— Jessica Gutierrez Alm, Attorney
Live Action Role Playing (LARP or LARPing) usually involves Renaissance Festival worthy costumes, foam medieval weapons, and an intense dedication to not breaking character. I can’t say I’ve ever had the privilege of participating in a LARP event, but I also can’t say I’d turn down the opportunity.
A different kind of battle—the intellectual property kind—is being fought over the sale of some foam LARPing arrows. Jordan Gwyther, a church pastor who sells LARPing equipment on the side, is being sued by the proverbial Goliath, Global Archery Products, Inc. Jordan Gwyther owns LARPing.org and UpshotArrows.com, both of which offer foam tipped arrows for sale to LARPing enthusiasts. Gwyther doesn’t manufacture the arrows; he imports and sells them. Global Archery initially sued for patent infringement, trademark infringement, false advertising, and unfair competition.
The patent infringement claims relate to Global Archery’s two U.S. utility patents, each entitled “Non-Lethal Arrow.” The patents were granted in 2013 and 2015.
Here are some images from Global Archery’s patents:
The scope of a utility patent, however, is defined by it numbered “claims.” Claim 1 of one of the patents, for example, is directed to:
A non-lethal arrow, comprising:
a shaft; and
a foam tip assembly connected with an end of the shaft, wherein said foam tip assembly comprises a tip connector having a foam tip overmolded to at least a portion of the tip connector such that said foam tip is securely attached to said tip connector.
And here are some of Gwyther’s arrows accused of infringing the Global Archery patents:
At least upon first glance, there are surely some similarities here.
Gwyther responded to the lawsuit by launching a GoFundMe page with this video, asking the LARP community for help. In the video, Gwyther claims that if Global Archery succeeds in its lawsuit against him, they will likely succeed in suing other foam arrow distributors and effectively end LARP archery in the U.S.
Global Archery motioned the court for a temporary restraining order and preliminary injunction to remove the video, stating the video led to “hateful phone calls, emails, and [social media] posts.” Global Archery’s efforts at a so-called “gag order” did not sit well with the LARP community or the more general online community. As a result, tech company Newegg joined in the fight, calling Global Archery a patent troll, and offering $10,000 and the proceeds from some anti-patent troll t-shirts to Gwyther’s cause.
But is Global Archery really a patent troll? There are a few ways to define a patent troll. Usually, the term is used to refer to a non-practicing entity—a company that owns patents for the purpose of collecting license fees and/or settlement money. Non-practicing entities do not actually make, use, or sell the things their patents cover. That definition does not seem to apply to Global Archery, however, since it is a company directly involved in various forms of archery, even if it does not market directly to the LARP community. Other times, “patent troll” is used to refer to a patent holder using its patents to assert overly broad and even baseless claims against others in order to collect settlement checks. This definition, too, seems inapplicable given the apparent similarities between the patent claim language and Gwyther’s arrows. Perhaps a more broad definition of a patent troll is simply a large company that enforces its patent rights against smaller companies?
Patent troll or not, the patent claims were recently dropped. Gwyther cited a German patent, predating Global Archery’s patents, as invalidating prior art. Here are a couple images from the German prior art patent:
After reviewing the German patent, Global Archery voluntarily dismissed the patent infringement claims against Gwyther. According to the online file histories, neither of Global Archery’s two patents received much push back from the U.S. Patent Office prior to allowance. Apparently, Global Archery decided it would be safer to drop the patent infringement claims against Gwyther than be forced to defend the novelty and non-obviousness of its patents.
Invalidity is a frequent offensive strategy to combat patent infringement claims, and Gwyther did well to bring in the German patent. Gwyther won the battle, it seems, but the war rages on. It will take something stronger than foam arrows to defeat the remaining trademark, false advertising, and unfair competition claims asserted in the suit.