Patent troll goes after popular podcasters | Hacker News Reader

Patent troll goes after popular podcasters

itworld.com

91 pointsjoewooglin61 comments

I was skimming over the claims of the patent. Starting at claim 23, they basically go on to claim all sorts of behavior commonly seen in podcast players, e.g.:

The audio program player set forth in claim 23 wherein said display screen displays the displayable text describing said particular audio recording file when said particular audio recording file is being reproduced.

I really don't understand how the USPTO approves claims filed in 2009 that describe concepts which were in peoples hands for the preceding five years. Perhaps those will be the first claims invalidated, but it just further highlights the mind-boggling logic of the USPTO.

The worst part is, as far as I understand it, the person who let this go through is simply not going to be reprimanded or face any consequence whatsoever.

Why should they? Its the responsibility of USPTO to ensure its agents are acting appropriately by following the rules and standards they set out. Unless the person responsible was doing something malicious, I don't see why they should be reprimanded.

They should be reprimanded because they will end up causing billions of dollars in legal fees over patents that should never have existed in the first place. Do you understand the collateral damage that approving frivolous patents causes?

So poor quality work should be treated the same as high quality work, in the eyes of the USPTO, then?

Part of the problem (as I understand it) is that when patent examiners reject a patent application, they are required to give a reason from an approved list of rejection reasons. The "this already exists" reason requires the examiner to cite some sort of approved publication which describes the invention. Unfortunately, the list of approved publications is essentially "existing patents and nothing else." The patent office recently (less than a year ago) started a wiki to allow experts in certain fields to document the state of the art in that field.

Another part of the problem is that patent examiners are required to examine X number of patents per unit time. Unfortunately, when a patent applicant resubmits a rejected application, the patent examiner does not get credit for examining the patent a second time. So an applicant can troll the patent examiner by repeatedly modifying the application. The examiner becomes so overwhelmed with resubmitted applications that he or she has no choice but to approve the application in order to meet quota.

The result of these rules is that a patent examiner effectively can't reject a patent application unless someone has already tried to patent the exact same thing. Or, "blame the game, not the player."

> Unfortunately, the list of approved publications is essentially "existing patents and nothing else."

This is exactly it. It sounds like a joke, but the USPTO's definition of "non-obvious" actually boils down to "isn't already patented". (Allegedly -- I admit this is hearsay, and I hope it is just some joke.)

The US is first-to-invent, so invention date matters, not (necessarily/entirely) filing date. And this patent is a divisional application of a divisional application off an original filing in 1996. So this filing is considered in the context of the state of the art of 1996.

US if first-to-file since last year with the America Invents Act, aka the "patent reform".

The first-to-file provisions (among others) don't actually go into effect until March 16th of this year. (The 16th being a Saturday, filings will have to be in by the 15th to be considered under first-to-invent.)

But then the patent expiration clock starts now, rather than from 1996? That seems so wrong. That would mean the patent backlog is actually working for the trolls.

Nah, expiration is 20 years from the earliest priority date. So if they're claiming 1996, the patent will expire in 2016.

The backlog used to be problematic along the lines you're thinking, but they adjusted the rules in 1995.

did you not see the "compilation file" elements?

The USPTO does no prior art checking, especially in software. You could patent simple logic gates... today.

This isn't true, I've filed and been granted a number of patents on various things and in nearly every one there was a response from the PTO about things they considered to be prior art. Granted sometimes their searches were poorly done (word matching for example) but generally there was some prior art checking.

Yep. It's not that they don't consider prior art at all. It's just that an exhaustive search for priort art is not possible, and all it takes is one overworked patent clerk to let something like this slip by. It's possible that this is a valid patent based on whatever criteria the patent office uses for software patents.

The problem is that the criteria is terrible for validating software patents. I don't even believe any criteria for validating software patents would actually encourage innovation in software.

Spoken like someone who truly has zero experience with the USPTO.

No, they definitely do check for prior art.

The problem, as I understand it, is that they don't cast their net all that widely, and how they do cast their net doesn't really correspond very well with the way most informed people think about such issues.

In all the cases I've seen, they've cited other patents as evidence of prior art, where the other patent is pretty obviously similar (lots of the same keywords etc). On the other hand, stuff that's so incredibly obvious and widespread that nobody never even considered patenting it before might get through easily, 'cause you know, no prior patents... ><

[I have a Japanese patent, and an attempt to get the same patent in the US was rejected by the USPTO (after years of back-and-forth...) because of prior US patents.]

The claim you quoted also requires all the limitations of claim 23. I haven't looked at those (on my phone at the moment), but just quoting a dependent claim without its independent is meaningless.

The mere fact that something like this can be patented is the clearer indication of how broken the whole system is.

Basically what is patented here is the displaying of some information on a screen. How on earth can something like that be considered a patent?

No, that is not "basically" what is patented here. You have to read the whole claim. And if a claim refers back to an earlier claim as a dependent ("the apparatus of claim x, further comprising...") then it also incorporates all of the limitations of that earlier claim.

Then what is being patented here? You're guilty of the same vacuous response you accuse elorant of.

Mine was at least correct though. Posting from my phone, so you'll excuse me for not trying to parse out the claims.

Fair enough :)

> Apparatus for disseminating a series of episodes represented by media files via the Internet as said episodes become available.

Just wondering what the qualifications are for working in the USPTO are. Do you have to be fully cut off from the modern world and be strongly against innovation?

How is it even possible to patent such fundamental concepts? I bet they would approve a patent for "A system for transferring audio to the ears via vibrations in the surrounding air (sound waves)" AKA speakers. Then you could sue not just the podcasters, but the listeners too.

Sounds to me like your proposed claim would cover more than just speakers; I think all audible sounds would open up the listener to liability.

Good enough to send out shakedown letters, and see how much cash rolls in!

The claims define what a patent covers. You're not quoting from the claims.

Here's the press release from the company:

http://personalaudio.net/wp-content/uploads/2013/01/Personal...

The patent being used against podcasters:

http://www.google.com/patents/US8112504

Another patent referenced in their press release that won an $8mil judgement against Apple in 2011 and is now licensed by "Samsung, Amazon, Motorola, RIM, Sirius, and others":

http://www.google.com/patents/US6199076

As I'm scanning those, I'm forced to wonder: What exactly is a patent supposed to do? Do the good folks at the patent office even know?

This seems to me a scheme of reinventing existing inventions with the injection of paraphrases and more sentences. It's not even "X on a network" or "X on a computer" any more, it's just a vague reiteration of technology already in use for years, if not a decade or more.

The entire patent system is a convoluted web of things which potentially exist which in turn is built on a deeper layer of things which potentially exist and so on... and how exactly is innovation supposed to happen when a non-trivial percentage of the links on those interconnected web are based on obvious things that should have been rejected?

I think the thing you might be grappling with is that when it comes to software, they seem to have allowed the patenting of the implications of inventions, rather than the inventions themselves. Instead of patents on cars, they've allowed people to patent the idea of driving cars to particular destinations.

What's interesting about this case to me is that Personal Audio, LLC is the original assignee for the patent and under the proposed SHIELD act, it would not be liable for paying the defendants legal fees if it lost its legal battle under the newly proposed system.

If the USPTO is willing to grant ridiculous patents that it shouldn't, then the SHIELD act would seem to not make much of a difference at all. It seems to me that the prior art should be a non-issue to produce considering people have been making tutorials on how to make podcasts since '04/'05, but as long as the patents are being erroneously assigned, the SHIELD act will provide very little protection from these types of patent trolls.

Wish I could give you extra upvotes!!

Yes, the SHIELD act is treating the symptom, not the cause.

I think the only solution is to require objective evidence of non-obviousness. The subjective approach, where the patent examiner decides whether the idea seems obvious, is just not working -- particularly for software.

Such objective evidence could consist of successful publication in a peer-reviewed journal, for example, or of providing published references that say that the problem being attacked is known to be difficult, or of showing that others have tried to solve the problem and failed.

In short, the burden of proof needs to be on the applicant to prove nonobviousness, not on the examiner (or the defendants in a lawsuit) to prove obviousness.

The SHIELD Act is not intended to fix everything broken with the system - just slice off the low-hanging fruit.

More comprehensive reform would probably include a ban on patents in software, or at least a much, much shorter patent period for software and similar domains of invention that move much more quickly than, say, pharmaceutical development and approval.

Even for a $1 billion pharmaceutical drug, 20 years is quite a long time to recover your investment. For something that costs a small fraction of that to develop, it's an eternity.

For a patent covering a trivial software idea, it's ludicrous.

I'd be happy with a system that gives five years by default, using the current process. Twenty years only if you can easily prove non-obviousness and significant research investment.

To be honest, a software patent should be required to include working code. The entire point of the system is not to provide money for trolls and lawyers, but ensure that technical knowledge is disclosed to the public while ensuring the inventors of that knowledge are compensated. That is currently not happening.

I don't see how podcasting is in violation of the patent in question.

I can see how a company like Apple, which does provide an "An audio program and message distribution system in which a host system organizes and transmits program segments to client subscriber locations." That's what iTunes does, not say, the Adam Corolla podcast. He doesn't run the message distribution system, he merely uses that distribution system.

Every single one of the patent's claims talks about the player itself, or the endpoint of distribution. At no time is the media itself being distributed claimed, which is what podcasters do. They create the media, your computer plays it.

They didn't patent podcasting, they patented podcast players. What court would give a shit about this re: podcast producers?

Edit: I read somewhere in all this that the patent was filed in 1996? According to http://www.google.com/patents/US8112504, it was filed in 2009. 2009!

You didn't read all the claims. :) Claim 31 describes an "apparatus for disseminating a series of episodes represented by media files via the Internet..." It goes on to describe, essentially, in patent-ese, a web server that serves a podcast.

Yeah I read that part, but I believe that claim comes all together. You don't simply get infringement if you happen to distribute audio files, you have to do it in the way that the entire sum of claim 31 provides.

Specifically this part is the part I don't think ACE Broadcasting Network (Adam Corolla, et al.) violates:

> and employing one of said one or more communication interfaces to:

IANAL though, so... yeah. :-/

The "communication interface" would be the server's network link, which it does indeed employ to:

a) receive a request for the current version of the RSS feed ("compilation file")

b) transfer the RSS feed to the client

c) receive and respond to a request from the client for audio files linked to from the RSS feed

This appears to be a correct description of a web server hosting a podcast. I'm also not a lawyer, but I do see a possible loophole in that the claim describes a single machine serving both the feed and the audio files. If the audio is hosted on a separate server or a CDN, it wouldn't violate my reading of the claim. (If that's what you meant, then I guess we agree.) Of course, that's the kind of detail that would need to be hashed out in court before I'd trust it.

I don't believe that's what they're referencing, as a network link doesn't technically do any of the things you just said. It merely passes on requests for those things. At no time does a network link itself make those requests.

Comcast doesn't get sued by the RIAA for delivering packets which contain pirated music, for example.

So this patent was approved last year. Just why in the name of all that is holy does the patent office keep granting these garbage patents? Isn't it clear that they're blindlingly obvious to anyone "skilled in the art" and not patentable to begin with?

Was it blindingly obvious to do this stuff in 1996? That's when this patent claims priority back to. Also, have you made that assertion without even glancing at the claims? All signs point to "yes."

Adam Carolla took a call from Leo Laporte on his show[1] about the lawsuit.

[1] http://adamcarolla.com/leo-laporte-barry-zito-and-kelley-jam...

Leo segment starts at 14:45

Jesse Thorn, one of the podcasters in contact with the EFF, is asking for anyone who knows of prior art for podcasting before 1996 to get in touch. Hopefully someone on HN will be able to help out with this.

https://twitter.com/JesseThorn/status/307141009815531521

"filed in 1996" I recall using a service that saved NPR episodes as huge AIFF files and made them available for download on the same day they were broadcast. That was around 1996, probably earlier, probably prior art.

If you can get any detail on that, you really should forward it to the EFF. Even just that might spark someones memory.

It seems that one of the defining features of a patent troll is that they like to sit on a patent until a large, profitable, and well-established industry has built up around a technology that could be construed to fall under the patent's domain. At that point, they make their move for fame and profit.

Would it be reasonable to require "due diligence" on the part of the patent holder in order for a patent to be considered valid? In other words, if they have shown no interest in protecting their intellectual property in the face of long-standing and widely known "violations," it seems that a situation could apply that would work in a way analogous to the idea of piercing the corporate veil. Patent holders who have sat idly by as the violations of their patents (pending or otherwise) have gained notoriety and fame have demonstrated a lack of desire to pursue the technology, and are obviously just using it as a get rich quick scheme.

The idea here would be that, in this case, Personal Audio would have had to protect the rights to their setup as soon as it became reasonably evident that violations could be occurring (maybe the birth of iTunes or something). That would have been many years ago, before podcasting became popular. At that point, there's little profit in a lawsuit other than actually stopping someone from stealing an idea, so it's not so much of a bank account booster.

This just occurred to me, so I apologize if it's been discussed and demolished before -- it does seem that it would help to prevent this sort of surprise attack from happening without harming actual legitimate patent holders (they will pursue their rights early and often regardless of this idea being implemented).

"1996" - It's a shame that Google Groups Usenet search is so broken at the moment. This is the kind of thing that a good Usenet search would be useful for.

It's been broken for a long time.

Google has done for Usenet what Caliph Omar did for the Library of Alexandria.

this is very true and very sad.

Google should give the archive to archive.org or similar if they don't want to use it.

A relevant starting point for prior art might be Real Audio, which was released in 1995. The RealPlayer wiki says that it was started as a radio network and broadcasted sporting events in 1995. I bet someone over there knows even better examples of prior art pertaining to "syndication".

This is really becoming inane. How is it that someone unconnected to the original innovation can file a patent for something which isn't new or original technology?

Patent trolls have become so ubiquitous that articles like these are no longer shocking.

Was it new/original in 1996, when this patent family was first filed?

They didn't file it, they picked it up after the fact.

What does that have to do with anything? Inventors selling rights in their creations is pretty unremarkable.

I hope Eric Raymond goes YOLO one day and starts wiping out these patent trolls with his massive gun collection.

Really? You hope for murder?

Just start with the Claims and go from there. You must literally infringe every single word (that's why patent Claims seem so awkwardly worded).

Simply not do ANY ONE OF THE following:

> "series of episodes"

So a single episode and you may avoid infringement

> "performing, from time to time, one of a sequence of update operations"

So eliminate periodic operations, or sequence of updates and you may avoid infringement

> "each of said update operations comprising: downloading via the Internet the current version of a compilation file identified by a predetermined known URL"

So either don't identify using known URL (admittedly not likely but worth mentioning), avoid what they defined "compilation file" to be, or even avoid "predetermined" and you may avoid infringement

> ", and storing attribute data contained in said current version of said compilation file in said digital memory, said attribute data describing one or more episodes in a series of episodes"

Now it starts sounding like "compilation file" is more than just a mp3 file. So the first support I find (CTRL-F is your friend) related is:

> "The download compilation file 145, though represented as a single file in FIG. 1, preferably takes the form of one or more subscriber and session specific files which contain the identification of separately stored sharable files. By way of example, the recommended order and the identification of the program files making up an individual playback session are stored in a session schedule file (to be described in detail in connection with FIG. 5) which contains program identifiers of the program segments to be played during an upcoming session. The player 103 downloads the session schedule file and then issues download requests for those identified program segment files which are not already available in the player's local storage unit 107."

Add to this, FIG. 5 and FIG. 6, and it looks like compilation file includes one or more things like indexes, transcripts, condensed content, topic description, paragraphs, etc... So avoiding this "compilation file" is probably their best bet - just serve straight up mp3 files and you may avoid infringement but compile mp3 into these "compilation files" and you're infringing.

What troubles me is that I'm not an expert but yet have found plenty of options for Carolla/etc to avoid this (and relatively cheaply). So who's the patent lawyer giving Carolla advice to fight this? Probably the EFF as part of their anti-patent propaganda.

It is neither interesting nor helpful to point out that the defendants of this patent troll could have avoided a lawsuit by avoiding podcasting altogether.

The described mechanism is how podcasting has worked for over a decade and it is wholly unrealistic to expect everyone to preemptively engineer around an overbroad patent that was only granted last year.

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