TiVO Patent Upheld, Dish May Have to Disable DVR

I Don't Believe in Imaginary Property writes "The US Court of Appeals for the Federal Circuit upheld a ruling by a lower court that Dish Network DVRs infringe upon TiVO's patent on a 'multimedia time warping system'. According to some analysts, this could not only make Dish liable for damages, it could force them to shut down their DVR service, harming their customers. The patent in question has already been reexamined once and the ruling on appeal (PDF) was unanimous."

Comments

the jury

[Psychotria]

The jury awarded TiVo $73 911 964 in damages. No wonder there are patent-trolls roaming about, with this kind of money being tossed around.

Re:the jury

[bersl2]

Hanlon's Razor: "Never attribute to malice that which can be adequately explained by stupidity."

I doubt jury misconduct; jury idiocy is more likely.

Re:the jury

[Kjella]

The jury awarded TiVo $73 911 964 in damages. No wonder there are patent-trolls roaming about, with this kind of money being tossed around. On the other hand Tivo is hardly a patent troll with no business, they have a very real product that has probably lost a lot of money to competitiors infringing on the patent. Nor has it really been a secret that Tivo has been holding these patents in the DVR market. What is outragous are the companies that never have and never will make anything based on a patent, but simply wait around to sue someone out of nowhere. Dish is hardly noobs, they have lawyers and if they've failed to come up with prior art ot fail the obviousness criteria then perhaps Tivo actually has been innovative? I'm really not too concerned with patent cases where the patent holder has actually used the patent and made a product that someone else is trying to shamelessly copy. Right now it's a "sunk innovation", Tivo has made the innovation and now they're reaping the benefits, but that kind of money is also motivation for someone to find a different way of doing things. It's very tempting to have your cake (have someone invest to make an innovation) and eat it too (let everyone copy it so you don't pay a premium) but it doesn't quite add up.

Re:No...

[niklask]

No, if you look at the patent the device allows you to watch one program while taping another. Which most "modern" VCRs could do.

VCRs taped what they were tuned to; if you wanted to watch something else you had to typically tune one channel with the VCR and one on the TV. Which most VCRs did. They had a separate tuner and allowed the analog signal to also pass through to the TV.

There is obviously more to the patent than just that, but this was the immediate difference that I noticed. But it really isn't the difference.

Re:The VCR is a Multimedia time warping machine...

[filbranden]

Also, DVR permits you to watch the program while taping it, in a way that allows you to "pause" it and continue later. This ability is included in TiVO's patent. There's no way to do this with a VCR, so it doesn't count as previous art for it.

Re:No...

[Anonymous Coward]

I used to watch one show while taping another on my VCR all the time. (It was the whole reason we bought a VCR!) Is the entire patent based on "you can set both channels on one device"? If so, it's worse than I feared, because that's a mind-bogglingly obvious feature, considering we were simply doing it by hand for the past 20 years.

Re:The VCR is a Multimedia time warping machine...

[multisync]

Also, DVR permits you to watch the program while taping it, in a way that allows you to "pause" it and continue later. This ability is included in TiVO's patent. There's no way to do this with a VCR, so it doesn't count as previous art for it.

Sounds a lot like "instant replay," the ability to pause, rewind and fast forward a live broadcast. They've been doing in sports broadcasts since the 60s. Using fancy video tape decks -"VCRs" if you will.

I wonder too - as others have - what the implications are for having mythtv or some other free pvr.

Nope

[Anonymous Coward]

Hardly. They're just trying to avoid investor and customer panic. The reality is that the TiVo timewarp patents are so broad that there's really no way Echostar can work around them without removing significant (and frankly necessary) functionality from their DVR.

Do yourself a favor and actually read the patents.

Re:Nope

[dgatwood]

What I don't understand is this: how could the courts possibly uphold a patent that has so much prior art?

• CNN FN was designing a similar system at the same time as TiVo as part of their video library system, as I recall.
• As best I can determine, the MVR VDR-210CF did this in the 1960s. Sure, it was black-and-white analog video and only held thirty seconds instead of thirty minutes, but otherwise, I believe it could do exactly what the TiVo time warp patent covers. Of course, they were forced to pause recording if they wanted to play back that full 30 seconds because that was the total storage capacity, but still...
• Radio was doing basically the same thing with digital delay on live call-in shows long before TiVo.
• Every computer that has ever supported audio in any meaningful way does exactly the same thing. It's called a ring buffer. Normally, the goal is to minimize the delay rather than maximizing it, but it's still exactly what TiVo is doing in every way, even to the point of the latency being adjustable (again, mainly to maximize stability rather than for delay purposes).

So basically, TiVo made trivial incremental improvements to a basic concept that had been used for decades whose sole enhancement of consequence is its intended use, and now has a patent that can hold the entire rest of the TV electronics industry hostage. This is a prime example of why patents need to be abolished, or at minimum, dramatically restricted in terms of breadth, what they can cover, and duration. This is basically a patent on using a fork as a backscratcher, and should be thrown out as utterly absurd in any rational universe.

Re:Naive question...

[Dahamma]

Are you kidding? Tivo is pretty much screwed at this point because most people are content (happy is too strong a word - have you SEEN an Explorer 8300!?) with the crappy DVRs their cable/satellite providers now give them.

They NEVER "got plenty of money" - I don't believe they have had more than a couple profitable quarters in 10 years (and those were probably due to lawsuits!)

Their only hope of survival at this point is to protect their patents (that probably still have a good 7-8 years left). Patents that seem to be violated by most of the other DVRs. They are just going after Dish because DirecTV still has Tivo DVRs in service, they made a deal with Comcast (which uses Motorola), and Time Warner uses Scientific Atlanta which is a stretch to call it a DVR ("piece of crap" is a better term).

The idea is not that no one else can make DVRs - it's that Tivo gets more money from Echostar. They only have to stop selling DVRs if they are not willing to come to an agreement. Though Echostar is the kind of company that is happy to screw over it's customers and blame someone else just to be cheap.

The Purpose of Patents

[localman]

I'm curious to see if I get flamed for this, but I'm going to say that on some philosophical level, Tivo should win this.

I've been very critical of patents in the past, and in general I think they are overused by trolls and big corps to squash competition on obvious ideas. But most people admit that somewhere underneath all that crap is the ideal of a little guy being able to spend a bunch of time and money to invent and bring something to market without having someone else immediately copy them and usurp the benefits of all their hard work. There's a valid, society benefitting reason for patents, it's just that they're almost never used in that way these days any more.

I think Tivo is an example of what patents should protect. My understanding is that Tivo was a pretty clever idea, and they spent a lot of time and money creating something very cool and unique. I never owned one myself, but friends did, and it seemed to me that if anything was patentable it would be Tivo. I was later a bit weirded out when all these competing DVRs appeared. In fact I took it to mean that the patent system was broken in both directions: it encouraged patent trolling over obvious ideas and it failed to protect inventors.

Now I hear that they may be getting patent protection after all, and for the first time since Dyson protected himself against the vacuum manufacturers that refused to license his work, I'm seeing patents do what they were meant to do: encourage actual invention.

If you think Tivo was not worthy of a patent, then I don't know what to tell you. It's not just a VCR, and if it were people would be including VCRs in cable boxes. They came up with something cool that nobody else was doing, and if I understand the market at the time, something nobody else wanted to do. And before they could turn a profit they were slammed by knockoffs from several sides.

Anyways: I just want to call out that while I generally gag at the patent cases I see, this is not one of them. I think Tivo brought something unique to market and they should have a (truly) limited time to exclusively benefit from it.

Cheers.

Re:The Purpose of Patents

[LordLucless]

The problem is this. Patents were never about protecting an idea, or a concept. They were about protecting a particular implementation. Originally, I believe, a patent required a working model or detailed schematic before it would be accepted. It was only that particular design that was protected. If someone else did the same thing using a different method, then your patent didn't affect them.

The problem with Tivo's patent is that it isn't particularly novel, and it's very broad. Yes, the idea of a DVR was probably novel at the time. But if you took an engineer, and asked them "how would you implement a DVR" (and described a DVR too them), it isn't a particularly difficult problem to solve. If that engineer could come up with the design Tivo uses, then the Tivo patent is obvious to a "person having ordinary skill in the art".

The idea behind a patent is to get ideas out in the open. It's a trade with the public - the inventor offers his schematics, and the public gives him a time-limited monopoly. If someone invents something - say a new stronger, lighter alloy - that nobody else knows how to make, then it's not in the public's interest to let the knowledge of how to make it die with him. So they say "we'll guarantee you nobody else will make your alloy, if you give us the process by which you make it". Now, if it's something that any metallurgist worth his salt could whip up in a month or two, then the public would be getting gyped on the deal.

The problem with patents now is that they seem to be more along the lines of "I thought of it first, therefore it's mine", whereas they should be "I built it first, therefore this design is mine". Personally, I think the way to fix patents is to make them more like copyright - patents protect from reverse engineering, but clean-room implementations should be safe.

Re:Naive question...

[Samari711]

This case is actually a textbook example of why patents exist. TiVo came up with a novel, innovative product and basically created the market for DVRs. Dish copies the idea, having to invest much less into R&D because they can just do what TiVo does, bundles it with their service so they can cut TiVo out of the market. TiVo is different from a patent troll because TiVo was actively developing and selling products based on the technology and were actually harmed by Dish's violation of their rights.

Re:Naive question...

[Anonymous Coward]

Bullshit. TiVO came up with a deadly obvious invention and managed to patent it first.

I had the concept behind TiVO years ago when digital video first started becoming available. It's an obvious idea that anyone who's worked with UNIX pipes could have thought of. TiVO is just more for video.

What stopped people from doing it before TiVO is the same thing that made TiVO ridiculously expensive at first: technology. Hard drives simply weren't big enough to make recording TV to disk a reasonable home application.

When that changed, we got TiVO. Now that technology has improved even further, we've got HD DVRs that can record up to something ridiculous like 50 hours of HD programming.

But the concept is simple. The idea was never novel, it's just assembling a bunch of off-the-shelf parts together. It's why TiVO is dieing - they may have been first to market, but they entered the market before technology had really caught up far enough to make DVRs cheaply.

GPLv2 violation already

[ArcRiley]

GNU GPL version 2, section 7:

7. If, as a consequence of a court judgment or allegation of patent infringement or for any other reason (not limited to patent issues), conditions are imposed on you (whether by court order, agreement or otherwise) that contradict the conditions of this License, they do not excuse you from the conditions of this License. If you cannot distribute so as to satisfy simultaneously your obligations under this License and any other pertinent obligations, then as a consequence you may not distribute the Program at all. For example, if a patent license would not permit royalty-free redistribution of the Program by all those who receive copies directly or indirectly through you, then the only way you could satisfy both it and this License would be to refrain entirely from distribution of the Program.

TiVO already uses GPLv2 code. Since they are enforcing their own patents on the use of said software they are in violation of the GPL when distributing the software running those DVRs. When they or any retailer sell a box or send a software update they are, thus, committing copyright violation.

This means that while they can nail Dish network for patent violation, they themselves have committed a copyright violation and opened themselves up to lawsuits from thousands of developers.

Re:GPLv2 violation already

[despisethesun]

I think you're reading too much into that. From what I read into it, it sounds like it covers scenarios like this:
You're using GPL-ed code in some piece of tech or software that you are distributing. Your software is now also GPL-ed, but let's say it's violating a patent held by Company X. Company X sues you, but you settle out of court and get a patent license. However, that patent license isn't transferable to the people who receive your software, and now the people who receive your software cannot redistribute it themselves according to the GPL. You are now in violation of the GPL and must cease distributing that sofware.

"You" in this example would be Dish, and "Company X" would be Tivo. If Dish were using Tivo's GPL-ed software in their product and that software were the cause of the patent litigation, Tivo would be in violation of section 7 because requiring someone to buy a patent license from them would not permit royalty-free distribution. But if Dish is using some other code (GPL-ed or otherwise), then Tivo would not be in contravention of section 7. Nothing would be preventing Tivo or the people who receive software from them from distributing that software freely. GPLv3 closes this loophole.

Also, I don't think Tivo uses much GPL code aside from the Linux distro that apparently powers the box. That doesn't necessarily mean that all of the software on a Tivo box must be licensed under the GPL, just as not all the software that comes with a Linux distro for your PC must be GPL-ed.

Re:Naive question...

[FlyingGuy]

For the same reason we have a copyright system. To allow a very few to extract above-market profits for an unreasonable amount of time at the vast expense of the many. Thank your Congressman for that, it wasn't always this way.

Yes that is the same tired response from someone who has never done the hard work, invested every penny they had and borrowed money from their family to bring a product to market, just to see it jumped on by 18 knock off shops and never see a penny for all their hard work. Yes there are things broken in both Patent and Copyright law, I certainly agree with that. But to hear someone like you blather on about the evils of patent and copyright just sickens me.

I know someone who put himself through school to get a phd in optical design and spent every waking moment writing a better piece of optical design software. His software did 95% of what the major players in the optical design market did for 10% of the price. He published version 1.0 and before he knew it there were pirate copies showing up all over the place. Version 1.01 came along with a DONGOL to protect his Intellectual Property. The software is well into version 10, years later and it still comes with a DONGOL.

Here is your clue... Beer is not free, Freedom is not free, Food is not free, School is not free, Electricity is not free... Get it, NOTHING is free. Take down all the structures we have, no technology, no internal combustion engines, no silicon wafers, no steel mills, nothing, and life is not free. You have to work hard every damn day to survive. The people who invent deserve the fruits of their labor, the people who create great works of art deserver the fruits of their labor, the people who create great software deserve the fruits of their labor.

So stop whining and complaining and go invent, go create, go design, go and WORK because you to deserve the fruits of your labor.

Re:The VCR is a Multimedia time warping machine...

[TimothyJones]

Instant replay was a VCR that was on site, not consumer controllable. Big difference

No difference. What does technology have to do with the market in which it exists other than catering to it.

Regardless. It's a bullshit patent. I've been doing that crap with VCR's years before TiVo albeit it was neither this pretty nor flexible. Digital format simply offers new advantages in terms of application, speed, and cost but to patent recording 2 programs at once or recording one and watching another? What kind of crap is that? It's not even an idea, it goddamn obvious.

Live TV has nothing to do with it, it is never live, it's a case of a AV feed source being digitally saved to a HDD, then opened and - in this case - played back. All a DVR does is access stored files from different processes. My computer does this all the time. It is doing it right now. What will they claim next, that they invented shared file access?

not clever

[nguy]

I think Tivo is an example of what patents should protect. My understanding is that Tivo was a pretty clever idea, and they spent a lot of time and money creating something very cool and unique.

Many people had this idea before TiVo; it's a pretty obvious idea for people working with digital video, and there were many of those around when TiVo was founded.

I think Tivo brought something unique to market and they should have a (truly) limited time to exclusively benefit from it.

Issues of creativity aside, the purpose of patents is to promote progress. How did this patent promote progress? TiVo became big and successful before their patent had any effect. And DVRs would have been done anyway, with or without TiVo, as soon as the hardware price was about right.

This patent should have struck down because (1) it's just a digital implementation of an existing, analog process, and (2) the technique is obvious to someone of ordinary skill working on digital video.

Re:Naive question...

[divide overflow]

The individuals who do the actual inventing rarely make much money. It is the people who market the inventions and get ownership of the intellectual property rights who typically end up with most of the money. Any lawyer can confirm this. Sad but true. The few inventors with the savvy and resources to fight off the charlatans and their lawyers and reap the fruits of their labors are a rare breed, and are becoming ever ever rarer with each passing day.

Re:Naive question...

[Mr2001]

I know someone who put himself through school to get a phd in optical design and spent every waking moment writing a better piece of optical design software. His software did 95% of what the major players in the optical design market did for 10% of the price. He published version 1.0 and before he knew it there were pirate copies showing up all over the place. Version 1.01 came along with a DONGOL to protect his Intellectual Property. The software is well into version 10, years later and it still comes with a DONGOL. So, he set out to make money by undercutting the "major players", and then got upset when he got undercut by someone else in turn? Forgive me if I don't see the big deal.

(BTW, you misspelled "dongle".)

Here is your clue... Beer is not free, Freedom is not free, Food is not free, School is not free, Electricity is not free... Get it, NOTHING is free. Take down all the structures we have, no technology, no internal combustion engines, no silicon wafers, no steel mills, nothing, and life is not free. You have to work hard every damn day to survive. Not if you have patents and copyrights, you don't! You can work hard for a little bit up front, then sit back and keep squeezing money out of the work you've already done.

Seriously, what you're saying is pretty much what I've said in every copyright thread, but somehow your conclusion is 180 degrees off. If you want people to keep working, then abolish patents and copyrights: make them work for their income instead of charging rent on work they did in years past.

The people who invent deserve the fruits of their labor, the people who create great works of art deserver the fruits of their labor, the people who create great software deserve the fruits of their labor. Of course they do, but some of them seem to want more than that. They want the fruits of everyone else's labor too, just because those others used some of the same ideas.

So stop whining and complaining and go invent, go create, go design, go and WORK because you to deserve the fruits of your labor. Don't tell that to us, tell it to the people who want to milk their copyrights and patents instead of working!

Re:No...

[TheRaven64]

I have not read the patent, but I wonder if they are claiming recording one program and watching that same program (time shifted) at the same time. That would make sense in the context of TiVO. If so, I don't think any consumer devices can be used as prior art, although there are almost certainly pro devices that allow footage to be edited while it is being imported.

Re:Naive question...

[TheRaven64]

So, he set out to make money by undercutting the "major players", and then got upset when he got undercut by someone else in turn? Forgive me if I don't see the big deal. You honestly don't see the difference between someone undercutting their competitors through creative endeavour and those undercutting their competitors without creating anything new? Can you imagine what kind of society this view would create if shared by everyone?

Re:Naive question...

[Anonymous Coward]

Ay company making any product has to do those steps you added in, doing them does not make a product worthy of a patent. The GP's point is not that he should be getting damages from anybody, but that the idea was just an obvious one waiting for the technology to become cheap enough to implement it, and obvious ideas are not worthy of patents.

Re:The VCR is a Multimedia time warping machine...

[stang]

Its a bullshit patent. Ive been doing that crap with VCRs years before TiVo

No, you havent. There has never been a VCR that allows you to rewind and watch from the beginning at the same time recording continues. Tapes cant, and dont, work that way. Instant replay in sports involved (I dont know the specifics) multiple machines and some coordinated efforts by the broadcast team.

All a DVR does is access stored files from different processes. My computer does this all the time

TiVos patents include a very specific method for processing and laying down the data so that you can get DVR functionality with a low-powered processor and a slow hard drive. And do it without pausing or stuttering or losing audio sync. When you throw a dual core processor, a gigabyte of RAM, and a 7200 rpm SATA drive at the problem, there are a lot of ways to do this without infringing on TiVos patents.

My computer does this all the time. It is doing it right now

I doubt it. Your machine may be pulling files off the hard drive, but to compare that to what a TiVo does is disingenuous at best.

This isn't "the patent system working".

[argent]

Tivo has bought up an ancient overly broad patent that shouldn't ever have been granted in the first place, a patent that would have prevented them from getting started if the owner had noticed them and decided to enforce it against them, and are using it to cut down on competition.

If Dish had bought that patent instead, and Tivo was on the losing side, nobody would be defending Dish. And it could have happened that way: that's the way patent trolls work, after all. A stopped clock tells the right time twice a day, and if a broken system NEVER happened to be abused by someone who would have a valid case if the system actually worked as intended that would be surprising... but regardless of Tivo's innovation, they're not being rewarded by the patent system for their own patent that they created as a result of their innovation, they're being rewarded because they happened to buy into a trollable patent before someone else did.

And the purpose of the patent system isn't to reward "first to troll".

Who's Whining?

[mkcmkc]

So stop whining and complaining and go invent, go create, go design, go and WORK because you to deserve the fruits of your labor.

No thanks. I'll work because I love doing it and because I want to make the world a better place.

The people who invent deserve the fruits of their labor, the people who create great works of art deserver the fruits of their labor, the people who create great software deserve the fruits of their labor. Perhaps so, but if that's your goal, we know that the current patent and copyright laws will not accomplish it. The current system is just a crap shoot, albeit heavily weighted towards those who (a) have a lot of money, (b) want to make a lot of money, and (c) are willing to spend a considerable amount of time gaming the system rather than being creative.

Re:The VCR is a Multimedia time warping machine...

[foniksonik]

Yes but for patent purposed... is there a difference whether the mechanism for doing so was in the studio or in your home? If it's just miniaturization and aggregation of a process already in place, conveniently packaged at a price point for consumers, does it count as new and non-obvious?