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March 18, 2009


Discovery Communications, parent of the Discovery Channel and Animal Planet, has asserted 7,298,851 against Amazon's Kindle electronic reader. '851 was filed in September 1999, a CIP, and issued November 2007. A goodly amount of cited art. The '851 claims are rather well drafted, with many various dependent claims, but are nonetheless open to obviousness attack. Owing to the popularity of the device, the press will be following what is otherwise a mundane case. Suit filed in Delaware, Discovery's home turf.

Decent coverage at cnet, though the writer is, as is apparent, a patent novice. More mysterious is Matt Buchanan fretting over whether Discovery is a patent troll. Lay off the religious Kool-Aid, Matt.

Posted by Patent Hawk at March 18, 2009 3:10 PM | Litigation


And then came Bilski... The claims are all method claims. There is no physical machine recited, and there doesn't appear to be a physical transformation -- just manipulating bits to encrypt electronic data. To wit:

1. A method for encrypting, sending and receiving electronic books upon demand, comprising:

creating a list of titles of available electronic books;

transmitting the list of titles of available electronic books;

selecting a title from the transmitted list of titles;

communicating the selected title to an electronic book source;

supplying a selected electronic book corresponding to the selected title to be encrypted;

supplying an encryption key;

encrypting the selected electronic book using the encryption key;

supplying the encrypted selected electronic book;

supplying a decryption key; and

decrypting the encrypted selected electronic book using the decryption key.

Posted by: kk at March 18, 2009 5:33 PM

kk - Scroll down to claim 96

96. An electronic book viewer for receiving an electronic book from a sending party, and for storing and displaying the electronic book, comprising:

a receiver, wherein the receiver:
receives a created, transmitted list of titles of available electronic books, wherein an electronic book is available if text associated with the electronic book is available for transmission;
selects a title from the transmitted list of titles;
communicates the selected title;
and receives transmitted text associated with the selected title as encrypted electronic books and encryption information;

a memory coupled to the receiver that stores the encrypted electronic books and the encryption information;

a processor coupled to the memory that processes the encryption information using an encryption/decryption algorithm, wherein the processor comprises:
a key generator that generates encryption and decryption keys;

and a transmitter coupled to the processor that sends encryption information to the sending party,
wherein the encryption information includes information that allows encryption and decryption of the electronic book and encryption and decryption of encryption and decryption keys.

Posted by: Mr. Platinum at March 18, 2009 6:04 PM

Bilski was stupid, but it wasn't the end of method claims as we know it.

The method claim should withstand a 101 challenge. The book is transformed in the process.

Posted by: Patent Hawk at March 18, 2009 6:11 PM

Method claim one may not be infringed under joint actor doctrine.

Posted by: aa jr at March 18, 2009 7:34 PM

My mistake. In my flick of the scroll wheel, I missed those 20 claims within the 170 some odd claims in the application.

I agree completely that Bilski was stupid. I don't think that the bulk of these method claims would withstand a challenge, however. Sadly, to the Federal Circuit, there is no physical book. It's all just 1s and 0s.

Posted by: kk at March 18, 2009 9:48 PM

Nominally, Claim 96 is a machine claim, but in reality every element is limited by a method step. Just another method claim in machine clothing.

Bilski and Nuijten should shred this thing.

Or 112-2.
"a memory coupled to the receiver that stores the encrypted electronic books and the encryption information;" ???? To what does "that" refer -- memory or receiver?

"and a transmitter coupled to the processor that sends encryption information to the sending party," Does "that" refer to transmitter or processor?

I mean, come'on -- this screw up is laughable.

Whoever wrote these claims needs to go back and reconsider whether God really called him/her to this profession. Apparently the claims were drafted to give the company litigators something to do. The examiner's eyes glazed over at the thought of actually having to read 171 claims like this one and he/she quietly passed the application on to the issue dept. to let the court sort it all out later, which is what the court is going to do. Go short on Discovery.

Posted by: Babel Boy at March 19, 2009 8:24 AM

I'm a big supporter of patents...but for no fewer than the reasons listed above by others, this one's D.O.A.


The million+ dollars this fight'll cost them could have been better spent "discovering" something actually worthwhile...

Posted by: Steve M at March 19, 2009 7:31 PM

Fortunately there is at least a prosecution process to avoid the inept condescension you share with so many lay judges about what innovation is "actually worthwhile."

Posted by: anony at March 20, 2009 2:16 PM