electrical outlet

Quirky’s CEO Ben Kaufman is defensive about how the company patents. Or maybe he’s passionate? I’m not entirely sure which. Perhaps it’s a bit of both. I called him to get the lowdown on how a company that crowdsources ideas and designs for products goes about patenting. It sounded like an interesting angle for our patent series but I think I unwittingly stumbled into a touchy subject.

Paraphrasing because I didn’t record it, our conversation went something like this:

Kaufman: Let me get one thing straight: Quirky patents things, and we have always patented things.

Me, a bit confused: Did someone say Quirky doesn’t file patents?

Kaufman: Isn’t that why you’re calling?

Although we eventually ironed out the fact that I was not calling to accuse Quirky of patent filing failure, I had clearly struck a nerve.

To understand Kaufman’s sensitivity to the patent issue, you need to know Quirky’s backstory. Kaufman, inventor of the excellent Mophie battery case for iPhones, launched Quirky in 2009 under the premise, “We make invention accessible.”

Essentially, Quirky gets ideas for consumer products, like twistable power cords and wine bottle holders, through submissions from its community members, known as “influencers.” Once an idea is picked, Quirky engineers and designers develop it, taking input from the site members on everything ranging from color choice to marketing tag line. In doing so, the startup gets valuable consumer feedback about how a product should look and function, and influencers get an eventual cut of the revenue if the product is manufactured and sold. 

Not long ago, Quirky made a scene by protesting the product company OXO for “ripping off” a Quirky design. Kaufman himself led the charges, taking his startup staff to the streets for a good old-fashioned picket on OXO’s doorsteps in New York City.

It wasn’t clear when the picket unfolded whether Quirky had patented the design OXO supposedly ripped off — if it had, it wasn’t saying so. Now, months later, Kaufman told me he couldn’t discuss what happened with OXO, because things were still “unfolding,” whatever that means. I suspect some sort of legal settlement in the works or a non-disclosure agreement.

However, he would say one thing, “When OXO went down, people said that Quirky doesn’t file patents. But that’s 100 percent incorrect.”

Quirky has patented dozens of items out of the 375 items which have been developed since the startup’s launch. That doesn’t seem like much, but Kaufman prides himself on his restraint — he’s a practical, pragmatic patenter. “Products that last a year or two are not worth patenting,” Kaufman says. “Products that last longer than that, worth discussing.” For example, Quirky has patented its well-known pivoting power strips, but not iPhone covers that might go out of style quickly.

In being picky about what gets patented, Kaufman is following his ethical beliefs. He has strong views on how the patent system is being misused. In fact, I’d call him a downright patent philosophizer. “For better or worse the world is fucked up,” he tells me. “When you say ‘idea,’ everyone’s Pavlovian reaction is patent. People think every idea should be patented.”

As Quirky’s founder, Kaufman says he has familiarized himself with the history of the patent system, and he’s frustrated that it’s currently treated like a land grab for money. He thinks patents are meant to inspire competition and innovation by encouraging the innovator to share their idea. But today? “Patents are now a weapon of corporate warfare and not a blueprint for the societal advancement of our country,” he says. Kaufman thinks patents are filed willy-nilly, and that its damaging to the spirit of entrepreneurship.

I was curious about who Quirky names as inventors on the patent. After all, the company proudly touts on its home page the hundreds of inventors involved in each product. Do Quirky’s patents list 853 or 2,278 inventors? Because that’s what its homepage lists as the number of inventors for the pivot power outlet and vine wine holder, respectively.

The answers can be found in the US Patent and Trademark office database. I did a search and found four patents granted to Quirky Incorporated. Founder Kaufman says, “It takes many years for patents to issue and wind up on this page… Quirky is just a few years old. There are dozens of other patents filed which are issuing in due time.”

All of the publicly available patents are variants on the invention it’s famous for: the reconfigurable plug strip. Jake Zien invented this product as a student at RISD, with no money to make, manufacture, or market his idea himself. He’s the typical Quirky inventor, lots of design ideas that will go nowhere without a way to bring them to fruition. Zien is listed on a three out of the four Quirky patents.

When it comes to patenting the company sticks to the classic script: the inventor, a couple of Quirky employees and Quirky incorporated are listed on the patent. Quirky’s approach to intellectual property has made critics say, “If you’re a serious inventor you’d have to be desperate to go for a deal like this.” But Quirky sees it as a necessity that it owns all intellectual property of the product because of the risk it takes investing time, money, and resources to develop rough ideas into reality.

In future Quirky patents, Kaufman says we can expect to see more inventors listed — specifically, the community influencers who contributed significantly to the design. “Inventors on the patent are people that contributed to the actual creation or invention of the product, and the claims that patent is making,” Kaufman says.

He’s referring to a key part of a patent: the claims section. The “claims” section is where inventors can state the specific way of implementing the design they’ve put forth. “Patent claims define legal boundaries of the scope of your invention,” says Michael Shimokaji, a California intellectual property lawyer and Rocket Lawyer on-call attorney. “The way the patent laws read is if a person contributed to the conception of a patentable idea, they should be named inventor.”

In other words, if an influencer submits suggestions for something like the product color or the marketing tag line, that doesn’t necessarily mean they contributed to a patentable idea. But if they helped figure out a crucial part of the design that impacts the function, and therefore “claims” of the patent, then they legally should be named an inventor.

Kaufman’s closing thoughts: “We all need invention because invention moves the world forward. We should get out of each other’s ways.”

* The PandoDaily series “Patent Troll Smackdown” is brought to you by the Application Developers Alliance. To join the fight against patent trolls and tell Congress that innovators need patent reform please visit devsbuild.it/fightpatenttrolls. (Sponsored message.)