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As you might guess from our numerous posts on it,  we’re mesmerized by the antics of Non-Practicing Entity Personal Audio.  For those not familiar with Personal Audio, it was in the news quite a lot last year because it seemed to be suing anyone who was someone in podcasting (mostly over U.S. Patent 8,112,504), including CBS, CNN and the companies behind The Adam Corolla Show (you can find our posts about the Adam Corolla Show here and here).

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Splitting hairs: “Episode” or “Segment”? A key issue in Electronic Frontier Foundation’s inter partes review of Personal Audio’s ‘504 patent is the difference between a ‘segment’ of content versus an ‘episode’. Will it turn out to be a distinction without a difference? (Photo: Tarantula at LA Zoo showing off its wonderful hairiness. We were told by its keeper that the Tarantula liked to “nibble” on its keeper (ouch!) until it eventually got to know the keeper better)

To over simplify a bit, Personal Audio claims to own the patent rights on a method of distributing episodic content, which just so happens to ensnare (or so Personal Audio claims) the activities of many of the most popular podcasters. As we’ve noted before, Personal Audio itself doesn’t appear to offer a product or service under the patent.

In a prior post, we noted that the Patent Trial and Appeal Board (“PTAB”) held oral hearing on Electronic Frontier Foundation’s (“EFF”) petition for inter partes review of Personal Audio’s ‘504 patent on December 17, 2014. In February, the PTAB released the transcript from the December 17 Oral Hearing, which is a sixty-six page monstrosity (link here, go to document #’s 35(transcript)-40 (36-40 are exhibits). But it makes for some interesting reading in places.

As with any patent litigation, the PTAB oral hearing was chock full of intense hair-splitting over the meaning of certain words and terms. For example, a key issue in the Personal Audio case is the meaning of “episode” versus the meaning of “segment”.   According to EFF’s attorney, Nicolas Brown, “what the [‘504] patent describes as an episode is exactly what the CNN reference contains.”

But Personal Audio’s attorney, Michael Femal, argued that there is a demarcation between “episodes” and “segments” and that the CNN reference covers only “segments”, not “episodes.” In response, the Board asked a pretty good question:

So isn’t a series of episodes simply something that is selected by the person making the compilation?

Using Seinfeld and Netflix’s House of Cards as examples, Personal Audio’s attorney argues that segments must be related to one another to be episodes. And, Personal Audio argued, the CNN reference doesn’t cover “episodes.”

Nicolas Brown, EFF’s attorney, did agree that the CNN reference discloses overwriting the old content files as new content is provided.  Mr. Brown went on to explain, though, that one skilled in the art at the relevant time (in the early-mid 1990’s) would understand how to create an updated version of a table of contents for a website with links to a media file, i.e. the “episodes” that Personal Audio claims to be key.

Later, Judge Ward asked:

What about a show like The Twilight Zone, where each show is independent?

Interestingly, Personal Audio’s attorney argued that the Twilight Zone shows are not “necessarily episodic” because “[t]hey are all different”:

One you have people being eaten alive, you know, at a club and another one talking about, you know, some interstellar radiation hitting the earth or something.

As with any hearing, it’s difficult to determine how the Board is leaning just from the questions that the judges posed at the December 17 Oral Hearing. A decision should be on the horizon soon though. An inter partes review is statutorily required to be complete within one year of institution, except that the time may be extended up to six months for good cause. That would mean a decision on the EFF/Personal Audio matter by April 18 (it was instituted on April 18, 2014).

The Board’s decision is likely to affect how vigorously (or not) Personal Audio will try to enforce U.S. Patent No. 8,112,504 in the future.

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