TIVO Decision with DISH delayed

[ReconPJ]

LOS ANGELES (Reuters) - A federal judge in Texas on Thursday delayed ruling until as late as November on whether EchoStar Corp owes TiVo Inc more damages for infringing on its "Time Warp" digital video recorder, or DVR, technology.

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Investors, who expected the ruling on Thursday, sent TiVo's shares down 16.5 percent, or $1.44, to $7.31.

U.S. District Judge David Folsom said he would try to rule by October 1 but failing that, would have to delay a finding until after the end of that month, according to attorneys who attended the hearing.

The damages stem from a 2006 jury finding that EchoStar illegally used the TiVo-invented feature, which allows users to scan through a television program while it is recording.

TiVo lawyers argued in U.S. district court in Marshall, Texas that it is owed $220 million in royalties and lost profits for the 18 months that the verdict was stayed to allow EchoStar to appeal. EchoStar has admitted to owing $16 million in additional damages.

An appeals court ordered the trial judge to determine whether and what amount of additional damages are owed TiVo.

TiVo also argued on Thursday for sanctions against EchoStar for allegedly failing to turn off the DVRs, as required in the injunction. EchoStar, instead, continued collecting subscription fees for the infringing DVRs and replaced the infringing software with a "work-around" that does not use TiVo's patented technology, TiVo lawyers said.

 

[VinceT3]

So if Dish stopped collecting $$$ on their DVRs this would all go away?

DISH can you hear that?!

 

[Derwin0]

TiVo also argued on Thursday for sanctions against EchoStar for allegedly failing to turn off the DVRs, as required in the injunction. EchoStar, instead, continued collecting subscription fees for the infringing DVRs and replaced the infringing software with a "work-around" that does not use TiVo's patented technology, TiVo lawyers said.

Interesting, Tivo admitted that Dish's updated software does not violate the patent.
Case closed boys.

 

[kstuart]

Interesting, Tivo admitted that Dish's updated software does not violate the patent.
Case closed boys.

No, Reuters said that TiVo admitted...

Probably there has never been a Reuters or AP article without at least one factually incorrect statement.

 

[aquaman67]

So I guess I'll wait to get a DVR...

 

[riffjim4069]

How much more time does this Judge Folsom require? What a knucklehead!

 

[yourbeliefs]

Interesting, Tivo admitted that Dish's updated software does not violate the patent.
Case closed boys.

Doesn't change the possibility that they could have been using it before illegally. Dish would look like REAL idiots if they were still using the (alleged) TiVo patents.

 

[jacmyoung]

Doesn't change the possibility that they could have been using it before illegally. Dish would look like REAL idiots if they were still using the (alleged) TiVo patents.

DISH is not using the Tivo technology any more, this much is without dispute, even Tivo admitted it, so the report was not entirely wrong, they were quoting what Tivo's lawyer was saying, it could just be that Tivo lawyer said something he is now regreting.

Again, even Tivo is not disputing that DISH's DVRs no longer use Tivo's DVR technology.

 

[harshness]

Interesting, Tivo admitted that Dish's updated software does not violate the patent.
Case closed boys.

The issue is not about what happened since 2006. It is about what happened up to that point. The fact that DISH changed the code suggests (but does NOT confirm) that it was in violation up to the point that the non-infringing software was released.

DISH has been found guilty and whether they are or not is immaterial. What they must fight for in this case is to show that they are not in contempt. DISH's claim is that they "upgraded" all of the infringing receivers and as such, they aren't allowing the code found to be infringing to be used.

The shutting off of the named DVRs was not punitive; it was a resolution to the infringement. DISH found another way to resolve the infringement and the judge might consider it as an alternative remedy.

None of this changes the fact that DISH owes TiVo money for borrowing their IP without permission (again, whether they did or not doesn't matter).

 

[Derwin0]

The issue is not about what happened since 2006. It is about what happened up to that point. The fact that DISH changed the code suggests (but does NOT confirm) that it was in violation up to the point that the non-infringing software was released.

DISH has been found guilty and whether they are or not is immaterial. What they must fight for in this case is to show that they are not in contempt. DISH's claim is that they "upgraded" all of the infringing receivers and as such, they aren't allowing the code found to be infringing to be used.

The shutting off of the named DVRs was not punitive; it was a resolution to the infringement. DISH found another way to resolve the infringement and the judge might consider it as an alternative remedy.

None of this changes the fact that DISH owes TiVo money for borrowing their IP without permission (again, whether they did or not doesn't matter).

I agree.

The original order though, to shut down the DVR's was based on both software and hardware infringement. The hardware verdict was tossed by the appeals court who only upheld the software verdict.
Dish thus removed the software infraction by replacing the software being used. With the hardware verdict tossed, they were thus under no legal onus to shut down the hardware, and is why they are contesting the contempt charge by Tivo.

 

[geonaz]

Maybe the many different opinions expressed here give good reason for the delay in rendering a decision.

 

[harshness]

With the hardware verdict tossed, they were thus under no legal onus to shut down the hardware, and is why they are contesting the contempt charge by Tivo.

TiVo may be jumping up and down and crying foul, but the contempt charge is something that the Judge makes, not the plaintiff.

 

[harshness]

Maybe the many different opinions expressed here give good reason for the delay in rendering a decision.

I think we're all pretty much on the same page here. DISH has offered an alternative to the ordered remedy (in a backhanded way) and the judge must consider whether it meets the goal AND whether the time between when the shutdown was ordered and the alternative remedy was distributed is significant.

 

[jacmyoung]

I think we're all pretty much on the same page here. DISH has offered an alternative to the ordered remedy (in a backhanded way) and the judge must consider whether it meets the goal AND whether the time between when the shutdown was ordered and the alternative remedy was distributed is significant.

The timing was a non-issue, there is also no dispute that DISH replaced the technology before the order was in force in 4/08.

The delay in the ruling is not much of a delay if you consider it usually takes courts weeks if not months to return a verdict on average. The problem here is we had those so called analysts and reporters that somehow thought they knew how the 9/4 should end by reading everyone’s facial expression during that 5/30 status meeting.

As a result they concluded Tivo would get a favorable ruling on spot on 9/4. When that did not happen, everyone in the Tivo camp panicked.

Now the analysts are again trying to reassure the Tivo investors that based on the second round of reading the facial expressions of all parties in the 9/4 hearing, the judge will likely to rule in favor of Tivo after all, they just have to wait a little longer.

What was the saying? Fool me once, shame on you…

 

[jacmyoung]

After reading the above news report again:

LOS ANGELES (Reuters) - ...U.S. District Judge David Folsom said he would try to rule by October 1 but failing that, would have to delay a finding until after the end of that month, according to attorneys who attended the hearing.

I think the judge will likely produce a ruling before 10/1, it all depends on how busy he will be with other cases, or how complicated he wants this ruling be.

...and replaced the infringing software with a "work-around" that does not use TiVo's patented technology, TiVo lawyers said.

Now I don't know when did the Tivo lawyers say that, if it was simply the same as "according to attorneys who attended the hearing" from the above, it may mean nothing.

But if this is from some kind of interview on the court steps, and the Tivo lawyers did say something above, then yes it almost sounded as if they have conceded the new DISH technology does not infringe (as does not use) TiVo's patented technology.

Though I think it was more of the reporters misinterpreting what the TiVo lawyers said. The TiVo lawyers couldn't have been so stupid.

However never say never. The reason I say that is based on the initial court transcript, it appeared Tivo ended up not arguing whether DISH still infringe or not, rather the change of the technology was not good enough to avoid the additional damages.

This impression was based on the TiVo lawyers' insistence that DISH must pay damages ($220 million according to Tivo) from 9/9/06 to 4/18/08 (the day the injunction was in full force), at which time they stopped adding damages.

Now if DISH still infringes on the TiVo's patent, TiVo would not have stopped calculating the damages up to 4/18/08, but to eternity, or at least to the present.

DISH's calculation is $16 million, based on the time they began to replace the Tivo technology with their own technology, which started in 10/06 continued into mid-07.

You can sense what the judge was saying when after TiVo's lawyer said 9/9/06 to 4/18/08, the judge responded [but] DISH started the design around (change of technology) in 10/06. So it appeared the judge thought, as DISH argued, TiVo should not get the damages after the new non-infringing technology replaced the old infringing technology, which is always how the courts calculate the additional damages. DISH cannot be punished for using their own non-infringing technology.

But we will have to wait till the Mainers site posts the final version of the court transcript to learn more what really was said by each party and the judge.

If anyone is interested, you can read that skeleton court transcript posted on the Mainers site:

http://southernme.com/DAVY_v_GOLIATH/Tivo%20v%20Echostar/minutes_of_9-04_hearing.pdf

A full version of the same transcript will likely be available in a few days.

 

[Zero327]

Folsom needs more to to collect his brib...I mean "processing fees".

 

[jacmyoung]

Folsom needs more to to collect his brib...I mean "processing fees".

If so we can almost predict after his ruling if the DVR he uses will be a DISH 722 or a TiVo S3

 

[Sammy033]

What was the saying? Fool me once, shame on you…

"Fool me once, shame on you. Fool me twice and I will beat the crap out of you."

 

[kstuart]

You can sense what the judge was saying when after TiVo's lawyer said 9/9/06 to 4/18/08, the judge responded [but] DISH started the design around (change of technology) in 10/06. So it appeared the judge thought, as DISH argued, TiVo should not get the damages after the new non-infringing technology replaced the old infringing technology, which is always how the courts calculate the additional damages. DISH cannot be punished for using their own non-infringing technology.

This is good news.

From the TiVo's site's reporting of the judge "chuckling" at the E* lawyer statements, I was concerned that the judge had already pre-judged the case in favor of TiVo.

From the above, it seems very likely that the judge will accept the software change and not order the DVRs turned off altogether.

While customers would prefer that EchoStar not have further expenses that may cause later price increases, larger monetary fines are a relatively minor concern to customers.

 

[jacmyoung]

This is good news.

From the TiVo's site's reporting of the judge "chuckling" at the E* lawyer statements, I was concerned that the judge had already pre-judged the case in favor of TiVo.

From the above, it seems very likely that the judge will accept the software change and not order the DVRs turned off altogether.

While customers would prefer that EchoStar not have further expenses that may cause later price increases, larger monetary fines are a relatively minor concern to customers.

I would not take what those Tivo investors said, but wait for the actual court transcripts, I hope you agree