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Fed. Cir. Invalidates Live TV Patent for Indefiniteness

By Mark Wilson, Esq. on May 12, 2015 | Last updated on March 21, 2019

In September 1997, the patent office issued Patent No. 5,663,757, which allows software to add interactive elements to a live television broadcast; for example, by allowing "impulse purchase transactions with immediate payment." So, basically, you can buy what you see on TV.

In 1997, there was no such thing as a smartphone. But the current holder of that patent, EON Corp. IP Holdings, claimed that watching live TV on a smartphone is the "modern iteration of that patent." And so, they sued AT&T, Sprint, Qualcomm, and so on.

TV on Your Phone? Is It 2010 Already?

The litigation relates to the failed "FLO TV" service, formerly known as MediaFLO, which allowed consumers to watch live, local broadcast TV on their smartphones. It's an idea that seems commonplace now -- or at least appropriate, but as Gigaom points out, FLO TV's problem was that it was ahead of its time: "FLO TV launched at a time when most consumers were still getting used to having the Internet on their mobile handsets, let alone viewing broadcast television." Additionally, as the success of Hulu and Netflix teach us, consumers don't want to watch live broadcast TV on their phones.

EON claimed that its patent applied as means-plus-function claims, but in situations of computer software, a claimant has to do more than claim the patent applies because it specifies "a general-purpose computer or microprocessor."

Unfortunately for EON, the most specific its patent gets is that it mentions a "microprocessor." Nevertheless, it claimed the Katz exception, which allows a microprocessor to serve as a structure for any "functions [that] can be achieved by any general purpose computer without special programming."

As you might expect, that leaves patents open for abuse where the only structure is basically a general purpose computer, and the Federal Circuit wasn't willing to honor that exception here. In order for EON to succeed, it would have to show that there was some other special algorithm involved in its specification that goes beyond merely operating software on a computer.

Lack of Specificity

You see where this is going, right? EON, of course, couldn't point to anything in the patent itself that would lend credence to the idea that its patent was anything more than a general purpose computing patent. In fact, its own expert belied its argument when he testified that "a person skilled in the art would need to consult algorithms outside the specification to implement the claimed functions."

Finding that the patent's asserted claims of performing software functions with a microprocessor, without anything more, were too indefinite, the Federal Circuit upheld the district court's ruling that the patent was invalid. That would have been a boon for FLO TV -- if it were still around, of course.

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