The Walt Disney Company and its Parks & Resorts division are defendants in a lawsuit over the Genie and Genie+ services, with the plaintiff alleging patent infringement. (That’s right, someone is claiming ‘credit’ for this mess being their original idea!) This post covers the complaint and offers our commentary about what this means for the future of paid FastPass, Lightning Lanes, and other aspects of Walt Disney World’s and Disneyland’s itinerary builder.
Let’s start with the basics. The Walt Disney Company is being sued in the U.S. District Court for the Middle District of Florida Fort Myers Division by the Glendale, California-based Agile Journeys, LLC. The plaintiff is alleging infringement of U.S. Patent No. 7,212,983 (the ‘983 Patent), which was issued to Agile Journeys in 2007. The patent prosecution process was initiated in 2001 and named William Redmann and Michael Eaton as co-inventors.
The big twist–and what makes this more interesting than the parade of minimally meritorious lawsuits filed against Disney–is that Redmann and Eaton both previously worked for Disney. Eaton worked as a marketing supervisor in the Walt Disney Resort division from 1990 until 1997, where he packaged tourism products and marketing materials for Walt Disney World and Disneyland.
Redmann’s backstory is even more fascinating. He worked at WED Enterprises as a show designer at EPCOT beginning in 1982. He later worked at Walt Disney Imagineering (WDI) in Research and Development from 1988 until 1993, where he developed new ride technologies.
Redmann also worked as a Director of Technology for WDI from 1995 until 2000, where he worked on DisneyQuest and developed technology-centric attractions. Redmann is also named as inventor or co-inventor on more than 80 issued United States Patents, including 12 such patents assigned to Disney.
The two met after leaving Disney, while working together at a health care company. After leaving those roles, they began discussing solutions to problems they perceived in conventional theme park experiences. The solutions they created became the basis for filing the application for the ‘983 Patent in mid-2001.
In a nutshell, their patent was aimed at addressing “information overload” that infrequent theme park visitors frequently experienced when visiting the parks and consulting voluminous guide maps. Their patent was essentially for an enhanced itinerary generator, as contrasted with the rudimentary itinerary generators they acknowledge already existed at the time.
This personalized itinerary builder covered by the ‘983 Patent collects information about a party, its interests, and then creates a plan based on how well each attraction matches the user’s preferences. According to the complaint, the personalized itinerary generator of the ’983 Patent “takes multiple variables into account, including how long it takes to walk between attractions, how long lines are expected to be, and whether the party has preferential access.”
“In this way, and in contrast to the traditional itinerary generators mentioned above, the system of the ’983 Patent largely or completely obviates the need for a visitor to learn about the park in advance, while still providing the user with a way to enjoy a personalized selection of attractions and experiences. Additionally, the personalize itinerary generator can be dynamic, adjusting in real time to scheduling changes and unscheduled attraction closures, for example.”
While not entirely material to a succinct synopsis of the lawsuit, I thought the section about FastPass was interesting, and touches upon some of its pros & cons that we’ve previously discussed. From the complaint: “The ’983 Patent also discusses Disney’s FASTPASS® system, recognizing problems in such virtual queue reservation systems. In particular, the ’983 Patent notes that such systems required visitors to visit a kiosk or terminal to obtain a reservation for an attraction. Thus, while the system did reduce overall wait times, it favored experienced visitors over first-time or infrequent visitors.” (Emphasis added.)
“A disadvantage of [FASTPASS] is that the visitor must either know to visit an attraction to claim a spot in the virtual queue…or they must know what attractions to select from the terminal. It may well be the case that a novice visitor has little or no idea where specific attractions are located (and thus is frustrated in trying to arrive in person to make a reservation). It can also be the case that he is not familiar with the array of attractions available, and thus cannot quickly and efficiently make knowledgeable attraction selections.”
The complaint goes on to discuss the knowledge differential between first-timers and frequent visitors, and how this is a key shortcoming of virtual queue systems like FastPass. Among other things, their patent sought to close the gap, reducing the advantage of veteran visitors and the frustrations of first-timers.
As we’ve pointed out repeatedly, this has been a longtime goal of Walt Disney World in modifying its various virtual queue (FastPass, FastPass+, Genie+, etc.) systems. Longtime Walt Disney World fans often fail to understand or account for this, as the past systems have worked to their advantage so they (wrongly) assume everyone else loved those systems, too.
However, most regular readers of this blog are not first-timers or infrequent Walt Disney World visitors who were disadvantaged by the various iterations of FastPass. Queueing is a zero-sum game. Since none of these systems change capacity, every time you “win” someone else “loses.” (Again, not super essential to the litigation at issue, but I thought it was interesting to see this spelled out in the patent and this lawsuit.)
The lawsuit continues to describe the ‘983 Patent and its goals. The complaint repeatedly claims that the patent’s concepts cannot be considered “conventional, well-understood, or routine.” It uses this specific verbiage because that’s a test for patent eligibility.
The complaint also shows how this worked in practice, with images of the itinerary builder running on a Palm Pilot and configured for Universal Studios Hollywood. What’s pictured (see below) looks like a rudimentary version of the free Genie itinerary builder offered in the Walt Disney World and Disneyland apps.
In 2001, when applying for the patent, this would have been a revolutionary product operating on Palm Pilots. This would’ve pre-dated third party itinerary builders for Walt Disney World by several years, and been an excellent early version of how similar technology would eventually evolve.
To be frank, over two decades later, the lawsuit and patent at issue sound like exactly what you’d expect any dynamic software to accomplish. When you think about it, this is pretty ubiquitous in myriad phone apps. For example, Google Maps offers similar options to customize a route, with the user inputting preferences (e.g. avoid tolls, preferred public transit methods, departure time, etc.) Today, the concept of a personalized itinerary generator is very much “conventional, well-understood, or routine.”
With that said, there is one point at which things get interesting: “the ’983 Patent proposes improvements to the technology of itinerary generation that allow a theme part to spread demand for its attractions through mechanisms that moderate demand for popular attractions and create demand for underutilized attractions.”
The ‘983 Patent describes this as a “synthetic aversion factor” that “lowers the desirability of inserting an event into an itinerary having a time in that interval for that attraction. When the capacity for an attraction during a particular interval has been reached,
the synthetic aversion factor is such that the attraction is utterly undesirable.”
Stated in plain language, the ‘983 Patent offered park operators the ability to redistribute crowds and demand by sending guests to unpopular attractions. It could “load balance” (to borrow a popular term of Disney execs) among attractions to normalize demand. It does this by prioritizing unpopular rides and deprioritizing popular ones, with that presumably being accomplished via wait times and in-app marketing.
If Genie is good at anything (debatable), it’s this. That’s very charitable, as the standard Genie itinerary builder isn’t actually good at anything–it’s even bad at this by being so blatant and incessant with bad recommendations. Nevertheless, Genie does try its darndest to send guests to unpopular attractions regardless of their stated priorities and what is actually an efficient use of time.
The lawsuit then goes on to rehash how Walt Disney World and Disneyland marketing describe Genie, none of which is particularly interesting or illuminating. You undoubtedly saw all of that last year when the Genie, Genie+ and Lightning Lanes were announced and rolled out–this is already long, so I won’t rehash that here.
There is one interesting tidbit amongst the marketing, which is that the litigation cites our article: “Review: Disney World’s Free Genie Itinerary Creator.” While I’m quite flattered to have made it big by being referenced in a lawsuit against Disney, the substance of that article is what’s amusing here. That review absolutely eviscerates Genie, calling it “useless” and its recommendations “total nonsense.”
It’s humorous to me that someone would read that article and say to themselves, “this useless product sounds a lot like a useless product that I invented–I should sue!” If I invented something similar to a sucky service like Genie, I would issue a press release distancing myself from it and demand that Disney go on record to acknowledge that they did not, in fact, steal my idea. I certainly wouldn’t claim that a company ripped off my patent for a truly terrible product. But that’s just me.
Another interesting excerpt comes from the infringement allegations, in which Agile Journeys claims that “Disney markets, sells, and/or uses other products and services that are not covered by the claims of the ’983 Patent but that are used or offered with the Disney Genie program and/or that benefit Disney in ways at least attributable in part to the Disney Genie program. Accordingly, Agile Journeys is entitled to collect damages from Disney for convoyed sales of certain non-patented products and services.”
Up until this point, the complaint had largely (if not entirely) revolved around the free Genie itinerary generator and not Genie+ or Lightning Lanes. Here is where Agile Journeys pivots, likely cognizant of the reality that it has a better claim for damages if asserting that sales of Genie+ and Lightning Lanes are, somehow, attributable to the free Genie service.
I guess my angle would be that Genie sucks so much that people are left with no better option than to pay for the non-sucky version. It’s unsurprising that the inventors of the (allegedly) infringed-upon invention are not claiming that Genie sucks, though.
Also interesting is that the plaintiffs allege that Disney has actual knowledge of the ‘983 Patent in a number of ways. This is thanks to email correspondence between employees at Disney and the inventors, albeit with almost all exchanges occurring in 2002. There’s no reason to believe the emailed individuals are even still with Disney, let alone developed the Genie software. (I will testify in court, under oath, that I have reason to believe the Genie itinerary generator was built not by human engineers, but by drunken chimpanzees.)
Moreover, Disney filed its own patent for “Method, System and Computer Program Product for Providing Real-Time Recommendations” that was rejected as unpatentable due to the ’983 Patent. Disney subsequently modified and resubmitted this application, and was rejected again.
Consequently, Agile Journeys is seeking a judgment that Disney infringed upon the ‘983 Patent, requiring Disney to pay it
enhanced damages for willful infringement and reasonable ongoing royalties, among other things. Agile Journeys also sought a jury trial.
For its part, the Walt Disney Company has not yet answered the complaint (that likely won’t happen until 2023–the complaint was just filed this month). Assuming the Middle District of Florida’s electronic court docket is accurate, Disney’s attorneys haven’t yet filed an appearance in the case or anything else.
Before we delve into some commentary, I want to offer the colossal caveat that I have zero practical experience with patent law. I did take an Intellectual Property course in law school over a decade ago, and that’s literally the extent of my expertise here. From that, my biggest takeaway with regard to patent law was: holy cow, I cannot practice this.
Good patent attorneys typically have science or engineering backgrounds, whereas most general practice lawyers have ‘underwater basket weaving’ concentrations (in my case: political science, sociology, philosophy, bioethics, and other assorted nonsense of that nature). Patent law is a highly technical and specialized area of practice.
Suffice to say, it’s not common for attorneys to simply ‘dabble’ in patent law; the ones who don’t do it typically have little more than a cursory understanding of it. I mention this not just as a disclaimer, but also because it’s relevant with regard to the litigation. Since patent law is such a niche, infringement claims are incredibly complex, expensive, and time-consuming to defend.
This has resulted in a cottage industry of “patent trolls,” which are commonly enterprises that purchase patents and defend them aggressively against infringement, both realistic and improbable. Many of these patents did not warrant any protection in the first place, but examiners at the United States Patent and Trademark Office are overworked and typically have less than 20 hours to scrutinize applications. This frequently results in the issuance of patents of dubious merit and legal validity. Even if an underlying patent is high-quality, it’s often the case that the perceived infringement is exaggerated, tenuous, or entirely nonexistent.
Because of the aforementioned costs of litigation, settling with patent trolls is an incredibly common outcome–even in cases that might otherwise be totally frivolous. While I don’t have firsthand experience with patent litigation, I have done a lot of litigation risk analysis, and this case raises a couple of immediate red flags for Disney.
Beyond all of the above, the degree to which novel technology is involved would be cause for concern. Courts are really bad with technology; not to be ageist, but judges tend to be older and are often ‘technologically-challenged.’
I doubt this is some big secret–you’ve probably seen CEOs from Big Tech testify in front of the U.S. Congress and heard the clueless questions they’ve been asked. It’s the exact same idea here, except with judges, juries, and inconsistent results. Consequently, intellectual property law is full of precedential cases that are viewed by legal scholars as poorly decided or reasoned.
Then there’s the court where this complaint was filed: the Middle District of Florida. According to a PricewaterhouseCoopers patent litigation study, this is the court with the highest probability of success for patent plaintiffs in the entire United States, at 55%. This is more than double the median plaintiff success rate. In other words, forum shopping is why Agile Journeys chose to file in the Middle District of Florida rather than Southern District of California–or any other court.
Right off the bat, these are a few reasons why Disney might opt to settle this case. Additionally, Disney may not want aspects of its Genie and other virtual queue systems entered into the public record. There’s the outside possibility that explaining the nuts and bolts of Genie (e.g. inflated wait times, poor recommendations, etc.) could give rise to consumer, class action litigation.
Conversely, Agile may not want this lawsuit to drag out. Although the cost of lengthy litigation is a reason why they might have filed in the first place (in hoping to pressure Disney into a speedy settlement), it’s safe to assume Disney has considerably more resources and legal might that they can bring to bear. Agile might be banking on a quick outcome, cognizant of the fact that they cannot fund multi-year litigation against Disney.
As for the substance of the litigation, I’m reluctant to offer legal analysis for the reasons noted above. When it comes to this case, I have just enough knowledge to be dangerous–there’s a reasonably high probability that I’ll misstate or misapply the relevant tests.
With that said, and to the best of my knowledge, the relevant recent precedent here is CLS Bank International v. Alice Corp. There, the court ruled that an abstract idea does not become eligible for a patent simply by being implemented on a computer. This case has been used to invalidate hundreds of overly-broad software patents, many of which never should’ve been issued in the first place.
This has included many cases involving internet mapping, which is why we used the Google Maps example above. To that point, both Microsoft and Google have successfully relied upon Alice to defend against patent infringement claims to their online mapping software. (Both companies have also settled numerous claims filed by patent trolls.)
To be sure, we are not claiming that Agile Journeys is a patent troll. Its history and that of the patent inventors indicates the opposite. However, the underlying litigation does suggest an attempt to extract a settlement using an abstract software patent claiming ownership of widespread internet technology.
I have a difficult time conceiving of any of this as patent-worthy, as it instead appears to offer a method of organizing human activities in a non-inventive way. This generalized type of computer-implemented method is so conventional and commonplace now that Agile Journeys may have made a miscalculation by revisiting a circa-2002 patent.
Ultimately, the “outcome” here might depend less on legal precedent and whether the Walt Disney Company actually infringed upon the ‘983 Patent and more on litigation risk analysis. Disney may want to avoid a lengthy legal battle for any number of reasons, only some of which are touched upon here.
Of course, the outcome many of you may want to see is Agile Journeys prevailing, if only because it might force Disney’s hand to end Genie+ and Lightning Lanes. I won’t call that an “impossible” outcome as the last few years have taught me that anything is possible–and stranger things have certainly happened–but it’s definitely a highly improbable one. If Disney does settle or even if they lose, they likely won’t have to abandon the Genie system. (At some point, it might be advantageous for Disney to voluntarily abandon Genie, and perhaps this lawsuit could serve as a convenient pretense for that…)
Settling this case won’t necessarily mean that Disney is conceding that it infringed–or even that the company thinks Agile Journeys would prevail in court. Patent infringement defenses and attempting to invalidate patents is an uphill battle, and one that’s extremely expensive and time-consuming. It requires high-priced expert testimony, lengthy reports that can undermine claims, and years of litigation. Even then, there’s substantial risk whenever a jury trial is involved. Regardless, we’ll keep you updated on what happens here (if it’s anything other than a quick settlement) in the months and years to come.
If you have questions about the basics of using–or not using–the paid FastPass service, see our Guide to Genie+ at Walt Disney World & Lightning Lane FAQfor all of the foundational need-to-know info. This whole system is confusing and convoluted, so you might have a question or two-dozen. That answers all of the most common ones we’ve been receiving from readers.
What do you think of the Agile Journey’s lawsuit alleging that Walt Disney World and Disneyland infringed on its patent with the Genie system, and are profiting from it via Genie+ and Lightning Lanes? Think this is frivolous or meritorious? Hopeful that, regardless of the legal basis for success, this “forces” Disney to abandon the Genie system? Thoughts on anything else covered in the complaint or our commentary? If you’re a patent attorney, care to offer any legal analysis of the case? Any other considerations we failed to take into account or details we missed/got wrong? Do you agree or disagree with my assessment? Any questions we can help you answer? Hearing your feedback–even when you disagree with us–is both interesting to us and helpful to other readers, so please share your thoughts below in the comments!