In the comedy classic Dumb & Dumber, a woman tells Jim Carrey’s character that his chances with her are “one in a million.” Undaunted, he responds, “so you’re saying there’s a chance!”
The augmented reality industry’s chances of seeing the patent that Lennon Image Technologies has been using for the past year to wreak havoc on its customers get erased by the U.S. Patent and Trademark Office (USPTO) are quite a bit better than that. (Better, even, than the 1-in-100 odds that Jim had hoped for.) That’s because the patent is currently subject to ex parte re-examination. But that process has already been underway for several months, it turns out, and with each day it takes, Lennon is continuing to make life difficult for retailers using AR.
Ex parte reexamination, is a process by which a third party submits a request for a three-examiner panel of the USPTO to take a second look at an already-granted patent based on certain prior art. The art submitted by the third party must raise “substantial and new question of patentability.” Generally speaking, once that submission is made, the process only involves the patent owner and the USPTO.
As part of its overhaul of the US patent system, the America Invents Act drastically increased the filing fees for ex parte re-examination requests, from $2,520 to $17,750. That hike took effect on September 16, 2012. So naturally, there was a huge run-up in such filings in the days before that deadline. One such re-examination petition–filed on September 15, 2012–asked the USPTO to re-examine Lennon’s patent. It was submitted by an attorney, but the party for whom he did it is allowed to remain anonymous.
Of course, that was months ago, and there has been no decision yet. That’s not surprising; this process can take months or even years, especially considering the enormous glut of requests that the USPTO received last September.
Still, the delay allows Lennon to do more damage. Its strategy of targeting retail clients of AR developers is not unique. Patent trolls actually sue more non-tech companies over software patents nowadays than they do tech companies, with retail being among the hardest hit of all. That’s because the companies behind the software have a vested interest in defending it, while retail clients–who likely just licensed the technology as a one-off experiment–are much more keen to simply pay a nuisance settlement to get rid of the litigation, which the troll then uses to fund the next round of litigation. In light of the number of lawsuits that Lennon has filed and companies targeted so far–at least 13 lawsuits with around 20 defendants, including many of the biggest names in retail–every day that it’s allowed to continue hurts adds to the hurdle that the fledgling AR industry must overcome in order to succeed in the mainstream economy.