While patent reform is still delayed in the Senate, there was some good news for podcasters fighting a patent troll’s claim. Last October the Electronic Frontier Foundation filed a challenge to Personal Audio’s patent, issued in the mid 90s, that it says covers podcasting. The US Patent and Trademark Office’s Patent Trial and Appeal Board issued a ruling saying that the EFF has established a “reasonable likelihood” that its challenge will prevail.
The EFF argues that Personal Audio did not invent podcasting because online audio programs existed prior to the company’s patent, filed in 1996. That patent was actually for a service that delivered magazines on cassette tape, which the company claims covers any serialized audio program, whether delivered on tape or online, such as a podcast.
The EFF’s challenge is based on evidence of “prior art,” where serialized audio was distributed online prior to Personal Audio’s patent. These examples include the “Geek of the Week” online radio program founded March 1993, and online broadcasts by CNN and the Canadian Broadcasting Corporation.
The PTAB ruled that the CBC and CNN examples were valid, but rejected the arguments based on “Geek of the Week” because it said that the EFF failed to present documentation that the program was publicized in a sufficiently accessible “printed publication.” The reason why that is important is the EFF needs to demonstrate that Personal Audio could have, at the time, discovered the existence of these programs. The EFF plans to challenge this decision.
However, because the PTAB accepted the CBC and CNN examples the EFF’s challenge of the Personal Audio podcasting patent is moving forward. The proceedings begin July 3, the deadline for Personal Audio to submit its response, and then can go as long as another five months, if necessary.
That means there will be no immediate relief for podcasters like Adam Carolla who are fighting Personal Audio in court. Though, if the Patent Office finds that the patent does not cover podcasting, any court action should become moot.
