Evolv sues Joyetech over VW technology !

[Mazinny]

Some thoughts.

Firstly, as @Douggro points out above, it's totally out of line to call Evolv patent trolls. Whatever one thinks of the patent system generally, one has to agree that Evolv has acted entirely within the spirit of that system.

They have continuously made their product, sold their product, spent on R&D and brought out new versions. That's NOT patent trolling in any reasonable sense of the phrase.

A patent troll is, fundamentally, a person or organisation which buys up patents with no intention of making the claimed invention, but simply to extort money from those who do. This, to me, needs reforming - there should be a limitation on patents in cases where the owner does not make the claimed invention. But this certainly does not apply in any sense in Evolv's case.

Also, there's a tendency to cast Evolv as somehow malfeasant for patenting something which vapers think is "obvious" - i.e. Wattage control. But that's kinda the point in patents! It may seem obvious 5 years on, but in 2011 it certainly was not, and Evolv changed the way we vape.

Very soon after they started to produce their original dna, their devices were being copied. Imagine that - you spend a good period of your life R&Ding a device, knowing that there's only a limited period for which you'll be able to profit from it, and some guy with access to cheap labor and components just rips you off.

And I note that there's a tendency to claim that Evolv are simply trying to rip off vapers by making sure that only their (more expensive) devices are sold. This is so disingenuous it's not true. The implication is that a 200watt device with all the bells and whistles is somehow necessary for smokers to stop smoking.

Reality check - this is a TINY proportion of the market. Absolutely minuscule - despite the high visibility of devices like this in the online world, I'd suggest that it's less than 1% of all vape consumers who buy 200 watt devices. It's a niche product within a niche. The idea that people should be able to buy such niche products cheaply is a form of special pleading that simply doesn't apply to other products. Imagine - you want a massive 8K TV right, but you want to pay less for it. Well, you might be able to, in 2 or 3 years time - but right now the manufacturers are going to sell that for a premium to the "innovator" section of the market and make back their R&D and tooling. That's simply what Evolv wish to do, and I don't see why they shouldn't be allowed to.

If 200 watts were needed for people to stop smoking, I might think differently, but it's not, so I don't. Evolv have a range of products they sell at a range of prices, and the DNA200 is their current premium. Next year it will be something else. I'd like that to continue, wouldn't everyone?

You make a fair point in the first part of your post. Evolv are not technically patent trolls, and if their DNA devices were copied, and they had a patent for them, Evolv would be well within their rights to sue. But the only patent they refer to in the complaint is the '330. It's not clear to me however, that Evolv should have the rights to the vw personal vaporizer application, in it's entirety. We'll see what the courts think.

You then segue into the supposed implication that a 200watt device with all the bells and whistles is somehow necessary for smokers to stop smoking. Who drew that implication ? If Evolv is suing because the RX200 is a DNA 200 knockoff, they should make it absolutely clear, and if they have a patent for it, the courts will rule. But Evolv is claiming patent infringement based on the '330 patent only and they name the entire range of Wismec/Joyetech products including the iStick 10 mini, as " Accused Products ".

I don't know if the RX200 chip is a knockoff of the DNA 200 board, and if it is, whether Evolv could do anything about in the absence of a patent. Evolv and Joyetech had a business dispute over the RX200, and Evolv is using the '330 which is a much more broad patent, to sue, because they have no patent for the DNA200 it seems.

I don't understand your point in the last paragraph. People don't have a right to 200 watts of power and tc, on the cheap, because why exactly ? Does Evolv have a patent for wattage beyond a certain limit, or the tc ? Or are you claiming that every VW vaporizer in the market, from low end to high end, is in violation of Evolv's patent ? If that's your claim, why even bring up the " 200 watts of power with bells and whistles " ?

 

[Oliver]

You make a fair point in the first part of your post. Evolv are not patent trolls, and if their DNA devices were copied and they had a patent for them, Evolv would be well within their rights to sue. But the only patent they refer to in the complaint is the '330. It's not clear to me however, that Evolv should have the rights to the vw personal vaporizer application, in it's entirety. We'll see what the courts think.

You then segue into the supposed implication that a 200watt device with all the bells and whistles is somehow necessary for smokers to stop smoking. Who drew that implication ? If Evolv is suing because the RX200 is a DNA 200 knockoff, they should make it absolutely clear, and if they have a patent for it, the courts will rule. But Evolv is claiming patent infringement based on the '330 patent only and they name the entire range of Wismec/Joyetech products including the iStick 10 mini, as " Accused Products ".

I don't know if the RX200 chip is a knockoff of the DNA 200 board. Evolv and Joyetech had a business dispute over the RX200, and Evolv is using the '330 which is a much more broad patent, to sue, because they have no patent for the DNA200 it seems.

Are you claiming that every VW vaporizer in the market, from low end to high end, is in violation of Evolv's patent ?

Sorry, let me make it clear - I offer no judgement on whether these devices contravene the patent. How could I possibly? I'm not a patent attorney, and defer to those with knowledge. As you say, the courts will decide (assuming there's no settlement).

Regarding the RX200/DNA200, then, I've seen chatter online which suggests the only reason Evolv are suing is because they are upset at their technology being copied and sold cheaply. Well, yeah, I can imagine that's true. But the corollary of that is NOT that they're money-hungry .......s who want to control the market, which does appear to be being assumed by some. I'd say they're acting rationally as a business.

The history is plain (to me at least). Every time Evolv has released a chipset, it's been copied, either in part or in whole. If they do hold the patent on the fundamental method for achieving VW (including within the 22 specific claims), then they're in the right, I'd assume? Unless I'm missing something?

And JT does appear to concede the point: as summarised in the docket where JT asked Evolv how much they need to pay for each of the claims.

Regarding the iStick mini and associated products - again, they may well be contravening Evolv's patents. I suppose they can't selectively go after the RX200 without going after all the other products they believe JT are contravening? I see no reason to disbelieve Evolv when they state that they've purposefully been somewhat lax in enforcing patents historically, but clearly something has occurred which means they now feel they need to do it...

Essentially, Evolv claim (and for all we know they have additional reason to believe) that JT is dumping product to put them out of business. This is a perennial issue in other areas of international trade, and perfectly plausible in this case.

 

[Mazinny]

Sorry, let me make it clear - I offer no judgement on whether these devices contravene the patent. How could I possibly? I'm not a patent attorney, and defer to those with knowledge. As you say, the courts will decide (assuming there's no settlement).

Regarding the RX200/DNA200, then, I've seen chatter online which suggests the only reason Evolv are suing is because they are upset at their technology being copied and sold cheaply. Well, yeah, I can imagine that's true. But the corollary of that is NOT that they're money-hungry .......s who want to control the market, which does appear to be being assumed by some. I'd say they're acting rationally as a business.

The history is plain (to me at least). Every time Evolv has released a chipset, it's been copied, either in part or in whole. If they do hold the patent on the fundamental method for achieving VW (including within the 22 specific claims), then they're in the right, I'd assume? Unless I'm missing something?

And JT does appear to concede the point: as summarised in the docket where JT asked Evolv how much they need to pay for each of the claims.

Regarding the iStick mini and associated products - again, they may well be contravening Evolv's patents. I suppose they can't selectively go after the RX200 without going after all the other products they believe JT are contravening? I see no reason to disbelieve Evolv when they state that they've purposefully been somewhat lax in enforcing patents historically, but clearly something has occurred which means they now feel they need to do it...

Essentially, Evolv claim (and for all we know they have additional reason to believe) that JT is dumping product to put them out of business. This is a perennial issue in other areas of international trade, and perfectly plausible in this case.

We'll see what Joyetech say in their response. I'm not prepared to accept Evolv's version of events. And i won't argue " the history ".

It's still not clear to me if you are making a moral argument or a legal one. The only patent i have seen is the general vw one, the one they claimed they would not use to sue anyone. Are they going to use it at their own discretion in the future, whenever they have a business dispute with another vendor, or will they use it against all vendors and against all products from low end to high end ?

P.s. I don't think Evolv are " money hungry .......s who want to dominate the market " . I do believe, that they assumed by selling the DNA200 board to Joyetech, JT would not sell a competing 200 watt tc mod, with their own chip ( won't comment whether it's a knockoff or not ), at a substantially lower price. Since they can't go after JT for that supposed infraction specifically, they had to resort to '330. They would have been wiser to specify in their contract, that JT would not market a competing product.

 

[Oliver]

I'm not sure what a moral argument looks like in a case in which we're not privy to the facts. I suppose the closest I'd come to making a moral argument in this case is to say that Evolv haven't demonstrated an aggressive patent protection policy in the past, and so it might be provident to assume there's extenuating circumstances here. Essentially, a plea to defer judgement.

There's a lot of posts saying "I'll never buy Evolv again" - well, that's the right of a consumer, of course, but it may well be based on interpretations of Evolv's behavior that are drawn incomplete facts.

Legally, again - I can't make a legal argument because I simply don't have the knowledge.

The facts are as plain as day though - Evolv (and their legal council) believe that '330 covers all or part of the RX200 chips, and more besides.

Seems to me that JT agrees.

 

[Mazinny]

fair enough, but nothing about '330 is specific to the technology used in RX200. They could theoretically use it to sue any vendor selling a vw device at any price range, and using any technology, regardless of whether it's inferior or superior to Evolvs, at any time in the future, if the patent is upheld.

 

[Oliver]

fair enough, but nothing about '330 is specific to the technology used in RX200. They could theoretically use it to sue any vendor selling a vw device at any price range, and using any technology, regardless of whether it's inferior or superior to Evolvs, at any time in the future, if the patent is upheld.

Right - that's what patents do. For better or worse.

nothing about '330 is specific to the technology used in RX200

- really? I mean, that would make this suit rather stupid, wouldn't it?

 

[Tonkpils]

Right - that's what patents do. For better or worse.

- really? I mean, that would make this suit rather stupid, wouldn't it?

Is the 330 patent not just the patent for the Darwin? It was the first VW PV afaik and could not be specific to the RX200 as it was not even a thought when the 330 patent was drafted.

 

[Troll from behind]

I find it very hard not to see this as a mad dash for the cash.
Wonder what does Evolvs finance look like?
It can't be that good after several revisions of DNA40 and the R&D of DNA200.
Also supplying big chinese companies with DNA200-boards must have strained Evolvs production capacity to the edge, wasn't the main reason for Wismec to start using their own boards the fact Evolv couldn't keep up with the demand?
Those things aside does this patent also include boards doing VW with step down since it took Evolv a long time to integrate stepdown?

 

[Dudeman1975]

evolv patents variable wattage!

 

[edyle]

Curious where you get the notion that the DNA200 chip specifically was patented ?

They refer to patent '330 over and over in the complaint, i.e.

Patent US8820330 - Electronic vaporizer that simulates smoking with power control

No mention of any other patent specific to the DNA 200.

I got that impression because
US PATENT 8820330 is shown printed on a DNA200 board shown in a photo in the document.

 

[Topwater Elvis]

Their patent covers all their products from the Darwin through the DNA200. ---> http://www.evolvapor.com/patents/

It also covers wattage control, TS/TL & TP, a specific design & method of preheat, specific design of digital user controls, a specific OLED screen, specific onboard buttons, and their specific method of synchronous rectification.

IMO, too many folks jumping to conclusions on a subject that is very close to impossible for the normal layperson to understand even the most basic '101' of it.

 

[Douggro]

The history is plain (to me at least). Every time Evolv has released a chipset, it's been copied, either in part or in whole. If they do hold the patent on the fundamental method for achieving VW (including within the 22 specific claims), then they're in the right, I'd assume? Unless I'm missing something?

And JT does appear to concede the point: as summarised in the docket where JT asked Evolv how much they need to pay for each of the claims.

Specifically, the filing states that a JT representative inquired about what the licensing fee would be. Evolv is insinuating in the filing that this is an admission of infringement. I'm not sure that's going to carry much weight from a legal standpoint unless they have a clear admission from a JT officer that they are conceding infringing and want to license; asking about the licensing cost is just that: a question.

The filing also tries to paint JT as a manufacturer of "inferior products" (their words in the filing) and trying to force Evolv out of business by "flooding the market" with said products. This is actually unrelated to the case as it pertains to the infringement of the 330 patent. There are other avenues for claim regarding businesses "dumping" product in a market as a means to gain share and remove competition.

There's no doubt that Evolv has created some very advanced products, particularly the DNA200 board when tied with the Escribe software for controlling functions and features of mods. If JT or anyone else had copied that aspect of their product, then yes, Evolv would well be within rights to go after the infringing parties. But the crux of this case is the claim by Evolv that they "invented" variable wattage control for vaping products (paraphrasing the 330 patent). As stated several times prior, the Prior Art argument is very strong against this being a sound patent stance; there are cases of precedence on the books that go against Evolv's claims. The courts are moving away from protecting parties with broad-claiming, non-specific patents.

 

[retired1]

The courts are moving away from protecting parties with broad-claiming, non-specific patents.

It depends on the court. Eastern District of Texas is well known for upholding patent rights.

Why Do Patent Trolls Go to Texas? It’s Not for the BBQ

 

[suprtrkr]

Sorry, let me make it clear - I offer no judgement on whether these devices contravene the patent. How could I possibly? I'm not a patent attorney, and defer to those with knowledge. As you say, the courts will decide (assuming there's no settlement).

Regarding the RX200/DNA200, then, I've seen chatter online which suggests the only reason Evolv are suing is because they are upset at their technology being copied and sold cheaply. Well, yeah, I can imagine that's true. But the corollary of that is NOT that they're money-hungry .......s who want to control the market, which does appear to be being assumed by some. I'd say they're acting rationally as a business.

The history is plain (to me at least). Every time Evolv has released a chipset, it's been copied, either in part or in whole. If they do hold the patent on the fundamental method for achieving VW (including within the 22 specific claims), then they're in the right, I'd assume? Unless I'm missing something?

And JT does appear to concede the point: as summarised in the docket where JT asked Evolv how much they need to pay for each of the claims.

Regarding the iStick mini and associated products - again, they may well be contravening Evolv's patents. I suppose they can't selectively go after the RX200 without going after all the other products they believe JT are contravening? I see no reason to disbelieve Evolv when they state that they've purposefully been somewhat lax in enforcing patents historically, but clearly something has occurred which means they now feel they need to do it...

Essentially, Evolv claim (and for all we know they have additional reason to believe) that JT is dumping product to put them out of business. This is a perennial issue in other areas of international trade, and perfectly plausible in this case.

Well said. I am not certain Evolv is, or should be able to, patent the entire idea of VW/TC is all phases of the PV marketplace. But if Joye is dumping, they should get hammered. Also even if not dumping, but it can be proved their actual intent acts in restraint of trade (ie. to put Evolv out of business.) I have to say, though, this seems to me prima facie unlikely; if Joye puts Evolv out of business, whom will they have to reverse engineer?

 

[badinfluence357]

Was Evolv the first to put out a 200W chip? Please correct me If I'm wrong but I think they didn't. New mods coming out at the time were being made with better reliable boards than the DNA 30 and 40. The DNA 30 and 40 boards were giving alot of problems so manufacturers started using other boards like the yihi sx and hex-ohm custom boards. They probably were the first to obtain a patent for their own 200w board but they weren't the first to create the technology. who knows?

 

[Tonkpils]

Was Evolv the first to put out a 200W chip? Please correct me If I'm wrong but I think they didn't. New mods coming out at the time were being made with better reliable boards than the DNA 30 and 40. The DNA 30 and 40 boards were giving alot of problems so manufacturers started using other boards like the yihi sx and hex-ohm custom boards. They probably were the first to obtain a patent for their own 200w board but they weren't the first to create the technology. who knows?

No, the asmodus snow wolf was before.

 

[crxess]

Only time and money will tell.

 

[skoony]

Does any one know if the IC used was made specifically for the purpose
of VW control by or for Evolv? Was it an off the shelf part designed for or
could be repurposed for VW? If off the shelf components were used for
designing their board maybe that is why the '330 is being applied.
Theoretically each separate circuit and function could be taken from
previous designs and integrated together to make a "new" device
for a new purpose. It certainly was new to vaping at the time.
This seems analogous to the first radio made to be used in a car.
I don't believe the radio itself was patented. Certain innovations to
make it work well in a automobile were. Of course things are looked
at differently now. Its hard to filter out the old school from the new
school.
Just some random thoughts, Regards
Mike

 

[Topwater Elvis]

It has nothing to do with how many watts.

They were the first to design & implement VW as it is known in any vaping device. (Darwin 2010).
First to to design & implement TS/TL/TC as it is known in any vaping device. (dna40 2014)
Both being their own design, unique to specific and defined methods/product/use/market.

They acted wisely and applied for a patent to protect what they believe to be their intellectual & functional property.
The patent was granted, all that really means is after a fairly lengthy review process it was agreed that the patent submitted was written in a manner that they (the patent office) found it reasonably suitable for defense.

Patents are lawyer food, they do not guarantee anything, nothing about them is set in stone.
They don't really mean much until successfully defended or found lacking by a judge or court, or, if conceded to without challenge.

Yes, you can take off the shelf 'parts' cobble them together in a unique way apply for & be granted a patent.
The methods of the 'cobbling' & end results overshadow componentry when the end result is unique.

 

[WattWick]

Most of the time, any benefit to the good of man(and woman)kind is a byproduct of financial gain. We can't expect anyone wanting to make a 'Living++' to have great empathy for others doing so.

Dog eat dog, etc and so forth...