Why Is The Federal Government Shutting Down A CES Booth Over A Patent Dispute?
from the how-is-it-their-concern dept
One of the big stories coming out of CES this week is the bizarre situation in which US Marshals showed up here at the event yesterday and completely shut down the booth of a Chinese company, named Changzhou First International Trade Co. This happened after a judge granted a motion for a temporary restraining order, filed by US company Future Motion, following a seven minute hearing about the matter, in which Changzhou was not present and had no say.To be clear, it does appear that Changzhou is building a knockoff of Future Motion's one wheeled self-balancing scooter thing -- a device that got plenty of attention via a big Kickstarter campaign. And, Future Motion does hold both a patent on a self-balancing skateboard (US Patent 9,101,817) as well as a design patent (US D746,928), which was just granted a few days ago, on a device that obviously looks quite a lot like what both companies are selling:
If there's a legitimate patent infringement case here, as there may well be (even though I'll have some more to say about patents in this space in an upcoming post...), it's still troubling that the company got shut down in the middle of the trade show and that it involved the US government intervening in what is a civil issue. This is certainly not out of the ordinary in general. Part of the job of the US Marshals is to execute seizures related to restraining orders that are ordered by federal courts. But it still seems like pretty massive overkill for a company that's just showing some scooters at a trade show, and where they haven't had a chance to present a defense.
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Filed Under: ces, hoverboard, onewheel, patents, retraining order, seizure, us marshals
Companies: changzhou first international trade co., future motion
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odd
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Design?
Oh look they still exist, though I never heard anyone make a health claim with regard to them then. It did help with balance.
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A few notes.
Preservation of evidence. It's a trade show. Up for a few days, gone forever afterward. Along with the physical evidence of infringement, which is one reason an emergency seizure would have been permitted.
The infringer also does NOT have a physical presence in the US, but is marketing their product here, so intercepting infringing devices and recovering judgment monies would be difficult at best unless the booth was seized.
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Passwords
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Injunction against the world
Looks like an injunction contra mundum.
(*) Document 11 appears to be the same posted both here at Techdirt, and over at Ars. But I'm working of the Ars copy right now, if there's any difference.
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It is part of the militarization of the police
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Now the Anti-Counterfeiting Trade Agreement (ACTA) kicks in. It's no longer a civil issue, but a criminal one.
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Interesting Unfair Competition Question
As a matter of pure fairness, I'm thinking maybe a judge does have that power, because it prevents the infringer from profiting.
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Silly Really
The unique and novel thing that makes it patentable is the self balancing aspect of it and the segway is prior art for that.
The design patent aspect here might make a little sense. But something to consider, making an identical knock-off I think is wrong (akin to trademark infringement) but making a similar looking device I see no problem with.
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Re: Interesting Unfair Competition Question
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Not unheard of
We were a small company that developed a product that provided a better solution than the product of one of the largest players in our market. It truly had new technology developed in house at our company that was in the process of being patented. The day before the trade show where we were introducing the product opened, the law firm the competitor got a US federal judge to issue a emergency TRO and a order to seize our equipment and documents present at the trade show, along with orders for us to turn over all design documentation and software claiming that we had copied their design.
We had set up the booth the night before the show was to open and we didn't find out about any of this until we arrived at the show the next morning to discover that all of our stuff was gone, seized by the US Marshall service. (and later delivered to the competitor.)
The court that issued the order was way across the country in the south, the competitor had hired the law firm of the judges son to represent them. Needless to say, our company did not the resources or connections to fight this very far.
It was our rude awakening on how things really work.
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Re: Re: Interesting Unfair Competition Question
There's a federal standard for temporary restraining orders following ex parte proceedings, so sometimes that's OK, at least under current law.
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Re: Re: Re: Interesting Unfair Competition Question
How long did it take Apple and Samsung to get the rounded corners thing adjudicated?
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How can this thing work?
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Re: How can this thing work?
I don't see why. The wheel contains the driving motor. Depress the front and it goes forward. Depress the back, backward. During both, the board keeps itself mostly horizontal. Fall off, and it stops in its place.
It's a one wheeled, foot controlled Segway. This thing, plus a person looking down at a cell phone while riding it, is going to be hilarious for all spectators looking on.
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Just wait for the other shoe
Why? Because they can apparently. Live by the IP, die by the IP...
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Future Motion crippled a competitor for only a few hours of lawyer time. Even if they lose their $10K bond (not especially likely), it's still a bargain.
For those that doubt the $50K amount, ask anyone that has been in charge of a trade show. They will tell you that $50K might get you the smallest professional-looking booth and pay the expenses for staffing it. Then consider that it's CES, when everything 3x-5x the price if it can be had at all. Flights are at full fare, hotel rooms are at least 3x, rental cars are impossible to get, and services on the show floor are extremely expensive. It often costs more to move a crate from the loading dock to the booth location than getting it halfway around the world to the loading dock in the first place.
To have all of this destroyed, with no notice, by a foreign government must be extremely frustrating. It must really look like protectionism and corruption.
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How sad.....
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Re:
I think that overstates it a bit, however I agree the incident would seriously pee me off if I were the Chinese competitor. It makes me think there's a blockbuster Chinese domestic market movie begging to be made, the Chinese version of a Steven Segal revenge flick. The final scene would be a mushroom cloud rising from CES. Reap what you sow, running dog capitalist swine!
Good luck to Future Motion trying to partner up with Chinese mfgrs once word of this gets around back home. They'll be out to steal 'em blind in every way possible. The lawyer and judge might want to review their security, including that of their families.
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Re: Re:
That is perhaps the saddest comment ever on Techdirt. It's insanely sad to think that court officers, doing their job as prescribed by the law, should have to worry about angry plaintiffs coming to get them.
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Re: Re: Re:
If things get truly bad, Judge Du can just move her family inside the Palace of Justice temporarily, and they'll all be perfectly safe there. The crisis will blow over after awhile, like these situations always do, and then everyone can go home—things will be like they used to be once again. You'll see. Everyone shall be fine and grand.
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Protecting it means the rule of law doesn't apply to parties not smart enough to be waiting in every court room in the country where a competitor might file motions making claims.
You are not entitled to defend yourself.
You are not entitled to innocent until proven guilty, a corporation has said you are not.
We will take all of your possessions and turn them over to your competitor & compel you to provide passwords so that they can gather evidence to support the claims before any formal legal case is filed.
We will perp walk your property out of a large scale event, helping to destroy your reputation.
Accusations are what are reported not the outcome of any trial that might not come to pass as we've handed your competitor all of your information and they can see how you did things and improve their product from your designs.
All of this before you have any chance to defend yourself in a court that isn't interested in the truth, just in granting corporations wishes to have publicity for their product, shutting out a competitor, the added bonus of draining that competitors resources for an event they will not be able to participate in & making sure that any future competitors will think twice about making anything remotely like their product because all it takes is a corporation making unopposed/unverified claims to have your product seized and held until the court can find a clear day on its calendar to hear any evidence.
IP means not having to compete, just claim you were infringed and gain control the market. The cost to you is a tiny fraction of what you stand to make.
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Re: Re: Re:
Perhaps you should read up on the history of China, and note their population numbers. The USA is ca. 240 years old. China goes back four millennia, and they don't revere the life of individuals like we do (https://en.wikipedia.org/wiki/Qin_Shi_Huang#Death_and_postmortem_events):
We were very naive when we showed up in Korea in the fifties. Then, the Chinese showed up. That war is still going on to this day.
This story's about an arguably slimy move by a lawyer leveraging the US justice system to cut the legs out from under a Chinese competitor. I'd worry about blowback, and I don't underestimate the Chinese (nor any Orientals for that matter).
You go ahead and believe court officers are sacrosanct. I doubt many of the tyrants of history would've cared about your protestations, nor your laws or its functionaries.
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Re: Passwords
I can only imagine the massive amount of requests that are going to start showing up on his desk in the near future once the police and government agencies learn about his complete and utter indifference to privacy.
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Re:
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I don't care if they're right...
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Both Patents Are Fundamentally Invalid.
However, it seems, there is also a design patent on the device in the present controversy, and _that_ was improperly granted. The basic configuration of a balancing moving vehicle, that is, the location of hand grips, foot-rests, seats, and wheels is a matter of _physics_, at much the same level as the motion of a dancer's body. It is inherently utilitarian, and therefore not eligible for a design patent. I have looked at the pictures of the respective devices in the Ars Technica article. Both are so minimal in design that there are essentially no non-utilitarian elements. There is no ornamental matter on which a design patent could rest.
A ballerina "en pointe" is beautiful in approximately the same sense that a suspension bridge is beautiful-- it is inherent in the condition of staying up, with the least possible support, and not going splat. There is a man named Kenneth Laws, retired from Dickinson College in Pennsylvania, who wrote a book about the physics of dance, back in the 1990's.
http://physics.dickinson.edu/~pod_web/
The work has been carried on by a man named George Gollin at Illinois:
http://www.hep.uiuc.edu/home/g-gollin/dance/dance_physics.html
http://web.hep.uiuc.edu/home/ g-gollin/
I remember reading about it about thirty years ago in a summary article about Laws' work in Scientific American's "Amateur Scientist" column. A lot of it involves the dancer moving her arms and legs in such a way as to shift her center of gravity relative to her head and torso (for purposes of jumping, jump in the air, pull the arms and legs up, and then put them down again to land); or changing her moment of rotational inertia (for purposes of spinning, accumulate a lot of rotational momentum with the arms out, at a relatively low rate of spin, then go up on pointe, and pull the arms in to spin fast).
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Why Not Abolish The Design Patent
In our own time, however, the trend is towards styles of work which have essentially no inherent ornamentation, and which are designed in the most efficient possible fashion. If you want ornamentation, you paint on a picture, or attach a picture. This is most perfectly expressed in the "nose art" of military aircraft. Flying at 1500 mph, there is absolutely NO room for decorative pieces of metal, but there is a long tradition of painting pictures of pretty girls on the cowling. I have a picture of a RAF Tornado fighter-bomber, circa 1990, named "Mig-Eater," with a picture of a shark, in 1930's bathing-beauty pose, eating a Russian Mig fighter-jet. Similarly, in architecture, very modern architecture could co-exist with mural-painters such as Diego Rivera, who were not at all modern, at least not in the sense that a leading architect, someone like Walter Gropius, would have used the term. The building had a big concrete wall, which the artist could paint whatever he wanted on. Such a painting can be copyrighted like any other painting, and subjected to appropriate fair-use tests. For example, photographing a mural on the side of a building, and printing the picture in a magazine, should be fair use, but copying the picture onto the side of another building should not be.
Ref: Siegfried Giedion, Mechanization Takes Command: A Contribution to Anonymous History, Oxford University Press, New York, 1948.
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Re: Injunction against the world
So in the space of 7 minutes, hearing only 1 side of the case, a Judge has ruled it is infringing.
Can't be bothered to allow them to put on a case, just the word of 1 side and we get rulings. Sure hope the people who were targeted don't manage to put on a case and show how they reinvented the wheel and the Judge made an error.
Of course the system will protect the Judge who managed to undermine the legal system so there will be little recourse than a vindication reported on page 32k in very small print.
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Re: Re: Passwords
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Re: Re: Injunction against the world
He didn't rule that it's infringing at all. He only ruled that the request for an injunction was valid, and the failure to follow this injunction by the Chinese company lead to the seizure of the products at the trade show.
There is no ruling that says that it's infringing.
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Re: Re: Re: Injunction against the world
On page 7, note:So why did Judge Du order service of the Summons and Complaint if defendant had already been served? Why did plaintiff include that language in the [Proposed] Order if they could make a colorable argument that defendant had already been served before the hearing?
Judge Du just signed the [Proposed] Order without even crossing out the word “[Proposed]”.
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Wut?
https://youtu.be/WJmdfaz84ns?t=260
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To protect US companies
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Re: Re: Re: Re: Injunction against the world
Again, it's not the judge making a detailed ruling on the validity of the patent or declaring the defendant to be infringing. It's about injunctive relief from a situation that would not be able to be undone.
"why did Judge Du order service of the Summons and Complaint if defendant had already been served? "
I used a word incorrectly, Mr Technical. They had contacted the Chinese via lawyer letter, a cease and desist, etc. The judge ruled on the injunction at the moment the suit was filed, which is why the judge ordered service.
Put simply, the Chinese company wasn't blind sided - just hoping that they could do the trade show, make a bunch of sales, and go home to produce the product without having to deal with the patent issue. Once back in China, they could produce all they want with the protection of their weak legal system, and flood the market. Once the contacts are made at the trade show and orders secured, it would be very hard for the Patent holder to deal with each and every infringing seller, effectively rendering the patent moot. The Chinese company could also flood other markets with the product, essentially killing the value of holding a valid patent.
I guess that explains why Techdirt is so upset... patents suck, right?
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Re: To protect US companies
The USA has always put on a big show about how free enterprise capitalistic the USA is, but it's never been true. They've a bad, bad, case of multiple personality disorder. Republicans, Democrats, Northerners, Southerners, Conservatives, Progressives, secular, nonsecular, ... It's just marketing BS. Think softwood lumber, or how many miles is their off-shore fishing boundary? I'm Canadian. One of our prime ministers likened it to sleeping with an elephant.
It took them a while to get around the Constitution (they were busy living and raising families, I guess), but they finally invented the IRS and the CIA, and from that point on they were on a roll, just yet another entitled rich guy's empire on its inevitable path to implosion.
At least we got some seriously cool tech out of the process, and some way entertaining mass media. Too bad their attempt at that democracy thing was so poorly executed. Damn, they suck at that stuff.
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Re: they don't revere the life of individuals like we do
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Re: Re: Re: Re: Re: Injunction against the world
It might indeed take 7 minutes to comprehend the separation-of-powers concerns arising when a federal judge purports to enact laws of general applicability. Especially when she does not present the bill to the President in conformity with Article I, Section 7.
( I would tend to think, at least, that House of Representatives has a well-founded complaint, should that House desire to pursue it. Usurpation of the legislative power is patently subversive to our plan of government. Of course, one might wonder whether the Senate would concur in that. Judge Du has a very touching and emotionally-compelling personal story. )
Anyhow, that should have been a red-flag warning that the [Proposed] Order might contain other drastic infirmities.
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Re: Re: Re: Re: Re: Injunction against the world
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Re: Re: Re: Re: Re: Injunction against the world
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Re: Re: they don't revere the life of individuals like we do
Well, that was quite a while ago, and tribalism is pretty heavily embedded into pretty much all living creatures' cultures (including Natives, of course). Considering Natives little better than vermin has largely disappeared in recent decades.
I tend not to want to hang around with people who blame others just for being different. There are much better things to use to judge others' value than whatever DNA their parents gifted them with. I think all the more civilized among us are trying to get away from that sort of thinking, but it's a pretty virulent attitude. Most living things, including humans, don't even want to give it up. It's pretty low-level brainstem programming stuff and I doubt we'll ever see it end.
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does this includ the uk england
Does the patents include the uk (if it was soid in the uk could i expect a law suit from one wheel) ?
many thanks
Jon
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Re: Re: Re: Re: Re: Injunction against the world
Pray tell, what's wrong with that? Who wants to deal with patent lawsuits? Nobody but patent lawyers. These guys want to sell consumer electronics, not enrich litigation lawyers.
Look at some other markets, such as automobiles. There's Rolls Royce, Mercedes Benz, Ferrari, yada yada, and there's Volkswagen, Yugo, and Deus Chevau. Not everyone wants to pay every penny they have to drive a Rolls Royce. Lots of people just want basic transportation.
Walk into any Walmart and you'll see very expensive, top of the line stuff from name brand manufacturers sold right along side with cheap crap that does the same thing but isn't sexy and wears out in no time doing the same job poorly. Is Rolls Royce hurt in any way by Yugos being sold to less discriminating, less wealthy patrons who'd never be able to afford Rolls Royce's price tag?
Yet Future Motion has managed to get a patent and is using it as a club against those they perceive to be competition, and they get to use the full weight of law enforcement to implement a ban. Why would I want my tax dollars to go toward putting a system like that in place, to prop up entitled jerks who're afraid of competition?
Any law that can be used as a club to short circuit the free market is going to suck, so yeah. I very much prefer it when market forces control what happens, not blunt edged weapons like lawyers, judges, and regulatory powers. The former is far more democratic and works better in the long run. The latter just makes rich jerks with powerful connections richer and leaves the rest of us with disappointment.
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Re: does this include the uk england
The fact that question even needs to be asked is annoying. Can't anything be done these days without getting lawyers involved? Maybe we should all be hounding our politicians into writing laws in clear language anyone can understand without learning a dead language (Latin) and spending years earning a law degree.
Unfortunately, to answer your question you probably need to talk to a lawyer. There are numerous types of patents. Some are just domestic, some are international, and it could hinge on whether treaties are in place between the two gov'ts to honour each others' laws.
Remember also that whether to expect a lawsuit has nothing to do with being on the right or wrong side of the law. Money, or lack thereof, controls the situation. You may have the law on your side but if you can't afford to prove it in court, you lose.
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Re: Re: Re: Re:
He's simply disappointed that this time his precious authorities aren't messing with mere citizens. The opposition can actually put up a fight this time. This prospect distresses him greatly.
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Re: Re: Re: Re: Re:
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Re: Re: Re: Re: Re: Re:
For what it's worth, I haven't determined whether you're here to push some specific agenda, or if you're just hoping to see the "other side's" arguments. It could be that what you've shown us is just due to who or what you are, which is fine by me.
I wonder about some of your stated opinions, but I wouldn't put you down as an obvious troll. We've far more egregious examples of them lurking about waiting to pounce to pontificate their masters' agenda.
I'm just here to learn, and wish everyone was.
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Re: Re: Re: Re: Re: Re:
Not distressed in the least. I guess when you live in the copyright enforcer universe your terms and definitions get a little warped, but then how else are you going to claim "forever minus a day" as a reasonable length of time?
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Re: Both Patents Are Fundamentally Invalid.
George Gollin is fundamentally invalid.
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Re: Re: Both Patents Are Fundamentally Invalid.
https://www.illinois.gov/oeig/investigations/Documents/14EEC011_Gollin.pdf
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