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This is why I hate Internet reporting of patent cases: > Given that there's no question Internet broadcasting pre-dated Logan's business, Ars asked if Liddle a

This is why I hate Internet reporting of patent cases: > Given that there's no question Internet broadcasting pre-dated Logan's business, Ars asked if Liddle and his colleagues at Personal Audio felt that it was justifiable to keep pursuing small podcasters for royalty payments. "I'm not going to comment on that," he said. 1) The patents are not on "Internet broadcasting". They are, effectively, despite claim oversimplification being the primary sin in discussing patents, on skipping episodes of audio content. That is it. If you want to find relevant prior art, you don't go about looking for "Internet broadcasting", you look for things that involve audio content that is episodic and can be skipped from episode to episode with a user command. Yes, really. 2) The prior art that EFF dug up, if it is indeed on "Internet broadcasting", is probably not relevant to this patent. 3) Personal Audio is arguing Estoppel. Estoppel, overly simplified, means what you say and do can be used against you. 4) If you consider 2) and 3) it's highly ironic then, that Ars asks the lawyer a question that would effectively do nothing other than create estoppel for himself. Conveniently, the article gets to present that as a shady response. But consider this: whatever he may say offhand about the prior art Ars mentioned can work against him. This is the same principle as "Don't talk to the police" that gets parroted so often around here: Don't say anything without having thoroughly thought it through beforehand. As an oversimplified example: The lawyer may have said something like "That is just Internet broadcasting. This patent covers something else like skipping episodes". An opposing lawyer can then argue, "Defendant does Internet broadcasting, but plaintiff's lawyer just implied these patents don't cover Internet broadcasting." 5) Askpatents.com is much better for this work, because dedicated users (shoutout to Micah Siegel) take efforts to describe in plain english and as precisely as possible, the claims and what prior art should contain. Anything less than that devolves (as it does on HN or Slashdot) to discussions of completely irrelevant prior art. 6) Relevant prior art may actually lie in the domain of simple digital audio players, because those have had skipping of content for, like, ever. Problem is, these claims use "means for doing XYZ" in their language. This, while sounding extremely broad, is paradoxically narrow, because "means for" is now interpreted to cover only exactly the methods described in the specification. But anything that skipped episodes of content is what we want. While I am strongly pro-patent, I completely accept there are flaws in the system. The article implies the patents are overbroad, but the reality is they are narrow enough to be literally inconsequential, but impart an over-inflated worth because of the legal environment. However, reporting like this twists the issues and actually impedes progress. If, for example, you called your Congress-people (hah!) and complained saying "How can there be a patent on Internet broadcasting?!", they would consult with someone who actually knows how patents worked, who would then say, "Well, it's not really a patent on Internet broadcasting per se...", and that's all the politician needs to bucket you in along with the old lady who keeps calling up about the UFOs in her backyard. OK, I'm stretching it with the politician scenario and have no experience with politics. But am I far off?

drpgq 13y ago
You wouldn't happen to be a patent lawyer, would you?
- throwawaykf03 13y ago
  No, IP is just a strong interest of mine, but I did study (and may sometime, for kicks, decide to give) the patent bar exam.
fleshweasel 13y ago
They oversimplified the patent, but surely you don't believe that the functionality to skip episodes of Internet audio content with a user command should be patentable.
- throwawaykf03 13y ago
  That is a (probably the most) difficult question. Intuitively, I would say, "Of course not". But when you learn more about the patent system and how it works, you understand the reasons why something like this may have gotten through. Let me lay it out. 1) Hindsight is a powerful effect. Once you've been shown something new, a person of skill may instantly deduce how it works. This does not necessarily mean it was obvious in retrospect. 2) This presents a significant problem for any system that purports to reward innovation. How do you objectively tell if anything was truly novel and non-obvious at the time it was invented? Any opinion on the quality of an invention is inherently subjective. [1] 3) As such, the way patent offices have historically decided this, is that novelty or non-obviousness is completely based on the delta with the prior art that came before it, where prior art := any published material with an identifiable date prior to your invention. [2] This is because, in true CYA style, when contended, you have an established historical record of documents proving your stance. Novelty is easy: Anything that a single prior art reference doesn't cover is novel. Obviousness is the tricky part: all inventions are combinations of existing elements. But was that combination obvious? How's that for subjective! The USPTO seems to have a rule of thumb that any claim that requires combining more than three+ references of prior art is probably non-obvious. That seems like a pretty low bar to clear (and you'd not be far off) but the catch is, those references could be anything that mentions anything resembling any element of the invention. Under this standard, it is my belief that truly innovative inventions like Diffie-Helman or RSA would not have been patentable [3]. 4) And herein lies the rub: To be fair, you must be objective. But to be objective, you must abandon all measure of quality to the power of raw data. And as data scientists tell me, data often lies. All the data in the world (at that time) may not be enough to prove non-obvious the specific combination of elements that a patent claims. Such as this patent. Really, who's going to document and publish at a venue with a proper date the fact that they developed something to skip audio files? Yes, to be fair, you must judge all patents by the same standards, so the patents in areas that have been most published about (because, you know, they are interesting research problems) are less likely to get through than those that cover some obscure, unimportant aspect hat nobody thought to document. And that, ladies and gentlemen, is why we have this situation 1. Imagine if Einstein was your patent clerk as opposed to the guy you interviewed week before last who failed Fizzbuzz. 2. This, of course, relies on good search, and IMO Google has been the biggest boon (or bane, depending on your perspective) to the patent system than most imagine. 3. Choosing primes and taking mods? Is that all?!

drpgq 13y ago

You wouldn't happen to be a patent lawyer, would you?

throwawaykf03 13y ago
No, IP is just a strong interest of mine, but I did study (and may sometime, for kicks, decide to give) the patent bar exam.

fleshweasel 13y ago

They oversimplified the patent, but surely you don't believe that the functionality to skip episodes of Internet audio content with a user command should be patentable.

throwawaykf03 13y ago
That is a (probably the most) difficult question. Intuitively, I would say, "Of course not". But when you learn more about the patent system and how it works, you understand the reasons why something like this may have gotten through. Let me lay it out. 1) Hindsight is a powerful effect. Once you've been shown something new, a person of skill may instantly deduce how it works. This does not necessarily mean it was obvious in retrospect. 2) This presents a significant problem for any system that purports to reward innovation. How do you objectively tell if anything was truly novel and non-obvious at the time it was invented? Any opinion on the quality of an invention is inherently subjective. [1] 3) As such, the way patent offices have historically decided this, is that novelty or non-obviousness is completely based on the delta with the prior art that came before it, where prior art := any published material with an identifiable date prior to your invention. [2] This is because, in true CYA style, when contended, you have an established historical record of documents proving your stance. Novelty is easy: Anything that a single prior art reference doesn't cover is novel. Obviousness is the tricky part: all inventions are combinations of existing elements. But was that combination obvious? How's that for subjective! The USPTO seems to have a rule of thumb that any claim that requires combining more than three+ references of prior art is probably non-obvious. That seems like a pretty low bar to clear (and you'd not be far off) but the catch is, those references could be anything that mentions anything resembling any element of the invention. Under this standard, it is my belief that truly innovative inventions like Diffie-Helman or RSA would not have been patentable [3]. 4) And herein lies the rub: To be fair, you must be objective. But to be objective, you must abandon all measure of quality to the power of raw data. And as data scientists tell me, data often lies. All the data in the world (at that time) may not be enough to prove non-obvious the specific combination of elements that a patent claims. Such as this patent. Really, who's going to document and publish at a venue with a proper date the fact that they developed something to skip audio files? Yes, to be fair, you must judge all patents by the same standards, so the patents in areas that have been most published about (because, you know, they are interesting research problems) are less likely to get through than those that cover some obscure, unimportant aspect hat nobody thought to document. And that, ladies and gentlemen, is why we have this situation 1. Imagine if Einstein was your patent clerk as opposed to the guy you interviewed week before last who failed Fizzbuzz. 2. This, of course, relies on good search, and IMO Google has been the biggest boon (or bane, depending on your perspective) to the patent system than most imagine. 3. Choosing primes and taking mods? Is that all?!