I don't enough time to read and understand the patent completely, but at a glance it appears they are describing a system for passively DVR'ing songs played on Internet radio without having to even know that a given Internet radio channel exists.
E.g., I type into my iPhone app, "For Whom The Bell Tolls"/"Metallica" and hit "Record" and the next time that song is played on any Internet radio channel that the app subscribes to, it captures and records it for later playback.
As for design around, .... is that a serious question? Each one of these steps contains a dozen additional limitations beyond the step itself. You need only design around just one of these to avoid infringing the patent.
What's novel about it? I'm not aware of anybody with a product all of these steps in this particular arrangement, including whoever wrote this patent.
Novelty isn't the issue. Everything is novel at least once. The question is whether this is obvious vis-a-vis the prior art. That means asking whether there is prior art containing all of these elements, in this order, and some suggestion to combine.
The provisional was filed in early, early 2007, which means this thing was probably dreamed up some time in mid-2006. That's right about when Amazon launched their first cloud platform, and that predates any major open source cloud platform by a good two years.
Seems reasonably novel. And apparently unmarketable, since they haven't found a buyer in six years. Probably because anybody who does this will get sued into oblivion by the content cartels.
To the contrary, there is a federal law that REQUIRES courts to honor the outcomes of arbitration proceedings, and getting an arbitration outcome overturned is almost impossible. The statute requires judges to confirm and enforce an arbitration award even if the law was incorrectly applied. About the only situation where you can avoid an arbitration award is if you have clear evidence of misconduct, like bribing the arbitrators. It's a nightmare to deal with.
The courts have little choice. There's a statute on this, and it's constitutional, so they have to enforce it. Sometimes you can get the arbitration provision itself pitched as unconscionable. One company required the consumer to arbitrate in like Sweden or something, and the court knocked that one out of the park.
There is zero percent chance that the entire TOS/EULA is thrown out as unconscionable and/or otherwise enforceable. These things are not litigated all that often, there's very little good case law on them, and so lawyers writing these licenses just throw in everything they possibly can, hoping that at least some of it will stick and be enforceable. That's one of the reasons every one of these things has a severability clause.
That's one thing I miss about brick and mortar. When you buy goods in a normal transaction, you don't have to sign a contract to buy something. You pay money, you get the product, and consumer protection laws govern the transaction, or at least the UCC.
All bets are off on-line... even if you did have some kind of solid legal argument, the license almost certainly includes a jurisdiction and venue clause requiring you to file wherever the company is located, which is almost certainly not where you are located.
In my experience, arbitration is where scoundrels go to get away with crap that a judge would never tolerate.
Arbitrators have no incentive to find in favor of the consumer. Do you, the consumer, have any clue who to pick as an arbitrator? No, of course not. It's a crap shoot for you. So the arbitrator has no incentive to cater to you, and is effectively selected by the company. Being an arbitrator pays REALLY well. Arbitrators are usually lawyers with subject matter expertise, and they usually charge their hourly rate.
If you become known as the arbitrator who doesn't side with the company that picks you, how long do you think you'll keep getting these cherry gigs?
Arbitration can be a useful tool in some contexts. Domestic law, employment disputes, etc. But in commercial transactions, I absolutely hate it.
Leaving aside the patent troll issue, I didn't quite follow this logic:
"Of course, in a rational world, this would be evidence that the patent in question should never have been granted, as it was clearly a next obvious step in the advancement of the technology, rather than any sort of breakthrough that needed protection."
A patent shouldn't be granted if the invention later becomes commercially successful? So ... you should only get patent protection for things that nobody wants? That'd be sort of a weird system.
It's odd that you quoted the title of the application, and never examined or discussed any of the claims, but nevertheless concluded that the patent is too broad and should have been found obvious. On what basis? What prior art? Where do find all of these elements?
If you read claim one, it's narrower than this report suggests. This is not a patent to "the cloud." It looks like a relatively specific method of finding and storing content for future playback without requesting it from the content provider, and there's a lot of moving parts here.
This is a classic design-around patent, I'm not surprised they've never found a licensor and now can't find a buyer. It seems, at a glance, to be trivial to design a system that doesn't infringing this.
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