Injunction Against EchoStar Blocked

bestinshow writes "ExtremeTech has the news that a judge has blocked the injunction against Echostar Communications selling its PVRs." From the article: "The ruling was the latest in an ongoing battle between TiVo, one of earliest companies to design personal video recorders, now called digital video recorders or DVRS. 'As a result of the stay EchoStar can continue to sell, and provide to consumers, all of its digital video recorder models,' EchoStar added. 'We continue to believe the Texas decision was wrong, and should be reversed on appeal. We also continue to work on modifications to our new DVRs, and to our DVRs in the field, intended to avoid future alleged infringement.'"

Comments

question for those who understood this stuff..

[free space]

Does that mean that EchoStar can rest assured that their recorders will work indefinitely, or should they continue worrying that the blocking of the ruling can be reversed?

Re:question for those who understood this stuff..

[StringBlade]

It means they still have to worry about losing on appeal and getting an injunction again, but for the time being, they can continue to do what they're doing.

Re:question for those who understood this stuff..

[SeaFox]

While I'm sure Echostar can rest easy, consumers shouldn't. I was rather shocked with the initial denial of stay. Normally I don't see companies ever having to do anything about any litigation until after the last appeal is lost. A patent dispute rarely has any effect on consumers themselves in such a way as the company will have a drastic effect on their business. ...and I was rather looking forward to the outrage.

The quick turn around on this will probably help keep the legal fight and what it means to consumers under wraps. But I hope it servs as a wake up call to people what sort of conditions they're agreeing to when they get a DVR from their provider.

Be wary of any electronic device that depends on authorization or information from someone else in order to function. Because you never know when they may have to/choose to pull the plug.

The only DVR you can really depend on is one you own outright and can make configuration changes to for the programming data source yourself (like a Myth box).

Re:question for those who understood this stuff..

[Buran]

The only DVR you can really depend on is one you own outright and can make configuration changes to for the programming data source yourself (like a Myth box).

And if (I don't know if this applies here, just conjecturing) the patents apply to that code as well, and it can't be distributed anymore?

If someone has a legitimate patent, and the invention was non-obvious when the patent application was made, then the only source you can depend on is the inventor's, if they choose to be sole distributor.

This is good.

[SonicBurst]

This is good news for consumers. With a little luck, the original judgment will be dismissed, perhaps even Tivo's obvious patent invalidated. I can't believe the case made it this far in the first place.

Re:This is good.

[StringBlade]

From friends who have one, I hear TiVo is a great product - far better than anything offered by Dish, DirecTV or cable companies and I'd hate to see them go out of business because of this. Additionally, Echostar seems to have played some dirty pool in getting their own DVR out the gate by peeking at a TiVo that was left behind during negotiations between TiVo and Echostar for licensing DVRs. But at the same time, I don't think that TiVo should have such a broad patent on this technology. In this case, it seems they're using their patent defensively simply to stay alive in a market that can quickly and easily be taken away from them by the satellite and cable companies that provide the content transport.

This is a philosophically painful case for me because I want to root for TiVo because they have a superior product, but not for patents. And I want to root for Echostar because I have one of their DVRs and would hate to lose it's functionality. I also don't want to root for TiVo because a win for them will negatively impact Dish customers who through no fault of their own are being punished for Echostar's behavior. That's like Microsoft users being forced to remove the Quicktime player from all Windows installations because of some industrial espionage they did against Apple (just by way of example -- it didn't really happen).

Re:This is good.

[Rich0]

Tivo came out with a GREAT product which was well marketed. However, it really was just the next technological step - apparently other companies were working on the same thing at the same time.

Tivo enjoyed great profits from their launch, but what they want now is a lock on the market for what was essentially a small up-front investment.

Tivo's current systems are generally superior to most of the competition. Their problem is that they are EXPENSIVE. The cable companies realized that DVRs sell service, so like cell phones they give them away in exchange for monthly contracts. Tivo is selling $400 cell phones in a market where most people expect them to be free (even if a bit more junky). This is why Tivo is losing market share fast.

While I'd love to see Tivo win, the fact is that their original product wasn't that innovative. Others were working on the same sorts of things, but Tivo executed better. That should earn them some bucks, but not royalties for 17 years. Plus, Tivo's up-front expenses were not that high - probably not more than a few 10's of millions of dollars - they were almost certainly fully recovered with a healthy profit.

Patents should exist where they are needed to allow companies to make healthy profits on risky ideas. However, that is all they are needed for - if a company is able to make a healthy profit without a patent, then one is not necessary. Patent lifetimes should probably be tweaked by industry as well - in industries where we expect a high level of expense to ensure quality (such as pharmaceuticals) we should probably grant longer patents (or lower the safety standards to reduce up-front costs). In an industry like toothbrush designs they should probably be shorter. Software patents should probably only last a year or two - as softare is not capital-intensive and a two year head start is plenty to make a profit.

In general patents should exist for the benefit of society - to encourage companies to come up with innovative products. That benefits everyone. However, if a company is willing to do R&D with the promise of a 200% payback we shouldn't be offering them 20,000%.

Re:This is good.

[Znork]

"Patents should exist where they are needed to allow companies to make healthy profits on risky ideas."

Unfortunately, protection from competition breeds expenses, encourages waste and creates inefficient uncompetetive organizations.

"in industries where we expect a high level of expense to ensure quality (such as pharmaceuticals)"

Pharmaceuticals are a perfect example; they waste 80% of their income outside research. They spend more than twice as much on marketing and administration as they do on R&D. The protection breeds the expense which makes the protection necessary for the protected business model.

"However, if a company is willing to do R&D with the promise of a 200% payback"

Then offer them a 200% payback. Outright. Instead of a patent creating a monopoly, let it be worth a 200% ROI for the patent holder if it gets used in products to a certain amount within the next five (or ten, or thirty) years. Paid by the patent office, financed through ordinary state financing rather than a hidden economic tax in the incarnation of monopoly pricing. You get rid of the customer/inventor conflict relationship, small inventors get paid even if some big company rips them off, etc.

Economic incentives for R&D can take many forms. State protected monopolies has to be about the most inefficient and economically damaging model conceivable.

Re:This is good.

[Anonymous Coward]

who the fuck modded this up
check the url next time, douchebag mods

Re:This is good.

[squiggleslash]

Additionally, Echostar seems to have played some dirty pool in getting their own DVR out the gate by peeking at a TiVo that was left behind during negotiations between TiVo and Echostar for licensing DVRs.

This is kind of meaningless. What's actually been said is that TiVo left behind a technology sample which Echostar failed to return, claiming not to know its whereabouts. Far from being suspicious, I'd imagine this is relatively normal and Echostar's inability to return the machine has nothing to do with whether they took out the hard drive, copied the TiVo software, converted it from raw binaries to C, and then spent ten years with a team of expert programmers turning the unreadable code into readable code. Echostar would have had to do something completely wierd for "OMG! We copied the TiVo! We can't let TiVo find out!" to be the reason why it wasn't returned.

Moreover, my employer receives samples of technologies all the time from vendors (and I'd imagine pretty much everyone who has a full time job who reads Slashdot is in the same position), and yes, we do regularly find obscure pieces of equipment years after we've been given them in junk tote boxes, etc.

If I were a dirty patent troll (and I'm not saying TiVo is, I'm just saying), I'd deliberately "leave" a technology sample behind, as it'd make it easier to demonstrate that the future defendent has access to the technology, even though the chances are the defendent wouldn't even touch it.

There's been a lot of shit levied against Echostar over the TiVo issue. They've been accused regularly of "dirty tricks" and "bad faith" by people claiming to have followed the case in detail. Yet there's significant reasons to doubt this. They did receive outside legal advice, before they released their DVRs, that the technologies were free from patent issues WRT to TiVo. It's hard to see why they shouldn't have defended themselves given that, and it's hard to see why they would have believed that - even to the point of deliberately wasting money on lawyers who would have been certain to give them the answer they didn't want to hear - if they had just "copied a real TiVo". Asking outside experts to rule on this when you know you've copied something would be like asking a fingerprint expert to rule on who's fingerprints are on a bloody knife you know you used, barehanded, to stab someone.

I'm a happy 625 user. I can honestly say there's no functionality in the DVR that doesn't follow from the basic ideas of "Record programs automatically given a program schedule where the user can pick TV programs by name". Every refinement to this is obvious. Once you've implemented the technology, you've implemented a bunch of subtechnologies from which certain refinements are also obvious. I don't find it likely that what anything the 625 has in common with TiVo is genuinely patentable. DVRs existed before TiVo, but disk space wasn't cheap enough to make the concept worth packaging up as a consumer item. Once you've reached the point that you know you can produce a box that's cheap enough, you can also make the box and make the most obvious enhancements to the concept to make the best of the technology you have available.

To all those that thank TiVo for DVRs, you're thanking the wrong people. Thank Seagate and Maxtor and the other hard drive manufacturers for driving down the price per gigabyte. Thank Intel, AMD, IBM, Motorola, ARM, TI, and the others who have driven down the price per MIPS. They made it possible. TiVo deserves credit for remembering a concept dating back to the 1960s, and realising that the technology was ready for a consumer version, and building the first proofs that the system works, but that's not worthy of a monopoly. And it certainly doesn't mean anyone who also tries to do the same thing, whether TiVo tried to sell them technology or not, should be treated as some kind of evil who goes around copying things.

Re:This is good.

[StringBlade]

Patents should exist where they are needed to allow companies to make healthy profits on risky ideas. However, that is all they are needed for - if a company is able to make a healthy profit without a patent, then one is not necessary. Patent lifetimes should probably be tweaked by industry as well - in industries where we expect a high level of expense to ensure quality (such as pharmaceuticals) we should probably grant longer patents (or lower the safety standards to reduce up-front costs). In an industry like toothbrush designs they should probably be shorter. Software patents should probably only last a year or two - as softare is not capital-intensive and a two year head start is plenty to make a profit.

I disagree. Patents on drugs should not be lengthened because while it is very risky and expensive to do drug research, that's the nature of the business. Who's the one to draw the lines at what's "risky enough" to have a 10 year patent vs. a 5 year patent vs. a 1 year patent? It becomes very subjective and subjective always equates to "unfair" in someone's eyes. Objective patent laws are the best we can hope for and making a patent have the same value across the board is the goal.

Additionally, I personally think software patents shouldn't exist - we already have copywrite law governing software, why do we need a patent for it (or for a process in that regard)? But more to the point, I disagree with your assertion that "software is not capital-intensive". When you get into a large corporate environment, they have to / usually break down the software development into several stages, some of which are capitalizable and some of which are not. For example: spending 2 years on research and design of a software system requires the spending of a large amount of money on workers' salaries and benefits (and housekeeping like electricity and heating/cooling, etc.) - all of which is not capitalizable, it's just an expense. The work that is capitalizable (at least in my company) is the development work and testing work because the direct results of that work is a software system that can be capitalized upon for X number of years. Again, the software maintenance of said system is not capitalizable and is an expense. So a software shop will spend a fair amount of non-capitalizable money on producing software that is of limited capitalizable benefit (probably only can be capitalized upon for 2-5 years depending on the purpose of the system).

Re:This is good.

[mungtor]

"Unfortunately, protection from competition breeds expenses, encourages waste and creates inefficient uncompetetive organizations."

Patents are needed to give people the incentive to innovate to begin with. Let's say that you come up with some novel, highly efficient form of the internal combustion engine. You put millions into research, mortgaged your house, everything. Without a patent, or equivalent legal means of protetion, some auto manufacturer could by 1 engine, tear it down, and due to the economies of scale begin producing it more cheaply than you almost immediately. So you've just pissed away years of effort and millions of dollars. That would be OK with you?

The biggest problem with the patents is the process. The USPTO is run like a sweatshop. You have a quota on how many patents to work on, not enough time to do adequate research into proir art, and people who are not specalized sufficiently in the fields that they are reviewing patent applications in.

Simply because there are a lot of people working on an idea does not invalidate the claim of the first one to bring it to market either. Another fundemental problem with the patent process is that patents are granted for concepts, not things. If you don't have a working example or implementation of what you are trying to patent, then no patent should be granted.

The real problem here rather than a flat out patent case seems to be that EchoStar simply acted in bad faith with TiVo by using a TiVo to jumpstart the development of their own product under the guise of licensing negotiations. I know that a lot of EchoStar customers could suffer due to the unethical behavior of their provider, but IMO all that means is that EchoStar customers should start lining up for a class action lawsuit to recover subscription fees immediately.

Re:This is good.

[Kaktrot]

"Then offer them a 200% payback. Outright. Instead of a patent creating a monopoly, let it be worth a 200% ROI for the patent holder if it gets used in products to a certain amount within the next five (or ten, or thirty) years. Paid by the patent office,"

I'm not sure this is a good way to encourage thrift. "Hey guys, whatever you spend, you'll make double. Now go out there and invent somethin! Save your receipts!"

Seriously, though, the red tape and government bungling that this would encourage would be dreadful, IMO.

Re:This is good.

[ultranova]

Patents are needed to give people the incentive to innovate to begin with. Let's say that you come up with some novel, highly efficient form of the internal combustion engine. You put millions into research, mortgaged your house, everything. Without a patent, or equivalent legal means of protetion, some auto manufacturer could by 1 engine, tear it down, and due to the economies of scale begin producing it more cheaply than you almost immediately. So you've just pissed away years of effort and millions of dollars. That would be OK with you?

If you put everything you had into the research, to the point that you had to mortgage your house, you don't have enough left to take on the auto manufacturer in the court - not that you ever had, since mortgaging your own house makes it clear that you aren't working for or an owner of a large company. Therefore, your patent is completely useless, and the only thing suing the manufacturer for patent violation will do is get your patent invalidated when you run out of the money to pay lawyers to defend it.

In fact, the auto manufacturer could patent the technology themselves and sue you if you try to build and sell your own intention. A patent lawsuit is a war of attrition, and you don't have the resources to win.

So, not only do patents fail to protect small inventors, they actually against them. Checkmate & case closed.

Re:This is good.

[skoaldipper]

Finally, some real wisdom here. There is nothing inheritently unique about watching one show while recording another, no more than any multitude of various VHS manufacturers allowing you to hit record and the TV/VCR button simultaneously after the Betamax sets, albeit recording in different formats.

* The real thrust of TiVo's case (which is apropos for all of us silicon wafer heads who ever signed an NDA) is the fact that Echostar hired a TiVo engineer some time back to develop a similar PVR before TiVo was even granted a single patent. And Dish did just that. The migration of one Engineer from competing company to another competing company happens all the time, and there is nothing particularly evil or insidious about it. Unfortunately, in such cases like this, it can cast an air of impropriety when a competing product almost bankrupts the former, for whatever reason, but more than often than not, the latter product is just plain better and the former rattles the judicial gavel and crys foul. Google vs. Microsoft and the recent migrations from one to the other ring a bell?

This whole case is just a splotch of spilt milk spoiling on the public counter top for all of TiVo's investors to get their last licks from. For anyone to compare a current Echostar DVR offering to an antiquated TiVo is just plain silly. Echostar has far superior DVR's currently (like the 622) which has a multi tuner multi satellite receiver capable of recording HD broadcasts in MPEG-4. Echostar has long surpased the rolling of the stone wheel with a stick age, while TiVo (and even their DirectTV partner) are still chipping away with flint and rocks. Even DirectTV has to lease some time on Echostar owned satellites. Saavy investors like me appreciate saavy investors like Echosphere, dropping 250 mil a year alone for each satellite they put up, not to mention their investment in hiring engineers (like in this case) while turning out sweet hardware. That's a good financial indicator of a solid company with an aggressive market spirit poised for future growth and dominance. Good riddance TiVo. My investment in Echosphere stock is well secured. This case doesn't phase (or time shift) me one single bit...

Re:This is good.

[Monoman]

DISCLAIMER: I do own a few Tivos and like them very much.

Tivos are a great product and I agree that Echostar deserves what they get if they "played dirty pool". I have not done enough research to know if Tivo's patent is too broad.

This Tivo patent may seem obvious and broad by today's standards but that may not have been the case when they applied for the patent. Patents exist so inventors can try to benefit before the vultures swoop in and capitalize in on someone else's work.

Tivo needs to get their act together. They seem to have a product far better than anything else on the market but may have burned some bridges in the past. They need to get their tech and service licensed to the cable/sattelite box makers. People using DVRs offered by their provider that haven't used a Tivo don't know the difference and don't care. They only know their DVR is better than not having a DVR and that it is (usually) much cheaper than Tivo.

In the end the customers will always pay for these lawsuits. That is the nature of the business world.

Re:This is good.

[Kattspya]

See the against intellectual property report chapter nine. "In fact, only 238 out of 1035 drugs approved by the FDA contained new active ingredients and were given priority ratings on the base of their clinical performances. In other words, about 77% percent of what the FDA approves is "redundant" from the strictly medical point of view." "Research by Sandy Weisburst and mentored by me showed, for example, that Italy, with a vibrant generic drug industry, did not achieve any significant increase in the discovery of innovative drugs during the first decade after the Italian Supreme Court mandated the issue of pharmaceutical product patents.

Re:This is good.

[Kattspya]

Goddamnit. Ignore my poor mangled comment. I can't even hit the preview button if I try.

Re:This is good.

[Trelane]

Let's say that you come up with some novel, highly efficient form of the internal combustion engine. You put millions into research, mortgaged your house, everything. Without a patent, or equivalent legal means of protetion, some auto manufacturer could by 1 engine, tear it down, and due to the economies of scale begin producing it more cheaply than you almost immediately. So you've just pissed away years of effort and millions of dollars. That would be OK with you?

Nope. Particularly in the almost inevitible next step, where One or More Large Car Manufacturers sue you for patent infringement (because they have patents on the flanges, widgets, and doohickies that are necessary to build an engine nowadays. [What, you didn't hire a lawyer to look over your shoulder the entire time while reading each and every patent on engine technology (both past and newly submitted)?!] You're subsequently forced to cross-license your patent with theirs (or else face huge fines) and now you've lost all economic advantage that you might have had. On the other hand, now you're free to turn out a modern engine that other vendors can use, so if you can get your business running, you could sell engines to the car manufacturers, if they want your engines which are now exactly the same (if not less, since you don't have the other patents, just the ones you infringed on).

one of the huge problems with patents currently is that there are so many for so many common things that you're almost certain to infringe.

Re:This is good.

[blakestah]

But at the same time, I don't think that TiVo should have such a broad patent on this technology. In this case, it seems they're using their patent defensively simply to stay alive in a market that can quickly and easily be taken away from them by the satellite and cable companies that provide the content transport.

I think this is EXACTLY what patents were made for.

The cable and satellite companies control the flow of content. TiVO had no say about that. They have an invention that makes the content more valuable.

The obvious solution for the content providers is to strangle TiVO out of existence, reverse engineer their product, and take the advances that a DVR brings to themselves.

Patents were created specifically to protect the inventors from leveraged competitors. TiVO was the first one to make a useful DVR, and they did a very good job expanding their patent portfolio for coverage.

Now, they are only demanding that the patents their invention and market are already using are enforced against competitors. This is not defensive patents - like the Wright bros who tried to take a toll from all airplane makers. This is an inventor with a product and a patent trying to make the most of it.

Exactly the scenario in which patent protect valid inventors against bigger competitors - why patent law exists in the first place.

Re:This is good.

[Glyphn]

Pharmaceuticals are a perfect example; they waste 80% of their income outside research. They spend more than twice as much on marketing and administration as they do on R&D. The protection breeds the expense which makes the protection necessary for the protected business model.

"Waste" is presumptive, although certainly they spend a lot more than they do on research.

Then offer them a 200% payback. Outright. Instead of a patent creating a monopoly, let it be worth a 200% ROI for the patent holder if it gets used in products to a certain amount within the next five (or ten, or thirty) years. Paid by the patent office, financed through ordinary state financing rather than a hidden economic tax in the incarnation of monopoly pricing. You get rid of the customer/inventor conflict relationship, small inventors get paid even if some big company rips them off, etc.

Interesting suggestion. It strikes me that a payout conditional on sufficient and demonstrable market adoption that also has to wait for X number of years after the product launch may not be all that great an incentive to investors. It's also not clear how it would keep costs down, since I can see research becoming increasingly expensive given the payout model.

Besides, if you are going to get the state involved at this level, why not go all the way and just have them fund research?

Economic incentives for R&D can take many forms. State protected monopolies has to be about the most inefficient and economically damaging model conceivable.

You have real-world counter examples that work better?

I'm ignorant when it comes to the economics, so maybe you have good points and I just don't see them. However, I've worked in Pharma R&D and currently interact with, e.g., marketing and sales so I see a bit of the non-R&D needs and expenditures. And I hear outsiders moan and complain about pharma prices all the time, sometimes throwing out suggestions that will "fix" the current costs of drugs--ranging from new patent standards to price fixing. Virtually all of these suggestions proceed from the assumption that drugs can be discovered, developed and distributed at much lower costs than they are now.

I have only one person's perspective to offer, no doubt biased from years of working in pharma, but here it is: The internal pressures to streamline in the interests of a better profit margin are substantial. There is also substantial waste, but I have a hard time imagining it is exceptional in companies as large and global as pharmas.

Re:This is good.

[Anonymous Coward]

Tivo's current systems are generally superior to most of the competition. Their problem is that they are EXPENSIVE. The cable companies realized that DVRs sell service, so like cell phones they give them away in exchange for monthly contracts. Tivo is selling $400 cell phones in a market where most people expect them to be free (even if a bit more junky). This is why Tivo is losing market share fast.

Umm, have you looked at what TiVo offers lately? TiVo gives away the boxes in exchange for a year service commitment.

Re:This is good.

[Captain Jack Taylor]

Software patents are still thankfully illegal in most civilized countries, and Japanese patent law just doesn't CARE (though there's a reason the non-entertainment software industry over there is pretty dead). I'm a software developer myself, and I WANT COPYRIGHT REFORM. All of this copywrong is getting on my nerves.

Re:This is good.

[MaverickUW]

If you read the articles, it shows even more desperation by TiVo.

TiVo vs Echostar- Echostar is infringing on patents owned by TiVo that allow for the recording of one program while watching another program (aka, anything one can normally do with a VCR) on a DVR.

Echostar vs TiVo- Tivo is infringing on patents owned by Echostar that allow for the pausing, rewinding, and re-forwarding) of live TV on a DVR.

Personally I'd be more afraid for TiVo when the other lawsuit comes to a head. Echostar's violation isn't of the most critical nature of what a DVR does. TiVo's though, from their very first advertisements, is basing their core business around the idea of pausing live tv.

Re:This is good.

[sdnoob]

yea!

i just noticed the original ruling was in *TEXAS* --- it wasn't in that one particular patent-whore friendly federal court was it? if it was, that definately explains the early tivo win, but now that the case is on appeals (and outside of that court), maybe things will be different (read: right).

Re:This is good.

[Anonymous Coward]

You poured *what* down your pants?

Re:This is good.

[uncqual]

...to the point that you had to mortgage your house, you don't have enough left to take on the auto manufacturer in the court ... Therefore, your patent is completely useless ...

You could still sell the rights to your patent to a third party. One possible customer would be another auto manufacturer who wants exclusive ownership of the technology and is willing/able to take on the legal costs to defend it. Another possible customer is a group of lawyers who specialize in these things. No, neither may be as profitable as manufacturing the engine (and the surrounding car) using the patent -- but nor do you have to risk your capital in building another car company just to exploit your patent. The current system sucks, but to say a patent is "useless" just because the inventor can't afford to develop and defend it is an overstatement.

Re:This is good.

[Rich0]

Then offer them a 200% payback. Outright. Instead of a patent creating a monopoly, let it be worth a 200% ROI for the patent holder if it gets used in products to a certain amount within the next five (or ten, or thirty) years. Paid by the patent office, financed through ordinary state financing rather than a hidden economic tax in the incarnation of monopoly pricing.

You essentially described how the phone company used to work. You know why the telephone company invented the transistor? Simple - their profits were a fixed percentage of their costs - the more they spent the more they made. As a result blue sky R&D was heavily financed - since every dollar spent was GUARANTEED a $1.10 return (or whatever the rate was). It also used to be the case that people would tiptoe around the house when somebody was on a long distance call, since the rates were amazingly high - probably a result of the aforementioned waste. Sure, the transistor was a good thing to come out of the arrangement, but for every dollar spent on R&D I'm sure 50 were spent on bureaucracy - since the more you wasted the more you made.

Pharmaceuticals are a perfect example; they waste 80% of their income outside research. They spend more than twice as much on marketing and administration as they do on R&D. The protection breeds the expense which makes the protection necessary for the protected business model.

Hardly - the figures you quote apply in ANY industry - Pharma actually tends to invest more in R&D comparatively than most industries. NOBODY spends more on R&D than they do on marketing. That is simply because people buy the products they see on TV regardless of whether they are better. If you ban advertising of any kind then maybe that might change. Your own figures above suggests Pharma is spending 20% on R&D. Name any company outside of Pharma that has comparable expenses - other than startups that obviously only spend money on R&D as they have no product to market (and even then they often spend money to create a market for products that don't yet exist). Even software houses that have low manufacturing costs probably don't spend more than 20% on R&D.

Don't get me wrong - I'd like to see more of the money going to R&D. However, that is a function of how society actually works - if you have to make a profit, then you need to market. And if consumers buy what the Hollywood actor tells them to buy, then it is more important to pay Hollywood actors to promote your product than scientists to make it better.

Re:This is good.

[Rich0]

Patents on drugs should not be lengthened because while it is very risky and expensive to do drug research, that's the nature of the business.

If it weren't for patents it wouldn't even be a business - at least not the R&D side.

Now, if society just wants to say that drugs aren't all that big a deal - who needs them - then maybe getting rid of patents makes sense. However, if that were really the position of society then there is another easy solution - leave the current system alone but don't buy the drugs (after all, without patents they probably wouldn't exist in the first place).

If the main concern is lowering drug prices, then something probably has to give. One option would be to lower safety standards - that would eliminate barriers to entry and increase competition, while driving down costs. Right now when a small company comes up with a plausible drug they license it out to a major pharma outfit - since nobody else can afford to find out if it is safe or not, or if it even works. The big pharma companies then share the profits if the drug works, and eat the costs if it does not (which happens most of the time). If you got rid of the Food, Drug, and Cosmetics Acts then there would be a flood of new drugs on the market at rock-bottom prices. Of course, there would be no way to know which ones work. A compromise might be to find some in-between standard for safety. However, the FDA has only been tightening the rules in recent years - it should be no surprise that companies are not releasing as many new products as in years past. And fewer products mean less competition and therefore higher prices. Besides - everybody has been complaining about me-too drugs being unnecessary - not thinking about the fact that having two pizza shops in the same town is also unnecessary but it is the only reason why pizza doesn't cost $6/slice... :)

Re:This is good.

[mungtor]

First, if the patent case was clear enough there will be a lawyer that will take the case pro bono for both the money and the exposure.

Second, you're confusing the problems with the legal system (the cost of bringing suit against a large company) with the principle behind a patent.

Third, calling checkmate incorrectly means that you lose.

In your world there is no reason to innovate at all, since a patent works against you and a large company will just steal your idea. So why do anything?

Re:This is good.

[Buran]

With a little luck, the original judgment will be dismissed, perhaps even Tivo's obvious patent invalidated.

The idea of a DVR may be obvious now. But was it obvious then? TiVo was the first to market a DVR and they invented the market. The rest are just trying to profit off the idea (and producing inferior product while at it, something which ruins TiVo's reputation).

Re:This is good.

[Buran]

Therefore, your patent is completely useless, and the only thing suing the manufacturer for patent violation will do is get your patent invalidated when you run out of the money to pay lawyers to defend it.

Excuse me, but you don't have to be rich to legitimately have an idea first. Some inventors become rich off their ideas, sure, but they didn't have a great idea because they were rich.

Show me the part of patent law that says "to be awarded a patent you have to make more then $x a year" or "you must have more than $x net worth".

Re:This is good.

[ZenFodderBoy]

TiVo has never earned a profit in all the years they have been operating. Look at their quarterly 10Qs if you don't believe me. Part of the reason they haven't earned a profit is due to the tremendous litigation expenses associated with defending their intellectual property, not to mention that some of players in the DVR market (Echostar and certain cable companies) chose not to license TiVo's technology and undercut their price for service with cheaper knock-off designs.

Re:This is good.

[Buran]

For anyone to compare a current Echostar DVR offering to an antiquated TiVo is just plain silly.

Oh, really? Then why is it that thousands of people who have used both TiVo and other products (like me; I've used TiVo, ReplayTV, and a generic) think that nobody can touch TiVo's usability? I'd say that there is quite a lot of opinion that TiVo really knows how to make something usable, and nobody else has managed anything more than a kludge.

There are also a lot of people out there who switch thinking the competition, being cheaper, must somehow be better ... and then switch back because they find out that you really do get what you pay for.

Unfortunately, TiVo is legitimately losing business due to the cheap generic clones of their product, and that's why they filed suit.

Re:This is good.

[Buran]

This is not defensive patents - like the Wright bros who tried to take a toll from all airplane makers.

The Wright patent was about the wing-warping control system on aircraft. Part of the result of that litigation was that an alternate method (ailerons, elevators) was developed, which is now by far the most common method.

Re:This is good.

[SonicBurst]

Yes, it was obvious even then. There are plenty of examples of prior art, just google for them. Like both myself and others have said in previous posts in this thread, the reason Tivo came out when it did wasn't because of the idea of HD based recording/viewing, it was just that drive technology had just reached the point of capacity, speed, and price that it was economically feasible to do it.

Credit to Tivo for getting there first (commercially), no doubt, and I still think they have the best dvr out there, but their marketing/pricing strategy has gone to hell and their legal tactics are starting to look like they are a company in desperation.

Re:This is good.

[Rich0]

"In fact, only 238 out of 1035 drugs approved by the FDA contained new active ingredients and were given priority ratings on the base of their clinical performances. In other words, about 77% percent of what the FDA approves is "redundant" from the strictly medical point of view."

Well, duh. And most of those compounds are probably also not patent protected (you didn't cite a time-range, but only a few dozen patented drugs hit the market each year). If Rite Aid wants to sell their own brand of aspirin they need to file for FDA approval, and if CVS wants to do the same they must also file for FDA approval. Neither is strictly needed from a medical standpoint, but all those senior citizens forced to choose between medicine and food aren't going to be complaining that they can buy generic pills for $2/bottle instead of Bayer for $10.

And even in cases where new medicines are just variations on existing drugs, there is still a huge market benefit. Consider cholesterol medications - the prices actually paid for these dropped over the last 10 years as newer medicines hit the market. This wasn't because of any benefit from the newer medicines - rather it was due to the fact that insurance companies could offer exclusive deals to one manufacturer in exchange for lower prices.

Also - ever hear of drug allergies? Strictly speaking we shouldn't need more than 1 antibiotic - the rest are mostly redundant. However, if you end up with a drug-resistant strain, or if you're allergic to that one antibiotic, then it is good that some manufacturer decided to come up with a "non-innovative" medicine that you could actually take.

I know somebody with a lot of drug sensitivity issues. If it weren't for the fact that there are multiple drugs on the market for various conditions she might have had serious problems.

Italy, with a vibrant generic drug industry, did not achieve any significant increase in the discovery of innovative drugs during the first decade after the Italian Supreme Court mandated the issue of pharmaceutical product patents

Why would they? Italian drug companies would gain little from the enforcement of patents in Italy. If they made money on innovative drugs in the past, it was probably from selling them in the USA (the only place anybody makes any money on new drugs, although Japan is a distant 2nd because there is a cultural fondness for taking pills). They would have had patents in the USA all along. The only thing the law change would do is allow them to make a few more bucks back home - but that would be a drop in the bucket.

What exactly is the problem with "non-innovative" drugs? People don't have to take them if they don't want to - and if they don't take them they don't pay a dime for them.

Re:This is good.

[Buran]

Yes, it was obvious even then. There are plenty of examples of prior art, just google for them.

"Just search Google" is not a valid citation; and, since the TiVo patents have been held to be valid upon a prior examination, it would seem that existing "prior art" was not accepted as valid prior art, so it would seem that no, the invention was not obvious at the time.

Re:This is good.

[ultranova]

Excuse me, but you don't have to be rich to legitimately have an idea first. Some inventors become rich off their ideas, sure, but they didn't have a great idea because they were rich.

But you do have to be rich to succesfully defend your patent against any corporation that would challenge it in court. You need to hire a lawyer and keep on paying him as long as the case lasts, and since the corporation can drag the court case so it lasts for years - just look at the SCO vs. IBM, which, while not a patent case, does clearly show just how long court cases can go on - and if you run out of money and can't pay the lawyer anymore, the corporation wins by default.

Show me the part of patent law that says "to be awarded a patent you have to make more then $x a year" or "you must have more than $x net worth".

I have never claimed such a law exist. I have simply stated that this is the logical consequence of how the legal system works - or rather how it malfunctions. If you are rich you can abuse the system to crush those who are poor. It's the same effect te RIAA uses to blackmail money from people by threatening them with lawsuits; guilty or innocent, the cost of defending themselves in court would be too high.

Re:This is good.

[Kattspya]

My comment was horribly mangled and half of it dissappeared that's why I told you to ignore it. I was referring to this report, chapter nine: http://www.dklevine.com/general/intellectual/again st.htm The point was that patent protection did not increase the ammount of drugs created. It also leads to patenting of redundant drugs and redundant drugs are bad from a utilitarian perspective. Note that I nor the report are talking not talking about redundant drugs per se. Read the report if you want to. I don't have the time to write a decent reply.

Re:This is good.

[SonicBurst]

I wasn't citing anything specific, hence no citation, but if you must: http://en.wikipedia.org/wiki/Digital_video_recorde r. The first one was tested in 1965. Is that prior enough for you?

By your logic, what you've just said is that if the patent office said it was so, then it must be. You are far too trusting.

Did you know that the average patent is researched for about 25 to 30 hours? http://www.ftc.gov/os/comments/intelpropertycommen ts/bartonjohnh.htm That's less than it takes to write the patent application itself. That isn't exactly a recipe for good research.

Re:This is good.

[Rich0]

I didn't see much in that article that addressed my criticism - the author aruges that if patents really worked then most drugs should be developed in countries with strong patent laws. This is incorrect. In fact, most drug companies should invest in selling new drugs in countries with strong patent laws, and this is what happens. The lion's share of drug profits are made in the USA. However, the US does not discriminate against foreign companies with regard to patents, so there is no benefit to being US based if you want to sell your products in the USA. Hence many drug companies are based in Europe, despite the fact that drugs don't make much money in Europe (they may have patents, but they also dictate prices and engage in compulsory licensing, which is little different from not having patents at all). So, you can't just look at the industry within a single country and assume that the patent policy of that country has anything to do with its health.

In fact, most clinical trials are done outside the USA due to cost - you have to pay people money to get them to take potentially dangerous pills, and that is cheaper to do in countries where people will sell their soul for $5. Also, laws regulating testing are laxer outside the US - even Europe is easier to comply with.

You also need to take data that is pre-1960s with a grain of salt. Drugs were a far different beast back then - this was long before drug development costs were what they are today. Sure, Germany was a big drug giant in the pre-patent days, but back then you could just inject a few volunteers with some compound used in dye manufacture, see that it made them more energetic, and and then sell it as a stimulant. If we wanted to get rid of drug safety regulations then the drug industry probably could survive without patent protection - but new drugs discovered under these conditions would not be of much medical use.

Re:This is good.

[Kattspya]

Thank you for taking time. Have you seen any empirical evidence that supports patents?

Re:This is good.

[Rich0]

Well, the status quo would be one form of evidence - tons of drugs on the market and patents are currently allowed. Obviously it is hard to do experimentation without making it an all-or-nothing proposition.

Another piece of evidence is pediatric extensions. A recent law (well, that is in the last 20 years) allowed pharam companies to extend their drug patents if they did testing on pediatric formulations of their drugs. As a result almost all major drugs are tested for pediatric use. Before the law this was very rare - who is going to test cholesterol medication on children when the market is non-existant? However, the fact is that a small number of kids do need this medication and as a result of the patent extension the companies have incentive to perform the testing. If the patent extension wasn't needed it would have been done before, but it wasn't.

Rather than just abolishing drug patents, there is a middle-ground solution. You could just have the NIH fund drug research, defensively patenting the resulting compounds and licensing them for free use by anyone. Then after a few years or a decade you could see how well publicly-funded medicine works out in comparison to the pharma industry. Patients would have a selection of cheap public medicines and expensive private ones. If the public R&D works out well, then the private industry will dwindle and the patent issue becomes moot. If the public R&D effort becomes a boondoggle as libertarian-minded folks argue, then it will be obvious and we will still at least have the status quo. This is better than just abolishing patents and potentially decimating the entire drug industry, which would be slow to recover even if the laws were reversed (after all, investors will be shy to spend a lot if the public could just destroy their investments again in the future).

Re:This is good.

[Anonymous Coward]

Finally, some real wisdom here. There is nothing inheritently unique about watching one show while recording another, no more than any multitude of various VHS manufacturers allowing you to hit record and the TV/VCR button simultaneously...

Hitting the TV/VCR button on a VCR is completely different from what you are doing on a PVR, since you are using the TV's tuner in the TV/VCR case. In the PVR case, you are using the PVR for recording and playback simultaneously.

Re:This is good.

[Kattspya]

"Well, the status quo would be one form of evidence - tons of drugs on the market and patents are currently allowed. Obviously it is hard to do experimentation without making it an all-or-nothing proposition. "

The only thing that 'status quo' shows is that patents do not devastate the medical research completely. Really convincing evidence should show a clear increase before and after patents. I'm not necessarily talking about an increase in absolute numbers mind you.

" Another piece of evidence is pediatric extensions. A recent law (well, that is in the last 20 years) allowed pharam companies to extend their drug patents if they did testing on pediatric formulations of their drugs. As a result almost all major drugs are tested for pediatric use. Before the law this was very rare - who is going to test cholesterol medication on children when the market is non-existant? However, the fact is that a small number of kids do need this medication and as a result of the patent extension the companies have incentive to perform the testing. If the patent extension wasn't needed it would have been done before, but it wasn't."

That only shows that if you subsidize something it has a positive effect for the thing subsidized and a negative effect on everyone else. It has nothing to do with patents per se.

" Rather than just abolishing drug patents, there is a middle-ground solution. You could just have the NIH fund drug research, defensively patenting the resulting compounds and licensing them for free use by anyone. Then after a few years or a decade you could see how well publicly-funded medicine works out in comparison to the pharma industry. Patients would have a selection of cheap public medicines and expensive private ones. If the public R&D works out well, then the private industry will dwindle and the patent issue becomes moot. If the public R&D effort becomes a boondoggle as libertarian-minded folks argue, then it will be obvious and we will still at least have the status quo. This is better than just abolishing patents and potentially decimating the entire drug industry, which would be slow to recover even if the laws were reversed (after all, investors will be shy to spend a lot if the public could just destroy their investments again in the future)."

Of course there are different sollutions. A revamp of the patent system is needed. I propose that it should be abolished but anything is better than now. I'm not really interested in a utilitarian debate on how patents should be reformed because I'm not sure I could do it well in english and I definately would have problems doing it within the slashdot comment system. I'm interested if there are any reports that supports the thesis that patents increase inovation.

Re:This is good.

[Rich0]

The only thing that 'status quo' shows is that patents do not devastate the medical research completely. Really convincing evidence should show a clear increase before and after patents. I'm not necessarily talking about an increase in absolute numbers mind you.

Considering that patents have been around in most lucrative markets long before drugs were developed, such evidence would be very difficult to obtain. How would you perform such an experiment short of abolishing patents? Just looking at single-country results is meaningless - nobody develops drugs with the goal of marketing them in Italy - they get sold there simply because once the costs are sunk you might as well sell them everywhere.

It is very clear that drugs don't get developed when there isn't a market for them. There are a number of clear examples. Just look at diseases that plague 3rd-world nations - they aren't rapidly cured as there is no money in it. If you get rid of patents the 1st-world nations are no different. Another example would be antibiotics - there are no new ones as nobody would pay premium patent-protected prices for some space-age antibiotic when penicillin does the job fine. However, all doctors would agree that we need more antibiotics. The only way they will show up is if governments fund R&D. If you get rid of patents you put every class of drugs in the same situation.

Basically the issue is that drug development costs money. It doesn't happen without heavy investment. Nobody invests money unless they are likely to get a return, unless they're a government agency or charity. Patents exist to generate this return. Without them you can certainly have publicly-funded R&D, but you won't have private investment. Maybe this works fine, but as I pointed out before you can have public funding of R&D without having to get rid of patents at all - ie have the best of both worlds.

Look at it like the FSF. They aren't out to ban proprietary software. They're out to compete with it and win. Now, software patents do interfere with this and they are a different beast since they tend to be general. Drug patents tend to be specific - the patent exists for a particular molecule. If you could get a patent for any drug that cures cancer I would agree that it is time to reform the system.

If there is a better way to develop drugs the solution is to just compete and win. ESR and Co didn't whine about MS Word - they wrote EMACS. Linus didn't whine about Windows - he wrote Linux. So, don't whine when chemists want to be paid to develop drugs - get out there and discover your own drugs, find volunteers to formulate them, find volunteers to test them out (good luck!), and make your own free drugs. Or, if you think you can afford to pay money for these activities without having patent protection on the final product then get a loan and try it.

The problem you'll run into is that while anybody with a $500 PC can write patches for linux, it takes a LOT more capital to outfit and run a lab, and good luck finding beta testers for your products... :)

It is tempting to take a solution that works well in one industry and apply it to others. The fact is that while I embrace free software and use it anywhere I can, it doesn't always work even in the software industry. To expect the idea to work everywhere is simplistic.

Re:This is good.

[Kattspya]

Much of your arguments are covered by and answered by the report. Basically it disagrees with you.

Thank you for the debate.

Re:This is good.

[Rich0]

Really convincing evidence should show a clear increase before and after patents. I'm not necessarily talking about an increase in absolute numbers mind you.

Much of your arguments are covered by and answered by the report. Basically it disagrees with you.

I thought you just got done telling me that the report did not cover evidence showing (or not showing) a clear increase before and after patents. Where is this covered in the report? I'd have assumed that if you already had this info you wouldn't have asked me to provide it.

As far as a report existing that disagrees with me, well I suppose I'll just have to live with that... :)

Re:This is good.

[Kattspya]

The report is anti patent, yes? It shows that less innovation has taken place in absolute numbers after patents are introduced.

I asked you to provide some sort of empirical evidence that strongly suggests that patents are beneficial. I think I did anyway, you shouldn't have answered to that malformed post as half of it disappeared.

Stayed Tuned For More Judge-on-Judge Action!

[Chaffar]

Consumers win, consumers lose... all of this is irrelevant, the truth is that we have a sh*tty patent system that's vague enough to have two judges give 2 different verdicts on the same case.

In all cases I believe that it is wrong to make EchoStar stop its service immediately, and to remotely disable the current consumers. Consumers that have already paid shouldn't be the ones to bear the consequences. But then again, the consumers' interest is the least of the worries of those concerned...

Re:Stayed Tuned For More Judge-on-Judge Action!

[LindseyJ]

Consumers win, consumers lose... all of this is irrelevant, the truth is that we have a sh*tty patent system that's vague enough to have two judges give 2 different verdicts on the same case.

So in other words, no different from any other aspect of our legal system, in which judges are about as likely to legislate from the bench as they are likely to judicate according to the law.

Re:Stayed Tuned For More Judge-on-Judge Action!

[qurk]

Yep! Just like this case: http://www.nytimes.com/2006/08/15/opinion/15tues4. html?ex=1313294400&en=687375003b802612&ei=5090&par tner=rssuserland&emc=rss I totally agree with you that the judges like to legislate from the bench!! This case of Tivo vs. Echostar is an example of the legal system working, I agree that you were a troll by throwing in your Rush Limbaugh talking point in this forum :)

Re:Stayed Tuned For More Judge-on-Judge Action!

[MECC]

All judges "legislate from the bench" in that they interpet the law and the constitution. Conservatives are upset because they correctly perceive an agenda from those interpetations. That agenda is clearly spelled out in a document called the 'Constitution of the United States of America', and make no mistake, it has an agenda. Its filled with things the religious right doesn't like, like keeping religion out of the government, civil rights for everyone, rule of law over rule of persons, freedom of *all* religions (not just christianty), etc., etc.

I'm sure if what you want is a government run by a few people and subject to religious dogma and no rule of law, damn near any judge that respects the constitution will appear to be 'legislating from the bench' to you.

You win some, you lose some, you win...err....

[PixelPirate]

And in Monday's news, a judge has overruled the judge, who overruled a judge, to initiate the stayed injunction that had been initiated. Holy Hell, after re-reading that, my eyes are bleeding!

WTF I submitted this yesterday

[gknac]

Thanks for giving credit where credit is due. Lets go to digg.com

Re:WTF I submitted this yesterday

[Anonymous Coward]

then do so and enjoy a bunch of twats going "OMGZZZ!!!!1!, this is teh shit. they is pwnd!!" or other equally inane comments

EchoStar runs UBUNTU !! It's true !!

[Anonymous Coward]

EchoStar runs UBUNTU !! It's true !! Run that up your flagpolel and salute !!

No confilct there.

[Tracer_Bullet82]

while perhaps Tivo has a superior product(which I won't comment eitherway).. the granting of patents to obvious things/concept in the long run would create a monopoly.

Monopolies rarely in the long run, or hect short run, produce products that are inferior or of lesser value.

Or put it in the other way, without the patent, other companies or inventors.. can produce prducts that are better. That's the nature of competition.

Death by UBUNTU

[Anonymous Coward]

Oh wait, the old joke was death by ubangi

When did it become obvious?

[Shivetya]

I always find the comment "the granting of patents to obvious things/concepts" amusing.

Obvious when? To whom? Why?

That is what patents protect. Before it is obvious. Someone has to not only come up with the idea but act on it. That last part is harder than anything.

I agree that some patents are inherently silly, being applied for well after prior-art existed. Yet if the disk based DVR and such was so obvious why wasn't it out and established before tivo?

Re:When did it become obvious?

[swillden]

Obvious when? To whom?

To a skilled practitioner of the relevant art, at the time of the invention.

The law already defines that. It's just that it's quite hard to prove obviousness, except in the case of prior art.

Re:When did it become obvious?

[SonicBurst]

Yet if the disk based DVR and such was so obvious why wasn't it out and established before tivo?
Simple...the necessary HD space just didn't exist at the time (well, economically anyway). First gen Tivos hit the street in what, 1997 or so? HDs then, 4GB to maybe 8GB if you were lucky, were just barely spacious and speedy enough to do what a DVR needs to do. The market appeared because the core technology (hard disks) had matured enough, not because of the idea of recording/viewing directly from HD had been patented.

Re:When did it become obvious?

[Plaid Phantom]

I would think the difference is between "That's so obvious, why didn't I think of that?" and "Well, yeah, that's just obvious. You just now notice that? Duh."

Re:When did it become obvious?

[Clockwork Apple]

In the early 90 (94ish) I had a huge argument with a girl who thought a tabe based system could be used to record tv, all of tv. Every channel, every show, everything. Yeah I know, but it put me off on a rant about using video capture cards and harddrives out the ass to get every show you WANTED to see from any channel.

This same chick also thought the solution to the economy was to print more money, so there ya go, but I think it shows that this can indeed seem obvious.

It may not seem obvious when you are thinking about lunch, but once you know about tv tuner cards and video capture, yep its totally fucking obvious. You just need the nudge to start thinking about how to record more than a VHS tape does. I had that nudge, anyone else?

C.

Re:When did it become obvious?

[Buran]

To a skilled practitioner of the relevant art, at the time of the invention.

If it was so obvious, as you claim, then the question you replied to stands: why didn't it exist before? Surely, if it was that obvious (and therefore, would be obviously a good moneymaker and obviously something people would pay for) then DVRs would have existed prior to TiVo.

You are falling into the trap of "oh, that's as obvious as the wheel." And yet, if the wheel is so obvious to us now, why didn't ancient civilization X invent it and make all that construction a lot easier?

Hindsight is 20/20 but foresight is 20/2000.

Re:When did it become obvious?

[swillden]

Surely, if it was that obvious (and therefore, would be obviously a good moneymaker and obviously something people would pay for) then DVRs would have existed prior to TiVo.

Patentability depends on the obviousness of the invention, not the obviousness of the marketability of the invention.

Note, BTW, that I wasn't claiming the TiVo was obvious, just answering the question about how obviousness is decided.

Re:When did it become obvious?

[Buran]

Patentability depends on the obviousness of the invention, not the obviousness of the marketability of the invention.

And since the TiVo patents have been upheld as valid previously, it seems that the invention was indeed unobvious at the time of invention.

I know that this is Slashdot and all but not every patent is junk, and therefore unworthy of existence.

Re:When did it become obvious?

[swillden]

And since the TiVo patents have been upheld as valid previously

Have they? I'll take your word for it.

it seems that the invention was indeed unobvious at the time of invention.

That hardly follows, either in a legal sense or in the more general sense of whether or not the patents are actually beneficial to society.

I know that this is Slashdot and all but not every patent is junk, and therefore unworthy of existence.

Agreed. However, I'd say that on a percentage basis rather few patents are not junk these days. Not that there isn't lots of pantent-worth invention going on, but the good patents are buried in huge numbers of junk patents making it generally appropriate to assume a given patent is crap until proved otherwise.

Regarding the obviousness of the TiVo patents, I haven't read either the court cases over the patents or even the patent claims, so I can't really comment on them specifically. I will say, though, that the general idea of a DVR was very obvious. I worked for a company that was building them in the mid 90s ('94?), though for broadcast studio use, not home use. Even then, the idea seemed rather obvious, the only thing that surprised anyone was the fact that the storage required seemed impossibly ambitious, especially since it required high-end SCSI drives in RAID arrays to provide the required streaming performance. Once drive technology advanced to where it was feasible and cost-effective, the idea of a home DVR was very obvious.

Note that I'm not saying TiVo's patents cover obvious ideas. There may well be some very clever and non-obvious ideas in the details of the patents. It's impossible to know without going through the patent claims in detail.

Re:When did it become obvious?

[Free_Meson]

Novelty and nonobviousness are separate requirements for patentability. You're conflating them. There is an argument for nonobviousness that draws heavily from the novelty of an invention (it invokes a long-felt unmet need satisfied by an invention to show its nonobviousness). As a DVR is just a VCR with a different storage medium, you'd have an obstacle to making such an argument.

Re:When did it become obvious?

[Anonymous Coward]

The first Tivos had 14 gig drives.

This is automatic

[MikeyTheK]

This is nearly automatic, but it is only a stay of execution for EchoStar. Unless there was some horrible mistake made by the judge, it's only a matter of time, and only gives EchoStar the chance to negotiate with TiVo to either get bought or pay licensing rights. In the meantime, that giant sucking sound you year is EchoStar's revenue going out the window.

Worst. Article. Evar

[ozric99]

Not only does the summary not let me know what the case was about - I assume some kind of patent infringement - the article is missing this information too. In fact, the summary is a straight word for word copy of the article, which is itself about 4 lines long - the only thing in the article that's missing from the summary is a typo in which it claims TiVo were awarded almost 74 billion dollars.

Good for Dish!!

[Anonymous Coward]

This is so ludicrous. Who does TiVo think they are? They don't own digital video recording technology. It's like one company trying to corner the market on VCRs back in the day. Besides, Dish PVRs aren't very much like TiVos, except for the fact they can schedule and record video.

Which brings me to my 2nd beef with both Dish and DirecTV. Charging a subscription fee to be able to digitally record programming is even more ridiculous. Could you imagine if VCR companies charged a subscription fee to use their product?

They will never stop us from digitally recording. There are myriad options from Myth-TV, to DVB cards, to stand alone set-top boxes that work perfectly fine for this type of application.

Let's hope TiVos absurd claim that they somehow invented and own digital video recording gets tossed in the crapper.

The word is inane

[LordEd]

inane: One that lacks sense or substance: interrupting with inane comments; angry with my inane roommate.

...and don't call me Shirley

what's the point?

[DragonTHC]

why should you go to court and spend millions fighting someone, if they can just buy a higher up judge and render your ruling "pfft"

Tivo won. echostar bought a judge who says, "don't worry about that pesky court loss, I say you can sell your DVRs"

why can't echostar just face the facts. they lost. they should be fucked.

but once again, we learn with enough money, you don't need to worry about the law or the courts.

I own a Tivo and I have dishnetwork(echostar). anyone with a DVR system that isn't Tivo thinks it's the same. It's not the same.

Re:what's the point?

[Anonymous Coward]

EchoStar didn't buy a judge. Its a standard thing to do when the case goes to appeal for the next court to "stay" the injuction right off the bat. They just need a little time to decide if the injunction should start before or during the appeal.

And everyone worried about losing their DVR service listen: If EchoStar loses they will most certainly choose to liscence from Tivo instead of fucking their customers. However much money they have to pay Tivo is nothing compared to losing customers because they had to drop a popular serivce.

Now I know lots of people are complaining that Tivo's patent is too general. I'm a loyal Tivo customer but I'm beginning to think so myself. That doesn't change the fact that the patent should have been challenged instead of this crap with EchoStar. Everyone has to play by the rules and in this case EchoStar didn't.

Re:what's the point?

[GalacticCmdr]

Tivo won. echostar bought a judge who says, "don't worry about that pesky court loss, I say you can sell your DVRs"

Wow, you really do not know much about things do you. This is pretty standard practice. The judge agrees to take the case - they will typically stay any injunction until they have time to look over the case for any mistakes or issues they need to rule on that may have effected the outcome. This really is very common and has nothing to do with "buying" off someone.

I suggest that you take off the tin-foil hat very slowly as to not disrupt your delicate balance. Come. Join the rest of us in the real world.

Re:what's the point?

[Burgundy Advocate]

Actually, when the IP case is tried in the notorious Marshall, TX courts in the Eastern District of Texas (read: TiVo went judge shopping), it's very common to have the case overturned.

Re:what's the point?

[Anonymous Coward]

I personally don't care too much if EchoStar cannot sell any more DVRs. All I care is that they are not required to disable ones that customers already paid for.

Re:what's the point?

[solitas]

I own a Tivo and I have dishnetwork(echostar). anyone with a DVR system that isn't Tivo thinks it's the same. It's not the same.

Please tell those of us who have neither tivo or dishnetwork what kind(s) of difference(s) there are. I've considered both companies in the past, but can't see paying someone else a subscription fee for the crap that's available.

Re:what's the point?

[Anonymous Coward]

Same reasons you use a web browser instead of raw telnet connections to browse the web.

TiVo provides a refined interface for filtering, organizing, searching, and storage service for the stuff that's available.

Between TiVo and the others is much like the difference between using Firefox or Mosiac.

MythTV

[Lars83]

OSS, no subscription fees, fairly straightforward to build.

Also, you OWN the recordings once you've made them.

Hidden cost: high electricity bills.

[Anonymous Coward]

You really don't think running a computer 24/7/31/365 won't cost any money?

Re:Hidden cost: high electricity bills.

[makomk]

You really don't think running a computer 24/7/31/365 won't cost any money?

You don't need to; nearly all modern PCs have the ability to switch themselves on at pre-scheduled times. Just set up MythTV to schedule a wake-up (using nvram-wakeup or similar) and automatically power off the PC when it's idle. (It's slightly arcane to set up, but it works; I only gave up on it because my current PC is very loud when it first powers on, and I have to sleep in the same room as it.)

Re:Hidden cost: high electricity bills.

[Anonymous Coward]

>You really don't think running a computer 24/7/31/365 won't cost any money?

Nothing's free, but electricity for a computer is darn near it.

Power consumption of equipment

OTC-H3100D00 P4 2.4GHz, 256MB usage: 41 watts.

Electricity price: 8.4 cents/kwh

41 * 24 * 365 = 359,160 wh = 359 kwh

359 * 0.084 = $30.16 yearly, or $2.51 monthly.

Considering most people have a $60 monthly cable bill, I think it's fair to say that another $2.51 is inconsequential. Especially considering you might be able to trim $5 worth of stations from the bill if you use the box effectively.

Re:Hidden cost: high electricity bills.

[loraksus]

What does a DVR run on? Fairy power?
Scheduled wakeups probably make it more efficient.

Overly broad patents

[caller9]

This is patently stupid. They patented being able to review one show while recording another. Wouldn't the VCR have prior art on this? Maybe they mean reviewing a previously recorded show while recording another. In which case I'm sure there is some "high end" dual-deck VCR out there capable of this back in the 80s.

Re:Overly broad patents

[Buran]

They patented being able to review one show while recording another. Wouldn't the VCR have prior art on this?

A VCR can only record the channel being fed into it, and has to position the tape in a particular position to write the data, so no.

The TiVo can read from one sector of the disk to play back a program and then x milliseconds later, write to another sector to write part of the program being fed into the tuner. Physically not possible for a VCR, but quite possible for a computer. (Technically speaking, it's not doing both tasks simultaneously, but computers are so fast at what they do that it's indistinguishable from true multitasking to humans).

Re:Merely a common appeal + review

[kansas1051]

Consumers win, consumers lose... all of this is irrelevant, the truth is that we have a sh*tty patent system that's vague enough to have two judges give 2 different verdicts on the same case

Two judges didn't give "2 different verdicts on the same case." A federal district court in Texas granted an injunction and Echostar appealed for immediate relief to the Court of Appeals for the Federal Circuit -- the court which oversees all patent appeals. The Federal Court temporarily block the injunction granted by the Texas court (as commonly happens in all cases where injunctions are granted).

This has nothing to do with the patent system, but rather the basics of our federal judicial system where parties have a right to appeal the rulings of lower courts to higher courts. I think this is normally covered in 8th grade, but here is a link for those who missed it: http://en.wikipedia.org/wiki/United_States_federal _courts

One point about Dish's superiority

[emarkp]

My Dish PVR has a 30 sec forward button on it. No "secret" code required.

Re:HUH! You had better read this then

[BetMonty]

Yes, you spelled insane correctly... and stop calling me Shirley.

The judge sold out!

[gwhenning]

I don't believe that the ideas behind the TiVo were obvious before they designed a box. While the TiVo is the next generation of a VCR, significant improvement went into the product before it was released. They built a very good service with some pretty decent hardware and showed it to the wrong people.

This is very much akin to the old netscape scenario, Netscape (Tivo) built this new thing called a web browser. Some folks at Microsoft (Echostar) took a look at it and said, "If we build that and add it to our service for free we can gain marketshare." How many people are still using the Netscape browser? Early on it was believed that Netscape had won the browser wars.

I think Echostar knew what they were doing at the time and should be held liable for their actions.

WTH?

[mgkimsal2]

Good lord I would have thought this would have been obvious to anyone who's used a DVR for awhile, but apparently it's not...

allow for the recording of one program while watching another program (aka, anything one can normally do with a VCR) on a DVR.

Look at a VCR. It holds one video cassette.

Look at a DVR. It holds one hard drive (usually).

Try recording to a VCR while watching another program on the same tape (or on a different tape). It's physically impossible. Recording to and watching from the same physical media is what makes the Tivo/VCR analogy fall apart.

(aka, anything one can normally do with a VCR)

Why not just argue that we've been able to do this all along with multiple television sets?

Re:WTH?

[MaverickUW]

Does TiVo's patent explicitly state that it's recording to, and reading from the same media at the same time? I was making a point that you could be recording one program with the DVR while watching another in normal TV mode. With Echostar's Satelite dish's, unless you have a dual tuner model, this is directly impossible within the same unit regardless.

I find it funny that you choose to argue an analogy (semantics in this case) instead of any other point.

And basically you're trying to tell me that TiVo patented the ability to read and write from the same media at the same time.

Re:WTH?

[SonicBurst]

Does TiVo's patent explicitly state that it's recording to, and reading from the same media at the same time? I was making a point that you could be recording one program with the DVR while watching another in normal TV mode. With Echostar's Satelite dish's, unless you have a dual tuner model, this is directly impossible within the same unit regardless.

If you're saying what I think you're saying here, ie: that a dish dvr can't record one show and watch another one that it has already recorded at the same time, then you're wrong. I do it all the time on my single tuner 508. If you're not saying that, then please ignore me :)

Re:WTH?

[mgkimsal2]

Not funny at all. I've posted on this tivo stuff before, and just chose not to get in to it all again. One of the big points of the Tivo technology argued during the case was the 'time warp' function. Tivo's page about the lawsuit - http://investor.tivo.com/ReleaseDetail.cfm?Release ID=207787 - mentions the 'time warp' patent: "The Time Warp patent discloses systems and methods for the simultaneous storage and playback of programs, supporting advanced capabilities such as pausing live television, fast-forwarding, rewinding, instant replays, and slow motion."

http://www.freepatentsonline.com/6233389.html has a quick summary, and IIRC, DISH's main defense was that they weren't converting to/from MPEG, so the patent wasn't valid. Also IIRC, that didn't prove to be enough to sway the verdict in their favor in April.

Any 'watching' in TV mode is still buffering to allow for pausing/rewinding/etc, so no matter whether you've got dual tuners or not, the buffering is what is violating the 'time warp' patent. My recollection from the trial notes I'd read was that DISH engineers had testified that their original pre-seeing-using-tivo versions of their DVRs wouldn't allow for pausing/rewinding/fastfwding during 'live' TV, only during playback of previously recorded shows.

This was stuff that was all being developed during the same time period by different companies, at least if we are to believe the Tivo bashers. If so, why were they the only company to be able to figure this out? Other companies had DVRs out even before Tivo which did not have this functionality. If it was simply a hardware limitation issue, the other companies surely still could have patented the idea with working prototypes which would simply be too costly to market (at that time) then bring the tech to market later when costs came down. I don't think that was the case. The materials I've read seem to point to Tivo having come up with a technique which was unique/novel/nonobvious *at that time*, and was able to implement it in a commercial play as well. Believing this to be the case (in absence of evidence to the contrary) I say good on them, and I hope echostar pays through the nose for the violations.

Link to the full patent: http://patft.uspto.gov/netacgi/nph-Parser?Sect1=PT O1&Sect2=HITOFF&d=PALL&p=1&u=%2Fnetahtml%2FPTO%2Fs rchnum.htm&r=1&f=G&l=50&s1=6233389.PN.&OS=PN/62333 89&RS=PN/6233389

Oh yeah?

[solitas]

Earlier Friday, a Texas court had ruled that EchoStar was forbidden to sell its DP-501, DP-508, DP-510, DP-721, DP-921, DP-522, DP-625, and DP-942 DVRs, and that customers would be forbidden to use them within 30 days of the ruling.

Dear mr. judge - has anybody yet told you today to go play with yourself?
</opinion>

Own? really?

[/dev/trash]

Did the copyright laws change?

Re:Own? really?

[Shadyman]

Did anyone else read "Own RLY???"

Tivo Sucks!

[I Own Things]

I am amazed at the fierce loyalty to Tivo in spight of their crappy GUI and equipment. The fact that the same folks who are willing to use (and be abused by) AOL, etc are willing to stay, or to lazy to reasearch and switch to the superior DISH NETWORK, is the only reason Tivo are still afloat....for now. Yeah, we have been DISH customers for years with not a single problem. We have tried others including TIVO, but their lame user interface (crappy menu system) and additional fees should make the choice clear to all that choose to actually try-and-compare the systems. Bill Voit

Already Seeing Problems Here

[Nom du Keyboard]

We also continue to work on modifications to our new DVRs, and to our DVRs in the field, intended to avoid future alleged infringement.'

I have a Dish Network DVR, and as of yesterday one of the features I like has quit working. This is the onscreen display of minutes remaining you can receive when you press the Select button during playback. I found that information useful, and miss it. It pisses me off that they can so easily remove functionality after I've agreed to take and use the unit as offered at the time.

In addition, they're taking away 10% of my hard drive space to pre-download PPV movies for instant viewing that I'm never going to watch! How dare they just take that space away from me. That's removing 10% of the functionality of the DVR with no recompense. I despise permitted modern business practices, and it's making my decision to leave Dish Network permanently easier ever day.

MOD PARENT UP!!! +3, Interesting.

[Anonymous Coward]

and use silicone adhesive to stick it onto the IR receiver window.

You mean scotch tape?