Ex-Morpheus & Kazaa Execs Team Up To Become Patent Trolls

from the the-lessons-of-copyright-and-patents dept

Mon, Dec 19th 2011 1:53pm — Mike Masnick

Well, well. While their names may be fading into history, Morpheus and Kazaa were the two big file sharing apps after Napster was shut down. They were both built on the same basic platform (which came from Kazaa), and at some point the two actually got into a fight, leading Kazaa to shut off Morpheus, and years later there were still some lawsuits going on. However, it appears that two former execs associated with those two file sharing systems have teamed up... to become patent trolls who are now suing Google, Amazon and others for infringement.

Kevin Bermeister is being described in the article linked above as a "founder" of Kazaa, but I'm pretty sure that's not true at all. Bermeister, instead, founded Brilliant Digital Entertainment, which was an attempt to build a questionable business model into Kazaa, which originally looked a lot like adware. Brilliant Digital ended up buying Kazaa much later in the process. He's teamed up with Michael Weiss, who was the CEO of Streamcast, in this patent trolling adventure that they're calling PersonalWeb Technologies (based in -- you guessed it -- East Texas). While some are making it out like it's a big deal that these former "pirates" are now trying to enforce patent claims, it's really not new or surprising. Bermeister has been doing this for a while. In fact, all the way back in 2003, he claimed a patent on identifying files with a hash and threatened to sue every other file sharing company. In 2004, he even sued the RIAA for violating the patent. In 2006 he... sued Weiss' Streamcast for patent infringement. I'm not sure how that lawsuit turned out, but apparently the former adversaries are now on the same side of things.

The folks over at M-CAM have taken a look at the patents that PersonalWeb is now using to sue, and has found them lacking. Turns out that a bunch of them are continuations -- the sneaky trick of patent holders to change an earlier patent application later, such that the eventual patent still has the earlier priority date, even if the invention wasn't really described until much later. This has been used repeatedly in the past by companies to see what others are doing, patent it, and then be able to pretend they came up with it first. The M-CAM analysis is not kind, especially to the examiner who approved some of the patents, Khanh B. Pham. They declare:

After reviewing PersonalWeb's patents, we propose that the USPTO indeed mold a "Pham" award to best commemorate the ultimate, the outrageous, the most horrifically unacceptable patent examination performance of the current patent system.

So there's that.

If you're interested, here are the patents in question:

8,001,096: Computer file system using content‐dependent file identifiers
7,949,662: De‐duplication of data in a data processing system
7,945,544: Similarity‐based access control of data in a data processing system
7,945,539: Distributing and accessing data in a data processing system
7,802,310: Controlling access to data in a data processing system
6,928,442: Enforcement and policing of licensed content using content‐based identifiers
6,415,280: Identifying and requesting data in network using identifiers which are based on contents of data
5,978,791: Data processing system using substantially unique identifiers to identify data items, whereby identical data items have the same identifiers

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Filed Under: kazaa, morpheus, patent trolls, patents
Companies: amazon, brilliant digital, google, personalweb, streamcast

19 Comments

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Anonymous Coward, 19 Dec 2011 @ 2:05pm

For the uninitiated, this is why first-to-file is bad.
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- Vincent Clement (profile), 20 Dec 2011 @ 6:19am
  
  Re:
  This is why patenting software and data processing systems is bad.
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Leander (profile), 19 Dec 2011 @ 2:06pm

Bandwagon
to be honest, at this point they're just jumping on the bandwagon. As for lacking patents, I think Apple won that award with the rounded curves on their ipad.
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Anonymous Coward, 19 Dec 2011 @ 2:06pm

is kazaa different than kazam?
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Anonymous Coward, 19 Dec 2011 @ 2:07pm

Yes, but wait for SOPA! They will be so much more powerful! Mwooo-hahahaha!
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Leander (profile), 19 Dec 2011 @ 2:10pm

Pham Award
But still, the idea of the Pham Award intrigues me. Maybe we should hold a poll amongst the techdirt readers to come up with the ten worst patents in the news or courts this year and file for re-examination. Should be interesting.
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weneedhelp (profile), 19 Dec 2011 @ 2:13pm

making it out like it's a big deal that these former "pirates" are now trying to enforce patent claims, it's really not new or surprising.
No difference. Pirates, extortionists, all scumbags. At least the pirates only copy. The extortionists ruin lives.
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Anonymous Coward, 19 Dec 2011 @ 2:55pm

Can't they just use SOPA or PIPA or something to take down Google since they're using the IP illegally?
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Anonymous Coward, 19 Dec 2011 @ 3:48pm

You know, Computer science is only something I have several degrees in, but I'm reasonably sure half of those concepts have implementations that are at least 30 years old.

What is the lifetime of patents again? 15 years + the rhetoric of the tech savvy against the technologically incompetent patent offices?
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- Anonymous Coward, 19 Dec 2011 @ 3:49pm
  
  Re:
  7,802,310: Controlling access to data in a data processing system
  
  I mean, what the fuck?
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- TtfnJohn (profile), 19 Dec 2011 @ 4:58pm
  
  Re:
  I was about to say that each of these, from the titles alone, have the distinct scent of prior art to them.
  
  I'd guess 40 years way back to tape drives and the earliest hard drives attached to mainframes and early Unix machines. Just what are people like this doing working at patent offices?
  
  Oh, I get it, they're positioning themselves for elected office!
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Saleh (profile), 19 Dec 2011 @ 4:27pm

Does this mean that the remains of Kazaa and Morpheus have now become part of the "IP intensive industries?"
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- TtfnJohn (profile), 19 Dec 2011 @ 5:19pm
  
  Re:
  They surely have found themselves in great company in East Texas in the company of other IP intensive industries such as SCO. It's all a local development model, you see. Bring in the trolls, let 'em sue for whatever and pave the new road!
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othcmdr (profile), 19 Dec 2011 @ 8:29pm

Patent with blatant spelling errors
6,928,442... "A cony of a requested file is only provided to licensed (or authorized) parties"

What is a cony, you might ask: "the fur of a rabbit, especially when dyed to simulate Hudson seal."

The actual application has a spelling error that should have been noticed, I mean seriously.
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Anonymous Coward, 20 Dec 2011 @ 2:01am

Troll One: Durr-hurr, Pirate Mike, Kazaa, pro-piracy, durr-hurr, true colors, hurr.

Troll Leader: Troll One, this is Troll Leader. Troll One, abort mission, repeat, abort mission. Story keywords are misleading, repeat misleading. This post is not a valid trolling target. Abort!

Troll One: Nurr! PirateMike, Kazaa Morpheus, kill babies, eat kittens. Filthypirates, Mike, PirateMike thieves, intended use, rogues sites, PROTECT IP!

Troll Leader: Come in, Troll One. Abort mission! ABORT! ABORT!

Troll One: PIRATEMIKE EAT KITTENS SOPAAAAAAAAAA!

Troll Leader: It's no use. We've lost him. ::sob::
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Khstapp, 20 Dec 2011 @ 6:25am

Really
De-Deduplication of data? Did they really get a patent for a duplicate rows search on a DB?
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Willton, 20 Dec 2011 @ 7:53am

Analysis? What analysis?
The M-CAM analysis is not kind

Analysis? What analysis? Where is it? I certainly don't see any analysis of the patents in question on M-CAM's website. All I see is some juvenile commentary about continuation practice and the examiner of the patents in question. No discussion of the claims involved, and no discussion of what is disclosed in their specifications. If you call that analysis, you must be charging too much for yours.

M-CAM's comments are not kind. There is no analysis of these patents to speak of.
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- Anonymous Coward, 19 Sep 2012 @ 8:48pm
  
  Re: Analysis? What analysis?
  "The folks over at M-CAM have taken a look at the patents that PersonalWeb is now using to sue, and has found them lacking. Turns out that a bunch of them are continuations --the sneaky trick of patent holders to change an earlier patent application later, such that the eventual patent still has the earlier priority date, even if the invention wasn't really described until much later. This has been used repeatedly in the past by companies to see what others are doing, patent it, and then be able to pretend they came up with it first."
  
  M-Cam's "analysis" is most certainly not an "analysis". Not even close. I can excuse them to some degree because they apparently are not aware of the need for an evidentiary record upon which patentability decisions are and must be made. It is a legal proceeding, albeit ex parter, but like any other legal proceeding "Gee, I think (fill in the blank) does not cut it.
  
  I highlight the above quote from the article because it manifests an almost complete lack of understanding of how prosecution actually works under our laws. The requirement of an enabling disclosure in the parent is not at all noted. The concept of division requirements goes completely unnoticed. It suggests that a continuation can later be filed adding new matter in support of new claims (I guess CIPs and their requirements are unknown). It ignores that the new 20 term was enacted specifically to eliminate submarine patents of the kind actively pursued by Lemuelson (sp?). How one with a straight face can proclaim himself/herself to be well versed in patent law simply cannot be reconciled with comments as set forth above.
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6, 20 Dec 2011 @ 8:23am

"Turns out that a bunch of them are continuations -- the sneaky trick of patent holders to change an earlier patent application later, such that the eventual patent still has the earlier priority date, even if the invention wasn't really described until much later. "

Just an FYI mike there still has to be Written Description in the original document with the furthest back filing date that they get.

If you meant to say that "the invention" wasn't really claimed until much later then yes, you would be correct.

I cannot speak to the merits of any of the patents of course, but I can say that the examination itself probably wasn't as bad as you and those other folks are making it out to be. Considering Techdirt's track record on amatuer examination I have little doubt that whomever you're quoting is probably not much better.
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