The Patent That Stifled Sextech Startups Has Expired, but There Could Be More Trouble Ahead

In 1998 – before Google, Facebook, or before any of the internet giants became giants – a patent was filed in the US (US6368268) by a company called HasSex that covered “a method and device for interactive virtual control of sexual aids using digital computer networks.” In 2002, the patent was granted, and in the intervening years, it transferred ownership to Tzu Technologies.

Unfortunately, Tzu Technologies didn’t have big plans for the sextech sector, and instead set out to sue nascent startups – filing suit in 2015 against Comingle, Holland Haptics, Vibease, Internet Service, Frixion, and Winzz. It lead to the demise of most of these companies, with the exception of We-Vibe, which appears to have come to a licensing agreement.

The inhibitive effect of patent trolls isn’t one that needs to be explained in great detail – what fledgling company can afford to counter spurious infringement claims or license the patent out of the gate without being able to prove any sort of product demand and market fit? Very few.

As such, the teledildonics market remains dominated – at least in the US – by around three companies, which also seem to be the three companies that could afford to license the patent in order to go ahead with product launches. On August 18, 2018 that patent will lapse, and can’t be extended. So will this lead to a flood of new products to the market in the coming months? Kiiroo, a Dutch company that licensed the patent when it was owned by HasSex, doesn’t think the patent had much of an effect on sextech innovation, and as such doesn’t think the expiration will help smaller companies much.

“[No,] we don’t think there will be much change. Hassex was always very open to working out licenses with everyone, so we don’t think there will be many new companies popping up soon,” a spokesperson for Kiiroo told SEXTECHGUIDE. However, as a successful licensee of the patent, it likely has a different outlook than startups trying to build their first products.

Kyle Machulis, founder of the open source teledildonics platform Buttplug.io, thinks differently.

“The teledildonics patent had a chilling effect on the sex tech industry. If you licensed the patent but opened access to your toy, then what good was the patent in the first place? So manufacturers closed up access, which is why I needed to create Buttplug and give that access back to customers, so they could make their toy do whatever they want,” Machulis told SEXTECHGUIDE. “As for indie developers, there really aren’t that many right now. Teledildonics haven’t been very easy to create, because you have to worry about both ‘talking’ over a network and ‘talking’ to hardware, and synchronizing those two tasks is really difficult. Buttplug was partially made to fix some of the difficult and boring parts of that, but we’re still wrestling with a lot of those problems ourselves.”

Nonetheless, that’s the past and the future is rosy, right? Maxine Lynn, sex tech lawyer at Unzipped Media, was bullish about the future for smaller companies in an interview with FutureOfSex.

“Established teledildonics companies have been operating over the last several years, even in the face of the ‘268 patent. I believe that after the patent expires in August of 2018, such companies will expand their businesses at an increased pace in light of a more open pathway. In addition, we’re going to see more startups enter the field. They won’t have this patent looming over them, knowing what it has meant for the startups that came before them.”

But Machulis doesn’t really see it that way. Rather than believing it’ll bring about a new wave of innovation and innovators, Machulis thinks that the general difficulty in getting any sextech product to market will push creators towards patenting their own technological combinations, “especially since sex toys will be combined with other interactive technologies now that have their own patent issues. ‘Sextech + VR‘ is gonna be a big deal, and means there’s gonna be both sextech patents and VR patents to contend with.”

“It’s going to be difficult to say how the industry will move, but I feel like there’s a lot of fear in general there,” Machulis told STG. “Sex toys are not well understood products, and those producing them, especially sex tech products, may not have a good understanding of the tech side of things either. That’s why I think there’s been a run on new patents lately, so even if platforms are faulty, there’s legal protection, much like the Teledildonics patent gave.”