"Reasonable presumption of novelty and nonobviousness"

[unixronin]

So, Discovery Communications (that's Discovery Channel and others) is sueing Amazon over the Kindle.  The underlying patents under which they're sueing apparently date back to 1992.

As described in an article by CNET's Greg Sandoval yesterday ("Discovery hits Amazon with Kindle patent suit"), the parent company of the Discovery Channel (Discovery Communications) has filed a lawsuit against Amazon.com, claiming that the Internet retailer's Kindle e-book reader infringes Discovery's U.S. patent 7,298,851, titled "Electronic book security and copyright protection system".

I read through this patent in some detail, and honestly, it looks formidable.  It was filed in 1999 as a "continuation in part" from patent applications dating back to 1992.  Among the prior-art disclosures listed are 52 U.S. patents or applications, 34 foreign patents or applications, and 15 nonpatent publications. It has 171 claims, three of which are independent.  Those are all signs of a strong patent.

A little further down the article, the analyst, Peter Glaskowski, lists the first of Discovery's claims in this patent:

1.  A method for encrypting, sending, and receiving electronic books upon demand, comprising: creating a list of titles of available electronic books; transmitting the list of titles of available electronic books; selecting a title from the transmitted list of titles; communicating the selected title to an electronic book source; supplying a selected electronic book corresponding to the selected title to be encrypted; supplying an encryption key; encrypting the selected electronic book using the encryption key; supplying the encrypted selected electronic book; supplying a decryption key; and decrypting the encrypted selected electronic book using the decryption key.

Then, further down again, he comments that "the patent has been examined in light of so much prior art that it has acquired a reasonable presumption of novelty and nonobviousness".

Um, excuse me?  "Reasonable presumption of novelty and nonobviousness"?

Let's look at that first claim again, simplifying the verbiage down to what it actually describes (and postponing the encryption part for the moment):

1. The buyer chooses a book.
2. The seller downloads the book to the buyer.

Um ... pardon me, but ... exactly what part of this is it that's novel and non-obvious, again?  How the hell ELSE would you do it?

Once you get that part out of the way, the third element described — encrypting the book during transmission — is a trivial addition of long-preexisting technology in a completely obvious application.  If you want to protect the book from copying by eavesdroppers during download, OF COURSE you encrypt it.

This patent is about as novel and non-obvious — and was as novel and non-obvious even when it was granted in 1999, apparently after seven years of the USPTO saying it wouldn't hold water — as the idea of cooking food by applying heat to it.

Maybe I should file a patent on drinking liquid from an open container by putting the opening to the mouth, with the mouth slightly open, and tilting the container towards the drinker.

Comments

[hugh-mannity.livejournal.com]

1. The buyer chooses a book.
2. The seller downloads the book to the buyer.
That sound's like a method patent and IIRC, they're clamping down on those and dismissing them -- because they're unenforceable.

[unixronin.livejournal.com]

Not only that, but when you think about it, what they patented there is the idea of buying an ebook — or, in principle, any other electronic media — online. Basically any site you've ever been to that allowed you to choose a piece of software or other electronic media and download it, would be in violation of this patent. MS Windows Update violates the core of this patent. Downloading a Linux distribution violates the core of this patent. iTunes violates the core of this patent. Steam violates it. Tucows violates it. Download.com violates it. The entire patent is absurd.

With luck, this lawsuit will end with Discovery's patent being thrown out.

[hrrunka]

The Register linked this story with another mind-bogglingly weird bit of legal action which attacked the text-to-speech function. Apparently "they don't have the right to read a book out loud" because "that's an audio right, which is derivative under copyright law".

[unixronin.livejournal.com]

Yeah, that's another action that I find completely incomprehensible. What, they're worried it's going to cut into sales of audiobooks? Someone who's blind is just going to buy the audiobook in the first place, not the ebook. And, well — Wil Wheaton posted a podcast with an example of the Kindle reading a chunk of one of his columns. I'm sorry, but it's never going to replace human-read audiobooks unless it gets a whole lot better at intonation and pacing. Yeah, it can read text aloud. Great. But no-one could ever mistake it as anything but machine-read text.

This is the lawyer "Let's soom!" mindset at work.

[hrrunka]

Yeah. That's one mindset the world could do without, IMO...

[ithildae.livejournal.com]

I am not sure the patent can survive in re Bilski.

There is an even better aspect to this that I found elsewhere. The patent was not released by the applicant until one day after the Kindle v1 shipped. So this is an archetypical submarine patent, specifically crafted to go after Amazon $$$ through the Kindle.

It hardly bears mentioning at this point, but our patent system really sucks, especially since State Street, when software and method patents were allowed. And now that all patent legislation goes through the CAFC, instead of the normal circuit courts, we get even more twisted interpretations. (I am not counting the Eastern Texas Federal Courts, as that is where virtually all the patent cases get filed.) At this rate, the CAFC will take the Ninth Circuit's title as the most overturned court in the nation. What brainiac thought up an entire court where you needed to be a patent attorney to be a judge on the court? (Inmates... Asylum... Who is in charge?)