SightSound Patent Case to Move Forward

Masem writes: "CNet reports that a preliminary hearing has allowed the case that SightSound Technologies brought against CDNow over patent infringements to proceed forward, indicating that the judge believes that SightSound has a chance of defending it's case. Sightsound claims that patents it filed in the late 80s covering the "electronic sale" of music and video over a "telecommunications line" cover most of the methods used today on the Internet to peddle music or vidoes, whether by CD/DVD or by MP3/mpeg tracks. Not mentioned in the article, but there are notable parallels between this and BT's patent claim on hyperlinks, in that both patents have an overly broad language, and were filed before the Internet became what it is today, and in both cases the defendants are arguing that the non-specificness of the patents to the Internet make them unapplicable to the specific case."

Comments

Pathetic

[J.D. Hogg]

"The 6-year-old company has been in court since 1998, suing Bertelsmann division CDNow for violating patents filed in the late 1980s."

6 year old little Johny has been in the director's office since noon, complaining that 8 year old little Bob stole his lunchbox last week.

The sad thing about this, and the other kajillion petty court cases between multimediocre companies trying to position themselves as yet another toll booth between artists and listeners, is that, in the end, it's the consumer who ends up paying the attorney bills.

Prior Art?

[wirefarm]

I seem to remember that one of the early uses of telephone technology was a subscription service that let you listen to musical performances (live opera, etc.) over an ordinary telephone.
I'm pretty sure this was in Europe somewhere and would have probably been about 1905 - I read this about eight years ago in a colleague's thesis on the telecom industry.
An interesting side note was that they could give you a 'stereo' performance if you had two telephones.

Does this 'ring a bell' with anyone?
Perhaps we can ask Bob Bemer? ;-)

Cheers,
Jim in Tokyo

Found a link

[wirefarm]

Try here for one version of this story.
Gotta love Google.

Cheers,
Jim in Tokyo

Nonobvious?

[andaru]

I thought that the process defined in the patent had to be nonobvious.

The judge says that it covers "any means of transferring information so long as it can occur over telecommunications lines." That sounds like it would fail the nonobvious test by definition, since we were going to end up moving data across telecommunications lines like crazy without ever knowing about SightSound's ridiculous patent.

Is it true about the nonobvious issue, though? Anybody out there a patent lawyer (preferably one specializing in defending against frivolous patent claims)?

Re:Nonobvious?

[Artagel]

Non-obvious has to be qualified: "A patent may not be obtained ... if the differences between the the subject matter sought to be patented and the prior art are such that the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art to which said subject matter pertains. Patentability shall not be negatived by the manner in which the invention was made."

1) The last sentence got rid of the "flash of genius" test. If you have to try bamboo, eyelashes, feathers, paper, iron, thread, silk, etc. before finding tungsten as the right filament for a light bulb, the fact that you worked really, really hard rather than had a lightning bolt of inspiration does not keep you from getting a patent.

2) "as a whole" - you do not ask if each of the pieces, in isolation, was in the prior art or obvious. You have to look at the whole thing with all of its cooperation, function, relationship of the parts, etc. The question is not whether Edison invented tungsten -- he never claimed to have invented tungsten. You have to include the voltage, the vacuum, the glass enclosure, etc. and how those elements are related to each other.

3) "at the time the invention was made" has two consequences.

First, you cannot use hindsight to say "oh, that was easy." Sure, tungsten glows bright white when hot, tungsten has a high melting point, tungsten is strong. Was tungsten obvious? I don't think so, but it is easy to construct hindsight analysis that makes it appear so.

Second, the level of skill in the art is assessed as of the time of the making of the invention -- not the state of knowledge today.

3) Ordinary skill in the art. Gosh knows if I was a Swiss inventor and my examiner was Albert Einstein it would suck. The man thinks everything is obvious. Well DUH. Consider from the level of ORDINARY SKILL IN THE ART. And get Albert Einstein out of the dang patent office.

4) The art. Solving a problem might be obvious out-of-field. For example, There is a problem with a printing press. The solution might well be obvious to an engineer in an oil refinery. That doesn't make it obvious in the printing press art.

"any means of transferring information" makes the claim broad. That is good and bad for the patentee. Good because it covers a lot of infringers. Bad because it does not differentiate him from the prior art. Odds are claims shouldn't be written to cover only transfers mediated by 8 bit microprocessors. The invention does not reside in how many bits the microprocessor had.

You can only evaluate a patent claim as being either infringed or obvious by using the entire claim. The judge has to interpret bits and pieces because the Supreme Court gave him that job. Once you figure out what the words or phrases mean individually, you still have to apply them as a whole to the case.

Patent the concept of money! Get rich!

[prisoner-of-enigma]

I wonder if anyone has ever patented the concept of money. No, really! If totally obvious shit like selling stuff online can be patented, then anything can be. What's next? Patent breathing and eating? You could make a killing!

[sigh] Our wonderful U.S. patent system has once again shown us how horrifically broken it is. While patents serve a useful purpose of allowing inventors to (hopefully) recoup their R&D expenses and actually make some money, now they are being used as legal cudgels to prevent someone else from even doing business.

Anybody got any brave ideas on how we could overhaul the patent system? Doing away with it is NOT a fix, BTW.

Markman Hearing

[ajakk]

For those of you who don't know much about patent litigation (ie almost all of /.), this hearing had NOTHING to do with the validity of the patent. In all patent suits these days, there is a preliminary hearing called a Markman hearing where the judge determines what the scope is of the claims(the important part) of the patent. If the judge decides them to be overly broad, it can hurt the patentee because it will make them easier to invalidate with prior art. As of this point, the judge (and/or jury) have not looked at the prior art at all.

Re:Markman Hearing

[raresilk]

Well, I guess your own ignorant bleating makes you 13 years old, then. Lawyers such as myself who take time away from their revenue-producing work to discuss legal issues FOR FREE (as in beer) to /. readers, are not attempting to be "witty" when we post disclaimers. The disclaimers are required by law, for several reasons:

At least in the US, attorneys are restricted to practicing law in states where they are admitted to the bar. For example, I am admitted only to the California bar, and cannot practice in any other US jurisdiction without a court's express permission. If I were to post a legal opinion on /., and someone in Montana followed my advice in a personal matter without consulting a Montana lawyer, I might be exposed to the accusation of practicing law without a license.

Nor is the risk only to myself. Although it is appropriate for purposes of the discussions we have on /. to articulate legal principles in general terms, I would never dream of making a recommendation in a particular case without an in-depth interview with the client, an analysis of the facts and circumstances presented, and legal research focused on that specific scenario. Without knowledge of the nuances, laypersons would be susceptible to misapplication of the general principles articulated in my posts, and might be tempted to charge forward into a touchy legal situation without proper counsel because "I already know the answer from a lawyer on Slashdot." Thus, it is appropriate for me to caution readers that my posts are not legal advice and do not establish an attorney-client relationship, discouraging them from such inappropriate individual reliance.

I have posted to a number of /. legal issue threads. I do not do this to get people to "Put Me On Retainer" - if you'll notice, I don't even publish my email address here, so how would anyone do that? Instead, my usual purpose is to dispel misconceptions about the law that circulate so widely on /. as to acquire the status of "urban legend" -- something everyone believes because it happened to their sister's husband's friend's employee, but doesn't actually have a grain of truth. I do so despite the virulent anti-lawyer atmosphere that prevails here - that attitude in itself shows the need for my continued contributions.

And I bet I will last longer on /. than you . . .

All this patent debate could've been avoided...

[yeOldeSkeptic]

if congress didn't mess with the patent law that essentially says...

1. You can't patent an idea.

2. If you want to patent something, you must build it first.

The patent office grants patents based on a written description nowadays.

The patent law was supposed to be a way for inventors and tinkerers (the engineers of this world) to benefit financially from their work. Now it has become a way for bored lawyers to make money. I'm getting sick.

These guys are still around?

[TheRealFixer]

Wow... these SightSound guys with their lucky patent are still around? I remember the first made a name for themselves trying to sue MP3.com (back when MP3.com was still cool) for distrubuting MP3s online for a fee.

Have you ever read their patent? It's so vague it's pathetic; and there's so much priot art it isn't funny. It basically says they invented the concept of selling digital music over communication lines. That's all? I remember BBSs back in the day that were pay-membership, having MIDI and MOD music files for download. long before they "invented" it.

But what surprised me is how many large corporations just caved in to this little two-bit operation waving around their bogus patent! I'm really surprised it hasn't been struck down yet.