Much of the public awareness and outrage surrounding patent trolls began a few years back when Lodsys started targeting small iOS developers for royalties on in-app purchasing technology. We’ve since seen similar patent licensing entities go after companies and individuals for infringement of Wi-Fi technologies and network scanner products, to name just a couple. Now a legal battle is forming around the popular activity of podcasting, and the Electronic Frontier Foundation is stepping in to help fight it.

In particular, Personal Audio — another company that seems to only generate revenue from the licensing of its patents — has begun throwing around US patent 8,112,504. The way Personal Audio sees it, ‘504 is “a fundamental patent involving the distribution of podcasts.” Much like Lodsys’ attacks on developers, Personal Audio’s actions will certainly worry smaller podcasting entities. Many podcasters fail to make any money doing what they do, and few would have the resources to take on the enormous costs of patent litigation — a cost-benefit analysis all patent trolls count on to obtain a high volume of relatively small royalty fees.

An “invitation” to take a license

Patent trolls often get more value from the threat of a lawsuit than from the merits of their actual infringement arguments, and Personal Audio is apparently getting the word out on this patent. It’s difficult to know exactly how many letters have been sent out to podcasters, but The Verge has seen a couple of them and they’re pretty standard fare. The first shot across the bow touts the importance of the patent (claim 31 in particular) and offers the recipient an “invitation” to take a license. From there, a more threatening letter comes, listing the various companies already sued for infringement. In this case, litigation has already been lodged against entities like CBS, NBC, HowStuffWorks.com, and ACE Broadcasting. ACE is the home of Adam Corolla’s hugely popular podcast.

The EFF announced yesterday that it’s partnering with Harvard’s Cyberlaw Clinic to challenge the validity of the ‘504 patent. The EFF is asking for public assistance in accumulating relevant prior art and for donations so that it can initiate an “inter partes review” proceeding with the US Patent and Trademark Office. It’s already reached its donation goal of $30,000, so now it needs to come up with some convincing prior art in order to take this particular patent out of circulation. Here’s how EFF describes what it’s looking for:

One way to defeat a troll is to prove-either in court or at the patent office-that the claimed invention was not new (or was obvious). In other words, show that the patent applicant didn’t really invent anything. To do this, we need to find publications from before October 2, 1996 that disclose similar or identical ideas (this also known as prior art). The best prior art will include publications describing early versions of podcasting or any other kind of episode distribution over the Internet.

It’s not a patent on podcasting, but it does cover particulars of an episodic distribution process

That brings us to the details of the ‘504 patent. While it wasn’t granted until 2012, it claims priority all the way back to 1996. As such, potentially invalidating software technology — or patents — must predate that in order to be of any use. It’s important to note that the ‘504 patent doesn’t cover the basic act of podcasting itself; it’s about more than just creating and distributing content. However, the broadest claim highlighted by Personal Audio does cover a “media dissemination system” that basically performs the following processes:

• storing media file episodes;
• an internet connection with client devices;
• grabbing updated compilation files (something like RSS) including a URL to identify currently available episodes;
• receiving requests from client devices for an updated compilation file;
• transferring the updated compilation file to the client device; and
• receiving a request from the client device for the actual media files (episodes) identified in the updated compilation file.

It’s difficult to see infringement with individual podcasters

It’s obviously a bit more complicated than that, but you get the gist. Diving further into the claims only introduces more confusion. It’s going to take a fair number of patent attorneys and a focused patent office to unearth the true scope of this patent. In fact, it’s not immediately clear that a colorful claim of infringement can be made against individual podcasters, or whether the episodic updating features from the likes of YouTube or Apple’s Podcast app are what’s needed to connect the dots for infringement. Given all the pieces that would be required to claim either direct or indirect infringement, it’s difficult to see how a podcaster utilizing common distribution tools and services could be held liable. Then again, how many would be able to defend themselves?

It will be interesting to see just what EFF’s crowdsourcing strategy comes up with for prior art and how successful it will be in convincing the USPTO. The good news is we’ll likely have an indication of the ‘504 patent’s validity sooner rather than later. The new inter partes review process the EFF will be using mandates a final USPTO ruling on the issue of validity within one year after the proceeding is initiated (a maximum of 18 months with a showing of “good cause”). In the world where slow courts and backlogged patent offices are the norm, that’s practically instantaneous. We’ll keep an eye on it.

Intertrust Technologies, a software and patent holding company based in Silicon Valley, announced today that it has sued Apple for infringing 15 patents relating to security and “distributed trusting computing.” The allegedly infringing products include the iPhone, iPad, Mac desktops and laptops, Apple TV, iTunes, iCloud, and the App Store. So basically every product and service Apple sells.

Intertrust was founded in 1990 and claims to have a portfolio of over 250 granted patents and another 200 pending patent applications worldwide. At least part of its identity is as a patent holding and licensing company, but it also touts a research and development team, and various subsidiaries developing security software products. However, while that’s all well and good, Intertrust’s very DNA may be what’s most interesting.

In 2003, after several years as a publicly-traded company, Intertrust transformed itself into a private joint-venture owned by Sony, Philips, and Stephens Inc. That’s two tech big shots and an investment bank — a decent formula when creating a patent-licensing business. The only patent infringement case it seems to have pending now is the one it just initiated against Apple in northern California.

Apple is one of the last big holdouts

After a three-year court battle, Intertrust got Microsoft to take a $440 million license in 2004, and well-known companies like Samsung, Motorola, Panasonic, LG, HTC, Nokia, Adobe, and Pioneer are now identified as patent licensees. Even Nest Labs — a small but innovative player in the thermostat industry — is listed as one of its “current portfolio companies.” It’s not clear what that means exactly, but it looks like Apple is one of the last holdouts and Intertrust wants to change that. Some huge players in tech have concluded that there is some value in licensing these patents. While Apple isn’t known for its conformist ways, time will tell if this particular patent portfolio is substantive enough to bring Cupertino into the mix.

Correction: an earlier version of this article indicated that Intertrust had concluded or settled several patent infringement cases over the last decade. However, only its case against Microsoft involved claims of patent infringement. All other patent-related cases were focused on invention ownership.

When you make what is commonly understood to be the best trackpad hardware in the business, and you’re Apple, of course you’re going to patent it. There are a couple of ways to go about doing that: file for a technical utility patent, a design patent, or both. Today Apple was awarded a design patent — US D674,382 — for the look (not functionality) of its trackpad housed within a laptop. While it’s a relatively broad patent as far as design patents go, it has its limitations, and the drawings define exactly what those are.

The patent illustrations make it clear that only the trackpad and adjacent boundary lines of the laptop are displayed with solid lines. That may be the main focus of the patent coverage, but there’s still more to consider. We know Apple’s trackpad hardware is constructed of glass and that’s part of what’s claimed as well — represented by those vertically-angled lines on the surface of the trackpad. Drafting conventions are important in design patent law to help us understand the true scope of a patent, and oblique lines like those are used to represent translucent, highly polished or reflective surfaces. Glass would obviously fit that bill, but so would other similar materials — glass-like polymers, for instance.

Understanding drafting conventions is key to understanding the patent

In addition, there are multiple versions of the trackpad shown in the drawings. Some are presented with a metallic surface over the trackpad, and some with no surface coating at all. Apple has protection for each of those iterations, which could be important if a competitor were to make a glass trackpad (read: touchpad) without an outer coating or layer. This patent might cover that design even though Apple applies a laminate to its actual trackpad products.

Of course, there are a few ways to skirt this particular patent. Apple didn’t get a patent on all trackpads, or even all glass trackpads. For example, competitors could add buttons below or above the trackpad. Other non-infringing designs might include recessing the trackpad, or including a larger (or smaller) gap between the trackpad and the front edge of the laptop or the keyboard. Design patents are useful to capture blatant copies but with a little creativity they’re often easy to work around. This one’s no exception.

The US Patent and Trademark Office issued a new design patent to Apple on electronic page turning last week, and it’s certainly a bizarre one, but it’s not as menacing as some have reported. Apple doesn’t now own the page turn. While US patent D670,713 isn’t exactly a narrow patent, there are some real limitations on what it covers and how it could be used against the competition.

It’s just one representation of a page turn

As with all design patents, we have to look at the drawings, understanding that only the solid lines define the coverage. But there is another consideration in play with this one that we don’t often see: animation. Think of the D’713 patent as a very basic flip book depicting the type of virtual page turn claimed (shown below). It may be tempting to look at all of this as essential to emulating physical page turns on a device, but the patent simply isn’t that broad.

Most of us are familiar with the numerous ways a page in iBooks can be manipulated and folded, but we have to be careful not to confuse what we know about Apple’s software with what this patent covers. The drawings make it clear that the bottom-right corner is being pulled to lead the way and that the paper is folding over at a fairly consistent angle along its length — in contrast to a more drastic corner fold or a turn initiated at another part of the page, for instance. That’s just one way to represent a page turn. One of many.

Apple’s patent is encumbered by those that came before

It’s also important to note that the scope of a design patent is limited by what came before it. In this case, the virtual page turning methods known before the 2010 priority date of the D’713 patent are highly relevant. Patents granted to companies like Microsoft, Adobe, and even Apple, were cited during the USPTO’s examination process and demonstrate that the emulation of physical page turning on electronic devices isn’t new and this patent is necessarily limited by that history. Unless a competitor exactly copies this particular turning animation — and key players like Amazon and Barnes & Noble have not — it’s not likely to be used as a powerful weapon in future litigation. It’s more like a single arrow in Apple’s ever-growing patent quiver, for whatever that’s worth.

There’s been a lot of talk over the last couple of years — especially by Samsung during the course of its recent patent infringement trial — that Apple has obtained design patent coverage on rectangular devices with rounded corners. While that may not have been true before, it is now. The US Patent and Trademark Office issued patent no. D670,286 to Apple yesterday and it really does cover the outer edge shape of a device. There’s no other way to look at it.

As we’ve explained before, the scope of a design patent is defined by the drawings, and the solid lines are what counts —the dashed lines are just there for context. As you can see below, the ‘D286 patent has a lot of gratuitous context but just a single solid line defining what is being protected.

Previous design patents on the iPad and iPhone have included at least one additional feature in solid lines — like the home button, the back surface contour, the bezel shape, the side profile, or the edge-to-edge screen. This one ignores all of that and simply focuses on the shape of that peripheral edge. It’s a broad patent. Really broad. Granted, an argument can be made that the horizontal and vertical lengths of the solid edge line in the drawings limits the patent coverage to a specific proportional design that excludes tablets with different aspect ratios, but you wouldn’t want that to be your primary defense.

It is possible for a patent to be too broad to actually use

Will Apple ever use this patent against its competitors? Maybe, but there’s an inherent downside to asserting a patent like this: it’s vulnerable to invalidity arguments. The narrower a patent is the harder it is to find prior art devices or publications that have everything you need to knock it out. Conversely, the broader the patent the easier it is to come up with something that a judge or jury (or even the patent office) can use to invalidate it. Even though Apple submitted hundreds of prior art documents while this patent was being reviewed by the USPTO, it sure feels like a weapon too fragile for battle. It could very well just be a let’s-see-what-we-can-get patent with no real offensive future. We’ll see.