Jack,
I invest (speculate really) in the stock of companies who are
involved in significant patent lawsuits. GIFT is one good example.
My investing is done after thoroughly researching the lawsuit.
The purpose of this post is twofold. First, if anyone knows of
stocks to research and invest in, please let me know (I am happy to share the results). Second, I hope to spur a discussion on the merits of the GIFT lawsuit, to help bring more information to light. Since we all benefit by sharing information, I particularly hope those with
opposing viewpoints or contrary facts will respond.
GIFT needs to do two things to win their lawsuit. They must
prove infringement, and they must defend against a challenge of
invalidity. Earlier posts of mine discuss the burden of proof etc
relating to invalidity. I won't repeat them, but if anyone knows
of prior art which might invalidate the patent, please post it.
This post relates to infringement. The article posted by Jose
(and several other articles) bring up three likely issues to be
contested in the infringement part of the lawsuit. They are 1) is
a user's computer an "information manufacturing machine" which
resides at a "point of sale location"? 2) Is a computer hard
drive (or permanent storage medium) a material object? 3) Do the
defendants use "authorization codes" in the downloading of
information? GIFT must prevail on all three issues to win the
lawsuit. My thoughts follow. The uppercase portions are quotes
from the Freeney patent.
1) What does "point of sale location" mean?
I can't see how the phrase could be interpreted to exclude a
pc in a buyers home. The patent describes point of sale as being
a retailer and, with respect to cable TV, THE TELEVISION TYPE
INFORMATION ONLY WAS DELIVERED TO THE CONSUMER AT THE CONSUMER'S
HOME (POINT OF SALE LOCATION). Clearly the home is a point of sale
location, as used in the patent.
2) Does the computer's permanent storage medium qualifies as a
"material object,"
Freeney explicitly considered computer programs (along with audio
etc.), and said THE TERM "MATERIAL OBJECT" AS USED HEREIN MEANS A
MEDIUM OR DEVICE IN WHICH INFORMATION CAN BE EMBODIED OR FIXED AND
FROM WHICH THE INFORMATION EMBODIED THEREIN CAN BE PERCEIVED,
REPRODUCED, USED OR OTHERWISE COMMUNICATED, EITHER DIRECTLY OR WITH
THE AID OF ANOTHER MACHINE OR DEVICE. ... BY WAY OF ANOTHER
EXAMPLE, A FLOPPY DISK IS A MATERIAL OBJECT IN WHICH INFORMATION IN
THE FORM OF PROGRAMS CAN BE FIXED AND THE PROGRAM SO EMBODIED IN
THE FLOPPY DISK CAN BE USED WITH A MACHINE OR COMPUTER ADAPTED TO
ACCEPT THE FLOPPY DISK INPUT AND USE THE PROGRAM (INFORMATION)
EMBODIED THEREIN. It is unlikely a floppy disk is a material object
while a hard drive is not.
3) Do the defendants use "authorization codes?"
What is an authorization code? The patent only speaks of encoded
authorization codes which identify the product and give the "OK" to
download. THE ENCODED CATALOG CODE AND THE IMM CODE COMPRISING THE
AUTHORIZATION CODE. The catalog code identifies the product and
the IMM code identifies the location of the sale. All internet
sales must have a product identifier and a recipient address. The
real question is are they encoded as used in the patent.
If a seller uses encryption to order, then clearly there is an
encoded authorization code. if the sale is not encrypted, then
one can argue that the conversion of data to a digital format is
encoding. However, this is not as strong of an argument. Also,
the claim does not say an authorization code must be encoded. I
think the stronger argument is any transmission that gives the OK
to download is an authorization code.
However, in case I'm wrong, I'd like to know what percentage of
compuserve's (and other defendants) sales are encrypted. Any
ideas?
GRC
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