This morning, Ars Technica is running a story on an odd press release by the company Personal Audio LLC. As has been widely reported, Personal Audio is a company whose business is solely to sue other companies over a series of patents purported to cover all podcasting. They brought a patent lawsuit against Adam Carolla’s podcast about a year ago, and in response Carolla raised over $450,000 to fight back.
Now, as Ars reports, Personal Audio is trying to play up a sob story, claiming that they tried to settle the lawsuit, but Carolla refused to accept the settlement, choosing instead to continue fighting. Personal Audio’s press release suggests that Carolla “continues to raise unneeded money” and suspects that he is continuing “a lawsuit that he no longer needs to defend” for publicity reasons, in a seeming attempt to drum up sympathy for a patent assertion entity.
But there is a very good reason why Adam Carolla is fighting a fight he’s already won. Because he hasn’t actually won yet.
A patent lawsuit generally answers two questions. The most obvious is whether the party being sued infringes the patent (and how much money that is worth). When Personal Audio offered to settle the lawsuit, it was giving up on answering that question.
But the second question is whether the patent is valid at all. And dismissal of the case will never resolve that question. Even if Adam Carolla never paid Personal Audio a penny, the patents would still remain alive and in force, ready to target anyone else that Personal Audio saw fit.
In many ways, this second question on validity is much, much more important, because it affects the whole public. A patent keeps every single member of the public from using an idea, such as podcasting, for the twenty or so years of the patent’s term. If the patent is invalid, then that means that the patent owner wields a wrongful power over all of the United States for two decades. Invalidating a patent, then, is not simply a victory for a single party, but a victory for the whole public.
So when Adam Carolla continues his patent lawsuit with Personal Audio, he is not simply fighting on his own behalf. He is fighting on behalf of the whole public, everyone who makes, uses, and enjoys podcasts. Indeed, Carolla’s fundraiser itself said that the fund “will be raised on the behalf of ALL PODCASTERS AND THEIR FANS.”
Now, Personal Audio says that they just want out of the lawsuit. If they want out, they’ll have to concede on both the infringement and validity questions. It turns out, there is a simple way they can do so: they can ask the Patent Office for permission to rewrite the patent to not cover podcasting. Yes, they can do that: it’s a procedure called reissue, and it is specifically intended to allow a patent owner to fix a patent that covers “more or less than he had a right to claim.” Or they could simply disclaim the patent entirely.
Do I expect Personal Audio to take these steps? Not really. In their very same sob-story press release, they still claim that their patented technologies are “commonly used today in smartphones, tablets and other devices that store and play audio and video files.”
But if Personal Audio is serious about resolving the fight that it instigated in filing its lawsuit, then I challenge them to rewrite their patents. Because they did not simply bring a fight against Adam Carolla. They brought a fight against the entire American public, and that is not a fight we should back down from.