On September 23rd, Yoga International broke the news that they (among others) had received a cease-and-desist letter from another website which also offers yoga videos for streaming (soon revealed to be YogaGlo). It turns out, that YogaGlo had filed a patent application for their method of filming online yoga classes, and that some of YI’s early content fell under the broad description in the patent application:
“...instructor at the head of the classroom with live-participants arranged between the instructor and the camera with a direct line of sight between the camera and the instructor allowing for the viewer participant to have unobstructed views while simultaneously allowing for the viewer participant to have live participants in the periphery, as if the viewer was attending a live class."
“We quickly realized the implications of this patent,” says Yoga International Executive Director Todd Wolfenberg. “It is a landmark issue that impacts the future of how yoga is delivered, which increasingly includes online and video study. And if YogaGlo can patent one way of filming a class, pretty soon all possible angles could become patented. So this this isn’t just about us, it’s really about the entire community and the future direction of yoga.”
The response was initially—well, intense. Teachers and students alike were quick to comment, and took to both Yoga International and YogaGlo’s Facebook pages to express their concern and confusion. Many announced that they were cancelling their accounts with YogaGlo. As word spread, blog posts popped up on YogaDork and Elephant Journal addressing the patent application. Soon,Yoga Alliance stepped in to take action as well, creating a petition (which received over 14,000 signatures) urging YogaGlo to voluntarily withdraw the application.
Though the initial response was strong, the public outcry eventually died down. While many were offended by the audacity of the patent application, citing it as predatory, frivolous, or just an affront to yogic principles in general, the all around consensus from its critics seemed to be that the patent was too broad and far-reaching to ever be issued. Eventually, the outrage died down, and so did the blog posts and comments.
I mean, honestly, none of us really thought YogaGlo’s patent would be approved right? Except for it was.
I mean, honestly, none of us really thought YogaGlo’s patent would be approved right? Except for it was. Wait, what? Uh-huh. In case you missed it, Yoga Alliance broke the news today—the day the patent was issued.
As you might remember from a couple months back, YogaGlo applied for two really similar patents. Initially, both were rejected by the U.S. Patent and Trademark Office (USPTO) based upon the existence of “prior art”—which is essentially evidence that the thing a patent is filed for already existed before said patent was filed. On October 7th, however, YogaGlo amended one of its previously rejected patent applications, adding the following caveat:That the camera used to record online yoga classes must "provide a participatory view [which means ‘a view observed by a participant in the rear of the class,’ according to YogaGlo] from a height of about three feet."
Apparently, that did the trick. On October 29th, the patent was approved.
US patents can be a tricky business. In fact, Last Thursday (December 5th), the U.S. House of Representatives approved a bill targeting “patent trolls” (also known as patent assertion entities)—companies or individuals that license or buy patents from others so that they can enforce the patent and collect licensing fees, even though the enforcer themselves does not make products or offer services that relate to the patent in question. (A similar measure is currently being considered by the senate.)
This particular bill does NOT apply to, and would not affect the YogaGlo situation. The patent that YogaGlo has been issued directly relates to a product/service that they DO offer, and no matter what you might think about YogaGlo’s business ethics, it is not appropriate to refer to them, or President Derik Mills (who could not be reached for comment for this article) as “patent trolls.”
What we CAN perhaps take away from this though, is that there is a disconnect between how and why many Americans feel patents should be issued/enforced, vs. what is actually going on—so much so that the majority of our representatives (the House bill passed 325 to 91), and even the White House (which this past June, called for action against frivolous patent lawsuits), see a need for reform.
“The community reacted negatively [to the YogaGlo patent],” says Yoga Alliance President and CEO Richard Karpel. “Patent law is complicated. Most people don’t know exactly what’s patentable and what isn’t, but I think people just had a gut reaction about this—that a method for video recording a live yoga class isn’t something that should be patentable.”
So is that it? Is it all over? Yoga Alliance says “not so fast.”
In a statement issued today, Karpel says that:
“Under U.S. patent laws, applicants must apply for a patent within one year after they initially use their invention in the normal course of business. We have learned that video material on YogaGlo's own website predates its original filing on Aug. 27, 2010 by more than one year, and duplicates the system and method of recording a yoga class that YogaGlo is trying to patent. That video material clearly constitutes prior art that invalidates the claims in YogaGlo's patent and renders it unenforceable.”
So what does this mean exactly? It means that while the patent was issued, Yoga Alliance believes it to be unenforceable, and they intend to prove it.
Last September, Yoga Alliance’s stance against the YogaGlo patent, and the petition that followed came as a surprise to many. In the past, Yoga Alliance has had a reputation among its members for... well, not really taking a stance on much of anything, but it appears as though that’s quickly changing.
But why this? Why now? “Because it’s a matter that’s of importance to our members,” states Karpel. “The yoga community looks to us for representation, and we are at the best position to be able to represent teachers, schools, and studios on this issue.”
While some have accused critics of the YogaGlo patent as being anti-business, Karpel assures us that’s not Yoga Alliance’s intent. “We have nothing against patents,” he assures. “Yoga Alliance supports intellectual property; we understand what it means to devote a lot of work to an idea and to have someone take it, we get that.This particular patent that YogaGlo is applying for though doesn’t seem to us to be that kind of idea that needs that kind of protection. It’s an obvious idea. It just shocks the conscience that someone could actually get a patent and prevent someone else from [executing an] idea that is that simple. Even if YogaGlo was the first to come up with this idea—and there are people that contest that—but even if they were, it’s not the kind of idea that deserves legal protection.”
So how will the YogaGlo patent affect individual teachers? Should we be concerned that we might be in violation of YogaGlo’s patent? If so, what should we do? “If teachers are filming live classes, yes, they should be concerned,” says Karpel (who himself holds a Juris Doctorate from Chicago-Kent College of Law). “My recommendation would be, number one, follow this case, because ultimately, if this patent is not enforceable—and we think it won’t be—then they have nothing to worry about. But if it is enforceable, then if you’re going to film a live yoga class, you’re going to have to get an attorney to read the patent claim so that you understand exactly what it is, and to make sure that you’re not violating YogaGlo’s patent, because certainly if you do, you’re going to hear about it from YogaGlo.”
You heard that right. If the patent is indeed enforceable, that could mean having to consult a lawyer before you film yourself teaching. Yikes! Who wants (and who can afford) to do that?
You heard that right. If the patent is indeed enforceable, that could mean having to consult a lawyer before you film yourself teaching. Yikes! Who wants (and who can afford) to do that? Ultimately, I think that speaks to the reason why this patent rubbed so many of us the wrong way in the first place—the implication that money and access to lawyers should dictate who does and doesn’t get to share their teaching online.
At this point in time, Karpel doesn’t see huge implications for the community in general, “but if the patent was to be enforceable, I think it probably would raise questions in the minds of other online yoga providers to start thinking about whether or not they need to patent any obvious ideas.”
While Karpel couldn’t tell me specifically how Yoga Alliance plans to take action at this time, he assures that action will indeed be taken. “There’s a number of different options,” he says, “we just don’t know yet which approach we’re going to take. What I can say is that we are committed to doing what we can to defeat the patent. We’re committed to representing the yoga community’s interests on this issue, and we’ll do what it takes, and devote the resources needed to do it.”
ABOUT Kathryn Heagberg Kat Heagberg is the former managing editor of Yoga International, and currently lives, practices, and teaches in Portland, Oregon. Kat began teaching in 2005, and has completed the Himalayan Institute's 500-hour teacher training; numerous 200-hour teacher trainings, including those in the styles of Alignment-Based Vinyasa, Alignment-Based Hatha, and Anusara Yoga. Kat is also a student of the ParaYoga tradition. Additionally, she has completed Prenatal teacher training with Sue Elkind, and doula training at Birthingway College of Midwifery. She especially enjoys geeking-out on anatomy, philosophy, and Sanskrit, and is currently working on a degree in English Literature.