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Microsoft tries ITC with last throw of dice in TiVo patent war

Microsoft has got itself in deeper and deeper by suing TiVo on behalf of its clients AT&T and Verizon

By PETER WHITE

Published: 27 January, 2011

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Microsoft has got itself in deeper and deeper by suing TiVo on behalf of its clients AT&T and Verizon. The first court that takes a long look at this, and it is now likely to be the US International Trade Commission, will, we believe, come down hard on Microsoft for this.

This week Microsoft made it known that it was seeking an injunction to prevent TiVo importing DVRs, which it claims use patents which Microsoft has filed around the onscreen TV guide. Given that these patents have never been widely licensed and never (as far as we can find) seen legal scrutiny, they might be used to target any and every pay TV operator or supplier, but instead Microsoft is purely going after tiny TiVo, in a move that will be laughed at legally.

Using the ITC for tactical market battles or to defeat existing, unrelated litigation, will backfire, we are pretty sure. At the outset the ITC can simply say no to the request to ban the import of TiVo devices. At the worst Microsoft will get financially hit by the suit, or have its patents taken away as obvious, out of date and containing prior art. This is like Intel trying to prevent DVRs from being installed because they have a “chip” in them. It’s dumb.

The fact that Microsoft is acting on behalf of its customers AT&T and Verizon is transparent, and tasteless. Let them defend themselves.

The ITC case is simply a new front in a determined effort by the entire pay TV community to avoid paying TiVo its due on patent licensing for Trick Play DVR features. Already the Dish Network has been ordered to pay around $400 million because it refused to pay a simple reasonable royalty over these patents, and although part of that is about to be reviewed by an “en banc” retrial, the core issue that the patents are strong and valid, has been through courts twice. TiVo now needs to be afforded Gemstar status and the majors need to pay royalties on its inventions, and use the TiVo technology top to bottom, not try to sue it out of existence.

Microsoft brought up the issue of these EPG patents after TiVo waded into AT&T and Verizon in the wake of what was thought of as the Dish final legal decision (although that case has lingered on). There is a simple, painless licensing deal to be done here. Microsoft supplies middleware, hardware and technical services to both Verizon and AT&T pay TV services, but instead of embracing TiVo, it has attempted to sideline the issue, and now this forlorn hope of battering it into submission over unrelated, and untested patents of its own, are likely to end in grief – not for AT&T and Verizon, but for Microsoft.

TiVo has a long history of defending its basic intellectual property around digital video recorders, and has had the patents deeply examined in courtrooms and at Markman hearings, and it has been found that they are sustainable. Instead this is a merely an attempt, and a not too subtle one at that, at mitigation.

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