TiVo “Time Warp” Claims Rejected

Scott Daniels | August 4, 2009

The use of reexamination as an aid in litigation was demonstrated again today, this time as a way of promoting a particular claim construction.

In January 2004 TiVo sued Dish Network Corp. in the Eastern District of Texas for infringement of TiVo’s U.S. Patent No. 6,233,389. The ‘389 patent claims a process for simultaneous storage and playback of multimedia data – it allows a television viewer to store one broadcast while watching a different broadcast.

Judge Folsom found that Dish had infringed the ‘389 patent and issued a permanent injunction requiring Dish to disable the DVR function of existing products and forbidding it from future infringement. When Dish attempted a design-around the ‘389, TiVo obtained a ruling from Judge Folsom that the new design was “not more than colorably different” from the original infringing design and that Dish was in contempt of the injunction.

TiVo also requested Judge Folsom to order Dish to pay TiVo $975 million for violating the injunction. That request is pending.

In the meantime, in November 2008, Dish filed a request for ex parte reexamination of claims 31 and 61 of the ‘389 patent, the key claims in the Texas litigation. The PTO granted the request earlier this year and on August 3, rejected claims 31 and 61 as being obvious over a combination of two prior art references. TiVo, of course, has the opportunity to traverse that rejection.

Dish, though, has now sent a letter to Judge Folsom, asserting that the PTO’s rejection construes claims 31 and 61 – specifically the limitation “parsing video and audio data” in a manner which shows that Dish’s attempted design-around was more than only “colorably different” from the original infringement. Dish also argues that the claim construction shows that it had acted in good faith and that Judge Folsom take into account that good faith in his consideration of the TiVo’s sanction request.

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