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Never mind the patent trolls. Here's a riddle: What about the inventors?

Who's that trip-trapping over my bridge... a teen on hoverboard?

The mania for hoverboards is causing an outbreak of painful patent ignorance, says a top litigator.

EIP’s Matthew Jones, who has litigated in tech and pharma cases, highlights the seizure of a Chinese hoverboard maker’s wares at the Consumer Electronics Show in Las Vegas this month as an example.

Changzhou makes the “Surfing Electric Scooter” - endearingly branded the “Trotter” back home - and was showing it off the skateboard at a booth at CES in Las Vegas. It’s apparently similar – and we couldn't possibly comment on to what extent this is – to the Future Motion OneWheel, an American design which launched a fundraiser on Kickstarter two years ago. The Changzhou is much cheaper, though.

However, whatever the respective merits of their claims, Future Motion and Changzhou both erred in the justifications they offered to the BBC.

Changzhou claimed to have invented its skateboard ages ago but said it had “kept it hidden”. Which may be true, but doesn’t cut any ice with a law court. Unlike copyright, patent protection is not automatic, and must be applied for and then granted. “It’s about who gets to the patent office first,” Jones points out.

Hiding an invention for years is not a good idea either, as prior art in the public domain may have helped invalidate later claims by rivals.

But Jones found Future Motion’s claims that the “Trotter” is “a knock-off” both irrelevant and inflammatory, he told us.

“It’s a bit of marketing spin, and a little bit unfair. Whether it’s a knock-off is neither here nor there. A knock-off is someone cynically copying something to make a fast buck off someone else’s good work. Changzhou may be oblivious and unaware of the patent, but that’s not a defence.”

The case is set to return to court on 17 February, and the judge has extended the preliminary injunction until then.

The law in the US vs law in the UK

And for all the concern about patent trolls, or claims made by “non practising entities”, it’s largely an American preoccupation. That’s for a couple of reasons, says Jones.

In the UK system, the losing side has to pay both parties’ costs. “This discourages people from bringing frivolous cases.”

“In the USA, patent trolls can start a lawsuit and sit back, despite knowing full well that it will lose if it goes to trial. The defendant knows that it can pay X amount in unrecoverable legal fees, or they can pay a much smaller amount in fees if they take out a licence.”

Many take the latter option.

The UK also has a small claims process for settling cases where costs are capped at £50,000 – the Intellectual Property Enterprise Court, formerly the Patents County Court.

Here in the UK, the problem is the perennial one - defending your invention against wealthy litigants. If you’re an inventor, even if your legal and moral claim is watertight, you may be outgunned.

“You’re a small inventor and go through the process in each jurisdiction, and along comes a socking great big company. IT says it won’t take out a licence, but it will make your product. Even if you hire expensive lawyers, you’ll pay huge costs.”

“IPEC helps, but it's far from being a perfect answer,” Jones says. A startup could still be ruined by a big company, which chooses to pursue revocation - seeking to get the patent struck out. The cost of defending the patent in the High Court could still run to many millions.

Jones reminded us that the dilemma isn’t a new one - and was summed up perfectly in the 19th Century, by one Lord Esher. Summing up in the case Ungar vs Sugg*, Esher despaired that:

A man had better have his patent infringed, or have anything happen to him in this world, short of losing all his family by influenza, than have a dispute about a patent. His patent is swallowed up, and he is ruined.

It’s a measure of Silicon Valley’s influence over the technology press that you'll hear much more about the woes caused by trolls, than you do about the potential ruin that faces you if you have invented something, and then try to defend your rights. ®

* TLDR: The 1887 case was related to Thomas Sugg's patent No. 5267, granted in 1880, for "Improvements in the construction of gas lamps or lanterns". Ungar sued Sugg to stop Sugg threatening Ungar's customers by saying they had bought "patent-infringing" tech.

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