Patent Troll Says It Owns Podcasting; Sues Adam Carolla, HowStuffWorks

from the this-dept.-line-is-patented dept

We’ve written a few times about a patent trolling operation called Personal Audio. Like so many patent trolling companies, who’s actually behind it is something of a mystery, but it does have an empty office in East Texas that no one ever goes to. It sued Apple and others claiming that it held patents on the concept of “playlists” and actually scored some victories. Amazingly, it sued Apple multiple times over the same patent, arguing that small changes to its products were new violations.

Well, the company is back with a “new” patent, 8,112,504, called a “System for disseminating media content representing episodes in a serialized sequence” and appears to be claiming that podcasting itself violates the patent — and has sued three podcasters, including Adam Carolla’s “ACE Broadcasting,” HowStuffWorks and Togi Entertainment. Personal Audio focuses on claim 31 of the patent, which you can read here:

31. Apparatus for disseminating a series of episodes represented by media files via the Internet as said episodes become available, said apparatus comprising:

one or more data storage servers,
one or more communication interfaces connected to the Internet for receiving requests received from remotely located client devices, and for responding to each given one of said requests by downloading a data file identified by a URL specified by said given one of said requests to the requesting client device,
one or more processors coupled to said one or more data storage servers and to said one or more communications interfaces for:
storing one or more media files representing each episode as said one or more media files become available, each of said one or more media files being stored at a storage location specified by a unique episode URL;
from time to time, as new episodes represented in said series of episodes become available, storing an updated version of a compilation file in one of said one or more data storage servers at a storage location identified by a predetermined URL, said updated version of said compilation file containing attribute data describing currently available episodes in said series of episodes, said attribute data for each given one of said currently available episodes including displayable text describing said given one of said currently available episodes and one or more episode URLs specifying the storage locations of one or more corresponding media files representing said given one of said episodes; and
employing one of said one or more communication interfaces to:
(a) receive a request from a requesting client device for the updated version of said compilation file located at said predetermined URL;
(b) download said updated version of said compilation file to said requesting client device; and
(c) thereafter receive and respond to a request from said requesting client device for one or more media files identified by one or more corresponding episode URLs included in the attribute data contained in said updated version of said compilation files.

Now, let’s be clear. This patent was applied for on March 4, 2009 and granted on February 7, 2012. Isn’t it great that the “new” USPTO is now rushing through patent approvals, so examiners like Carl Colin could claim that this patent was both “new” and “non-obvious” to those skilled in the art, when podcasting itself has been around since at least 2004. Hell, why not look it up on, oh, HowStuffWorks — one of the companies being sued for “violating” this patent that wasn’t applied for until 2009? Incredibly, Adam Carolla’s podcast started on February 23, 2009… or exactly two weeks before this patent was applied for. Update: As pointed out in the comments, this is actually a “child” patent of an earlier application, so they can argue a priority date from back in 1996. In other words, this is really a submarine patent (which were supposed to have been outlawed).

Of course, with so many podcasters out there, Personal Audio is not just focused on the three companies it’s sued. The EFF notes that the company has sent out licensing demands to a bunch of other podcasters, as well. The good news is that the EFF is now trying to help those podcasters fight back.

What might make this even more interesting would be if people like Adam Carolla, who have huge audiences that take what they say really seriously, were able to get those audiences suddenly interested in just how totally screwed up our patent system is. Want the problems of the patent system to go mainstream? Just start having Adam Carolla talk about how messed up it is a few times on his podcast. Carolla has said that his podcast is the most downloaded podcast ever — and if his listeners understood just how screwed up things are with the system, perhaps we could actually make a move towards really fixing an incredibly broken patent system. Carolla has apparently talked about it a little bit, and called for a “grassroots legal defense fund,” but that’s not going to change the actual system. If he could speak out against the problems of the overall system, rather than just that one patent, it might help permeate the public consciousness that it’s the system itself that’s broken.





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Companies: ace broadcasting, howstuffworks, personal audio, togi entertainment

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Comments on “Patent Troll Says It Owns Podcasting; Sues Adam Carolla, HowStuffWorks”

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106 Comments
PaulT (profile) says:

Re: Re:

Yep, there’s decades of precursors, but they’ve probably tried to make the language as close to the modern day incarnation as possible to stop that from becoming accepted as “prior art”. For example, the following sentence:

“each of said one or more media files being stored at a storage location specified by a unique episode URL;”

That rules out Usenet, because such URLs weren’t used. Very sneaky, but what can you expect from these people?

Bill Logius says:

Re: Re: Re:

Not a problem. See prior art at patents.stackexchange:
http://patents.stackexchange.com/questions/3884

Multiple sites were up and running and offering podcasting in its exact modern form well prior to the patent filing date.

This patent is dead, the patent holder knows it, and right now is probably trying to figure out how to back out without incurring losses.

PaulT (profile) says:

This actually annoys me no end, largely because I’m a regular podcast listener and have been since late 2006. There’s a lot of podcasters out there, but most either make no money or actually run their podcasts at a loss. The majority are just people in a bedroom with a laptop getting their opinions heard by a small group of like-minded listeners.

Sure, a major podcast operation or broadcaster using podcasts as just one of their distribution tactics can fight back, change their distribution or simply pay up. Amateurs, on the other hand can neither pay nor fight, so will take the option to shut down their podcasts completely. This isn’t just companies attacking other companies – it’s peoples’ art and hobbies being destroyed because some parasite wanted some free income.

I hope that this gets overturned, and quickly, but it’s yet another example of racketeers trying to destroy the hard work of others so that they can profit. How anyone can defend this system, where people are apparently able to claim ownership over something they not only didn’t create, but was in operation for years before they came along, is beyond me.

JoeD says:

Re: This has got to be fixed

NO! Congress does NOT need to pass new any laws! What they need to do is repeal laws – starting with a ratification of the Constitution to do away with patent law. I know it’s not going to happen any time real soon. So then the law should be changed to limit the amount of time a patent is valid – maybe to one year.

Anonymous Coward says:

No new projects hiring me. Too many patents and not enough money or time to research it before you work on your new idea. It’s a bunch of bullshit and will destroy American Innovation. If only the big guys (who can afford a patent and have the time) file patents then new ideas will be stifled because they don’t want to have to research it.

Vidiot (profile) says:

Who is "Personal Audio"?

From a Personal Audio press release, via PRWeb:

“Personal Audio, Inc., a predecessor to Personal Audio, LLC, was founded in 1996 with a mission of offering personalized audio to listeners using portable players downloading content and playlists from the Internet. The self-funded company worked to develop such an audio player that could download, store and manipulate audio files and related data. That system, described in patent applications filed in October, 1996, pioneered techniques now commonly used today in MP3 players, smartphones, tablets and other products that store and play audio and video files and work with downloaded playlists and podcasts.

The founder of the company was James Logan, an entrepreneur who previously had been a pioneer in the touch screen industry. He founded MicroTouch Systems, which became a public company and leader in the industry, and later Gotuit Media, a pioneer in the video metadata field.

In 2009, Personal Audio, LLC was founded by Logan and Call to market the innovations described in the patents.”

Dave (profile) says:

Re: Re: Can we sic the studios on them?

No, because Personal Audio founder Jim Logan had extensive working relationships with the studios while he was with Gotuit Media.

http://www.linkedin.com/pub/jim-logan/1/b80/339

It wouldn’t surprise me in the least if Logan and Personal Audio were merely Big Media puppets at work here, trying to squash alternative programming. This might explain why Adam Carolla is the first target, beyond the fact that he’s the biggest podcaster. After all, he rejected Big Media to strike out on his own. Wouldn’t surprise me if they went after Glenn Beck next — although Big Media fired him, which is a little bit different.

Say, does Newegg have a podcast? Think they could start one?

Josef Anvil (profile) says:

I'm still unclear

I just don’t get it. I read the lawsuit and I cannot figure out the infringement.

If someone invents something and gets a patent then they get a monopoly on selling it. That makes sense to me, whether it is right or wrong. If I then recreate their invention and use it, but don’t sell it, then I am not in any way infringing upon their monopoly, I am just using something that I made and I don’t believe there is any law against that.

I’m not sure how you can sue content creators for their use of technology which is at their disposal. They are not actively selling an apparatus for disseminating a series of episodes represented by media files via the Internet as said episodes become available. Even under the doctrine of equivalents, the content creators are selling content, not the apparatus for distribution.

I think this is the first trolling case that I have seen on TD where there is no actual infringement of the patent in question, since patents merely protect the right to sell the patented product, not the right to use it.

So could someone please explain the infringement to me?

Vidiot (profile) says:

Re: I'm still unclear

My take on this… from a non-attorney viewpoint: Although there are, no doubt, suites of podcasting software available, as there are podcasting services, the patent is so broad that simply offering serialized recordings, without the use of any inventor’s technology or devices, would infringe. The act of embedding the audio content, even using open-source HTML, would be, under these definitions, podcasting; and, apparently, Mr. James Logan invented it! (Right.)

Anonymous Coward says:

A patent that issues approximately three years after its precursor application is files is hardly “rushing”.

The claims of the patent cover various iterations of an article of manufacture. It is not software, nor is it a business method. I daresay that the USPTO is not a “newbie” in the article of manufacture arts.

A patent claim cannot be analyzed by a mere skim, and then immediately declared to be neither new nor non-obvious, unless, of course, one is simply predisposed to declare everything neither new nor non-obvious. It takes doing some homework before one can declaratively opine in an intellectually honest manner that such a claim is invalid.

Apparently, the author of this article views the issuance of any patent as conclusive proof that the patent system is “broken”.

Sorry, but this article reads like a screed, and not a thoughtful analysis of the patent and its substantive scope.

PaulT (profile) says:

Re: Re:

Do you have anything substantive to add? Probably not.

The facts are these: however quickly or slowly the patent was examined, it describes things that existed before the patent was filed. Said patent is now being used to attack those who were using said technology before the patent was filed. Those are hardly the earliest examples of such people using technology, but even if they were their usage predates the patent application.

How do you defend this? No deflection and distortion, please – facts.

“Apparently, the author of this article views the issuance of any patent as conclusive proof that the patent system is “broken”.”

Careful, you don’t want to get your strawman burned, do you?

Anonymous Coward says:

Re: Re:

“Apparently, the author of this article views the issuance of any patent as conclusive proof that the patent system is “broken”.”

If only it was just this particular patent…

The fact is, the patent system is completely busted. Evidence of that is that every other week you get stories of some douchebag abusing the patent system to crush competition or to siphon away money from the actual innovators.

Niall (profile) says:

Re: Re:

If you read the article, it says that the patent was applied for in 2009 (several years after prior art), and only issued in 2012, which is hardly rushed.

Quite aside from the issue of when this was applied for and granted, the thing that bothers us regulars on Techdirt is that it is very apparently yet another “doing something obvious (on the internet)” type patent, which really wrecks the whole point of any kind of “I invented it” defence. Just call it “I was first to apply for a licence for monopoly to gouge” and be done with!

Josh in CharlotteNC (profile) says:

Re: Re:

The claims of the patent cover various iterations of an article of manufacture.

Surprisingly, I’ll agree:
“Claims
1. A media player for acquiring and reproducing media program files…comprising:
a digital memory,
a communications port…
a processor coupled to said digital memory and to said communications port…
2. A media player as set forth in claim 1 wherein said digital memory includes a mass storage device for persistently storing attribute data and media files downloaded via said communications port.”

It sounds to me like they’ve patented an iPod. In 2009.

It is not software, nor is it a business method.

Well, continuing reading the rest of the claims, they’re mostly functions performed by software on the device patented in Claim 1. Which to my understanding of even the craziness of the patent system would wouldn’t apply to someone doing similar things on a general purpose computer, right?

So why are they suing people who produce and distribute podcasts over the internet?

Unless they are claiming that the patent applies to software running on general purpose computers. But you just said they didn’t patent software.

So again, why are they suing people who produce and distribute podcasts over the internet?

Josh in CharlotteNC (profile) says:

Re: Re: Re: Re:

Follow the link to the patent in the article. All the claims are there in full, and since anyone can easily follow the link and see them all, I didn’t bother to reproduce them all. (Wouldn’t want to get sued for copyright infringement because I quoted an entire patent, ya know.)

Please follow the link and then respond. Again, I’ll state, after reading through all 35 claims, that the only thing that is not software or a business method they claim to have invented in this patent resembles an iPod.

Franklin G Ryzzo (profile) says:

Re: Re: Re:2 Re:

Please stop calling the Diamond Rio an ipod, and please never capitalize a letter directly following a lowercase “i”.

Thank you, that will be all.

(PS – I agree with your analysis of the frivolity of this patent’s issuance. The prior art to these claims is so ridiculously obvious the only explanation is that all USPTO examiners must be required to have been Amish hermits immediately preceding their USPTO appointments.)

John Fenderson (profile) says:

Re: Re: Re: Re:

Here’s the thing for me as a layman. All of this legal business of having to check each claim independently, etc., is beside the point. The point is that the troll is using this patent to claim he is owed money for doing something that was being done before the patent was filed (even if you take the 1996 date). Even ignoring that, this was an obvious idea from the moment this sort of thing became possible, let alone feasible (I know, I was there). It’s one of the first things you think of.

Regardless of the legality of the patent, there is nothing novel or new there. This is trolling at its most pure form.

Simple Mind (profile) says:

Re: What if Caveman had patented the wheel?

Cave-lawyer: “Cave-man has just been issued a patent on the Wheel. We saw you moving blocks of stone on a platform of rolling logs. Pay us 3 wolf-pelts and 2 saber-tooth knives or we will sue you for a side of mastadon.”

Cave-mason: “But I have been moving stuff on rolling logs for over 10 years and others have been doing it too. How can Cave-PTO issue such a broad patent now, given all of the obvious prior art?”

Cave-lawyer: “You have to examine each of the claims to measure their individual validity. You can’t just say the patent is obvious without looking at the details. Cave-PTO examiners are experts that went to Cave-harvard university.”

Cave-mason: [After carefully examining the stone tablet inscribed with the patent.] “I see this patent was applied for 6 years ago. That was around the same time I did some construction work on Cave-man’s cave.”

Cave-lawyer: “Cave-man draws inspiration for his inventions from many sources. Anyway, you better just pay up the 3 little pelts or you risk losing an entire half of a Mastadon. Plus you will be held up in extended court proceedings away from your work while your wife and children starve.”

(Very early in its history, the human race goes extinct.)

Dave H says:

Effective filing date

It is important to note that this patent claims the benefit of a parent case filed back in 2001, which the Google summary doesn’t show, and THAT was a divisional of an application filed in 1996. Here’s a link to the publication of the application filed in 2001:

http://www.freepatentsonline.com/y2008/0155616.html

and to the patent that issued from the application filed in 1996:

http://www.freepatentsonline.com/6199076.html

The Examiner has to look at the claims and the prior art as of the filing date or effective filing date of the application. Also remember that it’s the claims that are enforced, not the disclosure as a whole. I’m not commenting on the validity of any of the claims – just pointing out that the effective filing date is earlier than would appear from the Google summary of the patent under discussion.

There are bound to be lots of things that a suit would latch onto since in a cursory review of the file history of the 2001 application I see that it went abandoned in 2003, but was revived, eventually, in 2008. It’s bound to get ugly if any defendant sticks to its guns.

Mike says:

Patent was filed in 1996

Here’s a link to the patent: http://www.google.com/patents?vid=USPAT8112504

You’ll see that this particular application claims priority all the way back to Oct. 2, 1996. The original patent application issued as Patent No. 6,199,076. The 2009 “filing date” was only when this particular child application was filed.

I don’t know the merits of the PA case, but at a minimum, you’re analysis above is wrong based solely on the date you used.

PaulT (profile) says:

Re: Patent was filed in 1996

So, instead of suing people who were already using a technology before the patent was applied for, they’re suing people who independently started them afterward. People who were using and creating via a group of independent technologies that became popular while PA were just waiting for the patent to be approved.

That doesn’t make it better, nor change the overall point of the article. Nothing was created as a result of this patent being applied, but much stands to be destroyed. PA are trying to line their pockets while users of the pre-existing technologies that were around for years before they even started using it themselves. That’s not right, no matter how you try to spin it.

Mike says:

Re: Re: Patent was filed in 1996

“they’re suing people who independently started them afterward. People who were using and creating via a group of independent technologies that became popular while PA were just waiting for the patent to be approved.”

Well, infringement usually occurs AFTER a patent is filed, yes. Independent creation is not a defense to patent infringement (unlike copyright). The publication of a patent application and the granting of a patent is treated as constructive notice of the invention so nothing can be “independent” anyway.

I don’t know what PA was doing in the interim. If they sat on their rights, there is a defense of laches.

Finally, you (in theory) cannot claim an invention that is not described or supported in the specification. If it is not described or supported, the patent claims will be invalid.

“Nothing was created as a result of this patent being applied, but much stands to be destroyed.”

Objection, facts not in evidence. By at least one account (see comments above) PA may have been a real company for some period of time.

At some level, the whole point of a patent is to protect the innovator from being trounced by second-comers able to capitalize for free on the activities of the first mover.

But before I get trounced for supporting a patent troll, that was never my objective. I was merely pointing out the premise of the date disparity was wrong. The first filing occurred more than a decade before.

Anonymous Coward says:

Sue the USPTO

The problem is the USPTO!

As the USPTO is the foundation for this claim, and the USPTO did not invalidate this patent as obvious, then the USPTO should be held accountable for damages it’s actions have caused!

A counter suit should be filed for damages by everyone being sued using this patent. This counter suit should include the USPTO!

A media player is just another name that could be a unix computer with sound capabilities. Unix computers do often log usage for billing it’s users. Said computers often had limits that required breaking large chunks of data into smaller parts for processing/usage. Said computers often used files to point to other files. Networked unix computers have existed for a long time. So two unix computers connected via a network, one with sound is what this patent describes. Said unix computers existed well before 1990!

So a counter suit for damages that includes the patent owner and the USPTO is the way to stop this mess.

Anonymous Coward says:

Perhaps...

The reason Adam doesn’t address the major causes of this issue is that he has built his career through the assistance of the major legacy media companies that all support really strong IP enforcement and addressing the actual cause of these sorts of issues directly would likely anger those very same companies so, unfortunately he will likely keep it narrowed to the scope of his specific case.

Either that or he simply doesn’t understand the root cause of the issue.

Anonymous Coward says:

Re: Re: Gross incompetence?

Actually I think it’s more laziness. Since when patent trolls file for patents, if it is rejected, they simply change the wording a bit and refile it starting the process all over again and again until it is finally granted. With an already flooded and overburdened USPTO, it’s easier for them to simply grant it and then let the legislative branch invalidate them later if it goes far enough through the legal system.

Anonymous Coward says:

What might make this even more interesting would be if people like Adam Carolla, who have huge audiences that take what they say really seriously, were able to get those audiences suddenly interested in just how totally screwed up our patent system is. Want the problems of the patent system to go mainstream? Just start having Adam Carolla talk about how messed up it is a few times on his podcast

As someone who is very familiar with Adam Carolla from way back in the mid 90’s when he was on Loveline )although I admit I have not kept up with him the past few years) I can say two things about him:

1) He is NOT shy about expressing his opinions, and has been well known to go on long rants about topics he feel are total BS.

2) He is very good at explaining complicated things in terms laymen can often easily understand.

Like 4chan or Reddit (as just 2 examples) he is a force better off not annoying if at all possible.

weneedhelp (profile) says:

Apparatus for disseminating a series of episodes represented by media files via the Internet as said episodes become available, said apparatus comprising:

“Apparatus for disseminating a series of episodes represented by media files via the Internet as said episodes become available, said apparatus comprising:”

Ha ha ha. Well c’mon guys its ON THE INTERNET. LOL.

Zangetsu (profile) says:

Sue Apple

To be honest, from the piece that I read it really looks like they are talking about iTunes and not necessarily podcasting in general. For example, Apparatus for disseminating a series of episodes represented by media files via the Internet as said episodes become available seems more like iTunes than anything else. So, when is he suing Apple?

PaulT (profile) says:

Re: OMG! They issued another Patent!

“Just pay a small license and pod cast till you are blue in the face”

Yes, just continue to do something you did perfectly legally for years and pay up, and you can continue. I wonder how “small” the licence is – is it enough for the mostly amateur, unpaid podcasting community to really afford or is it one “small” for professionals?

Do you not see the problem with this? I wish I could get a patent on making moronic comments on websites, I’d make a fortune…

GAC (profile) says:

Re: OMG! They issued another Patent!

My podcast makes $0. It’s not likely to make any significant money either, since it’s on an extraordinarily niche subject — one of the beauties of the medium is that people can make amateur content about subjects they care about for almost no money. Many podcasts out there make $0, and that’s just fine.

A couple of issues I understand (not a lawyer) about the patent:
– My understanding is that the original patent was for recording magazines on tape and sending them to customers. The updated version looks like an attempt to rewrite the patent to cover modern technology.

– It’s obvious: given a global network of computers, anyone who couldn’t imagine that said global network could be used for disseminating media is either completely out of the loop or an idiot.

staff (user link) says:

more dissembling by Masnick

Masnick and his monkeys have an unreported conflict of interest-
https://www.insightcommunity.com/cases.php?n=10&pg=1

They sell blog filler and “insights” to major corporations including MS, HP, IBM etc. who just happen to be some of the world?s most frequent patent suit defendants. Obviously, he has failed to report his conflicts as any reputable reporter would. But then Masnick and his monkeys are not reporters. They are hacks representing themselves as legitimate journalists receiving funding from huge corporate infringers. They cannot be trusted and have no credibility. All they know about patents is they don?t have any.

http://truereform.piausa.org/default.html#pt.

Anonymous Coward says:

It is disappointing, but all too predictable, that the author of this article has the proclivity to launch error-filled “bombs”, post insulting comments when such errors are noted in responses to the article, and then cease all further discussion when his later comments are once again challenged as containing errors of fact and/or law.

Apparently, respectful traversals of his arguments are not well-received, and perhaps even considered to comprise personal affronts, thus resulting in his withdrawal from any further comments attempting to substantiate his claims.

Fred M (profile) says:

Please correct me if I am wrong

If I read the patent information correctly, which I briefly looked at before my head started to spin LOL. It states it is media disseminated by digital media stored for people to download in an episodic manner. I think that was made clear before. However, it did mention the ability of volume control and blah blah blah.

My question is this. Beyond the scope of pod casting what about media say like Netflix and Hulu that store digital media in an episodic manner where people can download and/or stream? Because it does state in the patent that it can be either audio or visual media. I mean if they wanna get technical when you stream something it is being downloaded in portion to your system. So… the question has to be asked, if I am correct, why aren’t they going after the owners of the companies that do this on Netflix and Hulu or on their own personal websites. After all most major TV broadcasters post episodes (in an episodic manner) on their web pages for people to download and view.

I think the bigger question is, are they saying because it is a “pay for play” subscription it infringes on the patent? If so, take away the pay for play and ask for donations or something. Heck I dunno. I am working on two pod casts and have done one in the past, this is surely making me wonder.

Fred M (profile) says:

Patenting gon wild

I remember one judge stating that patenting can be silly. It would be like patenting a swing that Tiger Woods’ uses and saying he violates that patent. Silly.

Most pod casts are done by people like me that don’t have resources and means to get high paid lawyers involved in every step of the process.

I just do it for fun. Hey if I make a buck all the better. Yet that isn’t my first motivator. So when do I get a suit filed against me?

Really sad, when all your media has to be filtered through everyone with more money. Money makes the world go round, and if you ain’t got it you’re screwed.

mac says:

go ask Apple Records how their patents from back in the 60s before Steve Jobs was even born, is doing now that Job’s Apple is running the music industry after eventually getting judge after judge to go their way during all the various attempts by Apple Records who had clear cut basic english verbage showing they had the full rights to use that name within the Music industry as a whole, even so far as an agreement with Steve Job’s Apple at one point who said they would never get into the music industry sometime in the 80s or early 90s before the final court case which resulted in the Itunes monopoly we now know

PatentKiller says:

Here's how you beat this patent...

I see at least 5 ways to beat this patent. Here’s the LEAST obvious…

from: http://www.google.com/patents/US8112504?dq=8,112,504&ei=FrkRUc63N8zWigKlt4DABg
===================
“The host organizes the program segments by subject matter and creates scheduled programming in accordance with preferences associated with each subscriber.”
===================

Nobody does this. Podcasts are serial and not changed per subscriber. We’re done here. The statement made is that this function is critical to the patent, thus, no violations.

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