Podcasters, beware: a company that owns a patent for the podcasting format may have its sights on you — or at least it is taking on commercial firms that host your work for using technology they’ve legally claimed. Personal Audio has sent numerous letters demanding licenses from podcasters and has sued some high-profile personalities in the podcasting world, like Adam Corolla’s ACE Broadcasting and HowStuffWorks. While the company hasn’t yet cast its litigation net widely, the entertainment personalities and media institutions that have tapped this technology are staggering, from the likes (just type the term in a search engine to see this) of Ellen Degeneres to Mick Jagger, with NPR (think everything from Car Talk to This American Life), the New York Times and the Financial Accounting Standards Board, in there, too. In case you’re wondering, the company also says it has taken a bite out of Apple. Personal Audio, which operates out of an empty office in East Texas, asserts its rights under Patent No. 8,112,504, which it holds. At issue is the patent’s broadly worded Claim 31: “Apparatus for disseminating a series of episodes represented by media files via the Internet as said episodes become available.” As the patent goes on to describe, this includes any podcast uploaded from your computer to the host server over the internet.
How can Personal Audio assert these rights when podcasting has been in existence since 2004? Also, how can it make a claim against Corolla, who began his podcast on Feb. 23, 2009, when Personal Audio filed for its patent on March 4, 2009, and had it issued on Feb. 7, 2012? And should a company that has a shell of an office be allowed to stop me in my basement from podcasting?
The answer may be legally frustrating: Its 2009 patent is a “child” patent of Personal Audio’s earlier 1996 patent, allowing the firm to claim 1996 as the priority date. This essentially is a “submarine” patent, a type which was supposed to be outlawed by the TRIPS agreement. That accord took effect on Jan. 1, 1996, thus, Personal Audio, on face, should be prevented from claiming the latter patent as a child of the former. A decision in the Corolla case may have a chilling effect on podcasting’s growth. The firm, notably on its website, reports that it is litigating further with Apple and it has posted a piece that says — for now — that Personal Audio is taking on hosting companies and not podcasters.