Watching the watchers: the benefits of IP scrutiny

"Quis custodiet ipsos customers?" asks Katfriend and occasional contributor Sean Gilday (Page Hargrave, Bristol), betraying at once both his ingenuity and the fact that he is not a Latin speaker from birth. Sean's thesis, here, is that the monitoring of IP developments by certain species of enthusiasts is itself worth monitoring.  As he explains:

To prospective entrepreneurs, this is the terrifying
image of the Dragon's Den. To Kats, this is the
welcome sight of comfy chairs, recently vacated 

It might be argued that intellectual property has entered the mainstream of public consciousness over the past decade. Thanks in part to popular TV shows such as Dragon’s Den (in which prospective entrepreneurs are often quizzed over the IP rights they hold in respect of their new business idea), and the high profile ‘Patent Wars’ between Apple and Samsung, which have been covered extensively in the news, intellectual property has moved from an esoteric area of law in the 20th century to take centre-stage in the 21st. As a result, the general public is taking more of an interest in IP matters. For most businesses, this greater awareness means that it might no longer be merely competitors who are scrutinising their IP portfolio, but customers too.

An area of particular interest to me personally is that of video games. As a group, video game enthusiasts (and particularly the so-called ‘hardcore’ fans) tend to be technologically well-versed, and voracious in their consumption of news regarding the latest systems and games. In a way then, it is no surprise that this group of consumers has started taking an interest in hardware and software companies’ IP in order to get an insight into what’s around the corner in terms of upcoming releases and future business strategies.

For example, fans of the Sega game series ‘Shenmue’, who have been patiently waiting for over a decade for a new installment, recently learned that it may be time to give up on their hopes for a Shenmue III as Sega’s trade mark was cancelled in the US on the grounds of non-use. In contrast the much anticipated follow-up to ‘Fallout 3’ was tantalisingly hinted at when an application for a ‘Fallout 4’ trade mark appeared on the OHIM website back in November. Although the mark was not ultimately registered (an apparent hoax), gaming discussion forums across the internet exploded with speculation.

In addition to trade marks, patents are also keenly monitored by enthusiasts. Before the revelation of Microsoft and Sony’s new consoles, released toward the end of last year, there was much discussion about the potential set-ups of both. Would they be disk-less? Include restrictive DRM? A mandatory internet connection?

One patent in particular became infamous: Sony’s granted patent US8246454, benignly titled “System for converting television commercials into interactive networked video games”, but more colloquially referred to as “Say ‘McDonalds’ to end commercial” (Fig. 9, below, sums it up quite well). This patent stirred up quite a large backlash of ill will against Sony in the run up to their 2013 E3 reveal, although it does not appear to have ever been seriously planned for inclusion in the Playstation 4. Gamers learned the valuable lesson that not everything applied for in a patent application, or even granted in a patent, is necessarily intended for use by the patentee.

So in the brave new world of IP awareness, businesses too should be aware that potential customers are taking a greater interest than ever in corporate IP activities. When patents and trade mark applications are published, speculation tends to run rampant in the absence of official confirmation/denial. Consequently, it might be worth watching the watchers ...