Is Microsoft violating TiVo's patent?

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Is Microsoft violating TiVo's patent?

I was reading through Ed Bott's comparison of TiVo, Windows Media Center and a cable PVR (via Thomas Hawk) when one of the feature descriptions caught my eye:

Built-in reaction time. When you're fast-forwarding through a show (or, more often, through commercial blocks), you're watching the video flickering by. And then you see the part you want to watch — and hit Play. Now, on a less intelligent machine, you'd be too late. You'd have missed the first 20 seconds of what you wanted, because the fast-forwarding had already blown past it.
But not on a TiVo. It compensates for your reaction time. When you hit Play, it doesn't begin playing from that point; it begins playing a few seconds before that, with uncanny "it knew what I wanted" accuracy.
MCE has this option as well. It's called Reaction Time Compensation, and it’s customizable using the TweakMCE PowerToy. SARA doesn’t do this, and the absence of this feature makes the experience of watching a recorded program annoying.

Let me start by saying that I am a huge fan of this feature. I think that it should be on every PVR and DVD player. However, TiVo recently announced that they had recently received several patents including one that appears to describe this feature. From TiVo's press release:

The USPTO recently issued patent number 6,850,691 entitled Automatic Playback Overshoot Correction System to TiVo. Among other things, the patent describes a system that compensates for a user's reaction time when the user stops fast-forwarding or rewinding through program material.

I'm not a lawyer, and I'm really not a software patent lawyer, but it sounds like MCE's Reaction Time Compensation is doing what's covered in this patent. You can read the full text of patent 6,850,691 online.

by George Hotelling March 3, 2005 in Op-Ed, TiVo, Windows Media Center XP

Comments

Based on many years of experience and a substantial legal background (I am not an lawyer), the Tivo patent referred to above and described in the patent itself seem virtually identical. Microsoft is going to have to clearly demonstrate that it independently and without and prior knowledge, was able to achieve the same result as the Tivo patent. Given the fact that Tivo has been in the market with that feature for some years, I would think that would be virtually impossible. Maybe Microsoft is the white knight......

It would be interesting to see the source code for each of the routines, not that I think it would really matter.

Posted by: michael at Mar 3, 2005 5:56:34 PM

I am a lawyer, albeit not a patent one, but I'm pretty sure that mere fact that one device accomplishes the same end result as another cannot form the basis of a patent. When Jonas Salk invented the polio vaccine, he could have patented that vaccine, but he could not have patented the idea of curing polio. Similarly, if aspirin and Tylenol had been invented around the same time, neither would have infringed the other's patent solely because both cure headaches. If it worked that way, Microsoft Windows would never have come into existence, having been preemptively patented away by Apple (or by Xerox, or whoever).

Thus, the question is not so much whether Microsoft's technlogy does the same thing as TiVo's does from the user's perspective, but whether it does so the same way, using same (or substantially similar) algorithms, etc. I don't know if it does or not.

Posted by: Xrlq at Mar 3, 2005 6:25:10 PM

TiVo's patent gives them the right to prevent others from practicing what is described in the claims. Specifically, if Microsoft is using "A process for automatically correcting the playback position within an audio or video program's material after a user terminates a fast forward or reverse progression through the program material, comprising the steps of: providing a media controller; receiving user command input; terminating the fast forward or reverse progression through the program material based on the user's command; wherein said media controller detects the current position in said program material where said termination occurred; calculating a new position by adding a positional offset to said current position when reverse mode has been terminated or subtracting a positional offset from said current position when fast forward mode has been terminated; and commanding said media controller to display said program material starting at said new position." Then, Microsoft is violating TiVo's patent.

The way this usually goes is Microsoft will argue that they aren't doing exactly what is described and that the patent is invalid anyway. It could be invalid if Microsoft can prove any of the following: it is obvious, the named inventors didn't invent it first (anyone else could have), or not enough information is disclosed in the patent so that you could do what they are saying.

The secondary negotiating point will be that TiVo is violating several of Microsoft's patents.

Posted by: TivoFan at Mar 3, 2005 9:00:22 PM

I have a Sony VCR that I purchased in the late 1990's, probably 1998 or so. It has that same feature. Was TiVo around then? There is clearly prior art on that functionality.

Posted by: MikeC at Mar 4, 2005 8:07:14 AM

Go back and read the patent description. I seriously doubt any vcr had the functionality described.
Patents are only worth something if you defend them. Tivo has not been agressive enough defending their patents which is why nobody pays any attention to them. Perhaps they are waiting on the Echostar case to settle before getting into a bunch of legal hassles.

Posted by: Tyson at Mar 4, 2005 8:44:30 AM

Tyson,

I'm not an attorney but I am a patent agent, meaning I've passed the patent bar.

The patent's description is not the correct legal test. As Tyson suggests, you should compare prior art to the claims instead. The description is there to demonstrate an "embodiment" of the invention -- basically to teach how the invention can be recreated. The scope of the patent's coverage is laid out by the claims.

If MikeC's VCR qualifies as a "media controller" with the other components and behavior that the claims lay out, and it was out there early enough, the patent could collapse.

Posted by: mucker at Mar 4, 2005 10:37:03 AM

This is like the inventor of the lightbulb patenting light itself. If Microsoft's code is the same or can be shown to be directly derived from TiVO's code, then I could see a point here, but otherwise this is stupid.

Posted by: Paul at Mar 4, 2005 12:16:07 PM

I'm not a patent expert, but after reading the patent, it seems like the "innovation" of the patent isn't that it auto-reverses a bit at the end of the fast-forward, but that it records the amount the user corrects manually and fine tunes the auto-correction over time.

It's unclear to me whether MCE does this, or for that matter, whether the Tivo unit does this. I haven't noticed the correction getting any better over time, but then again, perhaps my reflexes are slipping a bit with age.

Posted by: Will at Mar 4, 2005 12:43:56 PM

Paul: if you can't see any meaningful difference between patenting lightbulbs and patenting light, then I doubt we have the same ideas about what "stupid" means, either.

Will: To the degree that you are saying that this a not a shockingly smart idea, then personally, I agree with you. However, "innovation" in the sense that most people use it is not the test applied to patents. A patented invention doesn't have to be cool, smart, influential, the provably "best" way to do achieve a result, or even efficient. It just has be unprecedented, non-obvious to a "person of average skill" in its subject area, and useful (i.e., serve a nonzero purpose, no matter how foolish or relatively trivial). And probably, if you think about it, we don't want the government sitting in judgment on whether an idea is "innovative enough". The more objective the criteria, the better.

Another thing most people who get huffy about patents forget is that patents expire. The whole rationale of the patent system is that eventually, all patented ideas pass into the public domain. Patents provide a short-term incentive for inventors to disclose their inventions, in order for society at whole to reap long-term benefits. The system is really about fostering openness, not secrecy: community of ideas, not private ownership.

Posted by: mucker at Mar 4, 2005 1:13:10 PM

Whether or not anyone is violating anyone else's patents, the fact that this feature works completely wrong in reverse on my Tivo makes me think that the Tivo programmers were copying an idea they heard of but didn't think all the way through.

Sure, when you're fast-forwarding, it's nice to have the Tivo jump back a few seconds when you start playing again, but when you're rewinding, the Tivo jumps FORWARD a few seconds when you stop.

Good idea, bad implementation.

Posted by: Skip at Mar 4, 2005 7:35:18 PM

I don't see this "Reaction Time Compensation" option in TweakMCE. This would be very helpful in MCE if I could find this.

Posted by: Grant at Mar 5, 2005 12:07:43 AM

Mucker: It's "person of ordinary skill in the art," not "person of average skill." There _is_ a difference ;-)

-p-

Posted by: Patrick at Mar 5, 2005 8:19:49 AM

Mucker,

I wasn't saying the patent was bogus. I should have phrased it differently.

From a layman's point of view, the patent seems to be focused on how the compensation time gets calculated, not the fact that compensation occurs at all. Specifically, the idea that it will take user's historical reaction time into account to figure out how much time should be compensated. Of course, I could be completely offbase.

Posted by: Will at Mar 5, 2005 8:33:18 AM

Patrick,

You are quite right on the language for the official standard of skill. I was intending the quotation marks to indicate that the concept of a person of such skill is rather slippery and arguable, and that my allusion to it was approximate--in other words, to distance myself from the meaning, not to indicate exact quotation of the language. I recognize that to a patent professional, quotation marks tend to have the latter purpose.

Will,

Ah, I see.

There are legalistic reasons why the patent would focus on the process or mechanism. It would have been nice, from TiVo's standpoint, to claim a system that compensates for user reaction time without getting into the how. But patents require more explanation than that. It's not enough to identify a new, useful, and nonobvious result and thereby claim all possible implementations. Your claims have to take the form of a method or process.

From a policymaker's perspective, this leaves room (and incentive) for others to invent better approaches to the same result.

Posted by: mucker at Mar 5, 2005 12:14:51 PM

Mild correction to my last post, for the sticklers. *Software* claims have to take the form of a method or process. There are several flavors of patent.

Software claims also have an indirect option that claims them as a machine configured to execute instructions that encode a method or process. That's morally equivalent to the layman, I expect.

Posted by: mucker at Mar 5, 2005 12:20:42 PM

This feature isn't as great as TiVo owners make it out to be.

What is waaaayyy more impressive is the automatic commercial skip supported by TiVo competitor, ReplayTV, and by several other PC-based PVR's. It makes the need for Fast-Forward correction obsolete.

In current versions of ReplayTV the automatic commercial skip has been renamed to ShowNav. It is essentially the same thing but now requires you press one single button to skip all commercials.

Posted by: Daren Dahl at Mar 6, 2005 5:19:23 PM

mucker,

think about what you're saying:

"when you're rewinding, the Tivo jumps FORWARD a few seconds when you stop"

this seems correct to me. the idea behind overshoot correction is that as you're rewinding, you go slightly beyond the thing you wanted to see, at which point you hit play. the tivo jumps forward, which when rewinding, is _back_ to the thing you just skipped over. the implementation is exactly correct, imo.

Posted by: bryan at Mar 6, 2005 11:09:48 PM

FWIW, Replays do this as well.

FF in a football game till you see the ball snap.
Press play, & watch the qb call the play & then the ball is snapped again.

Posted by: Slack at Mar 7, 2005 5:03:50 AM

Bryan,

That was not me but Skip who posted that. (The way comments are visually delimited on this blog is constantly confusing to me.)

I think what Skip was suggesting is that a little bit of lead-in time on the replay is desirable, so when the compensation is in the forward direction, you might not need as much of it. But yeah, my initial reaction to his post was that he had missed the point entirely.

Posted by: mucker at Mar 7, 2005 1:04:05 PM

Perhaps your Tivo doesn't jump forward as far as mine, but when rewinding I have to cycle through rewind-and-play several times in order to start playing from a specific point.

The difference when you are fast-forwarding is that obviously, when going forward, once you see what you are looking for you've already passed it, therefore having the Tivo back up a bit is handy. But when rewinding, once you see what you want you just stop rewinding and you're in the right spot. Jumping forward again just frequently means jumping over the very scene you were looking for.

This is clumsy and poorly implemented. I obviously don't know if this was intended behavior or just a side-effect created by programmers writing the feature generically to be "jump in the opposite direction of high-speed scanning upon resuming normal play," but because it works so less gracefully in reverse than when going forward, I'm more inclined to think it is an oversight.

And back to the original topic of this thread, you'll have programming teams making mistakes like this when you have them trying to duplicate someone else's work, rather than having them think the whole process through themselves.

Posted by: Skip at Mar 8, 2005 4:38:33 PM

I'm a patent attorney with twenty years in the trenches. The TiVo patent was written for a VCR implementation. There is little chance that the WMC infringes a system designed for an analog recording. A cursory claim review supports this analysis

David Cain

Posted by: David Cain at Mar 9, 2005 7:51:53 AM

I doubt TiVo would write a patent for an analog VCR, because I think they only make DVRs. Earlier, "TivoFan" mentioned that his 1998 Sony VCR had this same function. I bought a Panasonic VCR in 1991 that also had a special button that would start fast-forwarding when hit the first time, and then upon a second press it would stop, rewind several seconds, and start to play again. And, as "bryan" pointed out, ReplayTV DVRs have this function, and I believe they had it in their very first models that came out in 1999. TiVo's patent, filed on March 30, 2000, seems pretty hard to defend.

Posted by: slinke at Mar 15, 2005 3:14:21 PM

I guess that the infringiment is not that as to analoge technology but the innovation to digital technology not betamax,and not VCR please. This is a DVD-R or digital innovation. Not data is loss while rewinning while recording-that is the fact, I am not a lawyer but I think I understand better the difference.

Posted by: Nelson at May 9, 2005 1:47:26 PM

Your article on Tivo fforward patent is interesting. I've been enjoying this feature for many years on my Microsoft Ultimate Direct-tv receiver much longer before Bluck-o called it a feature and applied for patient ;)

Posted by: MrPenPad at Jul 11, 2005 11:35:45 AM

I reviewed patent and it is well written -- however, prior art may be easy to prove if other commenters are correct about similar capabilities existing in earlier VCRs as none of the claims are DVR or VCR specific -- timing may become the key.

Posted by: Leonard Lafrance at Oct 26, 2005 3:54:20 PM

Patent offices essentialy will allow any patent, though it might need to be re written to Satisfy

Nor is pre art always the key, many patents would have pre art for every function but no one has been able to put these functions together to achieve the result that the new patent does - such a patent is inter alia and requires all the functions to be found together

To not infringe one need to be able to do the same with one of the described functions missing - not always easy

From a personal point of view I hope Tivo wins its cases as it has brought innovation, usseful functions and ease of use together in a way no company was able to do before Tivo - theres is not only a strong case but is proven by the production and sales in the market place

An innovative manufacturer needs protection and deserves royalties.

Tivo up to now have always come to mutualy benefecial agreements, they bend over backwards to help - the other guys should que up to talk to them. Tivo seem to be the easy guys to agree with, better to have them on your side than to scorn them

Posted by: Leonard Sherwood at Apr 28, 2006 8:31:03 AM

To say that TIVO has brought innovation, useful functions and ease of use together in a way no company was able to do before Tivo might be considered incorrect, and exagerated. The Sony VCR's (I have 3 which I still prefer in some ways) had that feature long ago, with adjustable rewind amounts to fit your reflex time. In other words - Same feature, much before TIVO, with better execution, and more user-friendly.

Some aspects of TIVO seem very progressive, but other features are just inadequate and poorly engineered. After using good VCR's for over 30 years, I often wonder "What was TIVO thinking?".

Posted by: vsfoxe at May 16, 2006 9:48:52 PM

Yes, the two machines may perform the same. How it was accomplished, using different parts, components and in different cases? Just because the end result is the same, is that a "copy infringement"? No mention of any parts list? Now about the software, was it written in the same language?

Furthermore ... other companies shall be reading these posts and gaining ideas. I shall no be typing company names.

I may patent my spaghetti sauce.

Posted by: Fred at Aug 18, 2006 8:23:19 PM

Is Microsoft violating TiVo's patent?

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