from the a-failure-in-business-now-shaking-down-podcasters dept
We already wrote about This American Life’s sequel concerning patent trolls, but there’s also something of a companion podcast on Planet Money highlighting the patent troll suing podcasters. We’d talked about this earlier in the year when it first made news, but Planet Money actually gets the troll and his lawyer to talk — which is pretty rare in the patent trolling world. The patent (8,112,504) is a “new” patent — granted in February of 2012 — but the priority date goes all the way back to 1996.
The “inventor,” Jim Logan, started a completely failed business around delivering audio news on cassettes. And now he claims to have invented podcasting and wants a cut. Once again, it’s an example of everything that’s wrong with the patent system. Logan didn’t invent podcasting at all. He had nothing to do with podcasting. He tried to start a bad business, which failed miserably years ago, and now others have done some actual innovating, and he’s trying to demand cash from a bunch of them. When Planet Money’s reporter Zoe Chace points out to Logan and his lawyer that it sounds ridiculous because Logan clearly didn’t invent podcasting, his lawyer, Richard Baker, pretends otherwise, and makes a laughably ridiculous statement:
“This is the roadmap. This is Jim’s patent. This is the roadmap that would tell someone how to do podcasting, how to do MP3 players. A lot of the roadmap is right here in the columns of this patent.”
But, of course, that’s bullshit. No one read the patent and said “Aha! Now we know how to podcast.” Because nothing in the patent is about podcasting. What actually happened was plenty of people started to realize that the decreasing cost of storage, the increase in bandwidth and the rise of MP3 players, combined with syndication protocols like RSS, meant that you could distribute long audio files easily. There’s nothing in the patent that’s useful at all. This is the big myth of patents: that they somehow disclose something useful. That’s almost never the case, and is certainly not the case with this particular patent, especially since it was issued nearly a decade after podcasting came about.
Chace finally gets Baker to admit that “it doesn’t make a difference” whether or not anyone involved in podcasting, such as the guy who wrote the podcasting functions of iTunes, was even aware of the patent.
Chace does make one mistake in describing how patents work, claiming that even though lots of people had thought of “playlists” (the key part of the patent) before, it doesn’t matter because Logan was “the first to write it down.” But that’s not actually how patents work. While it’s true (sort of) that after the very recent switch to a “first inventor to file” system, the first inventor to file gets the patent. But until just a few months ago, it was the first inventor who had the right to the patent. So her claim that Logan’s patent is legit because he filed first is simply wrong. Furthermore, it’s wrong (even today) to say that because he’s the first to write it down, then the patent is his, because prior art and obviousness are two things that make a patent invalid, and the idea of a playlist way, way, way predates Logan’s patent.
In the podcast, Logan and Baker continue to insist that there’s nothing wrong with what they’re doing, because it encourages people to invent. But that’s clearly ridiculous (and it’s a bit disappointing that Chace didn’t call them on this), because that’s not what happened here. Logan didn’t invent podcasting. He invented something else that failed in the marketplace. That should be the end of it. Now he’s trying to score money from people who did something entirely different and are more successful than him. That’s about as antithetical to a free market system as you can imagine. We don’t reward the losers who failed to build a compelling product by forcing those who succeeded to give them money. That’s just bad for everyone. It encourages less innovation, and it (most importantly) overvalues ideas over execution, which is a huge problem. We shouldn’t reward failed ideas. We reward successes, and we do that in the marketplace. But patents do the exact opposite.
Filed Under: patent trolls, patents, podcasting