Anyone who knows me knows I’m not a fan of Patent Trolls. Actually, there are only a few areas in which Im a fan of patents at all. The lawsuits filed against Magnolia (and Apple, Amazon and Weinstein Companies) are perfect examples of why. In this case a company was able to get a patent on the downloading of movies over cellular networks , but only for movies that have not been released in theaters yet.
Could there be a more ridiculous patent ever issued ?
Follow the logic here. If Magnolia, which distributes movies and pioneered the release of movies before they are in theaters, something we called UltraVOD and have done since 2004 , decides to make movies available for download via cellular to mobile devices, we have not violated the patent. IT IS ONLY WHEN WE DECIDE TO SHOW THAT MOVIE IN A THEATER that we have violated the Patent. Huh ?
Does that make any sense to anyone ?
Here is what makes it even crazier. You have to own the rights to the movie before you can decide its distribution strategy. In the movie business, its difficult to sell a movie before its theatrical release simply because none of the big theater chains will release a movie that has already been released on other platforms, whether cellular, download, VOD, whatever. THere are some independent theaters that will. Magnolia is able to do it because we also own the Landmark Theater Chain and we can work with the independents to expand the theatrical distribution.
When you look at the VOD or PPV or on Amazon or ITunes and see “Before its in theaters” movies for sale or rent or PPV, that is a category that we created and grew to where it is today.
This patent is not protecting a business the Troll came up with. Its not protecting an invention they created. They were not operating in this business in any way shape or form that i can find. They simply took the obvious idea that if movies can be downloaded and released via the internet, they same thing will happen via cellular data. And they probably noticed what we were doing back in 2004 and decided to try to patent it. Well they got the patent. Amazingl
The following is from the complaint.
1. This is a patent infringement action by Red Pine against Amazon, an online retailer and manufacturer, and Magnolia, a movie distributor. As detailed below, Red Pine has been harmed by Amazon’s and Magnolia’s unlawful use of Red Pine’s patents for commercial purposes.
II. JURISDICTION AND VENUE
2. This action arises under the patent laws of the United States, 35 U.S.C. §§ 101 et seq. This court therefore has subject matter jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1338(a).
3. This Court may exercise personal jurisdiction over Amazon and Magnolia pursuant to the Illinois long-arm statute, 735 ILCS § 5/2-209. Amazon and Magnolia conduct continuous and systematic business in Illinois and this District. For example, Amazon sells the
Case: 1:14-cv-00274 Document #: 1 Filed: 01/15/14 Page 2 of 7 PageID #:2
Kindle Fire, a tablet computer, in this District. The Kindle Fire allows users to download and view feature length films like Best Man Down before the films are publicly available to view in movie theaters or on DVD. As will be described below, these patent-infringement claims arise directly from Amazon’s and Magnolia’s continuous and systematic activity in this District. This Court’s exercise of jurisdiction over Amazon and Magnolia would thus be consistent with 735 ILCS § 5/2-209, and traditional notions of fair play and substantial justice.
4. Venue is proper under 28 U.S.C. §§ 1391(b)(3) and 1400(b).
III. PARTIES
Plaintiff
5. Red Pine is a limited liability company organized under the laws of Nevada. Red Pine’s principal place of business is located in Wadsworth, Ohio.
if you have any insights or thoughts into Red Pine and their lawyers I would love to hear them.Below are the patents and the complaints.
Lastly – If anyone has any contacts over at Google we strategically made our relationship non-exclusive with our patent team and have the ability to go direct for an acquisition deal which would make the most sense for everyone. Why fight, threaten and sue when we can all just get along. We’d be looking at low 8 figures so it would be worth the effort for anyone involved. Feel free to contact us directly – and yes Mark will get his due…after all it’s his blog 🙂 Have a great day…716.292.6975.
Comment by Kevin Upton -
Unbelievable…
Comment by itsastartup -
Troll back with 15 U.S.C. § 45 and kill them with fire, then maybe sue their lawyers. What a beautiful message it would send to the future generations of patent leeches.
Comment by luminoplastics -
Starting around 2004 I think it was, I found myself with a very sizeable amount of internet traffic. I had a patent troll company called “Acacia” “Acacia Research Corporations” “Acacia Research Group” send me harassing and threatening letters for a few years trying to get 5% of my gross revenue claiming that I was infringing upon their patented “DMT” video technology. I tossed their mail in the trash and stopped even reading them after the first couple packages I got.
Comment by Billdo O'Reilly -
Whenever patents are filed, not to protect legitimate ingenuity, but rather, to head off that ingenuity or, as here, attach to it parasitically, then the patent laws need to evolve. They can evolve and its great to see someone like Mark highlighting the issue. https://longislandcriminallawfirm.com
Comment by edpalermo13 -
Mark: At issue is the fact that you’re successful and have money. Our system has become have-nots trying to get rich quick by fleecing others or taking from others. Unfortunately, they have a lot of help from people we elect to be our “representatives” (No, they are not my leaders.). Congratulations—-you’ve done so well, you’re a target for bums to shoot at.
Comment by dcangelo -
If you or someone else was doing it before he patented it then there is no way his patent is going to hold up in court.
Comment by Clayton Williams -
just a friendly fyi, that’s simply not entirely true….. if someone had an earlier filing date, that’s more of a slam dunk……
Comment by nypbbob -
It seems to me that a restraint of trade counter-suit is in order here. Good Luck, Mark!
Comment by Denis Perreault -
Pingback: 5 Patents Aimed at the Future of Entertainment – JUANMONEGRO.COM
Pingback: 5 Patents Aimed at the Future of Entertainment | TheJusticeTeam
Pingback: 5 Patents Aimed at the Future of Entertainment | Arrington Law Firm Blog
very nice………
Cranes for sales
Comment by John Nypl -
That has to be an aggravating issue to deal with. I’m curious if the function in which you’re exploring is about pre-selling. I’ve been researching the online documentary market for a long time and I cannot find any solid data. If a documentary project has a budget of 250k and is an appealing film. I need to find a good source of distribution and strategy. I’d really like to exchange information with some people with experience in this. Hit me Back!!
Comment by Keith Hayon (@KeithHayon) -
Claim 1 of the ‘601 patent recites “wirelessly … downloading … the FLM to the HPEDs”, and further recites that “the FLM is downloaded to the HPEDs such that the FLM plays on the HPEDs at times decided by the individuals viewing the FLM”.
That is, the claim specifically recites that “the FLM is downloaded to the HPEDs *such that* the FLM plays on the HPEDs at times decided by the individuals” (emphasis added). There is an argument that the phrase “such that” is amenable to multiple constructions. For example, there is an argument that it could be used either to express a purpose (e.g. “the podcast is downloaded such that it can be played later”) or to express a result (e.g. “the podcast is downloaded such that it plays once downloading is complete”). Here, however, there is a strong argument that the plain language of the claim makes it clear which construction is appropriate, as the claim does not recite that the FLM is downloaded to the HPEDs such that the FLM *can be played* on the HPEDs, which might imply that there is not necessarily any causation. Instead, the claim recites that the FLM is downloaded *such that* the FLM *plays* on the HPEDs at times decided by individuals.
Thus, there is a strong argument that the plain language of the claim clearly denotes causation, i.e. denotes that the act of downloading the FLMs causes (e.g. automatically effects) playing of the FLM on the HPEDs (at times decided by individuals).
Importantly, there is a strong argument that this interpretation based on the plain language of the claim is not only perfectly in accord with, but is in fact reinforced by, the specification. The specification sets forth that a “user can [] designate a specific time to watch [a] movie on, after, or before the release date”, and further specifies that the “user can be sent … a message or notice before the designated time as a reminder that the feature length movie will begin to play at the designated time”. The ‘601 Patent, col. 18, lines 31-37. The specification elaborates that “[a]t this designated time, the feature length movie can be automatically sent or broadcast to the HPED”. The ‘601 Patent, col. 18, lines 37-39.
Thus, the specification discloses the functionality where a user designates a specific time to watch a movie before the release date, and the feature length movie is downloaded such that it begins to play at that designated time. There is a strong argument that this reinforces the causation denoted by the plain language of the claim, making it clear that an FLM is downloaded in a way that causes the FLM to play at a designated time decided by an individual.
I highly doubt Magnolia is effecting downloading of movies such that they automatically play at a designated time decided by an individual.
Comment by Jeremy Doerre -
Your attorneys are no doubt all over this already, but there is an almost six month delay between the petition to revive in the application that issued as the ‘048 patent and the petition to revive in the application that issued as the ‘601 patent. The applicable petition asserts that this entire delay was unintentional. It’s certainly possible that the entire delay was unintentional, but I’d be very curious what the explanation for the delay ends up being. Notably, asserting that a delay was unintentional when you know that it was not represents inequitable conduct, which is grounds to render a patent obtained as a result of the inequitable conduct unenforceable. It also is an ethical violation for a patent attorney and potentially grounds for losing your USPTO registration and law license.
Comment by Jeremy Doerre -
get em cuba
Comment by Stanley Cohen -
Hope all goes well in sui
Comment by charlie135 -
Mark, the more and more I hear about this tripe, the more I realize the need for an “open patent” system along the lines of Creative Commons. It appears somebody tried to get it rolling a while back at http://www.openpatents.org/ but that seems to have gone nowhere.
Seems to me you personally wouldn’t have a problem – in order to protect yourself and your businesses from these scumbags – filing/releasing some sort of document that says “This is our original innovation, we’re establishing our prior use, patent trolls f#$%! off.”
Like Creative Commons, there could be a designation that says, “We’re putting this out there to protect ourselves from patent trolls, and don’t mind other businesses using it.” And another that says, “We’re establishing this as a first line of defense for a proprietary business or product idea, and do plan to protect it using national and international patent laws.”
This would give someone like you who cares more about innovation than using the government to control the market the ability to protect yourself from kleptocratic, litigious leeches… While removing the innovation-destroying negative side effect of the broke-ass traditional patent system. It would also give true innovators a faster, easier way to establish a first line of defense for legitimate innovation.
By making this designation change-friendly, it could even give someone protection just long enough to establish a “first-mover” advantage… After which they could change to a more open designation to allow further innovation on their idea.
And heck – you could even write into the “open patents” rules that the only way to protect any level of restriction beyond the first year is for the innovation to be “in the market.”
Sure, the trolls would still try and find loopholes – that’s the type of scum they are. But it seems like this could go a long way toward providing protection to real innovators without putting too heavy of a burden on future innovators.
Uncle Sam ain’t tryin’ to find a way to fix this broken system – let’s let the market do its magic.
Keep being freakin’ awesome,
Roy Furr
Comment by Roy Furr -
Pingback: So I Got Sued By A Patent Troll Who Thinks They Own Downloading Movies (only before they are released in theaters) over Cellular | http://nomadixnetwork.blogspot.com
Pingback: Mark Cuban Blasts Patent Troll’s Movie Download Lawsuit | Influence Film
I am a longtime actual inventor, best known for Laser Tag (Photon, Dallas 1984). I have
created several products and businesses by using the US patent system as it was
originally intended.
Patents were to incentivize inventors and investors to risk time and money on new and
useful products. They were to give new enterprises a 17 year monopoly, which was
probably an appropriate length of time during the industrial revolution. With todayʼs pace
of technological development, 17 years is way too long (patents now expire 20 years
after the application date).
My latest patent took 4 1/2 years to issue and some of the technology content was
already obsolete. I had to file continuation patents to keep up and they will be somewhat
obsolete when finally issued. Add patent troll, software, and other trivial patent
applications to the mix and you get the current clogged system. The subject movie
download patents took over 7 years to issue.
You should win Mark, prior use is a good argument.
George Carter
http://carterinventions.com/
Comment by George Carter -
i used to love photon !
Comment by markcuban -
The Patent Examiner who allowed the ‘048 Patent to issue read many news articles about distributing movies before theatrical release [just look at the patent itself] and at least one even quoted YOU about the process! See http://www.businessweek.com/stories/2005-07-10/whats-driving-the-box-office-batty
Comment by Daniel Ballard (@ballard_ip) -
For readers interested in some additional info about Red Pine : http://arstechnica.com/tech-policy/2014/01/meet-the-inventor-of-the-week-patent-troll-owns-pre-release-digital-movies/
Comment by Joe Mullin (@joemullin) -
Hey Red Pine…you did not invent anything you just wanted a free ride on the coattails of others hard work…that is not the principle America was founded on…Why doesn’t Red Pine try and make one film or create one original thing themselves and sell it… Classic case of lazy opportunitistic predators, in my opinion…I have seen an instance where someone tried to patent Duke, a famous surfer’s name and likeness…just a regular person with an llc, he tried to sell his patent or trademark for a Monopoly type game…to waste years of his own life in a legal battle that was not upstanding and led to a defeat anyway because it was meritless…Before he died an early death, six months ago, he told me he had tremendous regret for his patent and trademark debauchle…Why do lawyers take these cases?
Comment by Lori Hoeft (@lorihoeft) -
I absolutely hate these kind of trolls. Produce nothing but paper about a system they haven’t built or used. Further as a filmmaker I have a film that we hope to take theatrical may end up having to go another direction which may cause us to run afoul of this person and their silly little patent. Sad indeed. http://www.youtube.com/watch?v=jtCeyKiNeDw
Comment by Mike Stahl -
This is not a copyright issue, nor should that legal angle be taken. Prior use is doable, but only if it was used prior the actual filing date of the patent not when the patent was issued. Mark, there are many ways around this suit. Just don’t do what you tube and hulu did in defense when a company filed suit against them for the use of pre roll ads. They ended up losing and ended up paying as well as the others named in the suit. Do you need the link? You got this.
Comment by nypbbob -
Its not that the patent is a copyright issue. Copyright just goes to the heart of why this should not have been granted. Would love to see the pre roll case. At Broadcast.com we did pre roll video back in 1997.
m
Comment by markcuban -
Mark, I completely agree.
Here’s the run down on the case.
http://gigaom.com/2013/06/21/pre-roll-ads-can-be-patented-appeals-court-rules-in-hulu-case/
The court of appeals document is wrapped into the page.
BTW, you were so ahead of the curve with Broadcast.com, you deserve more credit!!
I’m thanking you each day..
ps- are you following the aereo case? the documents submitted in that case are also very interesting, with copyright being the basis.
Comment by nypbbob -
The culprit is the Federal Court of Appeals.
http://www.washingtonpost.com/blogs/the-switch/wp/2014/01/29/obama-wants-to-fix-the-patent-system-heres-a-crucial-reform-he-overlooked/
Comment by Alok Doshi -
From MC> Exactly !! This is ridiculous on its face ==> Well, the patent “presumes” that they own the material they plan to distribute via the channels provided in their patent claims. If they don’t own it ..well, that’s whole ‘nother ball game. Once they get hit with a suit for infringing the copyright of each and every download they claim to have the right to distribute.. they’ll be dropping their suit with you guys so fast your head will swim. The “proof” in their case against you that they will be asked to provide (number of actions) will be pouring gasoline on the copyright owner case against them…. in their own words …. in federal court. I don’t think these guys are the sharpest pencils in the drawer. J
Comment by SMARTePLANS -
Someone above correctly mentioned the “prior use” defense. I would add that if you have proof of prior use, you can also INVALIDATE that patent. A patent is not valid if the invention was already in existence and being used by someone else prior to the filing date. Any patent attorney will know this. It is elementary.
Comment by DAugustine (@STAugustine0) -
What I’m trying to figure out is how is it they are not infringing upon the copyright of the films? The copyright owner’s rights include distribution .. so how is it they can “distribute” work that is not theirs, which is an infringing act in and of itself? And a patent designed to purposefully infringe upon the lawful distribution rights of multiple copyright holders seems to me to be a hard one to defend in federal court .. but I expect some folks figure it’s worth a shot. “Your honor, I purposefully designed this patent so I could collect royalties for distributing property that does not belong to me.” So, the lawful owners of the copyrighted material could counter-sue for copyright infringement (and per the Napster-type case law in federal courts ) presumably recover damages for each and every act of infringement .. every download?
From MC> Exactly !! This is ridiculous on its face
Comment by SMARTePLANS -
Pingback: Mark Cuban Questions The Sanity Of A New Patent Troll Attacking Film Distribution Strategies « Movie City News
So, crazy conspiracy theory question: could said L.L.C. be owned by a cellular service provider, in an attempt to either double-dip on data usage or force VOD services to enter licensing agreements for their network(s)? Weak example: back when mobile navigation was an additional charge, despite every phone having the ability.
It seems, to me, that they would have the most to gain, with the legal power and money to push the issue.
Comment by jamesonchristopher -
Here’s the largest troll of all http://techcrunch.com/2013/10/31/apple-microsoft-backed-rockstar-consortium-sues-google-samsung-over-7-nortel-patents/
Comment by Adam Tentis -
Just one word: Ridiculous! How could a patent like that be granted in the first place??? Sorry about that, Mark 🙁
Comment by Morganne Lefay -
If you have proof you were using it prior to the 2006 filing date, you have prior use defense – you’ll probably be able to get attorney and court costs back in a countersuit.
Comment by Scott L Hertzog -
I’m not knowledgeable about plaintiff’s attorney, but my thoughts are fuck these guys.
Patents, particularly as they apply to most software and “business methods” are a complete farce these days.
The only potential bright side to things like this suit (or the one against Adam Carolla’s podcast) is that by going after the interests of opinionated people with public personas this might help raise the non-tech public’s awareness of how ridiculous the system currently is (though granted I’m sure it sucks for you personally).
Comment by George McBay -
This is as bad as the guy who trademarked “Nike” as soon as he knew the Olympics would be held in Barcelona… the ultimate parasites. It seems like if there is not yet a precedent, that you’re the man to set one for a case that is defeated because the “infringement” does NOT “harm” the plaintiff. As I was the first person in history to file an FCC complaint against a reality TV show and thus forever changed the laws of disclosure for the contestants and the television viewing audience, YOU should make history by setting a precedent that will quash these unmerited troll cases. Don’t just have it thrown out, DEFEAT it.
Comment by Jacqueline Kelly -
It makes me sick just hearing it…
Comment by Jonathan Chambers (@LeadsChange) -
Mark, you indeed are spot on with the comment “This patent is not protecting a business the Troll came up with. Its not protecting an invention they created…”
Many expected reform would take care of this.
When it’s comes to “downloading”- we live in a streaming world now. Why would a consumer desire to download something? The only reason is for a sense of ownership. This sense of ownership, that comes with downloading, is becoming a fad. If people can watch or listen to whatever they want, when they want, nobody would give a crap about downloading. This where the effort for change should be directed. I know this is where we’ve been focusing our efforts. So the question is— can streaming be more profitable than downloading? That answer is Hell yes. Especially when one FINALLY introduces a business model that is unlike all the copycats in the world.
Side note: have you read about the company who was successful in convincing a court that pre-roll ads were indeed patentable? Look it up, it could shave down litigation or license fees.
With respects,
Bob
Founder
Funn Networks
Comment by nypbbob -
Red Pine was able to get a patent on the downloading of movies over cellular networks , but only for movies that have not been released in theaters yet . Ok , Mark, why not get the proper permits and open up 2 or 3 small storefronts ,and license them as movie theaters and have seating for 4 in each one and release all of the movies for one showing to meet the test of being released in the cinema. Then use UltraVOD as it was developed long ago and those movies that make sense re-release back in the theaters but in a much larger scale than your 2 or 3 demo theaters. In this scenario every film passes the litmus test. This patent sounds so bogus and does not make any sense. Red Pine has taken your model and used legal smoke and mirrors to claim they came up with the idea.
Comment by Sam Diamond -
Ridiculous. Especially frustrating since they aren’t even in the space. It’s hard to determine what all is included in “cellular network”. To get around it, could you just direct users to download the films via a wi-fi connection only? Is that still considered a “cellular network?” Technically I can have no cellular service to a device and still use a wi-fi connection to download content, apps, etc. If that’s an option I’d say do that and tell the patent holder to stuff it. It’s not perfect or ideal but it’s an easy way around it (assuming that is not part of the patent). If I’m able to see content before it’s in the theatre and you tell me I have to download via a wi-fi connection only, I’d still do it. The content is still exclusive and valuable. These days, (in many cases) where would I be downloading a film, and not have access to free wi-fi? Home, airport, airplane, restaurants, some cities, you can get free wi-fi a ton of places. However, I guess the patent would include wireless hotspots provided by cellular networks? Overall sounds like a load of crap.
Comment by Blake Porter -
All I can say is wow!
Sweetly, Taneesha the Diva-Rebel in Charge Rebellious Treats Decadent Desserts with an Edge! Sent from my iPhone 646-541-8171 http://www.rebellioustreats.com
>
Comment by divamom32 -
Knowledgable about plaintiff’s attorney and happy to provide my thoughts.
Jeffrey Drake
Comment by Drake, Jeffrey M. -
what are your thoughts ?
Comment by markcuban -
This has to be infuriating. The USPTO is supposed to “promote the progress of science and the useful arts by securing for limited times to inventors the exclusive right to their respective discoveries.” (Article I, Section 8, Clause 8, of the Constitution), not aiding extortionists. Patent trolls don’t discover anything, and definitely don’t promote “progress of science and useful arts”.
Sorry Mark. Mo’ money, mo’ problems…I guess.
Comment by Stephen Medawar (@stephenmedawar) -
US legal system is your friend, relax and let them do the work …..
Comment by Mark Rittmayer -
Wow. Im speechless. Sic Dan Rathers on em, he will give them a good old fashioned ass kicking.
On a side note loving axs programming keep it up please! Hip hop and Dan Rathers, thats how you mix it up.
Comment by hypocrisyrealized -
It will get thrown out – Waste of your time ! You need to send a message and counter sue them for your cost of attorneys and time .
Comment by Terry Ivie -