patent infringement suit stinks to high heaven

Basically, Discovery envisioned broadcasting texts over their video signal, but included "any other" to broaden the patent. That kind of stunt works sometimes, but lawyer seem to be able to string that kind of thing along for months if not years. "The text data may also be transmitted over other low and high speed signal paths including a telephone network (e.g. a public switched telephone network) having a high speed connection such as an asynchronous digital subscriber line (ADSL) connection and the Internet, for example." They were _not_ envisioning a cellular connection. Period.

They also envisioned a "home" system interaction with an operations center, which is a lot_ closer to the Sony model than to the Amazon model. The home system connects, selects, stores and transacts, but when it does so, the patent lapses back into the video model. "In one embodiment, the connector portion of the home subsystem receives an analog video signal and strips or extracts the text from the video." The viewer might be the same as the home system (to the extent this matches the Amazon model, this would be it), but what to make of this:

"A high resolution LCD display is used to both read the books and to interact with the home library software." Throughout the patent, "may" and "in one embodiment" allow the patent to cover similar situations not envisioned when the patent request was created. But that particular sentence is not so protected. I'm no lawyer -- but I bet a real lawyer could have a bit of fun with that. The bookmark setup envisioned really sucks, too, and there's a strong limitation to a single current book, which thank goddess Amazon didn't succumb to, knowing that the real market for such a device has a nasty habit of reading n books at a time.

Some of the coverage indicates that Discovery is focusing on the copy protection scheme(s) in the patent/used by Amazon, rather than the entire devices function, thus making many of my points irrelevant. But I still think it's weird not to go after Sony.

ETA: I've got legal firm names! From

http://www.twice.com/article/CA6644919.html

Morrison & Foerster are international and have a big IP shop. Their clients as a firm include Apple. Their clients _also_, it is worth noting, include Sprint, and Sony Music.

Young Conaway Stargatt & Taylor is a Delaware firm (suit brought in Delaware). They have trial lawyers specializing in IP.

Discovery is definitely taking this quite seriously, and Amazon is right to keep mum until they have a plan and legal assistance of quite high caliber lined up. But I still think the patent is for crap (of course, I think this about a lot of patents and I am not qualified to have an opinion) and the suit is angling for a settlement (and _that's_ easy to say, because that's pretty much how this stuff turns out). I'm feeling crankily reminded of the NTP crap surrounding RIM and others.

ooops kid waking up -- prior art?

http://g4tv.com/techtvvault/features/3121/NuvoMedia-RocketBook.html

How the hell is this not prior art?

ETA: Wondering whether this qualifies as prior art?

http://en.wikipedia.org/wiki/Prior_art

Information qualifies -- it doesn't have to have been implemented, the way a patent application has to have at least a demonstration implementation. Patents are given for _nonobvious_ innovation. It's not like the RocketBook -- and reviews thereof that describe things like selling newspapers on them -- were somehow trade secret protected. And the date on the review is earlier than the date on the patent application.

The RocketBook included encryption/decryption, stuff potentially sold online through Amazon.com, downloaded to a home system then loaded onto the reader -- which sounds a lot like what the patent covers, the only exception being that the patent covers a business process for owning the whole stream (operations center + home system).

more prior art possibilities for the Discovery/kindle suit

Books24x7, like Questia, has a bunch of books available but you have to pay to get access and then the stream is pretty protected (altho, like Questia, I don't know the details on how it was implemented). I thought maybe Modern Age books would qualify as prior art, but I don't know that there's any transmission other than via installation on a computer.

It's trivial to find stuff that almost certainly infringes, now that the patent has been granted as of 2007. One wonders how many letters Discovery Communications sent out to people requesting they pony up. For example:

http://en.wikipedia.org/wiki/Secure_electronic_delivery_service

Did they send a letter to the British Library?

ETA: Questia was founded in 1998 and therefore might possibly constitute prior art all by itself, altho they don't sell books, only access. Which might keep the British Library's service from being infringement. Altho I still don't see the non-obvious part going from subscribing and reading online to paying for a DRM'ed download. Especially since we've got prior art examples of paying for a DRM'ed download, just not from the makers of the reader. Can you _really_ just cut and paste entirely existing stuff together and call it a non-obvious idea? And then say that any conceivable variant on same is covered?

I fucking _hate_ patent law.

ETAYA: I am trying to figure out when academic journals started going online-only (but locked-down). I think it was sometime in the mid-1990s, but I'm having trouble finding out the exact dates. If I'm right, this should also help with prior art.

drop DRM and avoid the lawsuit?

I earlier posted that I thought a creative person could go after google books read on the iPhone. I'm no longer certain of that; I think the security aspect is crucial to the patent. If Amazon dropped DRM on the kindle, would this whole thing go away?

I wonder if Amazon will use this as a little opportunity to go chat with the publishers and say, oh, by the way, we're not sure we can afford this lawsuit on our own. If you want DRM, you can help us pay the legal fees. Alternatively, we could go with a non-DRM solution. Or, conceivably, a DRM solution that doesn't involve encryption (I don't _think_ that patent covers watermarking, for example).

is the Discovery Communications patent a business method patent?

I think it is (but I'm no patent lawyer and inclined to think most patent law Sucks, so why would you pay any attention to my opinion?). If it is:

http://en.wikipedia.org/wiki/Business_method_patent

Specifically according to this article, after "October 30, 2008, the Federal Circuit handed down its long-awaited en banc decision in In re Bilski.", business method patent has to either (a) "transform an article from one state or thing to another" (which this patent does not) or (b) be "claimed as carried out with a “particular machine"", which apparently does not include a "general-purpose digital computer". And given that the patent does a piss-poor job of describing the kindle, I'm not seeing it.

The fact that this suit was filed months after this decision suggests that somebody thinks this is worth pursuing.

Of course, if I'm right about this line of argument, the whole 1-click thing isn't valid any more, either. Should be fun, right? Maybe this is where the trade is going to happen, especially since Apple is paying license fees to Amazon to use 1-click in the iTunes store.

I Can Read

Delving deeper into the patent, I just don't buy claim 1. There's no way they are going to be able to hang on to that. They must be going after claim 96 or 129.

And there, you can see where the precise details of the kindle format, encryption and decryption start to matter a Whole Lot to this lawsuit. I'm pretty sure 129 can be weaseled on because when you buy a kindle book, you have to specify serially which kindle to send it to, which gets you out of claim 129's clause:

"broadcasting the encrypted electronic book to multiple home systems simultaneously"

Which makes me strongly suspicious that Amazon knew about this patent, since I had been wondering why sending it to all kindles at once wasn't even an option.

cnet provides the filing

http://news.cnet.com/8301-1023_3-10198185-93.html

Embedded is a link to a .pdf:

http://corporate.discovery.com/media/uploads/pdf/discovery-communications-complaint.pdf

I'm reading. . .

ETA:

Okay, _that_ was short. It's three pages mostly establishing jurisdiction, naming kindle and kindle 2 as infringing on the named patent, saying it was willful, asking for triple damages, court costs, etc. and anything else the court is willing to turn over.

I don't know how this stuff works, but this seems like a trial (er) balloon to me. I'm no longer impressed by the lawyers involved.

ETAYA:

Okay, my ignorance is showing once again. I'm still awaiting confirmation from one of my lawyer relatives, however surfing patent infringement filings on Justia suggests that _all_ infringement suits start _exactly_ this way. Back to being impressed that Discovery hired the big guns.

today's activities included: walking with A., filling out a form, watching an EDC post

Walking with A. is relatively straightforward, altho she really complained a lot and I had to pick her up for a few minutes. Not sure what that was about. She was plenty warm in the stroller bag. She may have been having trouble getting her thumb to her mouth.

I called the pediatric neurologist's office the other day because we were supposed to receive a new patient packet in the mail and had not. They resent it (what other mail am I missing that I _don't_ know I'm missing?). I wound up printing out part of my website (developmental milestones page for T.) and chunks of my blog (language posts about T.) to attach to the form. T.'s language development has been so odd that I just feel like I won't remember all the details and they won't believe me anyway, unless I have contemporaneous documentation. This is probably also good evidence that mama is Aspie, too, hunh?

I talked to my sister R. today. Her younger daughter has some of the same idiosyncratic language development going on: huge vocabulary, great receptive language, will repeat entire sentences/phrases she's heard other people say but won't use language to ask for things (other than single words). AND she recognizes all the letters from any orientation. It's not like this is incredibly common, and they are first cousins. Seems like there's just about got to be a heritable component.

K. sent me a link to an Everyday Carry post on a knitter's blog:

http://www.abbysyarns.com/wordpress/?p=240

This is really pretty cool, since she doesn't smoke but carries a lighter because she feels quite strongly about the importance of always having the ability to make fire (in the survival sense, not the pyro sense!).

I think I'll post next, sort of an EDC post, but mostly a Carlin-style stuff rant. For reference, here's Carlin:

http://www.writers-free-reference.com/funny/story085.htm

Everyday Carry

When Carlin talks about the most rudimentary stuff, he's talking about pocket litter. What's in my pockets?

Right now, nothing. I'm sitting in my house (surrounded by our stuff), wearing slippers, PJ pants with no pockets. On the table next to me is an empty mug (decaf tea) and similar items. Kinda messy.

When I leave the house, I try to always have keys in my hand or my pockets. I do this because T. has locked me out of the house. I have ways to deal with this, but they aren't particularly fun, particularly when there's mud or icy snow all around the house.

If I am out of the house for a longer period of time, I try to bring a phone or phones with me. If I'm just hanging in the driveway watching T., I might just bring the cordless. If I'm going for a walk or drive, I try to remember to bring the cellphone.

Once I get into a car, then I need my wallet, with its driver's license (AAA card, credit cards, hopefully but not always some cash, ATM cards). These days, the wallet is an Organizer, so it also has a thick, clutch like compartment. Also a place for my nice ballpoint pen. The compartment holds things like gum, a small tape measure, a wooden bookmark (no, I don't know why it's there), a toothbrush, toothpaste, floss (unless I've stolen it and left it on that table by my glider rocker or somewhere else). There might be a small container with some vitamins in there, leftover from the last trip.

If I have a child with me, then I've got the kid's stuff. These days, I usually bring my purple handbag. It has diapers, a change of clothes, a couple burp clothes, a camera, sometimes (but not always) the Flip Mino, a stroller hook, crayons and in the winter months, a hat, a scarf and a pair of leather gloves. In previous years, the hat/scarf/gloves lived in the pockets of my winter coat. Of course there's also the baby bucket, with a couple toys attached to it. Usually a blanket, but sometimes just the baby's coat tucked around her. Often I toss the sling on top of her legs so I have it.

If I have T. with me, I may move the organizer to the grey backpack containing his diapers and wipes, his clothing and toys, snacks, etc. I try to remember to check to make sure this has enough stuff in it, because it's really T.'s stuff and other people who have T. have his stuff and his stuff sometimes doesn't get replenished.

On the shelf beside the door is a case holding my sunglasses. It has a cheap carabiner on it. Sometimes I hook it to my purse or T.'s backpack. Sometimes I stick it in a pocket, or hang it off a belt loop. Sometimes I don't bring it because I forgot, or because it's cloudy or nighttime. In a little while, I'll put the woolen cap away (and the scarf and the gloves) and replace it with a brimmed cap.

For a while, I was clipping a pedometer to my waist when I got up in the morning. That was kind of convenient; it had a clock on it. When T. was little, I used to carry a pocket watch that also had a compass on it, but it needs new batteries. In general, I don't wear any watch or other jewelry. In the summer, I often don't wear shoes, unless I'm going somewhere. When I'm walking around the house, I accumulate small items in my pockets that need to be put away somewhere else. As I walk around, I'm constantly poking at the contents, trying to figure out what should be dropped off wherever I am. At any given time, my pockets probably contain a spare house key, washable crayola markers, A.'s shoes, T.'s socks, etc.

Probably the biggest surprise in this is the lack of reading material. The kindle usually lives by the bed upstairs. There's always something to read in the living room, but usually I'm watching TV and/or on the laptop. In case of emergencies, there's a Neil DeGrasse Tyson anthology in the van. But in general, I don't have time to read when I'm out and about -- and I can't afford the lapse of attention if I have T. with me.

Discovery Kindle: sounds like a toy, doesn't it?

http://news.cnet.com/8301-13512_3-10198880-23.html

Glaskowsky actually read the patent, detected the 3 independent claims and compared them to what the kindle does. He concludes that claim 96 and 129, since they are so weak compared to claim 1, don't really matter. This is a different conclusion than the one I came to (which is that claim 1 will never stand because it's a business method patent, and claim 129 doesn't cover the kindle because of the simultaneity requirement). Glaskowsky doesn't seem to be aware of the issues associated with business method patents (e.g. do they transform anything, if they don't, is a particular device involved) since 2006, altho as I have noted, the fact this sucker got granted in 2007 indicates that someone thought it held up.

Glaskowsky points out that 1 also doesn't apply if the book is pre-encrypted. I had not noticed that, but he's right.

His argument that Amazon won't find prior art to disable this puppy seems a little weak to me. There was a bunch of prior art analysis that went into 1-click and someone got chunks of that puppy overturned as a hobby/charity activity after turning up the Digicash prior.

I'm a little mystified that people aren't working a little harder on the prior art question. I haven't seen any mention of RocketBook yet, and it definitely used encrypted/decrypted e-books.

ETA: fjtorres, in the comments on the CNET Sandoval article, mentions the Rocket e-book.

Slate review of Rocket e-Book and another reader (which distributed via phone line direct to the reader) in May 1999 (patent filed September 1999, IIRC).

http://www.slate.com/id/27741/

more priors

Authors Guild warned its members off of Nuvomedia's Rocket e-Book

http://blog.sarahsheard.com/2009/03/writers-orgs/

Reviews of readers circa 1998:

http://www.biblio-tech.com/btr999/January_99/e-book_technology.html

Check this ridiculousness out: two screen to better emulate a book!

http://www.cnn.com/TECH/computing/9812/18/ebooks.idg/index.html

And, courtesy the site I Love the Best, the Internet Wayback Machine:

http://web.archive.org/web/20010429031224/http://www.itl.nist.gov/div895/isis/ebook98.html

There was an ebook conference in 1998. I'd loooooovvve to have anyone's notes from this thing. Maybe especially from Carol Risher's presentation?

This is worth looking at, from 1995:

http://www.ifla.org/IV/ifla61/61-kha.htm

Primarily because at this point, people were really wanting to get certain kinds of information online for researchers (back to the when did academic journals go online question), but were starting to be concerned about copyright issues in the course of sending stuff electronically. At least in 1995, to the otherwise intelligent person writing this paper, encryption did not leap to mind.