We Too Easily Ignore Intellectual Property Theft In the U.S.
America is unique in its tradition of protecting individual ingenuity to spur new technologies and new industries that allow this country to be the cradle of innovation. It is no accident that America was the birthplace of inventors from Edison to Jobs: from the invention of the electric light bulb to the smartphone, the American patent system has historically fostered and protected American inventors and innovation.
We have all heard stories of the theft of American intellectual property from countries such as China. What is less known is the assault on innovation and the “theft” of intellectual property that is happening within our shores by the largest American companies. Nothing is more representative of this assault than the unilateral decision by Comcast not to renew the decade long license they had to use the TiVo family’s intellectual property and instead infringe the Rovi (a TiVo family member’s) patents.
Even close watchers of the TiVo – Comcast legal battle can sometimes lose the thread in following TiVo’s multi-forum dispute with Comcast over fundamental patents. This is a case where a corporate behemoth with endless cash reserves refuses to pay to use the patented technology of others and instead files an unprecedented number of challenges, appeals, and counterclaims.
Comcast's actions should matter to anyone who cares about protecting intellectual property, encouraging inventors, and defending a uniquely American tradition So, today, I want to cut through the clutter and explain why this dispute is important, why it is imperative that TiVo win, and why it ultimately will do so.
The TiVo family of companies has played a significant part in American innovation. Its inventors solved two major problems that had confounded TV viewers for years - how to record a show in the future and how to find desired programming on the dial. Dating back to the early 1990s - when people were still purchasing paperback TV-Guides each week – TiVo’s inventors were developing and patenting innovations that were the foundation upon which, channel guides, Digital Video Recorders, remote recordings, and more were built. These inventions and more recent innovations in voice search and natural language processing are the backbone of the golden era of media consumption in which America leads the world.
Nearly every major media and entertainment company licenses Rovi’s intellectual property for its use - and the result has been a massive improvement in the product for consumers. Users now simply set their DVR to record a new favorite show from anywhere in the world, including with voice commands and have user-friendly guides with which they can find and record any show offered by their cable provider.
Such capabilities are no longer available to Comcast’s X1 subscribers because the International Trade Commission ruled in Rovi’s favor that Comcast infringes two of Rovi’s remote record patents. Comcast had to remove the feature. (To our knowledge Comcast’s customers have received no price break from this de-featuring). And the de-featuring continues. Comcast also made its search and guide functions clunkier to avoid having the court compel further changes to them.
The ITC is reviewing additional Comcast infringing conduct this year, as are U.S. District Courts. These and other cases that will inevitably follow will likely cause the Comcast product to deteriorate further, possibly resulting in the de-featuring of Comcast’s products on patents using Rovi innovations such as: the ability to start a program from the beginning if you tuned in late, extend the length of a recording, and utilize advance search functionality - in addition to mounting monetary damages.
In the meantime, it should come as no surprise that Comcast has enlisted the help of a regulatory body so notoriously patent holder unfriendly that it has been dubbed the “death squad” for patents: the Patent Trial & Appeals Board, or PTAB. In 2017, we believe Comcast went to the PTAB with more petitions to invalidate patents than any other company in America. Comcast’s PTAB results haven’t impacted the crux of this dispute. Comcast subscribers continue to be denied the ability to remotely record their content because of the ITC ruling.
So the result of these various challenges has been Comcast spending millions of dollars on lawyers rather than on legitimate licensing fees—while causing needless and avoidable customer dissatisfaction.
However there are very good signs for innovators to be able to withstand the tactics of such legal “bullying”. The PTAB's built-in institutional bias against intellectual property holders has caught the attention of the current administration. Last month, the new director of the Patent Office, Andrei Iancu, stated his intention to stop this practice of “patent thievery,” and the PTAB has just announced reforms that are believed to be a big leap toward restoring protections for innovators.The promising changes will take effect on November 13, 2018.
It is believed that these Trump administration reforms will level the playing field for patent holders again which will bring much needed relief to American innovators and patent holders.
What is really at stake in the TiVo – Comcast legal battle is the ability of inventors to protect their innovations from unauthorized use. Patent holders like TiVo have to take the long view within the legal system and maintain confidence that justice will eventually be served. American innovation will once again be rewarded, not stolen.
That will be a win not only for TiVo but for innovation in America.
