The Podcast Patent: Ripping Through, and Ripping Up, the Airwaves

A Texas company is causing a stir with a claim that it has a patent on podcasting, which may lead frightened podcasters to shut down. However, the patent's breadth has led many to challenge it, including the Electronic Frontier Foundation (EFF) and the Berkman Center's Cyberlaw Clinic. 

Jim Logan, through his company, Personal Audio,  appears to be going after podcasters, claiming patent infringement on an idea he invented back in 1996. Personal Audio holds a 1996 patent for a device that  would allow users to select from a variety of audio programs. The 1996 patent contains diagrams of how  such a device might work; Logan claims his patented device is akin to today's podcasting system available on most mobile devices. The patent creates a "negative right" to exclude others from infringing on the patent's activity, and in Logan's case, gives him the ability to stop podcasters in their proverbial audio tracks.

The kicker? Before Personal Audio was able to develop the technology for the device, the company went under and the device was never made. Even though Personal Audio never actually created the device, the 1996 patent application was approved by the United States Patent and Trademark Office and issued in 2001. Personal Audio also holds a 2012 patent, which was filed in 2006. The 2012 patent is similar to the 1996 patent, except that it was amended to include more information about frequently seen functions of modern-day podcasting. The 2012 patent is the patent to which Logan points to in defense of his patent infringement allegations against podcasters.

Logan admits that his original patent did not contain the breadth that it currently claims, but the patent system allowed him to update his patent to include information akin to modern podcasting practices. In a recent interview on NPR's "Planet Money" podcast, Logan acknowledges that he didn't develop the podcast technology on his own, but instead claims he developed the concept of podcasts. His idea was that, someday, you would be able to download audio segments on any topic you wish right to a personal device.

Was the Podcast Patent Non-obvious?

Patents are meant to protect useful and novel ideas -- those ideas and inventions that are not obvious to a person with ordinary skill in the art. This non-obviousness requirement has been the topic of much debate in the past, and the podcast patent has revitalized this debate. Is Logan's patent podcast really a novel or non-obvious idea? When Logan filed for the patent in 1996, technological advances were making leaps and bounds -- can one conclude such a technology was truly non-obvious?

In 1996, mobile devices themselves were arguably imaginable. Even the first palm pilots(those most ancient of pocket computers that seemed to do nearly everything today's mobile devices can do -- except make phone calls -- and were once coveted by the most technologically-savvy) hit the market in 1996. So is it really that far-fetched to envision a future where individuals could make episodes of a radio program easily accessible to the public via downloads to a mobile device?

Further, Logan's original recording that he claims as the world's first podcast was a magazine dictated and recorded on a cassette tape. This technology is now viewed as archaic and outdated. Is a recording in thatform -- someone reading text from a magazine into a microphone, which is then sent to your home on a cassette tape -- even comparable to today's instant, at-your-fingertips downloads available right to your cell phone?

There is an incredible amount of diversity available among podcasts today; you can take your pick from news, science, economics, comedy, andhistory podcasts. It seems that Logan's patents guessed at such developments in diversity among the programming options. The 2012