If you love Drax’s Radio Hour, you’ll be glad to know he isn’t going to be sued off the net. Prior to events this week that was a distinct possibility. Unlikely because he isn’t making big money from his podcasts, but very possible.

080 by ʏoni, on Flickr

So, what is the deal? A patent granted by the US Patent & Trademark Office to a company named Personal Audio, LLC muddied the waters on what those of us like Drax could do with podcasting. They held the patent to podcasting. Thus if you distributed a podcast, you were required to have their (the patent holder’s) permission, which usually means you pay them a royalty. If you did not have their permission to use their Intellectual Property, you could be sued. Oh, what fun.

Patent & Trademark law are a significant part of the free market, which has lifted more people out of poverty than any other economic philosophy. But, like anything, people learn how to abuse it. In recent years we have seen the development of patent trolls. These are people or companies that look for things people are doing that are not patented. Then get a patent without developing anything or planning to use the patent for anything other than a lawsuit cash cow. That is legal but an abuse of the idea and purpose of the laws that were intended to promote innovation and invention.

The Electronic Frontier Foundation filed for a review of the patent. In the review the government recognized that podcasting predated the patent by years and revoked parts of the patent. We can podcast now.

See: EFF Busts Podcasting Patent, Invalidating Key Claims at Patent Office. If you are interested in the legal details, see: Electronic Frontier Foundation’s petition for Review of Podcasting Patent.

The problem come out of the chaos of our technology is getting more sophisticated and bureaucrats in the PTO not getting any smarter. This results in things like TV personality and comedian Adam Carolla having to ultimately settle a lawsuit based on the patent held by Personal Audio. Adam spent more than $650,000 defending himself before settling.

Those of us involved in tech look at the PTO and see how ridiculous was their granting of a patent on something already in the public domain (things developed and used by many without anyone filing a patent) for years. By law patents on such things aren’t supposed to be granted. Imagine someone getting a patent on breathing.

We can’t hold the bureaucrats responsible to account. So, Adam is out his bucks and he can’t sue the PTO for their screw up. And no one at PTO is likely to get fired. This is one of the problems with government. Government employees and politicians are generally above the law and we the citizens can’t touch them when they harm us, except in extreme cases. The more things we put in their hands the worse it gets.