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TiVo vs EchoStar: Echostar found to be in Contempt

Discussion in 'General DISH™ Discussion' started by Curtis52, Jun 2, 2009.

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  1. jacmyoung

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    A patent application submitted by TiVo in 2003, which was recently rejected by the PTO on 6/9/2009, and the reasons behind the rejection appear to have some interesting relevance to the current "ring of buffer" argument.

    The rejected TiVo patent application is titled "Digital Video Recorder System". Below is an excerpt of the PTO rejection:

    The prior art used to defeat the TiVo's patent application, which was very similar to the "Time Warp" patent, clearly discussed the need for the use of the "ring buffers" to store digital video streams before recording to the HDD. Every DVR has it. Without such buffering the HDD simply cannot record the programming, the HDD heads do not have sufficient bandwidth to do a direct storage.

    TiVo knew E* removed the "automatic flow control" between the "transform object" and the "source object". But TiVo is also very familiar with the concept of the "ring buffers". After all they had been arguing with the PTO on this issue for all these years in a separate patent application.

    TiVo knew there had to be such "ring buffers" still used in the DVRs to allow the storage of programming onto the HDD, so they easily found them in the E* modified DVRs, then insisted that the operation of such "ring buffers" met their so called "automatic flow control" art, without telling the court that such "ring buffer art" had already been rejected by the PTO in TiVo's another patent application, because it was made obvious by prior art.

    The TiVo's "Time Warp" patent has nothing to do with such HDD "ring buffers" art, TiVo knew it because they tried to claim such art in a later application and was rejected by the PTO, yet in an attempt to nail E* for contempt, they withheld such patent procecution history information. TiVo knew they could probably get away with it because it was a different patent application.

    In the latest PTO filing, in response to the PTO's rejection of its software claims in this "Time Warp" patent, TiVo stated that they needed more time to respond to the PTO rejection, mainingly to use the "flow control art" and the "secondary considerations" to overcome the rejection. TiVo also knew that the "flow control art" in its "Time Warp" software claims could not be the "ring buffers art" they claimed in the contempt proceeding, I think that is the real reason TiVo wanted to extend their response time to be one day after the 11/2/09 appeals court oral arguement, so that E* cannot use TiVo's 11/03/09 response to the PTO as evidence.

    If E* were smart enough, they should have gone through those TiVo patent applications, and use the arguments by TiVo and the PTO to demonstrate how TiVo had managed to, knowingly I might add, manipulate all those different art in order to win Judge Folsom over.
     
  2. Jhon69

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  3. jacmyoung

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    After reading the entire PTO 11/2/08 rejection of the TiVo "Digital Video Recorder System (DVR System)" patent application filed in 2003, I just realized that the same rationale can be used to reject the entire TiVo "Time Warp" patent.

    The only difference between the "DVR System" patent application, and the "Time Warp patent" is that the "DVR System" obviously only deals with digital programming broadcast, not analog broadcast.

    But all current DVRs, including the E* old infringing DVRs, the modified DVRs, the newer E* DVRs, and all AT&T and Verizon DVRs, all of them are digital-only (at the intake) DVRs. Apparently, no one had paid attention to the PTO's 11/2/08 rejection of the TiVo's 2003 "DVR System" patent application. But if anyone reads through the PTO rejection documents, one could easily reach the conclusion that the TiVo's "Time Warp" patent may be rejected for the precisely same reasons. After the 11/2/08 rejection, it appears TiVo had tried to amend (adjust, replace, remove or add) the claims in order to overcome the rejection, and both times the PTO continued to reject the application. As of now the application stands rejected.

    I have the 11/2/08 PTO file in PDF format, only problem is I do not know how to uplink such file here. One can search the PTO site for this file, but not an easy task so I will not try to explain how.
     
  4. dgordo

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    If you click on "manage attachments" you should be able to uplink the pdf.
     
  5. jacmyoung

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    Thank you, did not know such option. I will scan a later rejection made on 6/9/09 too, then post both PTO files.

    On my initial count, the PTO had used a total of 7 prior patents to reject the TiVo's "DVR System" patent application filed in 2003. Add the two prior patents used by E* to reject the software claims, we get at least 9 prior patents in the play.

    The more interesting part is, when TiVo made their arguments to overcome a rejection, the PTO would simply found some additional prior patents to again reject the claims.

    What that tells us is, like some members argued, TiVo was not the first to invent the DVR. There are so many prior art out there for the PTO to choose to reject the claims, if only they try hard enough.
     
  6. jacmyoung

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    Turns out the PTO has a total of three non-final rejections against TiVo's 2003 "DVR System" patent application:
     
  7. jacmyoung

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    In one of my earlier posts, I said that the three patents TiVo is suing ATT/Verizon over for infringement, one was the old “Time Warp” patent found in this TiVo v. E* suit, the other two newer ones, one appeared to be an “MRV patent” and the other appeared to disclose a way to help remediate slow remote response between the remote commands and the response of the DVR.

    As I become more familiar with the PTO patent application review process, I looked more carefully into this what I used to call “MRV patent” and realized it was not about MRV, rather PIP (picture in picture) art.

    First off, both the new patents are “continuation” or “child patents” of the “Time Warp” patent. While I am no patent expert so correct me if I am wrong, my guess is you have to first infringe on the parent patent in order to infringe on the child patent.

    As far as this “PIP patent”, initially TiVo constructed the claims to disclose the use of a single DVR with multiple tuners to perform the PIP functions. After several PTO rejections (due to prior art), TiVo modified the claims terms to disclose the use of one DVR and one “subsystem” to perform the PIP functions. This was where I got the impression that it could be an “MRV invention”, because you had a DVR and another client receiver working together.

    But further reading of the specification and the claims terms revealed that the TiVo PIP functions are performed by a single user at the same location, therefore it cannot be an MRV invention, only a PIP invention. This PIP invention is advanced in that the single user can perform DVR trickplays simultaneously and individually on both outputs, one from the DVR (for the full TV screen) and one from the “subsystem” (for the PIP).

    I think TiVo will have some problem proving infringement by ATT and Verizon, because while they both have similar PIP functions, they only use a single DVR unit, no need of a “subsystem”. Had the PTO granted TiVo the patent as it initially worded, i.e. using a single DVR, it would have been a no brainer that every DVR maker that allows PIP functions by a multi-tuner DVR would have infringed on this TiVo patent, but the PTO only allowed TiVo to disclose the PIP art by the use of the combination of a DVR, and a “subsystem”.
     
  8. jacmyoung

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    I actually found what appeared to be the rumored TiVo “Multi-Room Viewing (MRV) patent” application. This application was filed on 4/5/01 and “abandoned” on 10/5/09, just a few weeks ago. The latest claims language in this application read very much like an MRV art, in which a system is able to store and playback at least two different MPEG programs separately and simultaneously, trickplays can be performed with the use of “the user control command”, and at the same time trickplays can be performed on another program with the use of “the second user control command”.

    The application process had gone through several rejections and amendments. The latest PTO non-final rejection was issued on 2/2/09, and the PTO issued the “Notice of Abandonment” on 10/5/09 due to TiVo’s failure to respond to the 2/2/09 rejection. Below is a copy of the PTO 2/2/09 rejection:
     
  9. jacmyoung

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    After reading today's ATT's response to TiVo's lawsuit, a few interesting things:

    1) ATT claims all of the three TiVo patents are "illegal", which could indicate they would try to invalidate them at the PTO.
    2) ATT also claims these patents are invalid, which means they will try to invalidate them in the court.
    3) Of course ATT denies all infringement allegations.
    4) I guess since Verizon never filed a response, the parties anticipate the two lawsuits will be combined.
     
  10. jacmyoung

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    ATT's actual wording was those patents were not "duly and legally issued" which points to their intent to have the PTO invalidate the patents through reexaminations.

    Hopefully, those prior patents used by E*, and those used by the PTO which I have linked above, will be a good start:) The PTO recently (from 2008 on) has been using a different set of prior patents to reject several other TiVo patent applications. They certainly will add to ATT's arsenal.

    E* has been using only two prior patents, which were used by the PTO back in 2006/2007 during the last reexamination, one of them was only mentioned but not relied on by the PTO in 2007 BTW. The only things needed from ATT are the same kind of balls Charlie has to take it all the way:)

    By Friday we should be able to find out what TiVo is going to say to Judge Folsom regarding the sanction issues, specifically the attorney fees and cost.
     
  11. jacmyoung

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    Below is some interesting info I think many of the readers may like to know.

    I had always wondered what exactly were the ReplayTV patented DVR trickplay functions like. Also since DirecTV had bought ReplayTV on the cheap, has DirecTV continued to enhance the ReplayTV patent portfolio?

    Below is a copy of the ReplayTV inventor's latest argument doc in order to overcome the PTO's rejection. After such argument the PTO granted the patent in early 2009. This patent was filed in 2000, and is the continuation of the original ReplayTV patent filed in 98 and granted in 01. The original ReplayTV patent was filed a few months after the TiVo's "Time Warping" patent application, and also granted a few months after the TiVo's "Time Warping" patent was granted.

    The latest ReplayTV patent argument doc below explains what the original ReplayTV patent was all about. Basically the ReplayTV DVR patent disclosed an invention in which the DVR receives MPEG data (or if analog converts to MPEG first), when the MPEG data are stored onto the hard disk, a special encoder would place "access points" onto the data stream in certain interval, say hypothetically every 1/10 of a second. Later during playback, the user presses the 30-second skip forward, the DVR will simply display the data from the first point, jumping to the 300th point. And if the user wants to skip back 5 seconds, the DVR will just jump from the existing location 50th point back.

    It is very clear the ReplayTV trickplay gig is very different from the TiVo trickplay gig. A TiVo's DVR does nothing to the MPEG data when it records the data on the hard drive, instead it uses a "media switch" to "parse" out the time stamps already exist in the MEPG stream, store such time stamp info along with the raw MPEG stream onto the hard drive. During trickplay it uses the time stamp index to find the correct location in the raw MPEG stream to skip to.

    The new E* DVR gig on the other hand does nothing to the MPEG data when it records the stream onto the hard drive. Only after the user issues a trickplay command, does the DVR begin to search the correct location in the raw MPEG stream to skip to, to do so it guesses where the location is, if the first time the location is not guessed correctly, it starts over from the mid point between the start point to the guessed point, then guesses the second time, if the second guessed point is still not correct, it then again pick the mid point between the two guessed points to do the third guess, therefore eventually narrows down to the correct location. Of course such guess process is done by the CPU in very short time, not noticeable to the users, but nevertheless requires high CPU processing power. Which is why on some of the older E* DVRs the users reported artifacts during the trickplay.

    My understanding of those processes may not be totally on spot, but I hope the above information explains why there can be many different DVR trickplay inventions.

    The document below demonstrates that DirecTV might still be working on adding to the ReplayTV patent suit:
     
  12. jacmyoung

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    Why am I not surprised TiVo requested another extension to file a request regarding the attorney fees and cost? Now my question is if the filing will be pushed to after the appeals court hearing, will the sanction issues ever be considered by the appeals court? If not, then what was the point of addressing the sanction issues “well in advance of the November hearing,” as Judge Folsom had hoped for?
     
  13. dfd

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    Reads a lot like a JOINT request doesn't it?

    Read the document you attached. It was agreed to by both parties yet you make it appear as if it was a Tivo request only.
     
  14. jacmyoung

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    Yes this is the third such "joint stipulations" in delay of the sanction issue filing, each time in the past when Judge Folsom granted the motions he called them "TiVo's requests", unopposed by E*. All the requests have been submitted by TiVo.

    BTW, if Judge Folsom grants this delay, it means the sanction issues will not be finalized before the 11/2 appeals court hearing, if so the sanction issues cannot be addressed on appeal, only the contempt and infringement issues. Or to put it this way, TiVo by delaying the sanction issue filing has pretty much ensured the sanction issue, if even legit, will have to be addressed in a later appeal, if there will be one.

    Any lawyers?
     
  15. jacmyoung

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    Not surprisingly Judge Folsom granted the TiVo request.

    dfd you were correct they were all supposed to be "joint stipulations", though as I said they were all filed by TiVo. I initially questioned why the court continued to call them each "request/stipulation...filed by TiVo" and continue to wonder the same. Judge Folsom does not seem to view them as joint stipulations.

    So by court order, we should not hear any more sanction issues until after the 11/2 hearing. That certainly removes some pressure (if there were any) off E*. It appears both parties are preparing for the hearing and will assess their chances after the hearing and go from there.

    There can still be surprises though, never say never. As I pointed out in an earlier post, TiVo can still try to coax Charlie to settle, if TiVo gives all the reasons for Charlie to settle, some of the points I made were:

    1) Reimburse all or some of the E* costs during the contempt proceedings;
    2) Withdraw the case in exchange of E* withdrawing the reexamination (if possible);
    3) Cross-liscense or work together on the new ad technologies under a co-branded DVR platform.

    While TiVo clearly is on the cutting edge of the new ad technologies, E* is noted to be "the other company" that actively collects and uses sub viewing data, and E* holds the Sling patent which is very critical in combining TV with Internet.
     
  16. dgordo

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  17. jacmyoung

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    Hopefully such pre-hearing settlement speculation was based on a leak, not based on the granting of the delay of the sanction issues to 11/6:), which is the only known news.

    Since this court news can only logically lead to the conclusion that a settlement becomes less likely, my guess is there was some leak that triggered the market movement.
     
  18. jacmyoung

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    I have long ago said I knew little nor care much about the stock market, only this or some other related court cases, so don't bash me clueless for making the following comments:)

    First let's agree any potential news of a "settlement" between TiVo and E* will lift TiVo's price, not so much DISH's price.

    The question is by how much and based on what detail. If the above report is accurate, most of the TiVo trades today were institutional trades. Those are professionals and if we assume they got some leaked info, they should at least know some detail of the leak.

    If the settlement involves a wholesale licensing deal, it would have meant a huge revenue boost for TiVo for a long time to come, not only from E*, but potentially from all other DVR providers. Such revenue boost should propel the TiVo stock price into the 20's easily.

    But the stock price rose from above $11 to above $12 only, which points to a settlement that has no guaranteed revenue, only that the lawsuit is finally over and there could finally be some cooperation between TiVo and E*, instead of fighting each other.

    If the above is close, then who has won the court case?
     
  19. Jhon69

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    Looks like Tivo's CEO Tom Rogers may have had some stock to unload.;)

    Well I have now operated the DirecTivo HR10-250,the R15 and R22.Now I am operating a Dish 625 and in my opinion the Dish 625 has the better technology so the reasons for this lawsuit are becoming more and more clearer in my opinion.When a company comes out with a better technology(Dish/Echostar).The other company that lives and dies by the DVR(Tivo) has to file a lawsuit to try and survive or be assimilated and go out of business.It seems that simple to me,I vote assimilation.
     
  20. jacmyoung

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    I don't know about Rogers but I did read somewhere that the day after Judge Folsom ruled the contempt, some TiVo inventors (not investors:)) unloaded good numbers of TiVo stocks and made some handsome profit. Nothing wrong with that though.
     
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