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