Lawsuit Claims Miller High Life Loyalty Program Infringes Patent

from the it's-miller-time dept

Mon, Feb 21st 2011 4:27am — Mike Masnick

Loyalty programs are a pretty basic concept and have jumped to the online world ages ago as an obvious progression of such programs. But, of course, where "obvious" and "internet" meet, there are almost always patents to get in the way. Mike Wokasch alerts us to the news that a company called Carlson Marketing Worldwide is suing beermaker MillerCoors over its "Miller High Life Extras Loyalty Program." The patent in question, 6,039,244 is incredibly short... and broad, and covers a form of creating a database for a loyalty program. It's only three claims long, with the first claim being the only one that matters. Read that claim and explain how this patent was ever found to be legit.

Anyway, of course, Carlson is very upset about all of this, though I find it interesting that the URL that the lawsuit itself points to for the Miller loyalty program appears to be run by a company called Eprize, who seems to whitelabel loyalty programs for lots of big name brands. So perhaps there's more to it than the lawsuit notes, but when Carlson claims in its filing that Miller "owns, operates and maintains" the program, I'm not sure that's really true. Either way, it's yet another sad example of patent bullying.

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Filed Under: loyalty programs
Companies: carlson marketing, millercoors

29 Comments

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Anonymous Coward, 21 Feb 2011 @ 5:34am

Patents infringement should discourage patent trolls making it progressive, the first time you are found to be infringing you just need to stop doing whatever you are doing and if you find a new way to do it different from before you just need to keep changing the ways you do things to not be found liable.

Since there will be no money to collect there is no reason to keep patenting absurds, since nobody will pay anything and it keeps people who actually do something from being copied appeasing the people who believe in such a nonsense.
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The eejit (profile), 21 Feb 2011 @ 6:07am

Re:
man what?

So adapting to lawsuits is better than adapting to customers? What bollocks.
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Richard (profile), 21 Feb 2011 @ 6:09am

Every time
Every time I sit down to write some code I come up with something more original than this. How do they have even the time to waste patenting this stuff beats me.
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Shon Gale (profile), 21 Feb 2011 @ 6:40am

That's ridiculous! A database layout was allowed to be patented. The patent have the most stupid people on the planet approving patents. This is way too broad and obviously will infringe on tons of other database layouts. Database setup with accompanying documentation is copyright like a book dip shits. I was VP for research and development for 10 years and worked closely with Copyright / Patent / Trademark attorneys! A whole damn room full of them. The phone card project had a general patent for the process of making phone cards and putting money on them of which the customer database was really a small part. Crucial but small. The database layout for the cards was considered source code and thus copyrighted.
We really need reform and a total review. Whoever is running the patent office has screwed it up and made your patent nothing but a license to litigate.
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Josh in CharlotteNC (profile), 21 Feb 2011 @ 7:18am

Re:
Patents infringement should discourage patent trolls making it progressive, the first time you are found to be infringing you just need to stop doing whatever you are doing

Let me guess, you're a patent lawyer? The only thing that would encourage would be for the innocent to settle out of court for money.

Changing the way you're doing things can be just as costly as a huge patent lawsuit.

The real solution is stop granting monopolies on ideas.
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harbingerofdoom (profile), 21 Feb 2011 @ 7:38am

Re:
that was 1% lunacy, 99% b.s. writing style intended to inflate a simple statement to two full sentances
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Anonymous Coward, 21 Feb 2011 @ 8:04am

Initially filed in Germany a a german national.

Later filed as a PCT aplication with the European Patent Office that obviously designated the US as one of the designated states where national applications would/could be filed.

US application filed claiming priority based upon the original 1997 filing in Germany.

US counsel prosecuting the application was Townsend, Townsend and Crew, then one of the preeminent law firms withing Silicon Valley and San Francisco, a firm that was hardly a patent application filing mill.

Numerous references were used by the USPTO during prosecution of the US application.

The specification of the patent is by no means "incredibly short" as stated here.

A patent application does not necessarily need an almost infinite number of claims to state the metes and bounds of a claimed invention. Some of the most important inventions I have ever seen mature into a patent have had an equally few number of claims.

Claims are interpreted in accordance with the disclosure contained in the application, and, thusly, are limited accordingly in scope.

To read only the claims devoid of reference to terms of art used in the specification fundamentally misapprehends claim interpretation and what may be asserted against third parties.

Bottom line: To simply read claims without reference to arguments present in the file history of the application that eventually issued as this patent represents a fundamental misunderstanding of the process by which patent applications are examined to determine if a patent grant is warranted.

Using just the claims to declare this patent to be a "poster child" of so-called "bad patents" is lacking in merit without an examination of the file history to ascertain the true scope of the claims contained in the patent.

An intellectually honest debate about this patent requires far more than the analysis presented here.

Maybe a mistake was made here, but it certainly cannot be determined using the rationale employed in this article.
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Jeff, 21 Feb 2011 @ 8:46am

Re:
This case was also subjected to re-examination in '03. Despite being rejected twice during the re-examination, the Applicant was able to successfully argue the patentability of the claims without amending/narrowing their scope. Surviving re-examination unscathed likely emboldened the patent holder because such an accomplishment generally reduces the likelihood of the patent being found invalid during litigation. However, it should be noted that the initial examination as well as the re-examination were both conducted prior to the 2007 KSR supreme court case, which significantly eased the ability to find a patent invalid as obvious.
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Overcast (profile), 21 Feb 2011 @ 8:57am

Seems like; simply put, the whole patent and copyright system is woefully broken.

Sadly; whatever government does to fix it will be 50% corporate interests, 1% creative interests, 1% for the interests of the people and 48% confusion.
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abc gum, 21 Feb 2011 @ 9:46am

Re:
tl:dr

"Maybe a mistake was made here"
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Richard (profile), 21 Feb 2011 @ 10:12am

Re:
Your defense of this patent and/or the system that allowed it is pathetic. Really it doesn't require all the analysis that you mention to realise that this is a ridiculous patent. It is obvious.

The patented claims are trivial - and there is plenty of prior art that would invalidate it out there.
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coco Was Screwed, 21 Feb 2011 @ 11:22am

Re:
Clearly a Patent troll lawyer...You my friend are stifling innovation just so your kids can go to private school and you can drive that S class. You're not "protecting" anyone or anything. You are the worst kind of ambulance chaser...
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Anonymous Coward, 21 Feb 2011 @ 11:27am

Re: Re:
Your comment addresses none of the points I made.
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Anonymous Coward, 21 Feb 2011 @ 11:31am

Re: Re:
Claims, like statutes, do not admit to a quick read.

If there is relevant prior art out there that invalidates the claims, then I think it would be a relatively easy matter to cite them and why they are relevant to claim construction.

Perhaps such prior art exists, but a conclusory statement without citations does fall a bit short of the mark.
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Anonymous Coward, 21 Feb 2011 @ 12:04pm

Re: Re: Re:
Perhaps because you didn't make any.
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Anonymous Coward, 21 Feb 2011 @ 12:12pm

Re: Re: Re: Re:
Did you actually read the original comment?

As for the comment to which you replied, it was nothing more that an insulting rant based upon nothing said here.

My daughter went to public schools.

My wife and I drive a '97 Dodge Caravan and a '98 Toyota Corolla.

I pull over to the curb when an ambulance passes, and leave it at that.
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BearGriz72 (profile), 21 Feb 2011 @ 12:51pm

Re: Re: Re: Re: Re:
Because you did not say anything meaningful? All you did was say that you have to examine the whole patent application (NOTE: Mike linked to it so we could examine it ourselves). Mike never said that only the claims just that only the first was relevant to the lawsuit.

In addition the history you mentioned in this case IS irrelevant, why, because this patent should have NEVER gone through, it is obvious to anyone with a brain.

I honestly don't care about what you drive, as far as "n intellectually honest debate about this patent requires far more than the analysis presented here.", well duh! That is what the internets are for moron, Mike presents his opinion and some links to relevant information, we look at what he said, DO OUR OWN RESEARCH, and agree or disagree. Then if we want we write a response, hopefully including REFERENCES to back up our opinions.

If you want to try to support a silly patent here at least do yourself a favor and back up your statements with facts & cite your sources, otherwise all you get is scorn, sorry.
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Anonymous Coward, 21 Feb 2011 @ 1:10pm

"Read that claim and explain how this patent was ever found to be legit."

I explained how this is done. The writer of this article apparently does not have the inclination to do so.
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Richard (profile), 21 Feb 2011 @ 1:17pm

Re: Re: Re:
I deduce from your style of writing that you are a lawyer and therefore constitutionally incapable of perceiving the obvious (especially when it might subtract from your professional opportunities).
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Richard (profile), 21 Feb 2011 @ 1:25pm

Re: Re: Re:
Claims, like statutes, do not admit to a quick read.
Especially when you're trying to rack up your chargeable hours....
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Richard (profile), 21 Feb 2011 @ 1:49pm

Re:
Bottom line: To simply read claims without reference to arguments present in the file history of the application that eventually issued as this patent represents a fundamental misunderstanding of the process by which patent applications are examined to determine if a patent grant is warranted.

Line beneath bottom line.

To create a bureaucratic legalistic patent system that requires this level of tedious analysis of the obvious to reach any sort of conclusion is simply a drag on those who are trying to do useful work.

In short - you think that this issue requires hours of legal analysis to arrive at a conclusion. I think that it shouldn't.
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Anonymous Coward, 21 Feb 2011 @ 4:13pm

Re: Re:
All solutions that take away the power to do harm no matter how small are important.
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Anonymous Coward, 21 Feb 2011 @ 4:18pm

Re: Re:
Actually no, if you are not at risk of punishment you don't have to give money to anybody you just need to do it differently, unless of course you want to keep doing the exact same thing.

But it gives people an escape route, it goes in the right direction to actually change things step by step.

The thing to remember here is that those in power are afraid of radical change.

It gives people the chance to experiment to find a different route is that bad?
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Anonymous Coward, 21 Feb 2011 @ 4:37pm

Re: Re:
Why?

It reduces liability and punishment why is BS?

What do you do with patents that you can't monetize unless you produce something?

What do you do with patents that are easy to find ways around it, and people can freely experiment until they find a alternative solution?

What do you say to a proposal that even the moderates can get behind it?

The way to great changes start with small steps.

Couple those changes with Open Hardware Initiatives and you get a pretty powerful way to deal with the situation until real change can be accomplished.

The biggest problem with patents is liability. Reduce that and most of the problems go away.
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Anonymous Coward, 21 Feb 2011 @ 4:42pm

Re: Re: Re:
Why cite something that everybody knows already exists?
Just ask any person in charge of acquiring home supplies and you will see the prior art and how those claims in that patent are an offense to common sense.
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Anonymous Coward, 21 Feb 2011 @ 4:55pm

Re:
The mets and bounds should be determined by an actual implementation of those ideas which he didn't file.

http://www.google.com/patents?id=YkoDAAAAEBAJ&printsec=abstract&zoom=4&source=g bs_overview_r&cad=0#v=onepage&q&f=false

Also of importance is that all those diagrams deal with abstractions of implementations and not the implementations itself, how did the USPTO accepted that is a mystery to many.

Possible solution, force all those software patents to come with source code to be filed with the patent showing exactly what is being patented, since patents are supposed to give all the remedies against copycats and it is supposed to do that, one must not be afraid to release the source code into the public.
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Michael, 22 Feb 2011 @ 4:34am

Re: Re: Re:
One huge problem with your plan is that patent trolling has nothing to do with going to trial. In fact, they would rather you never go to trial. They want to make dealing with them so expensive that you settle before a court case starts.

Forcing a company to "change the way it does something" is very expensive and would encourage trolling.
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Anonymous Coward, 22 Feb 2011 @ 5:11am

Re:
Sorry, but you didn't explain anything. All you did was present the steps that lead to the patent.

Unless your answer is "it's legit because it's legit".
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Anonymous Coward, 22 Feb 2011 @ 8:15am

Re: Re:
Actually, my comment was basically a two-parter.

First, a history or where the patent originated, which provides some insight as to why it may contain only a few claims.

Second, a discussion about how one goes about deciding what a claim actually covers. Many people mistakenly believe that a claim can be read without reference to the specification, i.e., everything that preceeds the claims. This is not accurate because applicants are permitted to be their own "lexicographers", and, thusly, terms appearing in a claim may very well be limited in scope by how those terms are defined in the specification. Moreover, the file history, i.e., all of the arguments presented by the USPTO and the applicant during the process of examing an application, may reveal the existence of arguments presented by an applicant that limit the scope of the claims even further.

These are why resort to the specification and the file history are so important in ascertaining the true scope of claims appearing in an issued patent.
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