EFF Looks To Bust Bogus Podcasting Patent; Needs Prior Art

from the help-'em-out dept

Fri, Nov 20th 2009 6:10pm — Mike Masnick

Back in July, we wrote about how a company named Volomedia had gleefully announced that it had patented podcasting. The patent itself (7,568,213) seemed ridiculously broad, obvious and covered by prior art. On top of that, it was difficult to see how it passed the current (though, perhaps not for long) "Bilski" test for what can be patented.

It looks like the EFF has decided to be proactive about this and is looking for prior art with which to bust this particular patent. In the comments on our original post about this, reader Marcel de Jong, noted that Dave Winer described audio enclosures for RSS in a blog post in January of 2001 -- nearly three years before this patent was filed. Hopefully that is rather compelling prior art, but if anyone has any more info, please send it over to the EFF.

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Filed Under: obviousness, patents, podcasting, prior art
Companies: eff, volomedia

34 Comments

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Anonymous Coward, 20 Nov 2009 @ 6:48pm

Is this too easy?
http://en.wikipedia.org/wiki/History_of_podcasting

Seems like there is various forms of prior art back to 1993 or so.
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Chris Maresca (profile), 20 Nov 2009 @ 6:53pm

Contact Doug Kaye
One of my old bosses, Doug Kaye, was an early pioneer in podcasting back in 1999-2001. They should definitely talk to him.

http://www.linkedin.com/pub/doug-kaye/0/24/a53
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Chris Maresca (profile), 20 Nov 2009 @ 6:54pm

Re: Contact Doug Kaye
From the Wikipedia article above:

"Doug Kaye, who had been publishing MP3 recordings of his interviews at IT Conversations since June, created an RSS feed with enclosures.[17] IT Conversations, now part of the nonprofit Conversations Network, remains the oldest still-running podcast."
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Pwdrskir (profile), 20 Nov 2009 @ 8:25pm

Turkeys all around us
I'm going to give my Thanksgiving early. I am truly grateful that TechDirt and the EFF are out there to stop those that would try to steal a part of my children’s future.

“Don’t Tread On Me” should be resurrected.
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Anonymous Coward, 20 Nov 2009 @ 8:51pm

Why would the patent office need to pass such a bogus patent. Not all innovation requires a monopoly to advance. I highly doubt ANYONE even saw this patent in order to think of the idea of podcasts, they created podcasts independent of this patent.
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Anonymous Coward, 20 Nov 2009 @ 8:51pm

1. Not a business method devoid of any physicality, so Bilski is of no moment.

2. Not sure why this is "bogus". The article mentioned above discusses and idea, but nowhere is that idea developed to the point that it can clearly be said it is necessarily relevant to the allowed claims.

3. This company is likely located just a few blocks from your office (Sunnyvale, after all, is not exactly a metropolis). Why not stroll over and ask them what is unique about what it has done?
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Anonymous Coward, 20 Nov 2009 @ 8:54pm

Re: Is this too easy?
From that link.

"In 1993, the early days of Internet radio, Carl Malamud launched Internet Talk Radio which was the "first computer-radio talk show, each week interviewing a computer expert."[2][3] It was distributed "as audio files that computer users fetch one by one."[4]"

See, NO patents required. Zero. No one needs a patent to think of podcasts, not all innovations require patents.
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Anonymous Coward, 20 Nov 2009 @ 9:25pm

While I don't mind the EFF going after this patent, I doubt that anyone will be able to enforce this patent against someone successfully. If someone does try to shut down podcasts with this patent THEN I wouldn't mind the EFF wasting resources on these patents. Until then it does seem like the EFF is wasting resources for no good reason where they can somewhat better use the resources for MUCH better things, perhaps trying to lobby to shorten copyright length? There are MANY other things screwed up that are in fact more important than this.
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Anonymous Coward, 20 Nov 2009 @ 9:26pm

Re:
Not saying podcasts are a bad thing, I used to listen to grc.com and I may still listen to podcasts every once in a while. I just don't see this patent as a reasonable threat to podcasts at the moment.
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Anonymous Coward, 20 Nov 2009 @ 9:42pm

Re:
2) Hi, welcome to 1993.
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kryptonianjorel (profile), 21 Nov 2009 @ 6:36am

Re: Is this too easy?
Huh, I was always under the impression the name "podcast" came from the iPod...
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Les, 21 Nov 2009 @ 6:46am

This patent is very narrow and covers only a very specific feature
READ THE CLAIMS PEOPLE

The patent has nothing to do with audio enclosures for RSS

Claim 1, the BROADEST CLAIM recites, and therefore requires for infringement, the following very particular functionality:

providing the user with: an indication of a maximum available channel depth, the channel depth indicating a size of episodic media yet to be downloaded from the channel and size of episodic media already downloaded from the channel, the channel depth being specified in playtime or storage resources, and the ability to modify the channel depth by deleting selected episodic media content, thereby overriding the previously configured channel depth.
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Anonymous Coward, 21 Nov 2009 @ 8:06am

Re: Re:
Perhaps some things the EFF could look at before going after patents blindly are things like the following.

A: What are the chances that this person/entity will actually sue someone for allegedly infringing on the given patent. Does the patent holder have a history of suing people for patent infringement in general?

B: What are the chances of the patent holder selling the patent someone who is likely to sue someone for infringement.

This way they can strategically choose to overturn patents that are more likely to be used against someone.

Don't get me wrong, I'm all for the EFF overturning bogus patents but it just seems like a very tedious waste of resources to go after a bunch of patents, one by one, that aren't even likely to be used against anyone. Perhaps the EFF can try to aggregate patents and try to overturn a bunch of patents all at once to save money and resources? Another thing the EFF could try and do is lobby for shorter patent lengths.
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Anonymous Coward, 21 Nov 2009 @ 8:12am

Re: Re: Re:
Another thing to consider is that if it's going to cost more to fight a patent than to simply buy it I would much rather the EFF simply buy the patent. Then they can refrain from suing anyone for it unless they're using it to counter sue someone who is suing someone else for patent infringement in hopes of a settlement (ie: you let everyone use your patents and we'll let you use our patents).
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Anonymous Coward, 21 Nov 2009 @ 8:19am

Re:
The patent office does not decide on what is innovative or whether a patent is 'good' or not. The patent office only tries to figure out if you have something that is not previously patented. They leave it to patent holders and/or the courts to sort out the rest.
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Mike Masnick (profile), 21 Nov 2009 @ 10:06am

Re:
While I don't mind the EFF going after this patent, I doubt that anyone will be able to enforce this patent against someone successfully.

The company put out a press release and emailed pretty much all of the tech press the day after they got the patent. That's a clear sign that they're planning to try to get companies to pay up for it. Take it on before they do that is a much better proposition.
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Mike Masnick (profile), 21 Nov 2009 @ 10:08am

Re: Re: Re:
A: What are the chances that this person/entity will actually sue someone for allegedly infringing on the given patent. Does the patent holder have a history of suing people for patent infringement in general?

Very high. They put out a press release clearly stating that pretty much all podcasting was covered by the patent. You don't do that if you're just planning to sit on the patent.

Don't get me wrong, I'm all for the EFF overturning bogus patents but it just seems like a very tedious waste of resources to go after a bunch of patents, one by one, that aren't even likely to be used against anyone.

Again, Volo has given every indication that they are likely to use this patent against others.
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Mike Masnick (profile), 21 Nov 2009 @ 10:09am

Re: Re: Re: Re:
Another thing to consider is that if it's going to cost more to fight a patent than to simply buy it I would much rather the EFF simply buy the patent.

Why? That rewards Volomedia for getting a bogus patent, and only serves to create incentives for others to get bogus patents in the hopes that the EFF or others "buys" it from them.

Volomedia should not receive money for abusing the patent system.
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Anonymous Coward, 21 Nov 2009 @ 10:23am

Re: Re:
Good point. Thanks.
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Anonymous Coward, 21 Nov 2009 @ 10:24am

Re: Re: Re: Re: Re:
"Why? That rewards Volomedia for getting a bogus patent, and only serves to create incentives for others to get bogus patents in the hopes that the EFF or others "buys" it from them."

Sure, ultimately bogus patents shouldn't be granted, but being that the patent office granted those patents to someone who would sell it to the EFF, I would much rather the patent be granted to someone who would sell it to the EFF than for the patent to be granted to someone who would abuse it. If I apply for a bogus patent and sell it to the EFF that prevents someone else from applying and getting that bogus patent and then abusing it.
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Anonymous Coward, 21 Nov 2009 @ 10:47am

Re: Re: Re: Re: Re: Re:
Basically you must choose between the lesser of the two evils. The patent office somehow thinks that all ideas that haven't already been patented are patentable. I know, it's a screwed up mentality, but short of disbarring the patent office the question becomes how do we mitigate the harm they cause to innovation and our economy? We have to choose the most effective route per dollar spent. If buying patents is cheaper than fighting them, and if buying patents allows the EFF to cross license and gives them power to counter sue and if it gives them leverage over other patent holders who sue, then why not? As far as I'm concerned the patent office is going to grant those bogus patents regardless, so we have a choice, allow the patent office to grant those patents to those who would abuse them or try to give incentive to people to get bogus patents and either sell or donate them to the EFF which prevents others from getting those same bogus patents and abusing them. The EFF should do whatever is more effective. (and the EFF doesn't have to do one or the other, it can do a combination of stuff of course, but it should choose the combination that's ultimately more effective given its limited budget). Another thing the EFF could do, to the extent that it's cheaper and more effective, is apply for its own bogus patents to prevent others from getting them. If the EFF doesn't get the patent then someone else will. and if the EFF isn't granted the patent then it would be an act of discrimination for the patent office to grant the same patent to someone else and the EFF can use that to bring bad publicity to the patent office and to perhaps take further action. In other words, not granting the patent to the EFF could help prevent the patent office from later granting the patent to someone else. The EFF could list all of the patents it applied for and did not get on its website in order for other people to help ensure that no one else gets those same patents granted to them.

I also think that SOMEONE should start a prior art search engine with a database that people can submit free ideas to the public domain so that people can use that as a basis for prior art (ie: see, someone else already thought of that on such and such date and submitted it on this database). Then if someone gets sued for infringement they can search the database and see if anyone submitted a similar idea to it before the patent was granted.
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Anonymous Coward, 21 Nov 2009 @ 11:21am

Re: Re: Re: Re: Re: Re: Re:
The patent office somehow thinks that all ideas that haven't already been patented are patentable.

Thank you for the comic relief. We all know the USPTO does not give a rodent's behind about whether or not something has already been patented, but your comment nonetheless has a degree of sarcasm that is well said to those who post anti-patent snipes based upon not even a scintilla of accurate information.
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Anonymous Coward, 21 Nov 2009 @ 11:50am

Re: Re: Re: Re:
I see press articles like this all the time, and thereafter seeing not a whit of inclination to sue anyone. Maybe they will. Maybe they won't. But to state in effect with such a degree of confidence for others to "watch out...they will be coming after you" is pure, unadulterated conjecture without any basis in fact.

Like I suggested, if this is something about which you feel strongly, visit them and talk about their technology. They are likely only a few block from your office and/or home.
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Mike Masnick (profile), 21 Nov 2009 @ 2:04pm

Re: Re: Re: Re: Re:
I see press articles like this all the time, and thereafter seeing not a whit of inclination to sue anyone. Maybe they will. Maybe they won't. But to state in effect with such a degree of confidence for others to "watch out...they will be coming after you" is pure, unadulterated conjecture without any basis in fact.

So is suggesting that people sit around and wait until it's too late. It's perfectly reasonable to proactively go after bogus patents. Why wouldn't you think so?

Like I suggested, if this is something about which you feel strongly, visit them and talk about their technology. They are likely only a few block from your office and/or home.

Huh? Why should I visit them? You aren't making any sense.
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Anonymous Coward, 21 Nov 2009 @ 2:43pm

Re: Re: Re: Re: Re:
I suspect that they will at first attempt to make licensing arrangements in order to squeeze money from the low-hanging fruit (i.e. easily intimidated or small-time podcast creators) without doing any work. They're only likely to sue when someone refuses (which is going to happen, because the patent is ridiculous).

What the EFF is doing by challenging the patent is not only protecting those who refuse from eventually getting sued, but also protecting those who would go along with a licensing agreement (in order to avoid getting sued) from being fleeced on the basis of a bogus patent. And good for them.
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Anonymous Coward, 21 Nov 2009 @ 5:00pm

Re: Re: Re: Re: Re: Re:
Huh? Why should I visit them? You aren't making any sense.

Tongue in cheek remark I made only because both of you are in Sunnyvale. I know it is very unlikely you would ever pay it a visit, but from my experience talking directly with the horse's mouth yields mounds of very useful information.

Merely FYI (and, no, this is not a setup), I lived in Sunnyvale for many years while flying out of Moffett with what was then VP-50. Not to date myself, but at the time what is now Silicon Valley still had some cherry orchards.

As for going after them, the EFF activities are little more than a means to gain publicity. If this document poses a real problem, effected companies certainly have the motivation and means readily at hand to mount a challenge, a challenge that does not to cost big $$$ if you have a lawyer who knows what he/she is doing and thinks like a businessman (versus seeing everything in legal terms).
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vyvyan, 22 Nov 2009 @ 6:48am

Re: Re: Re:
Dude you're putting all rational in wrong direction. Let me exaggerate you logic to show the absurdity of it.

You're saying that you would kill someone if you're paid more than [(your annual income)*(maximum term for murder)*(probability of getting caught)]

Or it's okay to hand over assault rifles to everyone who hasn't got a criminal record.

Buying off such a patent could never be a solution, you're simply postponing a catastrophe.
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Anonymous Coward, 22 Nov 2009 @ 9:00am

Re: Re: Re: Re: Re: Re: Re: Re:
"We all know the USPTO does not give a rodent's behind about whether or not something has already been patented"

To the extent that this is true this is just more reason why I think we need to start a prior art search engine and have organizations like the EFF try to enforce the non patenting of prior art.
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Anonymous Coward, 22 Nov 2009 @ 9:03am

Re: Re: Re: Re:
what we have now is already a catastrophe and we must choose between the lesser of the catastrophes. I wouldn't mind an anti patent organization holding many patents and using them as leverage in counter suing corporations that sue for infringement. The EFF of course wouldn't try to buy a patent if it costs more to buy than to fight, for the ones that the seller wants to sell at a high price the EFF can fight and overturn them and also use its own patent base as a basis to counter sue as well.
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Anonymous Coward, 22 Nov 2009 @ 9:07am

Re: Re: Re: Re:
"Or it's okay to hand over assault rifles to everyone who hasn't got a criminal record."

No, it's more like buying up the assault riffles from those criminals who have them instead of taking each of them to court and spending tons more money fighting for the court to take them away. Yes, those criminals can get more assault riffles but they're going to get more assault riffles regardless because the patent office keeps on handing them out.. So I would much rather the EFF own as many assault riffles as possible and they can use them in court to counter sue criminals that abuse the patent system.
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Will, 22 Nov 2009 @ 10:25pm

Re: Re: Is this too easy?
I was too
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mike42 (profile), 23 Nov 2009 @ 9:53am

You gotta be kidding
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mike42 (profile), 23 Nov 2009 @ 9:59am

You gotta be kidding
This claim describes a download progress indicator with a cancel option. Wow, never seen one of those before.
Oh, that's right, this is an audio file, so that makes it entirely different, and deserving of a monopoly.
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Anonymous Coward, 23 Nov 2009 @ 11:02pm

Re: You gotta be kidding
Everything is deserving of a patent, no matter how obvious, just so long as it hasn't already been patented. All ideas are deserving of a patent.
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