TiVo seeks $1B in damages against EchoStar

Apparently it’s come out that TiVo is seeking 1 billion dollars in damages in its ongoing suit against EchoStar (parent of Dish Network) for violating their patents on low-cost DVR manufacturing.  Though this may seem like a lot, this comes after separate rulings for $90 Million and $190 Million judgments against EchoStar in this same suit.  Over the past several years, EchoStar has attempted to avoid TiVo’s patent-licensing demands by implementing what they claim are non-infringing workaround solutions.  However, the court has ruled that these workarounds have been transparently similar to TiVo’s patent, and has even taken the somewhat unusual stance to demand that EchoStar consult the court first before implementing any further “workarounds”.  This latest demand by TiVo seems to be an attempt to punish EchoStar for what seems to have been willful game-playing with the court and deception regarding their “non-infringing” solutions.

This case is fascinating to me for several reasons.  Primarily, it’s sort of a lightning rod for intellectual-property discussions.  In computer-science circles, this seems to be the big one that anti-software-patent folks point to.  First, I hear people claim that this is solely a software patent, and since they don’t believe software is patentable, they don’t believe TiVo’s case has any merit.  Even if software wasn’t patentable, that argument fails here because there’s a large hardware component (compression hardware-assists — MPEG2 encoders) that are part of the overall system described in the patent, thus this is not solely a software solution.

The other argument is that what TiVo did was obvious and therefore their patent is invalid.  “It’s a VCR using digital parts — obvious!”  Except, combining the digital parts in such a way as to keep the price cheap is a key component of this patent.  Using a software-only solution to construct a DVR is, even now, cost-prohibitive.  (Good ones have hardware encoders — that’s the point).  Also, anyone who’s actually used TiVo software knows that they pioneered tons of stuff that nobody had done with a VCR, such as the “peek-ahead” method of fast-forwarding.  (If you fast-forward and press play, the recording actually starts slightly BEFORE where you had seen when you pressed play — this feature is not feasible with a tape-based VCR).  Lots of DVRs have that now, but I’m pretty sure TiVo did it first.  So, TiVo pursuing its intellectual property is entirely reasonable.  And when the other side is a maliciously bad actor who consistently turned down reasonable licensing deals and instead made transparently-infringing “workarounds”, well, that’s exactly why the tort system has punitive damages.

As to whether or not software should be patentable, I’m fairly firmly planted in the “pro” camp.  We need patent reform to weed out useless patents (such as the string of “on the Internet!” patents of the late-90s/early 2000s, where you could take any algorithm, slap “on the Internet!” on the end of it, and get a patent.  See “one click” from Amazon).  However, we increasingly live in a digital world.  Most things, at some level, are largely AD/DA converters with microcontrollers.  Since we already model complex systems in software (and develop predictive models all the time), the leap to making a physical, real-world-controlling manifestation is frequently a matter of having the right servos, AD/DA converters, and so on.  In other words, if everything eventually becomes controllable primarily through software and we eliminate software patents, does that mean that nothing is (or should be) patentable?  Whether they come out and acknowledge it or not, that seems to be the logical conclusion of the anti-software-patent argument.

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