This article was originally published on Sept. 25.
The baseball community finds itself discussing intellectual property issues after Quality of Pitch (QOP) Baseball proudly announced receiving a patent for their QOP metric, along with the bold statement: “This now certifies QOP as THE metric for calculating pitch quality. Look for QOP during future MLB broadcasts.” Despite this lofty goal, there has been no further information about potential licensing or agreements with MLB or any baseball broadcasting outlets. Further, there is no clear evidence to support QOP as “THE metric for calculating pitch quality” and the motives behind QOP pursuing patent protection remain unclear.
It is not surprising that the issuance of a patent directed towards sabermetric analysis raised the ire of the baseball community, but what is surprising is that no one took notice of this patent prior to QOP’s tweet. And maybe it’s not surprising that eventually, someone would try to patent a statistic, and aggressive patent tactics would work their way into the world of sports analytics. Indeed, one intellectual property attorney I spoke with noted that there are debates over protections for algorithms and business methods in other industries; why not baseball?
It is not often that my day job coincides with my interests in baseball, but here we are. I am not a lawyer, but I worked at the United States Patent and Trademark Office (USPTO) as a Patent Examiner for nearly a decade. Although I am no longer at USPTO, I continue to analyze intellectual property in my current role, which includes staying abreast of the patent landscape in my area of expertise. From my perspective, the surprise wasn’t so much the issuance of a questionable patent, but the reaction of the baseball community to one tweet, as patents aren’t granted overnight.
Before we even look at the history of this particular patent and the Quality of Pitch (QOP) statistic, let’s consider QOP Baseball as an entity. Jason Wilson and Jarvis Greiner, the people behind QOP, have been known within the sabermetric community for quite some time, having presented at SABR Analytics in March 2015. They’ve written about their QOP metric for The Hardball Times in 2017 and again in 2019. Outside of the sabermetric community, Wilson and Greiner discussed their QOP metric in the statistics magazine Chance in 2014; a subsequent Letter to the Editor pointed out possible flaws in their statistical analysis. In 2018, Wilson alleged that the home run surge of 2015-2017 was not the result of the ball itself, but a decline in pitching quality. Thus it seems safe to say that Wilson and Greiner were well-known in the baseball community prior to their September 2020 tweet.
Similarly, QOP’s history at USPTO goes back several years. Although QOP did not make their announcement on Twitter until September 13, US Patent 10,737,167 was granted to Jarvis Greiner and Jason Wilson on August 11, 2020; the assignee is Greiner Agencies, Inc., which is operated by Jarvis Greiner’s father Wayne. On the front page of the patent, we see that application 14/645,361 was previously published as US 2015/0260512 on September 17, 2015. This would have been the first public disclosure of the patent application[1]. We can also see that this patent is related to provisional applications which were filed in March 2014—so this patent was years in the making.
USPTO Public PAIR[2] allows for an even deeper dive. We can read the exchanges between the patent examiner and the applicant, and learn more as to the examiner’s interpretation of the claims, the applicant’s responses to the USPTO, and relevant patents and non-patent literature pertinent to the field.
Reading the examiner’s analyses can illuminate the thought process behind the examiner’s interpretation of the claimed invention, but there is no guarantee that the claims will be interpreted in this exact same way if the patent becomes an issue in court, for example, at the Patent Trial and Appeal Board (PTAB). However, the written records associated in the case file can set the tone for the scope of the intellectual property encompassed by the claims.
In a non-final rejection dated August 7, 2017, we see that the examiner issued rejections under 35 U.S.C. §§ 102(a)(1) and 103, prior art rejections based on the claimed invention’s novelty and obviousness, respectively. A second non-final rejection was issued on November 27, 2017, where the examiner issued a rejection under 35 U.S.C. § 101—this is where the discussions regarding the patentability of abstract ideas comes into play.
So how does a patent application get examined? A patent examiner will conduct a search of the patent and non-patent literature in order to assess what was known in the relevant field at the time of the invention. It is always fascinating to see what references an examiner cites; there is a prominent section for cited references. Looking at the references cited in the case of QOP by both the applicant and the examiner, you will see some familiar names.[3] In this case, the Examiner cites well-known physicist Alan Nathan (“The effect of spin on the flight of a baseball”, Department of Physics, University of Illinois, February 2008, pages 119-124). The Examiner presents the teachings of this particular Alan Nathan reference, and how they pertain to the claims at hand. In general, Alan Nathan teaches a system for determining a pitch rating for a pitch in baseball, the pitch rating indicative of the quality of the pitch; the examiner finds that Nathan teaches most of the recitations of the claims. For example, “Nathan further describes wherein the pitch rating is configured to have a value such that a majority of pitches have a value between 0 and 10 (fig. 2-8).” In the Examiner’s assessment, Alan Nathan taught each and every aspect of the claimed invention.
The examiner additionally made a rejection under 35 U.S.C. § 103, a rejection based on non-obviousness. After reviewing the relevant literature in the field, and what someone practicing in this field would have known at the time of the invention, the examiner may determine that a claimed invention would have been obvious. In this particular case, the examiner alleges that the claimed invention would have been obvious to the ordinarily skilled artisan in view of the combined teachings of Nathan and Jason John Martin, who teaches the use of Doppler radar for ball tracking.
We’ll move on to the issue that has everyone talking: is QOP’s metric as claimed patentable? 35 U.S.C. § 101 states:
“Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.”
In other words, the invention must have a utility, and it must be a process, machine, manufacture, or composition of matter. It has been held that laws of nature, natural phenomena, and abstract ideas are ineligible; these judicial exceptions are specifically excluded from patentability to protect “the basic tools of scientific and technological work”. We can turn to the Manual of Patent Examining Procedure (MPEP) § 2106 for further guidance regarding subject matter eligibility:
“In addition to the terms ‘laws of nature,’ ‘natural phenomena,’ and ‘abstract ideas,’ judicially recognized exceptions have been described using various other terms, including ‘physical phenomena,’ ‘products of nature,’ ‘scientific principles,’ ‘systems that depend on human intelligence alone,’ ‘disembodied concepts,’ ‘mental processes,’ and ‘disembodied mathematical algorithms and formulas.’”
That was the longer version of no, you can’t patent an abstract idea, a mental process, or a mathematical formula. In essence, determining a pitch-quality metric is merely a mental process. When you see a pitch, your brain makes your own calculations, estimations, and determinations about various elements of the pitch. You may not be consciously aware of this; watching baseball has become so ingrained into your persona that identifying a pitch has become second nature to you. Watching a game with your naked eye, you may not be able to provide a precise quantification of the vertical or horizontal break, or the velocity; but you may identify a pitch based on its trajectory, and you may provide your own subjective metric with information about the quality of a pitch—if you’ve ever labeled a pitch as a “a nasty slider”, you have determined the quality of a pitch. Indeed, hitters are doing this all the time. They have learned to watch as a pitch comes out of a pitcher’s hand and anticipate, based on the point of release, the velocity, the movement of the ball, the pitcher’s repertoire, and the state of the at-bat and the game, what pitch will be coming.
So, in a general sense, we as baseball fans know that observing and collecting visual data—which anyone does while they’re watching a baseball game—is simply a mental process.
But here is where things get tricky. How would one materially transform this mental process of pitch identification and assessment into a patentable invention? You might think that requiring the use of a computer materially transforms this from a mental process into a patent-eligible process, but it’s not that simple: “Merely reciting the words ‘apply it’ (or an equivalent) with the judicial exception, or merely including instructions to implement an abstract idea on a computer, or merely using a computer as a tool to perform an abstract idea”[4] does not overcome a judicial exception. There is also the determination of whether any additional recitations in the claims would substantively distinguish the mental process; it has been held that insignificant extra-solution activity would also not overcome a judicial exception.[5]
In our specific example, we see that on November 27, 2017, the examiner made a rejection under 35 U.S.C. § 101, explaining that the claimed invention was directed towards a judicial exception. The Examiner noted in the rejection and in maintaining the rejection in the final Office action dated April 20, 2018 that the claimed invention adds insignificant post solution activity, with no substantial improvement such that one would recognize this to be patent-eligible subject matter.
Ironically, in a response, the applicant’s legal representative stated that “no mathematical concepts are recited sufficiently to classify Claim 1 as being directed to an abstract idea”—as if an abstract idea must be limited to a mathematical construct. Ultimately, as we all know, the patent did issue. But note that when the Notice of Allowance was issued on April 3, 2020, the Examiner’s language in the reasons for allowance are very specific. Essentially, the Examiner copied and pasted the claim language word for word, noting that “it is these features found in the claim, as they are claimed in the combination, that has not been found, taught or suggested by the prior art of record which makes this claim allowable over the prior art”. This short statement is very telling; it is my interpretation that the examiner intended for the patent to be very specific and thus limited in scope.
So QOP Baseball received a patent; now what? In theory, one could sue others who they perceive as infringing upon their patent. This wouldn’t be the first time that patent infringement was an issue in baseball. But in this particular case, we veer into the territory of patent trolls. Patent trolling and unfairly excluding others from conducting additional research and work in the field is one of the dangers of a poor-quality patent, and the malicious dealings of patent trolls has been covered extensively elsewhere. It remains to be seen whether QOP would pursue litigation against those it perceives to be infringing upon its patent. It also remains to be seen whether or not QOP’s patent would be affirmed, or if the patent could be invalidated. We can only speculate as to how this patent would fare in inter partes review (IPR) if a party sought to invalidate the patent.
It is an unfortunate reality that the patent system needs an overhaul, and the patent system and its flaws are not something that can be solved here. But it is worth considering what the patent system is intended to do. A patent protects the intellectual property of an inventor, in exchange for the disclosure of information and teachings to further the field. Even if a patent application does not progress to a patent, its publication is a dissemination of knowledge into the public sphere. Moreover, it’s naive to simply say that publicly disclosing information and research without expecting any compensation is a hallmark of academia; increasingly, it is academics who have realized the value in patenting their inventive concepts in order to realize valuable licensing opportunities—this funding can be invaluable to furthering their own research. One need simply look at the rise of technology transfer departments within universities.
We can speculate as to QOP’s rationale behind filing for this protection, and ultimately being granted a patent. It’s entirely possible that even QOP isn’t quite sure what they plan to do with their patent. Wayne Greiner told Eno Sarris that a broadcaster asked if QOP was patent pending and has generally alleged that they want to protect the quality and integrity of their product. Greiner has taken it upon himself to start sending threatening messages to analysts who they perceive to be infringing upon their patent. Greiner argued that it is Eno Sarris and Ethan Moore‘s naming conventions used in The Command & Stuff Report which is potentially infringing; “When we saw that he was referring to his metric as ‘Quality of Pitch’ that set off alarm bells.” That would indicate that what Greiner actually seeks is trademark protection, and not patent protection, and there appears to be some confusion as to whether their purposes would be best suited by a patent, a trademark, or copyright protections.
A trademark is distinct from a patent, but still falls within the purview of USPTO. A quick search of the USPTO Trademark database does not reveal any trademarks directed towards quality of pitch; that is not to say that the term “Quality of Pitch” would necessarily be granted a registered trademark upon filing, as it would still undergo a review process by a trademark examiner.
Copyright, however, is an entirely different matter—so different that it isn’t managed by USPTO, but by the Copyright Office, located within the Library of Congress. Copyright covers “literary and artistic works,” including “every production in the literary, scientific and artistic domain, whatever may be the mode or form of its expression.” Copyright protections are automatically granted; however, in order to take legal action in the event of infringement, the material would need to be registered with the Copyright Office. Notably, though, it is the expression and manifestation of the work that is protected, and not the idea itself. Copyright protections thus would not protect the concept of the Quality of Pitch metric from use by others; additionally, given fair use provisions and the use by not-for-profit entities, it is not clear what, if any, benefit QOP would gain by seeking copyright protection for its own expressions of the QOP metric.
Although Wayne Greiner, who funded QOP’s endeavors, has alleged that he means no harm, I think it is safe to say that this wasn’t an altruistic endeavor; if the goal was simply to share information, that would best take place through scientific and technical journals, the pages of industry publications, blogs, and even Usenet and social media forums. Not only would this have facilitated a true exchange of ideas, this would have saved Wilson and Greiner legal fees. If a broadcaster would want to use a patented metric, or even a trademarked name, they would then be required to enter into a licensing agreement and pay fees, but it could grant them exclusivity to the use of the QOP metric. Absent clear evidence that QOP is significantly superior to similar pitching metrics, there would be no motivation for a party to pay for the use of QOP.
Ultimately, holding a patent, a trademark, or enforcing copyright protections are not guarantees of financial windfalls. If you really want to monetize your product, why not just demonstrate that your product is better? We have yet to see that from QOP. Even in their response to the rejection on the grounds of obviousness, there was no clear statement regarding any unexpected results or evidence of a clear benefit to QOP as compared to the closest prior art. Although in the prosecution history the applicant’s representative alleges that the claimed invention “provides a specific improvement over prior computerized pitch rating systems as well as over subjective pitch ratings provided by human experts”, the nature of this improvement has not been made public nor is it a part of the examination record at USPTO.
So, the short answer to the QOP Baseball patent: it probably will not affect you. You, as a consumer of baseball and/or as a sabermetrician, have the option of using a different product. And certainly, MLB has the option of using a freely available statistic or licensing a superior product. Is MLB really going to pay QOP for a metric, even absent evidence demonstrating that QOP is a superior calculation?
Another action that anyone can take: Be aware of the literature and patent filings in your field of interest. Consider monitoring patent applications and submitting a Third Party Pre-issuance Prior Art submission, which can provide additional evidence to a patent examiner who may not be aware of the state of the art.
It is fair to be concerned that gatekeeping and access to information will be the slow death of sabermetrics. However, it’s not productive for us to direct our anger towards this particular patent. Ultimately, the larger threat to the open exchange of information and ideas remains access to the raw data itself. As Emma Baccelieri noted in 2017, the increasingly limited amount of data shared publicly by MLB will have a detrimental effect on the field of sabermetrics. As Hawk-eye comes into the game, we need to be continually aware of what data MLB makes freely available, as this is where innovation will happen. Anyone can develop their own methodology for interpreting and manipulating this data—however, once the data disappears, that is the true threat.
QOP has quite possibly sustained self-inflicted, irrevocable damage to its reputation within the baseball community, all but guaranteeing that QOP will not be used in sabermetric writings, and will likely be met by a frosty reception at any future sabermetric conferences. While they may allege that they merely want to contribute to the community, actions speak louder than words. We can’t say whether or not the patent would hold up in further litigation—but we can say that the patent is a reminder to be wary of those who seek to limit the free exchange of ideas.
[1] Once a patent application is published, the claims and the entire specification are freely searchable from both USPTO.gov and Google.
[2] Public PAIR also provides some other interesting tidbits that may not be directly relevant to the case at hand—for example, in this particular case, the applicants changed legal representation, switching from a large law firm well known for its intellectual property docket, to a smaller outfit in their hometown of Edmonton, Canada. Power of Attorney filings occur pretty regularly, so this in itself is not a flag. However, it is interesting that the applicants let the application go entirely abandoned for an extended period of time. Essentially, the applicants did not file a reply to the USPTO in a timely manner, and after 6 months without a reply, the USPTO can indicate that an application has been abandoned. However, with a fee, patent applications can be revived; Greiner and Wilson did not provide a substantive reply to the final rejection issued on April 20, 2018, and the application was officially abandoned on February 8, 2019. After filing additional fees and a Request for Continued Examination, the application was revived on September 5, 2019—perhaps relevant, USPTO guidance regarding 35 U.S.C. § 101 also changed in early 2019. Changing attorneys and letting the case go abandoned does not necessarily say anything about the merits of the case, but it is interesting.
[3] References may be cited even if they are not used in a prior art rejection, and any reference that is used in a prior art rejection (102 or 103) must be clearly cited in the prosecution history. A 102 rejection is made on the basis of whether or not the claimed invention is novel.
[4] See MPEP § 2106.
[5] See MPEP §§ 2106.05(f) and 2106.05(g).
References
Eno Sarris, “‘You can’t own an idea’: Attempt to patent a baseball stat surprises community”, The Athletic, September 22, 2020 https://theathletic.com/2074516/
Jason Wilson and Jarvis Greiner, “A Curveball Index: Quantification of Breaking Balls for Pitchers” Chance, 2014, vol. 27, no. 3, pages 34-40 https://www.tandfonline.com/doi/full/10.1080/09332480.2014.965629
David C. Hoaglin, Letter to the Editor, Chance, 2015 https://www.tandfonline.com/doi/full/10.1080/09332480.2015.1016853
Austin Green, “Everything Eagles: Math professor, alumnus pitch in with Quality of Pitch metric”, The Chimes (Biola University magazine), April 1, 2019
https://chimesnewspaper.com/44623/sports/everything-eagles-math-professor-alumnus-pitch-in-with-quality-of-pitch-metric/?print=true
Laurie Bullock, “Pitching a New Statistic”, Biola Magazine, Winter 2016
http://magazine.biola.edu/article/16-winter/pitching-a-new-statistic/
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