“Our sex lives are about to get very interesting!” Maxine Lynn, an intellectual property attorney in the sex-tech space, tells me. The reason for her enthusiasm? A patent—or, rather, the absence of a patent, one that many say has inhibited innovation in the sex toy industry for two decades.
The teledildonics patent, which was filed exactly 20 years ago to the day, has officially expired.
The patent in question applied broadly to internet-controlled sex toys. It was so broad, in fact, that the Electronic Frontier Foundation awarded it Stupid Patent of the Month in July of 2015. “Doing it with a computer (literally) does not make something patentable,” the organization wrote, noting that such extensively nonspecific patents are not only stupid, but they stifle innovation and diversity.
With the teledildonics patent now expired, experts say, a new era of sex-toy innovation may soon rise from an industry long chastised by the threat of lawsuits from a patent troll.
“The thing that I’m most excited about is seeing more people from varied backgrounds launching their ideas,” Julia Lopez, director of product at Unbound, tells Gizmodo in an email. She mentions that they have witnessed “several companies and ideas disintegrate” due to the patent owners filing lawsuits against them. “And who knows how many people were thinking about starting a company, but didn’t because the barrier of entry was extremely high.”
EFF senior staff attorney Daniel Nazer tells me in an email that “it’s a good thing this patent is expiring” and noted that the owner of the patent had filed a lawsuit against several small companies, “so it’s reasonable to conclude that it was actively deterring innovation in this space.”
Inventors Warren Sandvick, Jim Hughes, and David Alan Atkinson first owned the patent, which was then transferred to Hassex, Inc., and then ultimately to Tzu Technologies, LLC. The latter was considered a patent troll, given that the company never actually developed a product covered by the patent. Instead, Tzu Technologies sued several sex toy companies, alleging they infringed on the patent. Among these devices included the Frebble, which lets you hold hands with someone over the internet; remote-controlled vibrators; and a virtual sex platform. Tzu could sue any company effectively helping someone get off via the internet, and for smaller companies, that could prove to be a devastating blow. For instance, Winzz, LLC, which created a remote-controlled sex toy, was ordered to pay $56,100.71 in damages in June 2016 when it didn’t respond to an infringement complaint.
With several odds already stacked up against sex toy makers, the threat of a costly lawsuit adds yet another obstacle in the way of inventiveness. While the sex toy market has ballooned into a billion-dollar industry, there is still a stigma around it, which makes it difficult for smaller companies to get capital from investors. And as evidence suggests, the male-dominated venture capital world is already unkind to not only female-led ventures, but also female-focused products. But Lynn sees a ripple effect from the expiration of the teledildonics patent.
“The stigma surrounding the sex toy industry has long kept talent out,” Lynn says in an email. “It has also made investors weary of getting involved in new SexTech ventures. And, as we all know, you need money to make money. Luckily, that stigma is fading these days. The industry needs an inflow of capital, as well as outstanding engineers and designers, to really push things forward. That is beginning to happen, but hopefully, the removal of the ‘teledildonics patent’ as a potential obstacle will help to speed it up!”
Those who have already paid the price of the teledildonics patent warn that its expiration doesn’t necessarily mean we’re about to see an explosion of new internet-connected sex toys—which, by the way, would mean more competition.
We-Vibe spokesperson Denny Alexander cautions that to be successful in the space, licensing a patent is just a small part of the investment—a leading product also requires an investment into the development of the app and the devices. We-Vibe, which developed products that allow couples to control each other’s sex toys over a distance, licensed the teledildonics patent back in 2014 when it launched its app, which he says has been used by over 2 million people. “These patents exist for a reason,” he says. “And they exist to reward and encourage research and innovation.”
Toon Timmermans, CEO of Kiiroo, which makes interactive sex toys, echoed Alexander’s sentiment. The company also obtained a license for the patent and believes that “if companies really wanted to innovate before, they would have attempted to get a license for it.”
But for the smaller companies, like the ones the patent owners previously sued, a licensing fee could prove to be a significant barrier. And even if a company could afford the fee, like We-Vibe, Kiiroo, and MysteryVibe, which also had to pay to license the patent, many in the industry view this particular patent’s expiration as a win for inventiveness. “Anything that further stifles innovation is a shame,” MysteryVibe CEO Stephanie Alys tells Gizmodo in an email, characterizing the patent’s end as “a step forward for the industry.” She adds that competition, which is likely to increase now that the teledildonics patent has expired, could have another positive side-effect: improved industry standards.
“Teledildonics have their positives, but they also have their drawbacks,” says Alexandra Fine, CEO of Dame Products. “Hopefully as this patent lifts, the number of brands who can infuse the industry with thoughtful applications will expand.”
And there’s one crucial element surrounding the smart sex toy market that, patent or not, requires thoughtfulness: security. Nazer notes that there have been instances in which internet-connected sex toys violated the privacy of users. One of the more recent and egregious cases involved We-Vibe: In August 2016, the company was sued for collecting intimate user data in real-time. We-Vibe settled the lawsuit in March, agreeing to pay each of its customers up to $10,000 for surreptitiously gathering their data.
“If the expiry of this patent does lead to more innovation in teledildonics, companies must practice data minimization and ensure personal data is encrypted and secure,” Nazer says. Alys, whose company developed Crescendo, a sex toy that can be controlled through an app from 10 meters away, said that before MysteryVibe rolls out “anything more extensive,” they want to “make certain that we are extremely attentive to incorporating security by design.”
What the passing of this patent really boils down to is that the sex toy space just got a little easier to enter. And while that is an inarguably positive step toward a more inclusive industry, it doesn’t mean companies should treat privacy, security, and considerate design as an afterthought. And it doesn’t mean that they can skip investment in research and development—but there’s now one less fee.