When Drying Out Buildings, Do You Worry About Mold or Trolls?

A recently approved U.S. patent for drying out building spaces defies common sense and could squeeze builders whose only “sin” is dehumidification.

I love reading Lew Harriman’s stuff; he is a good writer and building scientist. Take, for example, Preventing Mold by Keeping New Construction Dry. It’s a straightforward yet compelling presentation of biology and building science, mold and building materials, and how to dry out new buildings.

The process won’t surprise you: isolate the space to be dried; take moisture readings throughout the drying process; and use mechanical equipment such as dehumidifiers and air movers to accomplish the drying.

Who owns moisture measurement and convection?

So here is the surprise: I read this Harriman piece because it was cited in US Patent 8,567,688 B2. On October 29, 2013, after nearly 10 years of review, “Moisture Reduction and Mold and Moisture Preventative System and Method in Construction” was granted, based on the following claims, which I’ve paraphrased. (In patent law, the “claims” define the protection of the patent. The claims in this case appear surprisingly lacking in any technical terms.)

1. The patent is for a process to prevent mold, mildew, or structural damage, made up of these steps: measure moisture content with a moisture meter; determine need and extent of drying based on a moisture content threshold; run at least one drying device; and substantially seal off the space to be dried.
2. Use moisture content readings, in relationship to the threshold, to decide if drying should be continued or ended.

Can common-sense steps like these really be patented?

Cease and desist the drying!

If that’s hard to believe, an apparent shell corporation called Savannah IP (it incorporated in Oregon on Dec. 16, 2013, a few weeks after the patent was approved) is now serving builders in the Pacific Northwest with Notices of potential patent infringement, letting them know that for just $150 per house, the builders can license its patented drying process.

One might call Savannah IP a patent troll: a person or company that enforces patents against infringers, attempting to collect licensing fees when in fact the person or company (the troll) does not produce the patented item or provide the patented service. Apparently, trolling has long hours: I tried to reach Savannah IP by phone to discuss the patent and their attempts to enforce it, but I have not heard back.

 “A weak defendant”

If this continues, someone is going to call someone’s bluff. Much of this post is based on what I have learned from my longtime friend Hal Bohner, who happens to be a patent attorney.

“Sometimes a patent owner might sue a small entity first before taking on the big guys,” says Bohner. “In this way, he hopes to get a settlement or a court judgment against a weak defendant, and he can then brandish the settlement or judgment against stronger entities. The patent owner might also need to build up his war chest in order to be able to fund the bigger legal battles.”

Should builders go on the attack?

To prevent this sort of misfortune, it is also possible that some entity seeks a “declaratory relief” legal action. Bohner continues: “In this case, an entity who had received a demand letter from Savannah IP [or an organization representing that entity, say a trade association representing a Pacific Northwest builder], would bring a lawsuit against Savannah before Savannah sues anyone. The declaratory relief action would ask the court for a determination that the patent is invalid.”

Another option is for someone to request that the U.S. patent office re-examine the patent.

It’s worth noting that in this specific case, the National Association of Home Builders (NAHB) has reached out to members that might be targeted by Savannah IP and offered general legal information. A recent NAHB press release also supports legislative change to curb patent trolling.

Maybe the big guns will fire first

I wouldn’t be surprised if a big gun in the business of drying out buildings (such as Polygon—formerly a Munters division—or ServPro) decides to step in and attempt to shut this right down.

The key is any of these actions will cost someone money, possibly quite a bit of it: Savannah spending legal money to make money off the patent; builders or a trade association spending legal money to prevent the loss of money. The long and short of this process is likely to be quite ugly and will ultimately cost homebuyers money.

But what did you expect when mold and trolls are involved?

Hal Bohner, true to form, asked me to finish this sad story with a heartening one: “Take a look at the 2013 Patents for Humanity Award recipients,” he asks.