VoloMedia, an online ad tools company, is gleefully declaring that it has been awarded a patent on podcasting. The specific patent, 7,568,213, is for a "Method for providing episodic media content." Not surprisingly, it's a continuation patent (sometimes referred to as a submarine patent) where the claims are changed over time to keep current with what's happening in the market. The patent itself is short, with the main claim being:

A method for providing episodic media, the method comprising: providing a user with access to a channel dedicated to episodic media, wherein the episodic media provided over the channel is pre-defined into one or more episodes by a remote publisher of the episodic media; receiving a subscription request to the channel dedicated to the episodic media from the user; automatically downloading updated episodic media associated with the channel dedicated to the episodic media to a computing device associated with the user in accordance with the subscription request upon availability of the updated episodic media, the automatic download occurring without further user interaction; and providing the user with: an indication of a maximum available channel depth, the channel depth indicating a size of episodic media yet to be downloaded from the channel and size of episodic media already downloaded from the channel, the channel depth being specified in playtime or storage resources, and the ability to modify the channel depth by deleting selected episodic media content, thereby overriding the previously configured channel depth.

I have a lot of trouble understanding how this is possibly patentable. I would think that Dave Winer's work on enclosures for audio content in RSS would be seen as significant prior art. Beyond just the prior art, you have to wonder how this passes the "bilski" test (what was transformed here?) or the KSR/Teleflex test on obviousness (this is simply combining things that were already out there). Still, expect plenty of trouble here. Considering that Volo wasted no time at all in rushing out a press release, expect them to be aggressive with this patent -- without realizing that it may be unleashing significant anger from the podcasting community that it probably doesn't want.

While I'm certainly a big fan of involving more people in the process of reviewing patents, I've been a huge skeptic of the "Peer-to-Patent" program that the USPTO tested over the past few years. As I noted earlier, there's very little incentive for most people to actually get involved in peer reviewing a patent that early on. It's only much later when the patent actually becomes an issue (i.e., someone is asserting it somehow) that it really becomes an issue (especially when they're claiming it covers something that appears to be totally unrelated). However, there were many who promoted peer-to-patent as some sort of savior of the patent system.

And yet... the entire program apparently shut down last month and almost no one noticed (thanks to Eric Goldman for sending this over). They claim that the program is being "reviewed," but no more patents are being accepted into the program, and the few that are already in are expected to be finished in the next few months.

Again, having multiple people look in on patents is a good idea, but the setup of this particular program was incredibly flawed from the very start. There wasn't much incentive to participate from either end, and so the program didn't go very far or come up with very much useful. Also, it focused too much on "prior art" as an indicator of "obviousness" when the two are separate things (though, they may be related). It's great that the USPTO was open to experiments on improving patent quality, but this one never seemed to have much going for it.

Because it's quite obvious that no one would ever have come up with copy protection on an ebook reader without the Discovery Channel's CEO coming up with this patent, the entertainment company has now sued Amazon.com for patent infringement, claiming that the Kindle infringes on the patent. Of course, Amazon could avoid all of this if it hadn't put DRM on the Kindle... but then how would it use the DMCA to block interoperability? In the meantime, is Discovery Communications so hard up these days that it needs to sue companies in entirely different businesses over a patent on a concept in a field it's not even close to being in? In the meantime, perhaps some patent attorneys could weigh in, but reading through the claims on the patent, I'm wondering how this patent is valid in a post-KSR/Teleflex world, which supposedly noted that patents that simply combined two obvious ideas should be obvious as well. The patent in question certainly looks like "DRM + ebooks," both of which were rather well-known and widely discussed at the time the patent was filed.

Slashdot points us to the latest absurd patent to get approval from the USPTO. IBM has been granted a patent on the concept of storing your packaging preference information on your customer card. Yes, basically, the act of storing whether or not you like paper or plastic bags on your customer loyalty card is considered such an original idea that it deserves a monopoly.

We've been having some debates over the last few days in the comments on the question of "obviousness." This patent hopefully demonstrates the point that many of us are trying to make. The defenders of the patent system will claim that this is a perfectly reasonable patent because no one has done it before (where's the prior art, etc?). But that doesn't get into whether or not this is actually obvious. Customer cards store all sorts of information. Should we give someone a patent on each and every one? The implementation isn't hard at all. If you were to ask your average (or, even below average) techie, how they would go about storing and retrieving such information, they would do so in an instant. It simply makes no sense to award a long-term monopoly on adding just another bit of info to your customer card. And, yet, that's the system we have these days.

For years, we've pointed out how ridiculous it is that our patent system doesn't include an independent invention defense. It seems rather against the concept of promoting innovation to say that someone who invented something entirely independently should be barred from using his own invention just because someone else invented the same thing slightly earlier. Considering just how many major discoveries are discovered independently by multiple people, this seems especially troublesome. In fact, various research papers have been written about why an independent invention defense makes a lot of sense.

However, beyond just a "defense" on patent claims, we've often pointed out that independent invention actually should represent pretty good evidence that an invention doesn't meet the criteria for "non-obviousness" to those skilled in the art that is required for a patent. After all, if multiple folks skilled in the art are all coming up with the same invention, it seems to be rather definitive proof that the concept was an "obvious" next step to those skilled in the art. Of course, whenever we bring this up, patent system defenders talk about what a ridiculous idea this is and how it would be a disaster in practice. Unfortunately for them, the actual research suggests it would actually be quite reasonable.

However, with so many patent attorneys insisting that it's ridiculous that simultaneous or independent invention would be used to prove obviousness, it's interesting to see a patent attorney over at Patently-O point out that it's perfectly reasonable to use simultaneous invention as proof of obviousness, even though he admits it's "seldom used." Hopefully, that's going to start changing. If the purpose of the patent system is only to protect "new and non-obvious" inventions -- it would seem like de facto evidence of obviousness that others are doing the same damn thing. If you have to keep the patent system at all, such a test for obviousness (rather than just in court cases, as is suggested here) would be a tremendously useful step in the right direction.

Thanks to the whole slew of folks who sent this in: TechCrunch has the details on Channel Intelligence, a company that owns a ridiculously broad and obvious patent on creating a list from a database and is now suing a whole bunch of small websites that offer things like wishlists. Read through the claims of the patent and see if you can explain how a single one is possibly new or non-obvious to those in the space. As TechCrunch notes, the lawsuits are all targeted against smaller websites, rather than the big players like eBay or Amazon. There are a variety of reasons why this might be. Channel Intelligence may have approached those companies and actually received a token payout (cheaper than a lawsuit for those companies). Or, perhaps more likely, it's using these smaller lawsuits to bring in some additional cash and to establish the myth that this patent is valid. That was common a few years back, before people started suing everyone at once for patent infringement. Patent holders would mostly target a few small companies, who wouldn't be able to launch a strong legal defense -- use those "victories" to build up a warchest while also claiming that it showed how the patents are "valid."

theodp writes "In a timely follow-up to the Did Amazon Cash In Big On Oprah Viewers' Confusion? item, the USPTO granted Amazon a patent Tuesday for Automatically Identifying Erroneous Orders, which means that trying to stop your customers from placing an incorrect order now constitutes patent infringement." Can someone please explain to me why this deserves a monopoly?

Amazon's "one-click patent" has been one of the rallying points for those who feel that software and business model patents are truly problematic. In 2001, the patent was challenged through BountyQuest, but that challenge was rejected by the patent office. In 2005, however, a guy in New Zealand began his own quest to invalidate the patent, successfully convincing the patent office to review the patent based on new prior art he had turned up. While there was a setback last month, when a 3-judge panel questioned an examiner's ruling that many of the claims should have been rejected as obvious, it appears that the prior art has now been found much more convincing. The patent office has now issued an initial rejection of 21 of 26 claims in the patent. Of course, while some are already celebrating this win, the case is far from over. As we've seen many times before, the early rejections from the patent office don't necessarily mean all that much, as the patent holder has a chance to respond and many things can happen before the validity of the patent is finally established. Still, it's certainly better than the patent office sticking by the original patent completely.

Following the Supreme Court's April Teleflex v. KSR decision lowering the bar for what's considered "obvious" in granting a patent, the US Patent Office has finally gotten around to issuing new guidelines for how patent examiners are to determine whether or not the concept in the patent should be considered "obvious." As per the Supreme Court's ruling, patent examiners can now go beyond prior art "teaching, suggestion, or motivation" (TSM). Now, examiners can look at the prior art in the space and then the ordinary skill in the area and whether or not those of ordinary skill in the art would find the new offering obvious. This is definitely a step in the right direction (or, actually, a step back to where patents originally were supposed to be). Now let's see how well it's actually put into practice.