After EFF Effort, Infamous "Podcasting Patent" Invalidated

Ars Technica reports some good news on the YRO front. An excerpt: A year-and-a-half after the Electronic Frontier Foundation created a crowd-funded challenge to a patent being used to threaten podcasters, the patent has been invalidated. In late 2013, after small podcasters started getting threat letters from Personal Audio LLC, the EFF filed what's called an "inter partes review," or IPR, which allows anyone to challenge a patent at the US Patent and Trademark Office. The order issued today by the USPTO lays to rest the idea that Personal Audio or its founder, Jim Logan, are owed any money by podcasters because of US Patent No. 8,112,504, which describes a "system for disseminating media content representing episodes in a serialized sequence." The article points out, though, that the EFF warns Personal Audio LLC is seeking more patents on podcasting. Mentioned within: Adam Carolla's fight against these patents and our Q&A with Jim Logan.

Comments

What the hell is going on a the USPTO?

[Yaotzin]

I believe some patent rights are necessary to promote innovation, but when you start handing out patents like a paedophile hands out candy, the opposite effect is achieved.

Re:What the hell is going on a the USPTO?

[Ecuador]

Yes, it seems to me that instead of paying for hundred of lawsuits on ridiculous patents perhaps somebody should start going after the USPTO instead? No idea if there is any legal way to do it, but since all problems start from the USPTO itself, that's where any effort should be concentrated...

Re:What the hell is going on a the USPTO?

[Yaotzin]

IME, patents rather hinder than promote innovation, especially on software methods. The way they are used is to protect big players against one another's legal challenges. As a side effect, small players are quite locked out. But then, IANAL; can someone give an example of a software patent that actually promoted innovation?

Yes well, I think we have different experiences. I agree that software patents often seem to serve little purpose apart from building war chests, and I would also be interested in a concrete example of good usage of software patents. There are many other industries, however, where patents are crucial to defend years and millions of dollars invested in R&D against professional copycats, and allow low level players to reap some profit from their innovation.

Re:What the hell is going on a the USPTO?

[Dutch Gun]

Yes, there's a legal way to do it. A congressperson introduces a bill that outlaws software patents, a majority of the legislature votes for it, and the President signs it into law. No more idiotic software patents.

Re:What the hell is going on a the USPTO?

[Rob Y.]

That doesn't sound like a hardware patent either. More like a 'process' patent - which is essentially the same thing as a software patent, and shouldn't be allowed - at least in trivial cases like the one you cite.

Re:What the hell is going on a the USPTO?

[Rob Y.]

Perhaps better than the IPR mechanism would be an appeals process by which anyone can make an 'obviousness' challenge to any patent approved by the rank and file PTO staff to a higher-level and more technical board that must review the patent before it's actually enforceable. All funded by the USPTO itself, eliminating the high cost of challenging patents. Also greatly reducing the effectiveness of patent enforcement blackmail - and possibly raising the standards for initial approvals by causing the granting of bad patents to actually cost the patent office something - instead of generating revenue.

Re:What the hell is going on a the USPTO?

[Ecuador]

I don't think the problem is software patents. The problem is stupid patents. Like, I patent exactly the same thing everyone does, *but on a bicycle!*. The examiners seem to have completely forgotten the basic premise, which is that you cannot grant a patent to something that a person with an ordinary skill in the art could come up with based on prior art.
Of course to completely solve the problems a general patent reform would be required, which could address the software issue better among others, but even within the current framework things would be so much better if the USPTO applied some sanity.

Re:What the hell is going on a the USPTO?

[Dutch Gun]

Honestly, I've waffled on this a while in the past, but I can't honestly think of where real innovation has been spurred on or preserved because of software patents. On the other hand, I can point out hundreds of cases where the patent system has been horribly abused. Sorry, I'm going to disagree with you. No one except the bottom feeders that live off the licensing of patents themselves or giant corporations that hoard them like legal weapons are benefiting from these things.

I work as a programmer on some pretty sophisticated software, some of which was pretty new and novel in my field. The companies I've worked for didn't believe in software patents, and neither do I. Just because I'm the first one to think up some clever algorithm or trick shouldn't give me the right to lock people out of using it for the next seventeen years. It's absurd - that's an eternity in the software development world, and it has no good effect except to stifle competition.

The USPTO has had years to make improvements, and the situation is only getting worse.

Re:What the hell is going on a the USPTO?

[Fnord666]

Perhaps better than the IPR mechanism would be an appeals process by which anyone can make an 'obviousness' challenge to any patent approved by the rank and file PTO staff to a higher-level and more technical board that must review the patent before it's actually enforceable.

As soon as you create this process someone will build a system that automatically submits an appeal for every patent issued and we end up worse off than before.

Re:What the hell is going on a the USPTO?

[Dutch Gun]

If you make that clever algorithm public and document it, you could be protecting yourself and others from being locked out of it by later patent trolls. It's called "prior art."

We very often do. I'm a videogame programmer, and a lot of us share knowledge at developer conferences, articles, blogs, and classroom lectures with the blessing of our companies. There's actually a healthy trend of knowledge sharing in this industry, and many people are surprised to find out that very few videogame companies bother with patents at all.

In a little under two decades in the industry, I've only had TWO experiences with patents: Having to pay to use mp3-encoded files in our game, and being sued by a patent troll. Given this, you can probably understand why I'm not all that enthusiastic about software patents. For the most part, I believe that most companies would rather focus on creating new, innovative products instead of desperately trying to leverage some patented advantage. There's nothing about our products that isn't perfectly well protected by copyright and trademark law.

Re: What the hell is going on a the USPTO?

[bill_mcgonigle]

Nah, this idea has been invalidated by economists.

The cost to replicate complex inventions is about 65% of the original cost and the overhead of paying the talent to have on staff to do the work (they insist you fund their own research instead of sitting idle) is almost 35%. The Patent argument boils down to dithering about a 5% difference and the consumers prefer to reward the inventors most of the time. Establishing and enforcing the patent monopoly winds up costing society more than that 5%, so the net effect is privatized gains and socialized losses.

Now there are industries that government screws up a priori, like pharmaceuticals, but patching that disaster with patents just adds insult to injury.

Speaking as someone who was just offered a drug for a family member that costs $320,000 per ounce (beyond the budget) I can tell you the current system doesn't help regular people at all. Bristol Meyers execs - they're doing just fine.

The current system *does* work very well - for certain classes of men. And the claims that people will stop inventing without monopoly enforcement ignore all the available data and human nature.

Re:What the hell is going on a the USPTO?

[Dutch Gun]

Patents are equally useless for protecting against copying the look and feel of a game. You can only patent specific concepts or technologies, say, the way Zynga tried to patent the the use of in-game virtual currency. You're telling me you think the proper way for these indie devs to handle this is to go out, patent their own code and algorithms, and then fight it out in court with Zynga? Insanity.

The AAA game industry isn't "ignoring" the patent issue. They're simply declining to participate in the patent war madness that everyone else seems to be currently engaged in. Companies like Zynga are the exception to the general trend, and may end up forcing everyone else to do the same goddamned thing. Do you know who'll be left behind here? Yeah, the indie devs, because they can't afford patent lawyers and ridiculous lawsuits.

Read the massive list of Zynga patents. It makes me weep as a game developer. The USPTO seems to be rubberstamping whatever the hell Zynga sends their way, so long as it's couched in enough confusing terminology and legalese (oh, and "online" is mentioned anywhere). If you actually read the patents in detail, they're essentially the sort of thing any competent developer would think.

Seriously, this is madness, and it has to stop. Software patents need to die.

Thanks, EFF!

[Nemyst]

And remember, the EFF is a non-profit. Donate if you can, show your appreciation. They're fighting the good fight.

Re:What else is driving this

[neilo_1701D]

My brother works for the Australian Patent Office, so I've no idea how much of this translates to the USPTO. I asked him this very question a few years ago.

When a patent application comes in, the initial examiner is the newest, most lowly graded person in the office with a huge caseload. They, to a degree, depend on the submitter to have taken the steps to validate the uniqueness of the patent; however there is research done as well to validate the submission.

Most submissions are done by patent lawyers with as much obfuscation as possible, and if it's outside of the examiner's area is much more likely to get through, as the examiner has to try and decipher what is going on. If the submitter claims no prior art and words the submission carefully enough, it's likely to get through.

With an appear, it goes much higher up the chain and diverts to someone with more specialized knowledge for further assessment. As you can probably guess, it takes longer and costs much more to get this review happening.

So, there are fundamental problems with the process in that it assumes honesty on the part of the submitter. If they set out to deceive, as Personal Audio seems to have done, it's a long and costly process to undo it.