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Discussion in 'Legislative and Regulatory Issues' started by Tom Robertson, Feb 17, 2009.
WOW! Not good for DISH.
I don’t see where Dr. Rhyne was confused. He basically took TiVo’s words which said the index table was the core of the invention, E* had it, and TiVo had it, so E* infringed.
What TiVo did was trying to point out that the core of invention was in reference to the hardware claims, not the software claims. Dr. Rhyne never was trying to address that, only that if TiVo said this was the core of their invention, and now this core is no longer there, Dr. Rhyne’s opinion is the difference is more than colorable. It has nothing to do with which claim, just an opinion based on some statement TiVo made during the trial.
Of course I know what TiVo was trying to say, but “indexing” is not relevant to the software claims because the word “indexing” is not in the software claims. But I think I have already pointed out earlier, it was TiVo who tried to use the “indexing” to try to prove E*’s old design infringed on the hardware claims, except that the hardware claims also have no mentioning of the word “indexing.”
So please explain why was the “indexing” relevant to the hardware claims back then, but not relevant to the software claims now?
What about the “start codes?” Do the hardware claims mention the term “start codes?” No, but TiVo had no problem raising it as an issue in the hardware claims discussion during the trial, did they?
Now E* is saying, “indexing” and the “start codes” are relevant to the invention, and therefore relevant to the software claims, just like TiVo believed the “indexing” and “start codes” were relevant to the hardware claims.
And E* is saying the “said video and audio data” in the software claims refer to the “indexing” and “start codes.” What is TiVo’s response? Oh right, but they are irrelevant to the software claims because they are not mentioned in the software claims?
The only problem is, when TiVo raised the "indexing" and the "start codes" as issues in the hardware claims discussions, the district court, and the appeals court, neither of the courts regarded the "indexing" and "start codes" as irrelevant to the hardware claims, even though the hardware claims do not mention them. What do you think the odds that the court will also not consider the "indexing" and the "start codes" irrelevant to the software claims?
Fig 4 of the patent shows the parser (401) as part of the media switch. The media switch is in the hardware claims. It is not in the software claims. This parser is well downstream of the parsing done in the software claims.
From the patent:
Let’s first understand Fig 4 depicts the invention, which describe a process explained by both the hardware claims and the software claims.
Ok, where in this figure does it show the “parser” described in the software claims that, according to you, is “well-upstream” from, but not the “media switch”?
That “input stream” (the broadcast data) is provided by that “input device”, am I correct? It flows through a “parser 401”, the “parser 401” parses the stream looking for “start codes.” According to you, this parser is not the same as the “parser” “well upstream” of the media switch, but again do you see that “parser” “well upstream” in your figure? If so what is it called? Does it have a number?
Figure 4 describes the media switch. The media switch is only in the hardware claims. It is not in the software claims.
From the patent:
honestly, im less surprised at that then parse becomes analize, nevermind analize becomes tune.
people with enclosure forming lips...
honestly, i have difficulty seeing how stealing from thieves is so upsetting. since Tivo now owns technology that was in the public domain before some of us were born, they've succesfully and LEGALLY converted it. not to mention that charlie had a working prototype before tivo was incorperated- i for one see tivo as stealing technology, albeit legally.
i still think that Dr. Rhyne is working off a good-faith belief. i dont believe that tivo or echostar produced more then one witness (were they only allowed one with the time contraints?) as long as you believe that betamax doesnt infringe the tivo patent, you can come to this conclusion. unfortunately thats not the case from a plain reading of claim 31.
considering whats at stake here, this is probibly going to end with the death of one or both companies. i also think both ceo's know that. the only stratagy that makes sense for charlie is to fight until he gets a win, no matter how small, and then use that as a platform to patent the technology tivo is using and counter-sue.
Did you find any figure that illustrates the "physical data source" or anything that resemble what is described in the software claims?
PID filtering is not tuning. Tuning involves selection of RF frequency. PID filtering can't occur until after the RF frequency is selected and reception begins.
Absolutely, positively incorrect. Here's a post by rh15hz8 over at investorvillage that will hopefully set the record straight about the so-called prototype that DISH had.
As long as one can define a "source object", a "transform object" and a "sink object" within a Betamax. It isn't there.
Whether the PID tunes RF or not is not the subject of the debate because neither E* nor TiVo was arguing on that issue.
What I want to know is, what is the basis for you to claim there is another parser “well upstream” from the media switch?
Did you find it in one of the patent figures? Or did TiVo say so? Because if you simply made that second parser up with out TiVo saying so, well of course you have the right to do that, but I just don’t think it is going to be very helpful because whatever you, Greg, CuriousMark… believe or claim, or whatever I believe or claim, will not matter, because Judge Folsom will not look at our posts to make his ruling.
So may I ask again, what did you see or read from TiVo or its patent documents that there is another parser “well upstream” from the media switch?
The parsing of the broadcast date in the software claims is done prior to storing the data in a buffer. The parsing in the hardware claims done by the media switch is done after data is separated into audio and video and stored in buffers.
It seems like I post this every day.
You can say it twice a day, every day, but if TiVo does not say that it is no use
I see that Dish's expert Dr. Polish still says that parsing is PID filtering:
Q(Chu) NOW, GOING TO SLIDE 42, WHAT DID DR. POLISH SAY AT DEPOSITION ABOUT PID FILTERING AND PARSING WITH RESPECT TO CLAIMS 31 AND 61 AT ISSUE HERE TODAY?
A (Storer) SO AGAIN HE IS CONSISTENT WITH THIS NOTION THAT PID FILTERING IS PARSING. AND AT DEPOSITION HE SPECIFICALLY SAYS IN THE CONTEXT OF CLAIMS 31 AND 61, AND YOU SEE THAT HERE. THIS IS JUST A PORTION OF QUESTION AND ANSWER FROM THAT
Q AND DR. POLISH WAS ECHOSTAR’S EXPERT, CORRECT?
A THAT’S RIGHT. HE WAS ONE OF THE THREE EXPERTS FOR ECHOSTAR AT THE TRIAL.
Dish did not refute this in cross examination or bring it up in any way. They never mentioned Dr. Polish.
Of course the PID filter parses, this is undisputed, only that now E* says the new design no longer parses as described in the patent claims, because the PID filter is no longer that "physical data source."
Again, TiVo seemed convinced "parse" alone will meet step one, but no, there are many things in step one to be met.
Did you find out in those figures what was described as the "parser" "well upstream" from the "media switch" yet?
No? Because there is no second parser described in the figures, or to say described in the invention.
If you look at that figure, you see an "input section", which is the same as the "input device" depicted in the software claims, and immediately from there it goes to that "media switch", with nothing in between. Within that "media switch" there are many components, one of them as you indicated is the "parser."
If one simply put the hardware claims right next to the software claims, one will notice the similarity.
In the hardware claims step one, it describes an "input section" that builds up MPEG streams from the raw TV signals, this "input section" corresponds to the "input device" in the step one of the software claims.
Next the hardware claims describe a "media switch" that accepts the MPEG streams from that "input section", "parses" such MPEG streams and separates out the audio and video data and stores them in different buffers.
The above step corresponds to the second half of the first step in the software claims where it says the "physical data source" (which is a part of the media switch) parses video and audio data (out of the broadcast data, i.e. the MPEG streams), then temporarily stores such parsed data.
In other words, step one of the software claims corresponds to the first two steps of the hardware claims. They both describe only one invention, but in different perspective to cover all bases.
There is a good reason for doing so. As I said before the hardware claims may describe the DVR hardware part of process and design, the software claims may describe the software part of the process and design.
If someone goes around start advertising an invention he had just designed on paper, if this invention infringes on a patented invention, he will be caught, even though he may argue that he does not have the actual product to sell, but since he has that design on the paper, it infringes on the software part of the claims, he is still in trouble.
But whether the claims are to cover the hardware part, or the software part, they all describe one invention, therefore you cannot separate them and treat them as "irrelevant" parts. They may differ in some details simply because one addresses hardware, the other software, so they will not be in lock steps, still they are absolutely closely connected in their function, method and result.
1) the PID filter parses, and it is undisputed.
2) DISH/SATS doesn't say the new design no longer parses as described in the patent claims, only Dr. Rhyne (who they paid handsomely for his expert testimony) decided to change his testimony from the trial, where he admitted the PID filter met the claim.
3) There must be a physical data source, or the DVR would be a brick. Something provides the DVR with an audio and video stream, and that pretty much is the "physical data source".
So when the first sentence is the foundation built with straw, the rest of the argument falls as more weight is put on it.
sure, coax in, vcr head, and coax out.
There must be a physical data source, or the Betamax would be a brick. Something provides the Betamax with an audio and video stream, and that pretty much is the "physical data source". unless you can explain a difference with respect to claim 31.
the PID filter seems to me just a part of the tuner that sub-parses the portion of a broadcast from a single transponder the same way any other tuner parses the relivant portion of a rf frequency out of the whole spectrum. otherwise, why couldnt they just turn it off?
the barton media switch is an innovative device worthy of its patent. but that portion of the claims have been reversed and remanded, and dish claims to have bypassed it completely. its not at issue right now.
This is what was said in the E* outside counsel non-infringement opinion, and it is echoed all through E*'s filing since 5/30/08 meeting, and again by Dr. Rhyne:
"The modified EchoStar 50X DVRs do not include any structure that is “a physical data source” that parses (i.e., analyzes) the “broadcast data.” In the modified EchoStar 50X DVRs, a video elementary stream and audio elementary stream are selected from the incoming transport stream. The modified Echostar 50X DVRs write the video ES and audio ES data to the hard drive without any analysis of either of the streams. Thus, the modified Echostar 50X DVRs do not “parse” the streams as required by this element of claims 31 and 61.
It is not just what the patent lawyer's opinion the new E* design no longer has that "physical data source", it is logic really, that the "physical data source" cannot simply be some PID filter that is a necessary part of a non-DVR. If you think a necessary part of a non-DVR can be considered a part of the DVR invention that consists a full step in the claim, that step would not have been validated, because that step no longer describes any part of the invention. Every step in an invention claim must describe a necessary step in that invention, not a step in a non-invention.
Who is building straw now?
The "physical data source" in the TiVo invention must perform several functions before it can qualify as that "physical data source" as described in the software claims.
It must first accept the incoming broadcast data from an input device, it then must parse out the video and audio data (indexing and/or start codes, according to E*) from that broadcast data, and it then must store such data temporarily in some buffer.
The indexing and start codes of course are E*'s assertion. The question is, what was TiVo's response to such assertion? TiVo either had no response or its response is they are "irrelevant" because they are not mentioned in the software claims.
As I have proven earlier, the court will consider many terms that are not literally mentioned in the claims. The example I used was how TiVo itself used the word "indexing" in arguing the hardware claims issues, even though the word "indexing" is never mentioned in the hardware claims, and the court never told TiVo it was irrelevant because it was not mentioned in the claims. The appeals court actaully agreed with TiVo "indexing" was relevant.
Uh, during the jury trial, FIVE experts agreed (three paid for by DISH/SATS) that the PID filter is responsible for the analyze step:
This is convenient wordsmithing, where the last sentence should read:In the modified EchoStar 50X DVRs, a video elementary stream and an audio elementary stream are parsed from analyzing the incoming transport stream.Thus, once again, the argument provided is simply the straw which cannot support the weight of the rest of the argument.
And here we go with the telephone patent similarities:
The telephone should have never contained any information regarding wires, as the telegraph already used those wires.
People said decades ago one could make millions by "building a better mouse trap". The key to those millions would have been patenting the invention. Yet I guarantee that there would be pieces used from the standard mouse trap in the patent of a new mouse trap.
It is otherwise foolish to believe that a claim of a patent must contain every innovation and no "prior art".