- The Electronic Frontier Foundation is spoiling for a
fight, and on Wednesday it named the top 10 patents it wants killed, or
at least redefined.
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- The EFF said all 10 patents are in some way illegitimate
and are being used to limit free expression.
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- As part of its Patent Busting Project, the EFF in mid-June
began soliciting the public for submissions of patents that were both potentially
invalid and used to stifle online innovation. The organization received
nearly 200 suggestions, 10 of which it will now formally ask the U.S. Patent
and Trademark Office to re-examine.
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- "These patent owners have been threatening people
that just can't defend themselves," said Jason Schultz, staff attorney
at the EFF. "They're trying to claim ownership over some fundamental
part of software of the Internet that people use every day, and they're
threatening small companies or individuals that can't afford lawyers."
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- The owners of the 10 patents include some of the biggest
names in media and entertainment, as well as some smaller firms and one
individual. In each case, Schultz said, the EFF believes the owner has
far overstepped its rights under the patents.
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- The 10 patents, in order of importance to the EFF, are:
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- 1. Acacia Technologies' digital media transmission patent,
which the company defines as covering "the transmission and receipt
of digital content via the Internet, cable, satellite and other means."
The EFF is worried that Acacia, which has already sued several large communications
companies, is unfairly targeting small audio- and video-streaming websites.
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- 2. Clear Channel's Instant Live patent, which covers
technology used to produce instant recordings of live concerts. The media
giant recently bought the patent and is now going after artists who choose
to give fans CDs of their shows.
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- 3. Acceris Communication's voice over IP technology patent.
Schultz said Acceris is targeting smaller VOIP players. "They're sending
(the) patents to investors," said Schultz, "trying to intimidate
the investors."
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- 4. Sheldon Goldberg's patents covering online gaming
and real-time ladder rankings. Goldberg's attorney has sent a series of
cease-and-desist letters to small gaming websites.
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- 5. Ideaflood's personalized subdomains patent. Schultz
said the EFF is afraid Ideaflood may try to go after LiveJournal members,
as well as others using subdomain addresses.
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- 6. NeoMedia Technologies' patent that claims to control
methods for accessing computers based on identification codes, such as
bar codes. Already, NeoMedia has sued three developing companies for infringement.
"Allowing them to control all look-up functions over a network,"
said Schultz, "is extremely dangerous."
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- 7. Test Central's Internet test-making technology patent.
The EFF is afraid Test Central will use its patent to scare off distance-learning
organizations. Indeed, the company has already contacted several institutions,
including some universities.
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- 8. Nintendo's video-game emulator patent. The entertainment
powerhouse has patented the technology for emulating its old games, something
Schultz said used to be allowable under the fair-use doctrine. "A
bunch of small game companies are writing these emulators, and they're
really no threat to Nintendo," said Schultz. "But Nintendo is
being a big bully."
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- 9. Firepond's patent covering automatic message-interpretation
and routing systems. This patent, said Schultz, would effectively control
the technology that allows consumers to call companies and have their calls
routed based on a spoken command.
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- 10. Seer Systems' patent covering the generation, distribution,
storing and performing of musical work files. The company claims control
over a method of compiling music files as single files for distribution
over the Internet, the EFF said, and is targeting small developers of technology
for creating music and sound.
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- Now that the EFF has selected the patents it will challenge,
Schultz said, the organization will collect data it can use to demonstrate
to the Patent Office that it should re-examine each case.
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- According to Phil Mann, a Seattle patent attorney with
21 years of experience, the re-examination process is designed to give
the public a method to oppose patents.
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- "It allows members of the public to ask that the
patent be examined once again in light of new information," said Mann,
"in the hope that the Patent Office will say, 'Oh, we made a mistake.
That patent should not have been granted in the first place.'"
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- Not surprisingly, the owners of the patents contacted
for this story disagree with the EFF.
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- Charles Jensen, CEO of NeoMedia, argued that his company
bought its patent in 1995.
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- "It's been reviewed by many of the biggest companies
there are, and all of them say they're valid," Jensen said. "We
believe our patents are valid, very powerful patents."
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- Similarly, Jim Posch, CEO of Test Central, said the EFF
and other critics misunderstand its efforts to protect its intellectual
property.
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- "We have invested millions of dollars in our methods,
(and) the patent protects this investment," said Posch. "If you
invent a better toothbrush handle, you can patent it; (it's) the same thing
with our testing methods. As with the toothbrush, one patent on the handle
(doesn't) prevent others from going into the toothbrush business."
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- In a statement, Clear Channel CEO Brian Becker vigorously
defended the company's Instant Live patent.
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- "We want the practice of live recordings being made
available immediately after concerts to be in widespread use and welcome
all legitimate and serious conversations with those interested in licensing
our patent," Becker said in his statement. "But we will not conduct
licensing conversations in public or via the media. Nor will we put artists
in the middle of those business negotiations -- or try to hide behind them
as we negotiate."
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- The EFF's Schultz hopes this process will help get rid
of some bad patents, educate the public about the process of challenging
them and protect Internet-based expression technologies.
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- "The consensus is that a lot of bad patents are
leaking through the cracks of the examination process," he said. "We
feel ... the ones that we've targeted here are not only invalid, but are
being abused."
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