you define “technology.” Barstow basically patented the idea of collecting “sub-events” (like pitches, hits, etc.) from a live event, storing them in a database, and then showing them in some sort of simulation on a different computer.

In plain English, Barstow’s “invention” was showing what’s happening in a sporting event by representing it with digital stick figures.

Barstow’s patents don’t have an original technological idea in them. STATS LLC had been gathering the type of events the patent talks about for many years, so that wasn’t new. And for each technical feature described in the patents, Barstow lists a book or academic paper describing how to implement it.

In other words, collecting and storing the data wasn’t new, and drawing a simulation based on the data wasn’t new. The new part? Drawing the simulation during the game using stick figures.

Let’s also observe that Barstow kept more patents in the pipeline to improve his claims, even after he’d stopped providing his stick figure simulations. According to a page on the Wayback Machine, Barstow’s company stopped doing the stick figure simulation after the 1997 season. That’s a few years before Major League Baseball got into the action.

Oh, and Barstow’s holding company, DDB Technologies, has been suing everyone in sight, including CBS, Major League Baseball, AOL, and ESPN.

What’s the bottom line? This “small inventor” who wants protection is gaming the system. His original invention wasn’t an invention so much as an unpatentable idea, and now that others are successfully implementing the same idea (in their own ways), he’s trying to grab a piece of the action. He successfully got settlements from several big companies, precisely because of the advantages that the patent system currently gives to all patent owners. He just doesn’t want to lose the thumb on the judicial scale that’s made it possible for him to get rich.

If Barstow is representative of the small inventors we’re supposed to worry about, maybe we shouldn’t be too concerned about them.

Matt Levy

Previously, Matt was patent counsel at the Computer & Communications Industry Association

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