Perplexed about Patents

September, 2021

While we are not feeling it yet here in Central Texas, fall is on the way. It brings the promise of cooler temperatures and the National Parking Association’s (NPA) Annual Conference in Las Vegas. We will likely see quite a bit of new parking technology at the NPA show this year. Our question this month asks about one of the effects of this continued move towards technology. 

Dear Kevin, 

Now that technology plays such a large role in the parking world, should we be more concerned about patents and patent trolls? 

Perplexed in Pennsylvania 

Hello Perplexed, the subject of patents is quite complicated. There is a reason why people specialize in this field, and many people related to this field are lawyers. Due to this, I will make a high-level attempt to answer your question from my point of view, but please keep in mind (as my lawyer likes to remind me) I am not an attorney and am not attempting to provide any legal advice. Please consult with your legal expert as needed. 

The United States patent system was designed to protect novel inventions and allow inventors a protected amount of time to profit from their invention while not stifling long-term innovation. Today, many people correlate patents with high technology, but the first U.S. patent was granted in 1790 for an improved method of making pot and pearl ash (both chemical compounds used in manufacturing processes of items such as glass and fertilizer.) 

Parking-related patents have been around for almost as long as the motorized vehicle itself. Ironically enough, the vehicle immobilizer (1921) was patented before the parking meter (1936), which, I would argue, goes to show even early parking professionals knew that an effective parking revenue system only works with effective enforcement. 

A quick search of the U.S. patent office website shows almost 4,000 patents since 1976 that include the word “parking” in the title and nearly 80,000 patents that contain the word “parking” somewhere in the patent. A relatively newer invention is the idea of a Patent Troll. The term “Patent Troll” was coined in the 1990s and, according to Investopedia, is a “company that uses patent infringement claims to win court judgments for profit or to stifle competition.” Typically, these companies do not use their patents to protect the goods or services they make, but instead, to generate revenue from licensing and lawsuits. 

So, to your question, I do not think you or your organization should be overly concerned about patents. But instead, your operation should consider the risk of patents in a similar vein as most other legal risks, as something to be managed. First, if you are buying technology, ensure your legal agreements include indemnification (protection from legal liability) for patent infringement for the product you are using. This concept shifts the legal liability for patent issues from you to your vendor (assuming you are using the product in a supported manner). 

Second, if you get a letter of patent infringement, enlist the help of a well-qualified legal advisor. One item to discuss with them is the idea of “Prior Art.” Prior Art is any evidence that an invention was publicly known or available, in some part, before the effective filing date of the patent application. 

This concept is essential because if there is Prior Art, a patent isn’t valid in most situations. Due to the complicated nature of parking (and many non-parking people’s lack of understanding of that complexity), there likely is some form of Prior Art in many cases. While I would first recommend heeding the specific advice of your legal counsel, I would also suggest that if you are getting extorted by a patent troll, get help from the larger parking industry. 

These organizations work much like other predatory animals, trying to split one target from the group to make them easier to attack. Get help and advice from other parking organizations and, if needed, respond as a group instead of individually. What many patent trolls want is as many quick and cheap wins as possible. Depending on the quality of their patent, they risk engaging a group large enough to invalidate their patent in court. (Which has happened before in the parking industry.) Don’t suffer alone. 

If you have a question you would like answered, comments about previous articles, or want to say hello. Please email me at kevin@omnipark.com.