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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!

What we do.

Intellectual Property Litigation

PRACTICE GROUP CONTACTS: DOUGLAS J. SOROCCO | JORDAN A. SIGALE
LITIGATION PRACTICE

Since our inception, we have litigated on behalf of clients as well as helped clients avoid litigation. We offer skilled and experienced practitioners focused on litigation, licensing negotiations and transactional work for our intellectual property clients. 

PHILOSOPHY AND APPROACH

We believe that litigation should serve the business interests of the client. Our focus is on solving the business problem. We strive never to waste a client’s time, energy or money. We know “when to say when,” and when to go to the ends of the earth. We don’t back down from a trial—and we never want a client to be perceived as “buying off” infringers. We balance our courtroom fierceness with a pragmatic analysis of the likely outcome.

We believe that litigation is a business tool that should support the strategic management of a client’s portfolio and should be used only when goals are discernible, articulated and achievable. Where litigation is the prudent course, we are skilled advocates for our clients.

Our litigators are often involved in the drafting of patent claims and early development of a client’s portfolio—a forward-thinking approach aimed at ensuring the defensibility of claim terminology. Our success in the courtroom is quite clearly tied to our litigation team’s early analysis of the strengths, weaknesses and opportunities in an invention disclosure, patent application and/or intellectual property portfolio.

BUDGETS AND EARLY CASE ASSESSMENT: PATENT PROSECUTION AND LITIGATION

We are adept at setting realistic case budgets and skilled in early case assessment. In intellectual property arenas, early case assessment is often called strategic portfolio management or patent mapping and calibration with market forces. The key is the education and collaboration among all third parties and third-party information sources.

Our early case assessment practices are modeled after the DuPont Legal Model for litigation. We conduct case assessments early and often. Our case assessment model uses standardized processes and procedures leveraged against factual and legal input. Early case assessment can create wealth by avoiding pointless adverse entanglements. 

OUR LITIGATION MATTERS HAVE INVOLVED DIVERSE AREAS OF THE LAW, INCLUDING:
  • Patent infringement
  • Trademark infringement
  • Copyright infringement 
  • Trade secret misappropriation
  • Commercial litigation covering a variety of areas, such as breach of contract and business torts 
  • We enforce the patents of Pictometry International Corporation, the developer of the modern aerial imagery used by Microsoft and governmental entities, against U.S. and foreign-based infringers. Pictometry’s technology encompasses both software and electrical-mechanical equipment for capturing imagery from an aircraft and instantly calculating and assigning accurate geographic coordinates of the points on the ground to each and every pixel within the image. In Pictometry International Corp. v. Aerial Cartographics of America, Inc., et al., Case No. CIV-05-942-HE, filed in the United States District Court for the Western District of Oklahoma, Pictometry’s patent was determined to be valid and enforceable and one of the alleged infringers exited the U.S. market, while the other infringer took a license of our client’s patent. We have also worked with Pictometry to develop a world-wide portfolio of patents that have, to date, been used to keep all significant competitors out of the marketplace.
  • Dunlap Codding prosecuted and obtained the infamous “Freeny Patent,” U.S. Patent No. 4,528,643 , broadly covering the transmission of music, software, and digital images over the Internet. The breadth of the Freeny Patent’s claims was upheld by the Court of Appeals for the Federal Circuit and is now the basis for worldwide licensing agreements—agreements with companies including Apple, IBM, and Microsoft. The entirety of the portfolio we obtained for the client has generated revenues, through licensing and damages, in excess of eight figures.
  • ON-GOING—Stephen Whitaker v. Pictometry—Connecticut Freedom of Information Act Case. Whitaker sought to obtain Pictometry images and metadata under the Connecticut Freedom of Information Act from state agencies to which such information had been licensed by Pictometry. Following an evidentiary hearing, an examiner for the Freedom of Information Commission denied the request for the metadata, holding that it was a trade secret. Pictometry objected to the production of the imagery on the basis that the images were covered by the federal Copyright Act and thus exempt from production under state FOIA statutes. While upholding Pictometry’s claim that the images were copyrighted, the examiner nevertheless ordered the images to be produced, finding that the Copyright Act did not provide an exemption from production. At a hearing of the full commission, the examiner’s rulings were upheld. Pictometry appealed the commission’s ruling to the state superior court, which recently upheld the commission’s decision. Pictometry subsequently appealed (July 2010) the court’s ruling to the Connecticut Supreme Court. This case is significant and may be precedent setting in that it will likely be the first decision determining the extent to which state FOIA laws override federal copyright statutes. Issues of first impression include: (1) does the federal Copyright Act provide an exception against