A High Court judge in London has dismissed claims that Virgin Media infringed patents covering key aspects of its electronic programme guide and has ruled that the patents are invalid, at least in the United Kingdom. Gemstar-TV Guide, now part of Rovi, formerly known as Macrovision, brought the case against the cable television operator. The ruling will be carefully examined by operators around the world, some of whom have licensed what seemed to some, including the judge in this case, patently obvious features.

In January 2008, Gemstar-TV Guide began legal proceedings against Virgin Media after unsuccessfully attempting to licence its patents to the cable television company. At the time, News Corporation, the majority shareholder in BSkyB, also held a 41% stake in Gemstar-TV Guide, which was in the process of being acquired by Macrovision for $2.8 billion.

Sky, among other operators, is understood to have licensed the patents, although some industry observers expressed doubts about their validity. Virgin Media said the case was without merit and determined to defend it vigorously.

At the time, informitv reported that “it seems unlikely that Gemstar will prevail in this case” and noted that failure of litigation could set a useful precedent for the rest of the industry.

Gemstar alleged infringement of various aspects of selecting a single channel from a programme listings grid, filtering favourite channels, and transferring recordings. It said these features of the Virgin Media digital video recorder were covered by patents EP 0969662, EP 1377049 and EP 1613066, respectively referred to as the single channel, favourites, and transfer patents. The first two date from 1990. The third dates from 1998.

Virgin Media responded by arguing that the patents should be revoked as invalid, for covering non-patentable material, lacking novelty and being obvious on the basis of previous products.

The case lasted 14 days and considered a range of evidence. The judge, Justice Mann, was critical of the expert witnesses produced by Gemstar. He appears to have been more persuaded by the testimony of Peter Hallenbeck, the inventor of SuperGuide, which he developed in the United States between 1985 and 1986 and was cited as evidence of prior art.

The primary claim of the single channel patent covered displaying programme listings in a grid guide format, moving a cursor on the screen to select a title and then opening it in a single channel format.

The judge concluded that the relevant claims could not be subject of a patent, on grounds of being a computer program and simply presenting information, and in any case it would be liable to be revoked on the grounds of obviousness over prior art. “Since I have found the patent to be invalid for a number of reasons, infringement does not arise,” he concluded.

The favourites patent essentially claims to cover the selection of favourite channels in a channel grid and providing programming information for that subset of channels.

“This seems to me plainly to be a computer program,” noted the judge. “It does nothing to make the computer do anything other than to sort data, and that is not sufficient,” he continued. “The effect on the user can hardly be described as a technical effect.” He described it as a clear example of presentation of information and said the patent should be revoked. He also concluded that in any case it lacked novelty.

The transfer patent claims to cover the selection of a previously recorded programme to a secondary storage medium by means of selection through an interactive programme guide.

Virgin attacked the patent on the basis of prior art, citing an article from Daily Variety relating to a company called Replay, and a Japanese patent application from Toshiba. In the light of the latter, the judge found that the patent in question lacked novelty and was possibly obvious, although potentially patentable.

As the patents were found to be invalid under United Kingdom law, there was no infringement by Virgin Media. Rovi says it intends to appeal the ruling.

The finding will no doubt be keenly reviewed by other platform operators and consumer electronics manufacturers, for whom it has important implications.

For the last decade, the design of electronic programme guides has been determined by reference to dubious “intellectual property” and implicit threat of litigation which have served to stifle innovation and improvements in usability.

Even basic features, such as selecting a channel from a programme list, or marking a favourite channel, have been held to be protectable features, although it is now quite clear that they are excluded by patent laws in the United Kingdom.