Patent 5,636,276 describes a process for digitally distributing 'music' - it specifically uses that word. Does this mean that the patent applies exclusively to the distribution of music? Would it not apply to video? Or what if the video has music in it? Or what about audio books - those aren't music, but they are audio 'tracks'. Really, it's just a digital package of information, and it could be books, videos, music, pictures, software - anything. How would a court interpret this word?

  • This seems to be a very seminal patent it its field. Hundreds of patents that came after it cite back to it directly. – George White Sep 14 '13 at 7:11
  • From a technical perspective, the patented process is an overly broad method for distributing music, and never should have been approved, so I imagine it would be cited often as others are trying to avoid infringing it (not an easy task - most just pay the royalty). – Paul Sep 14 '13 at 12:00
  • That mixes unrelated issues. Broadness is a factor of the claims but patents are cited because of their overall "teachings". – George White Sep 14 '13 at 17:29

The core thing the specification and claims talk about is a "music information object". It is not just a bunch of arbitrary bits in that it is specified to contain music and other things related to that music like rights management code and maybe the score of the music. The specification actually has a short section where it essentially defines what the term music information means.

There are two times in the life of the claims when they are interpreted - during examination and during an infringement case. If an examiner found something just like it but for video or digitized paintings or some other creative work with a "rights management" issue, the examiner could have said "the prior art is for digitized painting and from that it would be obvious to do the same thing with music." Also, during exmination the claims are looked at in their broadest reasonable interpretation so arguing that bits were bits could be part of an obviousness rejection argument. This application got past that stage and was granted.

After grant the claims are looked at differently. The patent owner is unlikely to be able to enforce this against something that is not a "music information object". If the inventor thought he could get a patent on any digital representation of a creative work, he should have claimed that. Too late now. Now, is a video with music a music information obect? That might hinge on the prosecution history. If during prosecution there was a rejection based on something that was not particularly music related and the applicant got past it by saying "music, by its nature, is really different from everything else, this invention is only about music" then they are doubly stuck with that interpretation when they go to enforce it.

  • Thank you for the excellent answer. So, if I filed a patent that was identical to this patent, but replaced the word 'music' with 'ebook', the patent office would reject it on grounds that it is 'obvious' to use the process for ebooks? If this is a separate question, I can ask it separately. – Paul Sep 14 '13 at 11:55
  • Yes, it should be rejected. You could respond by showing some unexpected result if there was one. – George White Sep 14 '13 at 17:17
  • How would an 'unexpected result' be defined? – Paul Sep 14 '13 at 18:33
  • It is hard to see how that would apply in this case but it is one way for an applicant to argue that an obviousness rejection is unfounded. Most things seem obvious in hindsight so a way to break through that is to show that people had previously said what you got to work can't possibly work. Or you made a small change that has a big effect. – George White Sep 14 '13 at 19:01

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