filings in an HD Radio patent suit indicate broadcasters’
willingness to at least consider settling before trial.
situation is hard to gauge, with broadcasters not commenting and the
patent holder difficult to track down. But information has emerged
that suggests a settlement could be in the offing.
LLC sued 14 radio ownership groups in November 2013, claiming that
the voice and data transmission
technology broadcasters use for their HD Radio broadcasts violates
the patents it owns.
as defendants in the federal lawsuit were Beasley Broadcast Group,
CBS Radio, Clear Channel parent CC Media Holdings, Cox Media Group,
Cumulus Media, Entercom, Entravision, Greater Media, Hubbard Radio,
Radio Disney, Radio One, Saga, Townsquare Media and Univision.
court documents give a brief glimpse inside the lawsuit between radio
owners and a company that some consider a “patent troll.” The
documents show an intention to discuss a settlement while delaying
the date broadcasters are required to reply to the lawsuit filed in
reason for the request is to allow parties additional time to discuss
settlement,” according to a letter cosigned by both sides filed
with U.S. District Court in Delaware in early February. The request
was accepted by the court; that delays broadcaster responses until
April 25. Originally, responses were due in late February.
Ragland, a patent attorney with Womble Carlyle Sandridge & Rice,
which is not affiliated with the case, said it’s not unusual for
opposing parties to request additional time to file responses to a
complaint to allow for settlement talks.
fact that the request is made jointly by the patent holder and the
broadcasters is an indication that settlement discussions are
underway or planned at the time of the request,” he said.
World contacted several of the broadcast groups for comment,
including Beasley, Clear Channel Media & Entertainment and
Greater Media. The companies said they do not comment on pending
to find contact info on the Internet for Wyncomm were unsuccessful;
and emails to Wyncomm’s legal counsel were not returned. Wyncomm’s
business address is listed in court documents as 113 Barksdale
Professional Center in Newark, Del.
Radio developer iBiquity Digital is not named nor identified in any
of the lawsuits. The company licenses the technology used by radio
broadcasters; it has consistently declined comment on the suit and
did so again for this article.
76 percent of patent lawsuits end in some sort of settlement,
according to Thomas Ewing, a patent attorney and IP consultant for
Avancept LLC. “What’s impossible to tell is who is getting the
better deal in this case, [Wyncomm] or the broadcasters.”
most actual settlements include nondisclosure agreements, Ewing said
often it’s impossible to determine who settled for what amount,
LLC claims the broadcasters are using in-band, on-channel technology,
and therefore, infringing on U.S. patent 5,506,866 and two associated
patents it owns. Wyncomm lists Delaware Radio Technologies as the
exclusive licensee for its technology. DRT is also listed as a
plaintiff in the suit.
‘866 patent, “Side-Channel Communications in Simultaneous Voice
and Data Transmission,” was issued to AT&T in 1996, but its
ownership has changed hands many times since. The patent expired in
means the patent owner cannot obtain an injunction, sharply reducing
stakes for the accused infringers, said Scott Daniels, an
intellectual property attorney with Westerman, Hattori, Daniels &
Adrian LLP. “The patent owner may still seek damages for acts of
infringement occurring for a period up to six years before the filing
date of the complaint,” he said.
is a second patent — 5,642,379 — cited in the lawsuit; it expires
in June 2015. “That is far too soon for injunctive relief to be a
possibility,” Daniels said.
third patent, 5,475,691, expired last fall. Titled “Voice Activated
Data Rate Change in Simultaneous Voice and Data Transmission,” it
was granted to AT&T in 1995.
broadcast source characterized the first two patents as “clearly
written for telephony,” discussing predecessors to DSL and covering
the digitization of voice and data for a phone network. The third
patent is a little more broad and “does not specifically refer to a
phone network,” according to this source, who emphasized that none
of the patents specifically refer to RF and finds “nothing” in
these patents “that expands the scope sufficiently to cover HD
said the lawsuit could be a deterrent to broadcasters using HD Radio
technology and those considering adopting it.
things stand, the case is purely one for money damages, according to
Daniels, who said: “The individual broadcasters, sued for
infringement, will want to settle provided that Wyncomm offers them
“an amount below their legal costs in defending against the
Wyncomm and Delaware Radio Technology will hope to settle with at
least a few broadcasters to obtain funds to finance the litigation
against the others and encourage those radio groups to settle as
well, Daniels speculated.
THE MAIN PATENT
The abstract description of U.S. patent no. 5,505,866, “Side-Channel Communications in Simultaneous Voice and Data Transmission,” details the technical aspect of the patent:
In a simultaneous voice and data communication system, a stream of signal points is portioned into a plurality of symbol blocks, each symbol block including a data segment and a control segment. The data segment carries information from a user, i.e., user data, while the control segment controls segment information. A voice signal is then added to at least a portion, or all, of the signal points of each symbol block to provide simultaneous voice and data transmission o an opposite endpoint. The control information from a secondary data source, and/or may include information from a secondary data source, and/or may include information about the characteristics of the succeeding block, e.g., the user data rate, and information pertaining to characteristics of the communication channel.
the mindset of broadcasters about settling is difficult to determine,
it’s obvious the case is likely moving in that direction, according
to another court observer.
Skall, a communications attorney with Womble Carlyle Sandridge &
Rice, LLP, said plaintiffs typically consider “the nuisance value”
when thinking about settling, especially in patent matters where the
expense of litigation can be quite large.
must assume that such [resolution] discussions are underway and are
sufficiently serious to warrant a delay in the process so that the
parties can focus on the terms of a possible settlement.”
and DRT are based in Delaware and identified by legal observers as
“nonpracticing entities,” patent holding companies that typically
don’t produce goods or services but manage intellectual property
often have offices in Delaware due to its desirable corporate taxes
and laws, observers said. For instance, Delaware Radio Technologies,
according to Hoovers, lists as its address 1209 North Orange Street
in Wilmington, Del., known for being home to 200,000 business
addresses as registered agent services.
industry observers have speculated that broadcasters are hoping to
avoid a possibly contentious trial, especially considering Wyncomm’s
history. Its aggressive approach to litigation-seeking infringement
damages has moved some to refer to it as a patent troll. Wyncomm,
along with DRT, filed a barrage of suits against electronics
companies asserting the ‘866 patent. Late last year, the entities
filed a similar suit alleging Ford, Chrysler, General Motors, Toyota,
BMW and 13 other car companies are infringing on the patent. That
suit remains active.