Commentary: Far Too Early to Evalulate Possible ‘Peregrine’ PPV Patent
July 19th, 2007 by Benjamin Duranske
This is going to be a short post because there’s really not enough information out there to justify the hand-wringing that is going on right now about this issue. Apparently someone, maybe ‘FlipperPA Peregrin,’ has applied for a patent, possibly, on something that might have to do with pay-per-video in a virtual world, maybe Second Life. Or maybe not.
Given the almost total lack of information on this maybe-filed patent application, there’s an awful lot of noise right now.
I’d not usually cover what may well end up being a non-story, but this one is fairly close to home. I’m a patent litigator who is pretty familiar with the patent application process, and I’m going to tell you that none of it means anything at this point, even if all the speculation about the application is true.
Patent law is notoriously complex, but here are the five things you need to know about this issue:
First, the fact that a patent has been applied for does not mean one will be granted. According to the USPTO, in 2006, only about 54% of the patent applications reviewed were granted.
Second, while patent applications are pending, they are sometimes amended significantly, and they are sometimes abandoned.
Third, as a result of amendments, when a patent is granted, its coverage is often less than originally sought.
Fourth, patent applications aren’t generally made public until 18 months after application. It’s going to be a while before we have any idea what was originally claimed.
Fifth, to get a patent at all, the claimed invention must be “novel” in light of the “prior art. ” I’ll leave that analysis on the table for readers. Don’t be sad, think of it like Picture Pages.
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4 Responses to “Commentary: Far Too Early to Evalulate Possible ‘Peregrine’ PPV Patent”
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wrt your fourth point, as it turns out, the lack of information may also mean that a patent was filed back in 2005 when video first became available… and when systems similar to what I *believe* is being discussed first appeared in the XXX systems the popped up in SL.
Here’s the fun part. Let’s say this patent goes through. Let’s further assume that the patent holder was *not* involved in the other systems that might qualify as prior art, and that someone out there – some Anonymous coder – was using his method to deliver pornographic content (perhaps violating copyright in the process).
Does this person come forward? Do they get rooted out? This could be interesting for other reasons as well.
My first thought was porn, too. And with any luck, that’s the only time in my life I’ll type that exact sentence.
Benjamin, I don’t *make* the noise, I *report on it*, so your condescending little muets here are out of order. I only blogged about it after getting dozens of people sending me links and Twitters and notecards and speculation and *set up the questions that need to be asked*. That’s more than fine; there’s nothing illegitimate about it. Or do you believe that societies and media should only be run by cautious lawyers who only publish information after they’ve weighed whether there is news in their view?
Because this is the second time you’ve weighed in with a very ominous concept — that what you as a cautious and very constrained RL lawyer should get to decide what is news, and when is news, and elevate yourself to guru status in this regard.
Sorry, but that’s bunk. Just as the raid on Lisae Boucher’s porn was news — and news the public had a right to know as it indicated Linden raising of the bar on the standards for “broadly offensive”, so it is news when FlipperPAY tries a gambit like this.
We all know that patents are pending. The broad public isn’t as stupid as you imagine. That’s why so many gimcrack plasting pieces of junk say “patent pending” on them. We all know that these things take time, that it’s just a maneuver. That likely the only thing it’s calculated to do is to put some fear into competitors, possibly less resourced with “crack lawyers” and the FIC at their back, so that they don’t attempt to poach or encroach on this territory now carved out by what amounts to a dog pissing along its borders.
And seriously, you still aren’t grasping what is at issue. It’s not whether the gambit can succeed, or even that it is tried. It’s that a supposedly altruistic coder living by the ethos of making code for public utilities always open to the public, or at least the small community of coders with skills, has openly broken faith with that code. Those sorts of moral codes or beliefs or situational ethics or whatever are as important as law.
[...] Since there weren’t any facts to analyze when this hit the bitstream (and still aren’t) VB provided only general comments. Here’s a quick recap: lots can change between application and issuance. And in any case, there’s nothing to analyze here. Virtual World PPV’s application might be an overbroad joke or it might legitimately cover some cool new invention. Nobody knows, and nobody will for a while, because it hasn’t been published. [...]