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Thread: TIVO vs E*
04-11-2009 12:15 PM #439
I'm saying that Tivo made a mistake to attempt to build their entire business model on what appears to be a weak and obviously arguable patent.
Basically, they are attempting to build a castle on the sand. And as much fun as it is for the Tivo faithful to vilify E* throughout all this, we shouldn't just limit the scope of Tivo's problems to just E* here.
The patent is obviously contestable at some level. We shouldn't assume that there won't be anyone else other than E* who try and contest it. They have a potentially on-going issue here...
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04-11-2009 12:16 PM #440
04-11-2009 05:01 PM #441
I disagree. I don't think one can say their "castle" was built on "sand" when E* had just lost $100M to TiVo on an infringement judgment, after even the Supreme Court had rejected E*'s apeal. That is as solid a case as you can even think of.
But, yes there is a but, I will explain in the next post.
04-11-2009 05:24 PM #442
First they succeeded in convincing Judge Folsom that they should not pay TiVo treble damages and attorney fees, even though the jury had found willful infringement.
Then by appealing Judge Folsom's final judgment and the injunction, they succeeded in having the Circuit Court staying the injunction, and pushing the Circuit Court decision back by about one and one half year. This time allowed E* to design around the TiVo's DVR patent. Had they not convinced the appeals court to stay the injunction, they would not have had the opportunity to design around, they would have to first shut off the 4 million DVRs.
The next move was to file a declaratory judgment suit against TiVo in the DE court, the next business day after the 5/30/08 status meeting, when they were sure TiVo was going to press the contempt issue. This move had also succeeded in its first phase:
1) It caught TiVo by surprise. Usually people assume TiVo would first try to prove E* in contempt, then TiVo would try to accuse E*'s new DVRs next, but this E*'s suit denied TiVo's such future attempt.
2) In responding to E*'s surprise move, TiVo made a big mistake, as the DE judge said so himself, instead of trying to move this E*'s new case to the TX court, TiVo boldly motioned the DE court to totally dismiss this E*'s case.
3) In trying to dismiss this new E* case, TiVo made many arguments that are very much related to the current contempt proceeding, and forced the DE judge to respond to each and everyone of those arguments. As I said, the DE judge rebutted all of them, and let his opinions known on 3/31/09. These DE judge's opinions will have some potential long term impact on all the subsequent proceedings.
Now there was another move E* made that could be potentially even more damaging to TiVo. In 10/08, E* also convinced the USPTO to re-examine the validity of the remaining two TiVo's patent claims. Apparrently all this time E* continued to try to research all the past prior patents, and finally discovered that there were two prior patents, when combined together, can invalidate TiVo's current software patent claims.
If E* ultimately succeeds in the re-examination attempt, no one will fear TiVo's threat anymore, regardless when TiVo's patent may expire.
You see, E* did not just try to simply delay the process, each and eveyone of their "delay tactics" had a clear objective, and they have been for the most part moving along according to the plan.
04-11-2009 05:45 PM #443
Tivo is trying to build a licensing business around a patent that is proving itself to be highly challengeable. I mean, if all Tivo wants to do at this point is sit back and get paid, and whether or not they win or lose, are they prepared to do battle like this EVERY time somebody out there feels they've built a better mousetrap? There will be others...
I said years ago that this thing was going to get litigated to death, and it IS getting litigated to death.
04-11-2009 07:15 PM #444
Because if you knew TiVo's case was built on sand, keep in mind that it was not, the jury found E* willfully infringed, and all the way to the Supreme Court the finding was upheld.
Now you may be right that had someone fought this case all the way, TiVo's patent could be eventually defeated, but did you anticipate anyone would try to fight all the way?
I had a story about this, right after Charlie lost the jury verdict and was handed down the final judgment, Forgent sued E*, D* and Time Warner in that same TX court for a similar DVR infringement, both D* and TW settled with Forgent right before the jury trial for $8M and $20M each, respectively.
Charlie, after just having lost one case big time, used the same lawyers, and managed to use a different strategy to convince the jury to throw the Forgent case out of the window. Had D* and TW only went along with Charlie they would not have to pay the settlement, but they did, and that is what most companies do, they settle, and you would never have known Forgent's case would be thrown out, had Charlie not fought it rather settled also.
The point is, Charlie is a rare breed, without him, others would have just liscensed TiVo's patent, in fact they did, both D*, Comcast and Cox did license TiVo's patent. No one would have even tried to invalidate TiVo's patent.
Unfortunately TiVo ran into Charlie.
And BTW, Charlie did not just fight for the sake of fighting to get here. It was a very tough fight, along the way any missstep would have doomed his fight, as I demonstrated above, a lot of work was put into this whole fight to turn the tide one step at a time.
Rarely had the history played this way before, and therefore I suspect you did not have such foresight to predict this to happen from years ago. I doubt even Charlie had predicted it this way, he only had the balls to risk it, that is who he is.
In most cases once the patentees get the infringement verdicts, especially after the appeals court upholds them, people settle, and the patents do not get challenged further, and people go about their own businesses.
Last edited by jacmyoung; 04-11-2009 at 07:30 PM.