Yes, Dish will probably have to pay Tivo pretty much what they want, but by that time, Tivo and Dish will be far more interested in putting together a deal that would be successful and not injurious to the other. This means that Dish might agree to offer a Dish box with a Tivo interface, in exchange for a lower payment for Dish's potentially patent violating boxes. Tivo just has to prevail in this matter to get everyone else to cow, not a billion dollar award. However . . .
If anyone is prepared to avoid the Tivo montly bill no matter how audacious, it is Ergan, and he could have something up his sleeve: something as outrageous as having to pay Tivo in the short term, but in the meantime begin an immediate and accelerated DVR exchange of all named violating DVR's with the ViP's not named in the original suit. Yes, it would take time--and money--but not the forever that Dish would otherwise have to pay Tivo if no such exchange took place. And for Ergan it is also the point, in his view, that if a company, such as Tivo, knows, in truth, that Dish is not violating patents, they aren't going to succeed by fooling a jury (who are out of their depth, as we all are, relating to nether world computer software language and mathematics, and could only authoritatively cite, in several direct quotes in newspaper articles, the fact that Tivo left one their boxes with Dish: Dish had lousy DishPlayer 1000--software by Microsoft--then Dish produces new, well-working DVR, therefore, Dish must have used the Tivo software. But they seem to have omitted from the logic the tons of $$ Dish spent shuttling Linux software and Broadcomm engineers--who also had to know of the nefarious plot--to and fro Denver) and winning over the good guys.
Part of this extended legal road is due to the personality of Ergen, who always believes in going a sportsmen's "all the way" to the Supreme Court, if necessary, but, in fact, has settled lawsuits in the past, so it is not true that Ergan "never" settles. But Charlie cannot be blamed for his taking the legal court fight route: Tivo's terms are that the other party pay for all promotion and marketing--well, EVERYTHING--to get their "product" to the consumer whilst Tivo magnanimously hands-over the software sitting on the shelf. Oh, and while the other party pays for everything else, they also get to send in that monthly check to Tivo for using its software.
If Tivo had been reasonable, Dish would have settled, just as Dish had settled other such lawsuits, TV Guide Gemstar being one example. Although, it would not be unfair to say that Dish may not have been willing to compromise as they otherwise may have, felling a gun to their head. But it is clear that Tivo agreements are a Win, Win situation for Tivo, Tivo, and not for Dish or any other company that has a decent DVR product.
