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Phosita IP Blog

RUMORS OF THE ANTICIPATED XBOX 720 INCORPORATING A DVR SYSTEM COME IN THE MIDST OF A SWIRL OF LITIGATION INVOLVING DIGITAL VIDEO RECORDING TECHNOLOGY.

As reported by Gamezone on January 4, a new rumor has surfaced about the development of the next generation Xbox, or Xbox 720 – a clever twist on the current Xbox 360 title, due to a patent recently granted to Microsoft. 

United States Patent No. 8,083,593 was issued on December 27, 2011, and describes the implementation of a DVR system allowing for the recording of media, including television programs. The following abstract briefly describes the DVR application as implemented in the new system:

                “An integrated gaming and media experience is disclosed, including recording of content on a gaming console. A digital video recorder (DVR) application running alongside a television client component allows users to record media content on the gaming console. The DVR application also integrates itself with the console menu. Once integrated, users can record media content while playing games. Alternatively, users can record content when the gaming console is turned off. The recorded content can include television programming, gaming experience (whether local or online), music, DVDs, and so on. When in the recording state, users can also switch between various other media modes, whether gaming, television, and so on.”

Although the new Xbox 720 sounds pretty cool, this patent gives rise to yet another issue in the current controversy between Microsoft and TiVo regarding digital video recorder (DVR) technology. As you may have heard, Microsoft filed a lawsuit back in January 2011 and in subsequent motions alleged that TiVo violated seven of Microsoft’s patents concerning digital video recording.  There is currently, however, a stay on the case due to the court’s having granted TiVo’s request for reexamination of the allegedly infringing patents. See Microsoft Corp. v. Tivo Inc., 2011 U.S. Dist. LEXIS 52619 (N.D. Cal., May 6, 2011).

What really makes this interesting is that AT&T (one of Microsoft’s major customers) was sued in 2009 for infringing TiVo’s DVR patents 6,233,389, 7,493,015, and 7,529,465 which ultimately resulted in a settlement on January 3, 2012.  Forbes reports that TiVo will receive approximately $215 million from AT&T with $51 million up front and recurring quarterly payments until 2018 to cover the rest. To add to the controversy, it has been suggested that Microsoft filed its suit in January 2011 in response to TiVo’s suit against AT&T because AT&T’s technology runs Microsoft’s Mediaroom client software. Thus, it raises the question that since AT&T settled and AT&T’s technology uses Microsoft’s technology, is it still feasible that Microsoft could win its suit against TiVo and be able to defend against TiVo’s counterclaim of patent infringement? Although I have not researched in depth the patents at issue in these cases, the settlement by AT&T, if anything, might shed some light on how Microsoft’s case will unfold once reexamination is complete.
Now back to the important stuff: video games. In light of all this litigation surrounding DVR technology, it seems like the video game community might have to wait even longer than the 2013-2015 projected release date of the Xbox 720 so that Microsoft can incorporate the rumored DVR feature without the risk of impending litigation. If Microsoft ends up winning the suit against TiVo before then, however, I, for one, hope that Microsoft passes some of the winnings on to the consumer in the form of discounted prices for the new system.

 Image by Fanchile on Flickr Creative Commons- some rights reserved.

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DC On Film Row

About DC on Film Row

DC on Film Row is a free event space open to everyone in our community.

We like to say that the space is a “home for creatives and innovators, home builders and the homeless, celebrators and the celebrated” so people understand that we are inclusive and want everyone from throughout our community using our space.

Our goal is to celebrate the incredible diversity of creativity, innovation, and passion within Oklahoma City and to provide a venue—free of charge—to those groups and individuals working to bind us all together and make our home a cooler and better place. No strings attached—no extensive rules to follow. We simply ask that all of our neighbors be honored and that all viewpoints be respected. Our criteria for use is simple: If the event, group, or meeting is something which strengthens our community and brings us all together, the space is available for use.

The space has hosted everything from charitable fundraisers to an underground nightclub party to celebrate Canterbury Choral Society’s 45th anniversary season. We host dinners for the OKC homeless population most Monday evenings where upwards of 250 people are served—we provide the space and soft drinks and a local church provides the food. We’ve hosted university planning retreats and monthly local rock concerts.

Every Wednesday, we open up the courtyard for lunch, invite a local food truck to set up outside our gates, and welcome our downtown neighbors into the space for a bit of socialization.

Our never-ending soda fountain seems to be the biggest hit with some of our neighbors while others spend time playing pool or simply chatting about what is happening on the weekend.

For October we turn the space into a haunted house and invite the neighborhood children to come out and trick-or-treat.

Got an idea for how to use the space? Just ask us – we’re almost certain to say yes!

One Year Anniversary of Alice

Managing Intellectual Property Ranks Dunlap Codding In Tier 1; Names Ip Stars

Dunlap Codding is pleased to announce that Managing Intellectual Property magazine ranked the firm in its top tier—Highly Recommended—and named five firm attorneys to its IP Stars 2015 list:  Marc A. BrockhausNicholas D. RouseJordan A. Sigale (Illinois), Douglas J. Sorocco, and Joseph P. Titterington.  More Dunlap Codding lawyers were named to the list of IP Stars than from any other firm in Oklahoma. 

Marc Brockhaus leads the firm’s Electrical Engineering & Systems group.  He received his J.D., M.B.A., and B.S. in Electrical Engineering from the University of Oklahoma.  Nick Rouse is the firm’s Managing Director and the head of its Mechanical Engineering group.  He received his J.D. and his B.S. in Petroleum Engineering from the University of Oklahoma.  Doug Sorocco heads the firm’s Life Sciences practice and received his J.D. from the University of Dayton and his B.S. in Chemistry from Butler University. Jordan Sigale is a Co-Chair of the firm’s Litigation practice and offices in Chicago.  He received his J.D., magna cum laude, and B.S. in Electrical and Computer Engineering from the University of Illinois.  Joe Titterington is also a Co-Chair of the firm’s Litigation practice.  He received his J.D. from the University of Oklahoma and his B.S. in Psychology from Oklahoma State University. 

Managing Intellectual Property’s IP Handbook ranks leading intellectual property agencies and law firms worldwide, highlighting the country’s prominent intellectual property attorneys.  Results are based on a research process comprising more than 1,000 interviews of and surveys from peers and in-house counsel active in the United States. 

Dunlap Codding Director Jordan A. Sigale Quoted in Articles Analyzing the U.S. Supreme Court’s Ruling in Kimble v. Marvel

Jordan A. Sigale was quoted in Donna Young’s recent article in Scrip Intelligence, “Patent ‘superpowers’ time limits upheld:  Biopharma implications.”  Young wrote that Kimble v. Marvel  “may help patent holders and those that enter into licensing rights deals, including biopharmaceutical makers, better understand and be more aware of a nearly half-century old case law rule.”  

The U.S. Supreme Court, in a split decision, declined to overturn the 1964 standard set in Brulotte v. Thyswhich ruled that patent holders cannot demand royalties for the use of their inventions after the patent terms have expired. 

Sigale said, “Big biopharmaceutical firms are well-represented in patent law and intellectual property matters, so they already know their way around the Brulotte rule….If anything, the Supreme Court’s ruling in the Marvel case makes it clearer the Brulotte rule is narrow and that there are ways to draft around it….But for those who are unsophisticated about Brulotte, the opinion is unfortunate….It would be much better to knock out this rule.  It doesn’t make economic sense…and any standard that gives the advantage to those who can afford the best legal representation is bad for society.”

 Ryan Davis, writing for Law360, on June 22, 2015, also quoted Sigale.  Davis wrote, “The Kimble case arose because neither party knew about the [Brulotte] rule when Marvel agreed to license Kimble’s patent for use in a Spider-Man Web Blaster toy in perpetuity.”  Sigale was quoted as saying, “The decision explains that the Brulotte rule really is as narrow as we thought it was….If you make it clear there are no royalties for the patent after it expires, you can do anything you want.”  

“Sigale said it was helpful that the court expressly gave its blessing to later payments of royalties accrued during the life of the patent,” said Davis.  Sigale said, “Before today, people were a little nervous that the court would say that’s just putting form over substance.”

Dunlap Codding Senior Associate Julie L. Langdon Quoted in Law360—“6 Ways Associates Are Falling Short”

Julie Langdon was quoted by Cara Salvatore in an article published by Law360 on June 1, 2015, entitled “6 Ways Associates Are Falling Short.”  The article noted the following ways associates are stumbling and offered steps to improve:

  • They Aren’t Visible Enough
  • They Don’t Take Ownership
  • They’re Not Thorough
  • They’re Not Friend Material
  • They Don’t Know How to Talk on the Phone
  • They Don’t Sow the Seeds for Business Development

Discussing ownership, Langdon noted that it was important to follow up relentlessly and to know what to do when mistakes occur.   When they do, as they inevitably will,  it’s important to own the problem quickly and take steps to correct it.  “Unfortunately, it happens:  A document that was supposed to be filed under seal that was, by mistake, filed publicly, and you’re calling the clerk at 8 a.m. the next morning…’take this off the docket.’”  She went on to note, “All things are fixable.”

Jordan Sigale Quoted in Bloomberg BNA Article on Patents

“A belief that a patent is invalid isn’t a defense to a charge of induced infringement, the Supreme Court ruled 6-2 on May 26 (Commil USA, LLC v. Cisco Systems, Inc., 2015 BL 164427, U.S., No. 13-896, 5/25/15).”  Bloomberg writes that the Supreme Court reversed the Federal Circuit Court, holding that Cisco Systems Inc. couldn’t overturn a jury award based on its argument that Commil USA LLC’s Wi-Fi related patent claims were invalid.  A third trial is now likely in this case, according to Bloomberg, “The case returns to the Federal Circuit with only one part of its decision reversed.” 

Some commenters noted that the court’s comments on trolls were surprising, and opined that the decision likely increased the power of patent trolls.  Still others thought the ruling would bring an increase in patent litigation. 

Discussing the impact on litigation, Dunlap Codding Director Jordan A. Sigale, disappointed in the court’s decision, said, “There are some patents that are so overbroad and/or so ambiguous that it may be difficult to provide a reasonable opinion of non-infringement, whereas a reasonable (maybe even and clear and convincing) opinion of invalidity would be simple to write….Yet, this opinion would now be insufficient to avoid inducement liability under Commil.”