TIVO vs E*

[jacmyoung]

...Thus far, Dish Network has not been able to demonstrate any non-infringing software.

E* has not been able to convince Judge Folsom the new software in those 8 named DVRs may no longer infringe, not "any software." There are so far two DVR software products at issue, one used in the 8 named DVRs in the past, one used in the same 8 named DVRs now. Two is not "any."

[quote]All of Dish Network's Broadcom-based SD DVRs were found to infringe. If the DVR functions operate in the same way on the Broadcom-based HD DVRs, then they infringe too.[quote]

Not enough, TiVo must prove both the software and the hardware of any new DVRs are not colorably different. In the current case, TiVo did not have to prove anything about the hardware, the hardware did not change.

If there is no settlement, TiVo will soon argue that the hardware and software interactions on the Broadcom-based ViP622/ViP722 DVRs are no more than "colorably different" from the Broadcom-based SD DVRs.

That is correct if the judge's order is not stayed.

Dish Network's expert witness already testified back in February that the VIP DVR software was similar to the new software for the infringing DVRs. Dish tried unsuccessfully to have that testimony removed from the record.

Of course the DVR software are always similar because they do similar things, that is not to say they all infringe. But you are correct, TiVo will likely introduce the new DVRs in the next round unless E* gets the appeals court to stay the order.

[jfh3]

Apparently, Dish has a temporary stay. It's my understanding that this are pretty much automatic, giving the CAFC time to read the rulings/filings, so not a big surprise.

I think they got a stay the last time within a day too.

Would love to see what possible grounds they think they have for appeal.

"We are pleased that the Federal Appeals Court in Washington temporarily stayed the district court's order in the Tivo litigation. DISH Network customers can continue using their DVRs. We believe that we have strong grounds for appeal."

[Hemi 6.1]

It is my opinion that jacmyoung has an extreme pro-E* and anti-Tivo bias, for whatever reason and that's his right. .

I didn't even know Jacmyoung had E* service. Last I knew He had 4-5 HR 20's or 21's and he did the big Triple A Deal and D* was his main service. SO I'm not sure about your above statement.

[jacmyoung]

Wow, you just can't help it can you? How about you go READ the Paice decision and then talk? Here's a link for you, or anyone else you has the time. It turns out I can't post that link until after this post, as I have to have 3 posts. It will follow immediately. Jury rate in Paice was $25. Post-judgement rate was $98. $98 is 3.92 times $25. For the math challenged, that is more than triple. FYI, for those who are interested, the judge is not bound by the jury rate for post-judgement or even triple. The judge must make a determination, based on the changed legal footing of the situation and determine a fair rate. Amado came up with 3X, Paice was 4X, TiVo could be 5X. We just don't know at this point, but somewhere between 3X and 4X is a reasonable assumption, based on recent legal precedent. This will happen, and Charlie will be lucky to get an ongoing royalty agreement with TiVo for anything even close to $3/box/month (2X) on every DVR he owns at this point. He could have easily gotten $1.50/box/month 4 years ago, but he chose the dark side, so it's going to cost him now.

Jury's formular was surprisingly low according to Judge Folsom, but Judge Folsom initially used such jury's formular anyway, the patentee appealed because they wanted $250 (while Toyota wanted $17), and the appeals court vacated Judge Folsom's rate decision not because Juge Folsom applied the jury's formular, rather that Judge Folsom failed to explain where the $25 came from. The $25 was not the jury rate rather made up by Judge Folsom, otherwise the appeals court would not have questioned where it came from.

On remand, Judge Folsom again heard arguemnts from both sides, and decided the rate was $96. That was Judge Folsom's final decision on the rate in Paice.

Now in this case, TiVo wanted $2.25, E* said $1.00, Judge Folsom said $1.25. Unless TiVo appeals the $1.25 decision, the $1.25 will be used, yes it can be raised in the future, but not above the $2.25 TiVo asked for.

TiVo can of course ask for $5 if E* wants to settle with TiVo, the settlement does not have to conform to Judge Folsom's rate, but still E* can object to the court if TiVo's asking rate is unreasonable, but regardless, I am saying if TiVo asks for $5, E* likely will just replace the DVRs, it might cost less that way.

[jacmyoung]

I didn't even know Jacmyoung had E* service. Last I knew He had 4-5 HR 20's or 21's and he did the big Triple A Deal and D* was his main service. SO I'm not sure about your above statement.

I am now with ATT Unverse on trial basis while my D* account is in suspension

[jfh3]

Now in this case, TiVo wanted $2.25, E* said $1.00, Judge Folsom said $1.25. Unless TiVo appeals the $1.25 decision, the $1.25 will be used, yes it can be raised in the future, but not above the $2.25 TiVo asked for.

Only true regarding the additional damages awarded.

For the sanctions, who knows. But even Folsom implied that $2.25 was a good starting point, so if you use the Paice logic, $5 isn't out of the question.

And then there is the ongoing license, should Tivo be so inclined. The new DTV rate is assumed to be close to $2.25 - no way Dish will get the same from Tivo now.

[Scott Greczkowski]

Another Statement from Dish Network and Echostar


DISH Network and EchoStar Statement Regarding Tivo

ENGLEWOOD, Colo. – June 3, 2009 – DISH Network Corporation (NASDAQ: DISH) and EchoStar Corporation (NASDAQ: SATS) issued the following statement regarding today’s ruling in EchoStar Communications Corporation vs. Tivo:

“We are pleased that the Federal Appeals Court in Washington temporarily stayed the district court’s order in the Tivo litigation. DISH Network customers can continue using their DVRs. We believe that we have strong grounds for appeal.”

[rtmoore4]

Jury's formular was surprisingly low according to Judge Folsom, but Judge Folsom initially used such jury's formular anyway, the patentee appealed because they wanted $250 (while Toyota wanted $17), and the appeals court vacated Judge Folsom's rate decision not because Juge Folsom applied the jury's formular, rather that Judge Folsom failed to explain where the $25 came from. The $25 was not the jury rate rather made up by Judge Folsom, otherwise the appeals court would not have questioned where it came from.

I'm sorry, I can't just let this go. You're deliberately confusing the issue, in my opinion, to try and confuse others. Look, this is real simple. There were 2 rates: Pre-judgement infringement and post-judgement infringement. The first was set by the jury, $25. HJF did say he thought that rate was low, but he went with it anyway because nobody objected. The second rate was the post-judgement rate and it was initially set at $25 as well. HJF used the same jury rate for this, but failed to explain why he did so. This is what was remanded. He then did the analysis and came up with a number that was 4X the original jury rate for post-judgement infringment. Period. That's it. 4X was the number: not 3X, nor 2X, but 4X. The Monty Python fans will get that last sentence.

Now in this case, TiVo wanted $2.25, E* said $1.00, Judge Folsom said $1.25. Unless TiVo appeals the $1.25 decision, the $1.25 will be used, yes it can be raised in the future, but not above the $2.25 TiVo asked for.

Wrong again, but thanks for playing. Again, think about pre-judgement infringement versus post-judgement infringement. Your above comments are for the former, not the latter. The former is in the books and was decided yesterday. The latter is what is being discussed here, and any analysis of what rate would be fair at this time would be radically higher than the rate set yesterday. The rate that was set yesterday was based on an assumed negotiation that would have taken place in 2006. Clearly, the legal footing has changed significantly at this point and if you will read HJF's decision from yesterday you will see that he says as much in the ruling. I won't post a link, because I got in trouble for it last time, but most of you can find it, I think.

TiVo can of course ask for $5 if E* wants to settle with TiVo, the settlement does not have to conform to Judge Folsom's rate, but still E* can object to the court if TiVo's asking rate is unreasonable, but regardless, I am saying if TiVo asks for $5, E* likely will just replace the DVRs, it might cost less that way.

Any private settlement negotiations will not be part of a court filing and there won't be any objections to the court about whatever rate TiVo asks for. If HJF is forced to set a post-judgement rate, you can be assured it will be somewhere north of 3X the pre-judgement rate. E* would do well to come to the table at this point and agree to anything less than that. On the other hand, TiVo may just decide to nail them to the wall at this point. I probably would, if I was in their shoes. They have all the cards at this point, and E* has tried everything, including theft of their property, to put them out of business. I wouldn't settle for anything less than 3x the pre-judgement rate if I was TiVo.

As far as replacing the DVR's goes, it won't help E* do anything but delay the inevitable. HJF has already said the software is not more than colorably different and the new devices run the same software. The hardware doesn't matter at that point, since the software claims are what are being violated right now.

Of course, that's the strategy E* has continued up till now (delay, delay, delay), so I fully expect them to try. It will just keep costing them more and more the longer they fight it.

[Bob Haller]

Geez this is like the old days of satellte tv Like when rupert first got involved with charlie and E won......

I have missed the excitement, how many old timers know what I mean??

[Thomas22]

TiVo Statement on the Federal Circuit Court of Appeals' Decision to Issue a Temporary Stay of Injunction
Last update: 6/3/2009 7:02:00 PM
ALVISO, Calif., June 3, 2009 /PRNewswire-FirstCall via COMTEX/ -- TiVo Inc. (TIVO), the creator of and a leader in television products and services for digital video recorders (DVR), offered the following statement today on the U.S. Court of Appeals for the Federal Circuit in Washington, D.C. decision to issue a temporary stay of injunction in its lawsuit against EchoStar Communications Corporation:
"We are very pleased with the recent decision by the United States District Court, Eastern District of Texas, to fully enforce a permanent injunction in our patent case against EchoStar in addition to rejecting EchoStar's alleged workaround claim regarding the TiVo patent and finding EchoStar to be in contempt of the Court's permanent injunction. The U.S. Court of Appeals temporarily stayed the District Court's ruling pending the Court's consideration of TiVo's response to EchoStar's motion for stay pending appeal. We are confident the U.S. Court of Appeals will again uphold the District Court ruling and not permit EchoStar to further delay this case once it has an opportunity to consider TiVo's response and EchoStar's motion on the issue of the stay."