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| Sharing Sound is meant to be fun ... |
Companies against which infringement actions were targeted were named as Apple (iTunes), Microsoft (Zune), Napster, Rhapsody, Brilliant Digital Entertainment (Kazaa) and Sony / Sony Ericsson; proceedings have also reportedly been filed against Amazon, Netflix, Wal-Mart, Barnes & Noble and GameStop. It is claimed that the patent – U.S. Patent Number 6,247,130, “Distribution of musical products by a website vendor over the Internet” – would essentially prevent the use of any type of online store environment which provides "song previews, a shopping cart or even a music player".
Apart from Brilliant Digital Entertainmentand Rhapsody, the listed companies are all said to have moved to settle Sharing Sound's claims. Apple's settlement was signed off by Judge David Folsom (U.S. District Court for the Eastern District of Texas, a court known to be well disposed towards patents.
Disappointed that "no specifics on the terms of the deal were revealed", I wasn't going to take this further, but Antonio has provided some fuel for debate. He writes
"Just to give you a short opinion about this case, since it can show a big problem we are facing in the patent field, with weak patents used to force the industry to pay a royalty if they want to avoid the risk (even if low, there is always a risk) of been condemned to stop and, at the same time, having to “invest” important amounts in legal advice during litigation.
In this case, the patent seems to be extremely broad (and weak?). You can find the patent here. What do you think about the abstract?
“The system and method permit the purchase of audio music files over the Internet. The PC user logs onto the vendor's web site and browses the songs available for purchase. The songs can be arranged by artist, music style, etc., as mentioned above. Further, the vendor can provide suggestions on the web site, directing the PC user to songs that might be desirable, based on that PC user's previous purchases, her indicated preferences, popularity of the songs, paid advertising and the like. If interested in a song, the PC user has the option of clicking on a song to "pre-listen" to it--hearing a 20-second clip, for example. If the PC user then wishes to purchase the song, she can submit her order by clicking on the icons located next to each song/album. The order will be reflected in the shopping basket, always visible on the screen. As the PC user selects more items, each and every item is displayed in the shopping basket. At any point in time, the PC user can review her selections, deleting items she no longer desires”.
And the claims?
1. A system for digitally distributing music comprised of tracks and albums over the Internet to a plurality of the Internet users, comprising:
means for assigning a key to a track for downloading to a user;
means for inserting the assigned key into said track prior to the downloading;
means for transferring the same assigned key to said user prior to downloading said track;
means for combining the transferred key with additional data to generate an identifier that uniquely identifies a customer's computer; and
means for verifying that said key extracted from said track matches information that is based on the generated identifier to enable the playback of said track.
2. The system according to claim 1, wherein the assigning means assigns said key that is unique to said user in correspondence to a username and password combination.
3. The system according to claim 2, wherein said user enters said username and password combination to access said track in a database prior to the assignment of said key.
4. The system according to claim 3, wherein said track is downloaded only if said user purchases said track prior to the downloading.
5. The system according to claim 4, further comprising means for storing said identifier in said user's computer for subsequent verification of the authorized downloading of tracks.
6. The system according to claim 5, wherein said additional data uniquely identifies a hardware/software component of said user's computer.
7. The system according to claim 6, wherein the inserting means inserts the assigned key into a header of said track.
8. A method for digitally distributing music comprised of tracks and albums over the Internet to a plurality of the Internet users, comprising:
assigning a key to a track for downloading to a user;
inserting the assigned key into said track prior to the downloading;
transferring the same assigned key to said user prior to downloading said track;
combining the transferred key with additional data to generate an identifier that uniquely identifies a customer's computer; and
verifying that said key extracted from the downloaded track matches information that is based on the generated identifier to enable the playback of said track.
9. The method according to claim 8, wherein the assigned key is unique to said user in correspondence to a username and password combination.
10. The method according to claim 9, wherein said user enters said username and password combination to access said track in a database prior to the assignment of said key.
11. The method according to claim 10, wherein said track is downloaded only if said user purchases said track prior to the downloading.
12. The method according to claim 11, further comprising storing said identifier in said user's computer for subsequent verification of the authorized downloading of tracks.
13. The method according to claim 12, wherein said additional data uniquely identifies a hard drive of said user's computer.
14. The method according to claim 13, wherein the assigned key is inserted into a header of said track.
Would the information provided in the patent be enough for the invention to be carried out by a person skilled in the art? And, if so, does this invention involve an inventive step? Isn’t it too broad? Bear in mind that, as we read, the plaintiff sued almost all the industry: Microsoft (Zune), Napster, Rapsody, Brilliant Digital Entertainment (Kazaa),Sony / Sony Ericsson, Amazon, Netflix, Wal-Mart, Barnes & Noble and GameStop.
It seems to me that we are living in strange times. Where are we going? How will the Patent wars end? Would this mean the end of the patent system as we know it?
All this brings my mind to the US report Protecting Consumer Access to Generic Drugs: the Benefits of a Legislative Solution to Anticompetitive Patent Settlements in the Pharmaceutical Industry (here) and the Executive Summary of the Pharmaceutical Sector Inquiry Report by the EU Commission (here), in the second of which we read:
“Like in any other industry the inquiry's findings show, however, that litigation can also be an efficient means of creating obstacles for generic companies, in particular for smaller ones. In certain instances originator companies may consider litigation not so much on its merits, but rather as a signal to deter generic entrants”.Antonio has made some powerful points here, which go to the heart of the function of the patent system in rewarding the disclosure of technical advances in the art, the nuisance value of unmeritorious litigation and the selectivity of competition authority reviews of settlements. Readers' comments are very much welcome.
3 comments:
There is only one answer to this problem, and it is an answer that any properly-functioning patent system should be providing anyway: ensure that court procedures are available which enable bad patents to be revoked speedily and at reasonable cost.
We should not forget that this is really just a US "problem". The patent system is not the US patent system. Let’s not have the tail wagging the dog here. The ROW is getting on very nicely without this "problem" if that is what it is.
I'm sure the defendants involved can handle even unreasonable costs in having this patent set aside in the US. When they can they often do this. They settle because the "US patent" is valid. No patents are "ridiculously broad". They are either valid or invalid....period.
The "problem" for the US patent system is the quality and effectiveness of the USPTO in getting the patentability assessment right, US patent law, which is a dog, and the East Texas problem. It’s a dysfunctional IP market.
Being able to close down a multi-billion dollar company which infringes an SME, NPE or any other entity owned patent is not a "problem". They had a choice. Don’t infringe.
It is incredible to imagine that NONE of these defendants were aware of this patent. How many do you suppose did the honest thing and approached the patent owner for a licence? How often do these companies approach SME patent holders for a licence? Virtually never and they will only pay for stealing the IP of others when they are forced to do so.....which sadly is not often enough.
If the larger companies that espouse the wonders of the IP system actually respected it things would improve for all.
Hear hear. Anonymous 8 October 2010 11:01 - just what I was thinking, but more erudite.
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