This Captcha patent is an all-American nightmare
Stupid Patent of the Month
A newly formed patent troll is scouring small business websites for big bucks just to use free, out-of-the-box login verification tools.
Defenders of the American Dream, LLC (DAD), sends its request letters to websites that use Google’s reCAPTCHA system, accusing them of violating U.S. Patent No. 8,621,578. Google’s reCAPTCHA is just one form of Captcha test, which describes a wide variety of testing systems websites use to verify human users and keep bots out.
DAD’s letter tells targeted businesses that DAD will accept payment of $ 8,500, but only if “the license conditions are accepted immediately.” The threat escalates from there. If anyone dares to answer that DAD’s patent may not be infringing or invalid, the costs will be at least $ 17,000. Yes DAD’s patent is the subject of a court challenge, DAD says they will increase their claim to at least $ 70,000. In the footnotes, DAD informs its targets that “non-profit entities are eligible for a discount”.
The DAD request letters we reviewed are almost identical, with the same pricing structure. They reflect the one filed by the company itself (with the price structure drawn up) as part of their trademark application. This formal notice campaign is a perfect example of the failure of the US patent system to advance software innovation. Instead, our system allows for exorbitant behavior like DAD’s explosive pricing structure.
Dad did not invent Image Captcha
DAD claims to have invented a new and patentable image-based Captcha system. But there is ample evidence of image-based Captcha testing that predates DAD’s 2008 patent application.
The term “Captcha” was invented by a group of researchers at Carnegie Mellon University in 2000. It is an acronym, denoting a “fully automated public Turing test to distinguish between computers and humans.” Essentially, it prevents automated tools like bots from accessing websites. Such testing has been important since the early days of the Internet.
Early Captcha tests used wavy lines or wavy text. The same group of CMU researchers who invented “Captcha” then worked on a version of image selection they called ESP-PIX, which they had published and made public by 2005.
In 2007, Microsoft had developed its own categorization of Captcha images, which used photos from Petfinder.com, then asked users to identify cats and dogs. At the same time, PayPal was working on new captchas that “might look like simple picture puzzles”. It was no secret: researchers from both companies spoke to the New York Times on their research, and Microsoft has filed its own patent application, more than a year before that of DAD.
There is also evidence of Captcha testing based on earlier images in the patent file, such as this early candidacy 2008 from a company called Binary Monkeys. Here is an image of the Binary Monkeys patent:
And here’s a picture of DAD’s patent:
So how did DAD end up with this patent? During the patent pursuit, DAD’s predecessor argued that they had a new invention because the Binary Monkeys app asks users to select “all images” associated with the task, instead of selecting “one image” like in the DAD test. The patent examiner suggested adding another limitation: that the user still has access to the website if they get a “known” image and a “suspected” image.
Unfortunately, adding trivial adjustments to existing technology, such as small details about the criteria needed to pass a Captcha test, can and often results in the issuance of a patent. This was especially true in 2008, before patent examiners had to apply the Supreme Court guidelines of 2014. Alice c. CLS Bank decision. This is why we have called on the patent office to vigorously adhere to the Supreme Court guidelines, and defended Alice’s precedent in Congress.
Where is daddy from?
DAD’s patent was originally filed by a Portland-based startup called Vidoop. In 2010, Vidoop and its patent applications were purchased by a San Diego investor who renamed it Confident Technologies. Confident Tech came up with a “clickable, image-based CAPTCHA,” but ultimately failed to make it into a business. In 2017 and 2018, Confident Tech sued Best Buy, Fandango Media, Live Nation, and AXS Group, claiming the companies infringed its patent using reCAPTCHA. These cases have all been settled.
In 2020, Trevor Coddington, an attorney who worked on Confident Tech’s patent applications, created Defenders of the American Dream LLC. He transferred the patents to this new entity and started sending letters of request.
They didn’t all go to big companies either. At least one of DAD’s targets has been a one-man online publishing company. Coddington’s letter complains about Confident Tech’s failure to market and suggests that because of it reCAPTCHA users should pay, well, him. The letter specifies:
[O]Since Google launched its image-based reCAPTCHA for free, nothing less, [Confident Technologies] was unable to maintain a financially viable business… Google’s effective infringement forced CTI to abandon its operations and return any return on the millions of dollars of capital investment used to develop its patented solutions. During this time, your company obtained and used the patented technology free. ”
Creating new and better Captcha software is an area of ongoing research and innovation. While the lawyers and investors behind DAD have turned to patent threats to make money, other developers are actively innovating and competing with reCAPTCHA. There are competing Captchas based on images like hCaptcha and visualCaptcha, as well as long lists of Captcha alternatives and companies that are try to make Captchas obsolete.
These individuals and companies are all inventive, but they don’t rely on patent threats to make money. They actually wrote some code and shared it online. Unfortunately, due to their real contributions, they are more likely to fall victim to aggressive patent holders like DAD.
We will never patent our way to a better Captcha. Examining the history of the DAD patent – which does not share any code – makes it clear why the patent system is so poorly suited to software.