Planet Money Takes On The Podcasting Patent Troll
from the a-failure-in-business-now-shaking-down-podcasters dept
We already wrote about This American Life's sequel concerning patent trolls, but there's also something of a companion podcast on Planet Money highlighting the patent troll suing podcasters. We'd talked about this earlier in the year when it first made news, but Planet Money actually gets the troll and his lawyer to talk -- which is pretty rare in the patent trolling world. The patent (8,112,504) is a "new" patent -- granted in February of 2012 -- but the priority date goes all the way back to 1996.The "inventor," Jim Logan, started a completely failed business around delivering audio news on cassettes. And now he claims to have invented podcasting and wants a cut. Once again, it's an example of everything that's wrong with the patent system. Logan didn't invent podcasting at all. He had nothing to do with podcasting. He tried to start a bad business, which failed miserably years ago, and now others have done some actual innovating, and he's trying to demand cash from a bunch of them. When Planet Money's reporter Zoe Chace points out to Logan and his lawyer that it sounds ridiculous because Logan clearly didn't invent podcasting, his lawyer, Richard Baker, pretends otherwise, and makes a laughably ridiculous statement:
"This is the roadmap. This is Jim's patent. This is the roadmap that would tell someone how to do podcasting, how to do MP3 players. A lot of the roadmap is right here in the columns of this patent."But, of course, that's bullshit. No one read the patent and said "Aha! Now we know how to podcast." Because nothing in the patent is about podcasting. What actually happened was plenty of people started to realize that the decreasing cost of storage, the increase in bandwidth and the rise of MP3 players, combined with syndication protocols like RSS, meant that you could distribute long audio files easily. There's nothing in the patent that's useful at all. This is the big myth of patents: that they somehow disclose something useful. That's almost never the case, and is certainly not the case with this particular patent, especially since it was issued nearly a decade after podcasting came about.
Chace finally gets Baker to admit that "it doesn't make a difference" whether or not anyone involved in podcasting, such as the guy who wrote the podcasting functions of iTunes, was even aware of the patent.
Chace does make one mistake in describing how patents work, claiming that even though lots of people had thought of "playlists" (the key part of the patent) before, it doesn't matter because Logan was "the first to write it down." But that's not actually how patents work. While it's true (sort of) that after the very recent switch to a "first inventor to file" system, the first inventor to file gets the patent. But until just a few months ago, it was the first inventor who had the right to the patent. So her claim that Logan's patent is legit because he filed first is simply wrong. Furthermore, it's wrong (even today) to say that because he's the first to write it down, then the patent is his, because prior art and obviousness are two things that make a patent invalid, and the idea of a playlist way, way, way predates Logan's patent.
In the podcast, Logan and Baker continue to insist that there's nothing wrong with what they're doing, because it encourages people to invent. But that's clearly ridiculous (and it's a bit disappointing that Chace didn't call them on this), because that's not what happened here. Logan didn't invent podcasting. He invented something else that failed in the marketplace. That should be the end of it. Now he's trying to score money from people who did something entirely different and are more successful than him. That's about as antithetical to a free market system as you can imagine. We don't reward the losers who failed to build a compelling product by forcing those who succeeded to give them money. That's just bad for everyone. It encourages less innovation, and it (most importantly) overvalues ideas over execution, which is a huge problem. We shouldn't reward failed ideas. We reward successes, and we do that in the marketplace. But patents do the exact opposite.
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Filed Under: patent trolls, patents, podcasting
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So patents NEVER reward successes? LOL! You are something special, Mikey. Real, real special.
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2/10 try harder next time
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For people used to the old US "first to invent" system, this might be a hard concept to grasp.
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Uh, seems to me that would actually be a very important point. If multiple people, who were completely unaware of his patent thought and came up with the same similar system, that on it's own would seem to suggest that the patent is not in fact valid, as it would be covering something that was obvious to multiple people in the field, and is therefor not an innovation or anything, but merely common sense and a natural and logical use of the technology.
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That sounds like way too much work. Not to mention the risks of:
1) Failure in the marketplace
2) Liability if somebody hurts themselves with my product
3) Being sued by patent trolls
It's much easier and safer earn a living in the lawsuit industry.
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That's the big problem right there. People need to be protected to some degree from people directly ripping them off. But, to claim that even if something was created without knowledge of a patent, someone has to pay up because it's tangentially similar to the patent they didn't know about? How can that be anything other than a cash grab?
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The amusing thing about that phrase in this case is - which field? Are the people who first created podcasts even in the same field as a guy mailing audio cassettes? I could make a very good argument that he isn't, unless you take an extremely broad definition of the work "broadcast".
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National Talking Newspapers & Magazines
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So in this case his patent would cover audio cassettes, but nothing else.
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podcast patent
But what happened here was a bit more subtle. Basically, the examiner failed to force the attorney to properly narrow the claims (that's the legal gobbledygook at the end of the patent that almost no layman would ever read). I haven't looked at the patent in question, but trust me, if the patent claimed nothing more innovative than cassettes and magazine articles, the patent holder would have been laughed out of every office he visited in his journey to scare up some long-overdue (if due at all) royalties. But, as is the case with every other legal document, what the original author meant makes no difference - only the words on the page matter.
Every examination of every patent goes through this process: the attorney claims everything in sight (and this first step is the one and only point where something can be claimed: if you fail to claim something initially, you can't go back and correct that error later; from the attorney's point of view, the examination process is all downhill from this point forward: the coverage can only shrink, never expand), the examiner rejects those claims that are obviously anticipated by another patent (or are otherwise clearly part of the public record), the attorney replies with amended claims (usually the modifications specifically exclude whatever the examiner found that anticipated the invention, but exclude no more than that), and so it goes.
Eventually the attorney and examiner reach some point of agreement where the 'true' novelty of the invention has been revealed, and the claims give the inventor credit very specifically for what was invented and nothing beyond the invention. Obviously the wheels fell off the process at some point in this particular case.
It may be here that the unusual length of time between the filing of the patent and its actual grant made it very difficult for the examiner to avoid using what's called "improper hindsight", and the examiner may have overcompensated a bit here in his or her effort to give the inventor every reasonable consideration.
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Suppose for example that you filed a patent, back in 1942, on some aspect of delivering mail by air. I'm sure you would want your patent to remain in force even as the propellor-driven craft of the day were replaced by jets.
But...
you are allowed to get a patent on an idea you haven't fully developed, because the patent office doesn't require working models of everything that's patented. If that shocks you, just imagine what would be required if an examiner also had to test out every invention that had a patent application submitted to it. Think of new types of transistors, for example....
Okay, so here's something you (or anyone) can do. You can find, somewhere in the available literature (it will be good if the idea is published in English), a clear and unambiguous example of podcasting that antedates the filing date of the application by at least a year (check the actual patent; the filing date is not the publication date. I would suggest science fiction stories as a start.
There you are. A constructive suggestion. And crowd-sourceable, too. Report your findings to the Electronic Freedom Foundation at www.eff.org.
Go crazy, people.
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Even the word "broadcast" had a clear meaning before the invention of radio. Carrying an old idea over into a new field is not necessarily inventive. Obviously someone was making money recording concert performances and marketing those recordings through distributors or directly to the public before radio began copying that idea.
Check out http://en.wikipedia.org/wiki/Radio_network (which of course you may have to copy and paste), and in particular, the first paragraph of the section on braodcasting networks. The discussion of how the radio networks patched over the gaps in their system before they managed to switch to true, all-radio operation should sound very familiar to people reading this thread.
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Even if they did, would anyone have really connected the language of the patent with the idea of podcasting? It seems obvious in hindsight, but I have my doubts that anyone would have looked at this and said "aha, this sounds like a podcast".
The other problem is that patents are meant to cover non-obvious ideas. The idea covered may not have been obvious in 1996, using physical objects and physical mailing systems. But online, where files are shared every second, it becomes a lot more obvious to do something like this. Using the postal system to bypass the need for a broadcasting licence was somewhat innovative. Using the internet, itself an alternative broadcast system, to do so is rather less innovative.
"After all, wouldn't you want a patent too, just for self-protection, if you were working in this field?"
Perhaps if I was working in the field. But if I tried working in the field, failed miserably, then 2 decades someone achieved success with a completely different setup that just happened to sound a bit like what I tried to do? I don't see why that deserves protection.
Protection in the field while you're working on building your business may well be good and justified. But what's being protected now by this patent? Nothing. The business it was meant to protect failed a long time ago. Now it's being used to attack successful businesses who have been in existence for years before the patents has even been granted. That's wrong. patents are meant to stop people ripping off others' ideas, not for suing people for being successful without having done that.
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Podcasting is obvious in the sense that all it did was to combine existing technologies (RSS, MP3, portable MP3 players, online file transfers) to allow it to happen. All of those things existed in the year 2000 when the first podcasts emerged. However, they did not all exist in 1996 when the patent was filed.
Therein lies one of the problems with having long-ranging patents in the modern technological world. Even online, podcasting may not have been obvious to a practitioner in the field in 1996, and so the patent might be valid at that point. However, it was fairly obvious to the practitioner when the companies being sued began to use podcasting, thus is the patent still truly valid when granted in 2012?
That's the problem here. Someone took an obvious idea, and are now being sued over it because an unknown 3rd party thought of the idea before it was obvious (despite having not successfully implemented said idea). I'm not sure what the solution is, but I'm pretty sure that this kind of activity isn't it.
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I've since taken some time to skim the patent in question.
First, the patent itself says nothing about mailing or about cassette tapes. Instead, the patent does appear to describe -- in appropriately vague terms, to be sure -- the entire podcasting 'industry'. At the time of the original patent (yes, there were several, and the one listed in the article above is not the 1996 patent) the author probably thought this would be the direction in which newspapers and magazines would evolve, and 'hard copy' would be a quaint anachronism. So I think the basic germ of the idea was the question, what would newspapers of the future look like?
And I should also point out that the category of things for which one can apply for patent protection has greatly expanded as well. When I was in short pants you couldn't patent living things, or computer programs, or business methods. For good or ill, these are all considered patentable categories of inventions now.
So it's important to keep a distinction between the idea the guy had, and what he ended up doing with his life. If you like, go rent a copy of The Inventor and watch it. It (The Inventor) obviously takes a somewhat different view of what is essentially the same situation: person A has an idea, gets a patent; person B, without any provable knowledge of person A's patent, develops the same idea and successfully implements it. Is person A entitled to any compensation? In the case of the movie, the timeline is somewhat shortened, but that's the only fundamental difference.
And be careful with the phrase "2 decades", too. That happens to be the normal term of a patent (although the term can be extended if it can be shown that the Patent Office has dropped the ball somewhere along the way in the process of examining the patent). That means (I think...) in this case that sometime in 2016 (absent the qualifiers I just mentioned), this guy's rights evaporate, and his patent enters the public domain.
I would certainly be open to the idea of shortening the term of a patent (although it would be a huge undertaking to get that through Congress), since I believe that the pace of innovation today is such that letting anyone keep a lock on an idea for 20 years may be unreasonable. And that's part of what I see motivating your reply.
I mean, this isn't a new type of carriage harness, or a new type of plow. Back in the 1800's it might literally take 20 years for an idea to develop into something marketable. But so much happens in 20 years these days that rewarding people who happen to guess right doesn't seem to promote much innovation -- and after all, that's the basic charter of the Patent Office.
And even the 20 term is subject to a lot of abuse. Drug companies are notorious about extending their patents beyond the 20-year limit by piggybacking those patents. Your blood pressure medication is about to go off patent? OMG! Something Must Be Done! Let's combine it with our diuretic and market it as a single pill, and sell it for just slightly under the combined price of the two medications taken separately. And (wait for it...) let's patent the resulting drug, and set the timer back to zero. Done right (from the drug company's POV, that is), you have another 20 years to sell what is essentially the same old drug at whatever price the martket will bear.
Finally, I should point out that you can search the USPTO database yourself, and save yourself the "thousands of dollars" you might waste having an attorney do it (and it would be a waste if it was that much money: a paralegal would be able to do the job for you in less than a day; doing it yourself, maybe three or four days).
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I don't see a solution either (save shortening the term of all patents), particularly if I require that any solution that keeps this guy from collecting on his patent does not keep the hero of The Inventor from collecting on his.
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The issue is really this - how do you balance the rights of people who are inventing and innovating while they are doing so? Patents are one way of doing this, but as we've seen they are being abused. One way in which they are being abused is that failed inventors (or even those who have not tried to implement their ideas in the first place) are able to attack those who have come up with similar ideas and implemented them successfully - even if they have not encountered the idea noted down in the patent. This is clearly wrong.
The opposite end of the scale (no patents) is also highly problematic. As with the copyright issue, I understand the need for protection but believe that the current setup is actually counter-productive. What the solution truly is, I'm not sure, but this model where people can be attacked for implementing fairly obvious systems because someone thought of something similar is not acceptable.
"Finally, I should point out that you can search the USPTO database yourself, and save yourself the "thousands of dollars" you might waste having an attorney do it"
Yes, this is possible, but surely you have to be somewhat familiar with patents to understand how they apply. I'm certainly no expert, and when I've tried comparing some of the patents discussed in similar articles here I've often been at a loss to see where similarities apply. Even when I have been able to do so, it's usually with a little lateral thinking after the fact when faced with a single patent, not trying to pre-empt problems based on every patent granted or in process.
Performing the search myself doesn't help if I'm not able to correctly interpret the patent or understand how they could apply to my idea. You can bet that the people using them as profit-making ammunition won't have that problem.
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But it *was* obvious in 1996. Because podcasting already existed!
See KUOW public radio's podcasts at
http://web.archive.org/web/19961109024722/http://www.kuow.org/fporchf/fpfleads.htm (archived Nov 1996 but contains podcasts from earlier in the year)
and hollywood.com's downloadable movie clips (a type of media that the patent holders are also asserting rights to):
http://web.archive.org/web/19961018122329/http://www.hollywood.com/movies/alldogs/video/vsalld ogs.html
More prior art at stackexchange: http://patents.stackexchange.com/questions/3884/disseminating-media-content-representing-episodes-is sued-patent-prior-art-requ
This gloriously silly patent will get overturned at re-examination, then we can all go off and get outraged by something else :)
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This guy produced the prior art himself
Basically, Jim Logan stated the fact that radio stations were already podcasting in his patent application. Which idiot was examining patents at the USPTO that day, I wonder?
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But, in defence of the examiner, examiners are not allowed unlimited time to research these issues. The typical amount of time allowed (and I mean 'allowed', as in, "you'd better maintain your rate or you're fired" kind of 'allowed') to prosecute a case is about 3 days, which may sound like a lot of time until you discover that this isn't the only case demanding the examiner's attention during those three days (don't think every part of the federal government fits the stereotype). Whereas the attorneys' time to fight the decision of the examiner is limited only by the depth of the clients' pockets. I notice the patent didn't get allowed until 2012, sixteen years after the first filing. I don't get the impression the Patent Office just rolled over and gave this applicant his patent. Obviously someone in the Patent Office smelled a rat almost immediately. But with enough attorneys, and enough appeals, and enough arguments, it is -- well, I won't say 'easy', I'll just settle for 'not impossible' -- to get a patent when you don't deserve one. At every step of the process, the examiner has an easy out: give the inventor a patent. The alternative is, well, you see it here: sixteen years of work, much of it done by the examiner without compensation.
Even circuit court judges are not immune to this tactic (and you all know who you are...), and they don't even have the excuse of time pressure.
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Fuzzy Patents vs the Patent System vs Extortion
Why can't the USPTO be sued? Just because the Patent Act precludes it? What if accused infrigers have already exonerated themselves via trial?
If the patent office can't (or won't) decide what claims are junk and what claims are of merit, then those businesses or individuals who are sued frivolously for infringement should be able to sue the patent office, if they have already proved in court they did not infringe.
Why can't we allow post-case lawsuits against the USPTO? How would this damage the patent acts framework?
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