the absurdity of patent trolls

The red bar shows the number of patent lawsuits from patent trolls. Photo from NPR.

It’s no secret that I’m a fan of podcasting. I also like finding bad patents. Unfortunately, now bad patents are threatening podcasts. An unsuccessful inventor named Jim Logan is using an extremely vague old patent to sue popular podcasters. People like Logan and his company, Personal Audio, are known as “patent trolls,” sometimes referred to formally as PAEs (patent assertion entities) or NPEs (non-practicing entities). Instead of actually making products, patent trolls just own patents and use them to get other companies to pay them licensing fees.

What’s especially troubling about these trolls is that they are not just targeting large technology companies who can defend themselves: they are going after small businesses and individuals. MPHJ, a company that says it owns patents for scanning documents to email, sent over 9,000 letters to small businesses demanding the purchase of a license costing at least $1,000 per employee. Another company, Lodsys, sent letters demanding payment to app developers for Apple products because they were using in-app purchasing in their apps, a feature that is part of Apple’s operating system. A third troll, Innovatio, tried to get hotels and cafes to pay as much as $2,500 per location for providing their customers with Wi-Fi. Fortunately, Cisco, Netgear, and Motorola intervened and Innovatio only received around 3.2 cents per device.

Last but not least, Personal Audio is suing popular podcasts like the Adam Carolla Show for absurd amounts of money. In an interview with fellow podcaster Marc Maron, who was also sent a letter by Personal Audio, Carolla said that the company originally asked him for $3 million. Once Carolla found out that it would cost $1.5 million to fight the case in court, he started a crowdfunded “defense fund.” The patent that Personal Audio claims covers podcasting is ridiculously nebulous. As an article from the Electronic Frontier Foundation (EFF), a nonprofit organization dedicated to “defending civil liberties in the digital world,” explains, the patent describes Logan’s invention as an “apparatus for disseminating a series of episodes represented by media files via the Internet as said episodes become available…” Furthermore, in an episode of NPR’s Planet Money podcast titled “When Patents Hit the Podcast,” Marc Maron is interviewed and reads from the letter he received. It says, “The…patent covers important technology related to automatically identifying and retrieving media files representing episodes in a series of those episodes becoming available.” Planet Money explains the origins of Logan’s patent:

Back in the nineties, Jim Logan started a company called Personal Audio. The concept was simple — people could pick out magazine articles they liked on the internet, and his company would send them a cassette tape of those articles being read out loud. The cassette tapes didn’t catch on like Jim hoped, but he had bigger dreams for the idea behind them.

He dreamed that one day you wouldn’t need a cassette player, you would just be able to hear smart people talking about whatever subject you wanted, and that audio would be magically downloaded to a device of your choice. He says he dreamed of podcasting as we know it today.

Now Jim Logan did not create the technology to podcast. He himself is not a modern-day podcaster. But he did get a patent on that big dream of downloading personalized audio, and he claims to have the patent on podcasting.

So, in other words, Logan just came up with an idea that is like podcasting but did not actually invent how to do it. The situation isn’t unlike if I were to patent the idea of a flying car and when someone actually invents it, I demand that they pay me a license fee. It’s just silly.

It’s one thing that companies are using overly broad patents to collect undeserved licensing fees, but the fact that they are targeting people and businesses that had nothing to do with creating the “infringing” technology takes the unjustness of the situation to a whole new level. Alex Blumberg of Planet Money says, “It’s like if you had a patent on the automobile. If you were the guy who invented the car, imagine if instead of going after General Motors and Ford, you went after the drivers…”

Companies, organizations, and the government are taking action against patent trolls. For example, different retail trade organizations teamed up and created a campaign to raise awareness about patent trolls, President Obama proposed legislation to prevent patent trolling, and the EFF filed a challenge against the patent being used to sue podcasters.

If you would like to learn more about patent trolls and changes to the system that could prevent them, I recommend reading the article “Everything You Need to Know About Trolls (The Patent Kind)” from Wired.

There is also an interesting TED Talk from a man who beat a patent troll who sued his company for infringing on a patent for “the creation and distribution of news releases via email.” Seriously.

genericized trademarks

Company or product names lose their trademarks when they start being commonly used as a generic term instead of a specific one that refers to only a specific company or product. Some people refer to this event as “genericide.” The Harvard webpage “Overview of Trademark Law” explains:

Sometimes, trademarks that are originally distinctive can become generic over time, thereby losing its trademark protection. A word will be considered generic when, in the minds of a substantial majority of the public, the word denotes a broad genus or type of product and not a specific source or manufacturer. So, for example, the term ‘thermos’ has become a generic term and is no longer entitled to trademark protection. Although it once denoted a specific manufacturer, the term now stands for the general type of product. Similarly, both ‘aspirin’ and ‘cellophane’ have been held to be generic. In deciding whether a term is generic, courts will often look to dictionary definitions, the use of the term in newspapers and magazines, and any evidence of attempts by the trademark owner to police its mark.

Other trademarks that have been lost due to having become too generic include escalator, body soap, brassiere, cola, dry ice, Easter basket, light beer, pocket book, super glue, thermos, trampoline, yo-yo, Pilates, and many, many more. Companies at risk of losing their trademark for this reason will take action to prevent their trademarks from becoming too generic. For example, according to BBC News, “Companies like Xerox, Kleenex, Portakabin and Rollerblade have teams of lawyers furiously firing off letters to media which mistakenly use their name in a generic sense.” Companies will also try to escape genericide by advertising that the name of their product is a specific brand. In Trademark Law: Protection, Enforcement, and Licensing, Adam L. Brookman writes:

Xerox, Band-Aid, Dictaphone, Scotch, Jell-O, and Kleenex, when advertised by their owners, are almost always followed by the word ‘brand’ and the real generic name of the product–for example, Xerox brand photocopy machines, Band-Aid brand sheer strips, Dictaphone brand dictating machines, Scotch brand transparent tape, Jell-O brand gelatin, and Kleenex brand tissues. All this careful advertising, of course, hasn’t stopped some people from continuing to ask for a Kleenex when they want a tissue or seeking a Band-Aid to cover a cut (2-16).

If you want to learn more about genericized trademarks I recommend the following sources: Lee Wilson’s The Trademark Guide: A Friendly Guide to Protecting and Profiting from Trademarks (The chapter “Trademark Usage” contains a nice list of trademarks that have been lost due to genericide.), Stephen Pericles Lada’s Patents, Trademarks, and Related Rights (Chapter 30 has a section on genercized trademarks, but it’s so specific and in-depth, I didn’t even bother reading it.), and last but certainly not least, the Wikipedia’s pages on genericized trademarks and list of genericized trademarks.

happy birthday is copyrighted

Yes, you read that correctly. “Happy Birthday to You,” that ditty you’ve known for as long as you can remember and still hear numerous times each year, is copyrighted. The melody of the song, which is the most performed song in the world, was written by Mildred and Patty Smith in the 1893. They wrote it for another song with the title “Good Morning to All,” and neither of them are thought to have written the lyrics to “Happy Birthday to You.”

Warner/Chappell, a subsidiary of Time Warner, claims it owns the copyright to “Happy Birthday to You,” and makes an estimated $2 million dollars a year off the song. According to the New York Times article “‘Happy Birthday’ and the Money It Makes,” in 1989, the year Warner/Chappell purchased the song, it was featured in at least 50 films, T.V. shows, and commercials. However, there is debate as to whether the song is actually still under copyright. George Washington University Law School professor Robert Brauneis expresses doubt that “Happy Birthday to You” is still copyrighted in the article “Copyright and the World’s Most Popular Song.” Brauneis gives three main reasons why the song is not under copyright anymore: First, its copyright may have never been renewed, since the only filed renewals were for piano accompaniments and unusual additional lyrics. Secondly, the first publication of the song was not in the name of the correct copyright holder, which would have resulted in the song losing copyright at the time. Thirdly, it is unlikely that Mildred or Patty Smith wrote the lyrics to “Happy Birthday to You,” and in order to claim itself as the copyright holder, Warner/Chappell must be able to trace ownership to the original authors(s) (3).

There is currently a lawsuit against Warner/Chappell. The lawsuit, which was filed by a filmmaker wanting to use the song in a documentary about it, aims to have the court acknowledge that “Happy Birthday to You” is in the public domain. Click here to read a New York Times article about the conflict.

fun with google patent search

A shirt with Dwight’s invention on it that I found on Amazon.

I recently discovered Google Patent Search. Essentially, if you have a stroke of genius and come up with a million-dollar idea, Google Patent Search lets you quickly and easily make sure someone else didn’t already patent it. However, you’ll more likely be using it to search for all the crazy, outside-the-box inventions people have dreamed up that haven’t yet been featured on Shark Tank. Finding wacky ideas on Patent Search is surprisingly quite easy. Chances are, if you can think of a bizarre invention, someone else has already thought of the same invention and patented it. Case in point: Remember that episode of The Office where Michael and Dwight compare their ideas for inventions to see whose are superior? The “toilet sponge,” which was claimed to be “more absorbent and softer than toilet paper,” was Michael’s very own idea—or so he thought! Actually, an almost identical invention had already been patented in 2004. The invention, simply referred to as a sponge device, is “usable as a moisturized sponge at home, to replace existing toilet paper…” Dwight had come up with the “horse boat,” a canoe that wraps around a horse so you can go directly from land to sea travel without changing means of transportation. Unfortunately, no invention like this is patented, although I found something possibly even stranger when I typed “horse boat” into the Google search bar; a man-powered boat in the shape of a horse that was patented in 1930.

The man-powered horse boat.

The invention aims to provide a novel means whereby a person may propel a boat without resorting to complicated machinery…there is…a form of the invention wherein the possibilities of the structure, as an amusement device, are accentuated. The hull is shaped like the body of a horse, and is provided, fore and aft, with air-tight compartments, between which the cockpit is located.

shoestudio

The sound shoe studio.

Possibly my favorite invention I’ve found so far, for the sole reason that it’s so bad that it’s good, is the sound shoe studio. At first, I thought it would be a shoe that makes sound when it moves in certain ways. For example, stomping might create a loud cymbal crash, tapping your feet would produce a drum beat, etc. However, the actual invention is even worse. Various percussion instruments can be attached to the shoe and played through foot tapping. The shoe is “able to mix sound generated by the shoe with other musical sounds and record them at the same time. This shoe allows for adjusting, amplifying and controlling of the music and audio generated within the shoe.” It even performs “equalization, reverbation, and editing of the waveforms and MIDI sounds”! Whatever that means. Basically, this invention lets you play simple percussion instruments with your feet and record yourself doing it. After all, recording yourself on a computer while playing percussion instruments with your hands would be far too complicated. I suppose it could be used for extreme percussionists who already have their hands full with other instruments or bands that don’t have a percussionist so somebody decides to multitask, but that’s a ridiculously limited audience for such an intricate device that would likely be difficult to manufacture.  The only somewhat cool feature of this complex shoe instrument is that it has a built-in radio, which could be used while running. Even so, playing music via shoe speakers is essentially just an obnoxious alternative to listening to music with headphones as you jog. I checked to see if the sound shoe studio, which was patented in 2012, was actually available to purchase. Not surprisingly, it isn’t.

swan

The method and apparatus for molded ice sculpture.

Finally, although it may be shocking given the above examples, Google Patent Search is actually capable of helping you find some inventions people might actually want to use. Take the “method and apparatus for molded ice sculpture,” a creative invention with a less than creative name, for example. This “inexpensive and easily utilized apparatus” is filled with water and placed in a freezer, where it produces an ice sculpture, like the swan in the image on the side. You could make your very own flock of ice swans. You could even use Kool-Aid to make each swan a different color. This invention may be far from practical, but it sure is awesome.

So go ahead, do some of your own crazy-idea-searching on Google Patent Search. I’d love to know if you find something good!

Update: I’ve already found some more interesting inventions! Here are two different versions of a shoe with springs at the bottom to improve your jumping ability.