[opendtv] Re: Is TiVo the bully of DVR design?

At 6:27 PM -0400 8/25/06, Manfredi, Albert E wrote: 
In this particular case, I think maybe the problem was the juries. When
this was brought to trial, the juries should have corrected the
aberration.


Bert has an interesting point here, that brings into focus the larger 
problem.

The reality is that the patent office makes no attempt to determine the validity of any patent application. patents are an amazing black hole into which individuals and corporations pour vast amounts of money that winds up in the pockets of lawyers.

If you are granted a patent, you should be prepared for both the best and worst case scenarios:

Best Case - you threaten anyone who may come even close to infringing.

Worst case - you defend the patent against anyone who is willing to challenge your claims.

Either case, the lawyers win.

I am especially annoyed by the practice of buying up old patents, then using them (and the court system) to extort money from potential infringers. It's one thing to protect an inventor who is trying to protect his intellectual property. However, if the inventor - for whatever reason(s) - is not able to use the patent to gain a return on idea, I do not think it is appropriate for a disinterested party to buy the patent and use it to shake down the companies that actually used the idea to develop successful products.

There are several cases that come to mind in the video industry space.

The most famous IMHO is the patent on picture labels for non-linear editing systems which was originally granted to Montage in the early '80s. The idea is one of those "Duh, that's obvious" things. When it was first shown at NAB in 1984, there were multiple products on the show floor using picture labels. The company folded, and Simon Haberman bought the assets, including the patents at a fire sale, for "thousands" of dollars. I recall doing some consulting work with his son, Seth, and having Simon ask for a list of companies that he should go after...

Then there were some early patents on digital Time Base correctors - not certain of the company that originally owned them or why they failed. But a group of lawyers bought the patents and successfully used them to shake down every manufacturer of TBCs for a decade or more.

There are two solutions to this problem.

First, if something is obvious, no patent should be granted.

I wrote several articles in the early '90s about the DVR concept, fully defining the product and capabilities, including the ability to watch a recording while capturing another. There was nothing revolutionary in the concepts. It was the revolution in hard disk capacity that made the DVR practical. I also projected accurately when this product would come to market. Several years later I met the guys who started Tivo. The whole concept was driven by the ability to wallpaper the lobby with patents...

Second, it should be the responsibility of the applicant to research prior art and determine whether there is a real invention represented in the claims. Then this should be verified by an independent authority. I'm not certain that this should be a government agency for obvious reasons. But there should be a rigorous examination of the claims, before the patent is granted, and the owner can use it to go after potential competitors.

And finally, patents should NEVER be used to create a monopoly; the whole point of the patent system is to publish the invention so that the inventor can be compensated for the idea via licensing. The constitutional intention of both the patent and copyright provisions was to proliferate ideas to advance humankind.

Regards
Craig



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