What I’ve Learned About Thieves and Patent Law
Before going into the ocean, I had carefully placed my flip-flops next to an odd-looking arrangement of driftwood on the beach, near a broken and abandoned fold-away camping chair.
When I returned, the sun had risen above the mountains, and a few people were on the beach, mostly other surfers getting ready to enter the water. As I walked back towards my flip-flops, I saw a man lingering near the driftwood arrangement. I think I saw him pick something up before he started walking towards the sandy service road that runs behind the beach.
When I arrived at the driftwood, my flip-flops were gone. Where they had been was nothing. He didn’t even leave me something in exchange, like some pretty shells or a packet of cigarettes. There’s something profoundly disturbing to me about the unpredictable loss of possessions.
As a small child of four or five, I had a reputation for storing my things in a neatly arranged configuration in the middle of the large hallway in our home. It resembled the pre-trip inventory of a mountaineering expedition, except that it was three-dimensional. Things were carefully and consciously arranged and stacked. Apparently, I referred to this pile as, “my poyul.” The visual image of this pile was my low-tech implementation of a cryptographic hash. I was able to look at it and instantly tell if something was missing.
Even though my older brother, James, has fond memories of me and my pile, I’m not sure that he knows that he was in fact the driving force behind it. From a very early age what was his was his and what was mine was also sometimes his. Sometimes, he would take and use my things and sometimes I would never see them again. In lieu of having my own room, or somewhere else to secure my things, my pile was my best attempt at corralling them. It reduced my anxiety about my things randomly disappearing never to be seen again by enabling me to take an instant visual inventory, and to recover anything that might have gone missing while its whereabouts could still be determined. In fact, I believe that my pile was such a strong assertion of my ownership rights that James may have never taken anything from it.
From age twelve, I had a job. I earned and I saved money. I washed dishes, and cars, and delivered newspapers. Sometimes I worked until two or three in the morning on nights when I had school the next day. Actually, this might have been one of the reasons that I did so poorly in high school, which I wrote about in How to Become World-Class at Anything.
I saved up for things that I really liked, and I bought them with my own money. I purchased a brand-new Muddy Fox mountain bike, which I rode to the store to buy some chocolate. I leaned it against the front of the store, and ran in for a minute. When I returned, my new bike was gone.
I remember the feeling of loss. I had been excited about saving for this bike, and buying it, and enjoying it. I felt proud of it. It was mine, and I had earned it. I had worked hard for months to buy it. And now there was nothing. Where did it go? How was it possible for it to just be gone like that? I almost couldn’t believe it. I felt like I could stand there for a week, waiting for it to come back, waiting for it to become un-stolen. It didn’t seem fair that it would suddenly be gone like that. When I read this paragraph to my wife today, as a 43-year-old man, my voice trembled and tears ran down my cheeks. This loss was deeply painful, and I hadn’t realized quite how painful until today.
I looked up and saw the man leaving the beach. Was he carrying my flip-flops or was he wearing them? Should I call out to him? Should I run after him? I could feel the anger start to build in me. “Those are my flip-flops,” I thought. “Does he think that I don’t need them?” I started to follow him, my rented surfboard under my arm. He was about 100 feet ahead of me, furtively looking back over his shoulder at me, and heading towards one of the sandy corridors that connect the beach with the dusty high street. When I reached the service road, he was heading into that tropical alleyway.
In 1994, when I was getting my bachelor’s degree in electronic engineering from the University of Reading (pronounced redding) in the UK, I was assigned a final project to build a system that removed background noise from telephone calls. It was intended for use in stock-exchange dealing rooms to increase privacy. Ideally, the only voice to leave the room over any given phone line would be that of the person speaking into the handset connected to that line.
My lab partner and I were assigned this project by a small company (with a few employees) that had almost no experience in electronics. We were “supervised” by the head of the electronic engineering department at the university. I led the project, and when I asked for some guidance from this supervisor, he told me that we could receive no help whatsoever from the university.
We developed, completely on our own, a digital signal processing (DSP) development platform, and an algorithm and system that enabled repetitive background noise—such as emergency service vehicle sirens—to be removed from audio streams, while leaving the desired speech completely intact. This adaptive DSP system was an advanced form of machine learning, before the term machine learning was as widely used as it is today. It was both embedded—meaning that it ran on lightweight, custom hardware—and real-time—meaning that it continually learned how to optimally perform its job on-the-fly.
After we left the university, the head of the department (our project supervisor) hired a professor with DSP experience. Our project supervisor and the managing director of the small company led a government-funded “technology transfer” initiative to transfer intellectual property from academia to industry. Under the guidance of our supervisor and the managing director, the new professor and a graduate student managed to “invent” a system precisely the same as that which my lab-partner and I had developed, and to propose exactly the same market application as we had suggested for it. Based on a new intellectual property agreement between the university and the company, the company applied for a patent, listing the new professor and the graduate student as the inventors. The company then sold units based on the invention to the UK emergency services. From my analysis of the company’s financial statements, I estimate that a fair royalty for us would have been somewhere between one and two millions dollars.
I first became aware of this apparent intellectual property theft around 2010, when I googled the name of the company and saw an article that seemed to be about our invention. After some investigation, my lab partner and I launched a patent dispute through the patent tribunal system of the UK Intellectual Property Office (IPO). Rather than litigating in a civil court, the tribunal system is designed to provide a financially feasible mechanism for individual inventors to challenge organizations. Rather than judges or juries, cases are decided by “hearing officers,” acting on behalf of the Comptroller General, as part of the executive branch of the UK government.
Over a period of more than four years, I led a meticulous case to uncover the truth of what happened. I played both attorney and private detective. I located thirteen witnesses over a decade after the associated events took place. We hired and paid a DSP expert—an academic with a 40-page curriculum vitae—to provide a report explaining how what these new employees had allegedly invented was identical to what we had developed under the same leadership a few years before.
I compiled over 1,000 pages of evidence, including witness statements, pages from our submitted dissertations, and even notes from my original log book. One witness actually revealed that the managing director had originally brought the idea for our project to the university with the intention of getting some undergraduates (us) to invent something for free.
We requested (1) that the ownership of the patent be reassigned from the company to us, and (2) that the our names be added to the patent as the true inventors and that the names of the new professor and graduate student be removed.
In September 2013, the hearing officer made a preliminary decision denying our request to reassign the patent ownership to us. UK patent law does not allow the mis-assignment of patent ownership to be corrected more than two years after the date of the patent’s grant, unless the entity to which it was assigned knew at the time of grant that it was not entitled to the assignment. We provided swaths of compelling evidence that showed that the company knew that it was not entitled to the patent assignment, both due to contractual errors and because of a clearly documented and blatant chain of awareness. I have never understood the logic behind this denial. Not only were our project supervisor and the managing director heading the technology transfer project, but we provided strong documentary evidence that the new professor was aware of our work (even though he stated in writing that he had not been aware of it).
In March of 2014, the hearing officer made a final decision denying our request to change the listed inventors. Despite essentially agreeing with all of our arguments, including that the technology covered by the patent was essentially identical to our project, and acknowledging that most, if not all, of the technology transfer team had been fully aware of our work, he concluded that the new professor and the graduate student were the true inventors of the patent. My understanding of his argument is that since the team was able to carry out a sequence of steps that looked like they were inventing something, they were the inventors. These steps included finding a customer in the government who wanted a siren-noise cancellation system (as we had proposed), and guiding the graduate student to “discover” the path to our solution (as we had documented), including pointing him to the same educational resources (as we had discovered), and even apparently suggesting a correction to his system configuration so that it would match ours, in order to finally make it work properly.
Even if these decisions adhere to the letter of the law, and I don’t think that they do, they are clearly at odds with the spirit of the law. The hearing officer quoted the judgement of Lord Hoffmann in Yeda Research vs Rhone-Poulenc[2007], a precedent that we referenced and were relying upon. After carefully digesting all of his judgement, I concluded that Lord Hoffmann is a very clear thinking and just man. He states that,
The first step in any dispute over entitlement must be to decide who was the inventor or inventors of the claimed invention.
and that,
The inventor is defined in section 7(3) as “the actual deviser of the invention”. The word “actual” denotes a contrast with a deemed or pretended deviser of the invention; it means, as Laddie J said in University of Southampton’s Applications[2005] RPC 220, 234, the natural person who “came up with the inventive concept.”
The spirit of patent law is to ensure that the actual deviser of the invention, not some deemed or pretended deviser, be credited for, and awarded rights in, the invention. Just as criminal law does not forgive a murderer just because he put a lot of effort into covering his tracks, patent law should not favor the perpetrator of intellectual property theft merely because he or she implemented a crafty scheme to generate an appearance of novel creation.
It was unfortunate for the company and the university that we were not their employees at the time that we devised the invention. However, the purpose of patent law is to protect the inventors, not to provide a mechanism for the inventive process to be recast in order to avoid compensating the inventors. The only advice I would give them is that, in the long-run, the pay-off will usually be much greater if you give credit and compensation where it’s due.
Because of the two-year re-assignment threshold of UK patent law, we would have had a much better chance of winning the tribunal case had we initiated it within two years of the patent grant. I believe that our project supervisor, the head of the electronic engineering department, as a representative of the University of Reading, was ethically bound to inform us of the company’s actions before, during, and after the patent was applied for. I can only presume that they kept us uninformed because they were concerned that, after the punitive multiplication of damages due to willful negligence, we might have taken a quarter of the university’s total endowment, which was only about 20 million US dollars in 2014. Compare that with Stanford University, where I got my master’s degree, which had an endowment of over 21 billion US dollars in 2014. During those four or five years after I completed my bachelor’s degree, the head of the department regularly checked-in with me by email, so he could have easily mentioned it to me.
After receiving these two bizarre legal decisions, we concluded that the system was heavily biased against us. We had already spent many thousands of dollars for our own costs and we then also paid the fixed and limited fees for losing.
If we appealed either of the decisions and then lost, we would be required to pay the full legal costs of the defense, which I couldn’t afford to risk at the time. After working hard on that case for over four years and then losing it in a way that didn’t make sense to us, we decided to give up.
In hindsight, even if we had won the tribunal case, and then sued the University and won a few million dollars, it would have been an inefficient use of my time and effort. I can generate, and have generated, much more money in much shorter periods of time, and with much less stress. I did however learn a ton about patent law, and I discovered that I am capable of leading a large and complex legal case.
I reached the alleyway and turned into it. The presumed thief was now 200 feet in front of me, presumably having run while he was out of my line of sight. Still frequently looking back over his shoulder, apparently checking to see if I was following, he carried two backpacks, one over each shoulder. “Were they both his?” I wondered.
The sharp stones, now exposed above the thinning sand, cut into my soft soles, slowing my progress. My supposed thief was shod in skins born of my own labor, quickening his escape as I, the progenitor of his speed, was hobbled.
“What drives him?” I wondered. Why would he steal those worn-out shoes? Presumably he was more needy that me. Presumably he only needed a way to walk upon the street, to get by in life. Here I am, a surfer, an engineer, a writer, chasing after a man who could probably barely scrape together a meal, if that.
Sure, I felt scared. I felt scared to confront him, to accuse him, and to examine his gnarly feet. I felt scared to chase him and to fail to catch him. I felt scared to be beaten or to be killed, to be killed for two small pieces of foam. Mostly, I felt disgusted by him, unwilling to ingest his energy, unwilling to engage with his process.
By the time I reached the high-street, he was gone. I was left to wander home, avoiding dog turds and shards of glass, worrying about the larvae of roundworms finding their way from outhouses, through the parched soil, to burrow into the soles of my feet, to settle into my intestines.
“What will happen to him?” I wondered. Will he will spend his life stealing sweat-soaked flip-flops and sleeping on couches with cockroaches and cigarette butts, suffering a slow and meaningless disintegration into the soil? He is nothing more than a force of nature; nothing more than the storms that steal us from our ships at sea; nothing more than the floods that wreck our sofas, or the fires that incinerate every last fragment of our lives.
These people who steal our trinkets, or our clothes, or our most highly-prized intellectual creations are only living out their karmas. When he stole the flip-flops he probably felt guilty, affirming how he is not living to the potential instilled in him by the stuff of stars from which he is made. As he pulls them on, wearily, day-after-day, he will be reminding himself, “This is not my destiny!” This. Is. Not. Your. Destiny.
Who am I to interfere in this process of self-discovery? I only provided the bike, and the inventive idea, and the flip-flops. I only provided the rope. I am not the executioner, nor the savior. How can I save these people from themselves?
I pored over those financial reports and discovered that after selling siren silencers like hotcakes to fire chiefs and police constables, that business plowed much of the profits back in, hiring staff rapidly, growing from a few employees to a few dozen, before snuffing itself out by consuming all the oxygen in its small room.
A bike thief only steals bikes, a Central-American hobo only steals flip-flops. Professors, engineers, and businessmen who cannot innovate only take the creations of others. Without me, the company was unable to feed its product pipeline with fresh innovations, and it soon burned itself out. Nothing ever became of it.
I am the one who washed the dishes and bought the bikes. I am the one who employed the flip-flop makers. I am the one who paid the salaries of the siren-silencer staff. I am the innovator who they probably wished was their employee. I direct my attention where I wish, and I reap the rewards for my care and diligence as I choose.
An Arabic proverb advises, “Trust in God but tie your camel.” I now lock my bikes. I now ask strangers to watch my flip-flops. I now survey my invention portfolio. Beyond that, who am I to interfere with the karma of a thief? I am just a way-station upon his ultimate demise, upon the process from which he will ultimately be reborn.
Who am I but an artisan offering myself to the world. I bring truth. I bring clarity. The world seems to take care of me sufficiently in return.
Who am I to audit God's accounting?
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