Netflix Sued For Violating Antitrust Law With Its Patents

from the who-to-root-for? dept

Fri, May 18th 2007 12:16pm — Mike Masnick

I'm pretty skeptical of most class-action lawsuits. They're often filed over bizarre claims, and the settlements almost always seem to enrich the lawyers a lot more than the "class." Sometimes, we've even seen the settlements seem more like marketing for the company being sued. That's not to say all class-action lawsuits are bad. In some cases, they can do a great deal for consumer protection. I'm a little bit torn over this latest class-action lawsuit in figuring out which side of the line it falls under. This morning, a lawyer involved in the case sent us a filing his firm recently made to initiate a class-action lawsuit against Netflix, claiming that the company has violated antitrust law by fraudulently concealing prior art related to the patents it's currently using to sue Blockbuster. We were surprised that Netflix went this route, after it seemed as the company was winning in the marketplace (easily) against Blockbuster and others -- and it seemed like the patent wasn't needed for Netflix to remain competitive. The filing, however, suggests that there may be more to this story, and that Netflix carefully used the threat of patent litigation over these two patents to push others out of the market. That may be difficult to prove, but what's more interesting is that the filing highlights prior art that Netflix clearly knew about, but which the company did not include on its patent applications. Patent law requires that you disclose any prior art in a patent application, and the lawsuit alleges that Netflix committed antitrust fraud by concealing the prior art.

Certainly, it makes for an interesting argument. Patents grant a government-backed monopoly -- which should get you around any antitrust violations. However, if that patent is obtained fraudulently, then I can see a pretty compelling claim that you've abused antitrust law. It would be interesting if other such cases start popping up (and, indeed, the lawyer who sent it to us said his firm is looking for additional patents to go after in this manner). It certainly is an interesting way to go about defeating dangerous and harmful patents, but really, if the patent system were working properly, this type of class-action lawsuit shouldn't even be needed. Either way, given the state of the patent system today, having one more weapon to go against dangerous, innovation-stalling, competition-blocking patents might just be a necessary evil.

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31 Comments

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Shred303, 18 May 2007 @ 1:05pm

Patent Madness!
Wait, Netflix has pattented the buisness process of renting videos through the mail? This is insane.
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Anonymous Coward, 18 May 2007 @ 1:05pm

I see class action lawsuits primarily as a tool to punish certain behavior. They can end up being quite costly to the defendant. But you're right in that the individual litigants almost never receive any sort of compensation even if they win. If I was to join this lawsuit, it would be to penalize Netflix for patent abuse, not because I saw any chance of significant reward. Yay, a five dollar coupon.

Also, I've been a member of Netflix' and Blockbuster's programs, and I far and away prefer Blockbuster.

(When you add an apostrophe to represent a possessive to a word ending in 'x', do you treat it the same as a word ending in s?)
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The Daddy, 18 May 2007 @ 1:19pm

Re: Patent Madness!
Netflix pwns face.
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InkChemist, 18 May 2007 @ 1:22pm

Re:
Good question A.C. Is it Netflix' or Netflix's? Let's start a trend and make it Netflix'x :)

I'm actually surprised that this legal approach hasn't been used before on cases like Vonage, where, if I'm properly informed, there are people saying that the art in the Verizon patents was published by others as seminar notes at a conference some months prior to the patent filing and that those filing the patent were in attendance at the conference. I would love to see an outbreak of patent fraud suits.
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Patents, 18 May 2007 @ 1:30pm

J
Lets not forget that Netflix patented the Queue.
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Derek Kerton (profile), 18 May 2007 @ 1:46pm

Finally, Something The Lawyers Will Like
One of our problems at Techdirt is that we keep proposing changes to the patent system that would reduce the amount of work and revenue that goes to patent lawyers. So they troll here and abuse us in the comments.

So this backwards approach (even submitted to Techdirt by a lawyer) is finally something that those of us here in favor of innovation, and those at some law firms in favor of more lawsuits, can both agree on.

We have a system where people are rewarded for gaming the rules, and playing the system. We should change it such that there are penalties for trying to game the system.
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Anonymous Cow Herder, 18 May 2007 @ 1:50pm

Patents do not grant monopolies
Patents grant the right to exclude others from making or using an invention defined by a set of claims at the end of the patent document. There is a very important legal difference between a monopoly sanction by the government and a right to exclude. Use of a patent known to be invalid to obtain or attempt to obtain a monopoly in a defined market is indeed a potential antitrust violation. A case entitled Walker Process established this principle.
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Anonymous Coward, 18 May 2007 @ 1:59pm

Netflix was awarded a patent in April 2006 that described the online DVD queue that its subscribers use to prioritize which movies they receive.

This is a queue. Nothing more, nothing less. How the heck is this innovation? It is something that has been used for hundreds of years.

So now, thanks to Netflix, you can use a queue for anything but DVD's.
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Anonymous Patent Infringer, 18 May 2007 @ 2:08pm

Re: #8
Awesome. I have a row of movies (in DVD format) on my shelf, set up in the order in which I'd like to watch them. I await my threatening letter.
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rEdEyEz, 18 May 2007 @ 2:36pm

Netflix exposed
The world just became a whole lot more difficult for Netflix.

This is a bogus suit based on bogus patents, and ultimately they will pay, if in nothing else, in reputation and market share.

I find it hard to believe that there isn't a hiearchical relational database that actually encompasses the patent system. Is it really that broken? (...with respect to prior art investigation)

Where the hell is all of our tax money really going...to the "patent" court lawyers?

Sad. Public interest, indeed.
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Sanguine Dream, 18 May 2007 @ 2:37pm

Re:
Netflix got the patent in April 2006 and I started my Blockbuster Online account Dec. 2005 and I know I spent about 2 months thinking about which one I should sign up for. So depending on how long Netflix's (I'm pretty sure you add an " 's ") application was awaiting approval Blockbuster Online could be prior art.
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s2kdave, 18 May 2007 @ 2:42pm

For those of you with a TiVo
Seeing that you're all NetFlix or Blockbuster fans I figured I'd let you all know about my blockbuster/netflix/amazon application to modify your queue from your TiVo.

http://movierentals.sourceforge.net
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Paul Bucalo, 18 May 2007 @ 2:50pm

Prescient
There are a couple of great in depth pieces about aQuantive at www.washingtonceo.com: Behind the man behind aQuantive Microsoft to buy Seattle’s aQuantive
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InkChemist, 18 May 2007 @ 2:52pm

Re: Re:
Sanguine - It takes a whole lot longer than 6 months to get a patent granted. Blockbuster may have started their use of the idea based on the Netflix patent application in hopes that the patent wouldn't be granted. It's done all the time.
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RonC, 18 May 2007 @ 2:55pm

These comments sound more like /. than TechDirt. If you read the patents you'll see that '381 is just a continuation of '450. What is claimed is a queue of customer selected items (DVDs) where the removal from the queue is constrained by item availability, items previously removed in some time period (MAXTURNS) and items currently out (MAXOUT). Unless your wife controls your viewing based on how many and how often, you are safe (actually, even if your wife does control your viewing, unless she is a computer, you are safe!).
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SPAM, 18 May 2007 @ 2:57pm

Re: Prescient
REMOVE THIS LINK-SPAM
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RonC, 18 May 2007 @ 2:59pm

#11
The '450 patent was filed on April 28, 2000, long before BB started offering their service.
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Cobarde Anonimo, 18 May 2007 @ 3:31pm

no innovation here
I've read five patents, personally. Four had such obvious prior work that I think a good case for negligence could've been filed against both filers and the patent office.

That would rather suggest that this kind of thing is very, very common.

The other included actual innovation, but maybe not such unobvious innovation.
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RandomThoughts, 18 May 2007 @ 4:01pm

Mike, thats pretty funny that you are torn over the lawsuit on the patents. You hate both, so you don't know which way to turn. Kind of like the liberal actors when they didn't know which way to turn when the animal rights activists started protesting animal testing for AIDs drugs.
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Anonymous Coward, 18 May 2007 @ 4:02pm

Re: Re: sanguine
Well the patent was awarded at that time, but it was pending earlier.
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larryJ, 18 May 2007 @ 5:08pm

Microsofts monopoly patents
Microsoft was convicted of being a monopoly. This case covered a duration of behavior during which they aquired money and destroyed other companies. That illegal money surely paid for writing or buying code (and the ideas) turned in as patents. It also deprived other companies of making legal profit hurting or destroying their ability to create patents then, in the future and for some forever. Microsoft is like a bank robber who got caught, convicted then got to keep the money they stole and invest it in their business. And they use that stash of cash and patents going forward even more. That code, those ideas, those patents need to be confiscated and nullified or turned free.
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Joe Smith, 18 May 2007 @ 5:49pm

NTP
If the lawyers are looking for more examples of antitrust violations they should look long and hard at NTP which extracted $600 Million after paying a person who had prior art to keep them quiet.
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etrepetite, 18 May 2007 @ 6:15pm

Re: Patent Madness!
It's my understanding they have a patent on that auto-updating queue.
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Javarod, 18 May 2007 @ 7:45pm

Ifn you want an inside look at class action suits, and want to hate them more, read 'The King of Torts' by John Grisham
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IT Outsourcing, 18 May 2007 @ 10:56pm

Netflix pwns face.
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mermaldad (profile), 19 May 2007 @ 5:54am

Oh, the possibilities!
The thing about this is that since the patent system has devolved to the point where filers are rewarding for writing patents that are overly broad, as TechDirt has pointed out many times. If some lawyer can figure out how to make money off of this type of class action suit, there is a gold mine's worth of patents to pursue.
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Tsu Dho Nimh (profile), 19 May 2007 @ 8:47am

The business model dates from the 1700s!
What Netflix "patented" is nothing more than the REALLY OLD business of the "lending library" or "subscription library". The only difference between Netflix and the British company Hatchard's is that Netflix uses a computer to maintain the requests and the queue.

Hatchard's would mail books to customers and when the book came back, ship the next one. You had a list of the books you wanted on file with them. They even offered different plans, with expats in the colonies signing up for plans that dumped a hundred books or so every time a boat arrived, and those in London settling for the one book at a time plans.

The first implementation of this plan in the New world was done by Ben Franklin, who was also the first supervisor of the Patent Office.
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Some one Else, 19 May 2007 @ 11:41am

It once again shows how pointless the US patent system is. It has to be re-done to something workable if any other countries (or even ourselves) are to take US patents seriously. Asking other countries to follow a US patent like this one (or playing with a cat with a laser pointer etc) is absurd.
The basic business model Netfilix is using is older than the US constitution. Computers or no computers and the queue system Netfix has patented has been used by public libraries around the world for over 30 years for books, 20 years for CD's and probably more than 10 years for DvD's.
The really inovative thing Netfix has done is charging people for the service. :-)
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Pat Price, 19 May 2007 @ 3:54pm

Re: Re:
In reference to someone using BlockBuster online in Dec 2005, NetFlix filed their patent (7,024,381) on May 14, 2003. US patents are good for 20 years from the date of filing or 17 years from the date of granting, whichever is less. So, if BlockBuster did not offer their service prior to May 14, 2003 then the license that god gave NetFlix for owning queues stands until the patent is proved to be bad. The sad thing is that NetFlix can sue anyone for infringing if they are indeed infringing and can probably win. The question before a court will not be is the patent valid but only did the defendant infringed. The question of being valid would be settled in yet another suite that BlockBuster or someone else would bring against NetFlex. A particular patent troll (do a google search for Acacia) is right now suing thousand of companies for infringing because they claim that a web site is in reality a database (even though their patent does not mention the word web site) and they have a patent that says if you send software on a CD and the CD has a link that allows the user to click it and the software goes back to the parent site and obtains a second set of data that is displayed you have infringed. Crazy.
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Nasty Old Geezer, 21 May 2007 @ 4:41am

Throw them all out
SOFTWARE PATENTS ARE OBSCENE. They violate the entire concept, and allow the patenting of an idea.

Until the entire concept of a software patent is discarded, this sort of anti-competitve behavior will continue. It is the core of why the software companies are are all trying to become SCO, instead of actually making something useful and then doing it better than any of their competitors.

Copyrights yes, patent no.
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Doug Richards, 11 Jun 2007 @ 12:53pm

Re: Re:
Hi, I was interested in your comment re the prior art in some Verizon patents being published as seminar notes at a conference. Can you give any specifics about that? Thanks.
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