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Patent Troll Tactics Target Infrared Camera Use of Home Inspectors

 

trolls patent home inspection infrared camera thermal image 300A year or two ago, I remember getting trapped in my car one evening listening to Ira Glass's show This American Life. It was an episode titled When Patents Attack, and I was riveted. They described how a seemingly small change in the US patent office's protocol led to the growth of an industry that siphons money from tech companies through legal, but sketchy, license fees and lawsuits. It seems that some in our industry were paying attention to Nathan Myhrvold's shenanigans and are now going after home inspectors and energy auditors.

HomeSafe Inspection, Inc. files a lawsuit

HomeSafe Inspection, a Mississippi company that has several patents covering various uses of infrared cameras, filed a lawsuit against Assured Home Inspections of Tupelo, Mississippi, and its owner, Charles Russell. Their claim is that the defendant has willfully and deliberately infringed on three of their patents (patent numbers 7,445,377 B2; 7,434,990 B2; and 7,369,955 B2).

They've asked the court to:

  • Permanently shut down all of Mr. Russell's business practices that they claim infringe on their patents;
  • Grant damages for the alleged patent infringements;
  • Grant enhanced damages for the infringement being willful;
  • Let the plaintiff collect interest and costs, pre-judgment and post-judgment;
  • Award the recovery of attorneys' fees; and
  • Give the plaintiff "such other and further relief" that the court finds reasonable and fair.

You can download and read a copy of the lawsuit yourself. The lawsuit itself is only five pages, followed by the full text of the three patents cited.

Last Wednesday brought an interesting new development to this case, a development that likely will only make things worse for home inspectors and energy auditors. Before we get into that, though, let's take a look at the substance of their patents.

The slippery slope of what qualifies for a patent

One of the things I learned in that episode of This American Life was that for a long time, the patent office resisted awarding patents to computer programs, in whole or part. Then they changed course in the 1990s. If someone figured out how to write a piece of code that did something like open a dialog box whenever you pop a CD into the drive, the patent office decided that piece of code deserved a patent.

I'm no expert on patent law or history, but it seems that patents used to go for inventions of real things, like light bulbs and carburetors. Patents could be awarded for processes, too, but those were industrial processes that led to real stuff you could touch, like Goodyear's patent for vulcanizing rubber. They weren't for obvious things like how to sell more apples from your cart.

What did HomeSafe claim to have invented in the three patents cited in the lawsuit? First, here are the titles along with the last three digits of their seven digit patent numbers, as HomeSafe abbreviated them in its lawsuit:

377: Non-Destructive Residential Inspection Method and Apparatus

990: Additional Methods to Detect Termite Infestation in a Structure

955: Residential Indoor Environmental Quality Inspection Method

You can find the full text of all their patents online (just google 'patent number xxxxxxx'), but let's take a look at the details of the first one, 377. Here's the abstract:

Abstract. This invention provides an apparatus for nondestructive residential inspection and various methods for using a thermal imaging apparatus coupled to inspect exterior residential components, interior residential components, a pitched roof and basement of a residential building and the electrical system of a residential building.

If you read through the entire patent, you'll find that the apparatus referred to in the abstract is a harness for mounting an infrared camera along with a digital video camera (Fig. 2 below). They connect the two cameras with a cable to feed the IR signal to the digital video camera, but there's nothing special about that connection. They don't describe any proprietary technology or processes that make something possible that had never been done before.

patent troll apparatus fig 2

The reason for that lack of detail is that cameras that combined those functions already existed when they filed for their patent. That's why they included another version of the apparatus (Fig. 3 below) that held only one camera.

patent troll apparatus fig 3

So the apparatus is simply a harness to mount cameras on, something that any handy person could build in their garage. HomeSafe hasn't proposed any modifications to the infrared and digital video cameras themselves, and even the method of connecting them isn't new. They just built a harness to allow home inspectors to walk around and keep their cameras steady.

Well then, what about their "various methods for using a thermal imaging apparatus"? Is there anything new and exciting to their methods? I've read through their whole patent number 377, and I couldn't find anything that didn't seem to be common knowledge in the thermal imaging industry.

The method they've obtained a patent for includes:

  • Creating a temperature difference of more than 10 F° by turning on the heating or cooling system
  • Turning on all or most of the light switches
  • Turning on all or most of the exhaust appliances
  • Using an infrared camera to get temperature profiles of the outside, inside, underside of the pitched roof, and each electrical outlet
  • Assessing the thermal images for thermal anomalies
  • Reporting the results (which they write in an odd way: "reporting said problem to said designated entity wherein said steps up to the step of assessing each of said profiles occur within 4 hours")

The bulk of the text in the patent reads like a poorly written instruction manual for thermal imaging.

HomeSafe Inspection's initial threats

HomeSafe applied for its patents around 2004 and got them in 2008, as I understand the timeline. It seems, though that they began harrassing home inspectors before the patents were awarded. A recent notice from the American Society of Home Inspectors (ASHI) appeared on The Inspector's Journal Online (see comment #19 by Kurt for full text) and gives a bit of background:

Around 2005 or 2006 HomeSafe began sending letters to home inspectors and energy auditors who use infrared cameras in evaluating homes, threatening legal action for patent infringement. HomeSafe claims, "It is impossible to perform a complete and accurate inspection or even a partial inspection with an infrared camera without utilizing HomeSafe's patented methods and infringing."

Additionally they allege, "If you are using an infrared camera to detect anomalies in a home related to indoor air quality, energy loss, moisture intrusion and electrical hazards among others, you are violating HomeSafe's patents."

After the early activity, HomeSafe dropped out of sight for a while. My guess is that they ran into more resistance than they expected and stepped back to make sure they had a solid legal strategy. Evidently, they believe they're ready now.

A tale of two home inspector organizations

What actually happened last Wednesday, 28 August, to make things worse? First, the good news: Mr. Russell doesn't have to go to court. The bad news, though, according to the discussion at The Inspector's Journal Online, is that Nick Gromicko, founder of International Association of Certified Home Inspectors (InterNACHI), paid HomeSafe a settlement to drop the lawsuit.

The ASHI notice put it this way:

In the meantime, the owner of the defendant's home inspection association stepped in, before the court date for the defendant response on August 28, and offered to pay HomeSafe a cash settlement to drop the suit. While it might have been intended as a generous gesture, this offer and acceptance of cash provides HomeSafe a quick win and additional funds to file more legal action. This ill-advised payment to HomeSafe will further embolden them to pursue their legal strategy. In the end, while certainly a godsend for the inspector involved, this can mean more threats and more suits by HomeSafe against home inspectors.

I know the standard advice is to settle in these cases because patent holders have the law on their side. A friend of mine who's a lawyer said his former company settled with the person who claims to have the patent for inventing "Press 1 for customer service. Press 2 to access your account..." Microsoft, AT&T, Sprint, and ConEd also settled, according to my friend.

Still, home inspectors and energy auditors mostly aren't making a whole lot of money, so HomeSafe is essentially trying to squeeze blood from a turnip. It seems to me that they're more likely to kill the whole residential thermal imaging business than to make enough money even to pay off their lawyers.

Who will HomeSafe attack next?

Surely HomeSafe must have its sights set on bigger game. I'm wondering if Fluke, Flir, and Testo, three of the big infrared camera makers, are their real target. Perhaps they're going after the home inspectors and energy auditors first as a shot across the bow so the big companies with deep pockets will pony up some cash just to keep the market from dying.

I'm also wondering what the camera makers' strategies are on this issue. They can't ignore it any longer. Flir is the only one I'm aware of that has addressed the issue publicly. In a letter addressed to "Dear Valued Customer" dated 16 January 2009, they wrote that a person would have to carry out each part of the claims in a patent to be liable for infringement. They advised that, "Failure to practice even one feature allows a person to avoid infringement." They closed the letter, however, with a paragraph warning that, "This letter should not be construed as legal advice."

And then there are all the training organizations. Surely this has their attention. They're teaching processes that are now covered by HomeSafe's patents. For several of them, teaching how to use infrared cameras is all they do, so this puts them in a bad way.

It's time for patent reform

Because of weakness in our patent laws and an underfunded patent office, a few people are siphoning a lot of money off the hard work of others. There's some rumbling occuring in the tech industry about patent reform. The FTC is planning to investigate patent trolls. Also, Carbonite won a battle against a patent troll. People are getting fed up. John Poole of Birmingham Point shared the image below from the Application Developers Alliance with me on Facebook yesterday.

patent trolls dragging down innovators

As a writer and educator, I'm all for protecting intellectual property. If someone creates something new, they should be able to claim their creation and profit from it. But the idea that someone can snap up a patent on something that people have been doing for decades is disturbing.

Apparently the formula for this easy money is easy to execute: Find a process that a lot of people are already making money from and patent it. In the forums discussing the HomeSafe issue, a few people have thrown out their ideas for patents:

  • "The method and/or approach of inspecting and/or looking at a house using your eyes." ~ Bill Smith, in the RESNET BPI group on LinkedIn
  • "A method for consuming foodstuffs to sustain human life." ~ David Meiland, in the RESNET BPI group on LinkedIn
  • "I’m about to file a patent on eating with a knife and fork and I’m very close to filing one on walking on the pavement." ~ Flash, in the message board at the Infrared Training Center website

Clearly, those ideas are preposterous. No one could ever get away with patenting them. Could they?

 

Afterword

Here I go again, putting myself out there, criticizing another company that could come after me, too, just for speaking out. Was I libelous for mentioning patent trolls and HomeSafe in the same article? Did I "willfully and deliberately" harm their licensing business by speaking out against their patent? Did I misinterpret something in their patent?

We'll see what happens. It all worked out fine a couple of years ago when a much larger company came after me, though, so I think I'll be OK.

Also, I have to tip my hat to David Butler, who brought this issue to my attention this past Labor Day weekend when he posted a discussion about it on LinkedIn. He gave a good summary of what has happened and included links to several of the places I quoted from and linked to above. Thanks, David!

And one final word: Please share this article far and wide. HomeSafe Inspection's actions represent a threat not only to the home inspection and energy audit industry but also to any industry where someone could take a common technical process, write up a patent application in a way that the reviewers get snowed, and then let their lawyers start collecting the money.

For example, what if someone patented a process for commissioning HVAC systems? Or a particular remodeling technique like finishing an attic? Or a piece of computer code integral to energy modeling? I don't think we've seen the end of this.

 

Related Articles

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GUEST POST: Spray Foam, Infrared Cameras, & the New Big Holes 

Beware of Home Energy Auditor Certification Scams

 

Photo of trolls by kewl from flickr.com, used under a Creative Commons license.

Comments

Thank you Allison, for digging deeper into this issue. Great coverage! As you said, we'll see what happens.  
 
BTW, when I read the ASHI release, I failed to pick up on the part that explained that a 3rd party ("the defendant's home inspection association") paid to settle the suit against the inspector. Oh, my. Just how does that help the thermography community at large? Hopefully this action doesn't end up undercutting future legal challenges.
Posted @ Tuesday, September 03, 2013 2:13 AM by David Butler
I've been on the cusp of investing in a mid range IR camera to supplement my collection of building science toys and tools. My partner and I contemplated spending $3-4k for a unit that would be a step or two above entry level models. 
 
Now I think we'll hold off until this is resolved. So there is a sale that Flir / Fluke / Testo (I hadn't decided which to buy) can forget about for now. 
 
What probably needs to happen is for all 5 major players in this game - Flir, Fluke, Testo, ASHI, and InterNACHI each set aside 20% of what it takes to mount an offensive to stamp this thing out. 
 
Start by retaining lawyer(s) to prepare for battle. Locate the examples of prior art needed to defeat this nonsense. Have a team ready to rock and roll whenever and wherever HomeSafe crawls back out from under its rock. 
 
Fund this with a slight dues increase to the two major inspection organizations and a small bump in IR camera prices. 
 
In a somewhat similar vein, WaterFurnace charges us $30 or so for each water source unit we purchase as a lobbying fee to preserve the big federal tax credit. I present that as an example, not an invitation to debate the credit.
Posted @ Tuesday, September 03, 2013 7:27 AM by Curt Kinder
David B.: If you read further comment #14, you'll see that Gromicko posted on 27 August: "I met with Home Safe and the other patent owners today. The lawsuit will be withdrawn tomorrow." I didn't realize until I got into this that there are two Gromicko's in InterNACHI: Nick and Ben. Kurt on that board called him Nick, so that's why I used his name in my article rather than Ben's.
Posted @ Tuesday, September 03, 2013 7:30 AM by Allison Bailes
I agree with what Curt said above about the major vendors banding together on this. Do you think RESNET and BPI might also consider joining this fight? After all, isn't it the case that those organizations are in the business of prescribing protocols (processes) in support of their standards that directly run into conflict with this patent? 
 
IMHO, trying to make patent enforcement into a regular revenue stream, and hijack an entire industry as a side effect, is a very, very bad business practice that's only doomed to backfire in the end. 
 
And one more thing...if I wanted to steady my camera, why wouldn't I just use a tripod, instead of that silly looking racing-horse collar? :-) 
 
~ John
Posted @ Tuesday, September 03, 2013 7:48 AM by John Poole
I recently received that email from ASHI. I do recall this issue being discussed quite sometime ago. I believe about the time I bought my IR camera. It boggles my mind that anyone, a company would devote some much time, money and effort to such an endeavor. Resources that could I certain be better applied to improving their business in a more traditional sense.  
I also have to agree with ASHIs assessment of the payoff by Gromicko. I am not not all that surprised at his actions or his organization's. 
I would hope that someone with the resources to stand up to these patent trolls sends them back underground.
Posted @ Tuesday, September 03, 2013 8:13 AM by James Quarello
Curt K.: I agree. The camera makers certainly should be fighting this because I believe they're probably the real target. I'd also be wary of buying an IR camera until this gets sorted out. 
 
John P.: Yes, ASHI, InterNACHI, RESNET, and BPI all have a stake in how this issue plays out. I agree that it's a bad business, but I'm not sure it's doomed to backfire. Nathan Myhrvold and his ilk have been skimming a lot of money off the top of the tech industry for a while now. Yes, I think a tripod would be more stable.  
Posted @ Tuesday, September 03, 2013 8:16 AM by Allison Bailes
In our business if we are tying to solve a problem of an excessively damp crawlspace I think we have all learned that a drain around the inside of the space is not the answer to that problem. We need to stop the moisture from entering in in the first place. 
Similarly, in this case the place we should be looking is at the real cause of the problem, a broken patent system, badly in need of revision. 
Yes, rational and angry people need do stand up to the scum-bags who are so seriously attacking our free enterprise system, but we also need to pressure Congress to make the necessary changes in the patent office as rapidly as possible. 
As one who could be directly affected by the likes of HomeSafe Inspections, I am today writing letters to my congressional representatives, and I hope everyone else reading this will do likewise.
Posted @ Tuesday, September 03, 2013 11:07 AM by John Ring
James Q.: I hope so, too, and I think it's really in the court of the camera makers and professional associations (ASHI, InterNACHI, RESNET, and BPI). 
 
John R.: True. The tech industry, with all its billions of dollars, hasn't been able to get rid of the cause of the problem after 15 years, but maybe the tide is about to turn.
Posted @ Tuesday, September 03, 2013 11:32 AM by Allison Bailes
Allison, 
 
I noticed that one of the related articles you linked is about using snow as a substitute for IR. Let's stick together on this so it isn't our only choice.
Posted @ Tuesday, September 03, 2013 11:48 AM by Bill Smith
Bill S.: OK, I changed it out for another.
Posted @ Tuesday, September 03, 2013 1:15 PM by Allison Bailes
I also listened to that piece on This American Life.  
 
I suppose we'll get some relief on this if we can figure out how to put the screws to wall street traders, hedge funds, and banks with obvious idea patents. Get right on it, would you..
Posted @ Wednesday, September 04, 2013 1:51 PM by greg lavardera
As an AEE member and a Level 2 Certified Thermographer, the only advice I can offer isn't going to sound very professional.... HomeSafe is a "bully" - they are using the legal system to shake-down small businesses! Bullies are lazy and don't like pain. Pain comes in many flavors, but for the sake of brevity, let's discuss financial & physical remedies. The big companies can band together and develop a legal defense fund to take on both the perpetrators and the Patent Office: full frontal assault! The only winners are the "whores" who are called in to clean-up after the last group of "whores". 7 digit$ later, you MAY have positive results. Another avenue is a good old-fashioned beat-down! We are not talking murder, just using the Human body's ability to use pain receptors to deliver a message directly to the area of the brain responsible for long-term memory. The caliber of this audience should be able to fill in the blanks.
Posted @ Wednesday, September 04, 2013 8:26 PM by Don Bosworth
greg l.: Good point. There may be a glimmer of hope in this case, though, because I don't think the patent trolls have the same kind of pull in Congress that Wall Street has. 
 
Don B.: Violence is not a solution to the problem.
Posted @ Thursday, September 05, 2013 11:56 AM by Allison Bailes
I am on the ASHI task force that is looking at this issue. I can assure you we are talking to the manufactures as well as the schools, we are also going to be contacting several others including RESNET and BPI.  
WE are putting together a coalition to determine the best way to resolve this issue. We are also working with our lobbyist.  
 
This could cost a great sum of money and I'm sure the manufactures will be donating large sums, we will also allow individuals to make donations.  
If we could get every person that uses IR to donate $1-200 then we would have a pretty good war chest.  
 
After the battle is over and the smoke has cleared, any money left would be donated to charity so no one thinks any of the parties are making a profit off of this. 
 
ASHI tried to address this in 2011 but it stalled as the plaintiff had not filed a suit so the manufactures decided to wait. That has now changed so we are working on it again. 
 
Stay tuned, we will try to keep you informed. 
 
Scott Warga 
ASHI Vice President 2013
Posted @ Thursday, September 05, 2013 8:41 PM by Scott Warga
Searching HomeSafe in MS doesn't indicate they have an active business. I am outraged at their affront to the livelihood of hard working auditors. Even though I don't have bags of money, I would help fund a challenge to their patent. You are right that this type of activity must be discouraged.
Posted @ Friday, September 06, 2013 11:09 PM by Colin Genge
whaaaa
Posted @ Friday, October 04, 2013 3:17 PM by dale
I have the solution for all of us infrared camera inspectors - I am a sales rep for Legal Shield - call me. You get $500 an hour lawyers for $39 a month flat rate. I know. I have saved 1000s already. use my email kurt at ifimissitifixit dot com.
Posted @ Monday, December 02, 2013 11:19 PM by Kurt Shafer
I've now read one of their patents closely and don't see a problem with their enforcement of their invention, which is new, useful, and non obvious. Articles such as this are naive because they don't tell enough about the breadth of claims in the patent, which the inventors are restricted to in their enforcement. They never claim to have invented the assessment of buildings, homes etc. with IR, only the very narrow, and specific method they teach. That method does have some value. If someone can show they were practicing it prior to the patent filing date or date of inception, they have little to fear.
Posted @ Wednesday, January 08, 2014 10:36 AM by Robert J Crowley
Robert C.: I also read their patents closely and believe you're the one being naive. Maybe you should read what I wrote above more carefully. If that's not enough, go read the long discussion of this topic that happened in the LinkedIn RESNET BPI group around the same time I wrote this article.
Posted @ Thursday, January 09, 2014 7:47 AM by Allison Bailes
For the record, I am not a patent expert, even though I have some patents. I am concerned when people like Mr. Crowley say "their invention is new, useful, and non obvious". I see their invention as old, useless and obvious. I would hope that all posters would please tell us your qualifications. I have none except that I own a FLIR and have concerns.
Posted @ Thursday, January 09, 2014 9:23 AM by Kurt Shafer
Just spoke with a salesman with an environmental testing company who met the President of Homesafe Inspections and later talked with a patent attorney he knows. I am told that these patents are, indeed, real and could be of great concern. The salesman I spoke to is going to buy Legal Shield legal protection from me.
Posted @ Thursday, January 09, 2014 2:10 PM by Kurt Shafer
The latest info I get from ASHI and NACHI is that NACHI has a license to protect their members. In a related conversation I was told that NACHI bought the patents. That is not confirmed. If you have any way to confirm the facts, please write.
Posted @ Sunday, January 12, 2014 8:34 PM by Kurt Shafer
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