TIVO vs E*

[Scott Greczkowski]

I just got the following sattement from Dish Network/Echostar

DISH Network and EchoStar Statement Regarding Tivo

ENGLEWOOD, Colo. – Nov. 20, 2008 – DISH Network Corporation (NASDAQ: DISH) and EchoStar Corporation (NASDAQ: SATS) issued the following statement regarding today’s developments in the Tivo Inc. v. EchoStar Communications Corp. lawsuit:

“We are pleased that the district court did not find us in contempt on the face of the injunction. We look forward to the February bench trial on our software design-around. Our subscribers can continue using their award-winning DVRs from DISH Network.”

[Greg Bimson]

Wow. So the judge is following KSM and will see if there is infringement.

Not necessarily. Infringement may have to be found in order to find contempt and apply damages, but I don't see anything about colorable difference anywhere.

[Thomas22]

If E* is not in contempt, the lost-profit part of the damage will be out of the window

It wasn't out of the picture for the jury trial. There was no contempt then, why can't there be lost profits for the continued infringement?

[jacmyoung]

From Investor Village:Doesn't this mean the hardware claims are back in?

I would say yes too.

Remember when the appeals court reversed the hardware verdict, it allowed the parties to re-address it if they wished to. Ordinarily you would think TiVo would be the one who would be inclined to re-address the issue but TiVo did not. But then the judge himself can re-address the issue too, that is the part I did not think about.

What is surprising to me is, this new order appears the “new action” the judge was telling the TiVo’s attorney on 9/4 because it will be a bench trial, it will be a formal trial, and therefore a new trial, independent of this current trial.

In another word, this case is practically over, as far as the contempt issue is concerned, but not the damage part. Apparently the judge decided to delay the damage part until the new bench trial is concluded.

And this new bench trial will in fact be able to determine if the new design around is still an infringement or not, which is the same goal the case E* filed in the DE court were to accomplish, only that because the DE court had not decided if they would grant E* the trial or not, and the fact Judge Folsom decided to initiate the new trial in his court, E* will not be able to settle it in the DE court, rather again in Judge Folsom’s court.

Just my speculation as I am no lawyer.

[jacmyoung]

It wasn't out of the picture for the jury trial. There was no contempt then, why can't there be lost profits for the continued infringement?

You are correct, I should have said for the period after the design around up to 04/08. But keep in mind TiVo is asking for lost profit up to 04/08 regardless contempt or not. And that was the real problem.

[mike123abc]

I bet Dish is happy they are getting a bench trial vs a jury trial. At least they will be able to use logic in their arguments.

[Thomas22]

I bet Dish is happy they are getting a bench trial vs a jury trial. At least they will be able to use logic in their arguments.

I guess they can cancel their Delaware hotel reservations now.

[vampz26]

Funny how Dish's DVR's have gotten better since they stole the Tivo base programming. Their DVR's used to be the worst.

How can you 'steal' something thats being given away? Tivo is open source...

(in case you're lost... )

[msmith198025]

How can you 'steal' something thats being given away? Tivo is open source...

Ask the courts

[Thomas22]

ALVISO, Calif., Nov. 20 /PRNewswire-FirstCall/ -- TiVo Inc. (Nasdaq: TIVO - News), the creator of and a leader in television products and services for digital video recorders (DVR), offered the following statement today on the order by the United States District Court, Eastern District of Texas, in the lawsuit against EchoStar Communications Corporation:

"We are pleased that the U.S. District Court has scheduled a hearing on EchoStar's purported workaround on February 17, 2009. Contrary To EchoStar's statement today, the Court did not rule on TiVo's pending motion for contempt of the injunction. The Court will do so after the hearing as well as rule on the amount of damages owed to TiVo beyond the nearly $105 million already paid by EchoStar. This is a positive step, particularly the accelerated discovery ordered by the Court, towards the ultimate resolution of all issues in the litigation and we remain confident that we will prevail in showing that EchoStar's workaround does not avoid infringement."