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Electronic Frontier Foundation Government Patents The Courts

After EFF Effort, Infamous "Podcasting Patent" Invalidated 58

Ars Technica reports some good news on the YRO front. An excerpt: A year-and-a-half after the Electronic Frontier Foundation created a crowd-funded challenge to a patent being used to threaten podcasters, the patent has been invalidated. In late 2013, after small podcasters started getting threat letters from Personal Audio LLC, the EFF filed what's called an "inter partes review," or IPR, which allows anyone to challenge a patent at the US Patent and Trademark Office. The order issued today by the USPTO lays to rest the idea that Personal Audio or its founder, Jim Logan, are owed any money by podcasters because of US Patent No. 8,112,504, which describes a "system for disseminating media content representing episodes in a serialized sequence." The article points out, though, that the EFF warns Personal Audio LLC is seeking more patents on podcasting. Mentioned within: Adam Carolla's fight against these patents and our Q&A with Jim Logan.
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After EFF Effort, Infamous "Podcasting Patent" Invalidated

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  • by Yaotzin ( 827566 ) on Saturday April 11, 2015 @06:07AM (#49452253)

    I believe some patent rights are necessary to promote innovation, but when you start handing out patents like a paedophile hands out candy, the opposite effect is achieved.

    • by Anonymous Coward

      Most pedophiles aren't handing out candy. They aren't strangers hiding in the darkness waiting to snatch your kid either. They are parents, uncles, priests, coaches, people you have trusted and let into your kid's life.

      If we can stop perpetrating this "stranger danger" myth, perhaps the "for the kids" argument will die down and we will be able to have nice things.

    • I believe some patent rights are necessary to promote innovation [...]

      IME, patents rather hinder than promote innovation, especially on software methods. The way they are used is to protect big players against one another's legal challenges. As a side effect, small players are quite locked out. But then, IANAL; can someone give an example of a software patent that actually promoted innovation?

      • by Yaotzin ( 827566 ) on Saturday April 11, 2015 @07:47AM (#49452417)

        IME, patents rather hinder than promote innovation, especially on software methods. The way they are used is to protect big players against one another's legal challenges. As a side effect, small players are quite locked out. But then, IANAL; can someone give an example of a software patent that actually promoted innovation?

        Yes well, I think we have different experiences. I agree that software patents often seem to serve little purpose apart from building war chests, and I would also be interested in a concrete example of good usage of software patents. There are many other industries, however, where patents are crucial to defend years and millions of dollars invested in R&D against professional copycats, and allow low level players to reap some profit from their innovation.

        • by gl4ss ( 559668 )

          you got some post 2000 examples of that?

          srsly.

          besides, they're using the same millions blabla invstments zillions years blabla argument for software as well.

          and the hardware patents i've recently seem have been fairly obvious answers to problems as well. like, have a problem where the 3d printed object contracts too much and breaks because ambient temperature is too low. what is the patented solution to the problem? raise the temperature of the build chamber. so they end patenting hot air. no novel method f

          • by Rob Y. ( 110975 ) on Saturday April 11, 2015 @10:34AM (#49452911)

            That doesn't sound like a hardware patent either. More like a 'process' patent - which is essentially the same thing as a software patent, and shouldn't be allowed - at least in trivial cases like the one you cite.

            • by rdnetto ( 955205 )

              Serious question: how does one meaningfully distinguish between hardware and software patents? As I understand it, software is supposed to be unpatentable because it is just math, but the same could also be said of Widlar's negative feedback amplifier, since the mathemathical models by which transistors function were well established at that point.

              The best argument I've heard against software patents is that they inhibit interoperability (e.g. the MPEG patents), but that's not specific to software - the sam

        • by bill_mcgonigle ( 4333 ) * on Saturday April 11, 2015 @12:52PM (#49453481) Homepage Journal

          Nah, this idea has been invalidated by economists.

          The cost to replicate complex inventions is about 65% of the original cost and the overhead of paying the talent to have on staff to do the work (they insist you fund their own research instead of sitting idle) is almost 35%. The Patent argument boils down to dithering about a 5% difference and the consumers prefer to reward the inventors most of the time. Establishing and enforcing the patent monopoly winds up costing society more than that 5%, so the net effect is privatized gains and socialized losses.

          Now there are industries that government screws up a priori, like pharmaceuticals, but patching that disaster with patents just adds insult to injury.

          Speaking as someone who was just offered a drug for a family member that costs $320,000 per ounce (beyond the budget) I can tell you the current system doesn't help regular people at all. Bristol Meyers execs - they're doing just fine.

          The current system *does* work very well - for certain classes of men. And the claims that people will stop inventing without monopoly enforcement ignore all the available data and human nature.

      • by Anonymous Coward

        My problem with software patents is that too many of them seem to take a common every day idea/concept/practice and effectively rubber stamp "on (insert platform)". To add insult to injury most of them on top of being the next logical step that anyone with half a brain would take, also convey their method in the vaguest most blanket terms possible. To the point that they aren't patenting a method of doing something they are trying to patent the very concept of being able to do something "on a smartphone" or

    • by Ecuador ( 740021 ) on Saturday April 11, 2015 @07:37AM (#49452399) Homepage

      Yes, it seems to me that instead of paying for hundred of lawsuits on ridiculous patents perhaps somebody should start going after the USPTO instead? No idea if there is any legal way to do it, but since all problems start from the USPTO itself, that's where any effort should be concentrated...

      • by Yaotzin ( 827566 )

        Yes, it seems to me that instead of paying for hundred of lawsuits on ridiculous patents perhaps somebody should start going after the USPTO instead? No idea if there is any legal way to do it, but since all problems start from the USPTO itself, that's where any effort should be concentrated...

        I agree, although it seems like this IPR mentioned in the summary is one way of doing it. The biggest preference would be that patent offices (not just the USPTO) would stop awarding ridiculously general patents. Possibly there could be some reward for lowering the amount of IPRs per annum or something along those lines.

        • by Rob Y. ( 110975 ) on Saturday April 11, 2015 @10:42AM (#49452935)

          Perhaps better than the IPR mechanism would be an appeals process by which anyone can make an 'obviousness' challenge to any patent approved by the rank and file PTO staff to a higher-level and more technical board that must review the patent before it's actually enforceable. All funded by the USPTO itself, eliminating the high cost of challenging patents. Also greatly reducing the effectiveness of patent enforcement blackmail - and possibly raising the standards for initial approvals by causing the granting of bad patents to actually cost the patent office something - instead of generating revenue.

          • Perhaps better than the IPR mechanism would be an appeals process by which anyone can make an 'obviousness' challenge to any patent approved by the rank and file PTO staff to a higher-level and more technical board that must review the patent before it's actually enforceable.

            As soon as you create this process someone will build a system that automatically submits an appeal for every patent issued and we end up worse off than before.

            • by sjames ( 1099 )

              How is that worse?

            • by HiThere ( 15173 )

              I'm sorry, but the USPTO is doing such a bad job that totally eliminating them would be an improvement. I will agree that a patent system is valuable, but it's also incredibly dangerous and prone to "corruption". (Not in the usual sense, but in the sense of knowingly not carrying out their explicit duties.)

              The first step should mean to make patents be required to be sufficiently specific that those skilled in the art (being patented, not of legal interpretation) can reproduce the invention. The second st

          • Perhaps better than the IPR mechanism would be an appeals process by which anyone can make an 'obviousness' challenge to any patent approved by the rank and file PTO staff to a higher-level and more technical board that must review the patent before it's actually enforceable.

            There are such mechanisms - ex parte reexamination (available from 1981 until 2012) and post-grant review (available since 2012). And it works as you say - a panel of senior examiners review the patent, in response to a challenge, which can be based on obviousness or other issues.

            Thing is, it's not started with just someone screaming "that's obvious! Review the patent!" Just like we don't go through a full trial based on someone merely saying "that guy's guilty of a crime!" or "that guy owes me money!", th

      • by Dutch Gun ( 899105 ) on Saturday April 11, 2015 @10:26AM (#49452883)

        Yes, there's a legal way to do it. A congressperson introduces a bill that outlaws software patents, a majority of the legislature votes for it, and the President signs it into law. No more idiotic software patents.

        • by Ecuador ( 740021 ) on Saturday April 11, 2015 @11:09AM (#49453039) Homepage

          I don't think the problem is software patents. The problem is stupid patents. Like, I patent exactly the same thing everyone does, *but on a bicycle!*. The examiners seem to have completely forgotten the basic premise, which is that you cannot grant a patent to something that a person with an ordinary skill in the art could come up with based on prior art.
          Of course to completely solve the problems a general patent reform would be required, which could address the software issue better among others, but even within the current framework things would be so much better if the USPTO applied some sanity.

          • Thank you. Do not throw out the baby with the bath water.

            When giant corporations can come in and steal ideas by small inventors, real, significant ideas, that hurts a lot more than these stupid patents do.

          • by Dutch Gun ( 899105 ) on Saturday April 11, 2015 @11:32AM (#49453141)

            Honestly, I've waffled on this a while in the past, but I can't honestly think of where real innovation has been spurred on or preserved because of software patents. On the other hand, I can point out hundreds of cases where the patent system has been horribly abused. Sorry, I'm going to disagree with you. No one except the bottom feeders that live off the licensing of patents themselves or giant corporations that hoard them like legal weapons are benefiting from these things.

            I work as a programmer on some pretty sophisticated software, some of which was pretty new and novel in my field. The companies I've worked for didn't believe in software patents, and neither do I. Just because I'm the first one to think up some clever algorithm or trick shouldn't give me the right to lock people out of using it for the next seventeen years. It's absurd - that's an eternity in the software development world, and it has no good effect except to stifle competition.

            The USPTO has had years to make improvements, and the situation is only getting worse.

            • by Anonymous Coward

              Just because I'm the first one to think up some clever algorithm or trick shouldn't give me the right to lock people out of using it for the next seventeen years.

              If you make that clever algorithm public and document it, you could be protecting yourself and others from being locked out of it by later patent trolls. It's called "prior art."

              • by Dutch Gun ( 899105 ) on Saturday April 11, 2015 @12:09PM (#49453291)

                If you make that clever algorithm public and document it, you could be protecting yourself and others from being locked out of it by later patent trolls. It's called "prior art."

                We very often do. I'm a videogame programmer, and a lot of us share knowledge at developer conferences, articles, blogs, and classroom lectures with the blessing of our companies. There's actually a healthy trend of knowledge sharing in this industry, and many people are surprised to find out that very few videogame companies bother with patents at all.

                In a little under two decades in the industry, I've only had TWO experiences with patents: Having to pay to use mp3-encoded files in our game, and being sued by a patent troll. Given this, you can probably understand why I'm not all that enthusiastic about software patents. For the most part, I believe that most companies would rather focus on creating new, innovative products instead of desperately trying to leverage some patented advantage. There's nothing about our products that isn't perfectly well protected by copyright and trademark law.

                • There's nothing about our products that isn't perfectly well protected by copyright and trademark law.

                  Copyright is great for protecting that specific piece of software from piracy. It does almost nothing to prevent another developer from doing a copycat game. That's why Zynga laughs at copyrights, but does file a bunch of patent applications.

                  • And look what happened to them. Zynga are bottom feeders, and are absolutely loathed in the more 'traditional' videogame industry (those of us that make AAA PC and console games) for this and plenty of other reasons. They're the perfect poster child for why software patents are a horrible idea.

                    You can't stop a shitty company from stealing your game ideas. No one seriously wants to go there, because we all recognize that it's important to build on each other's work. Zynga just takes this to the most scum

                    • And look what happened to them. Zynga are bottom feeders, and are absolutely loathed in the more 'traditional' videogame industry (those of us that make AAA PC and console games) for this and plenty of other reasons. They're the perfect poster child for why software patents are a horrible idea.

                      Zynga goes after indie and mobile developers for whom copyright is useless, unlike you giant AAA players. So they're the poster child for why software patents are a horrible idea? That makes no sense. Software patents - or being a multi-million dollar AAA developer - are the only thing that can stop them.

                      In fact, it's actually the classic story justifying why patents should exist: you've got small innovators whose ideas are copied by a ruthless giant corporation, and other giant corporations - such as your

                    • Patents are equally useless for protecting against copying the look and feel of a game. You can only patent specific concepts or technologies, say, the way Zynga tried to patent the the use of in-game virtual currency. You're telling me you think the proper way for these indie devs to handle this is to go out, patent their own code and algorithms, and then fight it out in court with Zynga? Insanity.

                      The AAA game industry isn't "ignoring" the patent issue. They're simply declining to participate in the pa

                    • Patents are equally useless for protecting against copying the look and feel of a game.

                      Design patents aside, of course.

                      You can only patent specific concepts or technologies, say, the way Zynga tried to patent the the use of in-game virtual currency. You're telling me you think the proper way for these indie devs to handle this is to go out, patent their own code and algorithms, and then fight it out in court with Zynga? Insanity.

                      You're saying a better way to handle it is to get no legal protection and just hope that Zynga never decides to copy them? Worse insanity, particularly because we've seen it fail, over and over.

                      The AAA game industry isn't "ignoring" the patent issue. They're simply declining to participate in the patent war madness that everyone else seems to be currently engaged in. Companies like Zynga are the exception to the general trend, and may end up forcing everyone else to do the same goddamned thing. Do you know who'll be left behind here? Yeah, the indie devs, because they can't afford patent lawyers and ridiculous lawsuits.

                      Patent litigation is frequently done on contingency. That's like saying "I can't afford to have you place a bet for me, because if it wins, I have to give you a share of the huge pile of free money I get."

                      Read the massive list of Zynga patents [justia.com]. It makes me weep as a game developer.

                      Why should it? After all, I believe a wise man once said, "The only way to beat a

                • So you have only two anecdotes, only one of which has even the potential to be a failure of the system, and you're ready to throw the whole thing out?

                  • That's just my own personal experience. You don't have to look very far to see the many, many other unbelievably stupid litigations [arstechnica.com] that have made the news (hint: they all seem to resolve around the courts in a certain East Texas district [eff.org]). And the one failure I pointed out happened to cost my company a lot of money to resolve. Why should we keep putting businesses through the wringer for the sake of lawyers and patent trolls?

                    So, yeah, I wouldn't mind tossing the concept of software patents altogether.

              • by HiThere ( 15173 )

                That is technical protection, but it doesn't keep someone from getting a patent on it. And the patent will be presumed valid, so you will need to prove in court that your use was prior art. And that's not only expensive, it's dangerous. The court may decline to accept clear, verifiable proof. The patent examiners only look in a few places, and often a trivial change is enough that they won't find the prior art. And this isn't even unreasonable. Consider the number of different terms used to describe r

          • I don't think the problem is software patents. The problem is stupid patents. Like, I patent exactly the same thing everyone does, *but on a bicycle!*. The examiners seem to have completely forgotten the basic premise, which is that you cannot grant a patent to something that a person with an ordinary skill in the art could come up with based on prior art.

            They haven't forgotten it - what they realize is that they have to prove that a person with ordinary skill in the art could come up with the claimed invention based on the prior art. It's not something as simple as a gut feeling of "this is obvious", particularly because they get that gut feeling after reading the patent application. If it's a really well written application, super clear with tons of explanatory diagrams and examples, the end result should feel pretty obvious, in hindsight... but that says

          • No, I think the problem is software patents. Almost every software patent isn't for something novel and unique, most of it is extrapolation of current practices and new ways of using the same, which is seen in the fact that almost all of these patent suits are not going after people who "stole" someone else's idea, but rather came up with the same thing all on their own and didn't even know these people existed until they got sued by them. Aside from a few interesting compression algorithms, I'm strugglin

      • Yes, there should be a "public comment period" for all patents. EFF should start a kickstarter to "buy" a few senators.
    • With the rise of creative commons, or should we say the "maker" commons, the need for patents is greatly reduced. Whatever remains is probably best served by mega-Kickstarter-style bounties funded by governments or ultra-rich philanthropists, large-scale moon-shot or Manhattan-type projects for finding the cure for cancer/aids or the elusive quest for sustained nuclear fusion.

      Think of it this way. In an island with one inventor, you damn well should treat that inventor like a king if you want to live better

  • I'm amazed that the USPTO is allowing patents to such ridiculously obvious notions, and that they take huge amounts of money to even challenge. What, apart from greed and lawyers, is keeping this system alive? Is it the possibility of control it gives big players over small ones?
    • by Anonymous Coward

      What's more disturbing is that some USPTO people, the initial patent examiners cannot see the obviousness, but later, the IPR reviewers can - can't they all get on the same page to begin with?

      I don't know the details, but it seems to me the process of recording a talk, then disseminating it has been well established since the early 20th century with sales of vinyl records of such talks/speeches. It would not seem that harnessing a newer technology for such dissemination could be patentable in itself, or th

      • by neilo_1701D ( 2765337 ) on Saturday April 11, 2015 @10:40AM (#49452921)

        My brother works for the Australian Patent Office, so I've no idea how much of this translates to the USPTO. I asked him this very question a few years ago.

        When a patent application comes in, the initial examiner is the newest, most lowly graded person in the office with a huge caseload. They, to a degree, depend on the submitter to have taken the steps to validate the uniqueness of the patent; however there is research done as well to validate the submission.

        Most submissions are done by patent lawyers with as much obfuscation as possible, and if it's outside of the examiner's area is much more likely to get through, as the examiner has to try and decipher what is going on. If the submitter claims no prior art and words the submission carefully enough, it's likely to get through.

        With an appear, it goes much higher up the chain and diverts to someone with more specialized knowledge for further assessment. As you can probably guess, it takes longer and costs much more to get this review happening.

        So, there are fundamental problems with the process in that it assumes honesty on the part of the submitter. If they set out to deceive, as Personal Audio seems to have done, it's a long and costly process to undo it.

        • by sjames ( 1099 )

          Essentially they're selling discount blackjacks "for entertainment purposes only" at football matches.

  • Thanks, EFF! (Score:5, Informative)

    by Nemyst ( 1383049 ) on Saturday April 11, 2015 @10:08AM (#49452809) Homepage
    And remember, the EFF is a non-profit. Donate [eff.org] if you can, show your appreciation. They're fighting the good fight.
  • Lets not forget Adam Carolla basically funded those patent troll assholes with donations from people expecting him to FIGHT it.

  • The patent still has 30 currently valid claims - only claims 31-35 were invalidated. They were also the only claims that Personal Audio claimed Corolla infringed, so invalidating them is a good step forward, but it's a bit much to claim the patent itself is invalidated.

    The remaining 30 claims were also quite a bit narrower than Claims 31-35, so this decision wouldn't necessarily indicate they're likely invalid.

  • I haven't read *today's* news on the subject.

    But about the original patent, everybody complains about the patents that someone got for "X _ON THE INTERNET_" when X was already patented. Yeah, that's ridiculous.

    Shouldn't it work the other way, though? The originally patented idea DOES seem to me to be analogous to podcasting. I originally thought it sounded dumb when Carolla (whose podcast I listen to and enjoy), described it, but reading about it in more detail made it seem like a reasonably patentable i

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