C3 Patent and Intellectual Property Law

Jul302009 | Steve O'Donnell

Scary podcast patent not that scary

Last Tuesday the patent office issued a patent to Volomedia for a “Method for providing episodic media content.” By Wednesday, the tubes were filled with commentary ranging from “the patent system is broken” to “Oh nos [sic], they're going to sue podcasters.” Most of those comments mentioned Adam Curry in some way.

I can't fault the media (I'm including bloggers of all ilk in that term) for getting up in arms. Patents are rather specialized and there is a reason why registration with the US Patent Office requires a separate bar exam. Analyzing a patent to determine exactly what it covers can take days or weeks, and then you're still not exactly sure what it means until a Judge issues a claim construction.

First things first, Volomedia's patent does not cover making, uploading, downloading or listening to podcasts. It covers a method to distributing them, so the iTunes store or Podcast Alley would be possible targets if Volomedia tried to enforce their patent against a current distributor, not a typical podcaster or a listener. Whether or not they would try to enforce against someone, or what would happen if they did is anyone's guess.

It might not make economic sense to go after a provider. Even if Volomedia won at a Motion to Dismiss, what would they get? Most podcasts are distributed for free, and the damages period would begin when the patent was first in force (since Tuesday). So, right at this minute, damages are probably pretty small. Volomedia could instead ask for a reasonable royalty, but because of the free nature of most podcasts, this probably also wouldn't be a huge award. Of course, maybe they would want to shut down all current podcast services and be the exclusive provider of all that podcast content, one can never guess exactly what lurks in a business' heart.

There are some questions about whether the current most common content dissemination schemes infringe the patent, but even if they do, they can probably be quickly redesigned to avoid the patent.

The patent contains nine claims, 8 eight of those are dependent, meaning they build off the single independent claim. I'm going to give a cursory look at part of claim 1 to point out what I think might be a couple issues for Volomedia if they would try to enforce this patent against something like Podcast Alley. This is in no way even approaching what would be required for a claim construction and shouldn't be relied on my anyone for anything. This is just for fun. Yea! Grab the patent and play along!

The first claim, which I've roughly diagrammed here reads:

1. A method for providing episodic media,
(a)the method comprising:
i.providing a user with access to a channel dedicated to episodic media,
A.wherein the episodic media provided over the channel is pre-defined into one or more episodes by a remote publisher of the episodic media;
ii.receiving a subscription request to the channel dedicated to the episodic media from the user;
iii.automatically downloading updated episodic media associated with the channel dedicated to the episodic media to a computing device associated with the user in accordance with the subscription request upon availability of the updated episodic media,
A.the automatic download occurring without further user interaction;
iv.and providing the user with:
A.an indication of a maximum available channel depth,
B.the channel depth indicating a size of episodic media yet to be downloaded from the channel and
C.size of episodic media already downloaded from the channel,
the channel depth being specified in playtime or storage resources, and
D.the ability to modify the channel depth by deleting selected episodic media content, thereby overriding the previously configured channel depth.

Ok, that's a mouthful. The first thing that one should understand is that to infringe a claim, one has to infringe all the elements of that claim. In other words, a claim to a “four-door, red car” has three elements, “four-door,” “red” and “car.” If you avoid any of of those elements, you don't infringe the claim. The second thing to realize is that just as there are a number of shades of red, each word in a patent claim is open to interpretation. That interpretation, or claim construction, during litigation is going to define how the infringement analysis will go.

The first questions that would need to be nailed down are “what is a channel” and “when is a channel dedicated to a type of media?” 1(a)(i) Is subscribing to a podcast the same as subscribing to a channel dedicated to episodic media? Looking at the rest of the patent, Channels are defined, in part, as a unit of media content organization that specify media that can be selected for immediate play. Could it be an issue if the play isn't immediate, but first requires a download? It very well could be, it could stop an infringement action in its tracks.

Next, the clause at 1(a)(ii) requires receiving a subscription request from the user. What if the user's request goes through a third-party proxy? At first blush, that would seem to get around the whole claim.

Clause 1(a)(iii) requires automatic downloads upon availability of the episode. One interpretation of that would be that it requires a “push” technology and not a “pull” like iTunes uses. The next subclause requires that the download occurs without further user interaction. Would that cover a podcast downloading program that required the user to specify when to check for new podcasts, even if that specification only need to be made once per podcast subscription? After all, it does require a user interaction separate from subscribing.

In short, you can't jump to conclusions about what a patent actually means based on it's title or what a press release says. . . they almost always demand a lot more work to analyze. I might not think the claim reads on the iTunes store, but ultimately, if it gets litigated, that's for a judge to decide. If it does get litigated, come back and we'll play with the prior art cited by the defendant.

I'm not trying to suggest that my take on the claims is what a court should adapt or that the drafters erred in prosecuting the patent. Not at all. I think the claims are quite good and this patent could be an important piece of IP for Volomedia. I don't think, as others have suggested, that this will kill podcasting as we know it.

Comments

Bob commented on 30-Aug-2009 03:57 PM

Wha....? No recipe? Come on! I expect one every post.

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