Patent Strapcutters

After my first child was born, I found that taking pictures was a problem. The Canon S1 IS I'd purchased was a terrific model, but unwieldy when holding a baby. With kid number 2, the problem became worse. One can only juggle so many children while snapping the shutter. And there's the whole business of being fully in the moment with your kids, instead of constantly looking at them through a lens. I turned to crummy (later better) cameras in phones and little snapshotty digital cameras. I figured that when the kids were big enough to not need to be carried, I could graduate to a full DSLR with lenses.

Something happened along the way, however. I discovered James Duncan Davidson and Greg Koenig's Luma Loop. (I'll explain why it's not linked in a moment.) It was built like an adjustable bandolier with a freely traveling slider. The camera attaches through a detachable string loop at a hook in the camera's frame, just the way you'd add a normal neck or hand strap. When you're connected up, you put the strap over one shoulder and the camera can freely hang at your hip. Reach down to grab it, it slides up, take the shot, and release gently or just drop it.

I've known and liked James since I met him on a MacMania cruise in 2002, when he was still up to his neck in Java development. (James spent a few years at Sun, and was responsible for Tomcat and Ant, which means something if you, too, were up to your neck in Java.) He gave up all that programming glory for photography. He has a terrific eye, and you've likely seen his photographs of speakers at O'Reilly and other conferences. His work goes far beyond that to oil spills in the Gulf of Mexico and the sights of rural Bangalore.

The author takes a picture of himself viewed through a stereoscopic high-resolution display system

James and Greg partnered to make the Luma Loop, James bringing what a shooter needs and Greg the industrial design experience. They sold the original Loop, then revised it to be more comfortable and have a better release mechanism (a one-handed metal push button), as well as adding a tripod screw mount for attaching the strap, and extending the line with a consumer-grade lighter-weight strap. (Disclosure: James knew I was a fan of the Loop, and sent me the updated version gratis and with no strings attached. I had planned to write about it, and disclose the gift in that writing.)

That's all come to an end for the moment. James and Greg have pulled the pro and consumer loops from the market out of fear of a patent lawsuit. The patent was granted November 1. The Luma Loop was not, of course, the only freely traveling bandolier style camera strap, and the folks at Black Rapid had a version on the market years before Luma Labs. There are other competitors as well. Black Rapid filed for a patent in 2007 to cover key aspects of a free-sliding sling. James said he and his firm's lawyers reviewed the prior art and the patent filing, and thought it highly unlikely it would be granted. James provides examples in a blog post dating back to 1885 of similar attachment slings.

In an interview, James declined to be more specific about his contacts with Black Rapid. He said he became aware a few days after the patent was granted that it was issued, and he and Greg had to make a decision immediately about a course of action. Even without an injunction or lawsuit in front of them, and with a firm belief that the patent's claims wouldn't withstand a re-examination in light of the introduction of more prior art, selling the product after becoming aware of the patent would be willing infringement, he said. "The risk equation changes."

As a small firm that outsources pretty much everything but design and marketing, including using a Portland-area sewing firm that puts together their straps, James said, "to do any legal action would have consumed the company." It would cost at a minimum many thousands of dollars to pursue a patent re-examination with no assurance of the outcome, no matter how strong James's stance on prior art, during which time selling product would increase the risk to which the firm were exposed.

Now let me switch perspective a bit. Black Rapid didn't respond to a request via email to its press address for comment. I disclosed in that email that James and I were friendly, that I was a fan of the Luma Loop, and that I had received promotional product. I can understand the lack of a reply to such an email, but it would be unfair of me to not present the owners with an opportunity to discuss their positions. Also lawyers often advise those who haven't taken action in a given realm to keep their mouths shut to forestall shutting down avenues that may be used. (Assuming they read this story, I hope they weigh in via the comments.)

Thus let me be scrupulously evenhanded. This isn't a typical patent-troll story of the kind we read about seemingly every day in which a firm that makes nothing of its own except trouble for others acquires or creates business-method patents—ones that describe a way of doing something rather than the creation of an actual physical product or process. Those deemed to be in violation may have lawsuits filed without any notice, which is perfectly legal, or be sent dunning letters for licensing fees.

In the patent-troll universe, very little of value is created. An idea is turned into paperwork not stuff, and the inventor may have never had an intent to make anything of worth, either. The Supreme Court has gradually, and too slowly, ratcheted down such patent lawsuits, and Congress may ultimately pass reform to prevent such patents from being issued in the first place.

Patent trolls have a variety of defenses for their actions, most of which revolve around the notion that people that come up with unique ideas should have some title to them. Intellectual Ventures, a patent-holding fund founded by Nathan Myhrvold, asked rhetorically in a blog post this summer, "…what are the best ways to ensure that ideas are given the value they are due?" (The answer is "sue.") Ideas aren't patentable, however. Only methods and processes. It's part of the patent-troll distortion field that "ideas" are due protection independent from their implementation. (Listen to or read the transcript of NPR's excellent Planet Money report from this summer on business-method patents for a fair and detailed explanation.)

Firms that make products and hold patent troves typically don't love the current landscape, even when they have piles of intellectual property (as in the current patent wars among mobile handset makers) because it consumes too much time, money, attention, and effort. Amazon is often cited as an early abuser of business-method patents, especially for its 1-Click patent. But despite the chilling effect of the existence of 1-Click and many other Amazon patents, the firm has to my knowledge only prevented Barnes & Noble from using 1-Click, and otherwise hasn't pursued action. (Disclosure: I worked at Amazon in 1996 and 1997, and wrote up a patent that Jeff Bezos invented to hand off to a patent attorney.)

But Bezos in an interview this month with Steven Levy at Wired sounds like the most extreme of patent reformers:

Bezos: For many years, I have thought that software patents should either be eliminated or dramatically shortened. It's impossible to measure the toll they've had on the software industry, but on balance, it has been negative.

Levy: But without software patents, you wouldn't have exclusive rights to 1-Click shopping.

Bezos: If that were the price of having a dramatic reduction in software patents, it would be great.

All that said, that's not the nature of Black Rapid's patent. Its strap patent is for a product its founder and later owners developed and produced. They haven't filed a lawsuit against Luma Labs to my knowledge. It is likely and may be implicit, but it hasn't happened yet. It's possible Black Rapid has pursued the patent from a defensive angle, although its Web site's tone ("Anything else is a cheap imitation") makes that unlikely. A defensive patent is filed to make sure a business has put a stake in the sand to prevent other firms from keeping a company from going about its business. That's one strategy, although releasing detailed information into the public sphere (not public domain) about a product can establish prior art.

If we view the matter from its perspective, Black Rapid created something new, unique, and of value if kept exclusive. The patent system, in its original intent, was designed precisely for that purpose: to allow inventors the fruits of their work for a limited period to encourage a flourishing of experimentation.

Where the dispute lies is prior art. Patents (in the United States) must be useful, novel, and non-obvious to those who have expertise in the field. Prior art, or examples of patented or non-patented work that date from or before the patent's filing that essentially encompass what the patent covers. Improvements, if significant, may be patentable, but the same basic concept re-used is not.

James maintains that Black Rapid's notions aren't novel. The US Patent and Trademark Office didn't find it so. That's where it stands. James expects his firm would be targeted by Black Rapid because Luma is the most bijou firm in the free-sliding strap space. "Companies that have a patent will typically go after the smaller, weaker players first because they can get quick judgements before they go after somebody bigger," he said.

Luma Loop had another product under development for the last few months that doesn't overlap with the claims granted in Black Rapid's patent, and which James and Greg are accelerating development of, hoping for a December release. With this new product, which James said has a number of innovative elements, he is considering filing for patents. He said, "I don't want to do it because I don't want to perpetuate the system. But, on the other hand, I have a business to run and defend, and I totally get the idea of a defensive standpoint now."

UPDATE: A response from Black Rapid's Kurt Peterson follows. — Rob

We have been watching some of the comments being posted regarding the
Luma Loop voluntary removal of their sling strap product line. Your site's
article comes close to the facts. In perspective, we applied for this
patent in 2007 and I can ensure you that our intent was not even closely
focused on thinking about cornering the market ‹ as we did not even know
if there was a market ‹ we did it, taking a huge financial risk, to
protect the survival of a small start up company from being inundated by
copy cat products or larger established companies from crushing us during
our development phase. We are still a very small company just trying to
build a respected brand and good products. As noted in the article,
companies, such as Luma Loop, were provided notice of our patent pending
upon the conception of their product line and they understood the business
risks on proceeding with production and, respectfully, they voluntarily
switched their design efforts upon the granting of the patent.

Again, this was nothing more than a strategic business decision to
protect our innovations and, by default, others during the start up
period. I am sure that most of our competitors, possibly Luma Loop, have
applied for some type of patents (most likely design) or trademarks on
their products to protect their interests.