How U.S. Patent and Litigation Abuse Can Deter Small Inventors: The Story of Cheekd

By Eileen McDermott
April 16, 2019

“After all I’ve been through, I just don’t want to have to shut this operation down because of this man who saw me on a reality TV show. At this point, I wish I’d never filed for this patent.” – Lori Cheek

In one more example of ways the U.S. patent system can be stacked against the small inventor, we have the story of Lori Cheek, who more than ten years ago had an idea for a unique dating service that she dubbed Cheekd. In 2008, still just prior to the age when people existed via smartphone, the patent she applied for covered a card-based dating system. Specifically, Patent No. 8543465—described by at least one patent attorney as “quite low quality; very difficult to infringe; and likely invalid under 101 (abstract idea)”—addressed:

A method, software product and card for personal online/offline meeting. The method includes the steps of an initiator developing a profile/account with a central organization; the central organization providing the initiator with a number of cards on which are printed at least a website designation and a code; the initiator giving a card to at least one recipient; the recipient going to the website designated on the card; the recipient entering the code at the designated website; the recipient being given access to the initiator’s profile with the central organization; and the recipient sending the initiator a message through the designated website.

Patent quality aside, at the time, it was a new approach to dating, born out of Cheek’s frustration with the impossibility of the New York dating scene. “After living in New York City for 16 years, I realized how impossible it was to meet people,” Cheek told IPWatchdog. “I found the fact that there are so many people and you still can’t find a date so crazy. But one night I had dinner with a friend, and he scribbled a note on the back of a business card and slipped it to this woman and got a date—I thought that was great; it was taking the business out of the business card.”

Cheek decided to leave her steady job as an architect to pursue the idea of a business centered around pre-printed dating cards featuring clever pick-up lines and held a brainstorming session with friends on February 22, 2008. On March 7, 2008, she registered the URL Youvebeencheekd.com (now cheekd.com) with GoDaddy, and officially founded her company, Cheekd, on April 20, 2009. She applied for a patent in 2010 and it was granted on September 24, 2013.

Soon after, out of money and struggling to get her business off the ground, a friend suggested she apply to be a contestant on every inventor’s favorite show, Shark Tank. She was accepted, and her episode aired in 2014. Though her appearance fell short of success—Mark Cuban told her she was delusional, Kevin O’Leary told her she should take the business behind a barn and shoot it like a rabid dog, and Barbara Corcoran told her she was the right entrepreneur with the wrong idea—the show brought much-needed attention to the brand. “The day after the show aired, I had around 3,000 emails; I never gave up,” Cheek said.

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The criticism she received on the show did cause Cheek to reconsider the business idea, however, and she and her partner soon after developed a Bluetooth dating app, abandoning the card-based approach upon which the patent was predicated. A few years later was when the trouble started for Cheek, and today, she is embroiled in her second lawsuit over a patent on a business she is no longer pursuing, both brought by a man, Alfred Pirri, Jr., whose first suit was dismissed in pre-trial conference. Cheek explains more:

What happened after your Shark Tank appearance?

In June 2017, I got an email from Alfred Pirri Jr.’s first lawyer [Oleg A. Mestechkin and Wing K. Chiu of Mestechkin Law Group, P.C.] about this million dollar lawsuit and I thought, “this has to be a joke.” After seeing a rerun of my Shark Tank episode in 2015, Pirri was claiming he had the idea for my business in 2006, told his therapist about it in late 2008, and that she had then told me—even though I’ve never met the therapist in my life and we have both sworn via affidavit to that. We immediately sent back an email with evidence of the URL registration and emails about the business going back to early 2008, but they still moved forward with the lawsuit. It took more than $50,000 and ten months to get it thrown out in pre-trial conference, but it didn’t go far enough to get thrown out with prejudice. It was shocking; it was the worst year of my life. It took a real health toll on me; I was just walking around in shock every single day. We paid $15,000 to get that patent, and what was it worth in the end, why did we even do that? I thought the lawsuit would be gone forever, but now it’s come back.

What is the latest suit claiming?

In the first lawsuit, Pirri was requesting that the patent be invalidated; in this latest suit, he’s requesting to be added to the patent as an inventor and is suing me for more than $5 million. I couldn’t fathom that it was happening all over again. We’ve completely started over and submitted all of this evidence to his new lawyer [Steven R. Fairchild of Fairchild Law, LLC]. I don’t know if they just don’t believe me, but you can find all of the evidence online at GoDaddy, and I have a signed letter from a witness who was there in 2008 when we first started working on the pickup lines. What’s unfair is that the therapist’s [Joanne Richards] hospital legal team is paying her fees and Pirri’s lawyer is probably a contingent-fee lawyer, so I’m the only one who’s losing. Our business is still a free app—we’re not making a dime right now.

How has this experience made you feel about the U.S. patent and legal systems?  

I just don’t understand how it can even go this far, or how it could have gone that far the first time. I have no idea how long it could go on again this time. After all I’ve been through, I just don’t want to have to shut this operation down because of this man who saw me on a reality TV show. At this point, I wish I’d never filed for this patent. It has done nothing for me except get me into this situation. I’ve joined forces with Josh Malone and a group of other inventors who are reaching out to Congressman Jerrold Nadler to see if he can change the system to make it easier for inventors to hold onto and enforce their rights. We sent him a letter but have not yet heard from him.

What advice do you have for other aspiring inventors?

I would still say go through the motions and read up on the risks—definitely still get a patent, and trademarking is important. I’ve asked my lawyer what I could have done differently, and he said I was just in the wrong place at the wrong time and that if I hadn’t gone on Shark Tank, I wouldn’t be here.

Pirri’s first suit targeted his therapist, Joanne Richards, and Cheek, alleging that “a series of unconscionable acts [were] committed by a social worker who took the most sacred confidences entrusted in her during her sessions and disclosed them to an architect, who then took that information and claimed it as her own in a patent application filed with the Patent and Trademark Office.” He sought to invalidate the patent based on allegedly false statements of inventorship and to obtain damages and injunctive relief. In the second suit, he is seeking to “correct” the named inventors listed on U.S. Patent No. 8,543,465 and claiming breach fiduciary duty of confidentiality, unjust enrichment, misappropriation of trade secrets, conversion and fraud under New York common law.

Cheek’s lawyer, Lawrence Goodwin, told IPWatchdog that Pirri’s lawsuit is “a fantasy” and a “nutty proposition, any way you cut it.” “We’ve got solid evidence that she came up with the idea before Pirri even started therapy,” Goodwin said. But that doesn’t change the fact that Cheek will have to shell out thousands while the case makes its way through the system.

“This is an issue that is much broader than the patent system,” Goodwin said. “It’s a commentary on the federal court system—it’s burdensome and a shame that this new counsel has bothered to assert a second case. The check on that, however, is that we have the ability to seek attorney’s fees,” he added.

One saving grace is that the Octane Fitness and Highmark cases—which are coming up on their fifth anniversary this year—have made it easier to seek attorney’s fees, Goodwin added.

Unfortunately for Cheek though, for now she has no choice but to trudge onward through the quagmire of the U.S. litigation process.

IPWatchdog reached out to Mr. Pirri’s current attorney, Steven Fairchild, for comment, but had not received a response as of the time of publication.

 

The Author

Eileen McDermott

Eileen McDermott is the Editor-in-Chief of IPWatchdog.com. Eileen is a veteran IP and legal journalist, and no stranger to the intellectual property world, having held editorial and managerial positions at several publications and industry organizations. She has acted as editorial consultant for the International Trademark Association (INTA), chiefly overseeing the editorial process for the Association’s twice-monthly newsletter, the INTA Bulletin. Eileen has also served as a freelance editor for the World Intellectual Property Organization (WIPO); as senior consulting editor for the Intellectual Property Owners Association (IPO) from 2015 to 2017; as Managing Editor and Editor-in-Chief at INTA from 2013 to 2016; and was Americas Editor for Managing Intellectual Property magazine from 2007 to 2013.

Warning & Disclaimer: The pages, articles and comments on IPWatchdog.com do not constitute legal advice, nor do they create any attorney-client relationship. The articles published express the personal opinion and views of the author and should not be attributed to the author’s employer, clients or the sponsors of IPWatchdog.com. Read more.

Discuss this

There are currently 10 Comments comments. Join the discussion.

  1. Pro Say April 16, 2019 1:21 pm

    3 words Lori:

    Don’t. Give. Up.

    Your idea is a winner.

    This isn’t the first time the Sharks have been wrong (think Ring.com).

    And it won’t be their last.

  2. concerned April 17, 2019 5:12 am

    “At this point, I wish I’d never filed for this patent”

    Many inventor feel the same way. The current patent environment is a legal setting where truth, facts and logic are not always relevant.

    It is bad public policy to disincentivize invention. Eventually public policy will be on the right side of the issue. When and how is a matter of much debate.

  3. Earl Spencer April 17, 2019 9:51 am

    I have had several ideas, but never the finances to even start the expensive Patent Road. I have wondered how many people are in the same boat with me. How many great products never see the light of day due to the cost. One idea I had I presented to The Inventers Club of America. I heard back from them and they had a positive opinion of my idea and asked if I wanted them or a patent attorney do the Patent search. I said that I would give it a try. I later did contact a Patent attorney and received their cost that it would take. That ended that idea and killed any future attempts. Now I am retired and living on Social Security.

  4. Philip G Hertel April 17, 2019 1:22 pm

    Re the comment in the article: “This is an issue that is much broader than the patent system,” Goodwin said. “It’s a commentary on the federal court system—it’s burdensome and a shame that this new counsel has bothered to assert a second case. The check on that, however, is that we have the ability to seek attorney’s fees,” he added.

    How is this a check if the offender does not have deep pockets? Where does the settlement money come from?

    How does a victim of a frivolous lawsuit who may not be able to afford a defense attorney avoid bankruptcy or other economic harm?

  5. Pro Say April 17, 2019 2:19 pm

    Earl (and other cash-short inventors) — the Patent Office offers a pro bono program you may want to look into:

    https://www.uspto.gov/patents-getting-started/using-legal-services/pro-bono/patent-pro-bono-program?MURL=probonopatents

  6. Bobbie adair April 17, 2019 2:34 pm

    I think it was on an oprah show that i happened to watch that a guest on the show was saying that you can legally prove an idea was yours by simply putting it on paper and then mailng it to yourself or someone you trust, but do not have the letter/package opened once it was received. That way its federally dated with the postmark stamped right on it with your invention inside. Can anyone verify this?

  7. Martin Nguyen April 17, 2019 3:12 pm

    First off, inventors have to have passions for their innovative ideas, believing someday they would see their ideas bring disruptive products to the world. Just to tell you, I had to borrow money from my brother to finance my patent applications. Finally, if we can make potential investors believe in patent protections, especially for small inventors, I firmly believe they will invest, and we would eventually having more businesses established from innovative ideas.

  8. jacek April 17, 2019 4:29 pm

    Pro Say – USPTO Pro bono program means “zinch” in real world. This program is like spider attracting fly to the net. Once you in then there is real problem, like the one described in this article shows. After USPTO sucks from you the fees and ideas than you are on your own. There is no program by USPTO offering free legal help when real crap happens after issuance of the “patent”. Plus It is PATENTLY stupid to expect that attorneys should work for free. They have bills to pay too. China solved this problem with Their “Intellectual Property offices” enforcing patent at NO COST to inventor. Of course if you have plenty of cash you can go to court too not leaving your office because they have “Internet Courts”
    What we have? Stupid politicians looking for handouts. (pardon: Contributions)
    US patents system is one big FRAUD.

  9. jacek April 17, 2019 5:02 pm

    One practical solution I used while ago running a company. We never disclosed publicly names and real addresses using LLC registered in New Mexico and PO BOX. There was couple of Registered letters in this PO BOX addressed to the company we never accepted suspecting similar lawsuits like the one described above. I was telling my staff that probably somebody is trying sue us because his cow eat Glass Christmas Ornaments we produced and did not survived.
    Our product was visually very attractive and because of that there was also couple of stalkers direct from mental institutions trying to distribute our products, buy specific pieces etc. Thanks God we survived not seeing a lawyer or angry guy with a gun on our doorsteps ever. Basically I see not diffrence between the legal enviroment here in US and the one I used to live under in a country under communist rule running illegal at the time publishing company publishing everything on government black list. We used similar approach to survive for quite long time unscratched.

  10. Night Writer April 18, 2019 8:02 am

    @6 jacek

    Thanks for your comments.

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