

Patent troll goes after popular podcasters - joewooglin
http://www.itworld.com/mobile-wireless/345576/wtf-patent-troll-goes-after-popular-podcasters

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LVB
I was skimming over the claims of the patent. Starting at claim 23, they
basically go on to claim all sorts of behavior commonly seen in podcast
players, e.g.:

 _The audio program player set forth in claim 23 wherein said display screen
displays the displayable text describing said particular audio recording file
when said particular audio recording file is being reproduced._

I really don't understand how the USPTO approves claims filed in 2009 that
describe concepts which were in peoples hands for the preceding five years.
Perhaps those will be the first claims invalidated, but it just further
highlights the mind-boggling logic of the USPTO.

~~~
api
The USPTO does _no_ prior art checking, especially in software. You could
patent simple logic gates... today.

~~~
ChuckMcM
This isn't true, I've filed and been granted a number of patents on various
things and in nearly every one there was a response from the PTO about things
they considered to be prior art. Granted sometimes their searches were poorly
done (word matching for example) but generally there was _some_ prior art
checking.

~~~
grhino
Yep. It's not that they don't consider prior art at all. It's just that an
exhaustive search for priort art is not possible, and all it takes is one
overworked patent clerk to let something like this slip by. It's possible that
this is a valid patent based on whatever criteria the patent office uses for
software patents.

The problem is that the criteria is terrible for validating software patents.
I don't even believe any criteria for validating software patents would
actually encourage innovation in software.

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firefoxman1
> _Apparatus for disseminating a series of episodes represented by media files
> via the Internet as said episodes become available._

Just wondering what the qualifications are for working in the USPTO are. Do
you have to be fully cut off from the modern world and be strongly against
innovation?

How is it even possible to patent such fundamental concepts? I bet they would
approve a patent for "A system for transferring audio to the ears via
vibrations in the surrounding air (sound waves)" AKA speakers. Then you could
sue not just the podcasters, but the listeners too.

~~~
ncallaway
Sounds to me like your proposed claim would cover more than just speakers; I
think all audible sounds would open up the listener to liability.

Good enough to send out shakedown letters, and see how much cash rolls in!

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bokchoi
Here's the press release from the company:

[http://personalaudio.net/wp-
content/uploads/2013/01/Personal...](http://personalaudio.net/wp-
content/uploads/2013/01/Personal-Audio-Asserts-Podcasting-Patent-Against-
Media-Companies.pdf)

The patent being used against podcasters:

<http://www.google.com/patents/US8112504>

Another patent referenced in their press release that won an $8mil judgement
against Apple in 2011 and is now licensed by "Samsung, Amazon, Motorola, RIM,
Sirius, and others":

<http://www.google.com/patents/US6199076>

~~~
eksith
As I'm scanning those, I'm forced to wonder: What exactly is a patent supposed
to do? Do the good folks at the patent office even know?

This seems to me a scheme of reinventing existing inventions with the
injection of paraphrases and more sentences. It's not even "X on a network" or
"X on a computer" any more, it's just a vague reiteration of technology
already in use for years, if not a decade or more.

The entire patent system is a convoluted web of things which potentially exist
which in turn is built on a deeper layer of things which potentially exist and
so on... and how exactly is innovation supposed to happen when a non-trivial
percentage of the links on those interconnected web are based on obvious
things that should have been rejected?

~~~
noonespecial
I think the thing you might be grappling with is that when it comes to
software, they seem to have allowed the patenting of the implications of
inventions, rather than the inventions themselves. Instead of patents on cars,
they've allowed people to patent the idea of driving cars to particular
destinations.

------
h4pless
What's interesting about this case to me is that Personal Audio, LLC is the
original assignee for the patent and under the proposed SHIELD act, it would
not be liable for paying the defendants legal fees if it lost its legal battle
under the newly proposed system.

If the USPTO is willing to grant ridiculous patents that it shouldn't, then
the SHIELD act would seem to not make much of a difference at all. It seems to
me that the prior art should be a non-issue to produce considering people have
been making tutorials on how to make podcasts since '04/'05, but as long as
the patents are being erroneously assigned, the SHIELD act will provide very
little protection from these types of patent trolls.

~~~
Vivtek
The SHIELD Act is not intended to fix everything broken with the system - just
slice off the low-hanging fruit.

More comprehensive reform would probably include a ban on patents in software,
or at least a much, much shorter patent period for software and similar
domains of invention that move much more quickly than, say, pharmaceutical
development and approval.

~~~
TillE
Even for a $1 billion pharmaceutical drug, 20 years is quite a long time to
recover your investment. For something that costs a small fraction of that to
develop, it's an eternity.

For a patent covering a trivial software idea, it's ludicrous.

I'd be happy with a system that gives five years by default, using the current
process. Twenty years only if you can easily prove non-obviousness and
significant research investment.

~~~
Vivtek
To be honest, a software patent should be required to include working code.
The entire point of the system is not to provide money for trolls and lawyers,
but ensure that technical knowledge is disclosed to the public while ensuring
the inventors of that knowledge are compensated. That is currently not
happening.

------
diminoten
I don't see how podcasting is in violation of the patent in question.

I can see how a company like Apple, which _does_ provide an "An audio program
and message distribution system in which a host system organizes and transmits
program segments to client subscriber locations." That's what iTunes does, not
say, the Adam Corolla podcast. He doesn't run the message distribution system,
he merely _uses_ that distribution system.

Every single one of the patent's claims talks about the player itself, or the
endpoint of distribution. At no time is the media itself being distributed
claimed, which is what podcasters do. They create the media, your _computer_
plays it.

They didn't patent podcasting, they patented podcast players. What court would
give a shit about this re: podcast producers?

Edit: I read somewhere in all this that the patent was filed in 1996?
According to <http://www.google.com/patents/US8112504>, it was filed in 2009.
2009!

~~~
skymt
You didn't read all the claims. :) Claim 31 describes an "apparatus for
disseminating a series of episodes represented by media files via the
Internet..." It goes on to describe, essentially, in patent-ese, a web server
that serves a podcast.

~~~
diminoten
Yeah I read that part, but I believe that claim comes all together. You don't
simply get infringement if you happen to distribute audio files, you have to
do it in the way that the entire sum of claim 31 provides.

Specifically this part is the part I don't think ACE Broadcasting Network
(Adam Corolla, et al.) violates:

> and employing one of said one or more communication interfaces to:

IANAL though, so... yeah. :-/

~~~
skymt
The "communication interface" would be the server's network link, which it
does indeed employ to:

a) receive a request for the current version of the RSS feed ("compilation
file")

b) transfer the RSS feed to the client

c) receive and respond to a request from the client for audio files linked to
from the RSS feed

This appears to be a correct description of a web server hosting a podcast.
I'm also not a lawyer, but I do see a possible loophole in that the claim
describes a single machine serving both the feed and the audio files. If the
audio is hosted on a separate server or a CDN, it wouldn't violate my reading
of the claim. (If that's what you meant, then I guess we agree.) Of course,
that's the kind of detail that would need to be hashed out in court before I'd
trust it.

~~~
diminoten
I don't believe that's what they're referencing, as a network link doesn't
technically do any of the things you just said. It merely passes on requests
for those things. At no time does a network link _itself_ make those requests.

Comcast doesn't get sued by the RIAA for delivering packets which contain
pirated music, for example.

------
arbuge
So this patent was approved last year. Just why in the name of all that is
holy does the patent office keep granting these garbage patents? Isn't it
clear that they're blindlingly obvious to anyone "skilled in the art" and not
patentable to begin with?

~~~
monochromatic
Was it blindingly obvious to do this stuff in 1996? That's when this patent
claims priority back to. Also, have you made that assertion without even
glancing at the claims? All signs point to "yes."

------
spindritf
Adam Carolla took a call from Leo Laporte on his show[1] about the lawsuit.

[1] [http://adamcarolla.com/leo-laporte-barry-zito-and-kelley-
jam...](http://adamcarolla.com/leo-laporte-barry-zito-and-kelley-james/)

~~~
gtCameron
Leo segment starts at 14:45

------
blocking_io
Jesse Thorn, one of the podcasters in contact with the EFF, is asking for
anyone who knows of prior art for podcasting before 1996 to get in touch.
Hopefully someone on HN will be able to help out with this.

<https://twitter.com/JesseThorn/status/307141009815531521>

------
sswaner
"filed in 1996" I recall using a service that saved NPR episodes as huge AIFF
files and made them available for download on the same day they were
broadcast. That was around 1996, probably earlier, probably prior art.

~~~
blocking_io
If you can get any detail on that, you really should forward it to the EFF.
Even just that might spark someones memory.

------
aethertap
It seems that one of the defining features of a patent troll is that they like
to sit on a patent until a large, profitable, and well-established industry
has built up around a technology that could be construed to fall under the
patent's domain. At that point, they make their move for fame and profit.

Would it be reasonable to require "due diligence" on the part of the patent
holder in order for a patent to be considered valid? In other words, if they
have shown no interest in protecting their intellectual property in the face
of long-standing and widely known "violations," it seems that a situation
could apply that would work in a way analogous to the idea of piercing the
corporate veil. Patent holders who have sat idly by as the violations of their
patents (pending or otherwise) have gained notoriety and fame have
demonstrated a lack of desire to pursue the technology, and are obviously just
using it as a get rich quick scheme.

The idea here would be that, in this case, Personal Audio would have had to
protect the rights to their setup as soon as it became reasonably evident that
violations could be occurring (maybe the birth of iTunes or something). That
would have been many years ago, before podcasting became popular. At that
point, there's little profit in a lawsuit other than actually stopping someone
from stealing an idea, so it's not so much of a bank account booster.

This just occurred to me, so I apologize if it's been discussed and demolished
before -- it does seem that it would help to prevent this sort of surprise
attack from happening without harming actual legitimate patent holders (they
will pursue their rights early and often regardless of this idea being
implemented).

------
DanBC
"1996" - It's a shame that Google Groups Usenet search is so broken at the
moment. This is the kind of thing that a good Usenet search would be useful
for.

~~~
CamperBob2
It's been broken for a long time.

Google has done for Usenet what Caliph Omar did for the Library of Alexandria.

~~~
lsc
this is very true and very sad.

Google should give the archive to archive.org or similar if they don't want to
use it.

------
saturdaysaint
A relevant starting point for prior art might be Real Audio, which was
released in 1995. The RealPlayer wiki says that it was started as a radio
network and broadcasted sporting events in 1995. I bet someone over there
knows even better examples of prior art pertaining to "syndication".

------
dylangs1030
This is really becoming inane. How is it that someone _unconnected to the
original innovation_ can file a patent for something which _isn't new or
original_ technology?

Patent trolls have become so ubiquitous that articles like these are _no
longer shocking._

~~~
monochromatic
Was it new/original in 1996, when this patent family was first filed?

~~~
dylangs1030
They didn't file it, they picked it up after the fact.

~~~
monochromatic
What does that have to do with anything? Inventors selling rights in their
creations is pretty unremarkable.

------
zenbowman
I hope Eric Raymond goes YOLO one day and starts wiping out these patent
trolls with his massive gun collection.

~~~
monochromatic
Really? You hope for murder?

------
M8R-fhlcjm
Just start with the Claims and go from there. You must literally infringe
every single word (that's why patent Claims _seem_ so awkwardly worded).

Simply not do ANY ONE OF THE following:

> "series of episodes"

So a single episode and you may avoid infringement

> "performing, from time to time, one of a sequence of update operations"

So eliminate periodic operations, or sequence of updates and you may avoid
infringement

> "each of said update operations comprising: downloading via the Internet the
> current version of a compilation file identified by a predetermined known
> URL"

So either don't identify using known URL (admittedly not likely but worth
mentioning), avoid what they defined "compilation file" to be, or even avoid
"predetermined" and you may avoid infringement

> ", and storing attribute data contained in said current version of said
> compilation file in said digital memory, said attribute data describing one
> or more episodes in a series of episodes"

Now it starts sounding like "compilation file" is more than just a mp3 file.
So the first support I find (CTRL-F is your friend) related is:

> "The download compilation file 145, though represented as a single file in
> FIG. 1, preferably takes the form of one or more subscriber and session
> specific files which contain the identification of separately stored
> sharable files. By way of example, the recommended order and the
> identification of the program files making up an individual playback session
> are stored in a session schedule file (to be described in detail in
> connection with FIG. 5) which contains program identifiers of the program
> segments to be played during an upcoming session. The player 103 downloads
> the session schedule file and then issues download requests for those
> identified program segment files which are not already available in the
> player's local storage unit 107."

Add to this, FIG. 5 and FIG. 6, and it looks like compilation file includes
one or more things like indexes, transcripts, condensed content, topic
description, paragraphs, etc... So avoiding this "compilation file" is
probably their best bet - just serve straight up mp3 files and you may avoid
infringement but compile mp3 into these "compilation files" and you're
infringing.

What troubles me is that I'm not an expert but yet have found plenty of
options for Carolla/etc to avoid this (and relatively cheaply). So who's the
patent lawyer giving Carolla advice to fight this? Probably the EFF as part of
their anti-patent propaganda.

~~~
YokoZar
It is neither interesting nor helpful to point out that the defendants of this
patent troll could have avoided a lawsuit by avoiding podcasting altogether.

The described mechanism is how podcasting has worked for over a decade and it
is wholly unrealistic to expect everyone to preemptively engineer around an
overbroad patent that was only granted last year.

