FlightPrep’s online flight planning patent could very well stand up to a court challenge, says pilot and patent attorney Lionel Lavenue. In an exclusive podcast interview with AVweb, Lavenue says the emotion and sentiment being expressed by those angered by FlightPrep’s preliminary efforts to enforce the patent mean little in front of a jury. Much of the ire against Flight Prep stems from a feeling that they are attacking the “little guys” and requesting nondisclosure agreements to prevent those involved from talking to the press or each other. Lavenue says Flight Prep’s strategy is actually quite normal, and protects the patent holder from an immediate countersuit of “a declaratory judgment of non-infringement.” He also says it’s common to approach smaller companies first before going after the more powerful entities to see what counter arguments might emerge. “The patent is not without warts,” Lavenue said, but he also noted that a jury deciding infringement doesn’t need to meet the “beyond a shadow of a doubt” level of certainty. In fact, they only need a “51 percent” certainty — more sure than not there’s an infringement. Major players such as AOPA/Jeppesen, Flight Aware and Fltplan.com have all been contacted by Flight Prep and have all said they don’t infringe and will not discuss the issue with Flight Prep. This could come back to haunt them in court, Lavenue said.
FlightPrep’s overtures to other flight planning websites has been circulated and it appears the same letter went to all of them. FlightPrep asks to enter into a nondisclosure agreement to discuss the matter before negotiating a licensing agreement. After consulting with a patent attorney, Fltplan.com owner Ken Wilson said it was felt the patent does not apply to their website and technology. Fltplan.com and other sites we contacted haven’t heard more from Flight Prep since the conversation ended in September. According to Lavenue, if RunwayFinder loses its lawsuit in court, that would significantly strengthen FlightPrep’s position and that it’s likely major players would find it cheaper to reach a licensing agreement rather than enter a court fight. At least one website, not yet hit with a lawsuit, has told AVweb they intend to fight if challenged.
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