Patent infringement- Zenfolio Lightsphere...

Matthew Saville

I just caught wind of a possible lawsuit between Gary Fong and a company that might be "copying" his patented invention, the Lightsphere.

Now of course flash diffusers have been around forever and Gary can't just sue any old company that comes out with a new diffuser. But apparently there are a couple particular aspects of design that Gary patented, and these designs are what cause the new "immitation" product to be a possible patent infringement.

This got me to thinking- As Smugmuggers you may or may not know that recently, a company named Zenfolio debuted a thorough and complete "clone" of Smugmug. There's no other way to really say it without being entirely truthful: Zenfolio offers (or makes known that they are "working on" offering) exactly the same service that Smugmug offers, in a strikingly similar if not relatively identical interface.

Was there no patent or copyright infringement that ocurred here? Did Smugmug management feel in any way attacked or supplanted by Zenfolio? When I first browsed Zenfolio, I was shocked but not surprised, if you know what I mean. Smugmug developed a fantastic service that nobody else even came close to offering, in my opinion, so it was only a matter of time before someone else developed a way to cash in on the "same" business model.

My questions are these: Why did Gary Fong act differently than Smugmug? Did Smugmug hold absolutely zero patents or copyrights for the service it offered? Could it have, if it wanted to? To me the ideas that Gary patented seemed very basic and "public domain", even if they never had been done before. Could Smugmug have patented something as simple as offering unlimited storage, or integrated printing services? Could Smugmug have patented the idea of putting pics from public events on the internet and charging people money for prints of their own self? (Before that other guy did, and tried to collect from SM on it... :rolleyes)

In my opinion, and I do NOT wish to start a fight, Gary should have simply done what Smugmug did- stay on top of the competition by improving the product offered or coming out with a completely newer, better product, ...instead of trying to snuff out said competition. This is obviously a touchy subject and people's livelihoods are at stake, but I think Smugmug has done the best thing. (Personally I am "addicted" and will happily pay for my pro account until the day I die.) Sure Gary or Smugmug can lose customers to the competition by being "passive", but it's better than driving customers away by getting uppish about the whole thing if you ask me.

Like I said I don't want to start a fight. If you have something nasty to say about any party I've mentioned, please don't bother. And of course if this topic is totally out of line please feel free to delete it or move it, mods...

Take care all,
-Matt-

askme2flashu

I don't think protecting your rights is "getting uppish". If someone stole your picture and was making money from it, say by offering it cheeper than you, should you just go out and take better pictures? Then what ? They steal those? And...

Matthew Saville

askme2flashu wrote:

I don't think protecting your rights is "getting uppish". If someone stole your picture and was making money from it, say by offering it cheeper than you, should you just go out and take better pictures? Then what ? They steal those? And...

Good point. And I want to stress, that if any thing is truly STOLEN in either Gary or Smugmug's case, then action "should" be taken.

But if something was truly stolen, most everyone would immediately rally behind the "victim", such as the photographer and a stolen image. But instead I see the community bashing Gary, saying he's overstepping his authority. Why? If he's patented a specific aspect of design, then shouldn't he have the right to protect that design? Yes. But I wonder why people would get roudy over it. Maybe they just don't understand the specifics of the patent?

In the end, I don't promote cmplacency in the face of theft. I'm simply pondering different business tactics and which benefit both the companies involved and the consumers, in the long run. Currently I think that in the long run Smugmug will come out on top, but Gary will take a great loss. Is that justice? Maybe not. And personally I support Gary if his patent was indeed infringed upon, and in either case I respect that he didn't just take the possibility lightly. I'm just trying to figure out the psychology of it all here...

Take care,
-Matt-

jfriend

What you can and can't patent
[[Disclaimer. I am not a lawyer and this is not legal advice. I'm a guy who has been involved in both patent and copyright lawsuits as a defendant and an expert witness (never lost one though) and have authored several patents and have spent more time than I would want to recount talking to lawyers about this stuff. If you need actual legal advice, please get that from a lawyer, not from a posting on the internet.]]

Just so everyone understands this, you can't patent an idea or a concept. This is a popular misconception.

What you can patent is a particular method of accomplishing an idea. So, you can't patent something like unlimited storage in a photo business. But, if you have particular techniques that are important in making an unlimited storage business work, you can patent those techniques. But, if there are many different techniques that would make it possible to offer unlimited storage (which there are), then it won't be possible to gain patent protection for unlimited storage and people might not be able to implement it the same way you do, but they can just implement it differently and still be able to offer it to customers.

In the case of the Lightsphere diffuser, you can't patent the idea of a diffuser, but you can patent a particular diffuser design. Other people can then make diffusers, but they can't make them exactly the same way as the Lightsphere patent describes - they must accomplish a diffuser in a different way.

There also is some form of copyright protection available on the look and feel of your web site. If somebody literally copied your screens and used them as their own, you could try to enforce your copyright rights. But, this protection doesn't extend as far as most people think. For it to be a copyright violation, they have to use the same elements on the screen in the same place, probably with nearly the same wording. In other words, it pretty much needs to be a copy. If they move things around. If they improve things. If they innovate with new designs. If they use different words. If they use a different flow, then it's probably not a copyright violation. In my non-legal opinion, Zenfolio did not copy Smugmug's UI. They copied Smugmug's value proposition, but made their own implementation. They likely learned from Smugmug's UI in designing theirs, but took their own take on it.

Mongrel

Well...erm...
I think Gary Fong "stole" the idea of a semi-translucent Tupperware looking diffuser from Stofen. He just made it a 'little' bigger and a 'little' different...

Then there are all the photogs who have used empty alchohol bottles taped over their flash heads for years. Who will standup for them?

As far as 'stealing' the idea for a web based photo site? Isn't SmugMug just an improved incarnation of all those that have gone before?

Where do you draw the line?

Maybe the family of the guy who invented the wheel can seek some restitution

Out-in-out theft is one thing, but building on someone else's concepts and ideas is called progress not stealing...

Matthew Saville

jfriend wrote:

Just so everyone understands this, you can't patent an idea or a concept. This is a popular misconception.

What you can patent is a particular method of accomplishing an idea. So, you can't patent something like unlimited storage in a photo business. But, if you have particular techniques that are important in making an unlimited storage business work, you can patent those techniques...

Actually Jfriend, this makes a lot of sense and does help me understand the whole thing a lot better. Thanks!

-Matt-

Matthew Saville

Mongrel wrote:

...
Where do you draw the line?
...

Out-in-out theft is one thing, but building on someone else's concepts and ideas is called progress not stealing...

My sentiment exactly, Mongrel. I think Jfriend helped me see where lines can be drawn, though. If Gary, or Smugmug, has a patent for a specific design manufacturing technique, then copying that would be theft.

I guess Smugmug is simply a case of "building upon" a pre-existing market, while Gary has possibly been stolen from. The official word is, he simply caught wind of the potential immitation product, sent it off to his attorney who decided that the product was indeed a possible patent infringement. If that's the case, then the legal steps ought to be taken. And it's a shame that so many people decided to dislike him simply for sending a product to his attorney and saying "hey what do you think of this?" Now of course whether or not Gary's invention is worthy of a patent in the first place is another topic for another day, but personally I plan on buying more Lightspheres in the future so I guess that says something.

There was a post on DPR about all of this, and it was erased. That's probably because it turned into a flame war. Luckily I think that here on DGrin we have conducted a civil discussion and have not wasted bandwidth so to speak...

Take care all,
-Matt-

peestandingup

Matthew Saville wrote:

As Smugmuggers you may or may not know that recently, a company named Zenfolio debuted a thorough and complete "clone" of Smugmug. There's no other way to really say it without being entirely truthful: Zenfolio offers (or makes known that they are "working on" offering) exactly the same service that Smugmug offers, in a strikingly similar if not relatively identical interface.

Was there no patent or copyright infringement that ocurred here? Did Smugmug management feel in any way attacked or supplanted by Zenfolio? When I first browsed Zenfolio, I was shocked but not surprised, if you know what I mean. Smugmug developed a fantastic service that nobody else even came close to offering, in my opinion, so it was only a matter of time before someone else developed a way to cash in on the "same" business model.

What exactly did Zenfolio "clone" from Smugmug?? They have completly different UIs, anyone who browses both sites for even a few minutes can see that. The internal workings of both sites are waaay different & the only thing they "cloned" from Smugmug was making an online photo sharing service, which was done by other companies before Smugmug even came online. The business model is similar, but thats about it.

Im sorry, I respect your opinion, but I think you view Smugmug as the end all be all of photo sharing services & anyone who comes out with something remotely similar is automatically a copy cat. In your logic, no company can ever come out with a similar product without being a clone of the first. Should Coke sue Pepsi, should Friendster sue Myspace, MS Explorer sue Firefox, etc??

Competition is a good thing. I have both an unlimited Zenfolio & pro Smugmug account. Trust me, they are nothing alike except for the concept of sharing/purchasing photos online. Zenfolio didnt copy a thing from Smugmug's UI & are totally doing their own thing. Just watch & see if Smugmug doesnt "borrow" some of Zenfolio's browsing features in the future.

Matthew Saville

Hi PSU,

I know what you mean. Obviously, Zenfolio didn't steal UI or any kind of scripting virbatum. What I meant was that they offer the same exact thing that SM offers, and in a VERY visually similar package. To a computer geek it may look totally different, but in reality they have the same look.

Nothing was stolen, indeed, except an idea. That's what I concluded after the discussion. And obviously, competition is a very good thing. It will force SM to step things up a notch in order to keep their customers, and keep new customers coming.

So I agree with you, Smugmug is just another imaging host that is simply coming up with new ideas or polishing up some old ideas.. But in Gary Fong's case, he actually applied for and recieved a patent on one or two of his ideas. The debate is whether or not his ideas were legit and original enough to be patented, or if they were nothing new. Or the other debate: if the idea was used before but nobody ever bothered to patent it, does that give someone the right to go out and patent it?

I think the two things that Gary patented were the removable tupperware-ish top that you can take off the lightsphere when shooting in certain conditions, and the design concept that the diffuser being circular will keep the same coverage whether it is turned sideways or not. (many videos on his website to demonstrate what I mean; basically you kiss your cumbersome flash bracket goodbye...)

Personally I think that Gary's idea of making the lightsphere circular is a very bright idea and he deserves a patent on it, but the tupperware lid idea, well, isn't tupperware already patented? I guess that since it's a flash diffuser and not a food container, Gary gets away with it.

I guess you gotta draw the line somewhere, otherwise you'd get some factory in some far away country pumping exact replicas of your poduct at 1/3 what you're charging. Gary drew a reasonable line, and the company MIGHT have crossed that line.

-Matt-

jfriend

Matthew Saville wrote:

Hi PSU,

I know what you mean. Obviously, Zenfolio didn't steal UI or any kind of scripting virbatum. What I meant was that they offer the same exact thing that SM offers, and in a VERY visually similar package. To a computer geek it may look totally different, but in reality they have the same look.

Nothing was stolen, indeed, except an idea. That's what I concluded after the discussion. And obviously, competition is a very good thing. It will force SM to step things up a notch in order to keep their customers, and keep new customers coming.

So I agree with you, Smugmug is just another imaging host that is simply coming up with new ideas or polishing up some old ideas.. But in Gary Fong's case, he actually applied for and recieved a patent on one or two of his ideas. The debate is whether or not his ideas were legit and original enough to be patented, or if they were nothing new. Or the other debate: if the idea was used before but nobody ever bothered to patent it, does that give someone the right to go out and patent it?

I think the two things that Gary patented were the removable tupperware-ish top that you can take off the lightsphere when shooting in certain conditions, and the design concept that the diffuser being circular will keep the same coverage whether it is turned sideways or not. (many videos on his website to demonstrate what I mean; basically you kiss your cumbersome flash bracket goodbye...)

Personally I think that Gary's idea of making the lightsphere circular is a very bright idea and he deserves a patent on it, but the tupperware lid idea, well, isn't tupperware already patented? I guess that since it's a flash diffuser and not a food container, Gary gets away with it.

I guess you gotta draw the line somewhere, otherwise you'd get some factory in some far away country pumping exact replicas of your poduct at 1/3 what you're charging. Gary drew a reasonable line, and the company MIGHT have crossed that line.

-Matt-

Patents are not supposed to be granted if there is prior art from others that demonstrates the same invention (so it isn't OK to just be the first one that files a patent on the issue). The patent office is not perfect in this regard and can't know of all possible prior art. Thus many patents are granted when prior art actually existed. If someone tries to assert their patent rights and ends up in court, the defendant can raise the prior art and attempt to invalidate the patent. This is fairly common because it's impossible for the patent office to have known of all prior art. In this case, the whole patent is either thrown out or, in some cases, it's claims are narrowed substantially to only cover issues that were not voided by prior art.