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Photo-Contest Host Fires Back at ‘Patent Bully’

NEWARK, N.J. (CN) - A website facing a patent-infringement lawsuit over its "vote-for-your-favorite-photo" polls urged a federal judge to throw out the outrageous shakedown.

"The idea of having a contest and determining a winner by counting votes is an ancient practice, not a patentable invention," Reflections by Ruth dba said in a Feb. 13 brief supporting its motion to dismiss.

BytePhoto filed the brief with support from digital-rights giant the Electronic Frontier Foundation (EFF) and the law firms Barry, Corrado & Grassi and Durie Tangri.

EFF noted in a statement that BytePhoto has been hosting competition on user-submitted photos since 2003.

BytePhoto's legal opponent,, meanwhile obtained its patent in 2007.

Jackson, N.J.-based Garfum runs video competitions, and its website touts a goal of becoming "the top online video competition website in the world within."

Garfum's September 2014 complaint accuses BytePhoto of infringing its patent on the "Method of Sharing Multi-Media Content Among Users in a Global Computer Network."

But EFF says there is no support for trying to patent this kind of abstract idea using generic computer technology.

"A competition by popular vote is an old and well-known concept," the BytePhoto brief states. "Indeed, national, state, and local elections all apply the same abstract idea. ... The same abstract idea is the basis for everything from a high school senior poll to determine 'class clown' and 'most likely to succeed' to juried art competitions to the Academy Awards."

Noting that "patent law protects only concrete and tangible inventions," BytePhoto insists that Garfum's patent, No. 8,209,618, "does not claim an invention."

"Instead, the '618 patent describes the abstract idea of running a competition by popular vote and the claims simply implement this long-prevalent idea in the modern context of the Internet," its brief states.

Directing a patent's claims to the use of abstract ideas on a computer does not make them any more patentable, BytePhoto contends.

"Though it is dressed up in the language of patent claims, what Garfum claims to have invented here is a photo competition by popular vote, except on a web site," the 24-page brief states.

Claiming that Garfum's patent is simply a method for running a competition on a social network by popular vote using a generic computer network, BytePhoto wants the patent in question declared invalid.

The brief cites as precedent the Supreme Court's 2014 decision in Alice Corp. Pty. Ltd. v. CLS Bank Int'l.

"Alice holds that a patent is invalid if it claims an implementation of an abstract idea using generic and conventional computer technology," BytePhoto says. "Because the claims of the '618 patent are all directed to abstractions with (at most) generic computer components, the claims are ineligible under § 101 as a matter of law." (Parentheses in original.)

Calling BytePhoto's founder a mere "photo hobbyist," the EFF said a statement that "patents like this improperly interfere with the ability of people to use the Internet to do things they've been doing in the analog world for generations."

EFF staff attorney Vera Ranieri blasted the unfairness and chilling effect of "demanding a payout for infringement on an obviously bad patent like this one."

The Mark Cuban Chair to Eliminate Stupid Patents, EFF staff attorney Daniel Nazer, is defending BytePhoto as well, calling Garfum's patent "one of the silliest I have ever seen."

"The idea that you could patent this abstract idea - and then demand a settlement to go away - goes against both patent law and common sense," Nazer said in a statement.

Frank Corrado with Barry Corrado in Wildwood, N.J., signed the BytePhoto brief with Joseph Gratz of Durie Tangri in San Francisco.

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