TIVO vs E*

[rockymtnhigh]

If hall is correct that the new Broadcom designs have a lot of the DVR functions built in, then the E* software code used on those new DVRs will be very different than the code used on the old DVRs.

And if the difference in the number of the lines of the code is the way to determine colorable difference, one can argue the new DVRs should be more than colorably different on the software, that is in addition to the hardware differences.

But you are correct, the determination should be based on whether the software process and hardware functions are the same or not. Unfortunately the judge can have it both ways, he already said he decided to use his "wide lattitude/discretion" to find E* in contempt.

But the appeals court's job is the opposite, they said themselves when the district courts use their wide lattitude, it was the appeals court's job to make sure such lattitude is narrowed down on appeal.

That makes sense. And it is an appropriate thing for a appeals court to do. I remain confident that no gloom and doom will befall my 722 or the forthcoming 922.

AND embedding stuff into hardware would make an awful lot of sense in terms of performance. I mean think about it, these things are serious work-horses; they can record 3 HD streams at the same time AND playback something else, without hiccuping. It has always boggled my mind at how well it does that; certainly better than my computer does.

 

[TheForce]

And lastly, even if the mpeg4 DVR functionality is considered not to infringe in and of itself, can the mpeg2 DVR functionality within the ViP be considered as possibly infringing?

Interesting and this question is the crux of concern in several posts. I'm looking at consequences and if found to be a cause for VIP infringement, we may see the local Off air DVR function be disabled in the VIP series.

Many concerns over the Broadcom chip doing the basic DVR processing. If it is found to do the TIVO patent process then would TIVO need to sue Broadcom?

Personally, I do think that under Patent law you can't patent a function but rather have to patent a process to achieve a function. This is what TIVO did and their claim is only to protect a process to achieve DVR functionality. IF TIVO did claim their process is to sync audio and video as an integral part of the process, that would be pretty broad protection. I don't know the details but maybe that would include MP4 and MP2, unless MP2 is specifically mentioned. I'll defer to the experts here who have actually studied the technical aspects of the TIVO patent. I have not. IMHO, the entire case ( whether VIP infringes)appears more to be about whether the use of the Broadcom chip infringes on the TIVO patent and if so does TIVO have to go after Broadcom?

We can only guess what a judge will rule on this but I'm a conspiracy nut on this. I think we need to investigate the Judge. What's he get out of this, or does he have a personal grudge against Dish Network? Seems nobody in government likes Charlie.

 

[vampz26]

Being a 'free thinker' does not make you a conspiracy nut! ;D

 

[Thomas22]

Personally, I do think that under Patent law you can't patent a function but rather have to patent a process to achieve a function. This is what TIVO did and their claim is only to protect a process to achieve DVR functionality. IF TIVO did claim their process is to sync audio and video as an integral part of the process, that would be pretty broad protection. I don't know the details but maybe that would include MP4 and MP2, unless MP2 is specifically mentioned. I'll defer to the experts here who have actually studied the technical aspects of the TIVO patent. I have not. IMHO, the entire case ( whether VIP infringes)appears more to be about whether the use of the Broadcom chip infringes on the TIVO patent and if so does TIVO have to go after Broadcom?

The Broadcom chip doesn't have a hard drive. All steps of the patent claim have to be performed for there to be infringement. Besides, where would TiVo get the Broadcom chips they use if they sued the only supplier?

 

[jacmyoung]

The Broadcom chip doesn't have a hard drive. All steps of the patent claim have to be performed for there to be infringement. Besides, where would TiVo get the Broadcom chips they use if they sued the only supplier?

TiVo does not have to sue Broadcom in order to prove E* infringed, as long as they can prove the hardware infringes and E* used the infringing hardware.

 

[jacmyoung]

...We can only guess what a judge will rule on this but I'm a conspiracy nut on this. I think we need to investigate the Judge. What's he get out of this, or does he have a personal grudge against Dish Network? Seems nobody in government likes Charlie.

Your theory will have a lot more weight if the appeals court overturns Judge Folsom’s ruling, but even then it will be a difficult thing to prove, because the lower courts do have "wide latitude" to assert their power over the litigants. Sometimes it is even reasonable to do so, in this case for example, Judge Folsom had tried for years to coax both parties to settle without success. It is clear Charlie has refused to settle, not TiVo, so it is not all that unreasonable for Judge Folsom to assert his power one more time to force Charlie to blink.

The appeals court will have to make sure such use of power is contained. Often times however people just cave in at the lower court level, but Charlie is one of the few exceptions, he seems to enjoy the thrill of the appeals

 

[vampz26]

That "wide latitude" ...sounds like a "wide" hole in our legal system. "Wide latitude" could mean that the judge gets in a fight with his wife and then takes it out on the defendant. Lol.(Or just plain doesn't like the guy.)

 

[Hall]

TiVo does not have to sue Broadcom in order to prove E* infringed, as long as they can prove the hardware infringes and E* used the infringing hardware.

I may be confusing this with trademarks, so bear with me... If Echostar is in fact using Broadcom's code which violates TiVo's patent, I'm not sure that TiVo can selectively choose to sue one company and not others. And as Thomas22 points out, TiVo uses Broadcom chipsets themselves so sueing BCM wouldn't be a smart thing.

 

[Hall]

Found information on Broadcom's 7308 chipset, which is what the ViP622 uses. I believe the 722, 722k, and 922 use newer versions of this same basic chipset. BCM says:

The BCM7038 is an advanced dual channel HD video/audio/graphics and personal video recording (PVR) chip that enables manufacturers to economically incorporate high-quality HDTV capability and PVR features into digital televisions, cable set-top boxes, satellite receivers and HD-DVD players.

The chip supports common PVR functions such as pausing live programming, recording, and forwarding and reversing through recorded programs (1), as well as incorporates software drivers to support industry standard PVR platforms, including TiVo® and XTV™.

One of the features they bullet-point is this:

• Triple PVR with copy protection and trick mode support

(1) No mention of watching and recoding something else at the same time.

Does anyone know what they mean by "trick mode support" ?

 

[Thomas22]

I may be confusing this with trademarks, so bear with me... If Echostar is in fact using Broadcom's code which violates TiVo's patent, I'm not sure that TiVo can selectively choose to sue one company and not others. And as Thomas22 points out, TiVo uses Broadcom chipsets themselves so sueing BCM wouldn't be a smart thing.

TiVo can sue anyone that profits from infringement of their patent but they don't have to sue them all. For example, they probably won't sue the resellers and installers. Anyway, as I said, Broadcom doesn't infringe. For one thing, their chip doesn't contain a hard drive. All (each and every) step of the patent claim has to be performed for there to be infringement.

 

[jacmyoung]

I may be confusing this with trademarks, so bear with me... If Echostar is in fact using Broadcom's code which violates TiVo's patent, I'm not sure that TiVo can selectively choose to sue one company and not others. And as Thomas22 points out, TiVo uses Broadcom chipsets themselves so sueing BCM wouldn't be a smart thing.

You have a point, if I understand you correctly, some of the new Broadcom hardware designs have the TiVo's patented DVR technology imbedded, presumably based on some supply agreement with TiVo, Broadcom then not only supplied the hardware to TiVo but also to other companies such as E*. If the Broadcom hardware constitutes an infringement, as long as TiVo agreed to let Broadcom infringe and also supply its hardware to the other vendors, then I don't think TiVo can go after E*'s such new Broadcom DVRs.

 

[TheForce]

You have a point, if I understand you correctly, some of the new Broadcom hardware designs have the TiVo's patented DVR technology imbedded, presumably based on some supply agreement with TiVo, Broadcom then not only supplied the hardware to TiVo but also to other companies such as E*. If the Broadcom hardware constitutes an infringement, as long as TiVo agreed to let Broadcom infringe and also supply its hardware to the other vendors, then I don't think TiVo can go after E*'s such new Broadcom DVRs.

BIngo!

This was my thinking too. I recall my copyright attorney advising me in a case of several of my copyrights being used without my permission that if I wanted to protect them, I needed to go after all who I was aware violated. I could not selectively sue one without attempting to protect my copyrights against all other violators. As Hall said we may be confusing patent infringement with trademarks ( common law trademarks ) and I agree to include copyrights, but it seems to me: Tivo allows a company to infringe on it's copyright by profiting from the sale of chips to a company they sue for using them. If they allow one company to profit off the technology without license (Broadcom) then how can they expect protection in the courts of their rights against a particular company (DishNetwork). Even if they did license the sale of the chips by agreement with Broadcom, then it would be silly to ask the court for damages when they gave permission ( license) a company to sell the chips to the company they are presently suing. Get's complicated and I know better than to pre-guess the way courts rule on law, since it often makes little sense but this very point may be the reasoning behind tivo has no case on the VIP series.

 

[TheForce]

Does anyone know what they mean by "trick mode support" ?

Trick play- as I understand is being able to pause a show while it continues to automatically keep recording, and then jump back in and watch it from where you paused, also jumping ahead to skip around to what's being recorded vis a vis skipping commercials.

 

[jacmyoung]

TiVo can sue anyone that profits from infringement of their patent but they don't have to sue them all. For example, they probably won't sue the resellers and installers. Anyway, as I said, Broadcom doesn't infringe. For one thing, their chip doesn't contain a hard drive. All (each and every) step of the patent claim has to be performed for there to be infringement.

You are correct that as long as the Broadcom hardware does not come with a storage device (a hard drive is only one of the examples of a storage device), it cannot infringe on the TiVo’s patent. But if TiVo agreed to let Broadcom to market their hardware to other vendors knowing that the only reason for the use of such hardware is to slap a storage device to it and turn it into a DVR, and by doing so the vendor will have infringed on the TiVo’s patent, that seems to me a trap setup by TiVo.

Quote from Judge Folsom's jury instructions:

Contributory infringement can occur when a supplier provides a part, or a component, to another for use in a patented product or machine, or in a patented process. In order for there to be contributory infringement, the person who received the component must infringe the patent. The component must also have certain characteristics. First, the component must be a material part of the invention. Second, the component must be especially made or adapted for use in a manner that infringes the patent, and the supplier must know that the component was especially made for that use. Third, the component must not have a substantial use that does not infringe the patent.

It is true that TiVo does not accuse Broadcom of contributory infringement, but if TiVo had agreed to let Broadcom to supply the hardware components to the others that actually would have constituted a contributory infringement, then it seems to me TiVo had also agreed to let whoever the person that received such components to infringe.

If TiVo never agreed that Broadcom may market such hardware components to any person other than TiVo themselves, then I agree with you TiVo can go after E* on the new DVRs.

 

[jacmyoung]

BIngo!

This was my thinking too. I recall my copyright attorney advising me in a case of several of my copyrights being used without my permission that if I wanted to protect them, I needed to go after all who I was aware violated. I could not selectively sue one without attempting to protect my copyrights against all other violators. As Hall said we may be confusing patent infringement with trademarks ( common law trademarks ) and I agree to include copyrights, but it seems to me: Tivo allows a company to infringe on it's copyright by profiting from the sale of chips to a company they sue for using them. If they allow one company to profit off the technology without license (Broadcom) then how can they expect protection in the courts of their rights against a particular company (DishNetwork). Even if they did license the sale of the chips by agreement with Broadcom, then it would be silly to ask the court for damages when they gave permission ( license) a company to sell the chips to the company they are presently suing. Get's complicated and I know better than to pre-guess the way courts rule on law, since it often makes little sense but this very point may be the reasoning behind tivo has no case on the VIP series.

But TiVo can say, after E*, Broadcom is the next. TiVo is not required to sue all infringers at once. Which is why I made a point of asking if TiVo had actually agreed (licensed) to let Broadcom sell the hardware components that would have led to contributory infringement. If TiVo did, I do not think they can then go after those that received such components.

As long as TiVo had given Boradcom the right to contribute to infringement by the others, others should have the right to receive such contribution from Broadcom, else how would Broadcom legally exercise its right granted by TiVo?

 

[Hall]

It appears that older Dish DVRs, including the 522and 921 (all included in lawsuit by name) used Broadcom's 4500 chipset. This chipset doesn't appear to do any DVR/PVR functions, according to the information I'm reading at Broadcom's website. That would suggest (to me) that the DVR/PVR functionality was done in software, in code written by Dish engineers.

 

[jacmyoung]

It appears that older Dish DVRs, including the 522and 921 (all included in lawsuit by name) used Broadcom's 4500 chipset. This chipset doesn't appear to do any DVR/PVR functions, according to the information I'm reading at Broadcom's website. That would suggest (to me) that the DVR/PVR functionality was done in software, in code written by Dish engineers.

What about the 625s? I recall in the court filings TiVo proved that the Broadcom chipset was used to perform the "automatic flow control" function, among other things, and E* said in their new design, the software removed the function and bypassed that portion of the Broadcom chipset completely. That seems to support your notion that the DVR functions in the old Broadcom DVRs were done by the E* software.

If Broadcom states that in the new generations of its chipsets TiVo’s patented technology is imbedded in and then supplied to all the vendors, then there has to be some agreement from TiVo to do so.

 

[Hall]

The 522 and 625 are the same device. The 625 simply has a larger HDD.

 

[Ken F]

It appears that older Dish DVRs, including the 522and 921 (all included in lawsuit by name) used Broadcom's 4500 chipset. This chipset doesn't appear to do any DVR/PVR functions, according to the information I'm reading at Broadcom's website. That would suggest (to me) that the DVR/PVR functionality was done in software, in code written by Dish engineers.

The BCM4500 is a satellite receiver and irrelevant. Broadcom's DVR SoCs are the 73xx and 740x. The Dish Network 522/625 use the BCM7320 and the 921 uses the BCM7021.

The hardware itself may not infringe, but it is difficult (if not impossible) to write non-infringing software for these SoCs, because the chips only support a limited number of functions in hardware, and lack processing power to do much in software.

The BCM7400 in the ViP722K and upcoming ViP922 are the first Broadcom chips to offer significantly increased CPU performance.

 

[RVD420]

bottom line to all of this is IF E* would have bought ReplayTV instead of D* Charlie could tell Tivo to go pound sand.

lets see $36 mil for ReplayTV.

$100+ mil in paymets to Tivo so far.

looks like D* go a hell of a deal.

(For those that do not know ReplayTV hold many PVR patents and has a cross-licensing agreement with Tivo because they have infringed on each other patents, And instead of suing they came to a cross-licensing agreement.