Earlier today Comarco, Inc. announced via press release that on February 13, 2015, the company filed a patent infringement lawsuit against Best Buy Co., Inc., in the United States District Court for the Central District of California. See Comarco complaint against Best Buy. Comarco similarly filed a patent infringement lawsuit against Apple, Inc., also in the Central District of California, on January 30, 2015. See Comarco complaint against Apple.
The complaints allege that certain power charging products sold in the United States infringe patent claims owned by Comarco. More specifically, Comarco alleges that Best Buy is infringing U.S. Patent No. 7,460,381, entitled Programmable Power Supply, which issued on December 2, 2008, and U.S. Patent No. 7,863,770, entitled Power Supply Equipment for Simultaneously Providing Operating Voltages to a Plurality of Devices, which issued on January 4, 2011. Apple is alleged to infringe U.S. Patent No. 8,492,933, entitled Power Supply Equipment for Providing a Data Signal, Identification Information and Power to an Electronic Device, which issued on July 23, 2013.
There will be some who will rush to judgment, no doubt, and claim that Comarco is an evil patent troll, representative of all the ills of the patent system. Not so fast. Characterizing Comarco, who is the original innovator of the technology represented in the patents, as a patent troll would seem to be wholly incorrect. Once upon a time Comarco manufactured products, but the company was pushed from the industry by cheaper infringing products. That makes the Comarco story a prime example of the often overlooked reality facing small businesses in a global marketplace increasingly dominated by giant conglomerates. It would seem that the Comarco story is one about how large companies push original innovators out of the marketplace as the result of widespread infringement.
In some situations those giant conglomerates actually have the audacity to claim that they are being harassed by non-practicing entities. The irony, of course, is that many times these original innovators are non-practicing entities only because their business has been destroyed by large corporations who prefer to infringe rather than do business with the original innovator. In this tale there is no doubt that there is a bad actor involved, just not the participant normally vilified by massive PR campaigns that seek to disparage all patent owners.
What exactly is a company like Comarco supposed to do? Allow themselves to be pushed from the marketplace and then just allow their patent portfolio to rot?
According to the latest 10-Q filed with the Securities and Exchange Commission on October 31, 2014, Comarco, Inc. was incorporated in California in 1960 and its common stock has been publicly traded since 1971, when it was spun-off from Genge Industries, Inc. Comarco Inc.’s wholly-owned subsidiary Comarco Wireless Technologies, Inc. (“CWT”) was incorporated in the state of Delaware in September 1993.
The 10-Q goes on to explain:
Through the third quarter of fiscal year 2014, Comarco developed and designed innovative technologies and intellectual property that was used in power adapters to power and charge battery powered devices such as laptop computers, tablets, smart phones and readers. In August 19, 2013, Lenovo, our only material customer, informed us that it intended to cease offering our Constellation product, the power adapter we designed and developed for Lenovo. Sales of the Constellation product to Lenovo accounted for materially all of our revenue for the fiscal year 2014… We anticipate that we will generate de minimis revenue in future periods from the development, design, distribution or sale of any products. We have effectively suspended traditional operations and are now primarily focused on realizing the potential value from our ongoing litigation as well as exploring opportunities to expand, protect, and monetize our patent portfolio, including through the potential sale or licensing of our patent portfolio.
Indeed, Comarco originally developed its proprietary line of electronic device charging solutions. The technology at the core of Comarco products resulted from significant research and development investments, which ultimately resulted in a small but meaningful patent portfolio that today stands at 48 patentsto solve the unique challenges of enabling a single power adapter to charge multiple devices using a variety of power sources (AC wall outlets, DC sources in cars and airplanes, and computer USB ports). Until recently, Comarco sold its proprietary ChargeSource® line of multi-function universal mobile power adapters, which could simultaneously power and charge multiple rechargeable mobile devices. Comarco was forced to abandon ongoing product sales due to the proliferation of unlicensed products. The only avenue forward available to Comarco is to use its patent portfolio to go after those that are infringing.
Interestingly, the complaints filed by Comarco against Apple and Best Buy are not carbon copies of each other. They do contain similar background discussions of the technology development, but Apple and Best Buy are being sued for infringing different patents. The complaints also identify the allegedly infringing products. These complaints to not seem to be the all too common “garbage complaints” that I and others have railed against, which provide little or no useful information. Obviously, someone looked at the products being sold by Apple and Best Buy and identified the particular patents that the allegedly infringing products seem to legitimately infringe, further evidence that this does not appear to have the hallmarks of a troll litigation.
The complaint filed against Best Buy has a little more background information provided to give context to the technology that underlies the Comarco portfolio. The complaint explains:
Most portable electronic devices (such as laptop computers, tablets, cell phones, and media players) require direct electrical current (“DC”) to operate and to recharge their batteries. However, common electrical outlets usually provide only alternating electrical current (“AC”). Hence, purveyors of portable electronic devices typically provide a power supply (also known as a power adapter or a charger) with new products. A typical power supply sold with a new portable device plugs into a wall outlet, either directly or through a cable, and converts AC power from the wall outlet into DC power that is used to operate a portable device or charge its battery.
A power supply sold with a new electronic device satisfies the specific power requirement of the device and has a cable tip of a shape and size that is specifically designed to fit the power port of the device. However, different portable electronic devices usually have different power requirements as well as power ports of different shapes and sizes. Thus, it is generally not possible, for example, to use the power supply accompanying a new laptop to charge a cell phone. Indeed, the power supply for one brand of laptop cannot be used to operate or charge the battery of another brand. There is even variation within brands as some models have different power requirements and connector ports. Consequently, a person must use a different power adapter for each portable electronic device that a person owns. This is inconvenient.
If the allegations in the complaints prove to be true, it would seem that the innovator of a useful technology has been pushed out of the industry as the result of widespread infringement and inability to compete on price. This narrative is an important one that is seldom told during patent reform debates, or discussions of the so-called “patent troll problem.” Sadly, this story is all too common. When one spends the time, money and energy to innovate that expenditure needs to be recouped, which means that those who copy can swoop in as the free rider and charge lower prices with which the original innovator cannot compete.
This is exactly what the patent system is intended to prevent. A patent is supposed to be a reward for innovation, exclusive rights are supposed to be obtained. Instead the original innovator who fulfilled their part of the bargain by disclosing the technology they invented gets the short end of the stick. Their vilification by the media and politicians alike akin to rubbing salt in an open wound.
According to the company these lawsuits are part of their ongoing and accelerated efforts to pursue those infringing on patent rights that they have lawfully obtained over the last 20 years.
Join the Discussion
10 comments so far.
AnonFebruary 26, 2015 09:10 am
You hit upon a tactic (early-tight, later-broader) that is highly useful.
I think one of the problems is that “the ordinary person” who lacks an understanding of patent law will not take the time to recognize “the fairness” of this tactic and will instead see this type of “evergreening” as being an unfair manipulation of the system.
What needs to be understood is that an inventor is provided FULL coverage of his initial Quo that is offered at the time of filing, and that the obtainment of the matching Quid can be stretched out over time – and that this is a legitimate exercise. It should be stressed that any and all later claims must be supported by the initial filing and that the limited time of coverage of any later claims runs from the date of the initial filing (and not the later date of the added claims).
It should be noted (and is probably not recognized by those quick to judgement) that any review of patented information readily indicates whether the patent family has “live” members, which fully indicates that the possible scope of coverage is not limited by already granted patents, and that due diligence requires a review of the full application – that a full and fair Quid may yet be granted for the bargained Quo.
I think it telling that Lars used the phrase “continuation in part” instead of “continuation,” but did not accord the proper legal impact to the difference between the two. Since Lars used the term, I may presume (and open myself to sharing Lars’ error) that Lars knows that a continuation in part may not in fact cover the intervening invention. If we are to discuss this accurately, both the distinction and the difference must be accurately portrayed. He seems to want to point to a problem that is not really there, conflating a pure continuation with a continuation-in-part.
Gene QuinnFebruary 25, 2015 05:25 pm
The question is whether the specification supports the claims made by Comarco. If Apple started selling a product and Comarco looked at their patents and weren’t convinced that they had claims that covered the product, but believed the specification supported claims that would clearly be infringing, there is nothing wrong with filing a subsequent patent application to obtain claims with an earlier priority date going all the way back to the original filing. This is a trick that has been used by many large corporations over the years, including Microsoft and Abbott.
So the question isn’t whether the earlier patent captured the Apple device but rather whether the earlier specification defined the Apple device. If it did and there was no loss of continuity then there is no problem.
Additionally, it is almost universally true to say that it is easier to get more narrow claims first. You then circle back and get broader claims later. So it is hardly surprising that later issued patents in a family, even patents filed for or issued after a product came out, would best cover the product being sold by a competitor.
Lars SmithFebruary 24, 2015 02:55 pm
I’m not sure if I’m willing to accept the story line of Apple the bad actor muscling out the little guy in this case. The filing date of the ‘933 patent is December 6, 2012. The suit claims to be based on Apple’s sale of the Lightning connector, which went on sale September 12, 2012. Therefore, this must be a continuation in part situation. In fact, the parent patent is 7,453,171, filed in 2004 and issued in 2008. Therefore, this looks like a patent application for an “invention” Comarco discovered 3 months after Apple’s new connector was already being sold. I think you could argue that Apple got sandbagged by Comarco, couldn’t you, particularly given how Apple has been using the USB cable-power adapter setup (since that’s really what the Lightning cable is) since the second generation of iPods were sold. The Lightning cable was developed by Apple, seemingly independently of any input by Comarco, but Comarco wants to force the real innovator, Apple, to pay for a patent that wasn’t even filed for when Apple started selling it’s successful new product. Perhaps this is more an example of the problems with continuation in part applications.
AnonFebruary 19, 2015 01:11 pm
I am curious (well, not that “Curious” 😉 ), as to when people will realize that large multi-national corporations are not actually true “citizens” of any ONE country, and do not act (and thus, do not entreat Congressmen to act) in the best interests of any particular sovereign?
Such are perfectly willing (even “reasonably” expected) to act in such self-interested ways as to be in direct conflict with the individual goals of a sovereign state and the promotion of innovation.
If you can compete better on non-innovation factors of size, established market dominance and other such related items, why would you ever seek to promote a system that engenders radical change and disruptive innovation, that by its design, empowers competitors that just cannot compete on the terms of which you hold dominion? These entities do NOT exist for the good of mankind, nor even for the good of consumers. If there is anything that should be compared to deleterious organisms, this type of only-self generating organism can be (rightfully) compared to a virus – one that owes no actual allegiance to ANY sovereign, existing as it were in the cross-national space, able to – and perfectly willing to – transfer assets at the drop of a hat anywhere in the world where the lowest cost factor calculations indicate to do so.
If people were only to realize this, then the facade of some “One World Order” being a “good thing” would be more readily recognized as NOT necessarily being a good thing. Harmonization for the mere sake of itself is more akin to Harm-of-nations, warping the fuel of interest (see Lincoln) away from the teachings of the invisible hand (see Smith) in that it will not be a nation of people that benefit, but rather, it will be a vested trans-national interest that is not linked to within-sovereign dynamics.
Rick KohnFebruary 19, 2015 12:31 pm
Sorry, I meant “steal” of course. The steel industry is already gone in the US.
Rick KohnFebruary 19, 2015 12:29 pm
Nice article. In the long term, there are no winners to weakening the patent system. Once the innovators are wiped out by infringing corporations, the infringing corporations will realize there is no one left to steel from. Then we won’t see US companies leading innovation, as our patent system will be as weak as those of some other countries.
CuriousFebruary 19, 2015 11:06 am
I have long said this (albeit probably not as bluntly), but the biggest beneficiary of the current (and ongoing) weakening of our patent system is China and the Chinese economy.
With their glut of labor, they can manufacture at a much lower price than most companies and they COPY just about everything. One of the biggest things that prevent them from bringing those copies into the US is our (once) strong intellectual property system.
I wish the lawmakers considering intellectual property reform would recognize that those the companies (Google et al.) advocating for patent reform are doing so — not in the best interest of the US — but in the best interests of their shareholders. They are willing to gut an intellectual property system that has long protected US innovators in a (short-sighted) attempt to protect their own profits.
SteveFebruary 18, 2015 08:37 pm
How sad that our own Congress and President are willing to go to the mat to protect the innovations of Americans in foreign countries … at the same time many of them (including the President) are fighting tooth and nail to take away those very same innovations here in our country.
Gene QuinnFebruary 18, 2015 07:34 pm
From your lips to Congressional ears! That is an excellent way to summarize the situation. Without any shadow of a doubt, a lot of US competitive advantage exists because of IP rights.
Simon ElliottFebruary 18, 2015 06:37 pm
Wise words Gene. Its amazing that our elected representatives think that a weaker patent regime is good for the USA when, in reality, a lot of the US competitor advantage is in IP.