Sweet – my Dish DVR is illegal!

Well, just the 942 I have upstairs and the 721 I have stuffed away in a closet somewhere – and it doesn’t apply to me since I already bought them. But the fallout of the TiVo patent case apparently is that Dish can’t sell those machines anymore.

Of course, they’re not actually selling them anymore, so it’s more of a moral victory there for TiVo, I guess.

The notice Dish put out talks about “updated software” that newer boxes like my 622 have received that allow them to escape this injunction, but I haven’t seen anything that details why that is. From what I understand, the court ruled that TiVo’s “multi-media time-warping system” patent was valid and enforceable, and that Dish’s DVRs violated that patent. Dish refers to “next-generation” software that has been installed that does not infringe the patent, but my 942 sure does work a whole lot like my “next-generation” 622.

If I had to guess – and as a starting point for any IP lawyers who might be hanging around and want to offer an opinion – I’d say it’s because the TiVo patent is tied to “MPEG” encoding and Dish escapes that because their “next generation” boxes use MPEG-2 encoding. I know that the difference between my 942 and my 622 is MPEG-1 vs. MPEG-2 and that the 942 cannot be upgraded to receive MPEG-2, so that’s the basis of my hypothesis here. I don’t think MPEG-2 existed (or at least wasn’t in wide circulation) at the time of TiVo’s patent, so perhaps the court interpreted the reference to MPEG to mean MPEG-1, since that was the standard at the time. Thus, perhaps, TiVo’s patent was not worded well to cover future MPEG versions.

Other than the encoding standard used, my two Dish boxes work almost identically. Search and other software features are pretty much the same and there’s no apparent difference in the user experience. That also makes me think it’s something on the back end. In any case, I cherish my illegal DVRs, and you can have them when you pry them from … well, you know.

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6 Responses to “Sweet – my Dish DVR is illegal!”

  1. John says:

    Yeah, I wouldn’t go quoting Charleton Heston on that point.

    The prying’s been done.

  2. TCL says:

    Not hanging around so much as swinging by, thanks to RSS. Just on a quick read, because I’m wrapped up in the world of carboxylated nitrile butadiene rubber gloves right now, the answer is, nope, not the encoding standard. Briefly, the Echostar DVRs were found by the district court to infringe two “hardware” claims and two “software” claims. The CAFC reversed on the hardware claims, but upheld the infringement of the software claims. The issue of encoding standard would have arisen with respect to the hardware claims. The hardware claims were found not infringed on a basis unrelated to encoding standard; indeed, the CAFC noted, in rejecting Echo’s argument that the patent required processing of both digital and analog signals, that the patent spec describes both MPEG standards: “After describing how Figure 7 operates to process analog signals, the specification adds the following: ‘If a digital TV signal is being processed instead, the MPEG encoder is replaced with an MPEG2 Transport Demultiplexor, and the MPEG audio encoder and VBI decoder are deleted.’” [Col. 6, ll. 30-33].

    Instead, my best guess, again on a quick read, is one of two things: (a) Bullshit that the “next gen” software is a non-infringing work-around, and Echo will be in contempt of the injunction soon; or (b) the software push has something to do with the “Ioctl” command and the way in which the chip and temporary storage buffer work together. The CAFC affirmed infringement of the software claims with the following conclusion: “Based on evidence that the Broadcom chip and the temporary data storage buffer operate together in the process of moving data from the physical data source, it was reasonable for the jury to find that the temporary data buffer was simply an extension of the physical data source where data was stored pending its extraction for further processing. From that evidence, the jury could permissibly find that the “Ioctl” command, the relevant portion of the source object in the EchoStar DVRs, extracts video and audio data from the physical data source. . . . and because we agree that the pertinent data and operations do not need to be housed within a particular file or grouping of lines of code, the EchoStar DVRs satisfy the ‘extracting’ limitation.” That is, it was “reasonable for the jury to find that the two-part process of moving data from the physical data source to the source object, as practiced in the EchoStar devices, constitutes extraction by the source object of video and audio data from the physical data source.” And therefore, perhaps Echo pushed some software that simply places another step, or some more distinct separation in the operation of the physical data source and the temporary storage buffer, such that they are no longer linked together as one process of retrieving from the physical data source.

    But what do I know, I have two crappy cable DVRs.

  3. Cap'n Ken says:

    Thank you, counselor. So much written about the case and the ruling, so little actual context given. Searching for the “loctl” term you referred to got me a little more information about that argument, but not much.

    I would think in today’s patent-happy and device-happy world, the TiVo v Echo case would be a fertile topic for tech writers to examine and explain how such technical details can influence an infringement case. You and I have talked enough about how patent litigators earn their keep for me to have a sense of how small the details can be that swing a case, but little is out there really talking about the intricacies of the field.

  4. [...] back in April Dish Network was slapped with an injunction against selling certain DVRs in the wake of the TiVo patent infringement case. The models affected included the HD 942 DVR that [...]

  5. Robert says:

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