In other words, even if the USPTO finds the patent invalid it will not have an effect on TX or DE for about, what, 4 more years?
TIVO vs E*
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In other words, even if the USPTO finds the patent invalid it will not have an effect on TX or DE for about, what, 4 more years?
Playing the word game?
In 59% of the reexaminations, the examiners made the decision to invalidate the patent claims in whole or in part, at the meantime of course the patent claims by law are still valid patent claims, but the patent owners must fight the decisions to invalidate, such process is time consuming.
At the meantime, the patent owners will have trouble going after anyone in court, until the examiners' decision is defeated. A questionable patent should be cleared of any cloud over it
And that is not even the real issue here. My point is, if the USPTO could see a "substantial new question" to invalidate the TiVo's patent claims, the same evidence will most certainly be used by E* in the next jury trial to convince the jury that the two software patent claims are invalid. It happens all the time. Whether the jury will invalidate the two TiVo's software claims will have nothing to do with the USPTO process. The court will determine the claim validity independently.
E* did so in the Forgent case, in the same TX court, and will try to do so in this next jury trial, whether in the DE court, or in this same TX court.
As I said, E* has a strategy since day one, when they filed the new action in the DE court. Everything E* has been doing since then has been gaining the odds of winning.
TiVo on the other hand had no strategy and still has none, they are only reacting. Can you imagine the two software claims are invalidated either by the court, or by the USPTO?
What will TiVo live for? Be careful what you ask for from Charlie
Thank you!
You see in this case, the TiVo patent will never be cancelled, because only the two software claims are asserted, and these two software claims are basically only one claim.
Therefore I was actaully modest when I said 59%. In this case, the chance of the two software claims be thrown out is in fact 72% because any "change" in this case will also mean the software claims are invalidated, even though the TiVo patent itself will still stand with that two hardware claims.
No, there is also this DE case TiVo is trying to get transferred to the TX court.
TiVo actually is making the best effort in trying to move the case, by submitting over 100 pages of supporting docs to the DE judge.
Wonder why? TiVo sees the real possibility that they may lose on the contempt issue, and will be forced to fight this new fight with E*.
Except that by the time TiVo is ready to fight the new fight, the two software patent claims in question will likely be invalid already. If so there will be nothing left to fight over.
Examiners suggest wording changes to make the claims stronger. These are claim changes.
But, but... How can anybody change the wording to make the claims stronger when it is very likely that the claims were based on prior art in the first place?
No wonder at all. Tivo wants the case in front of the judge that wrote the injunction. As it should be.
This case has no business being heard in DE and the DE judge is well aware of it. He's already spelled out that he has no interest in it. He'll throw it out and let Folsom deal with Charlie's shenanigans.
It's not going to be pretty for E* when Folsom gets this thrown in his lap again.
I'm thinking maybe even treble damages.
If the prior art was worded stronger there wouldn't be a question in the first place. By making suggestions on how to make the patent bullet proof the USPO can stop a lot of these unnecessary re-examinations.
Doesn't matter anyway. E* already played this card. It didn't work last time, it won't work this time. Thanks to Charlie, the patent survived re-examination which just makes it stronger.
This is nothing but a stall tactic.
Based on the "substantial new question" raised about the original patent. I think you attempted to minimize the risk to Tivo's position by calling this a "rubber stamp" by the USPTO. OK, suppose it was a rubber stamp. I think you are trying to imply from your "rubber stamp" comment, as well as your quoting the outcome statistics, that Tivo's claims are likely to stand up, or even become stronger with new wording. Don't even try to deny that's what you're doing, because it's obvious to the casual observer even without a law degree.
So, I turn your question back onto you. Based on what are Tivo's patents going to withstand another reexamination? I've read them, and my inexpert opinion is that they were obvious from day one and should never have been granted.
Ummm... that's what a reexamination is. It's a question about validity. It's an accusation. Completely unproven.
Yes, the patents where so obvious it took E* two tries to try to find something to whine about.
Tivo's patents have already withstood a reexamination. Since your inexpert opinion was wrong the first time I'm willing to bet it will be wrong the second time too.
Tivo was awarded patents, get over it. E* already tried once to have them invalidated and failed just like they will fail this time. Deal with it.
That is the whole problem, you are not a poker player
A poker player knows the first rule, the odds of winning the next game is not dependent on the results of the previous games
The odds are always the same in each game, regardless what happened before, and in this case the odds in a reexamination are:1) 13% chance the whole patent is invalidated;
2) 59% chance the patent is changed; and
3) 28% chance the patent stands.
Those are the hard facts in this poker game, let me ask you again are you a poker player?
Of course Thomas22 is twisting the stats. The "change" means some of the claims in the patent are invalidated but not all, or the claims limitations must be narrowed in order to make it "stronger" which means for it to stand, the scope must be more limited than before.
You see it is all how you twist the words Thomas22.
In this case, E* did not seek to cancel the TiVo's patent, only the two software claims, because that is all E* cares about. The hardware claims are no longer relevant.
So in a sense the 13% will not apply here. If the USPTO invalidate the two software claims (let's be clear, either invalidation, or validation), it will make the TiVo patent "stronger" you say, with only the two "stronger" hardware claims standing, but who cares?
A patent can be so limited in scope and "strong" that no one can invalidate it, but also at the same time because it is so limited in its scope that no one can infringe on it even if they try. See my point?
What I am saying is, in 72% of the time, a 3rd party reexamination, once granted, will result in a decision that is negative to the patent owner, either in whole, or in part.
That is the fact in this game. Ready to play?
Point --> Thomas
Point --> RichardYes, the patents where so obvious it took E* two tries to try to find something to whine about.
I see that the PTO does not agree with me. And I also see that my opinion does not count for much. But taking the big picture here, we want to foster innovation. Granting narrower and narrower patents over what I regard as obvious or incremental will not foster innovation. Instead it fosters litigation.
Let's all fight over placement of an "i" ahead of the word "phone". Let's all fight over who invented the DVR, and never mind how this was done by analog devices at least 50 years ago. (And Xerox at that time didn't even bother to patent their trick play device!) If our patent system only protected significant invention, I would have a whole lot more respect for the PTO.
I still have tremendous respect for those who still, against all odds and threats of lawsuit, invent something truly novel.
The reexamination is a non issue. Even if the USPTO tries to invalidate Tivo's patent (again) Tivo will just file appeal after appeal after appeal, while the patents will stay valid. E* will continue to stall as long as they can but it will do them no good.
Your looking at at least 4 years from now for an invalidation. E* will be found in contempt long before that.
And the best part is Charlie can't appeal contempt. He was told by a court of law to do something and didn't. You can't appeal the punishment for not listening to what a judge told you to do.
The best part for Tivo is that the longer this drags on the more money they will recieve in damages.
:Can you say treble damages?
If you are ever voir dired for a jury in a patent case I hope you make your prejudices known.
Nobody's opinion here means much. Of course some mean more than others...
Just to set the record straight, Tivo has never claimed to invent the DVR. They invented a method of making a low cost DVR that was viable for home use. The fact that an average DVR at the time cost over $5,000 I'd say it was a pretty significant invention (the Barton switch).
Would we have cheap DVR's today without The Barton Switch? Probably, but that doesn't change the fact that it was a novel idea at the time and was granted a patent.
Blaming Tivo for protecting their IP because someone thinks it's stupid or "obvious" is not what the patent system was put into place for.
Charlie was caught stealing red handed and blaming the victim is not the answer. It's a valid patent and it's time for Charlie to pay up.
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That is the whole problem, you are not a poker player
It's a problem that you think I'm not a poker player? How do you know what I am or what I am not? I thought this was a discussion board about E* and Tivo. I didn't realize I stumbled upon a poker game.
Those are the hard facts in this poker game, let me ask you again are you a poker player?
I don't see how it's any of your business what I am. Stick to the subject, not the people. If you can't do that I suggest you put me on ignore.
Game? You're playing a game? I'm not in the mood to play games. Once again, stick to the subject or be gone.
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