EFF Helps Bust Bogus Patent That Was Being Used To Shake Down Podcasters

from the nice-work dept

Remember Personal Audio? That's the company that claimed it had a patent (8,112,504) from years ago that covered all podcasting and then sued a bunch of top podcasters over it. The company got itself lots of attention, including from EFF, who filed with the UPSTO to invalidate the patent. In response, Personal Audio tried to intimidate EFF's donors. Eventually, Personal Audio realized that podcasters don't actually make that much money and settled a bunch of its lawsuits -- even with Adam Carolla (which actually does make a bunch of money) who had insisted he wasn't going to settle.

Most of those settlements were for no money, but the company did win its lawsuit against CBS (in Eastern Texas, of course). However, the EFF's initial effort to invalidate the patent at the USPTO (which is a separate process from the lawsuits) has now resulted in the Patent Office invalidating the key claims in the patent. You can read the USPTO's decision, in which it notes that the key parts of the claim were clearly obvious to practitioners skilled in the art at the time of the patent and that the prior art invalidates the patent as well.
We are persuaded by a preponderance of the evidence that Petitioner’s rationale for obviousness is supported by rational underpinnings.
Kudos to the team at EFF, who have been doing some great work on patents lately (contrary to one of our grumpy commenters who insists that the EFF lawyers will never be seen as "serious professionals" by the US Patent Office, and will remain "marginal players at best"). Can't wait to see what patent projects they take on next...

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  • identicon
    Ponkyperson, 10 Apr 2015 @ 8:35pm

    being written for free

    I think everyone now realised that podcast software was written in lisp, which is free and cant be enslaved. So all podcast software is essentially free to use because lisp.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 10 Apr 2015 @ 9:17pm

    Where do these people come from?
    I mean really, what does it take to get from childhood to economic terrorist?

    reply to this | link to this | view in chronology ]

    • icon
      JoeCool (profile), 10 Apr 2015 @ 9:34pm

      Re:

      What does it take? That's easy! Law school.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Anonymous Coward, 10 Apr 2015 @ 9:36pm

      Re:

      An MBA degree along with a lack of conscience. Oh wait...

      reply to this | link to this | view in chronology ]

      • icon
        OldMugwump (profile), 11 Apr 2015 @ 9:18am

        Re: Re: Law school / An MBA

        Unfortunately these half-joking answers are literally correct.

        There's something deeply wrong with the morals taught in our higher education system.

        MBAs are taught (against normal human instinct) that they have a moral obligation to maximise profits, even if by immoral means, as long as the method is technically legal.

        Lawyers are taught that we live in a zero-sum society and one person's gain is necessarily another person's loss. (This is obviously untrue; we are richer than our troglodyte ancestors.) So they cause harm whenever they're allowed to, because they reason that this must benefit themselves or their clients.

        Even journalists are taught that truth is socially constructed and that there are always exactly two sides to any story - no more and no less.

        Yes, I'm painting caricatures, but they are based on life.

        And of course some professionals have enough human decency and independence of thought to ignore what they're taught and do the right thing. But human nature is such that they're a minority - most drink the Kool-Aid.

        I think what is missing is a sense of old-fashioned morality - caring about right and wrong - that became intellectually fashionable with the rise of the Progressives 130 years ago.

        (BTW, those who fought the losing battle against this were called "mugwumps".)

        reply to this | link to this | view in chronology ]

        • icon
          John Fenderson (profile), 11 Apr 2015 @ 3:31pm

          Re: Re: Re: Law school / An MBA

          Excellent and spot on. We need more mugwumps, old and new.

          When talking with people who understand my slang, I call the sum total of everything you've said "the cult of Mammon". It is the prioritization of profit over all other considerations. It is self-destructive.

          reply to this | link to this | view in chronology ]

          • icon
            OldMugwump (profile), 12 Apr 2015 @ 11:10am

            Re: Re: Re: Re: Law school / An MBA

            I agree, but I would never say it that way.

            There's nothing wrong, and much right, with profit. Profit is the reward we earn for creating value and helping out other people in society. From that viewpoint there's no such thing as "too much" profit - more is always better.

            But one could say the same of joy. But if your joy comes from torturing other people, then there's a problem.

            It's the same with profit. It's a good thing in itself, but moral considerations must come first. Profit must be earned by moral means.

            reply to this | link to this | view in chronology ]

            • icon
              John Fenderson (profile), 13 Apr 2015 @ 7:39am

              Re: Re: Re: Re: Re: Law school / An MBA

              Yes, I agree. There is nothing wrong with profit. I love profit! The problem is when profit is deemed to be more important than anything else.

              Not to get all biblical about this (since I'm not actually an Abrahamic guy myself), but even the Bible agrees. Something about the love of money being the root of all evil...

              reply to this | link to this | view in chronology ]

          • identicon
            Anonymous Coward, 12 Apr 2015 @ 4:31pm

            Re: Re: Re: Re: Law school / An MBA

            I would go more specific than that. I would say that the problem is the prioritization of short term profits over the long term viability of the company/industry. This is self-destructive, as it leads to decisions being made to make a quick buck at the expense of the long term stability and profitability of a company or even an entire industry. This is compounded by the view that business is a zero-sum game.

            This is seen quite clearly in the recent actions of the MPAA, and other similar industries. Rather than ride the rising tide brought on by digital distribution and streaming over the internet, those in charge at the legacy industries would rather extract a quick profit at the expense of trashing a long term source of revenue that will trump all their expectations. The view of business as being zero sum also leads to the legacy industries trying to shut down emergent distribution channels (if they are profiting, then we must be losing), rather than come to a point that is mutually beneficial.

            The question becomes how do we solve this problem? I don't have any good answers for that.

            reply to this | link to this | view in chronology ]

            • icon
              tqk (profile), 12 Apr 2015 @ 6:33pm

              Re: Re: Re: Re: Re: Law school / An MBA

              The question becomes how do we solve this problem?

              Revolution, followed by lots of deprogramming and education. It'll be messy, and a lot of otherwise innocent people will suffer and die. The big question is, which is worse; the current situation, or the cure?

              Is your emancipation worth fighting for to rid yourselves of your usurpers? I would prefer not to continue enabling jerks who're exporting tyranny and the NeoCon agenda (cf. Ukraine, Yemen, Iran, ...) supported by your tax dollars, but that's just my opinion.

              reply to this | link to this | view in chronology ]

            • identicon
              Casey, 14 Apr 2015 @ 1:33pm

              Re: Re: Re: Re: Re: Law school / An MBA

              Jerry Pournelle has said that corporations and other institutions literally have no mechanism for planning further than 5 years ahead. Perhaps create a paradigm for longer planning?

              He has also observed that Bell Labs was the "closest thing an R&D facility for the human race," and considers its dissolution a major tragedy.

              Food for thought.

              reply to this | link to this | view in chronology ]

        • icon
          Mason Wheeler (profile), 13 Apr 2015 @ 7:11am

          Re: Re: Re: Law school / An MBA

          Lawyers are taught that we live in a zero-sum society and one person's gain is necessarily another person's loss. (This is obviously untrue; we are richer than our troglodyte ancestors.)

          We're also in debt up to our eyeballs--it's not your wealth, afterall--if someone else can legally take it away--and indebted in more senses than simply money. A major driver of societal progress since the Industrial Revolution has been our increasing consumption of energy, derived by burning fossil fuels. We've already pumped more CO2 into the atmosphere than our climate can handle. It's no longer a matter of "reducing emissions;" in order to avoid catastrophe within the natural lifetimes of a bunch of us reading this today, we need to "reduce" CO2 emission to a negative number, and the longer we wait to do so, the worse it gets. That's debt too.

          They say there's no such thing as a free lunch, but we've been stealing our grandchildren's lunch and eating it and having them do the same to their own grandkids for centuries now, for so long that we begin to think it's normal. That all has to be paid off eventually, and "eventually" is getting here sooner than most people think!

          reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 10 Apr 2015 @ 9:21pm

    Not familiar with the original filings instituting this process, but with respect to this decision I am struck that the EFF staff is receiving accolades here when the opinion suggests that persons at Greenburg Taurig did the legal work leading to this agency decision.

    reply to this | link to this | view in chronology ]

    • identicon
      Vera, 11 Apr 2015 @ 12:07am

      Re:

      Thank you so much for recognizing the hard work that our pro bono lawyers did! We are so grateful to them, especially the partners who put in numerous hours to help take this patent down. This was truly a team effort by those at EFF (including Julie, who has since gone on to Engine), our pro bono lawyers, and the support we received from the community.

      - Vera (a former Greenberg Traurig lawyer who worked on the podcasting case while there who is now a staff attorney at EFF)

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 10 Apr 2015 @ 10:50pm

    Oh boy, out_of_the_blue's not going to like this.

    reply to this | link to this | view in chronology ]

  • icon
    tqk (profile), 10 Apr 2015 @ 11:22pm

    Pathetic.

    Too bad the winners can't sue the PTO for incompetence for allowing them to be forced to undergo such a ridiculous ordeal for no good reason. Does the loser pay their legal bill? No. Does the loser have to stop doing this !@#$? No. Does the winner get the time they wasted on this back? No.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 11 Apr 2015 @ 3:34am

    Podcasting is simply putting audio files on a website ,
    allowing anyone to download them ,
    any non skilled programmer could do that,
    That someone could get a patent on the whole concept of podcasting,
    shows how the whole patent process is broken at least in regard to software .
    And of course theres lots of prior art,before the patent was filed,
    re podcasting ,putting audio files on a website ,to be downloaded AND listened to on a pc or any electronic audio player device .
    i think they got a patent on listing files episodes on a website , to
    allow a person to download and listen to the files,episodes later.

    reply to this | link to this | view in chronology ]

    • identicon
      Robert Wax, 11 Apr 2015 @ 6:04am

      Re:

      I used to download recorded US radio programs from Bulletin Boards with a dialup modem in the late 1980's!!!!!!!!!!!!
      TCP/IP didn't make "PODcasting" new and neither did HTTP.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 11 Apr 2015 @ 3:37am

    These thugs have awakened a sleeping tiger, no more free lunch, except for the tiger that is.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 11 Apr 2015 @ 3:59am

    Just writing a program in lisp or open source does not protect you from patent trolls,
    who can get a patent on broad general concepts .
    eg do something on a pc ,add on the internet and you have a patent,
    now wait for the money to roll in.
    these patents are of no use to programmers as they are written in legal jargon only to be understood by patent lawyers ,
    only to be used in threatening startups or companys that actually make something or provide a service to people ,
    AS opposed to trolls who just want to go to court to
    earn big bucks .

    reply to this | link to this | view in chronology ]

  • identicon
    flaggy, 11 Apr 2015 @ 4:37am

    reading it will kill you

    I would love to see a troll trying to explain to a judge how a lisp program violates a patent. I cant see many programmers understanding how a lisp program reads never mind a judge who cant really follow a normal c program.
    eg This patent covers a website reader see how this lisp program reinvents its own language then twists the code into another DSL for reading in the program instructions to write a html file to list on the web.
    Judge -- what does this do, that bit in the brackets
    attorney -- which brackets judgey, oh those, well it treats the DSL language as a parsed file ..........
    Judge -- i cant see how thats even relevant, it doesnt use any of the same language as the patent covers.
    attorney -- thats because it using parse tree syntax
    judge -- what, now what the hell are you saying boy.

    reply to this | link to this | view in chronology ]

    • icon
      Trip W (profile), 11 Apr 2015 @ 8:42am

      Re: reading it will kill you

      I read the judge lines in the voice of Foghorn Leghorn... which I guess would be fitting since most of these patent troll cases seem to occur in East Texas.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 11 Apr 2015 @ 6:57am

    drop in the bucket

    This is certainly a good thing. Unfortunately, in the time it takes to kill one cockroach, 15,000 more have hatched.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 11 Apr 2015 @ 8:49am

    Most Patents just describe a process,in a vague legal jargo ,and broad language using terms which would be meaningless to a programmer.
    eg for example a patent to describe a process to download or stream files to a mobile phone or tablet,
    vary the display quality sd, or hd.bits per second, depending on the connection speed of the user device,
    whatever programming language you use is of no use to you if a judge thinks you infringe the patent .
    I Was watching downloading video files before youtube was invented.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 11 Apr 2015 @ 10:51am

    A patent troll have less morals than a drug dealer,
    its legal extortion,
    letter to startup,
    pay me 40k for infringing on my stupid broad vague patent for video streaming etc
    or spend 1 million dollars to go to court to maybe prove
    my patent is invalid .
    Even if i lose the case you ,ll likely have to pay 90 per cent of the legal fees .

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 11 Apr 2015 @ 11:31am

      Re:

      Sorry to inform you that I hold a patent for inserting carriage returns after every phrase. Expect a letter of service from the Eastern District.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 12 Apr 2015 @ 7:34am

    I am sorry, but I own a patent the receives input and via a process and mechanism, outputs a coded number suggesting the likelihood that the content of the input is threatening legal action based on use of intellectual property. The coded number is then queued based on a ranking algorithm, and a threat is issued.

    reply to this | link to this | view in chronology ]

  • icon
    TheResidentSkeptic (profile), 12 Apr 2015 @ 8:54am

    If we could just patent stupidity...

    ... then we could easily out-law congress..

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 13 Apr 2015 @ 9:24pm

    Why am I left with the impression that this is just another self-serving act with unstated motives and unstated objectives that devolve to the financial benefit of the EFF? In a way it resembles, but perhaps for different purposes, what is being done by Kyle Bass and his facilitators to members of the pharmaceutical industry.

    Frankly, I am curious just who precisely is the real party in interest. It sure isn't the law firm and the EFF.

    reply to this | link to this | view in chronology ]

    • icon
      tqk (profile), 14 Apr 2015 @ 6:28am

      Re:

      Why am I left with the impression that this is just another self-serving act with unstated motives and unstated objectives ...

      Curiously, very much like your own posts. Or, perhaps you're merely a hateful contrarian troll attempting, for whatever reason, to sow the seeds of suspicion and discontent.

      If you can't see the value in killing that patent, you're an idiot. I doubt you're fooling anyone with your conspiratorial whispering.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 14 Apr 2015 @ 6:46am

        Re: Re:

        It is apparent that you do not have significant insight into the practice of law. When is the last time that you saw a lawyer or law group spend substantial amounts of time and/or money with absolutely nothing expected or hoped for in return?

        Someone's private, financial interests are being promoted here who is remaining anonymous, and to believe otherwise is naive.

        reply to this | link to this | view in chronology ]


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