
Ruling from USPTO Invalidates All Claims Used to Threaten Podcasters - billyvg
https://www.eff.org/press/releases/eff-busts-podcasting-patent-invalidating-key-claims-patent-office
======
scott_s
Planet Money did a great episode on this patent, using it to talk about the
state of the patent system in general:
[http://www.npr.org/blogs/money/2013/05/31/187374157/episode-...](http://www.npr.org/blogs/money/2013/05/31/187374157/episode-462-when-
patents-hit-the-podcast)

It has interviews with the patent holder, and it's amazing to hear his
perspective. (Which I do not agree with.)

~~~
jobu
They've also done two other great episodes on patents:

412 -
[http://www.npr.org/blogs/money/2012/10/23/163480928/episode-...](http://www.npr.org/blogs/money/2012/10/23/163480928/episode-412-how-
to-fix-the-patent-mess)

551 -
[http://www.npr.org/blogs/money/2014/07/09/329895088/episode-...](http://www.npr.org/blogs/money/2014/07/09/329895088/episode-551-the-
case-against-patents)

Side topic, but I really wish Planet Money would look into medical re-
patenting. Growing up I needed albuterol inhalers occasionally and I remember
them costing less than $10, but recently my kid needed one and it was $60 with
copay (over $100 without insurance). That's when I found this article:
[http://www.nytimes.com/2013/10/13/us/the-soaring-cost-of-
a-s...](http://www.nytimes.com/2013/10/13/us/the-soaring-cost-of-a-simple-
breath.html?nl=todaysheadlines&emc=edit_th_20131013&_r=0)

TL;DR - Inhalers use CFC's (ozone hole making), but scientists and
environmentalists recommended an exception for them when banning CFC's because
the amounts were so tiny and the medical benefits so huge. The pharmaceutical
industry decided to lobby against the exception so they could reformulate the
inhaler and introduce a new patent - and make billions on a 30+ year old drug.

~~~
click170
Frankly this leaves me wondering why we leave medicine to private companies
when we have agreed as a society that public health is the governments
concern.

Its unreasonable to expect a publicly traded company to do anything other than
chase profits the best way they can.

~~~
alphapapa
Obviously "we" have not agreed that that is the case.

> Its unreasonable to expect a publicly traded company to do anything other
> than chase profits the best way they can.

And that attitude is why we can't have nice things. That would be what's known
as "enabling." How about, "It's unreasonable to expect a beer company to do
anything other than sell as much alcohol as they can, however they can, to
whomever they can." Or, "It's unreasonable to expect an oil company to do
anything other than ship and sell as much oil as they can as cheaply as they
can."

No. Companies, publicly traded or not, are not mindless automatons, inhumanly
calculating the optimal methods to extract as much profit as possible, even
though they do seem that way. Companies are comprised of people, people who
are a part of the society in which their company does business. Therefore they
have--should have--the responsibility to behave ethically to society, not
merely their shareholders. And even besides that, shareholders' ultimate
interests are not served if their companies behave in ways that are
destructive to the societies in which they live.

I don't know where this idea that "companies are required or expected to make
as much profit as legally possible" came from, but it's 1) untrue, and 2)
morally and ethically wrong, regardless of #1. Please stop enabling this
behavior by spreading this incorrect and just plain wrong idea.

~~~
angersock
_And even besides that, shareholders ' ultimate interests are not served if
their companies behave in ways that are destructive to the societies in which
they live._

Unless the destruction occurs outside of the realm (spatial _or_ temporal) of
the shareholders, in which case the destruction can rightfully be modeled as
an externality and ignored.

 _I don 't know where this idea that "companies are required or expected to
make as much profit as legally possible" came from_

Started with _Dodge v. Ford Motor Co._ :

[http://en.wikipedia.org/wiki/Dodge_v._Ford_Motor_Co](http://en.wikipedia.org/wiki/Dodge_v._Ford_Motor_Co).

This was somewhat superseded by _Shlensky v. Wrigley_ :

[http://en.wikipedia.org/wiki/Shlensky_v._Wrigley](http://en.wikipedia.org/wiki/Shlensky_v._Wrigley)

This in turn is arguably superseded by _eBay v. Newmark_ :

[http://www.litigationandtrial.com/2010/09/articles/series/sp...](http://www.litigationandtrial.com/2010/09/articles/series/special-
comment/ebay-v-newmark-al-franken-was-right-corporations-are-legally-required-
to-maximize-profits/)

 _Please stop enabling this behavior by spreading this incorrect and just
plain wrong idea._

It's more dangerous to assume that corporations can be held to task than it is
to assume that they are amoral profit-seeking entities. Only in the former
case are you unpleasantly surprised if you're wrong.

~~~
alphapapa
> Unless the destruction occurs outside of the realm (spatial or temporal) of
> the shareholders, in which case the destruction can rightfully be modeled as
> an externality and ignored. ... It's more dangerous to assume that
> corporations can be held to task than it is to assume that they are amoral
> profit-seeking entities. Only in the former case are you unpleasantly
> surprised if you're wrong.

You are missing the point just as the gp did. I never said that corporations
can be held to task for such things.

I'm talking about what they _should_ do, i.e. right vs. wrong, i.e. morality.
And such hypothetical destruction cannot _rightfully_ be ignored, because to
do so is _morally wrong._

_That_ is the point. By continuing to miss it you are further illustrating the
problem. Please wake up.

~~~
angersock
What part of "morality doesn't apply to businesses" don't you understand? Do
you blame a cat for catching a mouse? Do you blame a cruise missile for
destroying a target? Do you blame a tornado for eviscerating a house? There
are things to which the lens of morality offers very little.

What you want to claim is that corporations should view their actions morally,
and what everyone is telling you is that no they shouldn't. You present (as a
sibling comment) the notion that a company given a choice between the "wrong
but profitable" and the "right but less profitable" should choose the "right"
thing.

And we're telling you, we're all telling you, that _you cannot evaluate a
corporation through such a calculus_!

Is the corporation going to Heaven or Hell because of how it's lived its
"life"? No. Is the corporation going to have more friends because it's been
"nice"? No. Is the corporation going to have better credit because,
goshdarnit, it really tried to "help"? No. Are consumers going to change their
buying habits because of what the company has done to its workers? Probably
not--just look at Nike.

Look, I dig the whole rage against the machine thing you're going for--I've
been there myself. "There's morality in the world, goddamnit, there's right
and wrong! We can't let the corporations run amok and ruin our nation and
communities! This is a democracy! This is America!" you cry.

There is no America. There is no democracy. There is only Facebook and Google
and Apple and IBM, Haliburton, GE, Tata Group, Phillip Morris, Alibaba,
Mitsubishi. Those are the nations of the world today--or at least as far back
as _Network_!

Is it monstrous? Absolutely. Is it something we should find an alternative to?
Certainly. But is it something to which it is useful to apply human morality
to? No, and it never will be--you must engage the beast where it lives, on its
terms.

~~~
alphapapa
> What part of "morality doesn't apply to businesses" don't you understand?

What part of "businesses are comprised of and run by human beings" don't you
understand? What part of "businesses have legal, ethical, and moral
responsibilities to government and society" don't you understand? These are
not wishes, these are reality.

> Do you blame a cat for catching a mouse? Do you blame a cruise missile for
> destroying a target? Do you blame a tornado for eviscerating a house? There
> are things to which the lens of morality offers very little.

Cats are not human beings, they are animals. They cannot think, speak, or
reason.

Cruise missles are not human beings, they are machines.

Tornadoes are hot human beings, they are weather phenomena.

What is wrong with you? Are you just trolling or do you really think like
this?

> And we're telling you, we're all telling you, that you cannot evaluate a
> corporation through such a calculus!

Certainly I can. And I will. And this is nothing new. This is why there are
laws regulating corporations in a million ways, from financial regulations to
the EPA to the FCC. For example, if morality had no bearing on corporations'
actions, there would be no laws against insider trading, or price/wage fixing,
monopoly abuse, etc. (And you can cry "ethics, not morality!" all you want,
but ethics are ultimately based on morals. The principle of right vs. wrong
remains.)

Where do you come up with this idea that corporations can do whatever they
want in a mindless pursuit of profit? This is not the case, it never has been,
and it continues to become less the case as more and more laws and regulations
are enacted.

> There is no America. There is no democracy. There is only Facebook and
> Google and Apple and IBM, Haliburton, GE, Tata Group, Phillip Morris,
> Alibaba, Mitsubishi. Those are the nations of the world today--or at least
> as far back as Network!

Oh please. There is _some_ truth to that idea, but it is not done, as you seem
to think.

> Is it monstrous? Absolutely. Is it something we should find an alternative
> to? Certainly. But is it something to which it is useful to apply human
> morality to? No, and it never will be--you must engage the beast where it
> lives, on its terms.

If everyone thought like this, the United States (and many other nations)
wouldn't even exist. It's because of those who had the courage to stand up and
fight for change that we are having this conversation today.

Your attitude is useless. It is part of the problem. We need principled
leadership that stands up for what is right, regardless of the status quo (or
the perceived one).

~~~
angersock
_For example, if morality had no bearing on corporations ' actions, there
would be no laws against insider trading, or price/wage fixing, monopoly
abuse, etc_

If you look at the history of such regulations, they're typically more about
protecting the assets of the rich than they are about helping anyone else.
They're still somewhat rampant--just look at Google and Apple cartel behavior
re: engineer hiring, or the continual monopoly abuse of Comcast and AT&T.

It's only when the behavior becomes _so_ egregious that it causes trouble for
other stakeholders will legislators finally get around to stepping in.

 _Where do you come up with this idea that corporations can do whatever they
want in a mindless pursuit of profit? This is not the case, it never has been,
and it continues to become less the case as more and more laws and regulations
are enacted._

History. Dutch East India Company, United Fruit Company, Union Carbide, Ford
Motor Company, British Petroleum, Blackwater, Walmart, Pinkteron, Standard
Oil, Enron, and on and on and on.

The laws and regulations only protect the existing companies--Sarbox has hurt
smaller companies and startups more than its protected anyone else.

~

Look, we're on the same side here. You just need to make arguments that don't
blindly ignore reality and history. If you want to continue this discussion,
hit me up on email with your best rhetoric. Let's quit taking up space on this
thread.

------
frandroid
> EFF Staff Attorney Daniel Nazer, who also holds the Mark Cuban Chair to
> Eliminate Stupid Patents

Best chair name ever.

~~~
andrewrice
Mark Cuban funded the title with a $250,000 donation in 2012.

"The current state of patents and patent litigation in this country is
shameful," said Cuban, owner of the Dallas Mavericks. "Silly patent lawsuits
force prices to go up while competition and innovation suffer. That's bad for
consumers and bad for business. It's time to fix our broken system, and EFF
can help. So that's why part of my donation funds a new title for EFF Staff
Attorney Julie Samuels: 'The Mark Cuban Chair to Eliminate Stupid Patents'."

[https://www.eff.org/press/releases/eff-patent-project-
gets-h...](https://www.eff.org/press/releases/eff-patent-project-gets-half-
million-dollar-boost-mark-cuban-and-notch)

~~~
klipt
So if you donate enough money you can name the chair anything you want?

This raises so many opportunities!

~~~
cdcarter
Just wait until you discover endowed professorships.

------
netcan
Patent systems are definitely broken. I think that’s the conclusion of most
neutral observers starting fresh and that digging past the purely abstract or
ideological level. The reason it’s hard to do something about is that patents
are property and the legal setup for property is foundational to an economy.

Patents are absolutely fundamental to the way medical research works today,
especially the search for new treatments and medicines. That’s a tricky thing
to mess around with. There are obvious problems. There are speculations about
what fixing them could yield on one hand. In the other hand is a massive
industry producing a lot of technology, science and actual treatments for
diseases.

What seems (to me) to be missing in these debates is some humility about
knowing the answers. While our culture is speeding through “movements” at a
higher rate than ever before, we still tend to approach these big
political/philosophical/economic issues with an early modern/modernist
perspective. Our most popular philosophers for these matters are old dead guys
who liked to think of big organic things like society and civilization in
terms of how we should set things up if we had snapped into existence today, a
clean slate. That’s a fairly pompous perspective.

In any case, I think the patents and intellectual property problem is a very
tricky one to solve. Experiment with possible solutions is almost impossible.
IP legally mimics regular property in a metaphor-like way. That metaphor is
proving increasingly inaccurate. At the same time, we have huge pieces of our
economy and whatnot built on it. At the same time our legal systems are
showing signs that they might need a reimagining. Many of our legal constructs
such as ‘legal entity’ or ‘jurisdiction’ are being pushed to extremes, and
metaphors eventually break. Does the concept of a company legally
approximating a person hold up when we have impenetrable layers of ownership
across jurisdictions? Does the metaphor fray?

~~~
JackFr
I am not an expert on the economics of pharmaceuticals, however based on work
of an expert I have come to believe that patents are not essential to the way
medical research works today.

Patents are essential to the current business model of pharmaceutical
companies -- they are necessary to guarantee a return on investment, but the
portion of the investment devoted to R&D and clinical trials is dwarfed by the
marketing.

    
    
         If you look at the big companies you can divide their budget into 4 big 
         categories. One is R&D, one is marketing and administration; the 
         other is profits, and the other is just the cost of making the pills and
         putting them in the bottles and distributing them. The smallest of 
         those is R&D. The smallest is Research and development. Profits
         usually are about the same. Marketing and Administration is 
         more than twice as much.
    

[http://www.econtalk.org/archives/2012/11/angell_on_big_p.htm...](http://www.econtalk.org/archives/2012/11/angell_on_big_p.html)

~~~
chimeracoder
> I have come to believe that patents are not essential to the way medical
> research works today.

> Patents are essential to the current business model of pharmaceutical
> companies -- they are necessary to guarantee a return on investment, but the
> portion of the investment devoted to R&D and clinical trials is dwarfed by
> the marketing.

Your comment contradicts itself.

If, as you say, patents are "necessary to guarantee a return on investment",
then it doesn't matter if the R&D is the largest cost or not, because the
company won't produce a profit (and therefore won't produce new drugs) without
the patent.

In fact, it's quite reasonable to think that both massive marketing and time-
limited protection from competition are necessary to ensure enough of a return
to guarantee continued investment into the industry. It doesn't have to be one
or the other.

~~~
JackFr
You're right -- it was not carefully written. My point is that the current
pharma business model is not essential to medical research in general (rather
than research today).

Patent protection for drugs (and chemicals in general) was weak or non-
existent in Europe until the 1970's, and despite that there was research and
development of drugs.

I think the system we have today is largely driven by the patent mechanism,
and while not terrible, could be made better by tweaking the patent system.

The government sponsored monopoly is supposed to guarantee a return on the
R&D, not guarantee the return on Superbowl ads for _another_ erectile
dysfunction drug.

------
lotsofmangos
The fact this patent was granted in the first place seems completely absurd.
But then again, we live in a world where Boeing has a patent on certain
trajectories that use the moon's gravity
([http://www.google.co.uk/patents/US6116545](http://www.google.co.uk/patents/US6116545)),
so it shouldn't really surprise me.

~~~
jbuzbee
I recall a story a while back about a satellite that ended up in the wrong
orbit after launch. The engineers knew how to correct it using various orbital
maneuvers, but alas those maneuvers were patented and it was too expensive to
license them. So the decision was made to splash the satellite and let the
insurance companies pay out. At least that's my recollection...

Edit : Here's a description of the issue, which is a bit different than my
recollection

[http://en.wikipedia.org/wiki/AMC-14#Launch_anomaly](http://en.wikipedia.org/wiki/AMC-14#Launch_anomaly)

~~~
vacri
I thought that algorithms couldn't be patented?

~~~
spacemanmatt
Legally, they can't. But if you close your eyes, and pretend they are
tangible, you could see it their way.

------
leereeves
> Personal Audio continues to seek patents related to podcasting.

It's unfortunate that the Patent Office can't ban trolls who have abused the
system.

~~~
BinaryIdiot
> It's unfortunate that the Patent Office can't ban trolls who have abused the
> system.

I agree with you on one hand but on the other is it impossible for a person to
reform and later want a patent to protect their new creation? I'd just like to
see the whole system overhauled or maybe even removed in some ways.

~~~
spacemanmatt
I would be ok with keeping the patent system only if it becomes far more
difficult to gain a monopoly on an invention. The courts+USPTO allowed an era
of serious abuse via patents on abstract inventions that we won't recover from
quickly.

------
click170
If you aren't yet an EFF member and you're happy about this ruling, please
consider becoming a member. Membership dues help the EFF fight these battles.

Help make a difference!

------
Chirael
Nice work, EFF! Our membership dues at work :)

~~~
jkestner
It is refreshing to get this direct of an effect for my money. This must be
how lobbyists feel.

~~~
tytso
Or perhaps more accurately, this must be how 1 percenters who pay $$$ to
lobbyists to influence/purchase politicians feel....

------
derekp7
When a patent gets overturned, can those who already paid license royalties
typically sue the patent holder to get their money back? (I know that the
entity can file bankruptcy, so the chance of getting money is slim). Or do the
license agreements typically include a clause that money is not refundable if
the patent is invalidated?

Or, even worse, do license agreements typically include language that says the
licensee agrees to continue to pay royalties even if the patent is later found
to be invalid? I can see someone being strong armed into signing an agreement
like that.

~~~
matt4077
It's only tangentially related, but it's a good story:

Apparently at some point an American producer licensed the patent for a
mouthwash for a percentage of sale – I think it was Listerine, but can't find
this story on Wikipedia right now. A decade or two later, the patent ran out.
Anybody could now copy the formula without royalties. Except: the original
licensor sued his american licensee for continued royalty payments. They won,
because the initial contract never specified an end to the arrangement when
the patent expired.

~~~
chc
That case, Warner-Lambert Pharmaceutical v. John J. Reynolds, actually hinged
on the fact that there was no patent license involved. Listerine's formula was
a secret, and Jordan Lambert offered its creator royalties if he would share
it with him. Later, the formula became widely known and Warner-Lambert wanted
out of the deal since they were no longer getting any advantage from it. They
sued to get out of their contract and recover past payments, citing patent
cases as support for the idea that they should be set free of their
obligations. The judge ruled that with patents, there is an understanding from
the outset that they are paying for access to a time-limited monopoly, while
the contract in this case was pretty clear about not having a termination date
other than "whenever they stop making Listerine".

Source: [http://law.justia.com/cases/federal/district-
courts/FSupp/17...](http://law.justia.com/cases/federal/district-
courts/FSupp/178/655/1642490/)

~~~
matt4077
Thank you – had trade secrets and patents mixed up in memory.

------
jheriko
the USPTO is a laughing stock, they should consider some serious reform
quickly or just being completely disbanded. they serve no valuable purpose
other than to retard the whole of society for the future as far as i can
tell...

~~~
cguess
The main reason it exists is to provide incentive for people to actually
create things and to spend the money on R&D with a hope there will be a
return. If I spend three years and $500,000 developing a new building
material, I should be able to be protected from an employee of mine quitting
and starting a new company doing the same thing from techniques he learned
using my invention (for a certain period of time).

Software is a different beast, simply because the vagueness you can express in
a software patent can be so general that it covers use cases almost
retroactively.

Software patents should be extremely specific, regular patents work for the
most part.

~~~
nileshtrivedi
Patents are an incentive to disclose the techniques behind inventions. Plenty
of incentives already exist to create things and invest in R&D.

------
serve_yay
Thank you for updating the title, it is much clearer now. The EFF does not
invalidate patents on their own, much as we would like that to be the case.

------
xb
This is really great news.

~~~
iaw
I had a sigh of relief and my chest relaxed a little bit. We may be on the
right track finally.

------
sbov
Any figures on how much this invalid patent costed people?

~~~
billyvg
We'll probably never know, most people that settle with patent trolls have
confidentiality agreements

~~~
chris_wot
Surely that would be invalidated along with the claim? Can you sue to reclaim
your money?

------
jacquesm
Excellent. Now we could use another one to get rid of all those stupid
streaming patents that are abused time and again.

------
tomjen3
Headline is misleading, that is only the case for one patent, not an entire
class of patents.

------
gesman
...invalidated by USPTO though.

~~~
raverbashing
That's like saying "a judge acquitted him" without considering the efforts of
the defence.

~~~
spacemanmatt
Does it matter if you get the right legal result?

