“Patent Bust” of Seer Systems’ Electronic Music Patent Sunk By USPTO Action

San Francisco, CA – October 29, 2010 – The U.S. Patent and Trademark Office has rejected the EFF’s “Patent Busting” re-examination attack on Seer Systems’ patent #5,886,274. According to the EFF’s website, Seer and its ’274 patent were “Wanted by EFF Marshalls” for “Crimes Against the Public Domain; Willful Ignorance of Prior Art; Eggregious Display of Obviousness.” The USPTO disagreed, ruling that the core original claims of the ’274 patent are valid, as are six newly-added claims. From a technical standpoint the entire affair cost Seer only a few minor amendments of wording that rendered three of the original claims in the ‘274 patent no longer necessary.

Founder and Chairman Stanley Jungleib, responds: “Seer’s ‘274 Patent inventing scalable digital audio distribution has now withstood all reasonable tests and challenges. Seer Systems has already settled litigation with Microsoft, Yamaha, and Beatnik. Thanks to EFF this Patent has now received enough attention that no one in the MIDI or audio domain can claim ignorance of its validity and implications. Seer Systems looks forward to licensing responsible customers under fair terms. And, as necessary, we will continue defending our intellectual property consistent with our substantial record.”

Seer’s outside litigation counsel, Alex Weyand of the Weyand Law Firm, San Francisco, commented: “Why the EFF did not contact our client first, and instead chose to learn the hard way, remains a mystery.”

Stanley Jungleib, Chairman

If free speech depends on the judgment and methods of EFF’s current leadership, then they endanger everyone’s freedom.

I began working in music synthesis in 1979, through the next two decades emerging as an acknowledged industry leader who among other things brought to realization the host-based software synthesizer now standard on all computers. Yet, since 2004, EFF has put significant resources into discrediting Seer Systems, its patent, and me personally as part of its campaign on behalf of huge corporations to destroy the legal protections available to the individual inventor, via its ongoing “Patent Busting” project. In early 2009 I demanded that they retract their baseless and defamatory attacks, so far to no avail.

Accusing my single-person company Seer Systems of “threatening small companies trying to innovate,” EFF responded with truly Orwellian logic by aligning itself with Microsoft, Yamaha, Sony, Nokia, the Mayfield Fund, and Beatnik. For the record, founded in 1992, Seer Systems has to now received $1.2M in funding. In contrast, the “small company” Beatnik that Seer supposedly threatens has burned $40M while selling to the entire cell phone industry. Thus, Beatnik is small compared to Seer only in terms of relative success.

EFF claimed that Seer’s patent “could stifle new innovations in online music distribution”. Seer IS the innovator. All that is going on here is industrial competition. On one side is the ultimate extension of Seer’s unique software engine realized in 1995, forged in concert with Opcode through 1996, applied for patent protection in 1997, after detailed rejections granted in 1999, commercially deployed and defended since. On the other side are simply those who, with the benefit of a decade of hindsight, now realize I had a damned good idea.

EFF said that “Enforcement of the illegitimate Seer patent also threatens to compromise at least two public media standards, MPEG4 and XMF.” Those standards are not public: both are protected and controlled by fee-sponsored industry bodies (that is, corporations). MPEG-4 commands strict terms. From the weaker MMA, XMF was simply the rubber-stamped public face of Beatnik’s’ RMF (similar to the way General MIDI 1 was the rubber-stamped public face of Roland’s GS).

EFF has claimed that 274 is illegitimate because of prior art, insisting that “Mr. Jungleib extensively publicized techniques for music distribution in his book, and he did not seek a patent until after the methods entered the public domain.” First, whether I did or did not submit my book to my patent attorneys at the time of application, and what they did or didn’t do with it on what bases are all facts that can only be found in a file to which even I do not have access. So EFF can have no factual basis for this personal attack.

Second (and ignoring their confusion about copyright and public domain), whether the book itself is prior art is not a fact but their predetermined opinion. And it is an opinion which over five years of expert corporate litigation has not been supportable. So where does EFF find expert guidance in these highly technical matters?

From the dubious and disintegrating firm of Day Casebeer Madrid & Batchelder, now distinguished in Silicon Valley intellectual property by having six of its attorneys sanctioned by a U.S. Magistrate judge for withholding evidence in a patent infringement trial! Do EFF members know or simply not care that their leaders bet their reputation on a legal firm considered so corrupt that its founders have been forced to disassociate themselves from it?

Finally, the lady doth protest too much. While crowing of a great victory the simple fact is that in litigation of this order, re-examination is an anticipated, common defensive technique. As well, to refine their claims, inventors may themselves request re-exams.

So, Seer’s demand and warning to EFF has virtually nothing to do with their prompting a re-exam on 274. Seer Systems draws the line with EFF because they have been hijacked by corporate and Republican interests.

Ignoring any lessons from Journalism 101, the EFF refused to contact Seer, preferring to source a single complainer. There is a history to the relationship between Seer Systems and Headspace/Beatnik. Our work complemented each other and Thomas Dolby knew it. In 1999 discussions with Mayfield Fund which might have merged our two companies, I gave notice that the 274 patent was going to be issued within a few days. Mayfield made the informed decision to ignore Seer and deliberately develop Beatnik into an infringer. Thus again, naïvely supporting EFF and Beatnik in this issue is tantamount to supporting the irresponsibility of the Mayfield Fund specifically and its stable of corporate associates, as well as future corporate infringers, against the acknowledged innovator.

In case of any doubt about their collusion, it should be noted that within days after the re-examination was announced, Beatnik wrote Seer that under the current conditions it would no longer pay its royalties, parroting from EFF’s 2008 press release “Beatnik may well have paid money for a license to an invalid patent.” Since Beatnik’s license agreement specifically stated the contrary, questions arise for Seer about whose uninformed advice Beatnik was taking.

Since 1997, all attempts to disqualify Seer’s patent from prior art and other standard objections —encompassing a roster of national experts— have failed. Nevertheless, casually throwing around words, EFF utterly disregards and disrespects the extensive process of claim construction by which the federal courts have already rendered the specific meaning, applicability, and merit of every single key term and claim at issue within the 274 patent.

Never wishing to let mere facts stand in the way of self-serving headlines, EFF instead unleashed a Rovian strategy of name-calling and smear tactics. When challenged to substantiate their claims, EFF simply fell back on their timeworn “free speech”—the final refuge for the tabloids, and e-pimps it defends on behalf of craigslist and its 25% parent, Ebay. Conservative Republicans might want to know that a demonstrable percentage of their gubernatorial candidate’s income are dividends from well-publicized illegal activities on craigslist. Interestingly, while the Republican DOJ acquiesced, Eric Holder has made it clear he is not buying EFF’s clichés.

At least I have some good company: EFF is now suing even Apple for protecting it’s IP, as well. But in view of EFF’s recklessness, crumbling credibility and legislative losses, the question for the public and perhaps courts to decide is not whether EFF has the right to lie and slander. The important question is: when given all opportunity to reasonably do otherwise why does the EFF rely so much upon that freedom? Then necessarily, how can a group habituated to dissimulation and defamation really serve the public’s interest?

Every organization needs to clean house periodically. None is immune from the creep of arrogance and self-righteousness; of revolutionary ideals devolving into groupthink and moral hazards. Obviously, those who care to restore the EFF to its charter and potential need to take seriously President Obama’s call for everyone to re-examine their ideologies.

Seer Systems is not clear about the motives behind the Electronic Frontier Foundation’s decision to place Seer Systems on its list today. In truth, Seer Systems is a small company that invested all it could to develop valuable technology only to have others try to take it away, without authority, for their commercial gain.

Putting a stop to this by the proper exercise of legal rights is all that Seer Systems is trying to do. EFF never contacted Seer Systems about how its technology is being illegally exploited or why it thinks it is wrong to stop others from violating the law and acting unfairly.

On March 23, 1999, the US Patent Office issued Patent #5,886,274 to Seer System. The title of the patent is “System and Method for Generating, Distributing, Storing, and Performing Musical Work Files.” (Check out this scan of the patent from the Seer Systems archives.)

Due to the EFF’s “Patent Busting” campaign, there seems to be considerable confusion around what exactly the “274 patent” describes. The EFF has gone so far as to call it “bogus” and “illegitimate,” but when pressed for their justification, the EFF respond that “free speech” is sufficient justification. They also point to Seer Systems’ founder, Stanley Jungleib’s book General MIDI as “prior art” that makes the patent invalid by describing the same music publishing system (in the section titled “GM2000″).

Does General MIDI describe the system described in the 274 patent? Does it even describe the SeerMusic system that Seer Systems released three years after General MIDI’s first publication?

Not at all.

In 1994 when Jungleib completed the first draft, and even in 1995 when the book was finally published, the devices with which musicians worked were still hardware devices – mostly keyboards and drum machines. Computers were used for sequencing and for editing synth programs, and Internet access was becoming increasingly commonplace, but software synths were simply not the sort of thing you could buy at a retail music store.

Jungleib wrote GM2000 to help synth manufacturers understand the difficulties facing composers and to encourage manufacturers to support General MIDI. GM2000 proposed a future version of GM in which a playback device could help hardware devices determine the most appropriate sounds for performing a composer’s work. If all else fails, the synths would have GM-mapped sounds to fall back on. In other words, the system would make the “worst case” a bit less bad.

Jungleib did not describe an end-to-end software solution that ensures that a composer’s work will sound identical on another system. Jungleib envisioned that system in October of 1995, months after the release of General MIDI. He then reassembled the Seer Systems design team and began work on Reality, the first step towards the SeerMusic system, in which he implemented the system that would eventually be protected by the “274 patent.”

If you’ve ever considered publishing a MIDI file of your own, but gave up on the idea because of all of the variables between you and your potential listeners, the difference between GM2000 and the 274 patent are obvious.

BTW – If you don’t have a copy of General MIDI, you can read it for free online and see for yourself.

Revised: 20120509

For all instant patent experts of the technosphere who just knew better, you may want to consider not speaking about subjects in which you have exposed yourselves as thoroughly, mutually and circularly uninformed.

Let’s spell it out one more time: The demonstrably uncreative Lessig, hapless Kwun, and erratic Cohn instinctively chose and maintained a strategy of self-promotion and demagoguery that rejected the pursuit of fact-based reality. EFF wasted seven years promulgating egregious, fanciful lies and theories without giving any consideration to account for the appearance of facts that might have disrupted their preconceived, messianic self-perceptions. Experienced lawyers pity this strategy of extended, advertised presumptuousness as a serious lapse of diligence. Except for the Washington Internet Daily, EFF’s regular farts of fantasy were sniffed up by a fawning, amateurish, uncritical clique of thoughtless journalistic wannabes desperately competing for blog fodder to “capture eyeballs” for revenue.

Seriously, how stupid, confused and simply fucked-up must you be to ignobly attack a single inventor (me)—holding his own single patent—as a supposed patent troll, while you now silently watch your internet buddies troll billions and billions of dollars worth of monopolization locking up perhaps a hundred thousand patents? EFF: Which Patent Troll Is Your Daddy? Deep thanks for your revenge-of-the-nerd IP work on behalf of the little guy, Larry: the new legislation is really working well. And now you have gone ‘to clean up Washington.’ God help us! (From an agnostic.)

If EFF had acted against Seer Systems out of sincere concern arising from their nevertheless biased presupposition of trolling of one patent, why is it struck mute and paralyzed in the midst of the greatest corporate trolling celebration in history? The answer can only be that Cindy Cohn indeed has no real scruples but for her own celebrity. As I pointed out in Seer Systems Demands Retraction from the Electronic Frontier Foundation EFF’s capriciously emotional legal strategies are unacceptable from any effective so-called public service counsel. They inevitably lead to the kinds of unprincipled, self-preserving decisions creating the humbling embarrassment EFF members must endure as their hypocritical, cowardly, and evidently retarded leadership accelerates their downward spiral into irrelevance.