Comments on: Creative wants to make Apple pay

Maker of rival MP3 players says it owns patent for iPod music navigation and plans to "pursue aggressively" royalties.

[lrd123]

CNET= FUD SPREADER

Who's paying CNET to spread this FUD every couple of months? Microsoft??

Oops wait. My XBOX just caught fire. I'll get back you in 5.

[Joe Blow]

Patently Absurd ...

is what I'd call this lawsuit. I worked with one of the authors of the Creative patent, and saw the first prototype Nomad in the Spring of 2000, months before it hit the streets, and it was no iPod, that's for sure - it was damned difficult to navigate, and that alone will probably be amply demonstrated by Apple in the first few minutes of a trial. As the author of a patent that was granted and upheld in a court challenge myself, I can tell you a little bit about How Things Really Work in the U.S. Trademark and Patent Office (USTPO) and the federal courts where these things are decided (there are only a few courts that have jurisdiction over patents, and some have judges better educated in particular technologies than others).

First, as someone pointed out, it does take years for a patent to be decided upon as to whether it gets awarded. Mine took about four and a half years from the date of submission, which was nearly a year after the initial work on the associated technology - the date of the first documented (preferably witnessed by an independent party) work on the design and/or implementation (one technique for accomplishing this is to send a notarized copy of the description of the invention to yourself via certified mail, double-wrapped and sealed, which you then retain, unopened, until it's in the presence of the judge presiding over the case). Note that the description doesn't need to be complete or even represent the final version, it just needs to describe what's unique about the invention.

The next step is to submit an application to the USPTO, which can easily take a year to complete, but if you've done the first step, there's no rush, as patent protection lasts 17 years from the date of issue, not the first description or even implementation (prototype) of the invention. An experienced patent attorney is invaluable in this, but is also expensive, typically around $50,000 for starters, if it's a patentable idea (so much for an even playing field for the individual inventor, huh?). If you have a patent attorney on staff or retainer, so much the better, but not exactly what most companies can afford (but Apple certainly can and does, but I'm not sure about Creative, given its financial situation). When completing the application, you start with your basic claim, in this case, from Creative's patent 6,928,433:

"1. A method of selecting at least one track from a plurality of tracks stored in a computer-readable medium of a portable media player configured to present sequentially a first, second, and third display screen on the display of the media player, the plurality of tracks accessed according to a hierarchy, the hierarchy having a plurality of categories, subcategories, and items respectively in a first, second, and third level of the hierarchy, the method comprising:

selecting a category in the first display screen of the portable media player;

displaying the subcategories belonging to the selected category in a listing presented in the second display screen;

selecting a subcategory in the second display screen;

displaying the items belonging to the selected subcategory in a listing presented in the third display screen; and

accessing at least one track based on a selection made in one of the display screens."

Whew! That's just the first claim - there are 15 MORE! Anyway, you build up your claims like the layers of an onion, starting with the narrowest (most defensible) claim, and working your way out to broader claims. The trick is to get as many claims accepted by the USPTO as possible, and it never hurts to claim too much - they just may not all be granted. I had 52 claims accepted, out of 102 that were claimed in my patent application!

The next step is kind of surprising, in that, after your application is assigned to a patent examiner (typically a kid fresh out of law school, who may or may not have taken any courses in patent law - the government pays so little that they'll hire anyone, pretty much) he/she is required to assist you in the preparation of your patent, including the claims! Yep, as an individual paying the $75 fee (or whatever it may be now, given Congress' largesse in the waistline), you get the same level of support as a corporation paying thousands of bucks for the same submission. However, you gets what you pays fer, and as I indicated, you're usually getting a pretty green lawyer who almost certainly has no background in technology, much less patent law on technology. The name of the game here is Punch-Your-Ticket, where you spend a couple of years processing patent applications, and once you've done your time in Purgatory, then you can go and sell yourself to the highest bidder in Palo Alto (where all of the Silicon Valley's best patent law firms are) or the equivalent for other industries. This is a critical point - the examiners may not be experts in patent law, much less technology, and they tend to side with the patent applicant more often than not. Only in cases where the applicant has shown that none of the prior art (work done on similar inventions) overlaps with the claimed invention, should the patent be granted, but that's like trying to prove a negative - you can't get there from here in terms of pure logic.

OK, so let's say the USPTO has finally granted you a shiny new seven-digit patent number. You've won the lottery and can print money now, right? WRONG! You're only about one percent of the way down the long and ugly path through dismal legal swamps, if you're lucky - it often gets worse. Now, you have to get people to accept your claims and license your invention, sue anyone who even _appears_ to infringe on your shiny new numbered document, and/or get sued by others who dispute your claims. So, getting awarded a patent, although a lot of work, is absolutely no guarantee that it will be licensed or upheld in court (and licensees often will wait to see what happens when, usually not if, someone gets sued, or sues the patent awardee). You can bet your sweet bippy that Apple's legal team is working overtime to build their evidence pile to refute Creative's patent award. So, it's Lawyers in Love for upwards of decades from this point (it took the inventor of the windshield wiper delay circuit about 40 years to win his case against all of the auto makers world-wide, and he was awarded about $30 million, which he wistfully admitted would only be enjoyed by his grandchildren, as he was in his 70s or 80s by then).

So, eventually, the case goes to court, and the judges (since these are almost always appealed) make their "informed" decisions, which sometimes fly in the face of reality and logical reasoning (the reason we have some really bad patent decsions in precedent, and one of the reasons it takes forever to get a decision, good or bad, from a purely logical perspective). It really all comes down to (a) how persuasive a case your high-priced patent attorneys can make (and you'll be paying through the nose for lots of them) and (2) how intelligent the judges are who decide these cases. I forget whether juries are involved in these cases, but if they are, Lord help you, as now your fate rests in the hands of people who have nothing better to do than sit in a courtroom who couldn't even get into the audience of Court TV!

In any case, we won't know the outcome of this case for years, if not decades, in which time Creative and/or Apple could dry up and blow away (you can probably guess who I'd put my money on). In something like 90% of the cases, depending on how things look, one or both parties may eventually seek to settle out of court, and they negotiate to see who will pay whose lawyers' bills, mostly, with any licensing agreement being icing on the cake. The bottom line is, getting awarded a patent is the easy part - successfully defending one or getting a substantial licensing settlement - PRICELESS! (well, actually, there is a price, but at least you don't have to deal with lawyers any more).

All the Best,
Joe Blow

[mgreere]

Look at this pic -- Apple copied themselves

The hierarchical menu arrangement found on the iPod is natural
extension of the Column View found in Mac OS X.

And that Column View is the direct descendant of the Workspace
Manager in NextStep. In fact, it was the principle way of
graphically browsing the files on a volume in the OS.

http://www120.pair.com/mccarthy/nextstep/intro.htmld/
Workspace.html

The Mac OS X version scrolls the column to the right when
necessary (as does the iPod with each selection). (I haven't used
the Workspace Manager.)

What Creative added was the specification that it use metadata
from music files to populate the lists.

Apple was arguably using their own intellectual property when
creating the menu system.

So there is little to no merit to argument that Apple "stole" an
idea from Creative. Creative just beat them to the punch after
the iPod was released.

[Ikthog]

Quick, somebody patent "deriving enjoyment from pre-recorded sound"...

Sadly, Creative doesn't have to prove Apple stole anything, just that it holds a patent on the alleged intellectual property. The ridiculous thing about software patents is that these days, people are essentially patenting ideas, which patents were never intended for. You used to patent a process, a mechanism, an invention, a way of doing something that was unique and not obvious... now you can essentially patent the IDEA of doing it, and it's OK if your patent borrows liberally from a wide range of other, non-patented processes, concepts and conventions. You can still claim, with an air of slight offense, that someone has stolen your IP. That having been said, it's not exactly shocking that Apple is running into patent problems, given that Creative and others created the first MP3 players in the late 90s, and somebody is bound to have patented various mechanisms used therein.

[technewsjunkie]

Creative aims to SLOW Apple's momentum by suing

Mis-using the courts to compete is despicable.

[Gerry77]

Costs Far Less?

I'm glad you're happy with your purchase, but you're taking it a
little all too personal. The Apple iPod is clearly the more desirable
product to the market, Creative sure is whining despite having a
so-called "superior" product apparently.

[Gerry77]

MP3 Player is just that, amen!

I've never really clamored for video capabilities so much from my
portable digital music player... Capacity is what I mostly desire, for
as much music as possible.

[Gerry77]

Not stupid if you purchased what you prefer!

That's the whole point, you're not stupid to buy what you like best.
I like the Apple iPod, I think it's the best out there, but there are
some that criticize it for it's battery life, that it's overpriced, that it
lacks features (4G), but you know what... It really doesn't matter,
it's a personal product that has to please the consumer, and it does
in my case. An amazing mix of technology/style/performance/
engineering and what I want it to do it does well, which is store my
music collection and let me take it anywhere in an enjoyable/
attractive way. Hope you enjoy your unit as much as I enjoy mine!

[Gerry77]

It's more about attacking Creative!

This is more about attacking Creative for their stupid suit. The
Apple iPod is not as hugely succesful BECAUSE of Creative's
technology, Apple has just marketed the tech better and delivered
an item with lots of appeal to it. Creative doesn't deserve the
royalties, they didn't spend the huge marketing/advertising bill to
sell it. They may be entitled to some compensation for having
developed what they did, but it was up to Apple to package and sell
it.

[hergieburbur]

If you wanna talk timing...

If you want to bring timing into it, Creative applied for the Patent in Jan. 2001. Thats 10 months before the iPod originally debuted. They just failed to market correctly and are now paying the price though they have in my opinion superior value for the money.

[rslc]

An Example of Patent Law Flaw

A patent for something so common sense??
Its something that everyone in mp3
biz would think of and will do.

This is a good example of patent law flaws.

And no, im not a supporter of either creative
or ipod.

[darrius3365]

Apple wanted the patent

When you bash Creative for applying for the patent (for something so "common sense" and "broad"), remember that Apple applied for it as well.

[jdmills]

BS. Ever tried to use a Creative mp3 player?

The iPod interface is in a world beyond that of every single product
Creative has ever put out. Apple's is 1000x easier to use, I don't
see how they even fall under the same patent. Apple mopped the
floor with Creative long ago, this is an act of vindictive jealousy.

[darrius3365]

re:

Although the button set-up on the two companies' devices are different, the graphical user interface on the two devices are remarkably similar. I don't particularly care about this whole lawsuit or patent war, inasmuch as both companies applied for it and it is almost inevitable to make a digital music device without this hieriarchical(sp?) structure.

I am speaking from the vantage point of a Creative Nomad Jukebox Zen NX. It's buttons are similar to those on a portable CD player with actual text on buttons. I don't understand why people would judge this as "difficult to use."

[lrd123]

Amen to that!

You're aboslutley right! I tried a Zen at Bestbuy and piece of crap pretty much describes it! On;y people with a dislike for Apple products would be naive enough to buy one.

[nightveil]

Yep.

I have a Creative Zen Xtra (30GB model). I have no problem using
it. The scroll wheel/button is effective and the other buttons are
easy to get to when it's on my belt.

The interface is simple enough and well-labeled. A quick perusal
will show what each section is for and what can be done. I
learned the basic functions in about five to ten minutes and
figured out the rest of them as I went along.

While the suit is pretty much moot at this point, the Creative
product is a very solid one for the money.

[Preciouzpnjbn]

I own a Creative zen

Apple Ipod is something I would most likely not consider... I don't care what it said in the article.. But i have a creative zen micro and i think its perfect... My dad gets a lot of ipods at the store because they have some problems with them (including battery failure).. and unfortunately, you really can't get to the battery itself!! If ur warratny is over, you need to send it to the comnpany and you will be charged an abundant amount of money for getting it fixed and for the new parts placed in it.. Many people buy the ipod because another person has it.. I try to be different and think over my choices well.. Ipod is almost in every household like Dell computers are.. People need to think outside the box and get whats best for them.. People buy mp4/mp3 players only to watch videos or listen to music.. So what's the point of spending so much money on an ipod? Anyways, I'm done with what I had to say.. I think people need to do some research before blurting out their opinions about products. and as for the whole patent thing, its business, its competition, trust me cuz i know and experience it.. The consumer just needs to get on with what they're "supposed" to do which is shop for products and leave the patent stuff for the companies to figure out.. take care everyone.. and thanks for taking the time out of your life to read this comment...

[OS11]

Wow, Mandeep, so many errors!

You sure can pack a bunch of errors in a small space. Technically the iPod is by far the most reliable MP3 player on the market. That's a Fact.

You must be forgetting Apple sells around 65,000 iPods every 24 hours, so sure, there will be 5 or 10 that are damaged in shipment or abused by a young child. But by and large, the iPod is the best thing going.

As for Batteries, the iPod is so reliable since it's a self contained unit. Battery life is the longest in iPods because of this. In 4 or 5 years it's SUPER EASY to replace any iPod battery, just pop the back and slide out the old battery, slide in a new one. There is NO REASON in the world you have to send it back to Apple. That's Absurd! Because of Volume, iPod batteries are also the cheapest of any MP3 player. Most are around $20, or about $5 a year, try that on a Zen!

Lastly, people that THINK differently get an iPod, the "followers" choose Zen. iPods are like Snowflakes, no two are the same.

So when you move up to the iPod, you will understand what all the excitement is about. Take care until then.

http://www.apple.com/ipod/

[thedevilbegone]

That was good.

I personally feel iPod is the most overpriced device. Also the number of issues arising out of it are huge. Especially the new itunes software which is crap and trying to ensure their share of the music market.

I was considering a Zen device myself. Could you let me know how its navigation goes? Is it really that simple?

[jmmejzz]

Prior Art

I can't imagine how this got patented but this method of navigation goes back to when computers were introduced to the automotive industry in the 70's & 80's, exactly the same type of navigation for a specific car as for a specific song.

[System Tyrant]

Patents.

Did you know that Patent law is the only thing lawyers can actually specialize in (actually get a degree in).

I guess it's the new business model. Patent every stupid idea you can think of and then when somebody comes close to having anything simular to your patent sue to make a living.

I think what this shows is how sad a state our patent system is in. Of course our government will fix it. They will make sure it screws everybody who makes under a billion dollars a year.

I personally think they need to toss the patent system and start from scratch. They need a way to categorize and search patents that actually works in an effeciant manner and they need to make sure software isn't patentable in any form.

Yes I realize that software patents do have legit application, but look at the mess it has turned the software business into. We survived without software patents before and we will do just fine without them now. Copyrights work just fine.

***
I just want to say my heart goes out to the family and friends of Richard Pryor who has passed away. I really liked him.

[VI Joker]

Re: Patents

While patents can be useful to protect and idea that is the basis of product a company is trying to sell. It should not be used a business model for making companies profitable. The resent rash of lawsuits shows that the current patent system is not capable of handling the software industry. I do not think that starting from scratch, or just not having software patents is the way to go. The system needs to catch up with the technology and soon. Not just to deal with the big companies file lawsuits against each other but to give the smaller companies and individuals a chance to actually bring something to market without a large company using their cash reserves to say "I have a patent for that. Pay up or get a new idea." Regardless if you are for iPod or Zen, would you rather have a market that is just comprised of large companies or a market that has as may options and innovations as possible?

universal

Patenting this menu access is like patenting the dewey-decimal
system. It's just a folder menu tree, nothing special. It's no
surprise, however, that creative is only now going after it when
someone else has made millions where they can't.

[BlinkMM182]

ummm.

Maybe you forgot the fact the Apple was campaigning for the patent too. It's amazing. If Apple won the patent, this wouldnt even be a story and everyone here would be nodding going "cool" like blind sheep. heh.

The only thing worse then Apple fanboys/appoligists are Iraq war apologists.

[johnqh]

Might be a valid patent

As much I love iPod, this is a valid patent.

Navigation menu was not new. Building a navigation menu based on ID3 tag (album, artist....) was new at that time. Creative certainly has the right to patent it.

Of course, Apple will try to invalidate it - however, "prior art" is unlikely a good defense because there wasn't any portable music player like it before that, and I assume the patent is specifically for music players.

However, Apple can argue on the ground of "obvious". If Apple can collect evidence that website were using this kind of navigation, or even KTV systems, then they can argue it is very obvious to anyone in the field to move the navigation from a website or KTV system to portable music player.

I am pretty sure I have seen KTV with navigation based on artist, album.... and so on, so I would suggest Apple to look into that.

There were several comments about the timeline - a company or a person can apply for patent within one year the invention is put into use, and once it is filed, it is "patent pending" and has protection. If the patent is valid, Creative CAN ask Apple (and any other companies) for back royalties during the patent pending period.

And stop attacking Creative for protecting their patent. Any tech company would do the same. Apple would do the same.

If you really feel the patent was obvious and should not be granted, read about the patent and understand what it is about first (hint, it is NOT about heriarchical navigation). It is really boring reading. Understand it, and then list SPECIFIC similiar things (whether it is a portable music player, PDA, website, KTV, or anything related to music) you have seen before 2000.

[Sonicsands]

valid patent? only legally, perhaps

The patent system, particularly the US one, allows rather non-creative, uninventive, paper-wasting patents. Menu navigation is a perfect example. No matter how you disguise it; no matter whether it has legal standing as a patent; it is patently stupid to call it an invention.

That Creative might be able to blackmail Apple on this is sad. That NTP is blackmailing RIM on something similar is even worse. Of course, Apple has its share of similar patents as well.

[coffee4binky]

What you've written.

Can you prove any of what you've written about Sony BMG and EMI
and all of that stuff?

Please, provide some links or proof. Even claiming it in a chatroom
is fine.

[Dazabrit]

Front Row

Maybe it's time for a change.

Im sure Apple could develop their own alternative navigation system for their digital devices. I think a 'Front Row'-like menu would be nice too.