Stupid Patent Of The Month: Phoenix Licensing Trolls Marketers With 'Personalized Communications' Patent
from the that's-not-patentable-subject-matter dept
This month, we feature yet another patent that takes an ordinary business practice and does it on a computer. Our winner is US Patent No. 8,738,435, titled "Method and apparatus for presenting personalized content relating to offered products and services." As you might guess from its title, the patent claims the idea of sending a personalized marketing message using a computer.
Claim 1 of the patent is representative (the claims are supposed to describe the boundaries of the invention). It claims a "method of generating a set of personalized communications … with a computer system." The steps are described at an extremely high level of abstraction, including things such as "accessing a computer-accessible storage medium" using "identifying content to distinguish each person from other persons." The patent plainly proposes using ordinary computers to achieve this task. In fact, the "preferred embodiment of the apparatus" is illustrated in Figure 1 and includes fascinating, non-obvious details like a "display," a "keyboard," and a "mouse or pointing device."
Attentive readers have probably already concluded that the claims of US Patent No. 8,738,435 are almost surely invalid under Alice v. CLS Bank, the 2014 Supreme Court decision which held that abstract ideas implemented on a generic computer are not patent eligible. We agree. But this has not stopped a company called Phoenix Licensing, LLC, from suing more than 100 targets with this and other highly questionable patents from the same family (a patent family is the group of issued patents that come from the same application).
Phoenix Licensing has filed at least a dozen lawsuits just this month against companies ranging from CVS to Credo Mobile. Unsurprisingly, given that its patents are so vulnerable to challenge under the Alice standard, it has filed all of these lawsuits in the Eastern District of Texas. Recent data shows that the Eastern District of Texas is much less likely than other federal courts to invalidate patent claims under Alice. This helps explain why a dispute between Phoenix Licensing (principle place of business in Scottsdale, Arizona) and Credo Mobile (headquartered in San Francisco) would end up way out in East Texas.
In its complaint against Credo Mobile, Phoenix Licensing boasts that its original 1996 patent application has grown into a patent family of 19 patents with more than 1,500 issued claims. But this is not evidence of inventiveness. Rather, it simply shows that the Patent Office is asleep at the wheel. The Patent Office has allowed Phoenix Licensing's mundane idea -- using a computer to send personalized marketing messages -- to grow like a Chia pet into a thicket of patent claims.
We have seen similar strategies from other patent trolls who exploit the permissiveness of the Patent Office to get an absurd number of nearly-identical claims, which can then be used to force defendants to play an expensive game of whack-a-mole in court. This creates enormous settlement pressure. Indeed, most of Phoenix Licensing's cases settle quickly after filing. The Phoenix Licensing story shows that we still need reform both in the courts and at the Patent Office -- to stop abusive patent litigation and to stop these stupid patents from issuing in the first place.
Reposted from the EFF Deeplinks Blog
Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.
Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.
While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.
–The Techdirt Team
Filed Under: customization, marketing, patents, stupid patent of the month
Companies: phoenix licensing
Reader Comments
Subscribe: RSS
View by: Time | Thread
I don't know who to cheer for
I'd rather see both gone from my net.
[ link to this | view in chronology ]
A High Level of Abstraction Indeed
It mentions the word "invention" many times, but it reads like "these are our processes for marketing insurance policies". There's nothing at all inventive about that.
Notwithstanding the obviousness of it all, I'm trying to get my head around how "this is how we do business" could possibly be patentable. It's almost as though the patent process is being used to stifle, or at least control, competition.
[ link to this | view in chronology ]
Stopgap measure
Simply removing the trolls' ability to pick the most advantageous court to file in would strike a huge blow to their willingness to do so I'm sure, as without a clearly biased court in their favor they'd actually be forced to defend their claims in court, and given how weak so many of them are that could be difficult if not impossible.
[ link to this | view in chronology ]
Re: Stopgap measure
I think this will slow down the trolls and their trivial "patents".
[ link to this | view in chronology ]
Re: Stopgap measure
Hey, I smell a patent! "Method To Exclude Geographical Area From Corporeal Presence, Using A Computer"
[ link to this | view in chronology ]
Re: Re: Stopgap measure
[ link to this | view in chronology ]
Re: Re: Re: Stopgap measure
[ link to this | view in chronology ]
Re: Stopgap measure
It's called Personal Jurisdiction, and an objection based on it will probably be the first filing for the defence.
https://www.law.cornell.edu/wex/personal_jurisdiction
[ link to this | view in chronology ]
"The Republic of Texas"...
[ link to this | view in chronology ]
Re: "The Republic of Texas"...
[ link to this | view in chronology ]
Need legal help
[ link to this | view in chronology ]
On behalf of myself and many others, there is no interest in your advertisements. If I have interest in your product(s), I will be contacting you. Do not bother wasting your time and money sending me ads because they will be ignored. If you persist, I will go out of my way to avoid your product(s).
[ link to this | view in chronology ]
Or, maybe not. Seems the patent was filed only about three years ago. I expect if they go after a company for having that technology long before their patent even came into existence, any court (with the probable exception of east Texas) they file in would likely invalidate the patent so fast it would make their heads swim.
[ link to this | view in chronology ]
Prior Art
[ link to this | view in chronology ]
[ link to this | view in chronology ]
Patent for disposing of junk mail
[ link to this | view in chronology ]