Back when electric lighting was a distant dream, the U.S. Patent and Trademark Office (USPTO) could be relied upon to register and uphold patents in a legitimate and sustainable manner. After all, when Mr. Bucyrus would file a patent about his corn squishing machine it would be a fairly simple task to discern that it was or was not violating the concept and design of the corn splattering machine filed earlier by Mr. McCormick. When the technological era arrived, the USPTO’s ability to define and protect patents was significantly handicapped. Today, anyone can file a patent utilizing terms that are far too broad and can then harass real or perceived violators. These entities are known as patent trolls, and it may seem difficult to believe but there is one that is threatening all podcasters claiming that the entire technology belongs to them!
Personal Audio continues to fire off licensing demands
A company known as Personal Audio with an empty office in East Texas has actually sued Apple and scored a couple of victories based on its tenuous claims to have patented playlists. Apparently emboldened by their ill-won gains they have now flailing around their patent number 8,112,504 which claims that they “own” podcasting and any podcaster is in violation of their intellectual property. They have even gone as far as suing three major podcasters, How Stuff Works, Togi Entertainment, and Adam Carolla’s ACE Broadcasting, stating that they are illegally using Personal Audio’s technology. Personal Audio didn’t just stop with those big three podcasters but has sent out licensing demands to many other podcasters and at last report was still firing those off. So podcasters beware if you receive anything postmarked from them!
Absurd and ridiculous primary claim
The primary claim in Personal Audio’s patent is so absurdly and ridiculously broad that it really defies description or belief. Not just for the brazen chutzpah in even drafting such an all-encompassing patent phrase, but for the “asleep at the switch” USPTO personnel who approved it. Can any reasonable American truly believe that Personal Audio managed to patent:
“Apparatus for disseminating a series of episodes represented by media files via the Internet as said episodes become available…”
So technically not just podcasts are covered under this crazy patent but also massive internet broadcast operations like Netflix. After all, the distribution of everything between The Honeymooners and House Of Cards falls into the same definition! Personal Audio, not Al Gore, owns the entire internet… so let’s all pay up!
Take steps to protect your podcast from patent trolls
What makes the entire situation worse is that this 2009 patent is a “child patent” of an earlier one which is technically illegal. Granted, the original patent was filed way back in 1996 but at the time exactly the same system as today’s podcasts was already active and working on newsgroups via UUCP and even before that BBSs in the ‘80s. Regardless you can’t just afford to ignore Personal Audio if they target your podcast, so you should consider taking these steps:
- Check your local laws. Some states have implemented laws protecting you from patent trolls. If you’re in one of those states you’re going to have a considerable advantage against scum-sucking patent trolls.
- Get insured. Various insurance companies are offering Intellectual Property Insurance and if you have not yet been served with a licensing demand, you may be able to protect your podcast by insuring it in this manner.
- Don’t respond. Never ever ever even think about firing off your own reply to any patent troll. That missive can compromise any future case in their favor.
- Retain a lawyer … and not just any friendly neighborhood attorney but an intellectual property specialist. Some will provide an initial consultation at no charge but if you decide to proceed get ready to shell out retainer mega-sheckels.
Most of these patent-infringement suits are settled out of court and in many cases an experienced attorney can diminish the amount of the settlement to the point where their fee is covered by the savings many times over. Unfortunately there is no cheap or free way to fight off patent trolls’ attacks!
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