October 1, 2013

Putting the YogaGlo Patent Controversy in Context. ~ Josh Lovison

So I’ve recently seen a lot of upset yogis and comments discussing the YogaGlo patent application and the cease and desist letter sent out.

But a lot of people don’t really understand the patent system, and some of the legal and business nuances in what’s going on. So having myself gone through two patent applications, having a startup business, and having worked as a new media analyst for over seven years (including on media startups), I thought I’d add a bit of much needed context.

Patents in general.

First off, patents suck. I think the YogaGlo creators would be with me on this statement, as would most startup founders. Our current patent system is weighted far more heavily in the interests of larger businesses than inventors, and is getting exponentially out of control.

If you are upset about the YogaGlo patent application, the most important thing you can do is call up your representatives and highlight the ridiculousness of patents for software or design where the cost to file is greater than the cost to invent.

Because here’s the hard truth: while patents suck, they are a necessary evil in the current startup world. Patents are important in terms of how investors value a company, and in being used defensively against patent trolls or competitors that try to extort a settlement payment by threat of expensive lawsuits.

YogaGlo’s patent application.

So taking a look at YogaGlo’s patent application, one thing is blatantly clear: the claims are extremely broad.

In order to be patentable, there are a number of requirements, but the two key ones are:

It has to be new (i.e. no “prior art”).

It had to be non-obvious (i.e. someone in the field wouldn’t have thought it up the exact same way).

The claims as they currently stand fail on both counts. Almost any yoga class I’ve seen filmed would exist as prior art and invalidate the base claims (#1 & #8). And the only part that is potentially non-obvious is the bit about widening the mat “gap” as it gets closer to the camera.

But here’s the key thing to keep in mind: They’re supposed to be extremely broad at this stage.

One of the popular ways a patent attorney will put together a patent application is to start as broad as possible, expect an initial rejection, and then try to narrow the scope until it’s acceptable to the USPTO. The value of the patent diminishes dramatically the more narrow it is, so this approach allows for a broad but strong patent (as it’s been reworked based on examination and not preemptively).

YogaGlo’s patent application hasn’t even been reviewed yet by the USPTO, so it has yet to be rejected and further narrowed. So calm down—there’s about 0% chance that the patent as currently written ends up being approved.

And if you look at the “description of the invention” section, there’s actually a lot of non-obvious detail that they’ll likely pull from in narrowing those claims substantially (such as studio construction, etc).

YogaGlo’s Cease & Desist Letter.

So the initial provisional patent was submitted in 2010. Why is everyone getting upset now? Because YogaGlo just sent out a cease & desist letter to a competitor. At first glance, this is an aggressive action trying to shut down their competition. But let’s look a bit closer.

So a cease & desist letter before a patent is approved is 100 percent unenforceable. So doing this only makes sense in two instances.

1. Sending a C&D after a patent application is published sets an intial “on notice” date, that, after the patent IS approved, the patent holder can seek back damages for. (Essentially, YogaGlo could try to get more money in a lawsuit if their patent is approved and people kept streaming infringing classes).

However—it is really important to realize that this is only enforceable if the patent is approved as it exists when the C&D is sent out. If the claims are changed at all, the ability to get back damages is negated, as the final approved patent is different. And as we saw above, there’s a 0% chance the patent will be approved as is, so this would be a terrible strategy on the part of YogaGlo, and probably not the reason the C&D was sent out.

2. By showing potential infringement (such as by pursuing a case by starting a C&D), a patent application can be given a priority hearing (for added cost). Since no one at the USPTO has even given the YogaGlo patent application a first glance, trying to demonstrate that there are people doing the same thing as in the patent will allow YogaGlo to speed up the process.

So what’s probably really going on?

It’s all about YogaGlo’s valuation. They are likely either courting a buyout, or perhaps more likely, looking to raise a substantial VC funding round.

If they have an approved patent, they’ll be able to get a lot more money for less equity. If YogaGlo has a larger pot to spend from in expanding, that means more yoga for everybody. And unlike a trademark, where there is a legal obligation to enforce, they don’t need to sue anybody at all once they have the patent (and likely shouldn’t—even a narrowed patent runs a major risk of surviving through a lawsuit, where there is substantial incentive to invalidate).

This also explains why there hasn’t been a more transparent response by YogaGlo in the wake of this PR quagmire they can’t exactly disclose they are in talks for acquisition or funding without risking the deal entirely, and upsetting— their partner even if they manage to salvage.

So what should you do?

Wait and see how things play out. If YogaGlo goes around suing everyone that has ever put a yoga video online, by all means boycott like crazy. But the actions so far don’t indicate anything but a normative action by any startup company, and I very much doubt they will ever end up in an actual lawsuit or real attempts to shut down competition by relying on dubious intellectual property.

And keep in mind—if you have an iPhone, iPad, or other Apple product, and are deciding to boycott YogaGlo for trying to patent, there’s a great deal of hypocrisy at hand. Apple patented a “rectangle with round corners,” tried to argue that a touchscreen tap was a “zero length swipe,” and is one of the most lawsuit-happy patent holders out there today.

YogaGlo is a new media & tech startup. While yes, it is about yoga, we shouldn’t be trying to handicap yoga-related companies as compared to non-yoga related companies. The rules of running a business don’t magically change once it’s about yoga, and YogaGlo is no exception. They still have to pay taxes, have to deal with non-yoga tech patent trolls, raise funding to grow, create partnerships, etc.

They’ve created a great product so far, have the largest distribution of a yoga streaming resource that I know of, and have done so all while keeping costs down and providing free classes here in Los Angeles with some of the best teachers I’ve taken with.

Let’s see how things play out before grabbing our pitchforks and building our pyres. (And really, I’d hope that as a community of yogis we’d be less prone to those actions anyways).

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Assistant Ed: Judith Andersson/Ed: Bryonie Wise

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