Congradulations for proving that the patent system is bogus and that the patent is way to broad like rocky said.
two different machine but described in the same way. Nice!
TIVO vs E*
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Congradulations for proving that the patent system is bogus and that the patent is way to broad like rocky said.
two different machine but described in the same way. Nice!
TiVo shipped its first boxes with built-in tuners back in May, 1999 -- ten years ago. TiVo has never required an external box to record, they just gave users that option. All DirecTV TiVos shipped with built-in digital tuners, and all newer standalone TiVos ship with built-in ATSC and QAM digital tuners for OTA and cable.
TiVo and ReplayTV were the first to demonstrate digital television devices capable of simultaneous record and playback at CES in January, 1999 -- 20 months after the first DVD player shipped in the United States, and almost 18 months before the first DVD recorder shipped. Before that day in January, no one* had ever seen a product with simultaneous playback and recording for under $10,000. No one* had ever seen a digital recorder product with trickplay capability (ability to pause and FF/REW with a moving picture) for under $5,000. No one* had ever seen the ability to use trickplay functions during playback while a recording was in progress...at any price.
* Obvious exception to Silicon Valley investors and other partners, who saw private demos of TiVo and Replay in 1998.
Interestingly that claim got that broad based on Dish and TiVo making their cases in the Markman hearings and then restating their cases at the Appellate court. The lawyers, and judges ended up with what we have when all was said and done. Dish was not successful at narrowing those claims, to the extent that they tried to do so. Dish was also not successful at getting those claims thrown out during the re-review at the patent office. It seems the supposedly bogus system did provide lots of opportunities to make it not be bogus. What should Congress change, should they only allow large deep pockets companies to innovate? Should the entire patent system simply be thrown out?Congradulations for proving that the patent system is bogus and that the patent is way to broad like rocky said.
While I admit the system is imperfect. I still think it is better than no system at all.
As far as '389 goes, it came out broad. It came out very broad indeed. Dish is as much responsible for that as is TiVo, the courts and Congress. As near as I can tell it is nearly settled, and complaining about it now is a day late and a dollar short. It would be better to contact your Congress critters and get the system changed to be less bogus by advocating whichever answer to the above questions is your desire.
I mispoke on the input source. For that, I apologize. Shows my arrogance or lack of knowledge (or both) on a Tivo itself.
As for the rest of your post, no matter the cost, the technology was already created.
Except that is exactly the point, the new technology, that did not exist before is what let this task be done cheaply on hardware with very limited CPU power. It really is a new and novel combination of technologies existing at the time that had not been seen before then. It is that kind of novel combinations of existing technologies that patents were designed to protect. After all, that is also the definition of a new technology. One of the first tests for patentability is whether the new device is novel. Extensive searches are conducted to look for that before the patent application is even filed. More detailed searches are done by the patent office itself. A patent will not be granted if the technology is not novel or new.
This is where we differ on what a patent should protect. It appears they did exactly what E* is attempting to do. Find a cheaper/better alternative to an existing product.
Anyway, as I said, we won't agree on it, but at least we managed to stay civil about it. I can't say that's been the case with much of this thread.
There is almost never anything good that comes out of incivility.
I should point out that over the last 20 years or so, patents have become less and less meaningful. So things are going in the direction you seem to be espousing. If the courts continue to emasculate them, almost nothing will be patented in the future. For example the KSM ruling that has been bandied about here has really reduced the strength of patents compared to what they were beforehand. Big companies have relied on that to protect themselves from patent trolls in addition to using it as Echostar has in this case. Still the RIMM case has shown that patent trolls can still be a problem. There is no single right answer for many of these things.
I should point out that over the last 20 years or so, patents have become less and less meaningful. So things are going in the direction you seem to be espousing. If the courts continue to emasculate them, almost nothing will be patented in the future. For example the KSM ruling that has been bandied about here has really reduced the strength of patents compared to what they were beforehand. Big companies have relied on that to protect themselves from patent trolls in addition to using it as Echostar has in this case. Still the RIMM case has shown that patent trolls can still be a problem. There is no single right answer for many of these things.
E* was successful in getting the appeals court to narrow two hardware claims constructions, and as a result the hardware claim verdicts were overturned.
But on that same appeal, E* did not really try to ask the appeals court to limit any software claim terms, because it would be futile. The old software did analyze the start codes, and the old software did have a "source object" to "extract" the start codes and build an index table out of it.
The question now is, once E* had removed the "analyzing the start codes" part in the old software, and not building any index table, would that be good enough as far as the software claims are concerned?
To address that question E* did exactly what the appeals court said they should do, to interpret the software claims in the context of the entire patent, the patent specification and the prosecution history of the patent, and concluded that yes, the software claims describe the same invention about how to analyze start codes from the broadcast data, and build an index table out of such codes.
But the district court said, no, E* could not do that, E* could not introduce the terms "start codes" and "indexing" into the software claims because the claims themselves did not literally contain such terms, even though the patent specifications and the prosecution history talked nothing other than how to do start codes and build the index table.
I don’t know if you had read the last appeals court’s ruling I cited yesterday. In that case, the only term in dispute in all four patent claims was "different characteristics… of the plastic material." The defendants used two pieces of plastic of the same molecular content, but with different colors. Since the "plastic material" was the same, the commissioner found they did not meet the term of the "different characteristics" and therefore was not infringing. The commissioner made the decision based solely on this single term in that patent claim.
On appeal, the appeals court said no, when you were trying to interpret that term, you had to also look to the patent specification and the prosecution history of the patent for analysis, not just on the claim term alone. The appeals court went to great length to find out exactly what the term "different characteristics…of the plastic material" meant by the patent. They even combed through the conversations between the patent examiner and the patent owner. After reading all of the documents, the appeals court said no, based on their detailed analysis, the term "different characteristics…of the plastic material," in this particular case must also include difference in color, not just the material.
And since the defendant used two plastic pieces of the same material, but of two different colors, they may still infringe because again, in this particular case, after analyzing all the documents, difference in color may also be considered a different characteristics of the plastic materials. One might wonder, how was the word "color" got involved? There was no such word in the patent claims, only "material."
In this case, I am saying the district court erred in the same way the commissioner erred in that case, the judge only looked at the software claim terms alone, refused to read the patent specification and the prosecution history of the patent. As a result, he said the terms "start codes" and "indexing" were irrelevant because they do not show up in the claims. But according to what the appeals court said, the judge should not do that, he should read all the information in the patent specification and the history, before he may determine if the terms "start codes" and "indexing" are relevant or not.
Yup, that is the truth. The only thing that comes out of incivility in this thread is me having to ban the idiots who aren't civil.
So, thanks for a discussion based on civility. It is appreciated.
For sure you can't physically avoid parse/analyze PIDs/packets/stream to build "start code" or "index" etc, not just in legal form. So, the part of invention is stay, regardless your code. That's how it looks from software developer side.
Just to clarify your statement a little:
1) dish's failure to narrow the claims was more of a reflection on the courts inability to understand them than anything else. Thats one of the 'flaws' in which I speak. Lawyers can't litigate what they don't understand, judges can't make inteligent rulings (obviously) based on what they don't understand. So they get dummied down and made too broad to over-compensate for ignorance. This has been my biggest beef with the court systems in this case.
2) You are mistaken. The way the patent system is structured now (and the whole IP system in general) large companies ARE the only ones allowed to innovate. Don't be one of those "poor little Tivo" types because they are far from "poor little Tivo". The law protects nobody, the law protects only those who can afford the protection of the law. Believe me, the common man gets ripped off every day in IP court. Seen it personally happen. This ain't no case of poor little Tivo. (mark that down as another flaw in the system)
3) Your question: "Should the entire patent system simply be thrown out? " The answer: YES IT SHOULD! And replace it with something that actually works!
You need to add a wee-bit more detail to this post for it to make sense...
I do agree that the complexity of the implementation is far greater than can be captured from a legal perspective (if that is what you actually mean, here)
But that complexity is necessary to quantify in SOME terms the courts can understand just so the technology in question can be given a proper evaluation and its a shame that doesn't happen. Its the courts need to dummy-down the technology into 'legal speak' that I don't like, because that overshadows any true innovation that may come out of improving existing technology to the point of a new becoming a new technology. I mean, just saying (in my best barnie fife voice ) "lookie here, judge! It does the same thang so it must be the same thang!" just ain't gonna cut it in todays modern technical world.
Look even in this forum trying to have both a technical and legal discussion. Its chaos. You see, what we have here is a failure to communicate. Some men you just can't reach, so you get what we had here all week ...
Perhaps if they had, they would not be in this pickle right now. Perhaps they chose not to in order to not telegraph their redesign plans to TiVo.
But interestingly I do not recall any of this mentioned in the opinion letters. This argument only came to light in the most recent hearing. Can you find this logic in the opinion letters?
Except that the trial descriptions of the discussions on claims 31 and 61 did not do that so much as they did when discussing claims 1 and 32. That has been belabored enough, we don't agree about it, I will let it rest there.
Concerning the rest of the post, I did not read the case to which you refer. However, I found little in the opinion letter from Folsom on this case to indicate that Folsom did not take the patent specification into account. I suppose your argument could coincide with what Dish is arguing, but Dish kept their argument sealed, so we don't know if that is their position or not. Interestingly TiVo's reply, which was not sealed, does not spend much time trying to rebut such an argument. If that were the argument made by Dish, I would have expected TiVo's response to feature it prominently. I don't have any of these docs in front of me, so please feel free to correct any mis-statements of fact.
And once again, during trial ALL FIVE experts testifed that PID filtering met the "parse" element of the step.jacmyoung said:
That includes THREE that were paid by DISH/SATS. Yet the only one to recant that testimony was one paid by DISH/SATS.
Face it. DISH/SATS is trying to re-litigate that which caused them infringement. The start codes and indexing are essential to the "Hardware Claims", but not the "Software Claims". The PID filtering was found to meet the parse element in claims 31 and 61, defined by the court as "Software Claims".
And the PID filter itself is not software, so "Software Claims" is a misnomer. However, that is the definition the court gave those two claims.
Here is the most notable electronic disk trick play video recorder that I happen to remember seeing in widespread use. Of course tape-based products, or even rapidly developed FILM products, were used from the 1950's. Ampex's Instant Replay device was commercially available by 1967. It's not digital.
Of course computers have been processing digital video for a long time before Tivo existed. Tivo did not invent the DVR. Tivo did not invent trick play. Tivo did not invent a device to watch one program while viewing another. Any old VCR could allow that since they had their own tuners.
The only innovation I see in the Tivo patent is the indexing feature for smooth trick play. This existed in my 501 and I enjoyed it's excellence for a few months before Dish eviscerated it from the firmware. No Dish receiver I have used since then, including my 501, my 625, my 722 nor my 612's, smoothly perform trick play. Hit one of the skip buttons? You really don't know how far forward or backward you're going to go, because Dish no longer has an index to do this accurately. There is not a doubt in my mind that Dish has successfully designed around the Tivo patent.
And here we are arguing about whether Dish can use PID parsing, something that every DTV tuner in creation has been doing for as long as there has been DTV. It's as though Tivo's claim #1 is "take one step forward", and Judge Folsom has suddenly found "taking one step forward" is Tivo IP. These argument about PID parsing are just that stupid. Note to moderators: I'm not calling Greg stupid. I'm thinking that about Judge Folsom, who must either be an idiot or on the take.
So, Greg, you have been aggressive in your defense of Tivo's and Judge Folsom's positions, crazy though they may seem to me. Do you honestly believe Dish didn't succeed in their design-around? Do you think forcing Dish to recall receivers, or shut off all DVR functionality, is a remedy proportionate to the crime (which I believe is accidental duplication of Tivo's IP)? Tivo's real contribution here is so narrow as to be evident to engineers on a moment's reflection. I would say the fine is more than adequate by itself. But telling Dish to destroy itself, in addition to this big fine, is not. That's my opinion.
The Krell,
Dish will not destroy itself, they accumulated much more money from us, customers during one year to just pay the fine. If you'll calculate starting from DVR-510, you'll find enough to continue pay the royalty.
Dish will not destroy itself, they accumulated much more money from us, customers during one year to just pay the fine. If you'll calculate starting from DVR-510, you'll find enough to continue pay the royalty.
Perhaps, we do not know, therefore E* did not use that as the argument
The opinion letters talked a lot about indexing, and explained why indexing and time stamps (start codes) were the keys to the invention, according to the patent specification. The opinion letters analyzed the patent specification to death if you read them. I would think the prominent patent law firm had to know interpreting the patent specification was important in infringement analysis.
Actually I have already agreed with you the software claim terms were not discussed as much as the hardware claim terms during the jury trial and the last appeal
But such facts have no bearing on whether the court must now interpret the software claim terms in the context of the patent specification and the prosecution history, and in the context of the "entire patent," not just in the context of the claim terms themselves.He did not because he never mentioned patent specification. Another quick way to know he did not read the patent specification is when he agreed with TiVo that the terms "start codes" and "indexing" were "irrelevant" because they were not mentioned in the software claims, even though they were mentioned in the patent specification and also mentioned over and over by TiVo during the jury trial.
There is a good reason why TiVo tried to avoid mentioning the patent specification, and only argued on the software claims, but the judge should know better, may be he was tired, may be he simply had no patience left that he did not care to read anymore than what TiVo said. I don't know.
That was E*'s position throughout the hearing transcripts.
When E* made such argument during the hearing, TiVo never responded to such argument either, because TiVo could not, they would have refuted themselves had they done so.
Look I am not even saying the judge must agree with E*'s interpretation, after interpreting the software terms in the context of the patent specification and the prosecution history, he might still disagree with E*'s interpretation after all, what is not correct is when he refused to interpret the terms in the context of the patent specification and prosecution history, and in the context of the entire patent, instead limited it only to the software claim terms themselves.
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And once again, there are facts immaterial to the patent:TheKrell said:
Time Warp is the ability to pause, rewind and fast-forward a program which is currently recording. TiVo's patented process made it cost less than a tenth of what was commercially available.
Yet ALL FIVE paid experts testified at trial that PID filtering met the parse step. Arguing facts of the case may be stupid, but it is impossible to refute.TheKrell said:
And I'll go back to my old standby: what do you mean a patent was granted on the telephone, as the telegraph was a transmission over wires? What do you mean a patent was granted for intermittent windshield wipers, when wipers are prior art? Patents usually encompass the WHOLE process, not just the pieces that are innovative.
No.vampz26 said:
The ViP series has all of the same features at the infringing series, but also has MPEG4 capabaility. MPEG4 capability was added to a DVR with trick play features, a DVR that had its software changed by the manufacturer to "avoid infringement".
The simple addition of MPEG4 decodability isn't "innovative", especially if it is simply adding MPEG4 decodability to the same design as the infringing receiver.
Nothing red herring about that. The failure to recognize that is astounding.
Infringement isn't necessarily based on technology; it is based upon process. And this thread is about infringement. So I've discussed that EVERY expert that testified at the trial that PID filtering, a piece of technology, met the parse element in the step of the Software Claims. Therefore I've discussed technology at every point I've needed to: at the point the elements in the claim MEET the technology.vampz26 said:
This is a thread about infringement, not technology, correct?
What element does the ability to decode MPEG4 remove? All that has been offered is that "it might change the design". I've offered that DISH/SATS changed the software on the 622/722 during the stay period, then informed their dealers in a letter that the software was changed to avoid infringement. Yet the repeated excuse is that the addition of MPEG4 may have completely overhauled the design. Even DISH/SATS admitted it didn't, as they had to change the software on the 622/722. Therefore, the addition of MPEG4 capability is simply a red herring.
MPEG4 is a red herring because adding pieces of technology to a device doesn't necessarily change the process it uses to accomplish its goals. Adding MPEG4 to a design found infringing would simply make the DVR with MPEG4 capability an infringement.
Of course, I can see an arugment coming about how bogus it is the patent can apply to new technology and that is why this needs to stop.
Take a look at the patent. In the overview it even mentions that it covers digital formats such as any from the MPEG group. Yes, patents are allowed to be forward thinking, just like advances in technology.
So what is the next piece of immaterial technology as it relates to the patent is next?
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