EFF Patent Busting Project has another suspect one in a death grip

The holder of a patent involving Internet music distribution is crying foul today after learning that the Electronic Frontier Foundation's tenacious Patent Busting Project has convinced the Patent and Trademark Office (PTO) to reconsider his decade-old successful claim.

This PTO decision makes the EFF team a nifty six for six in seeking and being granted patent reexaminations, with one already having been killed off and the others pending final disposition.

The development also demonstrates anew the need for Congress to make sure that any "reform" of the patent system does not do injury to efforts such as the Patent Busting Project. Legislation filed but not acted upon last year would have effectively killed the project, EFF warned at the time.

From today's EFF press release about its latest win:

Seer Systems was awarded this patent for a system and method for joining different musical data types together in a file, distributing them over the Internet, and then playing that file.  In the reexamination request, EFF, along with the law firm Day Casebeer Madrid & Batchelder, show that descriptions of this technology were published a number of times before Seer Systems made its claim--including in a book written by Seer's own founder and the named inventor of the patent, Stanley Jungleib.

"Mr. Jungleib encouraged others to use the techniques he described in his book and sought patent protection only after those ideas had entered the public domain," said EFF Senior Intellectual Property Attorney Michael Kwun.  "It's unfortunate that Seer Systems didn't call Mr. Jungleib's book and the other prior art we cited to the PTO's attention before the patent issued."

Contacted by e-mail, Jungleib vigorously disputes the Patent Busting Project's grasp of the facts and questions whether the advocacy group is on the right side. Says Jungleib:

Seer Systems is a "company of one" (me) that followed the law and sought a court's help to stop the likes of Microsoft, Yamaha, and good portion of the cell phone industry (not some "little company or innovator") from what we saw as taking our intellectual property.

EFF is factually wrong. The patented method was not disclosed in my book General MIDI. Microsoft raised the same "book" issue in that lawsuit. After 22+ months of litigation, we settled confidentially. That would seem to suggest that the EFF's "book" contention, not my company's patent, is "bogus."

The book issue is not settled, says Attorney Paul Grewal of the law firm Day Casebeer Madrid & Batchelder, which is working with EFF on this matter. "Neither the Patent Office nor any court has previously ruled on the prior art cited in our petition," he says. "We are delighted that the PTO has agreed to review this art and are confident that Seer's claims will be rejected."

Jungleib insists that he is the victim here.

EFF's self-righteous confusion reflects both a lack of technical discernment and of informed diligence. EFF could have learned the facts from the public records or by contacting me. EFF has not once contacted Seer Systems. Why they haven't is as much a mystery as why they attack a lone inventor whose patent has already endured scrutiny by the finest legal teams in the country.

The (patented) invention is as legitimate as the windshield wiper of current movie attention. Sadly in parallel, EFF now endorses the unfair practices of, and surrogates for, huge corporations striving to appropriate the creativity of the lone inventor. This raises fundamental questions about the thoughtfulness and credibility of EFF's so-called "freedom" agenda.

Attorney Grewal's retort: "Illegitimate patents like the Seer patent do not promote innovation, they stifle it.  Patent re-examination is an important tool is preventing this type from happening."

As for those concerns raised last year about Congress "reforming" the patent busters right out of business, EFF attorney Kwun offered me this update today:

We'll have to see what proposals are made once the new Congress convenes.  There's nothing pending, to my knowledge, that raises the issue you note, but it's always possible that similar proposals will be raised by the new Congress.  It'll be interesting to see if President Obama's administration tries to steer things in a different direction.

Let's hope such is the case. 

(Update: More from Kwun regarding Jungleib's contention that this has already been settled:

"The short(er) answer is that the patent office has already agreed that the prior art we cited -- Mr. Jungleib's own book, another author's book about Sound Blaster sound cards, a 1993 USENIX paper about network-distributed audio, two patents filed before the Seer patent -- individually and/or in combination raise substantial new questions regarding the patentability of the 45 claims of the Seer patent.  We expect that the patent office will go on to conclude, as we did, that those claims are invalid.

"The combinations of prior art that we cited are particularly important given the Supreme Court's 2007 guidance (in KSR v. Teleflex) concerning the obviousness standard that applies when considering whether patent claims are novel in view of combinations of prior art. While we believe the combinations would have been appropriate even under the pre-KSR case law, it's abundantly clear that in a post-KSR world, a so-called "person having ordinary skill in the art" (what patent lawyers sometimes refer to as a "PHOSITA") would have considered the combinations of prior art that we noted in our reexam request. ...

"As an aside, the settlement that Mr. Jungleib points to doesn't tell us much about the merits of his claims.  Litigating a patent case through trial these days in a situation like this often costs between 3 and 5 million dollars.  We don't know how much he was paid in the settlement.  Companies often settle patent cases because the settlement costs are below (often well below) the cost of continued litigation.  That's a business judgment, and doesn't mean the defendant thought the patent was valid."

There was more; lawyers don't do short answers.

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