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Is a Patent Troll About to Kill the High-Tech Dildo Industry?

A suit by a shadowy Texas businessman could kill teledildonic innovation in a death grip of legal fees and court-ordered payouts.

Andrew Quitmeyer isn't your average dildo designer. A PhD candidate in digital media at Georia Tech, Quitmeyer's research usually has nothing to do with sex. But he's long been fascinated by the overlap between computer technology and human behavior, and lately he's taken his interests to an intimate new level with his work on the Mod—an "open source" vibrator that can be synced up to smartphone apps, remote controls, and even a user's heart rate.

The Mod is the flagship product of Comingle, an Atlanta company Quitmeyer runs with three other tech-savvy designers. The firm is among a number of startups that have entered the burgeoning field of "teledildonics"—sex toys connected to computers, that could open up new possibilities for what people can do with their private parts.

"You can program it to be anything," said Quitmeyer, referring to the Mod's operating system, a hacker-friendly platform dubbed the Dilduino. "It's like the difference between television and a computer."

Comingle raised nearly $60,000 in an Indiegogo campaign earlier this year, and the company is now filling out preorders and hammering out manufacturing details for the first batch of Mods. But before Quitmeyer and his partners get to see their beloved dildos in the hands of customers, they have to first get past TZU Technologies, LLC, a mysterious Southern California firm that recently filed a lawsuit against Comingle and six other companies—arguing that they're all infringing on an obscure US patent TZU owns, which stakes an expansive claim on teledildonics technology.

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The lawsuit, filed in late July in US District Court in Central California, marks the beginning of what could be a drawn-out legal war that could shape the direction of the computerized sex toy market. The debate centers on questions about the validity of TZU's patent, and concerns that the TZU claim could lock future teledildonic innovation in a death grip of legal fees and court-ordered payouts.

"Our bank account is rapidly approaching zero, and it was never that high to begin with," Quitmeyer said, noting that the company has already put most of its money on designing the Mod. "All these great people who helped us and supported us in the crowdfunding thing on Indiegogo—basically there's a billionaire in Texas who's trying to take their dildos away from them. 'Nope, sorry! You can't have these!'"

The Mod. Photo courtesy of Comingle

In the world of sex toys, teledildonics have gotten a lot of buzz. Some of the products look bizarre and intimidating, and the technology itself is a ways off from promising human-to-human levels of ecstasy. But products like the Mod signal a new wave in toy design. Shaped like a giant, smooth finger, Comingle's made out of body safe silicone, outfitted with three vibrating motors, and comes with a USB-rechargeable battery—a popular feature of today's swankier vibrators.

But depending on how the courts decide, the Mod's hacker-friendly components may run afoul of US Patent No. 6,368,268. The patent was originally filed in 1998 by three inventors, including one Warren J. Sandvick, president of a Texas company called Hassex, LLC. Hassex doesn't appear to actually make sex toys—it doesn't appear to do anything, really, except own this patent. The patent itself vaguely describes an "interactive virtual sexual stimulation system" that features "one or more user interfaces," any one of which can be a video camera, a transmitter, or an "input device."

As blogger and engineer Kyle Machulis originally reported on his Metafetish blog when he broke the story, the TZU lawsuit takes aim at seven companies. The list includes makers of legitimate teledildonics toys—like Winzz and Vibease, a "wearable smart vibrator." But it also includes Kickstarter and a company called Holland Haptics, which makes an innocent-looking haptic device that's marketed as something parents can use to hold their children's hands over an internet connection.

Since news of the lawsuit broke late last month, tech bloggers have dismissed Hassex and TZU Technologies as "patent trolls"—shell companies whose sole purpose is to extract payment from actual businesses by exploiting US patent law. Daniel Cotman, an attorney representing TZU in the case, sees things differently. In an email to VICE, Cotman said TZU is a "joint effort" with Sandvick, launched to protect the Texas patent-man's intellectual property rights. Cotman added that TZU now owns the patent and has plans to utilize it—presumably by developing a sex toy—although the company isn't ready to announce anything yet.

As for the "patent troll" accusations, Cotman retorted that alleged patent infringers like Comingle are the real villains here. He called them "patent ogres."

"People like to throw the term 'patent troll' around without a lot of thought rather than recognizing that this naming calling [sic] is intended to distract from the fact that a patent owner has a legitimate property interest," Cotman wrote. "Before a patent is issued the application undergoes a thorough and rather expensive examination process at the Patent Office. Once issued, a patent is a real property right just like land or a house. In the same way that you can stop a total stranger from sleeping in your living room or from building a structure on your front lawn, a patent owner can stop folks from trespassing on its patented technology."

Whether TZU is trollish or legit, the question remains whether the patent is bullshit, at least in the eyes of the law. Steve Korniczky, a patent litigator from the Sheppard Mullin law firm in San Diego, said that when these cases go to court, defendants typically argue against a patent's validity by examining its language. If the "claim" of the invention covers something that already existed prior to the existence of the patent—a term known as "prior art"—then the patent would be deemed invalid.

"They might be saying, 'Well, you infringe.' But if they're covering something that existed before 1998, for example, then they weren't first," Korniczky said.

It's possible that legitimate prior art does exist for TZU's teledildonics patent. The concept behind teledildonics dates back to the mid-1970s, and as early as 1993, newspapers were reporting on computer-aided sex. Primitive teledildonics systems also came out in the 1990s. In researching prior art, Quitmeyer found a couple videos from the early 90s that show a virtual system devised in Europe that let people engage in S&M sex using dial-up connections and kinky looking "stimulator suits."

CyberSM, featuring one of the earliest virtual reality sex get-ups in 1993.

Already, at least one legal expert has publicly balked at the broadness of the teledildonics patent. In a post last week, Vera Ranieri of the Electronic Frontier Foundation designated it the "Stupid Patent of the Month," pointing out that some of the language is so far-reaching that it could be talking about radio broadcast systems.

Yet even if the patent seems ridiculous, fighting it in court might prove to be a Sisyphean task. In 2013, total fees for defendants in patent cases brought by non-practicing entities—owners of the patent who, like TZU, aren't actively using the patent, or "trolls"—ranged anywhere from $820,000 to $4.4 million, according to a survey from the American Intellectual Property Law Association.

It might be easier for the teledildonics firms to simply settle—"patent trolls," said Korniczky, are often simply looking for a payout, and end up settling for a fraction of what the amount they initially sought in damages.

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Before the TZU lawsuit was filed, a handful of sex toy companies had already gotten licensed to use the teledildonics patent, including OhMiBod and Kiiroo. Troy Peterson, founder of VStroker, told VICE that his company pays an annual fee to license the patent.

But Quitmeyer, a champion of open source technology and DIY principles, feels these kinds of fees present an unfair hurdle for designers, hampering the disruptive quest to find new ways of stimulating the erogenous zones.

"Sex tech needs to be opened up," he said. "People's sexuality is super specific and weird. I don't want people to have general sex. I want them to have the weird, specific, crazy, kinky dragon sex of their dreams."

"More than anything, I want to fight this thing and shut it down, and just let it show people how ridiculous patent trolling can be," he added. "Now, whether that makes sense for our incredibly tiny business, I have no idea."

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