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Tue, Jul 06, 2004 - Page 12 News List

Group seeks to overturn `overly broad' patents

DIGITAL `RIGHTS' The group is targeting 10 Internet and software-related patents covering Internet phone calls, streaming audio and video, online testing and others

NY TIMES NEWS SERVICE , NEW YORK

A coalition of lawyers, researchers and software experts formed by the Electronic Frontier Founda-tion (EFF) will try to overturn 10 Internet and software-related patents that it says are so sweeping that they threaten innovation.

While most of the patents are held by little-known companies, two industry leaders have also been named: Clear Channel, which has patented a way to distribute recordings of concerts within minutes after they end, and Nintendo, whose patents include some concerning platform software for hand-held games. The list also includes one individual.

"Traditionally, the Patent and Trademark Office has not been able to give these kinds of patents as tough a look as ones in chemistry, for example," said Jason Schultz, a lawyer with the group.

The list of targets was drawn from 200 submissions solicited through the Web site of the Electronic Frontier Foundation, based in San Francisco. It includes patents covering telephone calls over the Internet, streaming audio and video, and online testing.

The foundation, which promotes "digital civil rights," is not alone in questioning the patent process. A report issued this spring by the National Research Council of the National Academies called, among other things, for improvements in the system for challenging patents.

One patent the foundation dismisses as "laughably broad" is held by Acacia Research in California. As the company describes it, the patent covers systems for "the transmission and receipt of digital content via the Internet, cable, satellite and other means."

Robert Berman, executive vice president of business development and general counsel at Acacia, said the company holds sweeping patent rights because it conducted extensive research to pioneer the digital transmission of content. He pre-dicted that the foundation's challenge would not succeed.

"Broad is not necessarily bad," he said. "If you've got a broad patent and it's valid, that's a very strong patent."

The company has filed patent infringement lawsuits against adult entertainment Web sites and, more recently, against nine cable and satellite TV providers.

As with all the patents on the list, Schultz said his team of volunteers hopes to uncover evidence that other companies had already developed the concepts covered by the patent. If it finds such "prior art," as it is known, the foundation will ask the patent office to invalidate Acacia's patent. However, Schultz acknowledges that a lack of documents can frequently make it difficult to discover such evidence in the case of software and Internet systems.

"A lot of software code is done, dumped and never documented," Schultz said.

Test Central, which operates a Web site called Test.com and holds patents for online testing, is the only firm to have contacted the Electronic Frontier Foundation since the list's release last week.

The testing patent is of particular concern to Schultz because Test Central sent letters describing its claims to a number of universities -- suggesting it might eventually seek licensing fees from nonprofit institutions.

James Posch, Test Central's chief executive, said it had no intention of enforcing its patent against nonprofit institutions. He said it would try to develop a formal restriction exempting nonprofit users from its patent.

"We recognize the good EFF is trying to do," he said. "We're a little bit concerned that they've been using a little bit heavier a hammer than they needed to with us."

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