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Speaker 1: Get in touch with technology with tech Stuff from how

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Speaker 1: stuff works dot com. Hey there, and welcome to tech Stuff.

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Speaker 1: I'm your host, Jonathan Strickland. I'm an executive producer at

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Speaker 1: how stuff Works in love all things tech, and we're

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Speaker 1: going to tackle a very special topic to me today.

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Speaker 1: So for several years, there was a dark cloud looming

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Speaker 1: over the podcast landscape, and the shadow of this cloud

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Speaker 1: was affecting many podcasters in different ways, including the podcasts

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Speaker 1: from How Stuff Works. So today we're going to explore

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Speaker 1: the story of Personal Audio l l C, the patents

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Speaker 1: that were at the heart of the issue, and what

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Speaker 1: happened as a result. And I've been asked about this

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Speaker 1: story many times, and until the matter was actually put

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Speaker 1: to rest earlier in two thousand eighteen, I couldn't really

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Speaker 1: talk about it. I'll mention more about being put to

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Speaker 1: rest in a little bit, but I didn't feel comfortable

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Speaker 1: covering the story on my show because How Stuff Works

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Speaker 1: is one of the parties specifically named by Personal Audio

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Speaker 1: LLC and its complaints, and as an employee of How

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Speaker 1: Stuff Works, it would at the very least be unwise

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Speaker 1: to comment officially on the matter. I might be seen

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Speaker 1: as a real voice of the company, like I was

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Speaker 1: representing the company as a whole, and I wouldn't necessarily

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Speaker 1: mean that I would just be trying to cover the story.

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Speaker 1: I am not the official voice of the company. I

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Speaker 1: am given an awful lot of control over my podcast,

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Speaker 1: and I do appreciate that. But as we understand, with

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Speaker 1: great power comes great something something. As my fictional uncle

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Speaker 1: Ben used to tell me before, I would hustle off

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Speaker 1: to shoot pictures for the local paper. But now the

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Speaker 1: whole matter is closed and I feel I can at

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Speaker 1: least give an account of what happened and why it

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Speaker 1: took so long to resolve, and I'll try to be

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Speaker 1: as objective as possible. So please remember, this was a

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Speaker 1: case that had the potential to really affect my career,

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Speaker 1: so I am a bit close to it, but I'm

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Speaker 1: gonna try and be unbiased. That's also challenging because a

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Speaker 1: lot of the outlets that reported on this had a

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Speaker 1: very specific perspective on the matter. So let's begin this

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Speaker 1: discussion by talking about what patents are, because that's at

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Speaker 1: the very heart of the matter. A patent is at

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Speaker 1: least a patent like the kind of talking about in

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Speaker 1: this episode is essentially a license or similar authorized document

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Speaker 1: issued by a government to an applicant for the right

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Speaker 1: to make, use, sell, or license out and invention. You

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Speaker 1: cannot patent an idea, but you can patent the implementation

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Speaker 1: of an idea as long as it meets certain criteria.

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Speaker 1: So let's say you've come up with a really cool

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Speaker 1: invention that's going to automatically coordinate all your outfits so

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Speaker 1: that not only are you fashionable, but you also never

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Speaker 1: have to worry about wearing the exact same outfit twice

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Speaker 1: because it will keep a track record of everything you've done,

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Speaker 1: so it will pair different pieces together to consistently keep

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Speaker 1: your look fresh from day to day and fashionable. It's

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Speaker 1: not gonna pair two mismatched pieces of clothing together. And

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Speaker 1: you feel this invention has real value and you want

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Speaker 1: to protect your idea from people who might steal it,

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Speaker 1: so you have a couple of different options ahead of you.

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Speaker 1: One of those options is you keep your mouth shut

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Speaker 1: about how you invented it. You don't explain how it works,

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Speaker 1: You create a product, and you go to market. The

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Speaker 1: danger of this method is that you don't really have

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Speaker 1: any protection for your idea if someone goes out and

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Speaker 1: buys your product and then says, I'm going to break

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Speaker 1: this down and figure out how this this person did this.

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Speaker 1: They reverse engineer your process and they figure out how

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Speaker 1: you did it. They could conceivably create a competing product

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Speaker 1: of their own and undercut you, and you don't have

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Speaker 1: any protection in that case. Or you could apply for

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Speaker 1: a patent for your invention. Now, this involves drafting a

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Speaker 1: patent application to the respective authority in the United States,

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Speaker 1: that's the Patent and Trademark Office. The Patent Office reviews

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Speaker 1: your application and assuming your patent appears to be valid

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Speaker 1: and presents at least a partly new invention that is

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Speaker 1: not obvious, they will most likely approve it. Now, that

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Speaker 1: creates a very interesting trade off because, on the one hand,

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Speaker 1: your patent is public information. Anyone can pull up your

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Speaker 1: patent and read it and see how your invention works

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Speaker 1: from a very high level. Most patents use fairly vague

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Speaker 1: language so that the intricate details are not on display.

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Speaker 1: They give the general process of how an invention works.

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Speaker 1: And by the way, you can go to and do

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Speaker 1: patent searches online and pull up patents for all sorts

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Speaker 1: of stuff and see how it works. It's actually really

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Speaker 1: really useful if you're trying to, I don't know, do

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Speaker 1: a podcast where you're explaining how tech works. But the

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Speaker 1: patent also grants protection. If you find someone using your

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Speaker 1: invention and they don't have your permission to do so,

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Speaker 1: you can sue them for infringing on your patent. And

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Speaker 1: if you can prove that they are using your approach,

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Speaker 1: the one that's detailed in your patent, and they don't

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Speaker 1: have your permission, you can put a stop to it.

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Speaker 1: Even if it turns out that other people have come

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Speaker 1: up with the same approach independently after you came up

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Speaker 1: with it. If they say, look, we never ever encountered

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Speaker 1: your design, you could argue, well, that doesn't matter, because

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Speaker 1: I have the patent, and that patent pre dates your

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Speaker 1: version of my invention. I own that approach to the invention. Effectively,

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Speaker 1: you can choose to license your approach to other people

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Speaker 1: if they want to do the same thing, but they

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Speaker 1: can't do it without your permission. Now. Current lee in

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Speaker 1: the United States patents have a term of twenty years

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Speaker 1: from the earliest filing date of the patent application. You

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Speaker 1: also have to pay occasional fees to maintain the patent.

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Speaker 1: In the United States, like in some countries, it's an

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Speaker 1: annual fee, but in the US it's not. In the US,

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Speaker 1: you have to pay a fee at three and a

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Speaker 1: half years, seven and a half years, and eleven and

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Speaker 1: a half years after the patent has been issued, and

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Speaker 1: the patent fee increases each time. If the patent holder

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Speaker 1: fails to pay the fee, the patent is abandoned and

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Speaker 1: the invention is no longer under patent protection. Patent holders

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Speaker 1: will often abandon a patent on purpose if the maintenance

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Speaker 1: fees exceed the value of the patent itself. If you're saying, well,

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Speaker 1: I'm going to be paying x amount, but this is

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Speaker 1: worth less than X, it doesn't make sense to keep

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Speaker 1: maintaining the patent, you might abandon it. The Patent office

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Speaker 1: can take a couple of years to grant patents from

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Speaker 1: the moment that they've been applied for. After the HERMA

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Speaker 1: protection is up, anyone is free to create inventions based

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Speaker 1: off the information in those patents. So twenty years passes

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Speaker 1: after the filing of a patent or the rather the

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Speaker 1: application for a patent, then anyone can make something and

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Speaker 1: you you have no legal recourse to suthe them for

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Speaker 1: using your approach because the patent has expired. The general

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Speaker 1: logic about this is that you don't stifle innovation. This way.

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Speaker 1: Other people can take your idea and they can work

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Speaker 1: with it. They can change it up, they can make

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Speaker 1: tweaks to it. But the protection gives you two decades

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Speaker 1: of a head start, so you have a nice solid

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Speaker 1: ground to to start from. Now. Patent holders can make

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Speaker 1: money or exploit their inventions in several ways. And when

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Speaker 1: we say exploit, and it's not like it's being it's

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Speaker 1: not a negative thing. Exploiting in this sense means you're

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Speaker 1: just making use of the invention in a way in

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Speaker 1: order to profit from it. So patent holders can make

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Speaker 1: their inventions and sell them to customers. They could go

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Speaker 1: into manufacturing and production. They might license their inventions to

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Speaker 1: other parties, which then can go on to exploit those

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Speaker 1: inventions and sell them or otherwise profit from them. So

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Speaker 1: that makes sense. Let's say you're a small time inventor

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Speaker 1: and you've come up with a brilliant invention, but you

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Speaker 1: don't really have the capital to start up a whole

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Speaker 1: manufacturing system. You might take your idea and license it

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Speaker 1: to a different company that does do manufacturing. And that's

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Speaker 1: why you can. You can profit from your idea, but

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Speaker 1: you don't have to sink in the massive investment to

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Speaker 1: go into the actual production. You could even sell your

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Speaker 1: patent rights to another party entirely. You just sell them

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Speaker 1: the patent and they become the patent holder. It's it's

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Speaker 1: like a transference of property, which means the company might

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Speaker 1: then go into production, or maybe they just sit on

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Speaker 1: the patents and wait and watch, and if anyone else

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Speaker 1: tries to make anything that infringes upon that patented invention,

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Speaker 1: the patent holder can threaten legal action. They can attempt

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Speaker 1: to take the other party to court, often as a

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Speaker 1: means to leverage a large settlement from the infringing party. Now,

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Speaker 1: many people call this last group of patent holders a

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Speaker 1: patent troll, and the argument for doing that, to call

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Speaker 1: them a patentrol goes kind of like this. The holder

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Speaker 1: of the patent is not actually doing anything useful with

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Speaker 1: the invention that the patent covers. Instead, what they're doing

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Speaker 1: is effectively acting as a gatekeeper. The patent holder is

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Speaker 1: not protecting their inventions so much as they are lying

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Speaker 1: in wait to spring a trap. They want other parties

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Speaker 1: to use that invention implementation so that they can jump

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Speaker 1: in with threats of litigation, so you could argue their

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Speaker 1: stifling innovation rather than encouraging it. For many people, it

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Speaker 1: seems unfair that a company or inventor could patent a

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Speaker 1: really cool invention and then refuse to actually do anything

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Speaker 1: productive with it, while preventing anyone else from doing the

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Speaker 1: same unless they pay an exorbitant fee. Some folks would

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Speaker 1: go so far as to throw the patent holders who

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Speaker 1: license their patents to others in that category. I think

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Speaker 1: that's going too far. I think there are plenty of

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Speaker 1: cases where it's totally legitimate to license out a patent

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Speaker 1: to other companies if you are incapable of producing it yourself.

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Speaker 1: I think that's totally legit. I think the patent holders

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Speaker 1: should get compensation for his or her idea. But I

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Speaker 1: do get a little uneasy about companies that hold lots

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Speaker 1: of patents but they never do anything with them apart

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Speaker 1: from threatened litigation. That does rub me the wrong way.

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Speaker 1: I find it rather trollish. Next, I'm going to talk

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Speaker 1: about Personal Audio LLC and why many people refer to

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Speaker 1: that company as a patent troll. But first, let's take

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Speaker 1: a quick break to thank our sponsor. Now, before I

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Speaker 1: get too far into this section, let me be clear.

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Speaker 1: I am not definitively saying that Personal Audio ll C

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Speaker 1: is a patentrol. Lots of other people have done that.

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Speaker 1: If you do any research at all on the various

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Speaker 1: news outlets that have covered this story, patentrol tends to

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Speaker 1: be the phrase most used to describe Personal Audio LLC.

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Speaker 1: But I am going to try and step back from that.

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Speaker 1: I just want to explain the story as it unfolded

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Speaker 1: and let you guys draw your own conclusions, because I

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Speaker 1: actually really do think the story is more complicated than

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Speaker 1: how it's frequently portrayed. There are critics who said that

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Speaker 1: what Personal Audio LLC did was an extortion racket, and

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Speaker 1: I think it's actually a little more nuanced than that.

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Speaker 1: I think that's not being entirely fair. So let's dial

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Speaker 1: this back all the way to nineteen nine six, which,

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Speaker 1: by the way, was years before the word podcast was

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Speaker 1: a thing. And I can say that authoritatively because podcast

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Speaker 1: comes from the word iPod, and the Apple iPod didn't

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Speaker 1: hit the market until two thousand one. So this company's

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Speaker 1: beginnings pre date the word podcast, if not the general concept.

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Speaker 1: More on that in a minute. In nine a guy

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Speaker 1: named James Logan got involved in this and made this

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Speaker 1: enormous investment to start up a company. Now, Logan had

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Speaker 1: previously founded a company called Microtouch Incorporated. He was the

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Speaker 1: CEO of that company. He had amassed a you know,

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Speaker 1: good fortune. He would remain the CEO of Microtouch until

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Speaker 1: two thousand. At that point, another company, three M, would

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Speaker 1: acquire micro Touch. Fun side note, by the way, the

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Speaker 1: U S Securities and Exchange Commissi or SEC would actually

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Speaker 1: file a suit against James Logan alleging charges of insider

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Speaker 1: trading back in two thousand three. UH. The charges stated

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Speaker 1: that Logan had directed a trust for the benefit of

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Speaker 1: his minor children to acquire Microtouch stock, knowing that Microtouch

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Speaker 1: was engaged in negotiations with both Tycho International Limited and

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Speaker 1: Minnesota Mining and Manufacturing also known as three M, and

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Speaker 1: that he was benefiting directly from this where specifically his

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Speaker 1: children were. Logan would end up settling this matter out

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Speaker 1: of court for more than half a million dollars without

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Speaker 1: having to admit or deny the charges anyway. In the

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Speaker 1: mid nineties, James Logan says he invested more than a

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Speaker 1: million and a half dollars in a new company with

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Speaker 1: a couple of co founders, and the company's goal was

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Speaker 1: to bring to market a product that would download and

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Speaker 1: play customized audio tracks, and as part of the company's

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Speaker 1: pursuit of this goal, it filed patent applications regarding the

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Speaker 1: business strategy. But in this process, the company concluded there

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Speaker 1: would be too difficult and expensive to move forward, and

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Speaker 1: they abandoned the plan to make the product, but they

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Speaker 1: still held the patents. This would lead Logan to form

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Speaker 1: Personal Audio LLC in two thousand nine. It served as

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Speaker 1: a holding company and its only purpose was to hold

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Speaker 1: onto those patents that were created back in the ninety nineties.

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Speaker 1: The company itself is based in Texas, which has led

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Speaker 1: many critics to suggest this was a calculated decision because

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Speaker 1: Texas courts have a reputation for favoring patent holders. A

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Speaker 1: judge in Texas had established some really strict rules to

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Speaker 1: keep these patent trials short and to the point, creating

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Speaker 1: what was casually known as the rocket docket, and juries

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Speaker 1: tended in Texas to side with patent holders more than others,

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Speaker 1: so it became such a big issue that in two

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Speaker 1: thousand seventeen, a court case caused great upheaval because the

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Speaker 1: courts ruled that patent holders would no longer be allowed

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Speaker 1: to seek out a friendly court to hear their litigation.

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Speaker 1: That this was in the wake of discovering that Eastern

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Speaker 1: Texas would hear Thousands of patent infringement cases per year

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Speaker 1: were brought to courts by what was called nonpracticing entities.

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Speaker 1: That means companies that did not actually produce anything. They

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Speaker 1: owned a lot of patents, but that's all they did,

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Speaker 1: In other words, patent trolls. According to some critics, one

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Speaker 1: of the patents that Personal Audio LLC. Was concerned with

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Speaker 1: was titled Audio Program Player Including a Dynamic Program Selection Controller,

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Speaker 1: and the abstract for that patent describes the invention like this,

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Speaker 1: and this is a long quote, but stick with me.

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Speaker 1: An audio program and message distribution system and which a

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Speaker 1: host system organizes and transmits program segments to clients subscriber locations.

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Speaker 1: The host organizes the program segments by subject matter and

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Speaker 1: creates scheduled programming in accordance with preferences associated with each subscriber.

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Speaker 1: Program segments are associated with descriptive subject matter segments, and

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Speaker 1: the subject matter segments may be used to generate both

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Speaker 1: text and audio cataloging presentations. To enable the user to

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Speaker 1: more easily identify and select desirable programming, a playback unit

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Speaker 1: at the subscriber location reproduces the program segments received from

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Speaker 1: the host and includes mechanisms for interactively navigating among the

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Speaker 1: program segments. A usage log is compiled to record the

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Speaker 1: subscriber's use of the provided program materials, to return data

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Speaker 1: to the host for billing, to adaptively modify the subscribers

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Speaker 1: preferences based on actual usage, and to send subscriber generated

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Speaker 1: comments and requests to the host for processing. Voice input

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Speaker 1: and control mechanisms included in the player allow the user

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Speaker 1: to perform hands free navigation of the program materials and

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Speaker 1: to dictate comments and messages, which are returned to the

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Speaker 1: host for retransmission to other subscribers. The program segments sent

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Speaker 1: to each subscriber may include advertising materials which the user

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Speaker 1: can selectively play to obtain credits against the subscriber fee.

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Speaker 1: Parallel audio and text transcript files for at least selected

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Speaker 1: programming enable subject matters searching and synchronization of the audio

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Speaker 1: and text files. Speech synthesis may be used to convert

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Speaker 1: transcript files into audio format. Image files may also be

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Speaker 1: transmitted from the server for synchronized playback with the audio programming.

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Speaker 1: Now that's a long summary, but that particular thing would

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Speaker 1: come into play in two thousand nine when Personal Audio LLC.

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Speaker 1: Would bring a lawsuit against Apple for patent infringement. Personal

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Speaker 1: Audio would win eight million dollars that effort. Other lawsuits

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Speaker 1: against other manufacturers would follow, and you could certainly argue

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Speaker 1: that the iPod and playlists and structure that Apple had

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Speaker 1: created resembled the proposal in the patent, and that other

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Speaker 1: companies that had produced MP three players in their own

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Speaker 1: filing systems and organization systems also kind of fell into

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Speaker 1: that category. But the patent the company would use to

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Speaker 1: go after podcasters was not exactly that same patent. It

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Speaker 1: was slightly different. And one of the things about patents

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Speaker 1: is that you can actually apply to modify them as

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Speaker 1: technology advances. So you could create an invention that depends,

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Speaker 1: let's say, on a specific type of media. For example,

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Speaker 1: let's say that your invention UH concerns cassette tapes. But

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Speaker 1: then later on, as technology advances and you get compact

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Speaker 1: discs or you get digital media. You want to update

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Speaker 1: your invention. It's following the same sort of invention process,

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Speaker 1: but now it's dependent upon a new form of media.

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Speaker 1: You can do that. It's subject to the Patent Offices approval,

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Speaker 1: but you can win a new patent that covers the

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Speaker 1: same approach, but now with a new element, like a

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Speaker 1: new in this case new medium. But on the media

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Speaker 1: distribution side, this patent was was not focused on a

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Speaker 1: model that would resemble subscribing to downloading and listening to

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Speaker 1: a podcast with that Apple one and for that the

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Speaker 1: patent Personal Audio LLC would use against podcasters and which

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Speaker 1: would later get challenged was u S Patent eight million,

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Speaker 1: five hundred four, also known as System for Disseminating Media

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Speaker 1: Content Representing Episodes in a serialized sequence. Now that patent

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Speaker 1: included claims that would more closely tie to podcasting in general.

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Speaker 1: These sections focused on the host side of the invention,

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Speaker 1: as in the servers on the Internet that would host

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Speaker 1: the audio files that listeners would connect to and download

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Speaker 1: in order to listen to their shows. This patent was

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Speaker 1: granted in two thousand twelve, and as the site i

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Speaker 1: P Watchdog would put it, The patent quote claimed a

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Speaker 1: media player for acquiring and reproducing media programming files which

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Speaker 1: represent episodes in a series of episodes as those episodes

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Speaker 1: become available. The media player includes a digital memory at

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Speaker 1: communication sport coupled to the Internet for transmitting data requests,

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Speaker 1: and an output unit for reproducing the media files that

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Speaker 1: would essentially be speakers or headphones. The resulting invention addressed

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Speaker 1: a need among Internet radio sources for a more practical

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Speaker 1: system of delivering content too interested users on request, rather

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Speaker 1: than searching for the radio source via web browser, a

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Speaker 1: difficulty which is exacerbated further when while an interested user

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Speaker 1: is driving end quote. That would be the patent that

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Speaker 1: would be the focus of all the fuss. What fuss?

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Speaker 1: I'll explain more in just a moment, but first let's

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Speaker 1: take another quick break to thank our sponsor. In two

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Speaker 1: thousand thirteen, Personal Audio began to issue warnings to several

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Speaker 1: different podcasting organizations, including the Corolla Digital Network, home of

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Speaker 1: the Adam Corolla Show. The warnings were all about this

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Speaker 1: so called podcasting patent that Personal Audio had received. In

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Speaker 1: February twelve, Corolla's company was hit with a lawsuit for

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Speaker 1: patent infringement, and he decided to fight the lawsuit rather

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Speaker 1: than just settle out of court directly, and he argued

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Speaker 1: that the claims in the patent were overly broad and

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Speaker 1: the suit was without merit. Around this time, podcasters were

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Speaker 1: saying that the notifications sent by a Personal Audio were

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Speaker 1: in the realm of extortion because they didn't include the

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Speaker 1: demand for a licensing agreement or even a firm amount

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Speaker 1: that the company wanted. Those who received the messages said

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Speaker 1: it felt more like an implied threat that Personal Audio

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Speaker 1: held these patents and was ready to bring them to

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Speaker 1: bear in courts, and the podcasters said it felt like

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Speaker 1: they were the recipient of a shakedown. On the Personal

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00:22:06,000 --> 00:22:08,920
Speaker 1: Audio side, the company said that wasn't the case at all.

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Speaker 1: They were just trying to protect the rights that they held,

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Speaker 1: and people like Logan had invested real money into this

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Speaker 1: company and they were eager to get that investment back.

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00:22:19,600 --> 00:22:22,280
Speaker 1: They didn't produce the product that they wanted to produce,

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Speaker 1: but they still had the invention patented and they wanted

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Speaker 1: to make profit off their idea. But no one was

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Speaker 1: really sure at the time how much money was actually

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Speaker 1: in podcasting. It could be hundreds of millions of dollars.

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Speaker 1: It could be very little at all. This was the

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00:22:37,520 --> 00:22:40,400
Speaker 1: time of the wild West in podcasting, and you could

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Speaker 1: argue we're still there right now, but podcasting was hardly

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00:22:44,359 --> 00:22:48,040
Speaker 1: an established medium at this point. Even years later, it's

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00:22:48,040 --> 00:22:50,120
Speaker 1: still a big question as to how profitable the form

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00:22:50,160 --> 00:22:53,400
Speaker 1: can be, as different podcasters test out different revenue models.

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Speaker 1: But the backlash against Personal Audio LLC was quick, and

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Speaker 1: since the targets happened to be podcasters, it was really public.

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Speaker 1: The podcasters happen to have audiences that they could talk

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Speaker 1: to and did talk to on a regular basis, so

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Speaker 1: in the court of public opinion, personal audio had already lost.

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Speaker 1: Dave Weiner, a software developer, was instrumental in modifying the

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Speaker 1: RSS standard to include a new feature called enclosure, and

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00:23:21,760 --> 00:23:25,600
Speaker 1: closure would allow an RSS aggregator to grab the address

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00:23:25,640 --> 00:23:28,760
Speaker 1: of a media file and this is the heart of

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Speaker 1: the subscription process. He did this back in two thousand one,

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Speaker 1: and he questioned, how could this patent, which was granted

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Speaker 1: in two thousand twelve possibly apply to a methodology that

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00:23:41,840 --> 00:23:45,959
Speaker 1: was more than a decade older. Adam Carolla launched a

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Speaker 1: crowdfunding campaign to fight the lawsuit and raised more than

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Speaker 1: half a million dollars in the process. However, ultimately he

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Speaker 1: decided to settle with Personal Audio out of court for

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Speaker 1: undisclosed terms. In fact, the terms were word it in

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00:24:00,240 --> 00:24:03,080
Speaker 1: such a way that Corolla had a non disclosure agreement.

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Speaker 1: He could not share what those terms were or else

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00:24:05,800 --> 00:24:09,760
Speaker 1: it would invalidate the negotiations on his part. The settlement

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00:24:09,800 --> 00:24:12,040
Speaker 1: at the time probably made the most sense for Corolla,

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Speaker 1: as these lawsuits can be incredibly expensive. Defending against a

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Speaker 1: patent infringement suit could cost a couple of million dollars easy.

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00:24:20,560 --> 00:24:22,840
Speaker 1: Even with the half million he had already raised for

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00:24:22,920 --> 00:24:27,280
Speaker 1: legal fees, he was still way behind. And in Texas,

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Speaker 1: where the lawsuits were filed, patent holders, as I said,

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00:24:30,480 --> 00:24:34,040
Speaker 1: had a long record of winds juries tended to favor

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00:24:34,160 --> 00:24:38,760
Speaker 1: them over others. However, by settling, this meant that Personal

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00:24:38,800 --> 00:24:41,119
Speaker 1: Audio would have the ability to sue others for that

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00:24:41,280 --> 00:24:44,400
Speaker 1: same sort of infringement, and that included companies like how

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00:24:44,440 --> 00:24:46,600
Speaker 1: Stuff Works, the one I work for, and at the

401
00:24:46,600 --> 00:24:50,480
Speaker 1: time we were part of Discovery Communications. The Corolla case

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00:24:50,600 --> 00:24:53,879
Speaker 1: was just one of seven district court cases filed in

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00:24:53,920 --> 00:24:58,600
Speaker 1: two thousand thirteen that centered on this particular patent. One

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00:24:58,760 --> 00:25:02,159
Speaker 1: of those cases was again CBS, in which Personal Audio

405
00:25:02,320 --> 00:25:07,800
Speaker 1: argued that quote Several shows podcasted by CBS, including sixty Minutes,

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00:25:08,200 --> 00:25:12,440
Speaker 1: Tech Talk and Face the Nation, use servers, data storage,

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00:25:12,440 --> 00:25:16,840
Speaker 1: and other Internet hardware which directly infringe claims of the patent.

408
00:25:17,440 --> 00:25:21,440
Speaker 1: Personal Audio also alleged that CBS is distribution of episodic

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00:25:21,520 --> 00:25:23,800
Speaker 1: video media for shows such as c s I Crime

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00:25:23,840 --> 00:25:28,879
Speaker 1: Scene Investigation either literally infringed the band or constituted infringement

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00:25:29,240 --> 00:25:32,679
Speaker 1: under the doctrine of equivalence. End quote. This quote, by

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00:25:32,680 --> 00:25:36,400
Speaker 1: the way, is coming again from the website i P Watchdog.

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00:25:37,080 --> 00:25:41,000
Speaker 1: Then the Electronic Frontier Foundation stepped in or e f F,

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00:25:41,359 --> 00:25:43,920
Speaker 1: and I've talked about the e f F and other podcasts.

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00:25:43,960 --> 00:25:47,440
Speaker 1: It's a group dedicated to preserving individual rights and freedoms

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00:25:47,480 --> 00:25:51,639
Speaker 1: on the Internet, and it frequently wages courtroom battles against

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00:25:51,720 --> 00:25:55,880
Speaker 1: corporations that sees as encroaching on those ideals, as well

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00:25:55,880 --> 00:25:59,680
Speaker 1: as government agencies. Does that with those two. Now, since

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00:25:59,720 --> 00:26:02,320
Speaker 1: Corrol this case did not go to an in court decision,

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00:26:02,320 --> 00:26:05,000
Speaker 1: there was no precedent set, so the e f F

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00:26:05,000 --> 00:26:09,160
Speaker 1: filed an Interpartists review or i p R on the

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00:26:09,280 --> 00:26:13,200
Speaker 1: podcasting patent. This is a way for someone to petition

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00:26:13,240 --> 00:26:17,240
Speaker 1: the Patent and Trademark Office to re evaluate an already

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00:26:17,320 --> 00:26:20,800
Speaker 1: issued patent. With a strong enough argument, it is possible

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00:26:20,840 --> 00:26:24,480
Speaker 1: to have the Patent office decision reversed even after they've

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00:26:24,520 --> 00:26:27,720
Speaker 1: granted a patent. It's an expedited process that can lead

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00:26:27,760 --> 00:26:30,600
Speaker 1: to the office invalidating part or all of a patent,

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00:26:30,960 --> 00:26:34,920
Speaker 1: causing the patent to enter abandoned status. The e f

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00:26:34,920 --> 00:26:39,159
Speaker 1: F filed this petition on October or in October two

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00:26:39,200 --> 00:26:42,400
Speaker 1: thousand thirteen, and just to be clear, this effort focused

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00:26:42,440 --> 00:26:46,119
Speaker 1: on a different argument than the one CBS attempted to

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00:26:46,200 --> 00:26:49,640
Speaker 1: make in its defense against the earlier lawsuits. CBS would

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00:26:49,680 --> 00:26:52,239
Speaker 1: lose its lawsuit. The e f F was looking at

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00:26:52,280 --> 00:26:54,600
Speaker 1: a different part of the patent and arguing that it

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00:26:54,640 --> 00:26:58,639
Speaker 1: was invalid. They argued that the personal audios patent was

436
00:26:58,880 --> 00:27:02,399
Speaker 1: invalid because there were already pre existing examples of what

437
00:27:02,520 --> 00:27:05,800
Speaker 1: the patent was claiming from UH that that existed from

438
00:27:05,840 --> 00:27:09,400
Speaker 1: other people already by the time the patent had been filed.

439
00:27:09,840 --> 00:27:13,320
Speaker 1: This is what we call prior art. Prior art is

440
00:27:13,400 --> 00:27:18,400
Speaker 1: evidence that the invention in question is already known. That's

441
00:27:18,400 --> 00:27:21,560
Speaker 1: an invalidating quality of an invention. So to get a patent,

442
00:27:21,760 --> 00:27:25,040
Speaker 1: the invention has to be new prior art doesn't have

443
00:27:25,200 --> 00:27:28,240
Speaker 1: to exist physically or commercially. There just has to be

444
00:27:28,320 --> 00:27:33,360
Speaker 1: proof evidence that the idea pre exists the filing of

445
00:27:33,400 --> 00:27:37,040
Speaker 1: the patent, and that was the tactic the e f

446
00:27:37,040 --> 00:27:40,280
Speaker 1: F employed in their case, and specifically they pointed at

447
00:27:40,280 --> 00:27:44,159
Speaker 1: how CNN had made news clips available online and how

448
00:27:44,200 --> 00:27:47,240
Speaker 1: the radio broadcast company CBC had done a similar thing

449
00:27:47,240 --> 00:27:52,400
Speaker 1: with radio programs, and these instances pre dated the nine

450
00:27:52,920 --> 00:27:56,600
Speaker 1: patent application. It wasn't good enough to predate the two

451
00:27:56,640 --> 00:27:59,560
Speaker 1: thousand twelve patent, because the two thousand twelve patent was

452
00:27:59,600 --> 00:28:03,439
Speaker 1: built on top of the patent. They needed to go

453
00:28:03,520 --> 00:28:07,639
Speaker 1: back further than that and say, here's examples of stuff

454
00:28:07,680 --> 00:28:10,880
Speaker 1: that existed before even this idea was put forth. Now,

455
00:28:10,880 --> 00:28:13,560
Speaker 1: these are not the only sources for media that resembled

456
00:28:13,600 --> 00:28:17,000
Speaker 1: what Personal Audio laid out in its patent application. Way

457
00:28:17,040 --> 00:28:21,560
Speaker 1: back in a guy named Carl Malamud launched a show

458
00:28:21,640 --> 00:28:25,320
Speaker 1: called Internet Talk Radio, and he would interview various computer

459
00:28:25,440 --> 00:28:29,199
Speaker 1: experts and offer up the files for downloading later, and

460
00:28:29,320 --> 00:28:33,080
Speaker 1: someone eventually would call it a synchronous radio. We might

461
00:28:33,080 --> 00:28:35,760
Speaker 1: think of it as radio on demand, because you didn't

462
00:28:35,800 --> 00:28:38,520
Speaker 1: have to tune in a specific time to catch the broadcast.

463
00:28:38,520 --> 00:28:40,719
Speaker 1: You could download and listen to it whenever you wanted to.

464
00:28:41,400 --> 00:28:44,520
Speaker 1: This happened three years before Logan had even invested money

465
00:28:44,520 --> 00:28:48,360
Speaker 1: in that initial venture. The e f F successfully argued

466
00:28:48,760 --> 00:28:51,720
Speaker 1: that the claims in the patent were not valid. The

467
00:28:51,840 --> 00:28:55,160
Speaker 1: Patent Trial and Appeal Board decided in two thousand fifteen

468
00:28:55,600 --> 00:28:58,160
Speaker 1: that all the patent claims that the e f had

469
00:28:58,240 --> 00:29:03,400
Speaker 1: challenged were in fact invalid. Personal Audio would appeal this decision,

470
00:29:03,560 --> 00:29:06,440
Speaker 1: and the case ended up going to the federal circuit courts.

471
00:29:07,480 --> 00:29:11,480
Speaker 1: It took two years, but on August seven, two thousand seventeen,

472
00:29:11,480 --> 00:29:15,200
Speaker 1: this appeals court ruled that the previous ruling by the

473
00:29:15,240 --> 00:29:18,600
Speaker 1: Patent Trial and Appeals Board was correct, meaning the patent

474
00:29:18,640 --> 00:29:23,400
Speaker 1: would remain invalid. Specifically, the Federal Circuit found that CNN

475
00:29:23,400 --> 00:29:27,080
Speaker 1: and CBC both had implementations of the technology before the

476
00:29:27,080 --> 00:29:30,520
Speaker 1: filing of the patent, meaning they had in fact established

477
00:29:30,600 --> 00:29:34,640
Speaker 1: prior art, and that, in addition, the claimed invention was

478
00:29:34,880 --> 00:29:38,440
Speaker 1: deemed too obvious. That's another metric you have to meet

479
00:29:38,440 --> 00:29:40,880
Speaker 1: when you patent something not only has doesn't have to

480
00:29:40,920 --> 00:29:43,600
Speaker 1: be new, it cannot be obvious. You also, by the way,

481
00:29:43,680 --> 00:29:46,960
Speaker 1: can't patent stuff like natural phenomena, though that gets kind

482
00:29:47,000 --> 00:29:50,240
Speaker 1: of tricky when you get into stuff like DNA and

483
00:29:50,240 --> 00:29:52,200
Speaker 1: and genetics and stuff like that, but that's a topic

484
00:29:52,240 --> 00:29:55,720
Speaker 1: for another time. Personal Audio then filed a petition to

485
00:29:55,800 --> 00:29:58,880
Speaker 1: have this case heard by the Supreme Court, and on

486
00:29:59,000 --> 00:30:03,400
Speaker 1: May fourteen, two thousand eighteen, the Supreme Court officially denied

487
00:30:03,600 --> 00:30:07,880
Speaker 1: that petition, which meant the Federal Circuit decision would remain final,

488
00:30:08,200 --> 00:30:11,280
Speaker 1: it would stand, it would be the official decision on

489
00:30:11,320 --> 00:30:13,960
Speaker 1: the matter, and it was laid to rest. Now what

490
00:30:14,080 --> 00:30:17,240
Speaker 1: this means is that the claims in that patent that

491
00:30:17,520 --> 00:30:21,360
Speaker 1: relates specifically to the distribution of material in a way

492
00:30:21,400 --> 00:30:26,920
Speaker 1: that we call podcasting no longer have any real meaning.

493
00:30:27,080 --> 00:30:30,480
Speaker 1: There's no validity to them anymore from a legal standpoint

494
00:30:30,520 --> 00:30:33,360
Speaker 1: in the United States. So podcasters do not have to

495
00:30:33,400 --> 00:30:36,520
Speaker 1: pay a royalty or licensing fee to Personal Audio in

496
00:30:36,600 --> 00:30:39,720
Speaker 1: order to maintain operations. For a lot of people in

497
00:30:39,720 --> 00:30:44,120
Speaker 1: the business, this was a huge relief because for many people,

498
00:30:44,200 --> 00:30:48,680
Speaker 1: podcasting is not exactly profitable. Uh, you might be breaking even,

499
00:30:48,720 --> 00:30:50,520
Speaker 1: you might be losing money on it. And if you

500
00:30:50,560 --> 00:30:52,880
Speaker 1: have to pay a loyal royalty fee or a licensing

501
00:30:52,920 --> 00:30:55,400
Speaker 1: fee on top of that. Then you would lose significantly

502
00:30:55,440 --> 00:30:58,800
Speaker 1: more money, so it would be prohibitive for a lot

503
00:30:58,840 --> 00:31:01,920
Speaker 1: of people if that or the case. And like I said,

504
00:31:01,920 --> 00:31:04,360
Speaker 1: I didn't feel comfortable talking about it at all because

505
00:31:04,360 --> 00:31:07,920
Speaker 1: how Stuff Works was a named uh entity in this

506
00:31:07,960 --> 00:31:10,800
Speaker 1: whole process. But now that it's all over, I figured

507
00:31:10,840 --> 00:31:14,240
Speaker 1: I could finish the story. So I hope you guys

508
00:31:14,320 --> 00:31:17,960
Speaker 1: enjoyed that peek back into the history of podcasting and

509
00:31:18,400 --> 00:31:23,600
Speaker 1: the the dispute that could have dramatically changed the way

510
00:31:23,640 --> 00:31:27,040
Speaker 1: podcasting unraveled. It would probably mean that I have a

511
00:31:27,280 --> 00:31:30,280
Speaker 1: totally different career now if in fact it had gone

512
00:31:30,320 --> 00:31:33,960
Speaker 1: another way. So very interesting stuff for me personally. If

513
00:31:34,000 --> 00:31:36,360
Speaker 1: you guys have suggestions for future episodes of tech Stuff,

514
00:31:36,360 --> 00:31:39,160
Speaker 1: whether it's a technology, a person, a company, whatever it

515
00:31:39,160 --> 00:31:42,000
Speaker 1: may be, send me an email and let me know.

516
00:31:42,400 --> 00:31:45,400
Speaker 1: The address is tech stuff at how stuff works dot

517
00:31:45,480 --> 00:31:48,240
Speaker 1: com or drop me a line on Facebook or Twitter.

518
00:31:48,360 --> 00:31:50,480
Speaker 1: The handle of both of those is text stuff H

519
00:31:50,720 --> 00:31:53,400
Speaker 1: s W. Don't forget to pop on over to T

520
00:31:53,720 --> 00:31:56,560
Speaker 1: public dot com slash tech stuff. That's t e E

521
00:31:56,720 --> 00:31:59,280
Speaker 1: public dot com slash tech stuff. That's where all our

522
00:31:59,320 --> 00:32:03,640
Speaker 1: merchandise is you can make yourself lousy with tech stuff

523
00:32:03,720 --> 00:32:06,760
Speaker 1: merch and every purchase you make goes to help the show,

524
00:32:06,800 --> 00:32:10,760
Speaker 1: so we greatly appreciate it. Also, don't forget to follow

525
00:32:10,840 --> 00:32:14,440
Speaker 1: us on Instagram and I'll talk to you again really

526
00:32:14,480 --> 00:32:22,479
Speaker 1: soon for more on this and thousands of other topics

527
00:32:22,560 --> 00:32:34,000
Speaker 1: because it how stuff works dot com