Much of the public awareness and outrage surrounding patent trolls began a few years back when Lodsys started targeting small iOS developers for royalties on in-app purchasing technology. We've since seen similar patent licensing entities go after companies and individuals for infringement of Wi-Fi technologies and network scanner products, to name just a couple. Now a legal battle is forming around the popular activity of podcasting, and the Electronic Frontier Foundation is stepping in to help fight it.

In particular, Personal Audio — another company that seems to only generate revenue from the licensing of its patents — has begun throwing around US patent 8,112,504. The way Personal Audio sees it, '504 is "a fundamental patent involving the distribution of podcasts." Much like Lodsys' attacks on developers, Personal Audio's actions will certainly worry smaller podcasting entities. Many podcasters fail to make any money doing what they do, and few would have the resources to take on the enormous costs of patent litigation — a cost-benefit analysis all patent trolls count on to obtain a high volume of relatively small royalty fees.

An "invitation" to take a license

Patent trolls often get more value from the threat of a lawsuit than from the merits of their actual infringement arguments, and Personal Audio is apparently getting the word out on this patent. It's difficult to know exactly how many letters have been sent out to podcasters, but The Verge has seen a couple of them and they're pretty standard fare. The first shot across the bow touts the importance of the patent (claim 31 in particular) and offers the recipient an "invitation" to take a license. From there, a more threatening letter comes, listing the various companies already sued for infringement. In this case, litigation has already been lodged against entities like CBS, NBC, HowStuffWorks.com, and ACE Broadcasting. ACE is the home of Adam Corolla's hugely popular podcast.

The EFF announced yesterday that it's partnering with Harvard's Cyberlaw Clinic to challenge the validity of the '504 patent. The EFF is asking for public assistance in accumulating relevant prior art and for donations so that it can initiate an "inter partes review" proceeding with the US Patent and Trademark Office. It's already reached its donation goal of $30,000, so now it needs to come up with some convincing prior art in order to take this particular patent out of circulation. Here's how EFF describes what it's looking for:

One way to defeat a troll is to prove-either in court or at the patent office-that the claimed invention was not new (or was obvious). In other words, show that the patent applicant didn't really invent anything. To do this, we need to find publications from before October 2, 1996 that disclose similar or identical ideas (this also known as prior art). The best prior art will include publications describing early versions of podcasting or any other kind of episode distribution over the Internet.

It's not a patent on podcasting, but it does cover particulars of an episodic distribution process

That brings us to the details of the '504 patent. While it wasn't granted until 2012, it claims priority all the way back to 1996. As such, potentially invalidating software technology — or patents — must predate that in order to be of any use. It's important to note that the '504 patent doesn't cover the basic act of podcasting itself; it's about more than just creating and distributing content. However, the broadest claim highlighted by Personal Audio does cover a "media dissemination system" that basically performs the following processes:

  • storing media file episodes;
  • an internet connection with client devices;
  • grabbing updated compilation files (something like RSS) including a URL to identify currently available episodes;
  • receiving requests from client devices for an updated compilation file;
  • transferring the updated compilation file to the client device; and
  • receiving a request from the client device for the actual media files (episodes) identified in the updated compilation file.

It's difficult to see infringement with individual podcasters

It's obviously a bit more complicated than that, but you get the gist. Diving further into the claims only introduces more confusion. It's going to take a fair number of patent attorneys and a focused patent office to unearth the true scope of this patent. In fact, it's not immediately clear that a colorful claim of infringement can be made against individual podcasters, or whether the episodic updating features from the likes of YouTube or Apple's Podcast app are what's needed to connect the dots for infringement. Given all the pieces that would be required to claim either direct or indirect infringement, it's difficult to see how a podcaster utilizing common distribution tools and services could be held liable. Then again, how many would be able to defend themselves?

It will be interesting to see just what EFF's crowdsourcing strategy comes up with for prior art and how successful it will be in convincing the USPTO. The good news is we'll likely have an indication of the '504 patent's validity sooner rather than later. The new inter partes review process the EFF will be using mandates a final USPTO ruling on the issue of validity within one year after the proceeding is initiated (a maximum of 18 months with a showing of "good cause"). In the world where slow courts and backlogged patent offices are the norm, that's practically instantaneous. We'll keep an eye on it.