Appeals Court Agrees: Awful Patent Used To Shake Down Podcasters Is Invalid

from the good-news dept

Tue, Aug 8th 2017 6:43pm — Mike Masnick

Hey, a bit of good news! For years now we've covered the saga of Personal Audio, the "company" that claimed it held a patent (US Patent 8,112,504) that covered podcasting itself. The actual patent is about delivering news on audio cassettes, but give lawyers enough old patents and they'll twist them to be about anything. The company sent threat letters to a bunch of popular podcasts, and actually sued a few. EFF filed to invalidate the patent back in 2013 and finally succeeded in 2015. But... Personal Audio appealed.

But the company won't be getting what it wants, as the Court of Appeals for the Federal Circuit (CAFC) has gotten this one right: it's sided with EFF and said that the patent is invalid.

EFF had filed what's known as an Inter Partes Review (IPR) process, pointing out some prior art and arguing "obviousness" as well, and the Patent Office review board had agreed. Personal Audio tried to argue that the Patent Trial and Appeal Board (PTAB) misconstrued some of its claims, but the court notes that they're the freaking patent office, and they can construe claims however they want. Well, that's not quite how it was put, but:

The PTAB is authorized to construe the claims in accordance with their broadest reasonable interpretation...

It then goes through and affirms all of how PTAB construed the various claims, saying they are perfectly reasonable constructions and then concludes, simply:

We have considered all of Personal Audio’s arguments, and affirm the PTAB’s conclusion that the challenged claims are anticipated by the Patrick/CBC reference, and alternatively that the claims are invalid as obvious in view of the Compton/CNN reference.

And thus, the patent is still invalid. Personal Audio can appeal to the Supreme Court (which seems unlikely to take such a straightforward case), but EFF says it's ready if it does go that far:

“Although we’re happy that this patent is still invalid, Personal Audio could seek review at the Supreme Court,” said Vera Ranieri, Staff Attorney at EFF. “We’ll be there if they do.”

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Filed Under: cafc, patents, podcasting
Companies: personal audio

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Anonymous Anonymous Coward (profile), 8 Aug 2017 @ 6:44pm

Now?
This brings up the question: What was the USPTO thinking when they granted it?
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Anonymous Coward, 8 Aug 2017 @ 6:51pm

Re: Now?
Difficult to think clearly when suffering from stage 4 crainialsphincterosis.
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orbitalinsertion (profile), 8 Aug 2017 @ 8:56pm

Re: Now?
They were construing things any way they damn well felt like then, as well. That usually seems to be somewhere between IP maximalism and "if I approve this it leaves my desk forever and therefore have a completed job to my credit". I sometimes wonder how there is not a lot of collision between these two driving forces, such as they would grant multiple patents for the same thing to different parties.
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Anonymous Coward, 8 Aug 2017 @ 9:07pm

Re: Re: Now?
My question about collusion is how much money do you, Mike, Techdirt and others prolific posers take from foreign governments and foreign businesses? The collusion that takes place here on Techdirt appears to be financially driven, and originates with foreign powers that intend to circumvent the US laws that protect US inventors and owners of Intellectual Property. Easy question - how much money do you all take from foreigners to bash copyrights, patents, patent laws and American Inventors? How much are you colluding with foreign powers to weaken, steal from an defame legitimate American inventors (like Shiva). Simple question - how much money does it take to buy your one sided and anti-American opinions, and convince you to hide anything that actually supports American laws and American citizens? How are media whores, right, unashamedly for sale to push your foreigner propaganda, and completely obfuscating the facts about who is paying you and why?
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Anonymous Coward, 8 Aug 2017 @ 9:18pm

Re: Re: Re: Now?
lol
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Pixelation, 8 Aug 2017 @ 9:40pm

One can only hope...
that PA will Carreon and continue to try and assert this patent, even after it has been invalidated. Popcorn growers of America are anxiously waiting.
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Anonymous Coward, 8 Aug 2017 @ 9:56pm

Re: Re: Re: Re: Now?
Laugh is right. These idiots at Techdirt could not begin to interpret a claim, let alone provide any legitimate criticisms. Shame on your bashing of the USPTO, you ignorant jerks. Your ignorant and mindless chatter paid for by foreign interests that want to exploit American ideas and American inventors is truly laughable. The depth of your ignorance about the value and proud history of the USPTO and American Inventors is pitiful. You have nothing to say of any value to anyone except foreign powers that want to steal legitimate American technology. China loves, it, Europe loves it, "Free Software" loves it and no doubt pays for it. Techdirt exposes not a single opinion good for Americans. You belong under the dirt. MAGA.
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Anonymous Coward, 8 Aug 2017 @ 10:39pm

Re: Re: Re: Re: Re: Now?
Ben Franklin didn't patent hos inventions, and he had a lot of them. He still made off well.

Tell me again how American inventors need patents?

MAGA indeed.
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Anonymous Coward, 8 Aug 2017 @ 10:47pm

Re: Re: Re: Re: Re: Re: Now?
From Thomas Jennings, the first black patent holder, who invented dry cleaning in 1821, to Norbert Rillieux, a free man who invented a revolutionary sugar-refining process in the 1840s, to Elijah McCoy, who obtained 57 patents over his lifetime, those with access to the patent system invented items that still touch the lives of people today.
Read more: http://www.smithsonianmag.com/innovation/with-patents-or-without-black-inventors-reshaped-american-i ndustry-180962201/#FGKrYiRLiqEt8Ujg.99
Give the gift of Smithsonian magazine for only $12! http://bit.ly/1cGUiGv
Follow us: @SmithsonianMag on Twitter
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Anonymous Coward, 8 Aug 2017 @ 10:52pm

Re: Re: Re: Re: Re: Re: Re: Now?
And let's not forget: The Cotton Gin, The Electric Motor, The Ice Machine, The Phonograph, The Light Bulb, The Electric Adding Machine, The Airplane, and (my favorite) sliced bread. Where would we be without sliced bread? "Machine for slicing an entire loaf of bread at a single operation" US #1,867,377. Brilliant. Right?
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Anonymous Coward, 8 Aug 2017 @ 11:06pm

Re: Re: Re: Re: Re: Re: Re: Re: Now?
And, the typewriter, the microwave, TV, the Crescent Wrench, the Spinning Reel, the Sewing Machine, the Pocket Lighter, the Super Soaker, the spray can, the electric guitar, the hair dryer, Game Boy, the Kindle, the Bra, the BBQ Grill, paper clips, zippers, Velcro, and ON and ON and ON and ON. MAGA. Make Patents Great Again.
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Anonymous Coward, 8 Aug 2017 @ 11:13pm

Re: Re: Re: Re: Re: Re: Now?
Here's a bit of American history you might not be familiar with:

Robert William Kearns (March 10, 1927 – February 9, 2005) was an American inventor who invented the intermittent windshield wiper systems used on most automobiles from 1969 to the present. His first patent for the invention was filed on December 1, 1964.

Kearns won one of the best known patent infringement cases against Ford Motor Company (1978–1990) and a case against Chrysler Corporation (1982–1992). Having invented and patented the intermittent windshield wiper mechanism, which was useful in light rain or mist, he tried to interest the "Big Three" auto makers in licensing the technology. They all rejected his proposal, yet began to install (all 3 companies?) intermittent wipers in their cars, beginning in 1969.

https://en.wikipedia.org/wiki/Robert_Kearns
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Anonymous Coward, 8 Aug 2017 @ 11:58pm

Re: One can only hope...
That's a joke, right? If you have a minute, share your opinion with me about this:

Imagine that we teach all our children that their potential for accomplishment is unlimited, and one way to translate their ideas into limitless money is with patents. It's true, actually, here in the US, there are examples after examples, including me. We teach them to learn about something, anything they like, and figure out a better way to do it. Tell them they're smart, they're unique, and if they really apply themselves, they can accomplish something no one has ever accomplished before. And when they do, write it down as a patent, file it, and reap the benefits. Be the best, have the best ideas, improve upon everything that has ever been done before, and then be rewarded. Inspiring, no? That's how my grandfather explained the story to me, that story is still true today, and God Willing, will be true for future generations as well (despite Techdirt). Be the best, be the brightest, write it down and own it. That's the challenge that the US throws down to young people in the form of the patent system. Inspiring, no? Yes, blah blah blah, some attorneys abuse it, some attorneys abuse everything, so what, no way to prevent it. The patent system, as invented, and as practiced by the overwhelming majority of legitimate inventors, is a work of genius, designed to encourage geniuses, and we all benefit from that. It's a big part of what makes America America.

Disparage it at your peril. MAGA

What do you think?
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Anonymous Coward, 9 Aug 2017 @ 12:09am

Re: Re: Re: Re: Re: Re: Re: Re: Now?
Bout that cotton gin patent, it Made [Eli Whitney's lawyers](https://en.wikipedia.org/wiki/Eli_Whitney) a lot of money, while nearly bankrupting him. When Eli Whitney went into gun making, he didn't bother about patents, and made himself a lot of money.
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PaulT (profile), 9 Aug 2017 @ 12:18am

I have nothing to say, other than well done. Just making a placeholder to view the ongoing performance art.
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Anonymous Coward, 9 Aug 2017 @ 12:26am

Re: Re: One can only hope...
What do I think?

I think it has absolutely nothing to do with a patent dealing with cassette tapes being used to extract money from unrelated podcast providers.
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Stephen T. Stone (profile), 9 Aug 2017 @ 12:53am

Re: Re: One can only hope...
I think you would defend existing patent law, no matter what, unless and until an abusive lawyer made you a victim.
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Anonymous Coward, 9 Aug 2017 @ 3:12am

Re: Re: Re: One can only hope...
But come on, you can see some of the benefits that the patent system offers to young people, right? From one view, the patent system codifies an opposing view to the "powers that be" that tend to be sustained indefinitely in other societies. By specifically encouraging inventors to dream up and implement New Ways of doing things, it offers a constant rebirth and reevaluation of pretty much everything. This is really important. Americans lead the world in new ideas and new inventions, and these are celebrated at every level of society. Repressive authoritarian regimes are the ones that try to discourage and belittle invention and inventors, and instead focus on how to redistribute wealth rather than encouraging wealth creation. You cannot multiply wealth by dividing it via more government. The patent system multiplies wealth, by encouraging inventors to document and reveal their inventions, and adds the fuel of self-interest to the fire of genius. You just gotta love this system. Right? Quit focusing on one or two bad actors and celebrate the long history of tremendous benefit to the world that originated with US patents. Spending all your time focusing on the occasional exception to the rule is just short-sighted and a time waster. Invent something! There's a worth challenge!
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PaulT (profile), 9 Aug 2017 @ 3:18am

Re: Re: Re: Re: One can only hope...
"Invent something!"

I fear that I must decline, as the character and world you have invented for yourself to reside within far surpass anything I could invent for myself. Alas, I must remain here in the real world cursed with sanity, unable to follow you into your flights of fantasy and invention.
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Anonymous Coward, 9 Aug 2017 @ 3:46am

Re: Re: Re: Re: One can only hope...
I have a suggestion for you, go and look around the various makers of things that inhabit YouTube and the social media sites. Look specifically at how the sharing of ideas leads to rapid innovative improvements as different people pick up an idea and bounce back and forward on how to improve things.
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Anonymous Coward, 9 Aug 2017 @ 4:55am

Re: Re: Re: Re: Re: Now?
Had to look up that "MAGA" word, and now I get your point... "Morons Are Governing America". Well said.
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Bergman (profile), 9 Aug 2017 @ 4:55am

Re: Now?
They weren't. USPTO, for reasons that make sense only to USPTO, never looks at anything but the claims in the patent application.

It boggles the mind that everyone at the USPTO is wholly unaware that radio and television news broadcasts are things that have existed for over a very, very long time now and are therefore prior art, but somehow they manage to keep missing those crucial facts.
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Anonymous Coward, 9 Aug 2017 @ 4:59am

Re: Re: One can only hope...
Maga? You think people who disagree with the sham podcaster patent are Nigerian scammers? Really, Hamilton?

The fact that you feel some sort of kinship with 419 letter Nigerian princes is, perhaps, no surprise.
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Anonymous Coward, 9 Aug 2017 @ 5:25am

Re: Re: Re: Re: One can only hope...
It was only when I read

Americans lead the world in new ideas and new inventions, and these are celebrated at every level of society.

that I realised that this comment was either parody or sarcasm. Well done and all the funnier now that I see your humour.
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Toom1275 (profile), 9 Aug 2017 @ 6:25am

I have a theory on the origin of this particular story's troll:

https://www.techdirt.com/articles/20170705/10241437723/state-dept-enlists-hollywood-friends-to -start-fake-twitter-fight-over-intellectual-property.shtml
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OldMugwump (profile), 9 Aug 2017 @ 6:35am

Re: grant multiple patents for the same thing to different parties

I sometimes wonder how there is not a lot of collision between these two driving forces, such as they would grant multiple patents for the same thing to different parties.

They do. That's the problem.

Some poor bastard invests his life savings and those of his friends and family into a startup to make something new, and gets sued into oblivion for his efforts by one of those parties.

Even if he has a patent of his own.
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OldMugwump (profile), 9 Aug 2017 @ 6:40am

Re: intermittent windshield wiper
A famous case.

And one I cite often to illustrate the insanity of our patent system.

The "invention" of the idea of running wipers slower. How can such a thing possibly pass the obviousness test?

Oh, right - there is no obviousness test.

But, he did win in court. And proceeded to shake down auto companies for their attempts to make safer cars.
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PaulT (profile), 9 Aug 2017 @ 6:50am

Re: Re: grant multiple patents for the same thing to different parties
Not quite. What happens is that the guy doesn't get threatened with patents until *after* his company becomes a success. Most of these people aren't approaching startups on the cusp of success with bad news about his product. They're approaching companies that have made millions from a product and claiming they have to have part or all of that revenue.
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Anonymous Coward, 9 Aug 2017 @ 6:57am

Re: Re: Re: grant multiple patents for the same thing to different parties
What a lot of trolls o is wait until the company gets a big influx of investment money, and then strike to try and transfer that to their own accounts.
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JoeCool (profile), 9 Aug 2017 @ 10:02am

Re: Re: Re: One can only hope...
Just imagine - there's a Nigerian prince out there somewhere who can't get his money because people keep directing his emails to the junk mail folder. :D
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Anonymous Coward, 9 Aug 2017 @ 10:06am

Re: Re: Re: Re: One can only hope...
There is nothing inventive about being in denial about flaws in the patent system.
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Anonymous Coward, 9 Aug 2017 @ 10:14am

Re: Re: intermittent windshield wiper
Just a suggestion. Read the text of 35 USC 103.
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Anonymous Coward, 9 Aug 2017 @ 11:18am

Re: Re: Re: Now?
Looks like someone just looked up collusion in the dictionary. *golf clap* I do wonder why that particular word has been in the news as of late?
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Dave P., 9 Aug 2017 @ 11:46am

Re: Re: Re: Now?
Does anybody REALLY know what this lunatic is trying to say? Must be the troll to beat all trolls, I would say. Obviously cannot string a sensible set of words together to make a coherent sentence. (For HIS benefit, that's another way of saying that when you write something down, it should at least make some form of sense). Incredible, for all the wrong reasons.
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OldMugwump (profile), 9 Aug 2017 @ 5:00pm

Re: Re: Re: intermittent windshield wiper
That is exactly what I was referring to by "obviousness".

My point being that 35 USC 103 is (and always has been) a dead letter, effectively ignored and unenforced by the USPTO. And, too often, the courts.
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Anonymous Coward, 15 May 2018 @ 6:41pm

It is surprising to me that nobody has mentioned the fact that what was decided by the PTAB and the CAFC concerns only Claims 31 through 35 of the patent. As matters now stand, the patent remains in force with all of its Claims 1 through 30 presumed valid and enforceable against parties who may infringe one or more of them. (This assumes, of course, that no cognizant body has undertaken any action concerning one or more of these 30 remaining claims.) IOW, the patent has not been invalidated by this action; only 5 of its 35 claims have been invalidated.
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