# Coverage of TiVo/Echostar Trial



## Dajad

I have included links to all the major TiVo-Echostar trial events here:

http://daledietrich.com/imedia/2006...o-injunction-against-echostar-pending-appeal/

in my newly relaunched iMedia Law Blog .

...Dale


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## HDTiVo

Dajad said:


> I have many TiVo/Echostar trial stories linked into my iMedia law page here:
> 
> http://www.daledietrich.com/imedia/Mar06.htm#29Mar06a
> 
> I will, of course, be following this as closely as one can from a distance and will add the text of the final decision into my site as soon as its available. That is, if it is available. If this is purely a jury trial there may not be a written decision. Can anyone out there shed light on this further.
> 
> ...Dale


The instructions the judge gives the jury will be very interesting to read.


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## jmoak

Thank you, Dale.

Very handy!


btw, have you seen this?
http://www.tivocommunity.com/tivo-vb/showthread.php?p=3904731&&#post3904731


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## Dajad

HDTiVo said:


> The instructions the judge gives the jury will be very interesting to read.


If anyone finds them online, please post them here, or pm me. I would like to add them to my site as well. Also, if anyone has the pleadings in this case, I'll post'm too.

...Dale


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## Dajad

Details of Day 1:

http://daledietrich.com/imedia/2006/03/30/day-one-tivo-echostar-trial-wed-mar-29/


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## samo

Dale, it would be interesting to hear your personal comments on how this trial is going based on your experience as an attorney. My layman feeling is that optimism by investment firms is a classic "pump and dump" and repeating statements implying that Marshal's residents are stupid and go with emotions do not help to change that feeling. But I have zero experience in court, so my opinion is biased by my engineering background. I would like to know what your opinion is. Besides being smart you are also practicing law.


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## mtchamp

http://www.marshallnewsmessenger.com/news/content/news/stories/2006/03/31/20060331MARtivo.html

Electrical engineer called as expert witness by TiVo

|By SANDRA CASON, News Messenger|

Friday, March 31, 2006

A former Texas professor testified Thursday in federal district court that EchoStar infringed on television technology patented by TiVo.

Jerry Gibson was called as an expert witness by TiVo in a case that could impact the cost of television set-top boxes in the future.

Gibson took the stand on the second afternoon of the trial being heard by a five-man, five-woman local jury in U. S. Court for the Eastern District of Texas in which EchoStar attorneys said they expect TiVo to seek at least $100 million in damages.

Testimony continues 9 a.m. today in the Sam B. Hall Jr. Federal Courthouse.

Gibson took the stand after TiVo co-inventor Jim Barton completed his testimony. The first witness called by plaintiffs' attorneys was co-founder of the company, Michael Ramsay.

Gibson, a professor of electrical engineering in Santa Barbara, Calif., said he evaluated six set-top boxes manufactured by EchoStar with an eye to discover similarities between them and the "Barton time warp patent."

Responding to questions from Andrei Iancu (pronounced Yankoo), Gibson said he examined a number of EchoStar boxes and found they are similar to 11 claims of their equipment's capability made by TiVo inventors in their patent.

Iancu is a member of the Los Angeles, Calif., law firm Irell & Manella.

Gibson said he prepared "tutorials" for lawyers trying the case and also assisted in preparation of a series of animated slides shown to the jury during his testimony.

These explained how a Digital Video Recorder (DVR) works, and to show how the system is able to re-play live television, Gibson used an on-screen presentation of a touchdown pass made by the Dallas Cowboys in a win over Philadelphia this past season.

"I'm a Cowboys fan," the transplanted Texas resident said. In listing his qualifications to testify regarding television patent infringement, Gibson said he completed an undergraduate degree in engineering at University of Texas at Austin and received a master's degree and doctorate from Southern Methodist University in Dallas.

In addition, Gibson said he taught at Texas A & M University from 1976 to 1997 and was chairman of the electrical engineering department at SMU.

Gibson said he has done research in multi-media compressions  a system known as Mpeg, (motion picture experts group).

The media switch Barton claims he invented is the technology required to make a DVR "viable," Gibson said. The reason is that TiVo's "media switch off-loads the Central Processing Unit (CPU) so it won't have to handle all that data," a move which lowers the cost of the set-top box.

Before Gibson began his testimony, presiding Judge David Folsom told jurors he had ruled "copying is not an issue in this case." Noting the ruling would later be submitted in writing, Folsom also said the jury could make a finding of patent infringement even if EchoStar did not copy the TiVo box.

Responding to questions from TiVo attorney Morgan Chu, Barton indicated just that, however, and his testimony was interrupted by objections from EchoStar attorney Rachel Krevans, a partner in the San Francisco, Calif., firm of Morrison Foerster.

Barton began his testimony Thursday morning by holding up an "official copy" of the patent for his "multi-media time warping system."

The announcement that it had been granted by the U. S. Patent Office generated "a great deal of excitement among our investors," he said. "Our stock doubled in price the next day.

"We had hoped we'd be wildly successful, but a number of things conspired to delay" that, he added. He referred to the "nuclear winter in Silicon Valley" during which "money dried up.

"In Silicon Valley, people are not paid very well at all," Barton said. "The pay-off comes when what you invent goes public and stock options improve."

When he left Bell Laboratories after beginning his career there as an entry-level engineer, Barton said he and Ramsay in August of 1997 formed the company today known as TiVo.

Very early on, he testified, he took "a prototype" of his invention to EchoStar in the hopes of negotiating a business deal. The company's chief executive officer asked Barton to leave the box with them and promised to return it the next day.

"Rather naively, perhaps, we left it," Barton said. "I don't ever remember seeing that prototype again."

On a second meeting, requested by EchoStar engineers, Barton said "we actually opened up our boxes and show them how they worked. We had a rather animated discussion. We were engineers and we wanted to show off our work."

At the time of the first session, Barton said the TiVo system had not yet been patented, a situation that had changed by the second meeting.

Barton said the purpose of the meetings with EchoStar was "in support of the fact that we had what it took to be a viable partner in delivering a product to their customers."

While he said he never threatened the company with a lawsuit, "we mentioned we were very vigorously pursuing patents."

Of court action, Barton added: "I've always been disappointed we didn't move sooner" against those thought to be "stealing our technology."

Over objections of defense lawyers, Barton showed the jury the main circuit board of the media switch, which he claims to have invented. Holding it up, he pointed out "the smiley TiVo face.

"The overarching principle (of the TiVo box) is that the costs were lower because it needed less memory. The design was cheaper and we could actually sell it to real people out there in the market."

Barton said his invention can perform "trick plays," like fast-forwarding and freeze-framing. "Trick plays is a generic term we use to describe anything other than normal TV watching," he explained.

"It's all about you sitting in front of the TV and getting all the enjoyment you can," Barton added.

In opening statements Wednesday, EchoStar attorney Harold J. McElhinny said TiVo planned to ask for "at least $100 million" in damages.

In addition to what it might receive for patent infringement, if the jury finds for TiVo, it could sue cable companies that offer other set-top boxes, or at least force them to pay licensing fees, according to The Associated Press.

EchoStar, which operates Dish Satellite Network, earned $1.5 billion on sales of $8.4 billion last year, while TiVo has never shown a profit. Its 2005 sales were $172 million, AP said.

EchoStar has filed a countersuit, scheduled for trial next year in Texarkana's federal court.

Contact staff writer Sandra Cason via e-mail at: [email protected]; or by phone at (903) 927-5969.


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## dt_dc

> These explained how a Digital Video Recorder (DVR) works, and to show how the system is able to re-play live television, Gibson used an on-screen presentation of a touchdown pass made by the Dallas Cowboys in a win over Philadelphia this past season.


Playing to the jury just a little bit?


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## Dajad

Thanks for the new link mtchamp, I'll add that one to the site as well.

Samo, I'm a corporate/commercial/tech lawyer. My job is to keep people out of court in the first place. Other than as a law student 12 years ago, I've never set foot in a court. But, more importantly, the concept of a jury trial for a patent case is doubly foriegn to me. We don't have jury trials for patent cases in Canada (at least not that I'm aware of). 

What will really likely matter in the long term is the appeals process. The looser will almost certainly appeal. The jury will not be part of the appeals process (unless an appeal remands the case back for another trial). What judges say on technical and legal matters is usually much more interesting from a legal/practical standpoint than jurors. 

And, of course, if there is anything to Echostar's countersuit (to be tried next year) we could end up with cross-licensing as part of any final settlement.

We'll see.

...Dale


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## Puppy76

How do you guys feel about this? As a principle, I'm opposed to our screwy patent system where you can patent anything and everything, and any product runs into other companies patents. I hate it, and think it should change.

As long as it's like this though, I guess I'd like to see Tivo do well in this suit. It would be about time a small company got to use patents against a larger company-epecially a small company that's actually USING those patents and was clearly a huge innovator in the space.


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## Dajad

Puppy, there is a serious review of the patent system underway right now to deal with the problem of patent trolls. Personally, I believe the patent system could deal with some reform in this regard.

Here's my latest summary of Friday's proceedings:

http://daledietrich.com/imedia/2006/04/01/day-three-tivo-echostar-trial-fri-mar-31/

Professor Gibson continued his testimony. He compared six EchoStar PVRs and believed they all contained infringing "trick play" functionality covered by TiVo's patent, including replaying live broadcasts in slow motion, recording of the current live programming, fast-forwarding, freeze-framing, pausing and re-starting live broadcasts. After cross, EchoStar's counsel, Rachel Evans asked the judge to strike Gibson's testimony arguing that he is not an expert computer programmer/researcher as is Echostar's upcoming expert witness. Gibson countered that he has written software since he was 18 and reviewed student software as a professor. The judge refused to strike his testimony ruling that Gibson was indeed an expert. There will be no proceedings on Monday. The trial continues on Tuesday.


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## Puppy76

Whaaaat? Why would it take an expert to see if a product can pause live TV, etc.?


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## Atomike

I agree that this is simpy stupid. The fact that Tivo was actually able to patent these concepts shows how innane our laws are.
I'm surprised the Thomas Edison estate has not sued Tivo - since they obviously stole the concept of skipping through material from Edison's phonograph.
Regardless of how this case turns out, I think Tivo has lost a PR war in the courts of public opinion. Stifling technology for the sake of a few bucks makes folks mad.


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## Dajad

For something to be patentable it has to be new or novel. Looking through the lens of 2006 pausing live TV isn't novel. 

But when I first saw it done on my TiVo in 1999, you can bet I thought that trick-play was new and novel and CERTAINLY worthy of patent protection.

...Dale


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## ZikZak

On your page, you summarize by saying in part that the judge has ruled that the jury can find E* in violation, even if they did not directly copy the technology. On the other hand, he also said that copying is not an issue to be decided in the case. One sounds good for tivo, the other sounds not so good.


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## Sirshagg

Dajad said:


> For something to be patentable it has to be new or novel. Looking through the lens of 2006 pausing live TV isn't novel.
> 
> But when I first saw it done on my TiVo in 1999, you can bet I thought that trick-play was new and novel and CERTAINLY worthy of patent protection.
> 
> ...Dale


absolutely. Today it does not seem like a big deal but 7 years ago it sure was.


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## lajohn27

The guts of the patent aren't so much about pausing television per se.. but the media switch that Barton created that allowed them to handle the massive streams of data with low cost hardware... which in turn, allowed you to pause live TV etc. 

THAT was -- more than anything else -- what was novel and is a major element of the patent that is being defended with this suit.

J


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## HDTiVo

Dajad said:


> For something to be patentable it has to be new or novel. Looking through the lens of 2006 pausing live TV isn't novel.
> 
> But when I first saw it done on my TiVo in 1999, you can bet I thought that trick-play was new and novel and CERTAINLY worthy of patent protection.
> 
> ...Dale


So where does this  leave them...?


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## lajohn27

HD:

Those are standard warnings posted in their SEC documents BEFORE they received their final patent approval two years later. Tho at the time that document was written - it was far from certain that TIVO's patent would be approved ... therefore they need the cautionary boilerplate language in SEC filings to cover their butt.

So it leaves them exactly where they are.

And again - more than anything - this case hinges on the media "switch" functionality that Barton created ... than just 'pausing live TV' per se.


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## Dajad

ZikZak said:


> On your page, you summarize by saying in part that the judge has ruled that the jury can find E* in violation, even if they did not directly copy the technology. On the other hand, he also said that copying is not an issue to be decided in the case. One sounds good for tivo, the other sounds not so good.


Regrettably we are relying on a third party reporter for these stories. But, those two points made by the judge lead to the conclusion.

Unlike COPYright, where infringement can be found merely on copying (hence the word "COPYright"), under patent law the infringer is not liable solely for copying a technology. Rather, they can be found to infringe however they manifest the patented idea. So, for example, a person can be found to infringe another's patent without ever having copied the method of exploiting the patent exactly. So long as their product embodies that which is covered by the patent, they can be found liable - even if the embodyment (in this case Echostar's PVR's innerworkigns) is substantially or totally different than another legitimate emboyment (in this case TiVo's PVR's inner workings).

So as I understand this statement by the judge, the jurors must look beyond whether or not Echostar merely copied TiVo's embodyment of the patent, but rather they must look to see if Echostar infringed the patent's covered claims in Echostar's product embodyment even though it may be different than TiVo's.

I hope this helps.

...Dale


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## ZikZak

Thanks! that clears up my confusion.


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## HDTiVo

A little more color to the events of the first week...



> *Jury asked to decide cause of TiVo's financial trouble*
> 
> EchoStar lawyers tried to convince the jury that TiVo was a poorly run company that couldn't compete with rivals and was trying to blame its financial difficulty on somebody else.
> 
> They produced internal TiVo documents that appeared to credit EchoStar for developing its own technology. In one e-mail, a TiVo executive wrote, "EchoStar owns its own technology," and in another, a TiVo employee said EchoStar had "a homegrown solution."
> 
> EchoStar's San Francisco attorneys went hard after TiVo witnesses. Lead attorney Harold McElhinny opened his cross-examination of the first witness, TiVo co-founder Michael Ramsay, by going over in detail the company's losses.
> 
> When Ramsay said the money represented investment by the company, McElhinny asked in a sarcastic tone if TiVo had a deliberate strategy of losing money. McElhinny's partner, Rachel Krevans, tried similarly to rattle Barton.
> 
> The 10 jurors showed little reaction during the exchanges. But lawyers who have tried cases before juries in Marshall - which has become a hotbed of patent litigation because the courts move quickly - say tough tactics can backfire.
> 
> "Jurors here expect courtesy. They don't like in-your-face rudeness," said Michael C. Smith, a Marshall attorney. "I was told never treat a witness with anything other than respect unless it's clear they don't deserve respect."
> 
> Smith, who was not in the courtroom, said local jurors will overlook a lawyer's manners if they believe the facts support his client. He said the key for lawyers is to keep their case simple.
> 
> "This is a rural area. People here are not any less intelligent, but their level of education is lower than in urban areas," Smith said. "If you make the story too complex, you run a serious risk of alienating a jury."


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## HDTiVo

lajohn27 said:


> HD:
> 
> Those are standard warnings posted in their SEC documents BEFORE they received their final patent approval two years later. Tho at the time that document was written - it was far from certain that TIVO's patent would be approved ... therefore they need the cautionary boilerplate language in SEC filings to cover their butt.
> 
> So it leaves them exactly where they are.
> 
> And again - more than anything - this case hinges on the media "switch" functionality that Barton created ... than just 'pausing live TV' per se.


Mentioning seven pre-existing patents is standard? I don't think so.

It appears TiVo was mentioning prior patents in several areas (not specific) as well as other independently developed DVRs already in existence.


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## lajohn27

Full disclosure of what you know to be true is standard yes. Dale is involved in patent & securities law and I'm sure he could chime in.

In my own personal experience when the company I was involved in was applying for a patent... we disclosed what we knew about similar patents in our prospectus for investors. We were not yet a public company, but we followed SEC rules as if we were. Our lawyers advised us to disclose what we knew and could document.

SEC documents traditionally follow boilerplate language that is negative from the outset. This would be no different.

And yes, they would mention any "prior art" in the area of DVRs that *might* prevent their patent application from being seen as novel or unique. That was exactly what we did in our materials for prospective investors.

In fact, in their patent application they might even go so far as to address why and how their implemention differs in key and important ways from those other seven patents.

John


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## HDTiVo

lajohn27 said:


> So it leaves them exactly where they are.





lajohn27 said:


> Full disclosure of what you know to be true is standard yes. Dale is involved in patent & securities law and I'm sure he could chime in.
> 
> In my own personal experience when the company I was involved in was applying for a patent... we disclosed what we knew about similar patents in our prospectus for investors. We were not yet a public company, but we followed SEC rules as if we were. Our lawyers advised us to disclose what we knew and could document.
> 
> SEC documents traditionally follow boilerplate language that is negative from the outset. This would be no different.
> 
> And yes, they would mention any "prior art" in the area of DVRs that *might* prevent their patent application from being seen as novel or unique. That was exactly what we did in our materials for prospective investors.
> 
> In fact, in their patent application they might even go so far as to address why and how their implemention differs in key and important ways from those other seven patents.
> 
> John


Your first answer makes it sound like the facts disclosed in 1999 have no bearing or effect on the current situation. And obviously (to me at least) the act of disclosing is "standard." That's irrelevant. The specifics of the disclosure are certainly not "standard." They are unique to the circumstance, and in this situation raise some questions about TiVo's claims in the litigation, which someone with some knowledge of the subject might shed worthwhile light upon.

The greater issue goes beyond the current litigation. TiVo is a defendant in at least two other patent litigations. Regardless of the outcome of this one, those others will also come to bear.


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## dstoffa

Sirshagg said:


> absolutely. (re: Pausing LiveTV) Today it does not seem like a big deal but 7 years ago it sure was.


Broadcasters were able to pause or delay radio (for censoring purposes). So, the technology was there to pause or delay broadcasting. Who's to say that the person who invented Howard Stern's dump button should be entitled to all royalties?


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## Sirshagg

dstoffa said:


> Broadcasters were able to pause or delay radio (for censoring purposes). So, the technology was there to pause or delay broadcasting. Who's to say that the person who invented Howard Stern's dump button should be entitled to all royalties?


Were talking about products for consumers not for multi-m/billion dollar companies.


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## dstoffa

Sirshagg said:


> Were talking about products for consumers not for multi-m/billion dollar companies.


What does that have to do with intellectual property? or how that property is used? The box still does the same thing, no matter if it is in the home or in a studio.


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## lajohn27

Again.. it's not the process of pausing TV that was patented.. It was the MEANS of doing so.. in this case for a fraction of a percentage of the cost of the broadcasting systems that had been available professionally for years prior.

I work in broadcasting and I'm very familiar with those systems. They don't work anything like a TIVO at all. The techniques used to create a delay up till that point were dramatically different than the techniques that TIVO pioneered to delay viewing television and 'trick play' with recently-live TV.

And those other seven patents that TIVO disclosed are worth looking at -- if you go and look at them they differ in key ways from the implentation proposed and patented by TIVO. The patent office agreed upon issuing the patent that the new implementation was unique and novel.

The fact that TIVO acknowledged - as it was required to do by law - seven other patents that deal with the same basic concept is not unusual nor does it in anyway hurt their case. 

Their effort to protect THEIR implementation is what is at trial in this matter. You are correct, another case may determine their implementation infringes on someone else's prior patent. Entirely possible -- but not the subject of this litigation. 

Echostar maybe bring up those other patents or they may not. My gut tells me they are trying for a defense that says the implementation they have is their own and theirs alone. Raising questions about other patents will muddy the waters and could potentially open them up to further litigation from one of those other patent holders.

And this trial could well prove Echostars implementation is unique. I'm not familiar enough with their process to understand how exactly it might be unique. From the documents I've seen and in reviewing the TIVO patents, it certainly seems that TIVO at least has a decent chance. 

In the end, this trial is all about the "HOW" of the end result of pausing & trick playing TV programming is accomplished in the two implementations in dispute. 

NOT the vague process of pausing live TV.

Example : The process of washing clothes via a machine has been around for well over 50 years. Yet, patents for new implementations of achieving clean clothes via a mechanical device continue to be issued for unique and novel designs that do not infringe on prior art; or in some cases, build upon prior patents. The TIVO patent differs from prior patented material in enough ways to be unique. (According to the overworked and underfunded and sometimes notoriously mistaken patent office - they may have been right or wrong.. who knows at this point)

My cursory review of some of the patents involved does see some basic differences that are fundamental to making a CE device low-cost and consumer accessible. 

Some engineer somewhere may be in the process of patenting some NEW way of pausing live TV that is completely new and differs substantially from whatever we all know today. That would be patentable because it's a new means to achieve the same goal as TIVO and any of the other pausing TV patents.

To say this case is about pausing live TV is wrong. It's not. Even a superficial reading of the court documents indicate that. The case is fairly complex -- as are the patent(s) involved.

J


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## Dajad

lajohn27 said:


> Full disclosure of what you know to be true is standard yes. Dale is involved in patent & securities law and I'm sure he could chime in.


John, I think you are doing well without my chiming in. I am not, however a securities or patent lawyer.

I am a commercial lawyer that specializes in negotiating and drafting commerical agreements between technology/Internet/interactive media industry participants. I have a particular interest in iMedia and video game law. FYI, in addition to the iMedia page I've been linking to in this story, I also maintain a video game law news page:

www.daledietrich.com/gaming/​That said, I agree with you that disclosure of possibly harmful existing patents in an SEC filing, filed before TiVo's patents were granted, was exactly what TiVo was obligated to do in SEC filings and admits nothing.

I agree with John, that such mandated early disclosure does not weaken TiVo's current case.

But, hey, I'm not a litigator or a patent lawyer, so take these thoughts for what they are worth.

...Dale


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## lajohn27

And I'm not even a lawyer. So.. there's that..


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## HDTiVo

I am definitely not saying it is about pausing live TV. TiVo's disclosure gave, as an example amongst many patents that they were aware of, that there were seven they knew of regarding pausing live TV.

There is lots of intellectual property out there, this case is about one portion of it, and there are other pending cases.


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## ZeoTiVo

seems like the video switch that takes the load of the CPU stood out as an important piece of the ability to pause live TV and other trick play that is at the heart of the patent TiVo has.

be interesting when TiVo has a chance to talk about what Echostar has in their DVRs.


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## samo

ZeoTiVo said:


> seems like the video switch that takes the load of the CPU stood out as an important piece of the ability to pause live TV and other trick play that is at the heart of the patent TiVo has.
> 
> be interesting when TiVo has a chance to talk about what Echostar has in their DVRs.


I don't know much about patent law, but I can't imagine that video switch by itself is patentable. This is a solution that has been known for at least 20 years before TiVo was invented.


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## jmoak

samo said:


> I don't know much about patent law, but I can't imagine that video switch by itself is patentable. This is a solution that has been known for at least 20 years before TiVo was invented.


I wouldn't have believed that the idea of a "grid type" guide could be patented either, but there ya go.


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## jautor

samo said:


> I don't know much about patent law, but I can't imagine that video switch by itself is patentable. This is a solution that has been known for at least 20 years before TiVo was invented.


It's not a "video switch" in the true A/B switch definition... Its a chip that allows the direct transfer of data (DMA) from the MPEG encoder to the hard drive, or from the drive to the MPEG decoder. IIRC from a technical presentation Barton gave 4+ years ago, I believe data flows without even landing in main memory... And certainly, the CPU is only minimally involved - just to set up each transfer (as is typical in DMA transactions, by definition).

And none of that was available 20 years ago... And it was certainly innovative and novel when the patent was issued.

Jeff


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## jautor

jmoak said:


> I wouldn't have believed that the idea of a "grid type" guide could be patented either, but there ya go.


Yes, the "StarSight" patent is a big one... Although I think it will actually expire in the next 2-3 years?

But I have no problem with that patent. To me, it's in the same vein as Amazon's 1-click-purchase button patent. Both were unique and novel when they were invented, but appear obvious once shown. Just like most magic tricks, and well, the light bulb... 

There's a similar effect with modern art - "I coulda drawn that!" Yeah, but you didn't, at least, not first.

Jeff


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## samo

jautor said:


> It's not a "video switch" in the true A/B switch definition... Its a chip that allows the direct transfer of data (DMA) from the MPEG encoder to the hard drive, or from the drive to the MPEG decoder. IIRC from a technical presentation Barton gave 4+ years ago, I believe data flows without even landing in main memory... And certainly, the CPU is only minimally involved - just to set up each transfer (as is typical in DMA transactions, by definition).
> 
> And none of that was available 20 years ago... And it was certainly innovative and novel when the patent was issued.
> 
> Jeff


I don't get it at all now. If your description is correct (and have no reason to doubt it) then this patent does not apply to Dish receivers at all. They don't have MPEG encoder so they can't possibly use the same or similar chip to do "video switching".


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## 1283

Dish still has a decoding path from the drive to the MPEG decoder. Violating a portion of a patent is still a violation.


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## mbobak

Here is a very pro-TiVo article on the case.

-Mark


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## Puppy76

I never thought about the incentive to use Tivo software if they win. That would be a HUGE victory for consumers. Oh no, we'll have to provide Tivo instead of our own broken software!


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## dswallow

mbobak said:


> Here is a very pro-TiVo article on the case.
> 
> -Mark


It seems rather anti-TiVo really -- in one sense, at least.

If in that region the jury finds for the plaintiff in patent trials about 80% of the time, saying experts expect about a 70% chance of TiVo winning would mean the chances of the jury finding for the plaintiff are below average.


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## ChuckyBox

dswallow said:


> It seems rather anti-TiVo really -- in one sense, at least.
> 
> If in that region the jury finds for the plaintiff in patent trials about 80% of the time, saying experts expect about a 70% chance of TiVo winning would mean the chances of the jury finding for the plaintiff are below average.


I know you are joking, but it isn't clear where that 70% number comes from. I believe it may have its origins in a statement by a Smith Barney Citibank analyst who gave TiVo a 70% to 90% chance of victory based on the favorable claim construction order. He, I presume (but can't certify), talked with some experts. But the 70% number keeps coming up without any sort of reference, so it now just seems to be conventional wisdom that reporters use because they heard it somewhere. Kind of like "TiVo is dead."


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## ChuckyBox

samo said:


> I don't get it at all now. If your description is correct (and have no reason to doubt it) then this patent does not apply to Dish receivers at all. They don't have MPEG encoder so they can't possibly use the same or similar chip to do "video switching".


The patent doesn't specifically claim an MPEG encoder, just a module that converts a television signal to an MPEG formatted stream. This, I believe, is why the digital/analog question is important. Echostar says their broadcasts are digital, so there is no such module. TiVo says the broadcasts are analog, so there is such a module. The laws of physics are with TiVo (electromagnetic waves can't be "digital"), but it remains to be seen if the jury buys that argument.

Interestingly, TiVo specifically includes the already-MPEG-encoded case in the "Explanation" section of the patent, so their intent was clearly to cover that situation. The entire point would be moot, except they didn't spell it out in the claims section. A technicality, sure, but it is the kind of thing lawyers live for. The E* lawyers had better hope that no one on the jury actually reads the whole patent, because that knowledge would surely make them lean toward TiVo.


----------



## Dajad

http://daledietrich.com/imedia/2006/04/05/day-four-tivo-echostar-trial-tues-apr-4/

*DAY FOUR: TiVo-EchoStar Trial (Tues Apr. 4)*

Keith Ugone, an economist, testified that EchoStar caused damages totaling $87 million by selling 4.3 million DVRs that infringe TiVo's patent. Ugone (factoring in competitive sales) conservatively estimated TiVo would have sold 192,700 more PVRs had Echostar not sold these units representing a loss of $34 million. Estimating a loss of $1.00 per month (the royalty rate paid by DirecTV) for each of the 4.1 million remaining Echostar subscribers, TiVo claims further lost royalties in the amount of $52.95 million. Echostar attorney Harold McElhinny challenged Ugone's calculations based on the "market penetration rates method", suggesting that Ugone use this method because he did not have the information needed to calculate damages another (presumably more appropriate) way. On re-direct, Ugone stated that this method was commonly used by economists. When McElhinny pointed out that Echostar had used similar technology as early as 1999 in its Dish-player TV, Ugone pointed out that those products used only 'primitive' DVR functionality . When asked, Ugone testified that his fee to TiVo for testifying is $425 per hour and that he will receive about $500,000 for his work on the trial. Stuart West, TiVo's VP of finance testified that TiVo spent $193 million on research and development.

*TiVo expects to conclude its opening testimony on Wednesday.*

...Dale


----------



## samo

> When McElhinny pointed out that Echostar had used similar technology as early as 1999 in its Dish-player TV, Ugone pointed out that those products used only 'primitive' DVR functionality


What a BS! DishPlayer had bugs, but as far as functionality it had all the features that DishDVR 501 has plus some (not to mention that it had WebTV). Do these lawyers and experts even know what different DVR models do?


----------



## samo

dswallow said:


> It seems rather anti-TiVo really -- in one sense, at least.
> 
> If in that region the jury finds for the plaintiff in patent trials about 80% of the time, saying experts expect about a 70% chance of TiVo winning would mean the chances of the jury finding for the plaintiff are below average.


Even more anti-TiVo considering that they say that 40% of verdicts get overturned. So actual chance of TiVo getting any money is 0.7*0.6= 42%.


----------



## JoeBarbs

Dajad said:


> When asked, Ugone testified that his fee to TiVo for testifying is $425 per hour and that he will receive about $500,000 for his work on the trial.


I am in the wrong business.


----------



## ZeoTiVo

Dajad said:


> When asked, Ugone testified that his fee to TiVo for testifying is $425 per hour and that he will receive about $500,000 for his work on the trial. Stuart West, TiVo's VP of finance testified that TiVo spent $193 million on research and development.
> 
> *TiVo expects to conclude its opening testimony on Wednesday.*
> 
> ...Dale


it took him 1176 hours to figure that out 

still it seems reasonable to presume the royalty rate for DVRs used by DISH and also that it should stem from the first DVRs out. Primitive


----------



## HDTiVo

Forbes
Market Scan
TiVo Still Faces Uncertainty In EchoStar Dispute
David Ng, 04.04.06, 2:41 PM ET

[] according to Piper Jaffray's Gene Munster.

[]

TiVo is a maker of digital recording devices for television; EchoStar is a digital satellite television service provider. The trial concerns whether EchoStar infringed on TiVo's patents for digital video recorders.

"A favorable outcome of the current patent litigation would be positive for TiVo," wrote the analyst, *"but we believe monetizing any favorable ruling in the EchoStar trial  could be a multi-quarter or multi-year process."*

A verdict in the legal dispute is expected to come some time in the next four weeks.

[]

The analyst said he would reconsider his rating on TiVo if the company were to gain access to the customer base of multiple cable operators, as in its deal with Comcast.


----------



## HDTiVo

> Keith Ugone, an economist, testified that EchoStar caused damages totaling $87 million by selling 4.3 million DVRs that infringe TiVo's patent. Ugone (factoring in competitive sales) conservatively estimated TiVo would have sold 192,700 more PVRs had Echostar not sold these units representing a loss of $34 million. Estimating a loss of $1.00 per month (the royalty rate paid by DirecTV) for each of the 4.1 million remaining Echostar subscribers,


The idea that the royalty rate would be anywhere near the license fee paid by DTV for the entire product and ancillary rights in the DTV agreement is absurd. Echostar should be able to demonstrate a royalty value around 10% of that figure.

TiVo claims it lost $34M not selling 192,000 units...yet they claim they lost money on Lifetime units (~50% of sales historically or ~100K) and the company has lost a fortune on their sales to date. EchoStar should chop this up when their turn comes.

Somehow EchoStar sold 4.3M DVRs when "it was not possible to market a DVR..." and TiVo could have instead sold 192K...


----------



## ChuckyBox

HDTiVo said:


> The idea that the royalty rate would be anywhere near the license fee paid by DTV for the entire product and ancillary rights in the DTV agreement is absurd. Echostar should be able to demonstrate a royalty value around 10% of that figure.


The DTV agreement had several phases, including the development of hardware and software, marketing, etc. The current status of that contract, which requires almost no expense on TiVo's part, is very close to a simple royalty payment.



> TiVo claims it lost $34M not selling 192,000 units...yet they claim they lost money on Lifetime units (~50% of sales historically or ~100K) and the company has lost a fortune on their sales to date.


Are you actually arguing that if TiVo had added 192K additional subscribers over the past three or four years their revenue would have been less? That makes no sense whatsoever. By that logic E* was doing them a favor by keeping them from getting more business.

And I have yet to figure out where you get the idea that TiVo claims to have lost money on lifetime subs.


----------



## dswallow

ChuckyBox said:


> And I have yet to figure out where you get the idea that TiVo claims to have lost money on lifetime subs.


All they claim is that it's too good a deal for the buyer. That could mean anything from "we think we deserve to make more money from these people" to "eventually these people cost us more than they paid."


----------



## jmoak

Wednesday update, out today:

EchoStar Communications calls company's vice president during TiVo trial


----------



## ping

OK, here's a question: has Echostar basically stipulated that they infringed on the patent? It almost seems that way. Earlier they seemed like they were just trying to address the damages issue (almost like, "sure, we infringed, but they lost money for other reasons"). And then on Wednesday they seemed to want to focus on "noninfringing devices" (7100 and 7200), almost admitting that the other devices were infringing.


----------



## ChuckyBox

ping said:


> OK, here's a question: has Echostar basically stipulated that they infringed on the patent? It almost seems that way. Earlier they seemed like they were just trying to address the damages issue (almost like, "sure, we infringed, but they lost money for other reasons"). And then on Wednesday they seemed to want to focus on "noninfringing devices" (7100 and 7200), almost admitting that the other devices were infringing.


No they have not stipulated that. The are arguing that their products don't infringe, and even if they do, the patent is invalid because of prior art, obviousness, and indefiniteness. And even if they do infringe and it is a valid patent, the infringement was not wilful, and it didn't damage TiVo (very much).


----------



## jmoak

Keep in mind guys that BOTH of your conclusions as to what's "actually" going on in that court room can be validated by various news reports. We can't actually know what's happening unless we're in the courtroom or have access to the daily transcripts.

Echostar should finish their side of this by midweek next week and then we'll have a day or so for closings and deliberation.

THEN we'll know!


----------



## ChuckyBox

jmoak said:


> Keep in mind guys that BOTH of your conclusions as to what's "actually" going on in that court room can be validated by various news reports. We can't actually know what's happening unless we're in the courtroom or have access to the daily transcripts.


I've read quite a few of the motions and court orders on the docket, from which I've been able to derive a fair idea of the positions of each side. It is true that that does not tell me what they are actually presenting to the jury, but it does cover what they intend to present, or are asking to be allowed to present.


----------



## Dajad

DAY FIVE: TiVo-EchoStar Trial (Wed Apr. 5)

http://daledietrich.com/imedia/2006/04/06/day-five-tivo-echostar-trial-wed-apr-5/

Echostar first made routine motions for dismissal (arguing Echostar's use of non-infringing alternative technology) that were rejected by Judge Folsom. Echostar called its first witness, Dave Kummer, VP of Engineering and Technology. His testimony revolved around the development of EchoStar's 7100 and 7200 set-top boxes that had a pause feature before PVRs existed. He testified that other features such as rewind, fast-forward and record were added to the 7200 model in December of 1999. He testified that when Barton approached Echostar in 2001 or 2002 about building a set-top box for Echostar, the company already had its own. After meeting with Barton, he says, Echostar determined that its customers did not need the extra features that TiVo was building for DirecTV. TiVo's attorney Morgan Chu, in his remarks on cross-examination pointed out that "the key is the media switch ... and there is a Barton media switch in every one of EchoStar's products". "We agree they built their own boxes, but we disagree that they own their own technology"

...Dale


----------



## jmoak

"When Barton approached him in either 2001 or 2002 about building a set-top box for EchoStar, Kummer said the company already had its own."

Didn't Ramsey testify that they presented a "prototype" to echostar in 1997?


----------



## Dajad

jmoak said:


> "When Barton approached him in either 2001 or 2002 about building a set-top box for EchoStar, Kummer said the company already had its own."
> 
> Didn't Ramsey testify that they presented a "prototype" to echostar in 1997?


We don't have that date. In this article:

http://www.marshallnewsmessenger.com/news/content/news/stories/2006/03/31/20060331MARtivo.html

it was stated that the company was started in 1997 and " Very early on, he testified, he took "a prototype" of his invention to EchoStar". Exactly how early and how this overlaps with Echostar's claimed invention is unclear from the press accounts I'm reading.

...Dale


----------



## shady

Dajad said:


> Echostar first made routine motions for dismissal (arguing Echostar's use of non-infringing alternative technology) that were rejected by Fudge Folsom.


Would that be Judge Fudge Folsom?


----------



## jmoak

I'll have to hunt for where I read it, but I was thinking that they had their first meeting w/echostar when they were trying to get seed money when they first started the company.

I'll do my best to find it. But like I pointed out, who knows what the real story is.

_edit:_

I think I found it, but I can't link to it. It's a sub investor report.

But one can question their conclusion.

There were two preliminary meetings between tivo and echostar. One before the patent, one after.

"At the time of the first session, Barton said the TiVo system had not yet been patented, a situation that had changed by the second meeting."

Are they talking about the _filling?_ or the _awarding?_

The report I got the idea from seems to assume that the "situation" was that tivo had _applied_ for the patent between the first and second meeting, which would put it between august '97 and the end of july '98.

If the "situation" was _after_ the actual awarding of the patent, it would put the second meeting sometime after may of 2001.

...and now I'm as lost as I was to begin with.


----------



## jmoak

and to add to the confusion...

_This mornings update from yesterday:_

Differences in TV technologies compared in TiVo trial

Today's cross should be very interesting.


----------



## ping

Ugh.



> "We know we don't have a media switch," Minnick said. "Because we broadcast in MPEG, we have no need for software that will convert (television signals) to MPEG."


Um, OK, I guess you don't know what the hell the media switch is for, then.



> He said the plaintiff asked for a DVR (digital video recorder) chip capable of transporting mpeg streams in which audio and video components are mixed. And while Broadcom tried to talk TiVo into a similar chip, he said the company opted for separation.


That paragraph makes no sense unless you change "plaintiff" to "defendant", no?

Man, I wish I could see the transcripts.


----------



## HDTiVo

> Rhyne said EchoStar boxes do not convert analog television signals into "MPEG (motion picture expert group) streams;


This was significant in the Judge's Ruling denying Summary Judgement. The Judge interperets the language in the Patent Echostar's way. So far there is no reporting on testimony from TiVo's side which would disuade the Judge's opinion.

The Broadcom testimony also appears very damaging to TiVo.

I'd say this was a very bad day for TiVo, as reported in the article.


----------



## HDTiVo

What is the process from here. After trial the jury makes a decision...

Does the jury decide both "guilt" and penalty or is there as seperate penalty phase with a new trial and jury?


----------



## ping

> accepting television (TV) broadcast signals, wherein said TV signals are based on a multitude of standards, including, but not limited to, National Television Standards Committee (NTSC) broadcast, PAL broadcast, satellite transmission, DSS, DBS, or ATSC;
> 
> tuning said TV signals to a specific program;
> 
> providing at least one Input Section, wherein said Input Section converts said specific program to an Moving Pictures Experts Group (MPEG) formatted stream for internal transfer and manipulation;


That describes a satellite tuner just as well as it describes an NTSC tuner coupled with an MPEG encoder, IMO.

However, if it's true that Echostar don't separate audio and video, TiVo is screwed.


----------



## ping

BTW, do you suppose there's any chance that there's even one person on the jury that really understands this stuff?


----------



## jmoak

> Rhyne said EchoStar boxes do not convert analog television signals into "MPEG (motion picture expert group) streams; the defendant's boxes do not separate audio and video components, as do TiVo products, and, therefore, EchoStar does not reassemble these audio and video portions of the television signal, as the TiVo patent claims.


Keeping in mind that echostar uses the dvb standard for encoding and transmission (which transmits the channel via mpeg2 elementary streams) and that their expert says:
"the defendant's boxes do not separate audio and video components"
"EchoStar does not reassemble these audio and video portions of the television signal"

Check out this:
The MPEG-2 Transport Stream. How receivers know what's where

Check out the page and note:
What are PIDs and how the separate audio and video PIDs make up a PES stream.

The dvb standard receiver/ird (what echostar uses) does not "encode analog to digital" but simply receives a digital signal _made up of individual audio and video PIDs_, extracts the PIDs for the requested audio and video and _reassembles them_ into a mpeg2 transport stream which is then converted back to analog to be viewed on a tv.

That quote has got to be an error. Broadcom manufactures the damn chips!!!!!


Do a goggle search for dvb and dvb-s for more detailed info on the makeup of the streams.


----------



## ping

Also, for anyone thinking DirecTV might be next (after the agreement runs out), I don't think that's going to happen. I've seen it documented in dbstalk that, unlike a DTiVo, on an R15 you can switch to alternate audio on playback (a DTiVo can playback only the audio stream that was recorded). Since it's unlikely they are splitting out all the audio streams, it's more likely they are just recording the satellite stream whole.


----------



## jmoak

ping said:


> Also, for anyone thinking DirecTV might be next (after the agreement runs out), I don't think that's going to happen. I've seen it documented in dbstalk that, unlike a DTiVo, on an R15 you can switch to alternate audio on playback (a DTiVo can playback only the audio stream that was recorded). Since it's unlikely they are splitting out all the audio streams, it's more likely they are just recording the satellite stream whole.


Check out DSS - the "other other" MPEG-2 satellite standard used in North Amercia

btw, if "they are just recording the satellite stream whole", it would be a ~31mBps stream recorded on the disk.


_many thanks to Rod Hewitt and the coolstf.com site!!_


----------



## ping

OK, well of course I meant for just that channel, not transponder.

BTW, it's not whether the audio and video are separate logical parts of the MPEG stream. Of course they are. It's whether those are broken out into separate physical streams for storage on the hard drive.


----------



## HDTiVo

ping said:


> That describes a satellite tuner just as well as it describes an NTSC tuner coupled with an MPEG encoder, IMO.
> 
> However, if it's true that Echostar don't separate audio and video, TiVo is screwed.


That's what the Patent says. One of TiVo's problems is that the Judge interprets it the way Echostar does.


----------



## ping

Well, it'll be moot if it can be proven the Echostar boxes don't separate audio and video, but if they do, then maybe the jury will get it right


----------



## Puppy76

Sort of off topic (hope you guys don't mind), but WHY does Tivo seperate the audio and video streams? I mean I guess a show is recorded as two seperate files on Tivo? Why? And what does that have to do with this patent? Isn't this about the hardware that lets Tivos stream stuff from disk without much CPU involvement? What does that have to do with encoding MPEG, or mixing audio and video together?


----------



## jmoak

ping said:


> OK, well of course I meant for just that channel, not transponder.
> 
> BTW, it's not whether the audio and video are separate logical parts of the MPEG stream. Of course they are. It's whether those are broken out into separate physical streams for storage on the hard drive.


sorry, your "it's more likely they are just recording the satellite stream whole" threw me off.

as far as "Well, it'll be moot if it can be proven the Echostar boxes don't separate audio and video",

Check out the Dishrip (echostar dvr) group at yahoo and compare it to the info about TyTool or MFSFTP (dtivo/tivo dvr) for real info on how the streams are stored on the hard drives.

I'm beginning to think I may be starting to look like a real wanker here, so I'll be quiet now.


----------



## Dajad

*DAY SIX: TiVo-EchoStar Trial (Thursday Apr. 6)*

http://daledietrich.com/imedia/2006/04/07/day-six-tivo-echostar-trial-thursday-apr-6/

Echostar called three witnesses. First up, *Tom Rhyne*, TiVo's Expert witness - a retired electrical engineering professor from Texas A&M. Rhyne testified that while there were some similarities between TiVo's patents and Echostar's products, there were a number of ways the Echostar box differed from the functions outlined in TiVo's patent. Ryan, _[Dale's note: stating the obvious_], said EchoStar boxes do not convert analog signals into MPEG streams. He pointed out that Echostar's boxes do not separate audio and video components, as do TiVo products _[Dale's note, since Echostar's product is an all-digital end-to-end, why would it?]_ and therefore do not reassemble them as the TiVo patent claims _[Dale's note, the unstated premise being that this is all the TiVo patent claims]._ Since MPEG is already in digital format, there is no need to do the two-step conversation as is needed on TiVo boxes that use analogue inputs. Rhyne said EchoStar products do not have/use a media switch as TiVo alleges.

Next up,* Dan Minnick,* vice president of software for EchoStar. Minnick also testified that there was no media switch. He also testified that after Echostar's engineers met with TiVo's engineers "early on", they followed-up with Echostar's inhouse counsel, Kerry Miller and that Miller gave them a verbal legal opinion over the telephone that Echostar did not infringe TiVo's patent _[Dale's note: I wonder if Miller rues the day he gave that opinion?] _Minnick said "We know we don't have a media switch because we broadcast in MPEG, we have no need for software that will convert (television signals) to MPEG. _[Dale's Note: Interesting how they are narrowly defining the scope of the patented media switch with this testimony.]_. Minnick explained that an in-house e-mail from an EchoStar engineer on the day TiVo's patent was announced saying "Oh no, tell me it isn't so?" was a sarcastic e-mail mimicking a clay cartoon character.

Finally, *Jason Demas* a senior Broadcom director testified that Echostar chose to source a DVR chip from Broadcom whereas TiVo, after being approached by Broadcom to do this on a chip, opted to use software instead. On cross-examination, Demas conceded that Echostar's boxes are capable of the same "trick play' features of pausing, re-winding and fast-forwarding live television as outlined in the Barton patent. Demas was not aware, as TiVo's lawyer put it, that "Echostar has demanded -- if they lose this trial -- that Broadcom will pay for all the damages this jury may award".

Tom Rhyne will be cross-examined Friday April 7.


----------



## ping

jmoak said:


> Check out the Dishrip (echostar dvr) group at yahoo and compare it to the info about TyTool or MFSFTP (dtivo/tivo dvr) for real info on how the streams are stored on the hard drives.


Oooh, thanks for that. Interesting. From one of the tutorials:



> Muxing  to merge the audio and video portions of the recorded show together into one file (in our case, a 'mpeg' file). For some silly reason, they seem to be stored separately on the PVR and need to be reintroduced to each other. It's quite romantic, even though it can be done automatically by software like 'PVR Explorer'.


"For some silly reason" indeed.


----------



## Dajad

Puppy76 said:


> Sort of off topic (hope you guys don't mind), but WHY does Tivo seperate the audio and video streams? I mean I guess a show is recorded as two seperate files on Tivo? Why? And what does that have to do with this patent? Isn't this about the hardware that lets Tivos stream stuff from disk without much CPU involvement? What does that have to do with encoding MPEG, or mixing audio and video together?


TiVo separates them because it maintains full audio quality for ALL recordings but the TiVo user gets to choose what level of quality the video is recorded in. In order to save video in varying quality levels while maintaining the audio as pristine highest quality, this necessarily necessitates two recorded streams.

And, by the way, nothing that I read in today's testimony seems particularly damaging to Tivo. It appears that EchoStar's strategy here is to pick away at the various TiVo patent claims and to argue that because they don't infringe claim a, b or c, that they don't infringe the patent. TiVo only needs to convince the jury that Echostar infringed ANY claim, not every claim to succeed. Rhyn's point that there are a number of ways in which Echostar's products differ fom TiVo's patent, it seems to me, is beside the point. What is relevant is the way in which Echostar's products incorporate technologies claimed in TiVo's patent - not in the relevant or irrelevant ways in which it is different.
...Dale


----------



## jmoak

ping said:


> "For some silly reason" indeed.


That's from the Dishrip group, eh?


----------



## Dajad

shady said:


> Would that be Judge Fudge Folsom?


OOPS!!! UMMMMM,,, I LIKE FUDGE!!!!!! [stated in a Homeresque kind-of-way].

Typo noted and corrected. Thanks shady!

...Dale


----------



## ping

Dajad said:


> TiVo separates them because it maintains full audio quality for ALL recordings but the TiVo user gets to choose what level of quality the video is recorded in. In order to save video in varying quality levels while maintaining the audio as pristine highest quality, this necessarily necessitates two recorded streams.


I thought it had something to do with making trickplay somehow easier to do with limited resources (something about the timings involved). I admit I never fully understood the why. Just that it somehow allowed them to do it with much cheaper hardware than would otherwise be required (reset your mind to late 90's hardware).

From the description part of the patent:


> Rather than having to parse through an immense data stream looking for the start of where each frame would be, the program logic only has to look at the circular event buffer in DRAM 714 and it can tell where the start of each frame is and the frame type. This approach saves a large amount of CPU power, keeping the real time requirements of the CPU 713 small. The CPU 713 does not have to be very fast at any point in time. The Media Switch 701 gives the CPU 713 as much time as possible to complete tasks. The parsing mechanism 705 and event queue 708 decouple the CPU 713 from parsing the audio, video, and buffers and the real time nature of the streams, which allows for lower costs. It also allows the use of a bus structure in a CPU environment that operates at a much lower clock rate with much cheaper memory than would be required otherwise.
> 
> The CPU 713 has the ability to queue up one DMA transfer and can set up the next DMA transfer at its leisure. This gives the CPU 713 large time intervals within which it can service the DMA controller 709. The CPU 713 may respond to a DMA interrupt within a larger time window because of the large latency allowed. MPEG streams, whether extracted from an MPEG2 Transport or encoded from an analog TV signal, are typically encoded using a technique called Variable Bit Rate encoding (VBR). This technique varies the amount of data required to represent a sequence of images by the amount of movement between those images. This technique can greatly reduce the required bandwidth for a signal, however sequences with rapid movement (such as a basketball game) may be encoded with much greater bandwidth requirements. For example, the Hughes DirecTV satellite system encodes signals with anywhere from 1 to 10 Mb/s of required bandwidth, varying from frame to frame. It would be difficult for any computer system to keep up with such rapidly varying data rates without this structure.


----------



## ChuckyBox

HDTiVo said:


> This was significant in the Judge's Ruling denying Summary Judgement. The Judge interperets the language in the Patent Echostar's way. So far there is no reporting on testimony from TiVo's side which would disuade the Judge's opinion.


No, the judge ruled that there was an issue of fact to be determined which precluded a summary judgement. That means he will leave it to the jury unless one side or the other totally fails to make their case.



> The Broadcom testimony also appears very damaging to TiVo.
> 
> I'd say this was a very bad day for TiVo, as reported in the article.


There appears to be nothing in any of the testimony that TiVo wasn't expecting or won't be prepared to address under cross.


----------



## ChuckyBox

ping said:


> However, if it's true that Echostar don't separate audio and video, TiVo is screwed.


The jury could find this variation insignificant under the doctrine of equivalents. If it accomplishes the same thing in substantially the same way, it still infringes. TiVo's implementation is more general and allows more flexibility, so one could see the E* implementation as a subset of TiVo's.


----------



## ping

We could go back and forth on this, but in my opinion, you take out the media switch, you get 5,371,551. Even TiVo says so.



> The use of digital computer systems to solve this problem has been suggested. U.S. Pat. No. 5,371,551 issued to Logan et al., on Dec. 6, 1994, teaches a method for concurrent video recording and playback. It presents a microprocessor controlled broadcast and playback device. Said device compresses and stores video data onto a hard disk. However, this approach is difficult to implement because the processor requirements for keeping up with the high video rates makes the device expensive and problematic. The microprocessor must be extremely fast to keep up with the incoming and outgoing video data.
> 
> It would be advantageous to provide a multimedia time warping system that gives the user the ability to simultaneously record and play back TV broadcast programs. It would further be advantageous to provide a multimedia time warping system that utilizes an approach that decouples the microprocessor from the high video data rates, thereby reducing the microprocessor and system requirements which are at a premium.


----------



## morgantown

But how much have processing speeds increased and the costs decreased since 1994?

That is a moot point however, since all DVR's are pretty much built the same -- just like a TiVo. I just can't wait until they get to take on NDS...


----------



## jautor

morgantown said:


> But how much have processing speeds increased and the costs decreased since 1994?


Ah, but what's good about the TiVo patent is that if you build a DVR without using the media switch, and I build one with it - I'll probably always have a lower cost and/or better performing platform...

Regardless of the actual cost of the processing, having a task use 5% of a CPU instead of 70% (I'm making up numbers) gives me a lot of flexibility. I can either buy a cheaper/slower CPU (and beat you on price), or use that extra 65% to add more functionality (and beat you on features). Or both... 

Jeff


----------



## morgantown

jautor said:


> Regardless of the actual cost of the processing, having a task use 5% of a CPU instead of 70% (I'm making up numbers) gives me a lot of flexibility. I can either buy a cheaper/slower CPU (and beat you on price), or use that extra 65% to add more functionality (and beat you on features). Or both...
> 
> Jeff


The really sad thing is other folks have been copying the media switch and STILL can not get the rest right. Could you imagine if they (the other DVR makers) had to "play fair?" Again, I can not wait until they have won the case and get to take on NDS mano e mano.

As far as cost, TiVo unfortunately can be steep when you add the fees and the demise of lifetime subscriptions. I, sadly, don't think anyone can really dispute that.

They NEED to be hooked into the cable and DSB providers to provide needed earnings of off the licensing fees. Then provide the "luxury" features to the stand alone side of the business at a luxury cost.

Somehow, I think that is exactly what they are (trying) to do.


----------



## ChuckyBox

TiVo filed an interesting brief today (Docket #662). It addresses some of the issues above, and gives some idea of where the battle lines are:



TiVo said:


> *TiVos BRIEF IN SUPPORT OF ITS REQUEST FOR A CURATIVE
> INSTRUCTION REGARDING IMPROPER CLAIM CONSTRUCTION TESTIMONY
> BY ECHOSTAR WITNESSES*​
> TiVo's Motion in Limine No. 4 to preclude argument, evidence, or suggestion that is inconsistent with the Court's claim construction. EchoStar responded that "it ha[d] no intention of challenging or having its experts challenge the Court's claim construction." Jan. 26, 2006 Order at 4 [docket #422]. EchoStar, however, has now presented a series of witnesses, both fact and expert, who each have construed the claim terms "converts" and "object." Through fact witnesses Dave Kummer, Dan Minnick, Jason Demas, and by its expert witness Dr. V. Thomas Rhyne, EchoStar has presented the very same construction of these claim terms that EchoStar argued to the Court and that the Court did not adopt.1 In other words, EchoStar witnesses have usurped the role of the Court on claim construction.
> 
> The testimony from EchoStar witnesses has been that the claim term "converts" requires an MPEG encoder that converts from non-MPEG to MPEG, the same narrow grounds urged by EchoStar but not adopted by the Court in its claim construction. EchoStar witnesses have also testified that the term "object" requires a particular kind of programming language, again the same narrow grounds urged by EchoStar but not adopted by the Court during claim construction.
> 
> The seriousness of the situation created by EchoStar is demonstrated by the case of Medtronic Navigation v. Brainlab Medinzinische Computersystems Gmbh, 2006 U.S. Dist. LEXIS 10102 (D. Colo. 2006). In Medtronic, the district court rejected Medtronic's proposed construction of "reference means" to mean "one or more sensors and receivers" and instead interpreted it to mean "an array of microphones." Id. at *35. Medtronic's fact witness Dr. Smith and a testifying expert Dr. Grimson referenced, during their trial testimony, Medtronic's prior sensor claim construction argument. Id. at *35-*36. The Court held this to be a "deliberate distortion of the court's claim construction rulings" and consequently, set aside the jury verdict on this basis. Id. at *34, *42. The Court noted, "At trial Medtronic's counsel ignored the
> limitations of the Bucholz claim made by this court and misdirected the jury to adopt a different reading of the claim language." Id. at *35. "Medtronic's disagreement with the court's claim construction does not give counsel license to mislead the jury by their presentation of evidence and argument." Id. at *36.
> 
> In TI Group Automotive Systems,NA, Inc. v. VDO North America, LLC, 2002 U.S. Dist. LEXIS 17783 (D. Del.), the Court also set aside a jury verdict for the patentee because the patentee's technical expert testified using a broad construction of the claim language that the patentee had advanced earlier and that the trial court had not adopted. The court rebuked the patentee for making "arguments about what the term should mean, notwithstanding what the court has already said it does mean." Id. at *12.
> 
> TiVo respectfully submits that EchoStar's deliberate use of claim construction that was not adopted by the Court is a very serious matter and requests, at a minimum, that the Court provide the jury with a limiting instruction on this issue. A proposed instruction is attached for the Court's consideration.
> 
> Dated: April 7, 2006 By: /s/ Christine Byrd
> Christine Byrd
> 
> *TiVo's PROPOSED CURATIVE JURY INSTRUCTION
> REGARDING CLAIM CONSTRUCTION*​
> Ladies and gentlemen of the jury, I have previously interpreted certain claims of the patent at issue in this case as a matter of law.
> 
> One of the claims at issue is "converts said specific program to an Moving Pictures Experts Group (MPEG) formatted stream for internal transfer and manipulation" in claims 1 and 32.
> 
> I have previously ruled that this language does not require an MPEG encoder and it does not require "changing the format of the TV program data signal from non-MPEG to MPEG." To the extent that certain witnesses have testified that the claim requires either of these, you should disregard that testimony entirely.
> 
> I also previously ruled on the term "object" in claims 31 and 61 to mean: "a collection of data and operations." This language does not require any particular computer programming method. Again, to the extent that certain witnesses have testified that the claim requires a particular computer programming method, you should disregard that testimony.


----------



## jfh3

ping said:


> Oooh, thanks for that. Interesting. From one of the tutorials:
> 
> "For some silly reason" indeed.


Sure hope Tivo has at least one lawyer watching this thread ... 

Why would Dish have to mux their files if they weren't stored just like Tivos?

I don't know if this is a smoking gun, but it seems like this would be easy enough to explain to a jury ... "If Echostar uses a different process, why is the data stored just like Tivos?"


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## classicsat

Dajad said:


> TiVo separates them because it maintains full audio quality for ALL recordings but the TiVo user gets to choose what level of quality the video is recorded in. In order to save video in varying quality levels while maintaining the audio as pristine highest quality, this necessarily necessitates two recorded streams.
> 
> ...Dale


IMO, it is because the TiVo uses a separate audio encoder, at least it did back to the Series 1.


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## HDTiVo

ChuckyBox said:


> No, the judge ruled that there was an issue of fact to be determined which precluded a summary judgement. That means he will leave it to the jury unless one side or the other totally fails to make their case.
> 
> There appears to be nothing in any of the testimony that TiVo wasn't expecting or won't be prepared to address under cross.


Going back over posts  starting here some time ago, shows what the Judge did and what his reasoning was on the analog/digital issue.

Its an open issue and one that TiVo needed to deal with, but from the reports we read TiVo has not. Conversely Echostar seems to have hammered at the point. TiVo should have taken the whole issue of fact out of play in the SJ motion by stipulating to the Echostar position and explaining that the Patent language covers both situations. They did not, and so the Court is still left with its anti-TiVo view.

Apparently the testimony was so damaging on Thursday that TiVo's lawyers had to file a motion to deal with it. They were seemingly unaware during trial of the problem. Fortunately, someone must have passed my posts on to them, and they woke up subsequently. 

I found a Dow Jones News quote  while searching on Summary Judgement that TiVo had dropped claims against the 7100 and 7200 box, making Echostar's SJ request on that moot. I'm wondering how that factors into the trial since I think they've talked somewhat about those boxes. Also, how many of those boxes would subtract from the 4.2M units TiVo claims infringe?

TiVo's claims of injury don't even reach the $100M+ bandied about earlier, and appear wildly exaggerated (no surprise.) One way of looking at it would be they are asking about $20/box on the 4.2M claimed infringing boxes. The calculation of $X/month is also absurd; traditionally a per box fee is paid. TiVo's numbers are based on a fully developed product for Echostar rather than the value of using a patent, or some portion thereof. The actual value is in the $1/box range.

I put the exposure to Echostar in the $10M range, based on _total _ victory by TiVo. Industry wide that puts the entire value in the $30M range to date, and perhaps $100M overtime. To collect those sums, TiVo will have to expend significant effort and money suing other parties. Total value of the Patent to TiVo is perhaps $50M over time - provided TiVo completely prevails against all parties.

DirecTV will never come into play because they have a right to license TiVo IP from their earlier agreement.


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## jmoak

saturday update from friday:

Expert witness testify how DVR boxes are dissimilar


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## morgantown

HDTiVo said:


> DirecTV will never come into play because they have a right to license TiVo IP from their earlier agreement.


I don't think anything from the previous agreement involves the DVRs that DirecTV is now pushing (i.e., the NDS derived R15). The NDS DVRs sold all over the world fall into the same category as the E* DVRs. The NDS DVRs started in 2001...


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## dswallow

HDTiVo said:


> TiVo's claims of injury don't even reach the $100M+ bandied about earlier, and appear wildly exaggerated (no surprise.) One way of looking at it would be they are asking about $20/box on the 4.2M claimed infringing boxes. The calculation of $X/month is also absurd; traditionally a per box fee is paid. TiVo's numbers are based on a fully developed product for Echostar rather than the value of using a patent, or some portion thereof. The actual value is in the $1/box range.


Sure they do... TiVo is under no obligation to license the technology covered by a paten under any terms; DirecTV demonstrated the type of licensing TiVo would do, and Dish Network, by stealing intellectual property from TiVo, has deprived TiVo of income from licensing that technology, and there's no reason to believe TiVo would enter into any different deal than they entered into with DirecTV. It doesn't matter that TiVo didn't develop Dish's DVR, what matters is that TiVo was deprived of the opportunity, and thus the profit, to develop their DVR product in which their technology could have been used. They're not making up numbers. They're using as an example a real live deal they did.


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## ChuckyBox

HDTiVo said:


> Apparently the testimony was so damaging on Thursday that TiVo's lawyers had to file a motion to deal with it. They were seemingly unaware during trial of the problem. Fortunately, someone must have passed my posts on to them, and they woke up subsequently.


It's funny that you think TiVo's lawyers are less aware of the issues in the case than you, and that they are less aware of what is going on in court than you are from reading a few daily summaries by journalists. Keep it up, it makes me laugh.

You'll note that this was a brief in support of a motion, not the motion itself. The motion was made in court. Without the transcripts it is impossible to know when or how many times TiVo objected to the testimony.


----------



## jmoak

ChuckyBox said:


> Without the transcripts it is impossible to know...


As illustrated by thursday's report of a witness from broadcom supposedly stating how:
"the defendant's boxes do not separate audio and video components"
"EchoStar does not reassemble these audio and video portions of the television signal"

Even though simply by the dvb transmission standard, the video and audio streams for any individual channel are transmitted as separate stream pid's (as per the dvb specifications and verified by common stream analyzers such as TSReader), are stored on the disk separately (as per the coders who have written programs to extract vids from echostar dvr harddrives) and must be recombined into a mpeg ts stream to feed to a d/a converter to output to a tv.

I just can't believe that someone would sit as an expert witness in court and make claims that are so easily refuted by any joe with a small dish, a us dth lnb, a computer with a dvb pci card, a $100 stream analysis software tool and access to the internet.

Is a rep from broadcom lying under oath or is a reporter simply getting it wrong?

I'd like to think the latter, which must bring question to all that's been reported so far.

I'd LOVE to be sitting in that courtroom, as that's the only way to know for sure what's going on.


----------



## HDTiVo

TiVo's deal with DirecTV is vastly different from the licensing of patents. Fair value for patent license is a small fraction; the DTV deal sets a number to discount from to get to a reasonable value of a patent license.

I don't see anything that indicates where the motion was made. Regardless of when the motion was made, or any objections, the testimony was allowed and TiVo is playing catch up.


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## HDTiVo

morgantown said:


> I don't think anything from the previous agreement involves the DVRs that DirecTV is now pushing (i.e., the NDS derived R15). The NDS DVRs sold all over the world fall into the same category as the E* DVRs. The NDS DVRs started in 2001...


TiVo's 10K's reflect this...



TiVo 10K 2005 (page 37) said:


> DIRECTV, however, also has the option under our current
> development agreement to buy a royalty-bearing software and technology license from us. This license would grant DIRECTV access to our
> source code and technology to make, modify (with certain exceptions), sell, and distribute DIRECTV receivers with TiVo service to add new
> subscribers after the expiration of our current agreement.





TiVo 10K 2005 (page 97 said:


> Under the agreement,
> DIRECTV additionally has the option to purchase a non-exclusive license of the Companys digital video recording technology. In connection
> with its exercise of this option, DIRECTV would be required to pay TiVo an up-front fee, per-unit royalties and other fees. The technology
> license that DIRECTV has the election of exercising is similar in price and structure to other client and server technology source licenses sold
> to one customer and offered to other customers.


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## dswallow

HDTiVo said:


> TiVo's deal with DirecTV is vastly different from the licensing of patents. Fair value for patent license is a small fraction; the DTV deal sets a number to discount from to get to a reasonable value of a patent license.


Fair value is whatever the patent holder wants. They're the patent holder. It's actually rather fair for TiVo to use the DirecTV deal as a comparable value. TiVo could validly claim they would never license the patent except with a deal structured like DirecTV's.


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## morgantown

HDTiVo said:


> TiVo's 10K's reflect this...


Thanks for the quotes from the SEC filings, interseting info. However...

The quotes you offered reflect an "option" that has not been exercised (and probably never will). As stated before, the R15's have NDS software -- not TiVo, and would fall into the same category as the E* DVR's.

I have used a R15, trust me it has no TiVo software whatsoever. Should TiVo win the case I certainly hope DirecTV would exercise the TiVo option (although I would expect Rupert's ego would get in the way).

Either way, a succesful outcome in the TiVo/E* case will undoubtedly effect the vast majority of DVRs -- including the NDS/DirecTV R15.


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## HDTiVo

morgantown said:


> Thanks for the quotes from the SEC filings, interseting info. However...
> 
> The quotes you offered reflect an "option" that has not been exercised (and probably never will).


The second part (p97) is a general option on TiVo's DVR technology and not limited to using 'TiVo Software.'

Alot will be "learned" by DTV between now and whenever the option expires - which could even be sometime after the Feb '07 date - about whether DTV needs to exercise.

As far as other DVRs, those will have to be tried individually, or TiVo will have to come to some agreements with other entities.

I'm still in limbo about my understanding of why the 7100/7200 don't infringe, but later E* DVRs do infringe, and how that might effect other DVRs.


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## HDTiVo

dswallow said:


> Fair value is whatever the patent holder wants. They're the patent holder. It's actually rather fair for TiVo to use the DirecTV deal as a comparable value. TiVo could validly claim they would never license the patent except with a deal structured like DirecTV's.


Apparently TiVo wants $87M so far, but no, they don't get to dictate the penalty.


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## samo

> I'm still in limbo about my understanding of why the 7100/7200 don't infringe


Because they are prior art. Upgrade to full functionality was done after TiVo patent, but software was written by Microsoft and TiVo does not have balls to get Microsoft involved. If anybody directly affected TiVo sales it is Microsoft - every UTV sold was at the expense of DTiVo not being sold.


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## dswallow

HDTiVo said:


> Apparently TiVo wants $87M so far, but no, they don't get to dictate the penalty.


No, but they would have every right to ask the courts to stop Dish network from using their technology at all. And they have complete control going forward of how and if to license that technology to them and under what terms.

But for a penalty, they need to show the court something reasonable approximating their financial harm. And the simple way of doing that is to show existing deals with similar companies.


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## Dajad

Thanks ChuckyBox for the text of the Curative Request. I have added a link to iit into my site here:

http://daledietrich.com/imedia/2006...ons-re-improper-claim-construction-testimony/

Thanks to Dean on the Motley Fool Board, I now have the text of the August 18, 2005 Claim Request Order itself and have also linked it into the post above.

Thanks jmoak for the most recent testimony link. I searched for it several times this weekend and didn't find it. You have the magic touch. I'll summarize it and post it in the next while.

...Dale


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## Dajad

*DAY SEVEN: TiVo-EchoStar Trial (Friday Apr. 7)*

http://daledietrich.com/imedia/2006/04/08/day-seven-tivo-echostar-trial-friday-apr-7/

Echostar called Stanford *Professor Margaret "Maggie" Johnson* to refute testimony by TiVo's witness Dr. Jerry Gibson. By analogy to writing novels she testified that TiVo and Echostar used different approaches to writing software to achieve the same end. _[Dale's Note: Frankly, I don't understand the point or substance of this testimony - based on the account in the article linked to this story! Pleaes review it yourself to see if you can make heads-or-tails of it.]_. Moving on ... TiVo next cross-examined *Dr. Tom Rhyne*. TiVo attempted to discredit Dr. Rhyne by painting him as an expert-for-hire. As Echostar had earlier done with a TiVo expert, Tivo's lawyers ensured that the court learned that Mr. Rhyne was being paid $495 per hour as an expert witness. Rhyne acknowledged that TiVo inventor Jim Barton "knows more about DVRs" than he. Both Rhyne and Johnson acknowledged that they relied on what they were told by Echostar engineers as the basis for their testimony _[Dale's Note: Presumably TiVo's tactic here is to persuade the jury that second-hand-testimony by paid experts as to Echostar's technology is less credible than first-hand testimony from TiVo's inventor - a point Echostar's lawyers could equally make about TiVo's experts.]_ The last Echostar witness to testify Friday was *Dan Landreth*, Echostar's V.P. of Engineering. He testified that in 1997 he and others from his prior company, Media Four, made a "sales pitch" to Echostar about their MRX1 "media stream receiver" invention which he claimed had "time-shifting" capabilities. He demonstrated the MRX1 to the jury. Landreth said that Echostar subsequently purchased Media Four and all of its I.P. Under cross-examination Landreth said that Echostar abandoned the MRX1 and a patent that had been pending for it at the time of the merger. Chu said that in order for a consumer to have a functioning MRX1 receiver it would have cost almost $5,000. _[Dale's Note: The article does not indicate whether Landreth agreed with this.]_ Landreth, however, showed the jury a copy of a check for one of the first sales of the MRX1 receiver in the amount of $60,000. Landreth also admitted that at the time of the buy-out, Media Four's sales had "dropped to zero."


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## ChuckyBox

HDTiVo said:


> I'm still in limbo about my understanding of why the 7100/7200 don't infringe, but later E* DVRs do infringe, and how that might effect other DVRs.


They may well infringe, but TiVo has said they will not pursue infringement claims against them. There was quite a bit of maneuvering over this issue, and some of TiVo's explanation is in a sealed response to an Echostar motion that I, obviously, don't have access to (it being sealed and all). At least of part of TiVo's reason was in a response that wasn't sealed: the 7100/7200 boxes are old, not very successful models (TiVo's statement), from which they would not be able to collect a lot of damages (my interpretation).

E*has seized upon TiVo's unwillingness to pursue those boxes as a tactical weakness, and has (reportedly) spent a great deal of time presenting the 7100/7200 to the jury (probably hoping the "we don't infringe" aura will rub off on their other DVRs). But from what I can piece together, I think they have gained that small tactical advantage (if it is, indeed, an advantage) at the price of handing TiVo a huge strategic advantage. I'm not going to say more about that until the case goes to the jury, however.


----------



## Dajad

Chucky. Thanks for all your insights. 

Where are you sourcing your information? If you have any more source documents, I'd be happy to link them into my site in .pdf, html or .doc format. I'd be particularly interested if anyone has the original pleadings that I can add to my site.

...Dale


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## ChuckyBox

samo said:


> ...but software was written by Microsoft and TiVo does not have balls to get Microsoft involved. If anybody directly affected TiVo sales it is Microsoft - every UTV sold was at the expense of DTiVo not being sold.


After they couldn't get it from E*, TiVo served a subpoena on Microsoft for the 71000/7200 source code. Shortly thereafter, E* magically "found" it. I learned this from a TiVo filing (Docket item #149) that is a fairly amusing account of Echostar's delay tactics. My favorite part was the opening:


TiVo said:


> EchoStars motion for partial summary judgment is not a request for judgment on the merits but rather another manufactured, repackaged discovery dispute generated by the litigation machine that has churned out now ten discovery-related motions for the Court to decide.


I love that stuff, it's priceless.


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## HDTiVo

TiVo's Brief? said:


> The testimony from EchoStar witnesses has been that the claim term "converts" requires an MPEG encoder that converts from non-MPEG to MPEG, the same narrow grounds urged by EchoStar but not adopted by the Court in its claim construction.


Well, after looking at the Claim Request Order posted by D. I don't see what TiVo is complaining about. The Judge did not reject the concept of a difference between mpeg and non-mpeg. The Court neither adopted Echostar's version nor TiVo's. The Claim Construction the Court adopted appears not to resolve the MPEG/Non-MPEG issue.

This is backed up by the Summary Judgement Ruling wherein the Judge highlighted MPEG/Non-MPEG as an Issue of Fact. The Court is clearly of a mind that it matters whether the TV Signal is Analog or Digital (MPEG).

TiVo seems to be bungling this, where it shouldn't have to because the Patent language seems pretty clearly on TiVo's side. I don't know why they haven't fixed this after so many opportunities.


----------



## ChuckyBox

Dajad said:


> Where are you sourcing your information?


I have a PACER account -- all it takes is a credit card: http://pacer.psc.uscourts.gov/

Documents and searches cost 8 cents per page.

The TiVo-Echostar case is at https://ecf.txed.uscourts.gov/ case number 2:04-cv-00001.

(Hint: when doing a search, un-check the boxes about terminated parties, and parties and counsel. They add like five pages to your bill and are always the same bunch of monkeys.)


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## ChuckyBox

HDTiVo said:


> TiVo seems to be bungling this, where it shouldn't have to because the Patent language seems pretty clearly on TiVo's side. I don't know why they haven't fixed this after so many opportunities.


What would you have them do? The patent language is this:
[QUOTE='389 Patent]
1. A process for the simultaneous storage and play back of multimedia data, comprising the steps of:

accepting television (TV) broadcast signals, wherein said TV signals are based on a multitude of standards, including, but not limited to, National Television Standards Committee (NTSC) broadcast, PAL broadcast, satellite transmission, DSS, DBS, or ATSC;

tuning said TV signals to a specific program;

providing at least one Input Section, wherein said Input Section converts said specific program to an Moving Pictures Experts Group (MPEG) formatted stream for internal transfer and manipulation; 
...
[/QUOTE]
The judge said the last bit means this:


Judge Folsom said:


> providing at least one portion of a device that receives inputs, wherein said portion of the device that receives inputs converts said specified frequency range to an Moving Picture Experts Group (MPEG) formatted stream for internal transfer and manipulation.


E* argues they don't convert to MPEG because they are already MPEG. TiVo is arguing that E*'s boxes convert radio waves into an MPEG formatted stream. If the jury finds that E*'s boxes don't do this, TiVo loses claims 1 and 32 and, effectively, the case.


----------



## HDTiVo

dswallow said:


> No, but they would have every right to ask the courts to stop Dish network from using their technology at all. And they have complete control going forward of how and if to license that technology to them and under what terms.
> 
> But for a penalty, they need to show the court something reasonable approximating their financial harm. And the simple way of doing that is to show existing deals with similar companies.


Well, I've already given my ballpark view of how to translate the DTV case into the Echostar case and I am completely comfortable with the kind of discount I've used.

Looking at things in more detail this weekend, it seems to me no one will care much if TiVo's Patent is upheld against their products. The Patent seems anachronistic in that it is from an era when MPEG Codec chips cost $50+, 32MB of RAM cost money, a 100MHz processor was still a mid-range Pentium, top end bus speeds were transitioning to 100MHz. The kind of situation where the BOM for a TiVo IP box might be $100+ less than a non-TiVo IP box. Today that's probably $5-10, and the competitive advantage is swamped by other factors.


----------



## samo

> I love that stuff, it's priceless.


Based on what I read so far it is painfully obvious that case will be decided on the skill of the lawyers involved, not on a merit of the patent. It is a shame that legal manipulations (like taking case to the jury that is least qualified to decide technical merits or delay tactics of all kinds) prevail over real questions - did E* infringed on a patent and is patent legit.


----------



## ChuckyBox

samo said:


> Based on what I read so far it is painfully obvious that case will be decided on the skill of the lawyers involved, not on a merit of the patent. It is a shame that legal manipulations (like taking case to the jury that is least qualified to decide technical merits or delay tactics of all kinds) prevail over real questions - did E* infringed on a patent and is patent legit.


Such is the state of our court system. And it is all done in the name of "fairness." Sadly, fairness often means that the jury never sees a lot of evidence or hears a lot of arguments that might be important because one side was better at maneuvering the labyrinthine world of established case law and procedure.


----------



## HDTiVo

ChuckyBox said:


> What would you have them do?


At appropriate points TiVo needed to argue the "*converts said specific program to an Moving Pictures Experts Group (MPEG) formatted stream for internal transfer and manipulation*" to mean something like "*converts said specific program, in the case of an analog based standard via an MPEG Encoder, or in the case of a digital based standard via XXXXXX, to an Moving Pictures Experts Group (MPEG) formatted stream for internal transfer and manipulation*"

TiVo argued for *hardware and/or code that changes or
adapts the form or function of the TV program data to an MPEG format suitable for
internal transfer and manipulation.* The Court did not adopt this language, which would have been more understandable from TiVo's viewpoint to mean that the MPEG format "suitable for internal transfer" is somehow different from the original MPEG format of the (digital) Program; thus the conversion is understandable in the context of both an analog and digital standard based Program - which is what the claim states in the "multitude of standards paragraph."

The hole was left there in the Claims Ruling, highlighted in the Summary Judgement Ruling, and exploited by E* at trial. Now TiVo is making a seemingly meaningless claim that E* didn't follow the Court's position, when E*seems to have done so on the face of it.


----------



## HDTiVo

samo said:


> Based on what I read so far it is painfully obvious that case will be decided on the skill of the lawyers involved, not on a merit of the patent. It is a shame that legal manipulations (like taking case to the jury that is least qualified to decide technical merits or delay tactics of all kinds) prevail over real questions - did E* infringed on a patent and is patent legit.


Well, look at what TiVo chose to do...

If TiVo thought it really had a clear case as a matter of law, they could have taken it to a Court in a District that is well versed in these cases, and tried it before a Judge.

Instead they opted for what's been billed as a relatively unsophisticated Jury from a venue which is known as "sympathetic" to the Plaintiff (ie. able to be manipulated by arguments not strictly pertinent to the law.)


----------



## ChuckyBox

HDTiVo said:


> At appropriate points TiVo needed to argue the "*converts said specific program to an Moving Pictures Experts Group (MPEG) formatted stream for internal transfer and manipulation*" to mean something like "*converts said specific program, in the case of an analog based standard via an MPEG Encoder, or in the case of a digital based standard via XXXXXX, to an Moving Pictures Experts Group (MPEG) formatted stream for internal transfer and manipulation*"


While I agree that this would be better language, and is closer to the intent of the patent (based on the language in the descriptive section of the patent), there is no possible way they could argue that the claim *does* say that. The purpose of the exercise is to get the claims construed in one's favor -- broadly for the plaintiff, narrowly for the defendant -- but if you go too far, you're just going to lose. It would be hard to morph the language of the patent into your preferred language.

It is a weakness of the patent, no doubt. They knew better, but somehow didn't get the desired language into the claim. But if this is where TiVo's patent falls down, then fair enough. It sucks for TiVo, but if they can't convince the jury (either literally or by the doctrine of equivalents) that the E* boxes have an input section that takes in a "frequency range" and outputs an MPEG stream, then maybe they shouldn't win.


----------



## ChuckyBox

HDTiVo said:


> Well, look at what TiVo chose to do...
> 
> If TiVo thought it really had a clear case as a matter of law, they could have taken it to a Court in a District that is well versed in these cases, and tried it before a Judge.
> 
> Instead they opted for what's been billed as a relatively unsophisticated Jury from a venue which is known as "sympathetic" to the Plaintiff (ie. able to be manipulated by arguments not strictly pertinent to the law.)


I believe both parties requested a jury. And you can't fault them for choosing an attractive venue. But this court, and this judge in particular, have a great deal of experience with, and a solid reputation for, the handling of IP cases. The cases are handled quickly, the the court's experience should limit the success of any appeals. As for the jury, well, it's Texas, and they don't like rustlers.


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## HDTiVo

Well, look at these snips from the Claims Ruling...



LEGAL PRINCIPLES OF CLAIM CONSTRUCTION (Section II) said:


> However, the Federal
> Circuit stressed the importance of recognizing that the person of ordinary skill in the art is deemed to read the claim term not only in the context of the particular claim in which
> the disputed term appears, but in the context of the entire patent, including the
> specification.
> 
> -------------
> 
> The Court is
> mindful that there is a heavy presumption in favor of construing claim language as it
> would be plainly understood by one of ordinary skill in the art.
> 
> ---------------
> 
> Each term used in a claim is presumed to have meaning. Innova, 381 F.3d at
> 1119 (While not an absolute rule, all claim terms are presumed to have meaning in a
> claim.). *Thus, a claim construction that would render terms meaningless or redundant is
> presumably incorrect.*


and note how the Court's Claim Construction renders meaningless this part of the Claim...



TiVo Claim #1 said:


> satellite transmission, DSS, DBS, or ATSC;


And that TiVo's proposed language - even simpler than my hack job - could have advanced the case of fixing the problem...



HDTiVo said:


> TiVo argued for hardware and/or code that changes or
> adapts the form or function of the TV program data to an MPEG format suitable for
> internal transfer and manipulation. The Court did not adopt this language, which would have been more understandable from TiVo's viewpoint...


Anyway, like I've said since long before the trial started, TiVo is a bit up the creek on this one.


----------



## ThreeSoFar

Have there been any estimates how long the trial will last?


----------



## BlackBetty

ThreeSoFar said:


> Have there been any estimates how long the trial will last?


Just before the trial started, it was being said it would last about 2.5 weeks. I think this Wednesday marks the 2 week point.


----------



## ChuckyBox

HDTiVo said:


> and note how the Court's Claim Construction renders meaningless this part of the Claim...


What you say may be true, and it may be grounds for appeal. But the sides made their arguments and the judge chose his own language in the order, and there is not a heck of a lot you can do once that happens. I don't know the procedure well enough to say that TiVo could have made a motion for reconsideration, but it didn't do so. I think TiVo was pretty happy to avoid the "non-MPEG to MPEG" language.

As to why TiVo's lawyers chose the language they did, we can only assume that they were guided by their experience in these matters, what they were planning to argue, and what they believed E* would argue. (Actually, they knew what E* was working for since each side filed a brief and a response to the other's brief.)

As for what the jury will do, that's anybody's guess. Without being there it is hard to tell what the atmosphere is like. One side may have a stronger case, but their lawyers could have pissed off the jury, or their witnesses may have come off as shifty, arrogant, or dishonest. When that happens, the legal issues become obscured, and legal analysis becomes irrelevant.


----------



## TiVoCanada

to much information to read can someone tell me whos winning?


----------



## samo

TiVoCanada said:


> to much information to read can someone tell me whos winning?


Lawyers.


----------



## HDTiVo

TiVoCanada said:


> to much information to read can someone tell me whos winning?


The guy charging $425/hr for 1100+ hours of High School Economics.


----------



## HDTiVo

I don't know the procedure for "appealing" the Claims Construction either, but look what happend at trial. TiVo's lawyers file a motion like they were wrongfully blindsided by the issue, when the Summary Judgement Ruling told them the issue was there and real. Echostar hammers at the weakness during the trial, while TiVo does nothing about it with their witnesses - at least as far as we read.



Claim Construction Ruling said:


> The construction of claims is simply a way of elaborating the normally terse
> claim language[] in order to understand and explain, but not to change, the scope of the
> claims.)(citations and internal quotations omitted).





ChuckyBox said:


> I think TiVo was pretty happy to avoid the "non-MPEG to MPEG" language.


I think its really "MPEG A to MPEG B" language...

I don't know why TiVo would want to avoid it...its an opportunity to elaborate on the normally terse claim language to include clearly that which was part of the original scope of the claim.


----------



## HDTiVo

re: 7100/7200 -



samo said:


> Because they are prior art. Upgrade to full functionality was done after TiVo patent, but software was written by Microsoft and TiVo does not have balls to get Microsoft involved. If anybody directly affected TiVo sales it is Microsoft - every UTV sold was at the expense of DTiVo not being sold.


See, this is rattling in my head...Even if TiVo does win against E*, what portion of the DVR world does not infringe? What is the net value of the patent then?


----------



## lajohn27

HD:

All the stuff you quote a bunch of posts back there.. is standard patent claim language construction and standard interpretation instructions. Nothing bizarre there.

And I fail to see -- based on your posting - how the Claim Construction makes meaningless the section you quote. It really does appear to be coming down to deciding if the patent covers decoding an analog frequency into digital MPEG or not. The data on the stream may in fact be a digital MPEG stream, but the frequency transmission is in fact analog and must in fact be decoded. TIVO seems to be hanging their hat on that interpretation and I can't quite see how Echostar can refute that.

That said - TIVO may well be in trouble here, but I don't think for the reasons you cite.

J


----------



## HDTiVo

lajohn27 said:


> It really does appear to be coming down to deciding if the patent covers decoding an analog frequency into digital MPEG or not.
> 
> That said - TIVO may well be in trouble here, but I don't think for the reasons you cite.
> 
> J


But the reason I cite is exactly the reason you cite. Maybe Chucky can explain it to you.


----------



## HDTiVo

lajohn27 said:


> And I fail to see -- based on your posting - how the Claim Construction makes meaningless the section you quote.





hdtivo said:


> Originally Posted by TiVo Claim #1
> satellite transmission, DSS, DBS, or ATSC;


What meaning does "ATSC" have if Digital MPEG broadcasts are not included in the claim?


----------



## lajohn27

I believe that TIVO is (correctly) hanging their defense of their claim on the notion that nothing is broadcast 'digital'. In the end, it is always an analog carrier that must be 'decoded' into *something* to be viewable. 

The content of the analog carrier may in fact be an MPEG stream, but it still must be decoded for internal transfer and manipulation.

J


----------



## ChuckyBox

lajohn27 said:


> I believe that TIVO is (correctly) hanging their defense of their claim on the notion that nothing is broadcast 'digital'. In the end, it is always an analog carrier that must be 'decoded' into *something* to be viewable.
> 
> The content of the analog carrier may in fact be an MPEG stream, but it still must be decoded for internal transfer and manipulation.


Exactly. And I don't see that as a hard argument to make. But the jury may find E*'s contention significant. TiVo's job would be easier if the claim was worded the same way the explanation was:
[QUOTE='389 Patent]
A preferred embodiment of the invention accepts television (TV) input streams in a multitude of forms, for example, analog forms such as National Television Standards Committee (NTSC) or PAL broadcast, and digital forms such as Digital Satellite System (DSS), Digital Broadcast Services (DBS), or Advanced Television Standards Committee (ATSC). Analog TV streams are converted to an Moving Pictures Experts Group (MPEG) formatted stream for internal transfer and manipulation, while pre-formatted MPEG streams are extracted from the digital TV signal and presented in a similar format to encoded analog streams. 
[/QUOTE]
But E* has to argue something. There will always be weaknesses and ambiguities, and those become the focus of the defense.

What really pisses me off is the idiot Stanford "professor" who testified for E* about software. Having programmed extensively in both procedural and object-oriented styles, I can testify that it isn't all that hard to switch from one to the other, and it is rare to find programmers, not to mention programs, that don't, to some extent, mix the two. That testimony was a disgrace to the profession. The TiVo lawyer pointed out the most obvious flaw in her testimony with one simple question: "Isn't it true that the computer can't tell the difference?" (I'm paraphrasing.) "Yes," she answers. Duh. I bet there isn't a single student coming out of Stanford's program that doesn't know multiple languages, including representatives from both styles. I hope TiVo provides a rebuttal witness that shows that woman for the embarrassment she is.

(No, I don't have the transcripts. Maybe it wasn't as bad as the reports made it seem. But what I read pissed me off.)


----------



## jmoak

ChuckyBox said:


> (No, I don't have the transcripts. Maybe it wasn't as bad as the reports made it seem. But what I read pissed me off.)


That's exactly my reaction to the statements attributed to echostar's "expert" witness from broadcom.

Talk about embarrassment. Whew!


----------



## lajohn27

Procedural vs. Object Oriented is a wasted argument. 

There are a number of ways to skin a cat but if someone has a patent on cat-skinning .. you still may infringe.. It's the age old ..

"Somebody skilled in the art may arrive at slightly different mechanisms of achieving the same result essentially using the same process as the patent embodies.." 

J


----------



## jmoak

monday's update, out this morning:

EchoStar CEO takes stand; testimony resumes today


----------



## Dajad

jmoak and I continue to do our tag team... 

http://daledietrich.com/imedia/2006/04/11/day-eight-tivo-echostar-trial-monday-apr-10/

DAY EIGHT: TiVo-EchoStar Trial (Monday Apr. 10)

Echostar's CEO, *Charles Ergen*, took the stand. Tivo's lawyer, *Sam Baxter*, established that Ergen's ownership in Echostar translates to $7.5 billion. _[Dale's Note: Can you hear "David & Goliath in the back of your head?] _In an attempt to discredit Echostar's early claims that TiVo was bringing this case only because it was a loosing money, Baxter asked Ergen if this was fair. He pointed out that Echostar had lost $3.9 billion before it turned a profit. Ergen conceded that losses are to be expected when a company has to do a lot of R&D and customer education. When asked again if this was fair Ergen responded "I've seen a lot of criticism (of TiVo) from Wall Street, but I can't say if it is fair." When asked if profitability and criticism gives somebody the right to take someone's IP, Ergen responded "no", adding he and his company respected others inventions. Baxter attempted to get Ergen to agree that DVR is indispensable to Echostar's customer retention but Ergen would not directly answer the question when asked several different ways. Baxter net referred to early Echostar comparative advertising copy which read "for people who think the idea behind TiVo is cool, but the price isn't". Baxter pointed out how TiVo is a verb and that sportscasters say things like "I wish I had TiVo'd that moment". He asked Ergen if he had ever heard anyone say "I wish I'd 501'd that moment". Ergen agreed he had never heard that. Ergen testified that Echostar had no need to steal TiVo technology since it employs its own staff of "the best engineering experts in the world'). _[Dale's Note: Whether patented technology is independently developed has no bearing whatever on whether it infringes on someone else's patent claims - innocent infringement is just as much infringement as willful infringement.] _

Echostar's last witness was *Dr. Nathaniel Polish*, an inventor of DVR products. He testified that TiVo's technology was nothing new and that more than 50 DVR-related patents had been granted before TiVo obtained one for its media switch. Among inventions that preceded TiVo's was the Screamin' Streamer, an EchoStar product, and the MRx1. On cross-examination Polish acknowledged that the Screamin' Streamer was only used in-house and never marketed commercially and admitted that the MRx1 was not capable of recording and playing live TV simultaneously. Tivo's attorney quipped, if the MRX1 was such a good product, "one wonders why they threw it out the door shortly after..." Media Four was purchased by Echostar.

*Echostar rested its case *and testimony is expected to be completed today (Tuesday the 11th). Judge Folsom told the jury they will have Wednesday off as he prepares his final instructions. As Friday is a holiday for some, the judge left it for the jurors to decide if they wish to deliberate Friday or not.

FYI... the following was posted by MTChamp on the Motley Fool subscription only board:

For those who use PACER, you may have already read some notices by Echostar in response to the courts rulings against Echostar, that testimony by EchoStar's expert validity expert, Dr. Polish, was not allowed. He was going to argue prior art.

The other notice has to do with a couple of documents or exhibits Echostar wanted to show the jury from the Patent Trade Office as I understand it, to show that TiVo's patent is being re-examined for validity. I guess the PTO is making sure there was no prior art that would invalidate the TiVo patent. I don't know the details of why the PTO would do this, however the court would not allow Echostar to talk about it.

TiVo also filed a brief regarding EchoStar's objections to some demonstatives of a possible prior art invention called Media Streamer. Echostar objected to some slides that TiVo was to show that illustrate how this Media Streamer device could not record a program while watching it and could not store and extract video at the same time. I guess the labeling wasn't to the courts liking so TiVo has reworded these demonstratives with the language contained in a supplemental claim construction order made in March 2006.​
http://boards.fool.com/Message.asp?mid=23956211&recscode=2


----------



## ChuckyBox

It's worth noting that those notices filed by Echostar are intended to preserve their rights on appeal. They've filed about six of them in the last couple of weeks. TiVo has one or two, as well.


----------



## TiVoCanada

so we are going to find out who won on friday?


----------



## Dan203

Probably not. It said that they were off Wednesday, and possibly Friday for the Good Friday holiday, so they'll only have like half a day on Thursday to deliberate and it doesn't sound to me like either company had a slam dunk case. Then again they could go into the deliberation room, flip a coin and decide the winner in 30 seconds. 

Dan


----------



## jmoak

tuesday's update, out this morning:

$87 million at stake in Marshall patent case trial


----------



## BlackBetty

Hopefully the jury opts to stay on Friday and we hear great news before the holiday weekend!


----------



## blindlemon

Some good news already - and clearly related, IMHO.


----------



## Dajad

jmoak, can you PM me on how you keep finding these. I spent 10 minutes searching the darn site for the udpate and couldn't find it. Thanks again for your link.

*DAY NINE: TiVo-EchoStar Trial - Final Day of Testimony (Tues Apr. 11)*

http://daledietrich.com/imedia/2006...tar-trial-final-day-of-testimony-tues-apr-11/

The April 12 Marshall News Messenger account of the trial (upon which I am wholly reliant) largely presents a recap of some of earlier testimony. However, it does contain a few new testimony details.

*Jim Barton* returned to the stand to rebut allegations made by EchoStar's witnesses claims that "trick play" technology elements existed in products prior to TiVo's May 15, 2001 patent grant. Barton also refuted Ergen's prior testimony: (i) that the only technology TiVo had to offer was a feature that tracked viewing habits of users; (ii) that these features invaded users privacy; and (iii) that TiVo wanted to sell that information to advertisers and split the proceeds with Echostar. _[Dale's Note: This earlier Ergen testimony was not previously reported as far as I know]_. Barton testified that this was not true, that as users of TiVo they did not want their privacy violated either, that TiVo's method of aggregating data in no way personally identified individual users and that the the FTC gave TiVo a clean bill of health saying it obeyed the letter and spirit of all privacy laws. On cross-examination Echostar's lawyer attempted to refute Barton's claims that TiVo created a cost-effective DVR by pointing out TiVo's boiler-plate language in its Jan 31, 2004 10-K where it said: "Consumers may not be willing to pay for our products and services since they are already paying monthly fees for cable and satellite connections." _[Dale's Note: What this gets Echostar I don't understand - this statement was nothing more than a typical boilerplate statement, the likes of which are made in every public company's SEC filings.]_

TiVo also called *Professor Jim Storer *of Brandeise University as a patent 'validity' expert to counter Echostar's 'invalidity' expert, Dr. Nathaniel Polish. The essence of Polish's earlier testimony was that some 50 DVR-related "prior art" patents pre-existed TiVo's patent, thereby nullifying TiVo's patent claims. Storer testified that Tivo's patent is "absolutely" valid: "This is pioneering technology ... ure, all these bits and pieces - that were very expensive - existed before, but I have seen no prior system that does all these steps ...". The prior patents dealt with "little pieces of technology ... in incremental steps ... [t]here's a big difference between these and the gigantic leap of putting all of them together as is done in the Barton patent".

Both sides rested their case Tuesday. Judge Folsom is using today (Wednesday) to rule on various issues and to prepare his charge to the jury. He advised the jury to bring a sack lunch on Thursday to start their deliberations.


----------



## ZeoTiVo

"[t]here's a big difference between these and the gigantic leap of putting all of them together as is done in the Barton patent".

best quote of the Trial so far. That should stand out to a member of the Jury and the Judge and any other non-technical type. Seems that this adn the specific media switch of TiVo Inc's design are the crux of the case.


----------



## BlackBetty

any thoughts on how long the jury will deliberate for?


----------



## Azlen

BlackBetty said:


> any thoughts on how long the jury will deliberate for?


 I don't think the lawyers, the judge or even the jurors know the answer to that question right now.


----------



## BlackBetty

Azlen said:


> I don't think the lawyers, the judge or even the jurors know the answer to that question right now.


  But folks here that might be familar with jury deliberations for corporate patent infringement cases might have an idea of how long these things tend to last.


----------



## ChuckyBox

BlackBetty said:


> But folks here that might be familar with jury deliberations for corporate patent infringement cases might have an idea of how long these things tend to last.


It totally depends on the cafeteria in the Federal Building. A day or so if it is bad, three days or so if it is really, really good.


----------



## 1283

Didn't the judge ask the jury to bring sack lunches?


----------



## BlackBetty

ChuckyBox said:


> It totally depends on the cafeteria in the Federal Building. A day or so if it is bad, three days or so if it is really, really good.


HAHAHAHAHAHAAHAHAHAAHAHHAHAHAHAHAHAHAHAHAHHAHAHAAHAHAHA


----------



## SullyND

When I was on a jury in a criminal trial in Cook County we didn't get to use the cafeteria; We had lunch rooms and were served from a special buffett line. I swear it was yesterdays prison food.


----------



## Billy66

BlackBetty said:


> any thoughts on how long the jury will deliberate for?


Let's not discount the idea of settlement at this point. It doesn't seem like a slam dunk for either side, so if they are both slightly nervous we have the breeding ground of settlement.


----------



## jmoak

AP story, out this morning:

TiVo case against EchoStar headed to jury

No local story so far, but I'll keep looking.


----------



## BlackBetty

jmoak said:


> AP story, out this morning:
> 
> TiVo case against EchoStar headed to jury
> 
> No local story so far, but I'll keep looking.





> TiVo has lost nearly $650 million and gone through several rounds of layoffs at its Alviso, Calif., headquarters since 1997.


I don't remember ever hearing about layoffs at TiVo.


----------



## cap

BlackBetty said:


> I don't remember ever hearing about layoffs at TiVo.


I agree, this would have had the doom sayers going nuts if this had happened.


----------



## jmoak

If you watch the stories today you'll notice many small "inaccuracies" such as that one.

There was a story yesterday from the AP that would have you believe that tivo and directv have been fighting over patents.

(Tivo and Directv) will end their quibbling over patent rights.

Here's another from Forbes:



> from forbes.com
> TiVo and DirecTV are in focus amid news of their new deal. The two companies extended their advertising relationship for three years and *ended their patent dispute.*


The spin should be in full motion by noon.


----------



## ChuckyBox

We're going to the jury. The judge denied both parties' motions for matter-of-law judgements this morning, and with no settlement, it looks like we're going the distance.


----------



## davezatz

jmoak said:


> There was a story yesterday from the AP that would have you believe that tivo and directv have been fighting over patents.


They got that info straight from the horse's mouth... check out TiVo's press release:

http://www.tivo.com/cms_static/press_85.html



> ...
> 
> In addition, TiVo and DIRECTV agree not to assert patent rights against the other.
> 
> ...
> 
> "importantly respects the value of our intellectual property as well."





ChuckyBox said:


> with no settlement, it looks like we're going the distance.


That info in yesterday's press release was probably timed to encourage Dish to settle, don't you think?


----------



## dswallow

davezatz said:


> They got that info straight from the horse's mouth... check out TiVo's press release:
> 
> http://www.tivo.com/cms_static/press_85.html


That says absolutely nothing about there ever having been a dispute are argument between the two parties; it says the two parties have agreed to not have a dispute over them.

The articles that are coming out are implying there was an ongoing dispute concerning the patent rights.


----------



## HiDefGator

BlackBetty said:


> I don't remember ever hearing about layoffs at TiVo.


Small layoffs are common at engineering companies and seldom reported in the press. I don't find it that hard to believe that Tivo has had layoffs in the last 8 years.


----------



## HiDefGator

dswallow said:


> That says absolutely nothing about there ever having been a dispute are argument between the two parties; it says the two parties have agreed to not have a dispute over them.
> 
> The articles that are coming out are implying there was an ongoing dispute concerning the patent rights.


And I'm sure there were internal patent disputes over the capabilities of the R15. But they just haven't gone public yet.

Why file a legal complaint against your single biggest customer until you win the case against a non-customer first.


----------



## jmoak

davezatz said:


> They got that info straight from the horse's mouth...


There's a lot of difference between "TiVo and DIRECTV agree not to assert patent rights against the other" and "ended their patent dispute." The latter insinuates that they are currently in some sort of patent dispute, which is not true.


davezatz said:


> That info in yesterday's press release was probably timed to encourage Dish to settle, don't you think?


Rumor has it that echostar has been trying to settle for months now and tivo would have nothing to do with it.

and as far as rumors go,

Why would they file a legal complaint against a company that is rumored to be funding the legal battle against their biggest competitor?


----------



## ZeoTiVo

and the spin on the DirectTV extension begins.

maybe DirectTV can do a new ad campaign

choosing Sat. broadcasting? Go with DirectTV, patently better!


----------



## ChuckyBox

jmoak said:


> Rumor has it that echostar has been trying to settle for months now and tivo would have nothing to do with it.


There is trying to settle and there is trying to settle. I'm sure TiVo would have settled if E* had offered a "reasonable" licensing fee on a per subscriber-month basis.


----------



## Dajad

TiVo Case Against EchoStar Headed to Jury

http://daledietrich.com/imedia/2006/04/13/tivo-case-against-echostar-headed-to-jury/

The Jury in the TiVo trial is expected to commence deliberations today after opposing lawyers give closing arguments and Judge Folsom gives his final charge to the jury. It is unclear whether they will deliberate at all on Friday (perhaps for a half day as Texas state departments and agencies work a half day on Good Friday). Judge Folsom denied both parties' last-minute motions for matter-of-law judgments this morning. No settlement has been reported.

I've linked to a few external stories (several are AP repeats) that give a few more odds and sods , statements by the parties, summaries of the trial etc. If there are any other original (ie: non-AP) accounts please add here and I'll link them into the story.

...Dale


----------



## ChuckyBox

davezatz said:


> That info in yesterday's press release was probably timed to encourage Dish to settle, don't you think?


It's hard to say. They probably couldn't (or didn't want to) announce anything that could be brought up during the trial and possibly be grounds for a delay, mistrial, etc. I'm not sure of all the legal ramifications of that kind of thing, but it is pretty clear that they held this announcement until testimony had finished.

I think it does encourage Echostar to settle. They look at the possible damage from the lawsuit and compare it to the reality that DTV is willing to pay up, and they make a better offer. But the real impact is on the rest of the industry. DTV signs on, E* either settles or loses the case, and the pattern is established. TiVo makes deals with everybody, and we don't need to worry about our shiny new S3s becoming doorstops for the next few years. If TiVo loses the case, of course, we're just back to where we were, with the addition of the DTV extension (which really does solidify TiVo's financial position).


----------



## BBURNES

Chucky Box,

Wouldn't a settlement create a weaker position for TiVo as it attempts to license it's technology to a broader group of users/patent stealers?

We know they are attempting to sign licensing agreements with various cable companies (beyond Comcast). A "decided" case, on other hand, creates precedent and a much stronger bargaining position with cable companies.

Thoughts?


----------



## Kingfish

This trial is taking place in a city with a population of just over 20,000 near where I live. There has been very little media coverage of the trial in the area.


----------



## RARamaker

ChuckyBox said:


> I think it does encourage Echostar to settle. They look at the possible damage from the lawsuit and compare it to the reality that DTV is willing to pay up, and they make a better offer. But the real impact is on the rest of the industry. DTV signs on, E* either settles or loses the case, and the pattern is established.


I think it is important to note that DTV is only paying license fees for TiVo based systems, not NDS systems. Thus, TiVo is not getting a thing for the potentially infringing NDS R-15 and HR20 systems.

Russ


----------



## MichaelK

BBURNES said:


> Chucky Box,
> 
> Wouldn't a settlement create a weaker position for TiVo as it attempts to license it's technology to a broader group of users/patent stealers?
> 
> We know they are attempting to sign licensing agreements with various cable companies (beyond Comcast). A "decided" case, on other hand, creates precedent and a much stronger bargaining position with cable companies.
> 
> Thoughts?


Sure but losing gives them almost no position to bargain from.

Its about what they feel like is their best move. I would guess if the choice is settle or get a verdict and the settlement offer is reasonable (ergen is notoriously cheap- so thats a big if) than you take the settlement if you think you might lose and you go for the verdict if you feel like you can win.

Of course if the settlement offer sucks than there is no point in taken it. And if the settlement offer is a stupendous than maybe you forgo a verdict and take the money and run.

Then there might be 300 other factors- maybe they fell its their last shot and nothing short of winning a verdict saves them. On the flip side, maybe they think they are sitting fine as a business and the verdict isnt a necessity so its worth the all or nothing gamble for a big payday.

Could be lots of reasons they decide one way or the other


----------



## ZeoTiVo

RARamaker said:


> I think it is important to note that DTV is only paying license fees for TiVo based systems, not NDS systems. Thus, TiVo is not getting a thing for the potentially infringing NDS R-15 and HR20 systems.
> 
> Russ


we know for sure TiVo and DirectTV agree not apply patents against each other for 3 years. No idea if NDS is directly covered by that. I would think TiVo would wait to do anything against NDS used by directTV though.

I agree with other posters that this shows that TiVo is open to *reasonable* liscensing deals which will play well with any appeals and the current Jury if they hear anything about it.

Also help other companies come with reasonable offers to the table if TiVo does get to go on a liscensing spree.


----------



## Dajad

BBURNES said:


> Chucky Box,
> 
> Wouldn't a settlement create a weaker position for TiVo as it attempts to license it's technology to a broader group of users/patent stealers?
> 
> We know they are attempting to sign licensing agreements with various cable companies (beyond Comcast). A "decided" case, on other hand, creates precedent and a much stronger bargaining position with cable companies.
> 
> Thoughts?





MichaelK said:


> Sure but losing gives them almost no position to bargain from.
> 
> Its about what they feel like is their best move. I would guess if the choice is settle or get a verdict and the settlement offer is reasonable (ergen is notoriously cheap- so thats a big if) than you take the settlement if you think you might lose and you go for the verdict if you feel like you can win.
> 
> Of course if the settlement offer sucks than there is no point in taken it. And if the settlement offer is a stupendous than maybe you forgo a verdict and take the money and run.
> 
> Then there might be 300 other factors- maybe they fell its their last shot and nothing short of winning a verdict saves them. On the flip side, maybe they think they are sitting fine as a business and the verdict isnt a necessity so its worth the all or nothing gamble for a big payday.
> 
> Could be lots of reasons they decide one way or the other


BBurnes is EXACTLY right. TiVo's best move is to see this through. TiVo NEEDS this lawsuit victory in order to chase down all the other PVR manufactures for license fees and joint ventures. I'd be EXTREMELY suprised if TiVo settled for ANY amount. The precedential value of this trial is HUGE for TiVo.

...Dale


----------



## HDTiVo

Is the Kool Aid free today, or what?


----------



## ChuckyBox

BBURNES said:


> Wouldn't a settlement create a weaker position for TiVo as it attempts to license it's technology to a broader group of users/patent stealers?


I'm not an insider or a lawyer so there is no way I can know all of the considerations facing the two sides, or the subtle legal implications of all of this. Nor have I done a technology assessment of all of the DVRs out there, as TiVo undoubtably has. But, from a basic strategic point of view, a settlement is almost as good as a win. If, after shooting its wad in court, E* settles on terms that are favorable to TiVo (basically a monthly per-DVR fee, and maybe some cash to cover past licensing), it tells the world that TiVo's patent is solid enough to pay off, rather than fight.

As far as its relationship to potential cases against other DVR providers, this case would show that the patent withstood attacks on validity and enforceability, but would not establish infringement for any other DVRs. The precedent is worth something, but it isn't worth a whole lot more than E*'s capitulation. And the risk of letting the jury decide the case is substantial. So, assuming that we don't hear back from the jury quickly, I wouldn't be surprised to see a settlement announced Monday morning.

Then again, E* may just wait for the verdict, and if they lose, negotiate a settlement then (as opposed to fighting it out on appeal). TiVo would, of course, be only too happy to settle at that point, it's patent being fully validated.


----------



## ChuckyBox

BTW, semi-reliable sources are saying that the jury is out -- i.e., currently in deliberations. So we'll have a verdict soon, and we can end all this speculation about the trial and get back to other topics. Like speculating about the appeal.


----------



## MichaelK

Dajad said:


> BBurnes is EXACTLY right. TiVo's best move is to see this through. TiVo NEEDS this lawsuit victory in order to chase down all the other PVR manufactures for license fees and joint ventures. I'd be EXTREMELY suprised if TiVo settled for ANY amount. The precedential value of this trial is HUGE for TiVo.
> 
> ...Dale


I tend to agree- but the reality is if they lose- basically - "it's over johny..."


----------



## Hew

ChuckyBox said:


> BTW, semi-reliable sources are saying that the jury is out -- i.e., currently in deliberations. So we'll have a verdict soon, and we can end all this speculation about the trial and get back to other topics. Like speculating about the appeal.


Soon meaning today, or soon meaning any day now. Can the jury deliberate into the night and on through morning in order to get everything done, or do they have to stop deliberating at some point of the day?

5.46 PM:
Stock price just went up 10% after hours any news out?

5:48 pm:
Make that 20% now...


----------



## 1283

TiVo won!!!


----------



## Hew

http://yahoo.reuters.com/stocks/Quo...6-04-13_22-00-43_WEN4580&symbol=TIVO.O&rpc=44

Tivo won its official!!!

No more TiVo Doomsday Articles!!!

Not that it really matters in the long term, but how much did they win? Anyone?


----------



## BlackBetty

Yes Yes Yes Yes Yeeeeeeesss!!!!!!!!!!!!!!!!!


----------



## ZeoTiVo

S
W
E
E
T


----------



## Firegeek

Awesome. Bye bye, rest of the DVR market.

Congrats to everyone at TiVo, Inc.


----------



## peteypete

Congrats TIVO, well deserved. 

What' the damages awarded at?


----------



## Hew

Congrats to all TiVo employees!!!


----------



## peteypete

Hew said:


> http://yahoo.reuters.com/stocks/Quo...6-04-13_22-00-43_WEN4580&symbol=TIVO.O&rpc=44
> 
> No more TiVo Doomsday Articles!!!
> 
> Not that it really matters in the long term, but how much did they win? Anyone?


"Tivo Future uncertain despite Massive victory!" The clods will still write.


----------



## shady

Congratulations! that's great news


----------



## jmoak

WhooHoo!!!


----------



## BlackBetty

peteypete said:


> "Tivo Future uncertain despite Massive victory!" The clods will still write.


aint that the truth.


----------



## bitTraveler

Congrats TiVo!! :up:

Bloomberg coverage

bit


----------



## ZeoTiVo

PS - thanks to Dajad and Jmoak for great coverage of the trial in a thread full of lively discussion.

awaiting naysayer - they gonna loose - spin


----------



## dswallow

Funny... the spin apparently is this verdict will "raise the cost of digital video recorders in the home."


----------



## jmoak

ZeoTiVo said:


> PS - thanks to Dajad and Jmoak for great coverage of the trial in a thread full of lively discussion.
> 
> awaiting naysayer - they gonna loose - spin



Thanks! But all I did was post links! Thanks goes to goggle and marshallnewsmessenger.com.

And to Dale for the summaries and analysis!


Yeah, TiVo!!!


----------



## andyf

$73 million ain't to shabby.

http://biz.yahoo.com/ap/060413/tivo_patent.html?.v=2


----------



## dmdeane

Hew said:


> http://yahoo.reuters.com/stocks/Quo...6-04-13_22-00-43_WEN4580&symbol=TIVO.O&rpc=44
> 
> Tivo won its official!!!
> 
> No more TiVo Doomsday Articles!!!
> 
> Not that it really matters in the long term, but how much did they win? Anyone?


*YES!!!!!* :up: :up: :up:   

In your face, doomsayers! Let's see those "TiVo death watch" stories, now! 

What am I saying. There's too many pundits too heavily invested into the "TiVo is doomed" meme to give up now. Like the Apple death watch people, they won't get on board the TiVo-bandwagon until *years* after it is bleeding obvious to everyone else that TiVo is here to stay.


----------



## dmdeane

dswallow said:


> Funny... the spin apparently is this verdict will "raise the cost of digital video recorders in the home."


Haha.....gotta blame TiVo for *something*!


----------



## ZeoTiVo

andyf said:


> $73 million ain't to shabby.
> 
> http://biz.yahoo.com/ap/060413/tivo_patent.html?.v=2


I like this little human interest tidbit at the end of the linked story

"No one on the 10-person jury owns a TiVo, although the judge said he does."


----------



## hammer32

ZeoTiVo said:


> PS - thanks to Dajad and Jmoak for great coverage of the trial in a thread full of lively discussion.


Yes, thank you for the updates and congrats to TiVo!


----------



## davezatz

No stock talk is allowed here, but I will allude to a large gain in after hours trading.


----------



## 1283

ZeoTiVo said:


> "No one on the 10-person jury owns a TiVo"


yet


----------



## lajohn27

HDTiVo said:


> Is the Kool Aid free today, or what?


Yes a round of Kool Aid (tm) is on the house today. Courtesy of Echostar Communications.

Would you like grape or orange? I find that grape goes especially good with crow.



J


----------



## dmdeane

andyf said:


> $73 million ain't to shabby.
> 
> http://biz.yahoo.com/ap/060413/tivo_patent.html?.v=2


I assume that TiVo and Dish will at some point (either now, or after Dish's appeals fail) negotiate some kind of licensing deal. Better still would be an additional agreement that would have TiVo develop a version of the TiVo software to run on Dish's existing HD DVR hardware, similar to TiVo's deal with Comcast. Really, it's in Dish's interests, too. I hope they realize that, rather than dragging this thing out on appeals.


----------



## shady

ZeoTiVo said:


> I like this little human interest tidbit at the end of the linked story
> 
> "No one on the 10-person jury owns a TiVo, although the judge said he does."


I was just about to post the same 

I wonder if that's grounds for an appeal


----------



## jfh3

Congrats to Tivo!

As a shareholder, I put my money where my mouth is a number of years back.

Never had a doubt. Wondered if we'd ever see a trial, but never doubted the outcome!

It may be a very long time before Tivo sees the money, but the precident is far more important anyway. :up: :up: :up: 

Wonder if April 13th will become Blue Moon II?


----------



## jfh3

dmdeane said:


> I hope they realize that, rather than dragging this thing out on appeals.


LOL! You realize that Charlie Ergen is the CEO, right? He'd probably rather die than settle. I'll bet the appeal has already been filed.


----------



## DancnDude

Congrats TiVo!! :up: :up: :up:


----------



## morgantown

Yea! Two decent days for TiVo in a row. Let's hope for many more...

Congrats TiVo!!!


----------



## dmdeane

jfh3 said:


> LOL! You realize that Charlie Ergen is the CEO, right? He'd probably rather die than settle. I'll bet the appeal has already been filed.


Well, that's what I always hear about him, so you are probably right. But he's screwing his shareholders and his customers, however, by dragging this out. He's not going to win. He's going to have to pay up eventually. The sooner he faces the reality, the better for everyone.

I suppose we should be thankful that Ergen is so stubborn. In a way, he was the perfect foil for TiVo, the perfect "test case" to take to court. Without Ergen TiVo might have had to go to court with a weaker case, or not go to court at all, and simply put up with not being able to defend its patents.

Any word of triple damages? I assume that is up to the judge to decide?


----------



## davezatz

jmoak said:


> marshallnewsmessenger.com.


Yeah, those guys were awesome! They should charge for that kind of coverage.


----------



## davezatz

TiVo's official response:



> "TiVo is pleased that the jury found that TiVo's pioneering time
> warping patent is valid and that EchoStar has been infringing on our
> intellectual property. TiVo is particularly gratified that the jury found
> that EchoStar willfully infringed on our patent and the consequences their
> actions had on our overall business. This decision recognizes that our
> intellectual property is valuable and will ensure that moving forward
> EchoStar and any others that want to use our patented technology will be
> required to provide us with compensation.
> TiVo intends to seek a permanent injunction against EchoStar's DVR
> products.
> TiVo is built on a strong foundation of innovative technology and
> intellectual property. We now hold more than 87 patents in our worldwide
> patent portfolio and have more than 138 patent applications pending. TiVo
> has a long list of licensees in the consumer electronics, cable and
> satellite markets, and we will continue to license our technology under
> appropriate circumstances and arrangements. We will also continue to
> vigorously defend our intellectual property for the benefit of our
> licensees and shareholders."


----------



## ZeoTiVo

I like the irony of the Dish installer ad right at the bottom of the official TiVo reply on your site  


a permanent injunction. Wow


----------



## davidmin

Heh, I guess that means that TiVo could force Charlie to turn off his DVR's, like what almost happened with Blackberrys. Let's see how he squirms out of that.

David


----------



## davezatz

ZeoTiVo said:


> I like the irony of the Dish installer ad right at the bottom of the official TiVo reply on your site


That is ironic! Ha! Google Ads work by vendors/retailers bidding on keywords. It's possible 'Dish' or 'Echostar' triggered it, though most likely 'TiVo' is the culprit. Maybe they'll change their strategy or product once they read the news. 

(Can I tell you guys how bummed I am that I won't have any shares of TiVo stock to unload tomorrow at 9:30AM?)


----------



## jfh3

davezatz said:


> (Can I tell you guys how bummed I am that I won't have any shares of TiVo stock to unload tomorrow at 9:30AM?)


Probably just as well - the market is closed tomorrow.


----------



## burnsy

EchoStar Statement Regarding Verdict in TiVo Inc. v. EchoStar 
Communications Corp. Lawsuit 

ENGLEWOOD, Colo.--(BUSINESS WIRE)--April 13, 2006 EchoStar has issued the following statement regarding the verdict in the TiVo Inc. v. EchoStar Communications Corp. lawsuit: 

"This is the first step in a very long process and we are confident we will ultimately prevail. Among other things, we believe the patent - as interpreted in this case - is overly broad given the technology in existence when TiVo filed its patent. We believe the decision will be reversed either through post-trial motions or on appeal. Additionally, the Patent Office is in the process of re-examining TiVo's patent, having determined there is a substantial question concerning the validity of the patent. 

DISH Network subscribers can continue to use the receivers in their homes, including their DVRs. Furthermore, TiVo dropped their claim that EchoStar's Dishplayer 7200 DVR infringes their patent. 

EchoStar looks forward to trial of its DVR patent case against TiVo in February 2007."


----------



## davezatz

jfh3 said:


> Probably just as well - the market is closed tomorrow.


Doh! Now you know why I'm not involved in stock.  I'll leave that to the smarter folks.



burnsy said:


> EchoStar Statement Regarding Verdict in TiVo Inc. v. EchoStar
> Communications Corp. Lawsuit


Amazing how both sides claim victory.


----------



## jmoak

burnsy said:


> EchoStar Statement Regarding Verdict in TiVo Inc. v. EchoStar
> Communications Corp. Lawsuit ...
> EchoStar looks forward to trial of its DVR patent case against TiVo in February 2007."


Tivo looks forward to their injunction against any sales of Echostar dvrs.

Echostar customers look forward to dvr-less service through February 2007.


----------



## ChuckyBox

jmoak said:


> Tivo looks forward to their injunction against any sales of Echostar dvrs.
> 
> Echostar customers look forward to dvr-less service through February 2007.


Echostar's risk management team looks forward to meeting with the Company's Board of Directors and getting this thing settled before Charlie costs the Company a billion dollars in damages, legal fees, lost customers, and replacement equipment.


----------



## Gregor

EchoStar could hardly say otherwise.


----------



## ZeoTiVo

burnsy said:


> DISH Network subscribers can continue to use the receivers in their homes, including their DVRs. Furthermore, TiVo dropped their claim that EchoStar's Dishplayer 7200 DVR infringes their patent.
> 
> EchoStar looks forward to trial of its DVR patent case against TiVo in February 2007."


Echostar stockholders are not looking forward to having to take Dish to court to keep the CEO from driving the company into the ground over what DVR they offer customers


----------



## dwgsp

Tivo Wins!!!!!!!

http://news.yahoo.com/s/ap/20060413...juBWxWs0NUE;_ylu=X3oDMTA3bGI2aDNqBHNlYwM3NDk-


----------



## HomieG

dwgsp said:


> Tivo Wins!!!!!!!
> 
> http://news.yahoo.com/s/ap/20060413...juBWxWs0NUE;_ylu=X3oDMTA3bGI2aDNqBHNlYwM3NDk-


Was there really any doubt they wouldn't? I am just surprised at the low amount of the damages awarded.


----------



## dmdeane

HomieG said:


> Was there really any doubt they wouldn't? I am just surprised at the low amount of the damages awarded.


Jury said that the patent was willfully violated, so judge could triple the damages. That is yet to be determined.

Not sure why the jury lowered the award below what TiVo was asking for. It's only an estimate anyway.


----------



## 1283

dmdeane said:


> Not sure why the jury lowered the award below what TiVo was asking for. It's only an estimate anyway.


Jury felt that TiVo was not actively trying to protect its patent, so award was based on damages since the suit against Dish was filed (Jan 2004).


----------



## jmoak

dmdeane said:


> Not sure why the jury lowered the award below what TiVo was asking for. It's only an estimate anyway.





> The jury awarded $73.99 million instead of $87 million because it was not convinced TiVo had done everything it could to promote its patent, which was approved in 2001, according to the jury forewoman. As a result, jurors based damages starting in January 2004, when TiVo filed the lawsuit.


AP - TiVo wins damages in suit vs. EchoStar


----------



## ufo4sale

So is it up to the judge and not the jury if TiVo gets triple damages?


----------



## BlackBetty

ufo4sale said:


> So is it up to the judge and not the jury if TiVo gets triple damages?


exactly


----------



## dmdeane

c3 said:


> Jury felt that TiVo was not actively trying to protect its patent, so award was based on damages since the suit against Dish was filed (Jan 2004).


So if you don't sue you aren't actively trying to defend your patents? Negotiating, writing letters, sending warnings, etc, does not count? I find that hard to believe. It ends up rewarding Echostar's delaying tactics; they get to skate up to the point at which TiVo finally decided to go to court.


----------



## mearlus

MARSHALL, Texas - A federal jury awarded 
TiVo Inc. more than $73 million in damages Thursday in a patent infringement lawsuit against EchoStar Communications Inc.

http://news.yahoo.com/s/ap/20060413...juBWxWs0NUE;_ylu=X3oDMTA3bGI2aDNqBHNlYwM3NDk-


----------



## LostCluster

TiVo wins the trial round... let the appeal process begin.


----------



## mearlus

Oops, I should have scrolled up a bit before posting the link  I didn't see it  

Sorry for duplicate posting


----------



## Stainless Steele

c3 said:


> Jury felt that TiVo was not actively trying to protect its patent, so award was based on damages since the suit against Dish was filed (Jan 2004).


I don't agree with this assessment. If you look @ the patent case right now with ebay on it's buy it now..you see they the supream court said it did not matter how long the other company waiting file the suit it's mute point.


----------



## ChuckyBox

Stainless Steele said:


> I don't agree with this assessment. If you look @ the patent case right now with ebay on it's buy it now..you see they the supream court said it did not matter how long the other company waiting file the suit it's mute point.


It wasn't the filing, it was when Echostar received notice. There are two ways to give notice, 1) you actually give notice by sending a letter or filing a suit, or 2) you label your products with the patent number (and there is a bunch of law talkin' jibberish about how that has to be done). Since TiVo didn't send a letter, and Echostar argued that TiVo didn't label their boxes fully, the jury apparently found that TiVo couldn't begin collecting damages until it actually filed suit.


----------



## HookedOnTivo

mearlus said:


> MARSHALL, Texas - A federal jury awarded
> TiVo Inc. more than $73 million in damages Thursday in a patent infringement lawsuit against EchoStar Communications Inc.
> 
> http://news.yahoo.com/s/ap/20060413...juBWxWs0NUE;_ylu=X3oDMTA3bGI2aDNqBHNlYwM3NDk-


Congrats TiVo! :up: :up: :up:

If you do ending up getting that $73million, how about bringing back lifetime service?


----------



## ChuckyBox

Here is the historic form returned by the jury:


----------



## samo

jmoak said:


> Tivo looks forward to their injunction against any sales of Echostar dvrs.
> 
> Echostar customers look forward to dvr-less service through February 2007.


Not exactly. Although win in court is huge for TiVo (not only in terms of the award amount, but future licencing potential), it hardly makes a dent for E*. All they have to do is to post the bond in a amount of the award while case is being appealed. Historically 40% of patent awards are overturned by appeals court and there is also a chance (historically very small) that patent office will invalidate TiVo patent. Also, historically Charlie fights to the end, but in a last second strikes a deal. I'm almost willing to place a wager that at the end E* will strike a deal with TiVo for some kind of development contract for new hardware/software in exchange for mutually dropping lawsuits against each other. So, overall it is a very good news for E* users - they have a very good chance that TiVo hardware and/or software will be available from Dish.


----------



## Dajad

jfh3 said:


> LOL! You realize that Charlie Ergen is the CEO, right? He'd probably rather die than settle. I'll bet the appeal has already been filed.


If Echostar appeals, there's a good chance that TiVo will seek, and receive, an interim injunction against Echostar. It may not be feasible to operate a business if Echostar is enjoined from providing PVR services during an appeal that could last years.

If there is an appeal, we'll need to watch closely for the inevitable move by TiVo to obtain an injunction.

And, the $73 million may not be the end of the story. Trebble damages for wilful infringement may still be available.

...Dale.

P.S. Whoop Whoop!! Hurray!


----------



## Dajad

burnsy said:


> EchoStar Statement Regarding Verdict in TiVo Inc. v. EchoStar
> Communications Corp. Lawsuit
> 
> Additionally, the Patent Office is in the process of re-examining TiVo's patent, having determined there is a substantial question concerning the validity of the patent.


Yes, and waiting for the patent office to overturn the patent worked really well for RIM didn't it!! 

...Dale


----------



## Dajad

HookedOnTivo said:


> Congrats TiVo! :up: :up: :up:
> 
> If you do ending up getting that $73million, how about bringing back lifetime service?


... and an FSI! 

...Dale


----------



## cwerdna

BlackBetty said:


> I don't remember ever hearing about layoffs at TiVo.


They definitely have had at least one round of layoffs, like this http://news.com.com/2100-1040-255400.html.

On a different note, congrats to TiVo on the case! Yay! :up:


----------



## dmdeane

samo said:


> Historically 40% of patent awards are overturned by appeals court


I read somewhere that when the case was presented before a jury (as was the case with TiVo) the overturn rate was considerably less than 40%. Can't remember where I read that right now though.


> and there is also a chance (historically very small) that patent office will invalidate TiVo patent.


Very small chance of that. Unlike RIM, Echostar doesn't have the entire political establishment in Washington DC hooked on their services, so there won't be any political pressure to overturn. In fact if there is any political pressure on the patent office it's more likely to be pro-TiVo pressure. And after the RIM thing I think the patent office would be reluctant to have another high profile patent overturned so soon.


> Also, historically Charlie fights to the end, but in a last second strikes a deal. I'm almost willing to place a wager that at the end E* will strike a deal with TiVo for some kind of development contract for new hardware/software in exchange for mutually dropping lawsuits against each other. So, overall it is a very good news for E* users - they have a very good chance that TiVo hardware and/or software will be available from Dish.


That would be ideal.


----------



## dmdeane

cwerdna said:


> They definitely have had at least one round of layoffs, like this http://news.com.com/2100-1040-255400.html.
> 
> On a different note, congrats to TiVo on the case! Yay! :up:


The was four years ago, though, which is like an eternity in DVR time.


----------



## Dajad

Better later than never ... but if you click on the link, you'll get to see my updated victory graphic! 

http://daledietrich.com/imedia/2006/04/13/196/

The jury deliberated for less than half a day before awarding TiVo $73,991,964 in lost profits and royalty damages. The award was less than the $87M Tivo sought. The jurors thought TiVo had not done everything it could to protect its patent. The patent was granted in 2001, but the jurors calculated the damage award starting in January 2004, when TiVo filed the lawsuit. As the jury found Echostar wilfully infringed, the judge could treble the damage award. Echostar is vowing to appeal. TiVo has said it will next seek an permanent injunction. TiVo will no doubt be seeking license fees from both PVR manufactures such as Cisco/Scientific Atlanta, Motorola and NDS, and all U.S.-based cable companies using competitive PVRs such as Time Warner and Cablevision.

Thanks for the Jury Verdict Forms Chucky.

...Dale


----------



## BlackBetty

HDTiVo said:


> Is the Kool Aid free today, or what?


Interesting that you haven't posted yet about this. Hopefully you are not too upset about the outcome


----------



## MMG

From: www.skyreport.com

TiVo Wins Jury Decision in Lawsuit Against DISH
Late Thursday, the jury handling the patent infringement case TiVo filed against EchoStar handed the DVR pioneer a victory.

Specifically, the jury found that TiVo's time warping patent is valid and that EchoStar was infringing on TiVo's intellectual property. The trial took place in U.S. District Court, Eastern District in Texas.

In a statement, TiVo said it's "particularly gratified that the jury found that EchoStar willfully infringed on our patent and the consequences their actions had on our overall business. This decision recognizes that our intellectual property is valuable and will ensure that moving forward EchoStar and any others that want to use our patented technology will be required to provide us with compensation."

TiVo said it intends to seek a permanent injunction against EchoStar's DVR products.

In a separate statement, EchoStar said, "This is the first step in a very long process and we are confident we will ultimately prevail. Among other things, we believe the patent - as interpreted in this case - is overly broad given he technology in existence when TiVo filed its patent."

EchoStar said it believes the decision ultimately will be reversed either through post-trial motions or on appeal. "Additionally, the Patent Office is in the process of re-examining TiVo's patent, having determined there is a substantial question concerning the validity of the patent," EchoStar said.

EchoStar added that it looks forward to a trial of its DVR patent case against TiVo in February 2007.

The satellite TV company also stressed that DISH Network subscribers can continue to use their receivers in their homes, including DVRs. Furthermore, TiVo dropped their claim that EchoStar's DISHplayer 7200 DVR infringes their patent, the company said.


----------



## mtchamp

News reports that I have seen so far, have all been in error with regard to the date from which the jury decided TiVo deserved to receive damages for lost business and royalties due to infringement. News reports say the damages were calculated based on the date of the filing of the lawsuit against Echostar on January 5, 2004.

TiVo received less than the 87 million that their expert witness determined they were owed because the jury decided that TiVo didn't aggressively protect it's patent and substantially mark it's DVR's as patented from the date TiVo's patent was issued on May 15, 2001. However the jury did decide and is clearly written in on the jury verdict form that Tivo did begin to substantially start marking their DVR's as patented on January 2, 2002. This a date only about 6 and a half months after the patent issue date, not the date of the lawsuit filing of January 5, 2004 as reported by news organizations.

The Barton Time Warp Patent #6,233,389 was filed on July 30, 1998 and issued on May 15, 2001. http://patft.uspto.gov/netacgi/nph-...0&s1=6233389.WKU.&OS=PN/6233389&RS=PN/6233389


----------



## ZeoTiVo

HDTiVo said:


> Is the Kool Aid free today, or what?


Looks like echostar is buying this round.
We are all awaiting your spin..err ... take on this


----------



## dstoffa

MMG said:


> From: www.skyreport.com
> TiVo Wins Jury Decision in Lawsuit Against DISH
> Late Thursday, the jury handling the patent infringement case TiVo filed against EchoStar handed the DVR pioneer a victory.


But what does the monetary award mean for the bottom line? Even if the Tivo win holds up on appeal, does the monetary award even come close to re-couping all the money they have lost over the years?

-Doug


----------



## morgantown

dstoffa said:


> But what does the monetary award mean for the bottom line? Even if the Tivo win holds up on appeal, does the monetary award even come close to re-couping all the money they have lost over the years?
> 
> -Doug


IIRC they have lost 650M to date.

The damages award is not intended in itself to fix TiVo's finances. Dish is a small portion of the DVR pie. The holding up of their patent puts them in a much better position (I wish they would have waited a day to deal with DTV) to get more licensing fees / agreements going forward. The cable co's will be more likely to make a deal with TiVo...


----------



## ChuckyBox

dstoffa said:


> But what does the monetary award mean for the bottom line? Even if the Tivo win holds up on appeal, does the monetary award even come close to re-couping all the money they have lost over the years?


If it is tripled because the infringement was wilful, then it takes a big bite out of TiVo's accumulated losses. It also puts the company in a much better position going forward. And if TiVo gets a licensing deal for around $1/month/DVR from DISH, then they will be profitable almost immediately.

Keep in mind that most of the ~$650M in accumulated losses came through equity financing (TiVo has very little debt), so there is no one to "pay back" except investors who are "paid" through the (hoped for) increase in the company's market value.


----------



## ChuckyBox

morgantown said:


> The cable co's will be more likely to make a deal with TiVo...


According to Tony Wible of Smith Barney Citigroup, who talked extensively with TiVo management last fall, the thing holding up futher cable deals was price (as opposed to "strategy"). In other words, other MSO were open to having TiVo on their systems, but didn't want to pay TiVo's asking price. Wible opined that TiVo would not make any more deals until the patent dispute was resolved, as that would likely have a significant impact on the price negotiations.

Given that Tom Rogers has said that TiVo is "deep" in negotiations with a number of MSOs, I would expect to see a deal or two announced within the six to nine months.

It would be great if TiVo was available to Cox or Time-Warner subscribers -- that would give easy TiVo access to many millions of cable subscribers. And we all know that the more people that have TiVo, the better a place the world becomes. 

Sadly, Charter customers are unlikely to ever enjoy integrated TiVo because of Charter's nepotistic relationship with Moxi. :down: (Though I've heard that Moxi is pretty good.) Charter is likely the next target of a TiVo lawsuit.


----------



## ZeoTiVo

ChuckyBox said:


> Sadly, Charter customers are unlikely to ever enjoy integrated TiVo because of Charter's nepotistic relationship with Moxi. :down: (Though I've heard that Moxi is pretty good.) Charter is likely the next target of a TiVo lawsuit.


Hmm - I have not heard Moxi mentioned in all this patent infringement analysis.
Wonder if they do have something different that is not infringing?


----------



## Dajad

This Fox News article has more comments from the TiVo/Echostar jurors than any other article I've read do far.

http://www.foxnews.com/story/0,2933,191776,00.html


----------



## DixonJDixon

Actually, it's an Associated Press article.


----------



## lajohn27

I doubt Charter or any cableco would be sued directly. They might be enjoined to cases against cableco hardware companies .. Motorola, Sci-ATL etc. But .. there were merely customers of those companies.. I think the course of action is against the hardware manufactorers, not the Charter, TimeWarners etc.

J


----------



## ChuckyBox

lajohn27 said:


> I doubt Charter or any cableco would be sued directly. They might be enjoined to cases against cableco hardware companies .. Motorola, Sci-ATL etc. But .. there were merely customers of those companies.. I think the course of action is against the hardware manufactorers, not the Charter, TimeWarners etc.


The cable companies distribute and make money from DVRs. They are just as big targets as the box makers, and they are the ones TiVo wants to make deals with. But the ones who won't deal are goin' down, man. They're goin' down.


----------



## lajohn27

Right .. and satellite dealers distribute and make money from Echostar PVR's.. but I don't see Circuit City or Radio Shack being sued by TIVO.

J


----------



## segaily

The interesting thing about the cable company boxes is that in many cases the hardware is made by one company and then the software running on the box is made by another company. 

Does TiVo sue the software makers for the trick play features and then the hardware companies for building a media switch.


----------



## dmdeane

mtchamp said:


> TiVo received less than the 87 million that their expert witness determined they were owed because the jury decided that TiVo didn't aggressively protect it's patent and substantially mark it's DVR's as patented from the date TiVo's patent was issued on May 15, 2001. However the jury did decide and is clearly written in on the jury verdict form that Tivo did begin to substantially start marking their DVR's as patented on January 2, 2002. This a date only about 6 and a half months after the patent issue date, not the date of the lawsuit filing of January 5, 2004 as reported by news organizations.


I see. That makes a heck of a lot more sense than what was reported earlier.


----------



## ZeoTiVo

segaily said:


> The interesting thing about the cable company boxes is that in many cases the hardware is made by one company and then the software running on the box is made by another company.
> 
> Does TiVo sue the software makers for the trick play features and then the hardware companies for building a media switch.


well since TiVo wants to put software on those boxes they would protect any software patents. So yes go after them to change anything infringing.

then it becomes a wierd - do they make deals with cable cos or do they get royalties from the hardware makers or both.


----------



## segaily

I just went over and read the dish network forum thread on this topic.

http://www.dbstalk.com/showthread.php?t=56410

It is pretty funny to see what the people on the other side of the fence are saying. They are pretty well convinced that TiVo will loose on appeal and have the patent thrown out by the patent office. Except for the people that think TiVo will be out of business before either of those things happen. 

Ok I may be exaggerating a little but not much.


----------



## ChuckyBox

lajohn27 said:


> Right .. and satellite dealers distribute and make money from Echostar PVR's.. but I don't see Circuit City or Radio Shack being sued by TIVO.


In that capacity, they are acting as agents for Echostar. But the cable companies are not agents of Motorola or SA. In the case of cable, the cable companies are the ones who are inflicting damages on TiVo by offering competing DVRs and service, and the box makers and software makers are inflicting damages by making and selling unlicensed, infringing products. If TiVo recovered damages from an MSO, the MSO would either be indemnified by or would sue the manufacturer to recover the money (unless the product was manufactured under contract, in which case the indemnification would go the other way around).


----------



## Dan203

ChuckyBox said:


> Sadly, Charter customers are unlikely to ever enjoy integrated TiVo because of Charter's nepotistic relationship with Moxi. :down: (Though I've heard that Moxi is pretty good.) Charter is likely the next target of a TiVo lawsuit.


MOXI is OK, but I wouldn't say it's "good". And it's far from the quality of a TiVo. Although I don't really care if Charter gets TiVo because I have every intention of getting a couple of S3 units anyway. 

Dan


----------



## dmdeane

segaily said:


> I just went over and read the dish network forum thread on this topic.
> 
> http://www.dbstalk.com/showthread.php?t=56410
> 
> It is pretty funny to see what the people on the other side of the fence are saying. They are pretty well convinced that TiVo will loose on appeal and have the patent thrown out by the patent office. Except for the people that think TiVo will be out of business before either of those things happen.
> 
> Ok I may be exaggerating a little but not much.


No, you are not exaggerating.

Sheesh, and people call us "kool-aid drinkers".


----------



## ZeoTiVo

dmdeane said:


> No, you are not exaggerating.
> 
> Sheesh, and people call us "kool-aid drinkers".


here are my favorites
"looks to be a bit more of an uphill battle now"

"Furthermore, it is likely that given what the E* legal team knows now of the TiVo case, they will likely roll over them in appeal and clean TiVo's clock in the countersuit."


----------



## ChuckyBox

Dan203 said:


> MOXI is OK, but I wouldn't say it's "good". And it's far from the quality of a TiVo. Although I don't really care if Charter gets TiVo because I have every intention of getting a couple of S3 units anyway.


Good, that means you have money to spend when I find a good speaker sale for you.


----------



## ChuckyBox

ZeoTiVo said:


> "Furthermore, it is likely that given what the E* legal team knows now of the TiVo case, they will likely roll over them in appeal and clean TiVo's clock in the countersuit."


Oy. I think Echostar needs to consider getting a new legal team considering that this one just got utterly crushed. Or better yet, just settle.

"Roll over them" and "clean TiVo's clock?" These people are delusional. Here's who they're up against: http://www.irell.com/attorneys/ShowLawyer.asp?AID=55


----------



## ZeoTiVo

ChuckyBox said:


> Oy. I think Echostar needs to consider getting a new legal team considering that this one just got utterly crushed. Or better yet, just settle.
> 
> "Roll over them" and "clean TiVo's clock?" These people are delusional. Here's who they're up against: http://www.irell.com/attorneys/ShowLawyer.asp?AID=55


looks like an update to that page is in order now.  
But man, the guy won a patent infringement against Sony.

this was just a medium size case to him.


----------



## davezatz

ChuckyBox said:


> "Roll over them" and "clean TiVo's clock?" These people are delusional. Here's who they're up against: http://www.irell.com/attorneys/ShowLawyer.asp?AID=55


Wow - that dude is a bad ass! Now I know why TiVo had to drop Lifetime to save a few pennies - he can't come cheap. They better hope the judge does indeed triple that award. 



> # One of the "Top Ten Trial Lawyers" in the nation, National Law Journal
> # One of the "100 Most Influential Lawyers in America" by the National Law Journal in its triennial survey every year since 1994
> # The Number One Super Lawyer in Southern California (received highest vote total in a poll of 65,000 lawyers) by Los Angeles Magazine in 2004. Number One IP lawyer in California in 2003-04, according to Chambers Global
> # The Best Intellectual Property Lawyer in the nation and one of "12 Superstars" in all practice areas based on a 2001 survey of company directors, law school deans, and lawyers by Corporate Board Member


----------



## ChuckyBox

I don't know why these E* fans are worried anyway. Charlie has plenty of money to pay his bills. This isn't a huge burden for the company. What they should really worry about is Charlie standing in the way of getting this thing settled and having their DVRs turned off.


----------



## Dan203

Looks like most of the people who are worried are investors with stock interest in E*. They're worried that $74M award could hurt their bottom line. 

Dan


----------



## Dan203

ChuckyBox said:


> Good, that means you have money to spend when I find a good speaker sale for you.


I've got the money, but not really the space. Right now I live in a town house, with neighbors on both sides, so I can barely crank up the speakers I have. Maybe some day, when I buy a real house and have a real home theater, I'll let you give me advice on recievers and speakers. 

Dan


----------



## 1283

How much are TiVo's legal costs?


----------



## Dan203

I'm sure that will need to be disclosed to share holders some time soon. Perhaps after the quarter ends at the end of the month?

Dan


----------



## ChuckyBox

Dan203 said:


> I've got the money, but not really the space. Right now I live in a town house, with neighbors on both sides, so I can barely crank up the speakers I have. Maybe some day, when I buy a real house and have a real home theater, I'll let you give me advice on recievers and speakers.


Your receiver is fine for now. Space we can work with. There are lots of very good bookshelf speakers these days that will get you all the way through the midrange. I'm guessing you're mainly a TV/movie guy (being a TCF mod and all), so supplementing those with a sub is just fine. If you were primarily a music guy (and really, really discerning) you might want to hold out for floorstanding speakers to get farther into the bass.

Damn neighbors. I have the same situation. Fortunately my building is well built and my neighbor is also into home theater. Still, there is a fair bit of bass leakage, and I have to keep things lower than I'd like, especially at night. But it isn't all about volume (though that is fun) -- clarity, accuracy, frequency response, and a bunch of other pretentious stuff are the real issues (they all add up to how the speakers sound, so you really just have to listen to them, the rest is BS).

Remember, when you are watching a movie, sound is half the experience.


----------



## ChuckyBox

Dan203 said:


> I'm sure that will need to be disclosed to share holders some time soon. Perhaps after the quarter ends at the end of the month?


They haven't been breaking it out. It is just lumped into General & Administrative Expense. This case, I'd guess is in the ballpark of $20 million so far.

TiVo will ask the judge for legal fees, and we'll see what it is then.


----------



## skanter

Don't know if these were posted -- two stories from NY Times:


Patent Case Win Key to TiVo Survival 


By THE ASSOCIATED PRESS
Published: April 13, 2006
Filed at 9:04 p.m. ET
SAN JOSE, Calif. (AP) -- TiVo Inc. just got a new lease on life. A jury's $73.9 million damage award Thursday to the digital video recording pioneer in its patent lawsuit against EchoStar Communications Corp., gives the struggling company not only a welcome cash infusion but also new leverage to seek additional licensing revenue from the growing number of other DVR providers.
''If they lost the lawsuit, it would have been the death knell for TiVo,'' said Vamsi Sistla, an industry analyst with market research firm ABI Research. ''Now this gives them some breathing room to chug away and try to enter new markets.''
TiVo-based DVRs currently account for less than one-third of the more than 15 million American homes that have some kind of digital video recorder box, but Forrester Research predicts that DVRs -- with or without TiVo's own branded service -- will be found in nearly half of U.S. households by 2009 as cable operators and other electronics makers add DVR features to their equipment.
The TiVo patent at the heart of the Echostar case involved a ''multimedia time warping system'' to pause, rewind or fast-forward live TV programs by recording them on a hard drive -- which are precisely the basic functions that define any DVR.
''TiVo can now go out in the world with the authority and the weight of this case to get additional licensees who can pay them royalties on their boxes,'' said Brad Lyerla, a senior partner at Marshall, Gerstein & Borun LLP in Chicago, an intellectual property law firm.
Legally now, TiVo is standing on high ground.
Even as Echostar appeals the case, Lyerla said the odds remain in TiVo's favor.
The rate of an appellate court reversal in all patent cases is less than 50 percent, Lyerla said, and reversals after a jury trial are even rarer.
Alviso, Calif.-based TiVo has lost nearly $650 million and gone through several rounds of layoffs since its inception in 1997. Aside from one quarter last year when it broke even on a per-share basis, the company has been unprofitable as it struggled to gain new customers amid a growing number of rival offerings.
For its fiscal year that ended Jan. 31, TiVo lost $34.4 million, or 41 cents a share.
''This is one headache behind their backs now, and they can go back to the drawing board to focus on their business and creating value for their shareholders,'' Sistla said.
News of the verdict sent TiVo shares soaring nearly 20 percent, or $1.60, to $9.65 in late-session electronic trading Thursday.


Jury Verdict Is More Good News for TiVo 
	

By THE ASSOCIATED PRESS
Published: April 14, 2006
Filed at 6:46 a.m. ET
MARSHALL, Texas (AP) -- In a case cast as crucial to TiVo's survival, a federal jury decided that EchoStar Communication Corp. copied key technologies from the digital video recording pioneer and awarded nearly $74 million.
The 10-member jury spent just about two hours, including a cigarette break, to decide that the parent of the Dish satellite network had infringed nine sections of TiVo's patent on technology for digital video recorders that let viewers pause, rewind and fast-forward live TV shows.
''There was no one thing,'' said jury forewoman Cathy Lindsey, a school secretary. ''We just felt like there was infringement on all the charges. It wasn't unanimous to start with, but we were close.''
TiVo won most of the $87 million in damages it sought.
The case in federal district court was closely watched on Wall Street, with some analysts even dropping in during the two-week trial. They said a victory would help TiVo win other royalty deals involving digital video recorders, or DVRs.
News of the verdict sent TiVo shares soaring 21.7 percent, or $1.75, to $9.80 in after-hours electronic trading Thursday night. If that price holds in regular trading when the Nasdaq Stock Market reopens on Monday, it would mark a 52-week high for the stock. EchoStar shares dropped 22 cents to $29.75 in after-hours trading.
The judge could triple the $73.9 million award -- which is subject to appeal -- since the jury found that EchoStar had willfully infringed TiVo's patent.
In a statement, EchoStar called the verdict ''the first step in a very long process'' and said it considered TiVo's patent overly broad.
''We believe the decision will be reversed either through post-trial motions or on appeal,'' EchoStar said in a statement. The Englewood, Colo., company also said it is looking forward to trying its countersuit against TiVo, which is scheduled for early next year, also in East Texas.
TiVo attorney Matthew Zinn said the verdict gives his company a boost in its attempt to negotiate licensing deals with cable operators that use TiVo-like boxes from other manufacturers. He said as a last resort, TiVo might file patent-infringement lawsuits against cable companies.
Comcast Corp. recently signed a deal with Alviso, Calif.-based TiVo, but other cable providers have resisted. They -- along with Dish -- have taken sales from TiVo by offering boxes and service at lower prices. (Separately, TiVo said Wednesday it extended an agreement with its largest partner, satellite TV provider DirecTV Group Inc., for three more years.)
Jurors hewed to the recommendation of a TiVo consultant in finding that EchoStar's use of TiVo's patent for a ''multimedia time warping system'' cost TiVo $73.99 million.
That broke down to $32.66 million in lost profits from sales of set-top boxes -- $169.50 per box -- and another $41.33 million that EchoStar should have paid in royalties on its sales of more than 4 million TiVo-like boxes.
The jury declined to award TiVo the full $87 million it sought because the company hadn't stamped all of its boxes with a patent trademark, so damages only covered the period after TiVo filed the lawsuit in January 2004.
Like many of the jurors, Brenda Dotson, a third-grade teacher, took copious notes to understand a case that hinged on technical details about DVRs.
''We just looked at the evidence and tried to maintain the big picture,'' she said.
Both Dotson and Lindsey, the forewoman, said they made up their minds before Thursday's closing arguments. They were impressed by TiVo co-founder James M. Barton -- the first name on TiVo's patent -- who described how his box worked and calmly sidestepped efforts by an EchoStar lawyer to trip him up during cross-examination.
None of the jurors own a TiVo, although Judge David Folsom said he does.
In closing arguments Thursday, EchoStar attorney Harold McElhinny said TiVo was using EchoStar as a scapegoat for its own failure to compete against other makers of set-top boxes. He said TiVo's box was overpriced at a time when Dish and cable companies were giving away recorders to new subscribers.
McElhinny highlighted TiVo's financial problems -- it has lost nearly $650 million since its founding in 1997 -- which he blamed on erratic decision-making.
After two weeks of a hard-fought trial, lawyers for both sides tried to lighten the mood on Thursday with self-effacing humor.
TiVo's hometown Marshall attorney, Sam Baxter, began by apologetically telling jurors, ''If this (trial) were like TiVo, you could just fast-forward through this and go to lunch.'' Then he made a joke about trying in vain to get TiVo's lead lawyer, Morgan Chu, to get rid of his trademark bow tie.
A couple of hours later, the winning team of lawyers held a boisterous celebration in a pub across the square from the courthouse. By then, Chu had ditched the bow tie.


----------



## UncaAndoo

Hey! I'm a patent dude! Man, losing television access has really restricted my awareness of current events.

Anyway, quickly browsing all this info in fifteen minutes, my quickies:

You can use the description to interpret claims when they aren't clear...I guess I missed the argument against a computer with a tuner card being prior art, but I guess that's the power of the Media Switch, assuming that it has to be hardware...the Court of Appeals for the Federal Circuit (the next step up) can ignore the lower court's claim construction.


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## IndyJones1023

Go TiVo! It's your birfday! Go TiVo! It's your birfday!


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## HiDefGator

So the end result is that Tivo will now be making money from allowing others to make their own DVR's and still losing money on Tivo DVR's. Are you really sure this is a good thing?


----------



## choccy

Good for TiVo.. bad for the rest of us.

"to pause, rewind or fast-forward live TV programs by recording them on a hard drive" is overly broad, and I don't believe TiVo was even the first people to use the technology.


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## IndyJones1023

They weren't?


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## Martyp

Can not be worse then some of the internet ones . Getting a panet for one click shopping give me a break


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## nachonaco

Will they share with us?


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## MikeMar

Discount on the series 3???? comeon!!!


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## TivoGeezer

choccy said:


> Good for TiVo.. bad for the rest of us.
> 
> "to pause, rewind or fast-forward live TV programs by recording them on a hard drive" is overly broad, and I don't believe TiVo was even the first people to use the technology.


You don't have to prove you are the first to use it, only the first to patent it.


----------



## LoadStar

Plus, the patent is much narrower than the overly broad description that you provide.... it deals with some specific applications of the concept.


----------



## jfh3

HiDefGator said:


> So the end result is that Tivo will now be making money from allowing others to make their own DVR's and still losing money on Tivo DVR's. Are you really sure this is a good thing?


Of course it's a good thing - Tivo has wanted to get out of the hardware business for quite some time and primarily sell the Tivo software. Tivo never has made money on the hardware and probably never will - but hardware sales is the wrong focus.


----------



## BillyBob_jcv

Usually in these type of cases, the defendant is being sued over a product that has already been discontinued, because the defendant makes darn sure that any product produced after the lawsuit was filed would not be included if they happen to lose. Does anyone know if this is the case for Dish? Are the current shipping Dish DVRs in violation according to this judgement?


----------



## jmoak

BillyBob_jcv said:


> Are the current shipping Dish DVRs in violation according to this judgement?


Yes.


> _from tivo's press release:_
> TiVo intends to seek a permanent injunction against EchoStar's DVR products.


Not as in "You can never make another dvr!", but more like, "You can't continue to sell a product that the court says is in direct and willful infringement of our patents.... unless you pay us a fee.... and drop your counter suit."


----------



## dmdeane

ZeoTiVo said:


> here are my favorites
> "looks to be a bit more of an uphill battle now"
> 
> "Furthermore, it is likely that given what the E* legal team knows now of the TiVo case, they will likely roll over them in appeal and clean TiVo's clock in the countersuit."


Haha. Classic. It's 1940, the Germans are marching into Paris, and I can just hear the French General Staff analyzing the aftermath: "well, now that we know the German strategy of letting us rush into Belgium and Holland and swinging around behind us and cutting us off by attacking through the Ardennes, we'll not fall for that trick again and we'll clean Germany's clock in the next war!"


----------



## dmdeane

HiDefGator said:


> So the end result is that Tivo will now be making money from allowing others to make their own DVR's and still losing money on Tivo DVR's. Are you really sure this is a good thing?


No, TiVo still makes more money thanks to the new business. And TiVo isn't really "losing" money on standalone's, if TiVo wanted to TiVo could stop subsidizing the costs of acquiring new standalone subscribers and make money off of the existing subscribers. And once TiVo has enough "eyeballs" TiVo will be making money through advertising, as the "Google of TV advertising" as it were. TiVo's not anywhere near close to that yet, but they are on the right path. Getting TiVo software on cable boxes and making advertising deals with the cable companies is the key to TiVo's strategy.


----------



## GoodSpike

TivoGeezer said:


> You don't have to prove you are the first to use it, only the first to patent it.


I think if something is in use, you cannot patent it. You don't, however, have to prove you were the first to invent it.


----------



## zaknafein

GoodSpike said:


> I think if something is in use, you cannot patent it. You don't, however, have to prove you were the first to invent it.


"Prior art" is the term you're looking for.

http://en.wikipedia.org/wiki/Prior_art


----------



## DCIFRTHS

ChuckyBox said:


> Oy. I think Echostar needs to consider getting a new legal team considering that this one just got utterly crushed. Or better yet, just settle.
> 
> "Roll over them" and "clean TiVo's clock?" These people are delusional. Here's who they're up against: http://www.irell.com/attorneys/ShowLawyer.asp?AID=55


Now *that's* a resume...


----------



## kiljoy

skanter said:


> Blah blah blah(Separately, TiVo said Wednesday it extended an agreement with its largest partner, satellite TV provider DirecTV Group Inc., for three more years.) ORLY?


What's this then?

Tony


----------



## fergiej

kiljoy said:


> What's this then?
> 
> Tony


That would be just to allow DTV to continue broadcasting the TiVo guide data to the current DTiVO users. If they didn't renew, they would have had to swap out all DTiVo users to the new R-15. They still won't update these machines.


----------



## Bob_Newhart

I wish a jury would award ME 73 million. I could fill up my gas tank for the week...


----------



## AstroDad

fergiej said:


> That would be just to allow DTV to continue broadcasting the TiVo guide data to the current DTiVO users. If they didn't renew, they would have had to swap out all DTiVo users to the new R-15. They still won't update these machines.


that has nothing to do with what we are talking about, me thinks you've got the wrong thread.


----------



## Sapphire

I'm not sure if I'm happy about this. I just hope this won't put a damper on projects such as MythTV.

I like TiVo and all, but I still want to be able to experiment with and create my own DVR without paying money to TiVo.


----------



## sWampy

TivoGeezer said:


> You don't have to prove you are the first to use it, only the first to patent it.


Not according to patent law. Just according to patent office run amok.


----------



## IndyJones1023

Paging Marco!


----------



## MasterOfPuppets

Fantastic...
Now bring back lifetime subs...

In other news, David Spade tells me that Paris Hilton has patented "that's hot"...people are stupid...
She should patent the sound "slurp, slurp" next...


----------



## Sapphire

Don't hold your breath - I don't think this is going to mean anything in terms of price drops for subscribers.


----------



## BillyBob_jcv

I think "That's hot" would be a copyright, not a patent. The new technique used to generate the "Slurp, slurp" would be a patent...


----------



## feldon23

ZikZak said:


> On your page, you summarize by saying in part that the judge has ruled that the jury can find E* in violation, even if they did not directly copy the technology. On the other hand, he also said that copying is not an issue to be decided in the case. One sounds good for tivo, the other sounds not so good.


I call this the broom closet effect.

If I go live in a broom closet for a year and invent something, create a prototype, a product, market it, release it, and sell it for 6 years, and then find out one day that I owe millions of dollars to another guy who invented the same thing, patented it, and never developed a product. Even if I can prove I had no knowledge of his invention.

Inventing and bringing a product to market should be hard, but it shouldn't be Russian roulette.


----------



## LostCluster

BillyBob_jcv said:


> I think "That's hot" would be a copyright, not a patent.


Neither. It'd be a trademark.


----------



## blindlemon

Bob_Newhart said:


> I wish a jury would award ME 73 million. I could fill up my gas tank for the week...


OK, I can't resist this.

Every time one of you poor, petrochemically-disadvantaged Americans whinges about petrol (gas) prices it makes me laugh, then slightly annoyed 

Here in the UK today a US gallon of regular unleaded petrol costs, wait for it: *$6.23* 

So, please, less of the "gas is getting so expensive" stuff. Thanks.


----------



## feldon23

Every time one of you poor Brits compares the price of gas, you forget that distances in the US are measured in tens of miles. Most people in the US drive 150-300 miles a WEEK.


----------



## emeril2k1

blindlemon said:


> OK, I can't resist this.
> 
> Every time one of you poor, petrochemically-disadvantaged Americans whinges about petrol (gas) prices it makes me laugh, then slightly annoyed
> 
> Here in the UK today a US gallon of regular unleaded petrol costs, wait for it: *$6.23*
> 
> So, please, less of the "gas is getting so expensive" stuff. Thanks.


How much is that before VAT? We have to pay income tax too.


----------



## marksman

Here is my personal spin on this:

This is bad news for the entire PVR industry? Why? Because TiVo has had 8 years to take advantage of their dominant position in the marketplace and offer a widespread product. There is no real reason why the penetration of PVRs is not near 1000% greater than what it is now.

Perhaps TiVo will seize this opportunity and take advantage of their re-affirmed position and do something smart. They just do not have the track record. Which means this enforcement stiffles development by other PVR makers who would actually have the ability to produce and market a product to reach the mass market.

TiVo has been wholly irresponsible with their market leading position since their inception. Giving it back to them or reaffirming it is only bad news for the industry. We will see how things shake out, but for people who actually appreciate an evolutionary and even revolutionary advancement of a useful product, it has to be disappointing news. If you are just a TiVo stockholder, good for you. As a consumer, this is not good news.

If TiVo takes this opportunity to license TiVo software to Echostar and make a deal with them, then it will be great. if they just go for injunctions and litigation to prevent others from using technology we all lose.

Color me amazingly skeptical at this point. TiVo's track record as a business is undeniable. Hopefully they use this as a fulcrum to refocus and redirect their business in a manner that makes everyone a winner... And that is licensing software and getting out to as many people as possible. Since they have some of these hardware patents, they can license that as well, they just need to get out of the box building business and work on making TiVo the software everyone wants on their PVR. If they would have started with that mission 8 years ago, I think they would have 20-25 million licensed tivo software installations out there, and they would be making money hand over fist.


----------



## ChuckyBox

marksman said:


> Since they have some of these hardware patents, they can license that as well, they just need to get out of the box building business and work on making TiVo the software everyone wants on their PVR. If they would have started with that mission 8 years ago, I think they would have 20-25 million licensed tivo software installations out there, and they would be making money hand over fist.


As far as I know, they did start out with that mission. They didn't want to be in the hardware business at all, they did it out of necessity.


----------



## 1283

marksman said:


> There is no real reason why the penetration of PVRs is not near 1000% greater than what it is now.


It's not that easy. I have two relatives with Series1 TiVos without TiVo service. Manual recording is sufficient for them. I have offered my sister a Series2 TiVo with lifetime service as a gift. She does not want one.


----------



## ChuckyBox

c3 said:


> It's not that easy. I have two relatives with Series1 TiVos without TiVo service. Manual recording is sufficient for them. I have offered my sister a Series2 TiVo with lifetime service as a gift. She does not want one.


Not to mention that 10X penetration would be a number substantially in excess of the number of households in the country.


----------



## marksman

ChuckyBox said:


> As far as I know, they did start out with that mission. They didn't want to be in the hardware business at all, they did it out of necessity.


Perhaps accurate, but necessity dictated by their failure to convince anyone with an avenue to the consumer that they had a viable product. Clearly they did and do, so the fact that they failed to convince anyone else on that is still going to be on them.

I don't want people to get me wrong. I think TiVo software is tremendous. The original software they launched with way back then is probably better than anything else out there right now. It has just been a frustrating experience watching how things have progressed over the years. On top of their inability to convince others of its value, I think they have potentially over-valued its worth in their own mind as well. I imagine a HUGE portion of their cost of running their business would evaporate if they were able to snap their fingers and switch to an entirely licensed business tomorrow. I think they have had opportunities to do it before beyond DirecTV and it always seems like it was an issue of money. Problem is they are not leveraging their assets correctly. I can't believe that worthwhile deals could not have been struck with other outlets in the last 8 years.

And that is why I am not holding my breath now. TiVo can't sit there and expect to make $10 a month of each software license, they need to have a realistic expectation based on a mass-market penetration, and I don't think they have EVER positioned themselves for that properly.


----------



## ChuckyBox

ChuckyBox said:


> They haven't been breaking it out. It is just lumped into General & Administrative Expense. This case, I'd guess is in the ballpark of $20 million so far.
> 
> TiVo will ask the judge for legal fees, and we'll see what it is then.


We did get some information about this, but it isn't exactly transparent:



TiVo's FY06 10-K (p.50) said:


> For the fiscal year ended January*31, 2006 legal and consulting expenses increased $14.5 million largely due to ongoing litigation.


This figure is an _increase_ over the prior year, and is all legal fees lumped together (there are several ongoing cases). Whatever the actual number for this case turns out to be, you can see now that it is material.


----------



## ChuckyBox

marksman said:


> And that is why I am not holding my breath now. TiVo can't sit there and expect to make $10 a month of each software license, they need to have a realistic expectation based on a mass-market penetration, and I don't think they have EVER positioned themselves for that properly.


TiVo asked for, and got, and award of $1 per month for the infringing Echostar DVRs. They're getting $1.15/month from DTV for the DTiVos. The Comcast deal is rumored to be in the same vicinity.


----------



## jfh3

marksman said:


> Here is my personal spin on this:
> 
> This is bad news for the entire PVR industry? Why? Because TiVo has had 8 years to take advantage of their dominant position in the marketplace and offer a widespread product. There is no real reason why the penetration of PVRs is not near 1000% greater than what it is now.
> 
> Perhaps TiVo will seize this opportunity and take advantage of their re-affirmed position and do something smart. They just do not have the track record. Which means this enforcement stiffles development by other PVR makers who would actually have the ability to produce and market a product to reach the mass market.
> 
> TiVo has been wholly irresponsible with their market leading position since their inception. Giving it back to them or reaffirming it is only bad news for the industry. We will see how things shake out, but for people who actually appreciate an evolutionary and even revolutionary advancement of a useful product, it has to be disappointing news. If you are just a TiVo stockholder, good for you. As a consumer, this is not good news.
> 
> If TiVo takes this opportunity to license TiVo software to Echostar and make a deal with them, then it will be great. if they just go for injunctions and litigation to prevent others from using technology we all lose.
> 
> Color me amazingly skeptical at this point. TiVo's track record as a business is undeniable. Hopefully they use this as a fulcrum to refocus and redirect their business in a manner that makes everyone a winner... And that is licensing software and getting out to as many people as possible. Since they have some of these hardware patents, they can license that as well, they just need to get out of the box building business and work on making TiVo the software everyone wants on their PVR. If they would have started with that mission 8 years ago, I think they would have 20-25 million licensed tivo software installations out there, and they would be making money hand over fist.


You may be skeptical, but I also think you are delusional. Tivo certainly has made some mistakes, but not trying to take advantage of their position isn't one of them.

Tivo approached Echostar to make a deal similar to the one they made with DirecTV, which was quite successful in growing Tivo DVR usage.

Echostar said no thanks - we don't need you and don't believe your technology is key. The cable companies and equipment manufacturers look at Echostar and say to themselves - if Echostar thinks Tivo can't or won't enforce its' patents and that any generic DVR is fine, then that's good enough for us.

No reason for any of them to make a deal with Tivo (None of them seem to understand that the Tivo software and guide enhancements make for a far more reliable experience, but that's a different problem).

They could all look at Tivo just like I'm sure Echostar did - some little pesky startup that could be squashed or waited out because they didn't have much money.

Tivo is not about hardware - it's about software. There's no technical reason every cable company in the country can't offer a Tivo experience on their DVRs - they've just chosen not to, at least so far.

What DVR development has Tivo stiffled? Moxi? Motorola? SA? Sony? They all have their own DVRs. Only Sony marketed it to the public and that was a disaster. It has some Tivo-licensed features, no monthly fees, but it didn't sell (never saw a single Sony ad for it either). The manufacturers that sell to the MSO? All they want to do is sell boxes - the software and user interface is an afterthought. They're done as soon as the sale is made. The MSOs? They don't want DVRs, but reluctantly got into the game to slow defections to DirecTV and Echostar.

This may be "bad news for the DVR industry" only because it may now force them to pay attention to what the final end user sees in their home, rather than just have to settle to "have a product out there" to compete.

No matter how you look at it, this Tivo win is good for any DVR USER.


----------



## jmoak

marksman said:


> This is bad news for the entire PVR industry? Why? Because TiVo has had 8 years to take advantage of their dominant position in the marketplace and offer a widespread product. There is no real reason why the penetration of PVRs is not near 1000% greater than what it is now.


How many times in the last six years have we heard/read,

Tivo is dead.
Tivo is going out of business.
(BestBuy,CircuitCity,...) is not selling tivos anymore.
Tivo Deathwatch.
Directv Dumps Tivo.
Tivo is doomed.
Poor little Tivo.
(Blank) is a Tivo-Killer!
Tivo sells your personal info!!!
Tivo is not innovating!
Tivo is moving too fast!
Tivo is too slow!
Life or Death for Tivo
Tivo forces Ads on you!
Tivo thinks you're gay!
(Blank) is like a Tivo, only cheaper!
(Blank) is as good as a Tivo!
Tivo won't let you watch whatever you want.
Tivo's patents are worthless.
Tivo's patents are restrictive.
Evil TiVo
TiVo Pop-Up Ads Are Huge
TiVo has just invented Pop-up ads for the TV
TiVo pop-up ads may erode consumer control
Welcome to the Now, Evil TiVo.

all of the above is simply cut and paste from a quick goggle of "Tivo".

I'm not suggesting that it's the root of all problems tivo, but that's one hell of a marketing hump to get over, don't you think?


----------



## blindlemon

feldon23 said:


> Every time one of you poor Brits compares the price of gas, you forget that distances in the US are measured in tens of miles. Most people in the US drive 150-300 miles a WEEK.


According to this report the average annual mileage of UK car users in 2002 was 14,720, compared to 18,870 in the US - that's around 283 miles per week compared to your 362, or around 78%.

So, in order to suffer the same weekly fuel bill as the average American (assuming the same gas-mileage for our cars) we would only have to be paying $4 per US gallon - not $6.63.

I know you all insist on driving gas-guzzling SUVs and pickup trucks where we're quite happy with a Mini Cooper - but you've only got yourselves to blame for that


----------



## dmdeane

blindlemon said:


> According to this report the average annual mileage of UK car users in 2002 was 14,720, compared to 18,870 in the US - that's around 283 miles per week compared to your 362, or around 78%.


I'd like to know where they are getting their figures. I'd say your "official" stats don't jibe with my personal experience about average American commutes, nor do they take into account all the other driving that is necessary in America which does not show up on these kinds of stats. You Europeans also don't seem to grasp just how spread out the US population is. You really can't "get" it looking at maps or making (possibly erroneous) statistical comparisons.


> So, in order to suffer the same weekly fuel bill as the average American (assuming the same gas-mileage for our cars) we would only have to be paying $4 per US gallon - not $6.63.


We are approaching $3 a gallon now. And that's without your insane levels of taxation.


> I know you all insist on driving gas-guzzling SUVs and pickup trucks where we're quite happy with a Mini Cooper - but you've only got yourselves to blame for that


I see plenty of Mini Coopers on the road where I live. I see plenty of other small cars as well. Gas prices are plenty high enough now to discourage new SUV and truck sales, as has in fact been happening. Nevertheless sales do continue, because some people really do *need* these vehicles.


----------



## dmdeane

marksman said:


> This is bad news for the entire PVR industry? Why? Because TiVo has had 8 years to take advantage of their dominant position in the marketplace and offer a widespread product. There is no real reason why the penetration of PVRs is not near 1000% greater than what it is now.


This is a grossly incorrect *assumption* on your part. People have gotten unrealistic expectations about the propagation of new technology thanks to the rapid spread of the Internet. The Internet only spread so quickly to new users because the key infrastructure - PCs and telephone lines - already existed and were under wide use when the Internet arrived, making for unprecedentedly rapid adoption of the new technology. Most new technologies take longer to gain widespread adoption; for instance look how long it took before everyone had electricity or telephones. It was a slow process.

The DVR isn't just a new technology, it's a new concept that most people who have not used one simply can't get their heads around. It is *not* just a digital VCR - especially in the case of TiVo, which is by far still the best DVR for pure intuitive time shifting. TiVo has wasted millions trying to market the DVR concept; it really it is not TiVo's fault that people still don't "get" it; this new DVR concept is one of those things that may, like the PC, take a generation to spread to the entire population. Most people don't know what they are missing, and don't care. It will take time for the DVR to become as common in the home as the TV - possibly a long time. Satellite and cable company DVRs will help speed up this process, but many people, especially the older generation, will not see the need for them.

Ergo, your assumption that TiVo has somehow been "holding back" the DVR is entirely erroneous.


----------



## murphy54

I relly do not understand ..but maybe it is just me(tired)...good luck anyway


----------



## blindlemon

dmdeane said:


> I'd like to know where they are getting their figures. I'd say your "official" stats don't jibe with my personal experience about average American commutes


I agree those figures are in no way "official" and if you can find some better ones then I'll be happy to accept them. I also have no doubt that _some _ Americans drive huge distances on a regular basis, and maybe you're one of them - but many also will jump in the SUV to drive up to the mini-mart 500 yards away whereas we Brits would just leg it 


dmdeane said:


> We are approaching $3 a gallon now. And that's without your insane levels of taxation.


Believe me, we don't like the tax at all - but it's a fact of life for us and nobody gets away without paying it, so that price of $6.63 per gallon is our reality and it does hurt when we see you guys moaning about $3 per gallon


----------



## BlackBetty

Lets bring this back to the topic at hand.


----------



## Tivortex

blindlemon said:


> I know you all insist on driving gas-guzzling SUVs and pickup trucks where we're quite happy with a Mini Cooper - but you've only got yourselves to blame for that


And you've got only your government to blame for your petrol prices.


----------



## blindlemon

BlackBetty said:


> Lets bring this back to the topic at hand.


Oh yes, sorry 

Well, we only have Series 1 TiVos with software version 2.5.5 over here too. And we can't blame the government for that!

However, IMHO, the TiVo win can only be good news for UK TiVo owners, as the main stumbling block to TiVo making a re-entry into the UK is the NDS DVR used by our only satellite broadcaster Sky Digital. Clearly, the TiVo win has already got DirectTV/NDS in the US on the back foot, and if TiVo prevails and enforces its IPR worldwide then I would expect to see some kind of licensing deal between TiVo and Sky Digital/NDS in the UK :up:


----------



## dmdeane

blindlemon said:


> I agree those figures are in no way "official" and if you can find some better ones then I'll be happy to accept them. I also have no doubt that _some _ Americans drive huge distances on a regular basis, and maybe you're one of them - but many also will jump in the SUV to drive up to the mini-mart 500 yards away whereas we Brits would just leg it.


And you know this, *how*? Now you're just repeating a bunch of anti-yank stereotypes that you picked up from the media.

Oh, right, the topic at hand - go TiVo UK and all that.


----------



## lajohn27

So.. petrol is 6.63 a gallon in the UK - but don't they get free health care? 

As I see it, few Americans "NEED" giant SUVs for their day to day activities. Many could by with minivans or similarly more fuel efficient vehicles. Most days I see the Chevy Tahoes and Ford Expeditions running around.. they are empty.. Just one person and NO cargo.

The historically high price of gas in the UK has meant that public transportation is far more widely used and is much more useful than in the United States. Remember, oil companies bought street car companies and public transportation in some major cities and dismantled them in order to drive acceptance of the automobile.

Yanks have long been wanked by large oil companies. Brits have been to.. just in a slightly different way. (The reacharound?)


----------



## jmoak

It's the biggest tivo news in seven years and you guys wanna fuss about _gas prices?!??!?_ What are you trying to do? Get the thread closed??!??!??!


----------



## ZeoTiVo

Raj said:


> I'm not sure if I'm happy about this. I just hope this won't put a damper on projects such as MythTV.
> 
> I like TiVo and all, but I still want to be able to experiment with and create my own DVR without paying money to TiVo.


the patent infringement was about very specific technology inside a DVR appliance like a TiVo or the ones from cable or sat. broadcasters. It centered on a media switch chip that pulled the video recording away from the CPU and thus allowed for much cheaper DVRs to be possible. PC based "DVRs" would not have need of this technology and thus would likely not be found to be infringing if any suit was ever even brought.

This was *not* a broad record Video to a Hard drive infirngement as some make it out to be. The willful infringement was in fact due to Echostar ripping off that media switch technology directly.


----------



## interactiveTV

jmoak said:


> all of the above is simply cut and paste from a quick goggle of "Tivo".
> 
> I'm not suggesting that it's the root of all problems tivo, but that's one hell of a marketing hump to get over, don't you think?


 What's always been amazing to me is the extreme satisfaction rates Tivo gets.



dmdeane said:


> TiVo has wasted millions trying to market the DVR concept; it really it is not TiVo's fault that people still don't "get" it.


 I disagree.

One serious and utter flaw -- for which many here blame the mainstream press or some anti-Tivo conspiracy -- is the amazingly bad PR and marketing from Tivo for 8 years.

One would think that a company whose products are enjoyed so much -- recent mention of Chambers of Cisco owns and uses Tivos -- could be so friggin incompetent with its PR and marketing. Apple, Samsung, sure they have more resources and more money but Tivo has spent a serious amount of cash on some real stupidity. Forget the PR department which has time after time failed to give a comment or failed to get in front of a story. That's been a disaster from day 1. The marketing has been a complete joke and Tivo DESERVES the blame for it.

Yes, some of it is pricing, but DirecTV did a much better job marketing Tivo than Tivo ever did. My MSO does a better job than Tivo.

The marketing hump is Tivo's. We've ALL seen crappy ads, poorly spent ad budgets -- remember the line drawings in magazines targeted to people who DON'T watch television? 

If Tivo took $20m and gave it to Oprah they would have been better off.

We can blame the "press" but I haven't seen Tivo effectively market and the PR department is a constant disappointment.

This board has probably sold more Tivos than all of Tivo's marketing has. For free (or points).

It really IS Tivo's fault. Tivo got the brand name advantage and STILL blew it. It couldn't explain its PRICING or VALUE. It couldn't get a press release right. It didn't woo journalists or get the VERY influential people to market for them. Yes, Tivo wasted millions. Without a business model, without a marketing campaign, it's just a great product. That's not enough.

_ITV

EDITED: Because I had intended to change the second quote to dmdeane but hit post and never even proofed it. Completely my fault and a sincere apology to jmoak. I even remember thinking, gotta change that (I cut and pasted the tags). My bad 100% and a very sincere apology.


----------



## jmoak

interactiveTV said:


> What's always been amazing to me is the extreme satisfaction rates Tivo gets.


It's amazing how folks tend be happy with a product that actually works as advertised. My four month old niece is amazed by car keys. But, heay! Each to his own.


interactiveTV said:


> I disagree.


So do I, but I never posted that.

_an afterthought:_
Who want's to buy service from a company that the press says (and has for years now) is going to be out of business "real soon now"?

Have you heard of the continuing "Tivo Deathwatch"?


----------



## ThreeSoFar

interactiveTV said:


> What's always been amazing to me is the extreme satisfaction rates Tivo gets.
> 
> I disagree.
> 
> One serious and utter flaw -- for which many here blame the mainstream press or some anti-Tivo conspiracy -- is the amazingly bad PR and marketing from Tivo for 8 years.
> 
> One would think that a company whose products are enjoyed so much -- recent mention of Chambers of Cisco owns and uses Tivos -- could be so friggin incompetent with its PR and marketing. Apple, Samsung, sure they have more resources and more money but Tivo has spent a serious amount of cash on some real stupidity. Forget the PR department which has time after time failed to give a comment or failed to get in front of a story. That's been a disaster from day 1. The marketing has been a complete joke and Tivo DESERVES the blame for it.
> 
> Yes, some of it is pricing, but DirecTV did a much better job marketing Tivo than Tivo ever did. My MSO does a better job than Tivo.
> 
> The marketing hump is Tivo's. We've ALL seen crappy ads, poorly spent ad budgets -- remember the line drawings in magazines targeted to people who DON'T watch television?
> 
> If Tivo took $20m and gave it to Oprah they would have been better off.
> 
> We can blame the "press" but I haven't seen Tivo effectively market and the PR department is a constant disappointment.
> 
> This board has probably sold more Tivos than all of Tivo's marketing has. For free (or points).
> 
> It really IS Tivo's fault. Tivo got the brand name advantage and STILL blew it. It couldn't explain its PRICING or VALUE. It couldn't get a press release right. It didn't woo journalists or get the VERY influential people to market for them. Yes, Tivo wasted millions. Without a business model, without a marketing campaign, it's just a great product. That's not enough.
> 
> _ITV


Hear, hear!


----------



## jfh3

interactiveTV said:



> What's always been amazing to me is the extreme satisfaction rates Tivo gets.
> 
> I disagree.
> 
> One serious and utter flaw -- for which many here blame the mainstream press or some anti-Tivo conspiracy -- is the amazingly bad PR and marketing from Tivo for 8 years.
> 
> One would think that a company whose products are enjoyed so much -- recent mention of Chambers of Cisco owns and uses Tivos -- could be so friggin incompetent with its PR and marketing. Apple, Samsung, sure they have more resources and more money but Tivo has spent a serious amount of cash on some real stupidity. Forget the PR department which has time after time failed to give a comment or failed to get in front of a story. That's been a disaster from day 1. The marketing has been a complete joke and Tivo DESERVES the blame for it.
> 
> Yes, some of it is pricing, but DirecTV did a much better job marketing Tivo than Tivo ever did. My MSO does a better job than Tivo.
> 
> The marketing hump is Tivo's. We've ALL seen crappy ads, poorly spent ad budgets -- remember the line drawings in magazines targeted to people who DON'T watch television?
> 
> If Tivo took $20m and gave it to Oprah they would have been better off.
> 
> We can blame the "press" but I haven't seen Tivo effectively market and the PR department is a constant disappointment.
> 
> This board has probably sold more Tivos than all of Tivo's marketing has. For free (or points).
> 
> It really IS Tivo's fault. Tivo got the brand name advantage and STILL blew it. It couldn't explain its PRICING or VALUE. It couldn't get a press release right. It didn't woo journalists or get the VERY influential people to market for them. Yes, Tivo wasted millions. Without a business model, without a marketing campaign, it's just a great product. That's not enough.
> 
> _ITV


Sadly, I have to agree 100% here. It is pretty amazing how inept Tivo's consumer marketing and advertising is. Their general PR and IR is pretty poor too.

Still can't figure out why the whole KidZone initiaitive was announced before the software was ready. But than that's only the latest in a long line of marketing misteps.


----------



## MickeS

interactiveTV said:


> One serious and utter flaw -- for which many here blame the mainstream press or some anti-Tivo conspiracy -- is the amazingly bad PR and marketing from Tivo for 8 years.


I have brought up this point here many times. I think most people DO blame TiVo. I certainly don't blame anyone else. If anything, the mainstream media has been extremely generous with "promoting" TiVo for free.

I agree that their marketing (which is putting it kindly) has been a disaster.


----------



## davezatz

jfh3 said:


> Still can't figure out why the whole KidZone initiaitive was announced before the software was ready. But than that's only the latest in a long line of marketing misteps.


I'm guessing the KidZone stuff was marketing directed at cable and satellite providers, not consumers. If they were going to announce anything ahead of release for consumers, I think the S3 would generate a huge amount of buzz. Most of the online coverage/press is only due to megazone's review and tons of awesome CES photos... TiVo, Inc. has been extremely quiet on the subject. Though anything (or nothing) is an improvement over those creepy stick figures.


----------



## ChuckyBox

I don't know why this has become the TiVo marketing thread, but FWIW, the real question to ask is, "Would another marketing approch have produced substantially more subscribers?" (Given the same set of product and pricing constraints, etc.) The answer: nobody knows, and no one ever will.

I agree TiVo's PR is bad, but while you are bashing TiVo marketing, remember that what is probably the best marketing department the world has ever known, with vast experience and nearly unlimited resources, produced something called New Coke. Marketing is, apparently, something less than an exact science.


----------



## interactiveTV

ChuckyBox said:


> I don't know why this has become the TiVo marketing thread, but FWIW, the real question to ask is, "Would another marketing approch have produced substantially more subscribers?" (Given the same set of product and pricing constraints, etc.) The answer: nobody knows, and no one ever will.


 You mean like DirecTV's or Time Warner's? Apples to oranges but it is only partially about price.



ChuckyBox said:


> I agree TiVo's PR is bad, but while you are bashing TiVo marketing, remember that what is probably the best marketing department the world has ever known, with vast experience and nearly unlimited resources, produced something called New Coke. Marketing is, apparently, something less than an exact science.


 Totally. And they pulled it. I'm only bashing Tivo's marketing in response to the "It's not Tivo's fault" and "marketing hump" stuff. Some of the most influencial celebrities and CEOs use Tivo, some of the top journalists. What does Tivo do? Spend money on what dave aptly called "creepy stick figures" and a Tivo marketing rep specifically stated they spent the money for magazine ads whose readers DON'T WATCH MUCH TV. Huh?

Yes, marketing is a voodoo science to be sure. We might not know what works but how about starting with targeting people who WATCH TV? I mean, seriously, is that the best use of money when profits haven't been seen?

I still maintain this board has sold more Tivos than all of Tivos marketing efforts combined. I've sold probably 50 if you go two links down (I "sold" someone who sold someone else). I bet if we did an informal and inexact poll it would be tens of thousands.

All should not be in this thread. My apologies. The "marketing hump" thing hit me. It's been a total waste of cash. Giving the units to people would have been better.

_ITV


----------



## jmoak

Heay, _ITV!!!!

You've attributed the quote, "TiVo has wasted millions trying to market the DVR concept; it really it is not TiVo's fault that people still don't "get" it." to me in post #335.

_*I DID NOT WRITE THAT!!!!*_

Even though I did not say that, people will read that and think I did! You know how folks are. I may not have said that, but now other people will think that somehow I feel that tivo's marketing was great, when it's far from the truth. Now people can "quote" me saying that and use your post as reference.

It won't be long till other posters just cut and paste that mistaken quote all over the place and now no one will ever want to use my marketing services again!!!

That's one hell of a creditability hump to get over, don't you think?

()

just a joke, ITV. just pokin' a little fun. but really.... I did not say that!!!!.


----------



## davezatz

interactiveTV said:


> Yes, marketing is a voodoo science to be sure. We might not know what works but how about starting with targeting people who WATCH TV? I mean, seriously, is that the best use of money when profits haven't been seen?


Wouldn't it be cool if they had a television commercial that said, "Hey, if you had a TiVo you could skip this crappy commercial."


----------



## BlackBetty

It will be interesting to see what the Judge has to say tomorrow. The award could be trippled!


----------



## dmdeane

ChuckyBox said:


> I don't know why this has become the TiVo marketing thread, but FWIW, the real question to ask is, "Would another marketing approch have produced substantially more subscribers?" (Given the same set of product and pricing constraints, etc.) The answer: nobody knows, and no one ever will.


No, but we can make an educated guess, and my educated guess is that TiVo has done no better and no worse than anyone else could have, given that the DVR concept is entirely new and it is not easy to educate the target audience to "get" the DVR concept.

I know I'm repeating myself, but most new "concepts" or new product categories take a generation or more to reach saturation levels in the market; look how long it took electricity or telephones to be adopted by most people. Even the PC took about a generation to become ubiquitous in the American market, and it is still far from ubiquitous in many other markets every bit as advanced as the American market. The Internet was the exception to the rule, taking off quickly because the concept didn't need to be "sold" or the public "educated" and the PC and telephone infrastructure was already ubiquitous and in place. Likewise the DVD took off quickly because it was simply a replacement for the VHS tape, which the consumer already understood, and offered significant advantages over the VHS tape, leading to rapid adoption.

None of this applies to the DVR; people were expecting TiVo to take off quickly like the Internet or the DVD, but this was an entirely unrealistic expectation. Blaming TiVo for the slow adoption of the DVR is understandable but wrongheaded and completely misunderstands the nature of the problem at hand.


> I agree TiVo's PR is bad, but while you are bashing TiVo marketing, remember that what is probably the best marketing department the world has ever known, with vast experience and nearly unlimited resources, produced something called New Coke. Marketing is, apparently, something less than an exact science.


Precisely so. And soft drinks are a well known consumer product; you don't have to spend millions of dollars trying to educate your target audience to try to make them "get" the concept of soft drinks. Ergo, people who bash TiVo marketing are missing the point. Show someone else who is doing a better job of marketing the DVR concept. It's not being marketed "properly" because no one has figured out just how to do that yet. Maybe no one ever will; maybe it will just have to spread slowly by "osmosis" and word of mouth.

And no, I don't accept that the satellite or cable companies are doing a "better" job of marketing the DVR; I've seen their advertisements and they are every bit as incomprehensible to the non-DVR user as TiVo advertising, yeah, it's great you can "pause live TV"; TiVo said the same thing in its early advertising, too. The satellite and cable companies have a builtin advantage in being able to offer cheap entry for the new DVR user; it's not cable and satellite's *advertising* savy that is superior, it's their monopoly or semi-monopoly hold over their users that gives them marketing advantages that TiVo cannot have hoped to take advantage of....until now.

The patent win gives TiVo an "in" to get the satellite and cable companies working to promote TiVo to their customers, and due to their "home field" advantages, these companies are better placed to introduce the DVR concept to their customers than TiVo is, anyway. So the patent decision is really crucial for TiVo for this very reason.


----------



## dmdeane

interactiveTV said:


> I still maintain this board has sold more Tivos than all of Tivos marketing efforts combined.


This forum is a great asset to TiVo, but I've met dozens of other TiVo users in real life, and *none* of them had ever heard of this forum.


----------



## davezatz

dmdeane said:


> in real life


Huh? Never heard of it...


----------



## dmdeane

davezatz said:


> Huh? Never heard of it...


Real life? You know....the kind of stuff that tends to happen in the big blue room....well, it's a big blue room at least half of the time. And also it's not really blue when the weather is bad. You know, weather.....it's sort of like what happens when your heating and air conditioning system is on the fritz, only you can't call a repairman to fix it.


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## dmdeane

davezatz said:


> Wouldn't it be cool if they had a television commercial that said, "Hey, if you had a TiVo you could skip this crappy commercial."


But TiVo doesn't want to have you just skip the commercial; it's something TiVo makes possible but it's shortsighted to focus on that to the exclusion of the big picture. TiVo wants to offer you unobtrusive advertising targetted towards your interests. Sort of like Google. TiVo has no interest in p_ssing off the advertisers. That's not their game plan. We have to stop looking at this problem from our own self-interested point of view, and look at this from TiVo's point of view; they have a business plan they have to follow if they want to reach profitability and make lots of money. Often this will not please the web forum technophiles and the gadget blogocracy, but that's just too bad for them. They aren't walking in TiVo's shoes.


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## blindlemon

dmdeane said:


> Now you're just repeating a bunch of anti-yank stereotypes that you picked up from the media.


Sorry - there isn't a "tongue-in-cheek" smiley so I guess maybe you took my posts a little more seriously than they were intended...


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## jfh3

davezatz said:


> Wouldn't it be cool if they had a television commercial that said, "Hey, if you had a TiVo you could skip this crappy commercial."


Tivo could have some very creative TV commercials, but they are quite expensive and probably would not be cost effective for the company (except perhaps a good Superbowl commercial).

With print on the other hand, they could go a LONG way to dispelling the common Tivo-myths and do some general education. Even some decent tear-sheets in the retail channel.

(P.S. Thanks for the reminder on the horrid stick figure campaign :down:  )


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## MMG

more from www.skyreport.com

*The Investor Reaction to DISH/TiVo Case?*

Given that the markets were closed Friday due to the Good Friday holiday, it was difficult gauging investor reaction to the patent infringement case involving EchoStar and TiVo.

Today could be a different matter, however, when the Street looks at the litigation win for TiVo, which convinced a federal jury in Texas that the satellite TV company infringed on its patented technology.

S&P wasted no time airing its opinion, downgrading EchoStar in a research note released Friday.

S&P's Tuna Amobi said the EchoStar downgrade "reflects our view of the surprisingly adverse, and swift jury verdict on the DVR patent suit."

Amobi added, "While the $73 million award is unlikely to hurt EchoStar's long-term finances, and a likely appeal could span years, we see possibly higher financial exposure on the court's unqualified finding of willfull patent infringement."

While the $73 million penalty is a big deal for some, others are eyeing TiVo's planned request for a permanent injunction that could impact EchoStar's DVR service.

"EchoStar has to be more concerned about a possible injunction and ultimately being forced into a licensing deal," said Ladenburg Thalmann analyst William Kidd. "EchoStar is trying to avoid licensing TiVo's technology on an on-going basis through a variety of processes, including an appeal, a separate suit of its own, as well as through a re-examination at the U.S. patent office that EchoStar hopes could invalidate TiVo's patents. These processes could take years to resolve.

"However, TiVo intends to seek an immediate injunction on EchoStar DVR sales, which could force EchoStar into an immediate agreement, if the judge agrees to act before EchoStar's appeal is decided. A licensing agreement would be an obvious but manageable negative," Kidd added, saying he thinks a licensing fee could be largely offset by incremental DVR fees.


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## interactiveTV

jmoak said:


> Heay, _ITV!!!!
> 
> You've attributed the quote, "TiVo has wasted millions trying to market the DVR concept; it really it is not TiVo's fault that people still don't "get" it." to me in post #335.
> 
> _*I DID NOT WRITE THAT!!!!*_
> 
> Even though I did not say that, people will read that and think I did! You know how folks are. I may not have said that, but now other people will think that somehow I feel that tivo's marketing was great, when it's far from the truth. Now people can "quote" me saying that and use your post as reference.


 I screwed up. I KNEW you didn't. I cut and pasted the quote tags and intended to change the name to dmdeane and just plain forgot. Totally stupid. My fault and it is corrected in the post and I apologize. I also lost my cell phone yesterday. Left it in a cab. (que music) This is getting scary. I REMIND myself to do things (change name, don't leave phone next to me in cab) and then it just phhtttt....goes away...

Not a wonderful sign. My apologies. Wrong attribution is a very nasty sin and mea culpa. It was not on purpose. Just the brain giving way slowly as time marches on...

And I agree with Barron's, let Tivo be a takeover target. It's been a wildly unpopular opinion of mine -- though I don't think I have many that _are_ popular -- but I think Tivo is better off with a bigger company.

_ITV


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## Fl_Gulfer

"TIVO wins trial over E*" a Texas Jury awards them 73 million. E* says the verdict will be overturned.


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## ZeoTiVo

interactiveTV said:


> You mean like DirecTV's or Time Warner's? Apples to oranges but it is only partially about price.


 DirectTVs - we will give you the DVR and only charge 5$ a month for as many DVRs as you use? I think Price had a huge impact here and price is the best marketing of all.


> Totally. And they pulled it. I'm only bashing Tivo's marketing in response to the "It's not Tivo's fault" and "marketing hump" stuff. Some of the most influencial celebrities and CEOs use Tivo, some of the top journalists. What does Tivo do? Spend money on what dave aptly called "creepy stick figures" and a Tivo marketing rep specifically stated they spent the money for magazine ads whose readers DON'T WATCH MUCH TV. Huh?


 TiVo marketing duds are notable but this is marketing where you are trying to define the market. Many people are starting with the question "whats a DVR and why is it good for me?" few are starting with "Why is a TiVo better than other DVRs?"

So the problem TiVo faces is a competitor and a business parter who are willing to give the DVR away for a "low fee" since they lump it in with other services they can make money on - like digital Cable or the DirectTV package.

I do not think there is any good way to market a TiVo that does not benefit the cable companies more right now. Except for making them realize TiVo will protect its patents and finally marketing to create a DVR market will benefit TiVo instead of others who infringed and then include a less costly DVR into a bundle of services TiVo is not providing and thus must charge for the DVR service itself.


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## BlackBetty

Fl_Gulfer said:


> "TIVO wins trial over E*" a Texas Jury awards them 73 million. E* says the verdict will be overturned.


Thanks for the info. We had no idea!


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## JacksTiVo

The discussions about TiVo's marketing attempts are very interesting. Here is my 2 cents. 

The resistance that TiVo faces to get people to buy (now lease-buy) a Tivo is that they need to sign-up for the subscription service. People just don't want to pay for something that they believe they obtain "free" from other sources. TV listings are published daily in newspapers, cable providers usually have a designated channel scrolling TV listings and listings are also available on the Internet (Yahoo for example). The listings aren't really free since you must pay to have access to them. Home delivery of the The NY Times is about $39 per month, basic cable service is in the range of $14-15 per month and basic home dial-up Internet service is probably $12 -15 per month. So what they perceive as free really isn't. But it is bundled with other services, i.e.. newspapers provide news, TV programs are delivered to your home via cable and the Internet Service Providers deliver all kinds of information and services.

When I talk about TiVo to friends, they often say they "don't watch much TV". Since they are friends, I don't call them liars. Everybody wants to watch TV but it is just too inconvenient to do so. When I show them the TiVo features, especially watching at the time you want to and the pause feature, they then realize the advantages of owning one. 

Then the issue really comes down to this, can they afford it. I am not an economist, but everything you read states that Americans are not saving. That means that every dollar they take home each month is spent, so where do they get the money to spend an extra $16.95/month for Tivo. It means offsetting other expenses to afford the subscription fee. We like to watch movies on TV and thus we have offset the cost of cable and TiVo by not going out to the movies and saving $8 per movie ticket. (Give up smoking and save $5 per pack or more and you could afford many new things. You can also save money by buying coffee at other places than S***B****s and that savings would easily pay for a monthly TiVo subscription.)

As other writers mentioned, many technological innovations also took time to be adopted. At least two things have to come about to have new appliances successfully adopted by the general population. First of all, the device has to be perceived as a must have item and second, it has to be priced so that the middle class can afford it. Cell phones were initially very expensive to purchase and subscription and per call fees were also pricey. When the prices dropped due to competition and people realized they could eliminate their home telephone lines, cell phones became a must own item.

PC sales did not really take off until their prices dropped and the Internet became the must have technology. The same happened with DVD players, price drop and a superior technological replacement for VHS made it a must have technology.

Thus Tivo either has to demonstrate that their service is a "must have" technology and/or bundle it with other services so that people believe it is free. That is why the Echostar lawsuit is so important. Tivo will succeed when their software is also bundled with either cable or satellite TV services. 

I am looking forward to the day my cable provider offers TiVo with High Definition service in their set-top box, just as Direct TV does for my daughter and son-in-law.


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## marksman

dmdeane said:


> This is a grossly incorrect *assumption* on your part. People have gotten unrealistic expectations about the propagation of new technology thanks to the rapid spread of the Internet. The Internet only spread so quickly to new users because the key infrastructure - PCs and telephone lines - already existed and were under wide use when the Internet arrived, making for unprecedentedly rapid adoption of the new technology. Most new technologies take longer to gain widespread adoption; for instance look how long it took before everyone had electricity or telephones. It was a slow process.


No offense, but I don't need a lecture on the advancement of technology. I have a pretty good grasp of it, and have been involved in many waves of it myself. Including the internet. Which by the way is not a real good counter argument for your point because the internet took an extremely long time to catch on. Trust me, I owned an ISP back in 1994.



> The DVR isn't just a new technology, it's a new concept that most people who have not used one simply can't get their heads around. It is *not* just a digital VCR - especially in the case of TiVo, which is by far still the best DVR for pure intuitive time shifting.


That used to be the case. I don't think the average person does not get it. That is not really where I am at odds. TiVo has mis-stepped all along the way here. They should have been seeking out and inking software only deals. Let the other guys figure out how to make their customers want this new technology. Let them figure out how to make money. You just need to convince a handful of executives at a company and not 300 million americans. This is where they went wrong from the beginning.



> TiVo has wasted millions trying to market the DVR concept; it really it is not TiVo's fault that people still don't "get" it; this new DVR concept is one of those things that may, like the PC, take a generation to spread to the entire population.


I will agree they have wasted millions. I see other people mentioning tv commercials and the like. TiVo has had tv commercials before. I have to believe they were a significant waste of money. TV advertising is extremely tricky. Like I said though, they should have been working behind the scenes and marketing directly to those people who had tv customers. Let them market the product. They have much more efficient ways to market to their customers than TiVo ever could have in a scattershot general marketing approach.



> Most people don't know what they are missing, and don't care. It will take time for the DVR to become as common in the home as the TV - possibly a long time. Satellite and cable company DVRs will help speed up this process, but many people, especially the older generation, will not see the need for them.


You are right, a lot of people don't care. I am amazed, though, at the number of people who have tivos and other pvrs now. My best friend never watches tv. I went to his wedding a few months back and he has a directivo. Only reason is so he can record the Cowboys games. I didn't ask him, but he likely got a directivo because of Directv's effort to get him to get one, not Tivo's. That is the problem here. Tivo doesn't want to make less money per unit, but the problem with TiVo has always been their cost structure. It has killed them from the beginning and they seem to only get more bloated.



> Ergo, your assumption that TiVo has somehow been "holding back" the DVR is entirely erroneous.


I think TiVo has been holding back themselves. TiVo is a universally known word in the US. How many companies in the history of the US can say that about one of their products? It is a very small list. How many of them never made any money? I would guess the answer to-date is only TiVo. They have been given a once-in-a-lifetime opportunity. I consider this victory, if it stands, to be a once-in-a-lifetime reprieve. If they change things up substantially, they can still take advantage of their marketing position.

I also think they have had a negative impact on the PVR business because it took years before cable companies got onto the bandwagon, several generations behind and playing catch-up. If TiVo would have been penetrating the cable market 6 years ago, there is no way that that the PVR market would not be substantially larger today. I am simply not going to let TiVo off-the-hook by claiming nobody understood TiVo.

Regardless of all of that, people's lack of acceptance of TiVo is not responsible for their lack of profitability. They should have been profitable by now, even with the number of units they have sold.


----------



## dstoffa

MMG said:


> more from www.skyreport.com
> "However, TiVo intends to seek an immediate injunction on EchoStar DVR sales, which could force EchoStar into an immediate agreement, if the judge agrees to act before EchoStar's appeal is decided. A licensing agreement would be an obvious but manageable negative," Kidd added, saying he thinks a licensing fee could be largely offset by incremental DVR fees.


This would be bad for DVRs in general.

Getting a general restraining order would halt DVR rollout for Dish PVRs. When a Dish sub asks for a DVR unit, he'll be told, "Tivo has gone to court, and the court granted an order to force consumers to pay $16.95 / month for DVR service that is NOT intergtrated with sat receiver, instead of allowing us to provide this service to you for $5 / month."

Now, we can argue who stole what technology all day long. The bottom line for success will be getting the consumer to buy into the technology. I see consumers being mad at having to pay more for DVR service, but even if Tivo gets licensing fees / damages, I can't see them being able to compete with the cost of a cable / sat receiver on a per month basis. Tell John Q Consumer that if he wants DVR service, he has two options:
1. Tivo DVR @ $16.95 (put any amount you want from the new pricing plan in here - even the $12.95 self-owned plan) -OR-
2. $7 / month ($5 + $2 fee to Tivo) for a Dish PVR (and you never have to worry about the equipment)

I still see the average consumer choosing Option 2.


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## jmoak

general restraining order = dish paying tivo a fee very quickly

Why?

Dish does not want to tell a sub "Sorry, we stole the technology from tivo and we got busted".

I see the average dish subscriber choosing Option 2., but we're not all dish subscribers.


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## ZeoTiVo

marksman said:


> No offense, but I don't need a lecture on the advancement of technology. I have a pretty good grasp of it, and have been involved in many waves of it myself. Including the internet. Which by the way is not a real good counter argument for your point because the internet took an extremely long time to catch on. Trust me, I owned an ISP back in 1994.


 plus the same infrastructure is in place for DVRs in the form of cable. And they can use the internet for service access. So the infrastructure was there. I agree that DVR's face the same "But why do I need one" resistence as all such technologies do.



> That used to be the case. I don't think the average person does not get it. That is not really where I am at odds. TiVo has mis-stepped all along the way here. They should have been seeking out and inking software only deals. Let the other guys figure out how to make their customers want this new technology. Let them figure out how to make money. You just need to convince a handful of executives at a company and not 300 million americans. This is where they went wrong from the beginning.


uumm........ they started back in the late 90 to convince Echostar and others to use THEIR technology - then Echostar just copied it for themselves. This whole thread is ABOUT the results of TiVo trying to convince those handful of execs to use TiVo. Looks like that will now start to bear some fruit now that everyone is clearer on where the patent lies.

and the lack of profitability is in a significant way related to the technology being ripped off. Who is listed as the main competitors to TiVo? Not replayTV, not some other independant DVR maker like Sony but it is EchoStar and cable companies - the ones who have been proven to have infringed the patent or are the likely next in line for either FINALLY making a deal or being hauled into court.

Who has been touted by the very naysayers in this thread as the only thing keeping TiVo afloat - DirectTV, the only company that did make a proper and legal deal with TiVo inc. Suddenly it is just not significant and TiVo is still doomed because of poor marketing. what a load.


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## BlackBetty

Is the judge still expected to award one way or the other on treble damages today?


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## ZeoTiVo

dstoffa said:


> This would be bad for DVRs in general.
> 
> Getting a general restraining order would halt DVR rollout for Dish PVRs. When a Dish sub asks for a DVR unit, he'll be told, "Tivo has gone to court, and the court granted an order to force consumers to pay $16.95 / month for DVR service that is NOT intergtrated with sat receiver, instead of allowing us to provide this service to you for $5 / month."


 uumm... what court order did you read. I only read that Echostar willfully stole TiVo technology without licensing it up front like they should have. I also predicted this silly spin on this news is bad for all DVRs 



> 2. $7 / month ($5 + $2 fee to Tivo) for a Dish PVR (and you never have to worry about the equipment)
> 
> I still see the average consumer choosing Option 2.


well sure option 2 will be a way to go
however
I would want option 3 if I was an echostar customer
3. E* deals with the fact they tried to skate without paying for the technology and just suck it up themselves and keep the DVR rate where it is now. They still have their business plan in place and if they make a deal for TiVo software and support then I start to get more value for my having picked E* and become a happier customer since I only pay more than the 5$ or whatever it is if I choose to get more features on an upgrade of software.


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## davezatz

BlackBetty said:


> Is the judge still expected to award one way or the other on treble damages today?


I've only heard treble in relation to bass. I had to Google it for a definition... thought my vocab was decent, guess not. I'll stay away from Scrabble.


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## dtreese

I've only heard bass splashing around the surfaces of lakes and rivers.


----------



## TiVo Troll

First a question: What's different about Dish Network's DVR software that causes Dish to infringe on TiVo's patents. Why hasn't TiVo sued other companies with competing DVR's? 

IMHO, TiVo's software is "too good". I seriously value its stability and reliability but find that many of its features are over-the-top. Just provide an EPG with point and click to record, and the ability to go back into an ongoing program. (I had Basic TiVo service on a Pioneer DVR 810H and was happy with it until the HD went belly up.) Throw in Season Passes and I'm ecstatic. Add the ability to send programs from one room to another on a slow power-line-carrier network and I'm up there in 7th Heaven. 

But I rarely search for programs, never use Wishlists and TiVo's other specialty program features, and actually dislike the concept of Suggestions. I watch TV mostly in realtime and only watch recorded programs when there are conflicts in schedules. In fact having a DVR actually made me realize that when missed programs are always available I find that there are comparitively few that I really want to see and often don't watch them. 

I don't know how typical my viewing habits are but I bet that many TV viewers don't need all the features that TiVo offers at its premium price. Cheaper DVR's offering easy to use basic service may take a significant portion of the DVR market as long as they approach TiVo's standard of reliability.


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## MickeS

TiVo Troll said:


> First a question: What's different about Dish Network's DVR software that causes Dish to infringe on TiVo's patents. Why hasn't TiVo sued other companies with competing DVR's?
> 
> IMHO, TiVo's software is "too good". I seriously value its stability and reliability but find that many of its features are over-the-top. Just provide an EPG with point and click to record, and the ability to go back into an ongoing program. (I had Basic TiVo service on a Pioneer DVR 810H and was happy with it until the HD went belly up.) Throw in Season Passes and I'm ecstatic. Add the ability to send programs from one room to another on a slow power-line-carrier network and I'm up there in 7th Heaven.
> 
> But I rarely search for programs, never use Wishlists and TiVo's other specialty program features, and actually dislike the concept of Suggestions. I watch TV mostly in realtime and only watch recorded programs when there are conflicts in schedules. In fact having a DVR actually made me realize that when missed programs are always available I find that there are comparitively few that I really want to see and often don't watch them.
> 
> I don't know how typical my viewing habits are but I bet that many TV viewers don't need all the features that TiVo offers at its premium price. Cheaper DVR's offering easy to use basic service may take a significant portion of the DVR market as long as they approach TiVo's standard of reliability.


Based on TiVos sales and their marketing, it would seem that you are a fairly typical TiVo user, at least outside of this forum. 

Personally, I am the exact opposite of you, and I think many here are - rarely watch live TV except for sports, almost always use the search function to find shows to record, use the Suggestions and the wishlists. I basically only use the EPG if I happen to turn on the TV and see a show that seems interesting, to see if it'll run again later that day (if it's on cable). But I'm guessing that TiVo will not be able to convert enough people to this way of viewing to be profitable... at least not on their own.


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## dstoffa

ZeoTiVo said:


> uumm... what court order did you read. I only read that Echostar willfully stole TiVo technology without licensing it up front like they should have. I also predicted this silly spin on this news is bad for all DVRs


I read no court order. All I was pointing out was what a E* rep MAY say to a customer wanting a DVR, assuming that Tivo got their cease and desist injunction.....

Do you actually think they'll admit their mistake? They'll just forget to admit the fact they stole it. What they'd say is the truth, but not the whole truth. Ultimately, someone will say that Tivo went after E* because they have the most cash, and other DVR manufacturers are broke anyway- so a victory against a broke company is an empty one......


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## jmoak

dstoffa said:


> Ultimately, someone will say that Tivo went after E* because they have the most cash


Ultimately, someone else will say that Tivo went after Echostar because they were the first mso to offer a dvr.


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## ZeoTiVo

dstoffa said:


> I read no court order. All I was pointing out was what a E* rep MAY say to a customer wanting a DVR, assuming that Tivo got their cease and desist injunction.....
> 
> Do you actually think they'll admit their mistake? They'll just forget to admit the fact they stole it. What they'd say is the truth, but not the whole truth. Ultimately, someone will say that Tivo went after E* because they have the most cash, and other DVR manufacturers are broke anyway- so a victory against a broke company is an empty one......


ok but what you speculated


dstoffa said:


> Getting a general restraining order would halt DVR rollout for Dish PVRs. When a Dish sub asks for a DVR unit, he'll be told, "Tivo has gone to court, and the court granted an order to force consumers to pay $16.95 / month for DVR service that is NOT intergtrated with sat receiver, instead of allowing us to provide this service to you for $5 / month."


would be a lie and the CSR would be way off any script E* could officially say since the court order had nothing to say about forcing people to buy anything 

sorry for the misread- what I get for posting while waiting for compiling code


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## TiVo Troll

MickeS said:


> Based on TiVos sales and their marketing, it would seem that you are a fairly typical TiVo user, at least outside of this forum.
> 
> Personally, I am the exact opposite of you, and I think many here are - rarely watch live TV except for sports, almost always use the search function to find shows to record, use the Suggestions and the wishlists. I basically only use the EPG if I happen to turn on the TV and see a show that seems interesting, to see if it'll run again later that day (if it's on cable). But I'm guessing that TiVo will not be able to convert enough people to this way of viewing to be profitable... at least not on their own.


I agree.

Of course I'm not typical of the way most posters on these Forums use TiVo. I use an EPG a lot and frankly TiVo's EPG is not my favorite. I was disappointed when first seeing TiVo's grid style EPG and basically find it a toss-up between the "live" and "grid" styles. My favorite EPG is still ReplayTV's, followed by Comcast's MS EPG. Both are easier to read than TiVo's. TiVo's EPG is tied for 3rd with TV Guide+. (I am talking about the appearance of the guides, not the amount of information available from each source.) Of course if you watch everything from "Now Playing" the EPG doesn't matter much.

Can anyone answer my question from post 367: "What's different about Dish Network's DVR software that causes Dish to infringe on TiVo's patents. Why hasn't TiVo sued other companies with competing DVR's?"

(BTW, I used to sub. to Dish. Dish's EPG has the largest display of all and is easy to read if it's still as I remember it. Aesthetically I rate Dish's EPG ahead of TV Guide+ but below Comcast. Isn't DirectTV's EPG almost the same as TiVo's grid style?)


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## DancnDude

TiVo Troll said:


> Can anyone answer my question from post 367: "What's different about Dish Network's DVR software that causes Dish to infringe on TiVo's patents. Why hasn't TiVo sued other companies with competing DVR's?"


I believe this is just the beginning. TiVo needed to start somewhere. I don't know why Dish was first, but now that they've gotten the precedent that their patent held up court (at least so far), they will likely be attempting to negotiate licensing deals with other companies that would also be infringing the patent. And if they can't work out a deal, it's likely we will see more court cases develop.


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## Puppy76

Why would you need an episode guide? Tivo's could be improved (though it's much better than TV Guide On Screen, if that's what you were talking about), but there's hardly any reason to use it.

I guess it's basically an educational issue getting people to understand just what it is that Tivo does for you-even for some people that HAVE Tivos. I've had mine over a year, and I'm STILL finding new ways to use it smarter to improve how/what I watch.


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## TiVo Troll

DancnDude said:


> I believe this is just the beginning. TiVo needed to start somewhere. I don't know why Dish was first, but now that they've gotten the precedent that their patent held up court (at least so far), they will likely be attempting to negotiate licensing deals with other companies that would also be infringing the patent. And if they can't work out a deal, it's likely we will see more court cases develop.


Thanks! I wonder if/how ReplayTV fits into the picture. The future for TiVo seems to be to license their software to program providers so they can offer their own branded hardware with TiVo. Will ReplayTV re-enter the DVR mix via that route? I guess we'll have to stay tuned!


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## BlackBetty

Any updates on the treble damages yet?


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## davezatz

DancnDude said:


> I don't know why Dish was first.


I've been going back to this myself... I'm guessing they don't want to alienate any cable providers who may still partner with them and they're already in bed with DTV. Dish turned them down, so maybe there's nothing to lose? And speaking of lose, in the case TiVo mentioned loaning Dish a unit which they seem to have misplaced. 

Put me down as a contrarian... I would also like a better EPG and I would use it if it were present. 2/3 of the time I use the guide, my fiance has asked me to find and/or record a show either by a partial name or time estimate for a given night. In fact I was very disappointed when I originally got two SD-H400 units that didn't have the Grid Guide built in (eventually it was added with an OS update).


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## TiVo Troll

Puppy76 said:


> Why would you need an episode guide? Tivo's could be improved (though it's much better than TV Guide On Screen, if that's what you were talking about), but there's hardly any reason to use it.
> 
> I guess it's basically an educational issue getting people to understand just what it is that Tivo does for you-even for some people that HAVE Tivos. I've had mine over a year, and I'm STILL finding new ways to use it smarter to improve how/what I watch.


Perhaps it will be an educational issue for DVR marketers when they learn over time the ways that the mass-market uses the mix of DVR's that will become available.

The "steak" of the DVR is the development/invention of digital hard drive recording. The "sizzle" is the features that can be added to a HD recorder's basic ability to record and playback at the same time. Many of TiVo's features involve a search algorithm. Will the mass audience pay a premium for an especially sophisticated search algorithm? I bet the answer will be a mixed bag!


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## davezatz

TiVo Troll said:


> I wonder if/how ReplayTV fits into the picture. Will ReplayTV re-enter the DVR mix via that route?


I seriously doubt it... I bet ReplayTV doesn't last the year. No new hardware, no software updates in forever, and a quesitonable plan to sell PC DVR software as a small player in a niche market. So I'm betting D&M will close shop on RTV. Somone make a note of this proclamation, in case I need to eat humble pie 1/1/07.  I would be interested in finding out how many _paying_ subscribers they still have - it's probably pretty cheap to keep the data coming, but eventually they'll reach that point of dimishing returns. Hmmm... maybe they'll be sold off again.


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## TiVo Troll

davezatz said:


> I seriously doubt it... I bet ReplayTV doesn't last the year. No new hardware, no software updates in forever, and a quesitonable plan to sell PC DVR software as a small player in a niche market. So I'm betting D&M will close shop on RTV. Somone make a note of this proclamation, in case I need to eat humble pie 1/1/07.  I would be interested in finding out how many _paying_ subscribers they still have - it's probably pretty cheap to keep the data coming, but eventually they'll reach that point of dimishing returns. Hmmm... maybe they'll be sold off again.


I hope so. If ever there was a great concept that was never properly developed it was ReplayTV. All those stupid glitch's and reboots. The most annoying thing that was never fixed, IMHO, was the way that ReplayTV overcompensates when returning to play from FF/RW. I think the offset is backwards on RW. No wonder that ReplayTV's big deal is the 30 Sec. skip! Their FF/RW is AFU.


----------



## jmoak

TiVo Troll said:


> Thanks! I wonder if/how ReplayTV fits into the picture.





> _from Wikipedia.org_http://en.wikipedia.org/wiki/ReplayTV
> On December 19th, 2005, Digital Networks North America announced that it is exiting the hardware business as soon as current inventory is sold out. ReplayTV will then concentrate on PC software sales of its DVR technology in a partnership with Hauppauge Computer Works, a manufacturer of Television cards for PCs.


ReplayTV Announces New Strategic Direction With DVR For The PC (via Hauppauge pc cards)


----------



## stevel

From what I can see, TiVo sued DISH because of the claim that DISH copied specific TiVo technology that had been shown to them. Replay had their own system - whether it also infringes on the patent is unknown to me, but the case against them would be harder (and rather pointless).


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## 1283

Replay and TiVo already settled by patent cross licensing.


----------



## HiDefGator

TiVo Troll said:


> Thanks! I wonder if/how ReplayTV fits into the picture. The future for TiVo seems to be to license their software to program providers so they can offer their own branded hardware with TiVo. Will ReplayTV re-enter the DVR mix via that route? I guess we'll have to stay tuned!


I suspect their future will be in selling licenses to people that want to make their own DVR's without Tivo software. Most companies would probably rather pursue in house designs then have to deal with Tivo.

In the end Tivo will not be able to sell enough standalone Tivos to justify the development and marketing expense. Not enough customers to spread the costs over.


----------



## TiVo Troll

jmoak said:


> ReplayTV Announces New Strategic Direction With DVR For The PC (via Hauppauge pc cards)


I knew that. By itself that doesn't sound like a winner.

If only ReplayTV's software had been fully developed and debugged. No matter how primitive, no DVR is a "digital VCR", but ReplayTV had some nice features that did lend themselves more toward archiving than timeshifting. It's too bad that ReplayTV never allied itself with a DVD recorder company.

TiVo's DVD recorders have sacrificed editing capabilities for simplicity. The only TiVo based DVD recorders even worth considering offer TiVo's Basic service, which carries DVR/DVD recorder simplicity to the extreme but at least doesn't require renting the service.


----------



## MichaelK

peteypete said:


> "Tivo Future uncertain despite Massive victory!" The clods will still write.


Apparently one analyst raised Tivo from Hold to sell while TWO others lowered from Hold to Sell.


----------



## ufo4sale

MichaelK said:


> Apparently one analyst raised Tivo from Hold to sell while TWO others lowered from Hold to Sell.


Why?


----------



## MichaelK

Funny but Replay might just be able to make some fat cash off TiVos win. 

Can they license their technology to others and than the others will be afforded the protection of the replay/tivo cross licensing? So if TiVo asked Motorola for $1.00 a box (either while giving them TiVo software, or as just a licensing fee to continue to infringe with the current moto software), replay could offer Moto 10 cents just to have rights to the software. 

Is that a possibility? Or are cross-licensing agreements usually full of restrictions to keep such a thing from happening?


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## ZeoTiVo

MichaelK said:


> Funny but Replay might just be able to make some fat cash off TiVos win.
> 
> Can they license their technology to others and than the others will be afforded the protection of the replay/tivo cross licensing? So if TiVo asked Motorola for $1.00 a box (either while giving them TiVo software, or as just a licensing fee to continue to infringe with the current moto software), replay could offer Moto 10 cents just to have rights to the software.
> 
> Is that a possibility? Or are cross-licensing agreements usually full of restrictions to keep such a thing from happening?


cross license usually just applies to the two companies and they do not have the rights to sell the other companies license. Lawyers are picky that way.


----------



## MichaelK

ufo4sale said:


> Why?


no idea why. Just saw it on the yahoo tivo stock page- you can see which analysts upgraded or downgraded a stock.

4/17 Kaufman Brothers and Ferris Baker Watts downgrade, 
Maxim group upgrade.

go figure...


----------



## MichaelK

ZeoTiVo said:


> cross license usually just applies to the two companies and they do not have the rights to sell the other companies license. Lawyers are picky that way.


That would be wise- you could get hosed otherwise with the other company selling rights to your technology.

sometimes lawyers really do keep you out of trouble-LOL.


----------



## BlackBetty

When is the judge going to rule on treble award and also the injunction on Dish DVRS?


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## ZeoTiVo

BlackBetty said:


> When is the judge going to rule on treble award and also the injunction on Dish DVRS?


you got to know when to hold them, know when to fold them


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## SullyND

Though I am glad TiVo won, and I am looking forward to what else comes of this, I am disappointed that his name is NOT Judge Fudge Folsom.


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## samo

ZeoTiVo said:


> cross license usually just applies to the two companies and they do not have the rights to sell the other companies license. Lawyers are picky that way.


But Dish or any other company can buy license to Replay patent that is essentially the same as Tivo patent and TiVo can't sue them (just like they can buy license to TiVo patent and Replay can't sue for violation of their patent)


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## jfh3

samo said:


> But Dish or any other company can buy license to Replay patent that is essentially the same as Tivo patent and TiVo can't sue them (just like they can buy license to TiVo patent and Replay can't sue for violation of their patent)


You don't happen to work for Dish, do you? 

This wouldn't help Dish at all, even if they could do what you suggest.


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## LostCluster

Assuming all patents are valid, a non-TiVo, non-ReplayTV DVR would require a license from TiVo for their patents, ReplayTV for their patents, plus Gemstar/TV Guide for their patents.

TiVo already is fully licensed with ReplayTV and Gemstar. All competitors need to get up to that level of coverage in order to compete without fear of lawsuits.

Bottom line: TiVo right now is being forced to compete with underpriced competitors who aren't paying up for their use of patented technologies. Expect TiVo to go after Motorola and Scientific Atlanta next to take out the cable DVRs.

And TiVo's got a leg up on ReplayTV who if they had the cash could join the patent suit party, but their products were inferior all along and they've really got nothing to show for it.


----------



## ZeoTiVo

samo said:


> But Dish or any other company can buy license to Replay patent that is essentially the same as Tivo patent and TiVo can't sue them (just like they can buy license to TiVo patent and Replay can't sue for violation of their patent)


assuming ReplayTV has a patent that would cover the DISH DVR. Also consider the software patents that are solely TiVo that E* was also found to willfully infringe, though it must not have been an exact copy from user accounts of Dish DVRs


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## dstoffa

LostCluster said:


> And TiVo's got a leg up on ReplayTV who if they had the cash could join the patent suit party, but their products were inferior all along and they've really got nothing to show for it.


Six one way, half dozen the other. Each camp will write that their box is superior. But each did some things better than the other.

Tivo is great for GETTING (aka finding and recording) shows (Season Pass, To Do, etc.), while ReplayTV is great for WORKING with shows once you have them (DVArchive, built-in ethernet, etc.)


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## jmoak

According to Judge Folsom's office this morning, Tivo has not, to their knowledge, filed for an injunction against echostar.

Looks like someone may be in talks with echostar.

sorry about the lack of updates, but all that's been released this week is rehashes of last weeks news.


----------



## MichaelK

jmoak-

did you cal his secretary?


----------



## jmoak

MichaelK said:


> jmoak-
> 
> did you cal his secretary?


Yep.

I spoke with Betty Schrader, Judge Folsom's court coordinator/court assistant, this morning at 11:45et.


----------



## emeril2k1

lajohn27 said:


> As I see it, few Americans "NEED" giant SUVs for their day to day activities. Many could by with minivans or similarly more fuel efficient vehicles.


Explain to me how a gas guzzling, road hogging, mini van is any better than an SUV?

What we need is more people that live closer to work, more car pooling, and more people riding Scooters and Mo-peds. Why the heck did they stop making electrics? That would be perfect for me and my 6 mile commute.


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## herdfan

Anyone have any idea when TiVo will push the injunction?


----------



## dswallow

herdfan said:


> Anyone have any idea when TiVo will push the injunction?


Rumor is they might be in talks with Dish Network about a settlement. I would expect if they are in talks, they'd go after an injunction if the talks have not gone anywhere TiVo wants to go.


----------



## peteypete

jmoak said:


> Yep.
> 
> I spoke with Betty Schrader, Judge Folsom's court coordinator/court assistant, this morning at 11:45et.


Is there any meat to the logic of the last few posts?

I remember reading in another place that Dish actually wanted to settle before it went to trial but Tivo was playing hardball.


----------



## jfh3

peteypete said:


> Is there any meat to the logic of the last few posts?
> 
> I remember reading in another place that Dish actually wanted to settle before it went to trial but Tivo was playing hardball.


Actually, late last summer I'd read that some inside Echostar wanted to settle but Charlie said no.


----------



## MichaelK

jmoak said:


> Yep.
> 
> I spoke with Betty Schrader, Judge Folsom's court coordinator/court assistant, this morning at 11:45et.


You are da man!


----------



## jmoak

from the yahoo group:


> This document was filed yesterday by Tivo to the Court of Appeals for the Federal Circuit. Apparently, Echostar is witholding a document that Tivo thinks the judge needs to see before making his judgement on enhanced damages. I believe the "Mr. Knearl" they're talking about was a economist expert witness in the trial....
> 
> "Dear Mr. Horbaly:
> We are writing on behalf of respondent TiVo Inc. to update the Court about a development in the underlying action that is relevant to the above-referenced pending petitions for writs of mandamus.
> 
> On April 13, 2006, the jury returned a unanimous verdict for TiVo in the District Court for the Eastern District of Texas (Judge Folsom presiding), finding that all of TiVo's asserted claims were valid and infringed by each of EchoStar's accused products. The jury awarded damages of $73,991,964, and further found that EchoStar infringed willfully.
> 
> Although the question of willful infringement was addressed by the jury, the documents being withheld by EchoStar, Merchant & Gould and Mr. Knearl are still relevant to pending issues, such as Judge Folsom's yet-to-be-made determination whether (and how much) to enhance damages and whether this is an "exceptional case" warranting an award of attorneys' fees. Accordingly, TiVo respectfully requests that this Court rule on the writ petitions at its earliest convenience.
> 
> Respectfully submitted,
> Perry Goldberg "


_____________________________
I'm not da man! But I do play one on tv......


----------



## ChuckyBox

jmoak said:


> from the yahoo group:_____________________________
> [ ... ]


There is quite clearly a smoking gun in these documents.

This has been an issue of some contention for some time. E* wanted to use the "advice of outside counsel" defense against wilfulness. IIRC (and I probably don't): They had Knearl write them a document saying that he didn't think they were infringing. He did. They produced this document during discovery. TiVo subpoenaed his "work product" (i.e., all of the papers relating to the work he did for E*). E* said no, citing attorney-client privilege. TiVo said you can't claim privilege when you are using the attorney as a witness. TiVo filed a motion to compel, which the judge granted. E* stalled and stalled, and finally asked the court for clarification. The court again issued an order to produce the documents. Still E* wouldn't comply. They filed motions with another federal court, but when it was clear that no response was going to be forthcoming, the found a judge and begged him to review the order, promising that if he would hear their case, they would abide by his decision. The judge heard the case, *and read the documents in question* and said absolutely TiVo had the right to see them and ordered E* to produce them. E* said "no, thank you" and went back to petitioning the Federal court. TiVo asked Folsom to disallow the witness and his exhibit, as E* had produced neither the ordered documents nor the witness himself for deposition. I don't know what the judge ruled on that motion, but I would guess he ruled for TiVo. Now TiVo wants the documents for their request for enhanced damages and I'm sure E* still doesn't want to give them up. My guess is that in any retrial ordered by an appeals court, these documents would sink E*. They may have additional value to TiVo, too, I don't know.

Anyway, smoking gun, for sure. My guess is that there are a series of revisions that demonstrate that they knew E* was infringing, and didn't want to expose themselves to allegations of malpractice, but ended up writing what E* told them to. But that's just a guess.


----------



## davezatz

What happens if the court requires the documents and they continue to refuse? Are there consequences beyond possible increased penalities paid to TiVo? Sounds like this gives TiVo more levarage in working out a bigger settlement/licensing agreement if Echostar is so unwilling to reveal those docs. Interesting stuff!


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## ZeoTiVo

and here is another thought on that -
what if the work docs talk about other DVRs from other companies


----------



## jmoak

here's a weird question,

Why the heck are we (just regular joes armed with nothing but curiosity and a web browser) the only ones who seem to be asking these questions? at least publicly?


----------



## samo

jmoak said:


> here's a weird question,
> 
> Why the heck are we (just regular joes armed with nothing but curiosity and a web browser) the only ones who seem to be asking these questions? at least publicly?


Perhaps nobody else cares "whether this is an "exceptional case" warranting an award of attorneys' fees."?


----------



## ChuckyBox

davezatz said:


> What happens if the court requires the documents and they continue to refuse? Are there consequences beyond possible increased penalities paid to TiVo?


Yeah, eventually they could be cited for contempt of court. Then the judge has a fair bit of of power to compel them to deliver. I'm not sure what the limits are, but he would certainly have options like fines, tossing someone (maybe Charlie) in jail, sending in the authorities to take the stuff.


----------



## jmoak

samo said:


> Perhaps nobody else cares "whether this is an "exceptional case" warranting an award of attorneys' fees."?


Especially if they're from Littleton! ... or Inglewood, even!


----------



## samo

jmoak said:


> Especially if they're from Littleton! ... or Inglewood, even!


You wanted to say Englewood,did you? Actually the person who cares more than you do lives in Bow Mar. Clue - he ownes 50.1% of E*.


----------



## davezatz

Apr 21, 2006 08:45 ET

Irell & Manella Trial Team Secures $74 Million Patent Infringement Verdict for DVR Market Leader TiVo

Jury's finding of willful infringement by EchoStar means damages could be trebled

LOS ANGELES, Calif., April 21 -- In a closely-watched trial involving one of the most popular forms of technology in the home entertainment market, law firm Irell & Manella LLP represented TiVo Inc. in its $74 million patent infringement verdict against EchoStar Communications Corp.

On April 13, a Marshall, Texas jury concluded that EchoStar had willfully infringed TiVo's patent on its "time-warp" technology for digital video recorders (known as DVRs). Despite two weeks of testimony about complex technology and patent issues, the jurors needed only two hours and fifteen minutes of deliberations to reach the unanimous verdict.

The finding of willful infringement exposes EchoStar to potential treble damages. In addition, EchoStar faces a potential injunction that would preclude it from further distribution of infringing DVRs. TiVo's general counsel Matthew Zinn noted after the trial that an injunction would be even more meaningful than the sheer dollar award.

Although many companies -- EchoStar included -- had previously tried to develop DVRs, TiVo was the first to produce successfully and market a low-cost DVR product that allows consumers to pause, rewind, and fast forward a live television program.

Morgan Chu led a team of Irell & Manella attorneys who focused on the different issues in the case. Andrei Iancu focused on the technology and patent issues in the case, while Christine Byrd focused on explaining how TiVo's business was directly damaged by EchoStar's infringement and establishing the amount of damages. Perry Goldberg focused on showing that EchoStar was fully aware of TiVo's patent but nonetheless continued to sell its own DVRs without making any design changes.

"We're extremely pleased that the jury agreed with our view of the case," said Morgan Chu, the Irell lawyer who led TiVo's trial team. "TiVo is a great company whose innovations have forever changed the landscape of the home entertainment industry. While trial lawyers always like to win, doing so for a company that has pushed existing boundaries to create a valuable product makes the verdict even more rewarding."

Irell has been representing Silicon Valley-based TiVo since January 2000, when the market leader first came under attack from companies looking to profit from the DVR craze. The firm successfully defended TiVo in separate actions by both Gemstar and Pause Technology.

The EchoStar verdict reached in Texas, TiVo's first against an infringing competitor, is the natural outcome of a comprehensive litigation strategy that Irell has pursued since 2004 when the case was filed.

"Although a trial verdict understandably gets the most attention in a patent suit, the road to obtaining a verdict of infringement is usually paved by a series of wins in extremely complicated pretrial motions and discovery proceedings," said Mr. Chu. "This case was no different. In large part, our

victory at trial sprang directly from earlier achievements, which included obtaining favorable claim construction and discovery rulings."

Mr. Chu added: "One of the reasons for our firm's frequent success is our staffing philosophy. Our IP litigation teams usually include attorneys who are not technologists, in addition to lawyers with technical backgrounds. As a result, we are able to offer clients such as TiVo the best of all possible worlds - complete understanding of the complex technologies at issue in these cases integrated with well-rounded problem-solving perspectives and differentiated skill sets."

In addition to Mr. Chu, TiVo was represented at trial by Irell attorneys Christine Byrd, Perry Goldberg, Andrei Iancu, Ben Yorks, Alexander Giza, Adam Hoffman, Brian Jones and Michelle Armond, and by local counsel Sam Baxter and Garret Chambers of McKool Smith.

Note:

Irell & Manella LLP is a full service law firm with over 205 attorneys in its Southern California offices in Los Angeles and Newport Beach. Founded in 1941, the firm is nationally recognized for its intellectual property, technology transactions, entertainment, tax, litigation, corporate and securities practices. Irell was named the Number One U.S. law firm for intellectual property by Chambers in 2005. For more on the firm, visit http://www.irell.com/ .


----------



## jmoak

from law.com

Even With $74M Victory, TiVo's Patent Fight With EchoStar Plays On


> *Even With $74M Victory, TiVo's Patent Fight With EchoStar Plays On*
> Tech dispute shifts to the U.S. Patent and Trademark Office
> Mary Alice Robbins
> Texas Lawyer
> April 27, 2006
> 
> TiVo Inc. faces the possibility of having to defend a multimillion-dollar verdict it won in a patent infringement suit against EchoStar Communications Corp. while defending the validity of its patent on digital video recording technology.
> 
> On April 13, a federal jury in Marshall, Texas, awarded California-based TiVo nearly $74 million after finding that Colorado-based EchoStar, the parent company of the DISH Network satellite TV provider, had infringed on TiVo's "multimedia time warping system."
> 
> In May 2001, the U.S. Patent and Trademark Office issued TiVo a patent on the time warp technology for digital video recorders (DVRs) that allows viewers to pause, rewind and fast-forward live television shows.
> 
> However, TiVo faces a fight over the validity of its patent. Acting on a request filed last year by EchoStar, the USPTO ordered a re-examination of TiVo's patent on Dec. 15, 2005, according to the patent office's Web site.
> 
> That is something that happens often, David McCombs, chairman of the State Bar of Texas Intellectual Property Section, says of EchoStar's request that TiVo's patent be re-examined. "Re-examination as a strategy in patent litigation is becoming much more common," says McCombs, a partner in the Dallas office of Haynes and Boone.
> 
> David Parker, a partner in and head of the intellectual property section at Fulbright & Jaworski in Austin, says some attorneys use that strategy to try to introduce USPTO determinations -- that patents should be re-examined -- into evidence before a jury. If the request for re-examination is done early enough in litigation, the defense may also persuade the judge to stay the suit, says Parker, who teaches patent strategy as an adjunct professor at the University of Texas School of Law.
> 
> Parker says a re-examination is one of the few procedures available in the patent office through which patent owners, third parties or the USPTO commissioner can raise questions as to whether a patent should have been issued. In the re-examination, which is an administrative proceeding, a hearing officer determines whether the patent is novel with respect to inventions and scientific publications that came before it, called "prior art," says Parker.
> 
> If the hearing officer finds a patent is not novel, Parker says, he or she issues a rejection. Parker says the patent owner has an opportunity to file a response and evidence supporting the position that the patent is novel. If unconvinced, the hearing officer will issue a final rejection, which the owner can appeal to the USPTO Board of Appeals and Interferences. That board, made up of three administrative patent judges, then decides whether to affirm or reverse the hearing officer's decision, Parker says.
> 
> The patent owner can appeal the board's decision to the U.S. Court of Appeals for the Federal Circuit in Washington, D.C., he says.
> 
> TiVo filed suit against EchoStar in the U.S. District Court for the Eastern District of Texas in Marshall in January 2004. EchoStar filed its request for re-examination of TiVo's patent in October 2005.
> 
> Parker says EchoStar did not attack all of TiVo's patent claims in its request for a re-examination. But all of the claims that were the subject of TiVo's suit against EchoStar are involved in the re-examination, he says.
> 
> FAVORABLE JURISDICTION
> 
> Patent attorney David Judson, a Dallas solo, says the jury's verdict favoring the plaintiff in TiVo Inc. v. EchoStar Communications Corp. was not unexpected. "It's a very pro-patent-owner jurisdiction," Judson says.
> 
> Sam Baxter, lead counsel for TiVo and a principal in McKool Smith in Marshall, says his client filed the suit in the Eastern District because "they have good, common-sense juries," good judges and the district is known for its speedy trials. The verdict gives TiVo leverage, as it seeks licensing fees from other companies that use its technology, Baxter says.
> 
> But if the USPTO hearing officer invalidates TiVo's patent claims in the re-examination, TiVo could be unable to seek licensing fees for the technology. Parker says TiVo still would have a patent, but the patent would be much narrower than it is now.
> 
> Baxter says in its suit TiVo had sought $87 million in damages from EchoStar. However, Baxter says TiVo had a "marking problem."
> 
> To win damages in a patent infringement suit, the plaintiff must have marked its product with its patent number. While TiVo had marked some of its products with the patent number, it had not marked all of its products, he says.
> 
> "I think the jury decided the best thing to do was to be conservative and to start [calculating damages] when we filed the suit," Baxter says.
> 
> Harold McElhinny, lead counsel for EchoStar and a partner in Morrison & Foerster in San Francisco, declines comment on the case. In a written statement released April 13, EchoStar calls the jury's verdict "the first step in a very long process" and says it believes TiVo's patent is "overly broad" given the technology that existed when TiVo filed its patent.
> 
> "We believe the decision will be reversed either through post-trial motions or on appeal," EchoStar says in the statement.
> 
> U.S. District Judge David Folsom of Texarkana, who presides over TiVo, isn't expected to file a judgment in the case for several weeks.
> 
> While Folsom could find that the evidence doesn't support the jury's verdict, that's unlikely, says Parker. In his experience, Parker says, judges typically are reluctant to substitute their judgment for the judgment of the jury, which is the fact-finder in a case.
> 
> Under 35 U.S.C. §§284 and 285, Folsom could triple the award to TiVo, because the jury found EchoStar willfully infringed on the patent. Folsom also could grant TiVo's request for an injunction to prevent EchoStar and its affiliates from using the technology.
> 
> EchoStar could appeal an adverse judgment to the Federal Circuit -- the same court where TiVo would have to appeal if the USPTO appeals board affirms a rejection of TiVo's patent.
> 
> Parker says if TiVo appeals the USPTO board's decision in the re-examination process to the Federal Circuit, the court likely won't decide the issue for at least two years. But the Federal Circuit potentially could hear an appeal by EchoStar of Folsom's judgment and issue a decision within a year, Parker says.
> 
> If that happens, Parker says, TiVo has the advantage. Parker says that, if the Federal Circuit affirms the judgment in TiVo but ultimately rules against TiVo on its patent, the company still would have an enforceable judgment.
> 
> "The whole process is a little wacky," says Matthew Zinn, TiVo's general counsel.
> 
> But Zinn says TiVo isn't concerned about the re-examination of its patent. He says it's practically automatic that if someone requests a re-examination of a patent, the USPTO will conduct the re-examination.
> 
> Zinn says the patent office has said only that it will look at TiVo's patent. "That doesn't mean anything," he says.


Dale's site now has a link to the documents (at least the public ones) filed in echostar's patent challenge.


----------



## Squeege96

THE SEATTLE TIMES

Texas district is heaven for patent holders under siege
By Susan Decker

Bloomberg News

When TiVo won a $74 million infringement case against EchoStar Communications in Marshall, Texas, last month, few patent attorneys were surprised.

Marshall is to patent holders what Hershey, Pa., is to chocolate lovers: the sweetest spot in the nation. Since 1999, the federal district in which Marshall is located has seen a tenfold increase in patent lawsuits, drawn by a fast-moving docket and local rules adopted by U.S. District Judge T. John Ward that seek to streamline even complicated cases. Another attraction: Inventors and other patent owners have won jury verdicts 90 percent of the time since 1994.

"It's the biggest business in Marshall," said Matt Powers, a patent attorney with New York's Weil, Gotshal & Manges who has defended Microsoft, Xilinx and Intel. "Every one of these big tech companies is being sued in Marshall more than anywhere else."

Much of that activity is thanks to Ward. After he was appointed to the bench in 1999, he required plaintiffs and defendants to immediately turn over relevant information, shortening the time period for pre-trial evidence gathering. He also sanctions lawyers who don't move quickly enough to exchange evidence or who withhold information. And he requires both sides to find claim terms they can agree on, leaving fewer to be disputed in court.

"Marshall had one of the fastest dockets going for some period of time," said Steve Akerley of McDermott, Will & Emery in Palo Alto, Calif., who has handled cases in the town.

"We typically advise our clients to file in the Eastern District of Texas," added Max Tribble of Susman Godfrey in Houston. "It's the fastest to trial."

Ward became interested in patent law before he became a judge while representing Hyundai Electronics Industries in a lawsuit filed by Texas Instruments. He lost when a jury awarded $25.2 million to Texas Instruments in 1999.

That was a record for Marshall until the TiVo award over a recording-device patent. Aside from speed, Ward said Marshall offers a jury pool of defenders of property rights, friendly to patent owners' interests.

In 1999, the year the Texas Instruments case was decided, 14 patent suits were filed in the district, according to LegalMetric, a St. Louis-based company that tracks patent litigation. The number grew steadily until it reached 155 last year, said Greg Upchurch, LegalMetric's research director. As of April 12, 48 had been filed this year, he said.

Spillover cases




The district is one of just eight with more than 100 new patent filings a year. The popularity of other forums is more predictable. Courts in Silicon Valley in Northern California, in New Jersey, headquarters of some big drug makers, and in Delaware, where many companies are incorporated, also handle many patent cases.

The Marshall site is getting so busy that patent cases are spilling over to nearby courts in the district, including Tyler. A jury there ruled April 19 that Microsoft, the world's biggest software company, and design-software maker Autodesk should pay $133 million for infringing a Michigan man's patents on technology to fight software piracy.

Jurors in Marshall  or anywhere in the country  tend to favor patent owners, in part because federal law does.

A company sued for infringement can claim as a defense that the invention wasn't really new. Finding a patent invalid can be a hard decision for a juror. Under federal law, a patent is presumed valid unless proved otherwise. Ruling it invalid has the effect of overturning a U.S. government decision.

Property rights and respect for government resonate particularly strongly in East Texas, Ward said.

Trust in government

"I think the people in this part of the world still trust their government, and they think the role of the government is to protect their property," the judge said.

"When you say a patent is presumed to be valid because it's been issued by the U.S. Patent and Trademark Office, and it's got that big red-and-gold seal, that means something."

Verdicts for patent owners bear that reputation out, LegalMetric's Upchurch said. Patent owners won 12 of 15 patent trials from 1994 to March, including 9 out of 10 by jury trial, he said. Nationwide, patent owners win about two-thirds of all jury trials.

With the wins for patent owners in the Microsoft and TiVo cases included, the victory rate for jury verdicts since 1994 is 92 percent.

The technology industry has singled out Marshall as part of an overall problem of increased litigation that has put it under siege from small patent owners. The Business Software Alliance in court papers said many personal-injury lawyers in Marshall switched to patent law after Texas legislators limited how much could be collected in personal-injury cases.

Cases settled

Microsoft, Hewlett-Packard and others are pushing Congress to require that either the patent owner or the accused infringer have a physical presence in the district where a suit is filed, such as the patent owner's hometown or a factory owned by the accused infringer.

Now, a patent owner can sue in any district where a product is sold.

The reputation of the court hasn't led to a greater percentage of settlements, Upchurch said. Two-thirds of cases end in settlement, about the national average.

The TiVo and Microsoft cases may lure more patent litigators to eastern Texas. That, in turn, may mean the end of at least some of Marshall's appeal. Among the 30 federal district courts with the most patent filings, it now ranks 11th in speed of completing such cases.

"We've got too many cases now," Ward said.

"It will correct itself over time. Time is money for these people in technology cases so they need their cases to be handled quickly."

Already, other courts are looking to pick up some of Marshall's slack. Pittsburgh courts have adopted "aggressive patent rules" that promise to resolve cases quickly and the city offers better local hotels and attractions than eastern Texas, said Rob Lindefjeld of Jones Day in Pittsburgh, a member of the American Bar Association's intellectual-property law group.

"Our plan is to make Pittsburgh the Marshall, Texas-plus," he said.


----------



## TiVoCanada

http://www.tivotoday.com/judge_folsom_may_rule_on_final_judgement_on_5_16_06

so now TiVo is getting 300 million dollars?


----------



## jmoak

TiVoCanada said:


> http://www.tivotoday.com/judge_folsom_may_rule_on_final_judgement_on_5_16_06
> 
> so now TiVo is getting 300 million dollars?


They _could_ get three times the jury award due to the determined "willful infringement" Keep in mind though,

_first line of the article:_
"Message boards across the web are speculating..."
...so take it with a grain of salt.

*BUT*

The "Telephonic Status Conference" is not speculation.

posted yesterday by mtchamp2, Msg: 374983 at yahoo:


> ORDER Telephonic Status Conference set for 5/16/2006 01:30 PM in Ctrm 319 (Texarkana) before Judge David Folsom, for the purposes of determing whether any post-trial briefing will be submitted and the schedule therefore. In advance of this conference, by way of letter, the parties should inform the Court of any outstanding issues which they contend need to be addressed before entry of a final judgment. The telephonic conference call shall be initiated by Plfs counsel. Signed by Judge David Folsom on 5/4/06. (mrm, ) (Entered: 05/05/2006)


..... in preperation for final judgement.

If a tivo/echostar deal is coming, one would think it would be revealed in that conference.


----------



## Leo Valiant

I finally listened to Richard Bullwinkle (former TiVo employee) on CrankyGeeks.
Here's what he had to say;

"Dish absolutely went over to TiVo and said we would like to build one with you, got all of our technology, we started helping them, we started taking about design phase and all those things, and they went away. And then they came out with their own."
...
"I don't want to slam everybody in one statement, but it was a clear act of theft."

The April 19th CrankyGeeks episode in question can be found here
http://crankygeeks.com/blogs/crankygeeks/archive/2006/04/19/243.aspx
The quotes above are about 25 minutes into the show.

For those who weren't around here a few years ago, Richard Bullwinkle AKA "RB" was really the only voice of TiVo here. He left to go work for ReplayTV and soon after TiVoPony stepped in.


----------



## peteypete

ChuckyBox said:


> There is quite clearly a smoking gun in these documents.
> 
> This has been an issue of some contention for some time. E* wanted to use the "advice of outside counsel" defense against wilfulness. IIRC (and I probably don't): They had Knearl write them a document saying that he didn't think they were infringing. He did. They produced this document during discovery. TiVo subpoenaed his "work product" (i.e., all of the papers relating to the work he did for E*). E* said no, citing attorney-client privilege. TiVo said you can't claim privilege when you are using the attorney as a witness. TiVo filed a motion to compel, which the judge granted. E* stalled and stalled, and finally asked the court for clarification. The court again issued an order to produce the documents. Still E* wouldn't comply. They filed motions with another federal court, but when it was clear that no response was going to be forthcoming, the found a judge and begged him to review the order, promising that if he would hear their case, they would abide by his decision. The judge heard the case, *and read the documents in question* and said absolutely TiVo had the right to see them and ordered E* to produce them. E* said "no, thank you" and went back to petitioning the Federal court. TiVo asked Folsom to disallow the witness and his exhibit, as E* had produced neither the ordered documents nor the witness himself for deposition. I don't know what the judge ruled on that motion, but I would guess he ruled for TiVo. Now TiVo wants the documents for their request for enhanced damages and I'm sure E* still doesn't want to give them up. My guess is that in any retrial ordered by an appeals court, these documents would sink E*. They may have additional value to TiVo, too, I don't know.
> 
> Anyway, smoking gun, for sure. My guess is that there are a series of revisions that demonstrate that they knew E* was infringing, and didn't want to expose themselves to allegations of malpractice, but ended up writing what E* told them to. But that's just a guess.


Looks like the smoking gun is gonna get buried, at least that's my reading of it.

E* did waive client-attorney privledge in using the attorney as a witness, but there is still a "work product waiver" in which "Importantly, 'work product, which is never communicated to the client, is not discoverable' even after waiver of attorney-client privilege."

E* must have be sh*ting in their pants on this one and squeaked by, but I think willfulness may still be on the table, just not a slam dunk.

http://patentlaw.typepad.com/patent/2006/05/in_re_echostar_.html


----------



## jfh3

peteypete said:


> Looks like the smoking gun is gonna get buried, at least that's my reading of it.


My thoughts exactly. Too bad.

I guess some executives in Littleton will sleep a little better tonight.


----------



## ChuckyBox

peteypete said:


> Looks like the smoking gun is gonna get buried, at least that's my reading of it.


Maybe, maybe not. All this means is the original judge is going to have to decide which documents TiVo will get. If something was communicated to Echostar, it is still fair game. Thus, for instance, if there is a draft letter with a bunch of handwritten notes that are the result of a conversation with someone at Echostar, it will still be available to TiVo.

It is possible that this will give Echostar the break they wanted, but there is no guarantee of that. TiVo could still get their smoking gun.


----------



## ChuckyBox

peteypete said:


> E* must have be sh*ting in their pants on this one and squeaked by, but I think willfulness may still be on the table, just not a slam dunk.


Wilfullness has been proven. The jury ruled as much. The amount of "enhanced damages" is still to be decided however, and the smoking gun (if it exists) may have helped TiVo's case for triple damages.


----------



## peteypete

ChuckyBox said:


> Wilfullness has been proven. The jury ruled as much. The amount of "enhanced damages" is still to be decided however, and the smoking gun (if it exists) may have helped TiVo's case for triple damages.


Right, willfullnes it was proven and ruled by the jury, I guess what I meant was the degree of "enhanced damages", which seems to be up to the judge? Right?

By the way, thanks Chuckybox for that earlier post, you seem to really be on top of the case. I mean, that synopsis was spot on and definately shows you've done some research or have some sort of law background.


----------



## ChuckyBox

peteypete said:


> Right, willfullnes it was proven and ruled by the jury, I guess what I meant was the degree of "enhanced damages", which seems to be up to the judge? Right?


Right. The judge can award up to triple damages. There is also the matter of TiVo's legal fees, which the judge can also cause Echostar to pay. If there is a smoking gun, it would greatly support TiVo's argument for giving Echostar the smackdown.



> By the way, thanks Chuckybox for that earlier post, you seem to really be on top of the case. I mean, that synopsis was spot on and definately shows you've done some research or have some sort of law background.


I'm not a lawyer, I just play one on the internet.  But, seriously, I've just read a lot of the documents. Despite a lot of law-talkin' and citations of case law, the arguments and orders are usually worded in plain English. It's pretty interesting stuff, if you are in to that kind of thing.


----------



## davezatz

peteypete said:


> have some sort of law background.


It's all that time he's spent in divorce court.


----------



## andyf

Apparantly Echostar doesn't have much respect for the court system.

Here from the Denver post: http://www.denverpost.com/business/ci_3791466


----------



## ChuckyBox

davezatz said:


> It's all that time he's spent in divorce court.


And I never did get any pie.


----------



## jfh3

The AP and others today are reporting that Echostar settled with Tivo for $74M, giving that as one of the reasons for Echostar's poor performance this quarter. 

I don't see anything from Tivo or Echostar on a settlement - did the reporter just get this wrong?

From the Dish 10-Q:

"During 2004, Tivo Inc. (Tivo) filed a lawsuit against us in the United States District Court for the Eastern District of Texas. The suit alleged infringement of United States Patent No. 6,233,389 (the 389 patent). The 389 patent relates to methods and devices for providing what the patent calls time-warping and other digital video recorder (DVR) functionality. On April 13, 2006, a jury determined that we willfully infringed Tivos patent, awarding approximately $74.0 million in damages. Consequently, the judge will be required to make a determination whether to increase the damage award to as much as approximately $230.0 million and to award attorneys fees and interest to Tivo. Tivo is also expected to seek supplemental damages from the judge (which could substantially exceed damages awarded to date), for the period from the date of the jury award through our appeal of the verdict and has publicly stated that it will seek an injunction against future infringement.

If modifications are possible, they could require us to materially modify or eliminate certain user-friendly features that we currently offer to consumers. 

In the event we are prohibited from distributing DVRs we will be at a competitive disadvantage to our competitors and, while we would attempt to provide that functionality through other manufacturers, the adverse affect on our business would likely be material. "


What are "supplemental damages"?


----------



## jmoak

jfh3 said:


> The AP and others today are reporting that Echostar settled with Tivo for $74M, giving that as one of the reasons for Echostar's poor performance this quarter.
> 
> I don't see anything from Tivo or Echostar on a settlement - did the reporter just get this wrong?


Echostar has not settled. They reported "a $74 million charge related to the Tivo litigation" in today's financial statement.

They have not settled nor have they given tivo any money, it's just "charged" on their balance sheet for the quarter.

..although the press would have you believe that it's all settled and many "analysts" have jumped on the bandwagon.

A little public word from tivo on this would be nice right now.


(cripes, the judge hasn't even given the final ruling yet!)

btw,
As of this morning, dozens of papers ran the AP story with the erroneous line, "The current quarter included a $74 million settlement with TiVo".
By tonite hundreds of sites will quote this line as truth.

_""If you tell a lie big enough and keep repeating it, people will eventually come to believe it."_
Joseph Goebbels, Hitlers Minister of Propaganda


----------



## ZeoTiVo

I would assume TiVo is in talks with echostar as some sort of agreement to move TiVo software into the sat broadcaster would be worth more than treble damages long term. Certainly nothing they would publicly say about that.

But it is fair to say there is a 74 million PENALTY that echostar incurred in this quarter and had to report, regardless of actual payout of funds.

also fair say that echostar will work to have it overturned though most would not bank on that happening.

so all in all another example of reporting shorthand to make the story easier to digest in this information overload world. The real outcome has yet to be written on this one


----------



## jfh3

ZeoTiVo said:


> so all in all another example of reporting shorthand to make the story easier to digest in this information overload world.


Yes, but "easy to digest" shouldn't equate to "wrong".

I'm sure the shareholders of both companies would appreciate correct information, so those in the know don't take unfair advantage on the market.

If there is no settlement (as appears to be the case), it shouldn't be reported as a settlement.


----------



## herdfan

E* is forced to report it as a charge on its financial statements. As of today, E* owes that money to TiVo and it has to be reported as such. Future factors may change that, but as of today, E* is liable for that payment.


----------



## Puppy76

The ironic thing is if Dish would switch to Tivo, a lot of us would consider them! Especially with their relativly decent prices compared to DirectTV and most people's cable. It would have to be relativly full featured Tivo though-Tivo2go, modern features (that get updated from time to time), etc.

Without Tivo, I don't see much use in the satelite companies-not when other methods let you record two shows at once.


----------



## ChuckyBox

jfh3 said:


> What are "supplemental damages"?


Echostar continues to infringe (with millions of boxes deployed in the field), so TiVo will ask the judge to award damages under some formula until a) Echostar no longer infringes, or b) Echostar licenses TiVo's technology.

But the thing about all of this that I don't get is that Echostar took a charge against their 1st quarter, but the verdict didn't happen until April, and for that matter, there still hasn't been a ruling by the judge, so they don't technically owe TiVo anything. But they certainly didn't in Q1.


----------



## peteypete

Well we sure know now that the market would not be very happy with a settlement of only 74mil. 

It ain't gonna happen at that price DISH!!


----------



## JacksTiVo

ChuckyBox said:


> Echostar continues to infringe (with millions of boxes deployed in the field), so TiVo will ask the judge to award damages under some formula until a) Echostar no longer infringes, or b) Echostar licenses TiVo's technology.
> 
> But the thing about all of this that I don't get is that Echostar took a charge against their 1st quarter, but the verdict didn't happen until April, and for that matter, there still hasn't been a ruling by the judge, so they don't technically owe TiVo anything. But they certainly didn't in Q1.


Under accounting rules, even though the verdict was in April, a public company has to reserve from revenues (take a charge) any future expense in which they know is at risk. In this case, it is "known" prior to releasing the quarterly results that the jury awarded $74M and reserving it in the 1st qtr. is prudent. If the judge awards a greater amount, then in the 2nd qtr. they will have to take an additional charge.

I am not an accountant so my terminology may not be very precise, but I believe this is the gist of the accounting principles involved in this case.


----------



## jmoak

_reported to be in today's print WallStreetJournal, page A2:_


> Echostar Communications Corp.'s net income fell more than 50% for the first quarter after a $74 million charge to post a bond related to a patent lawsuit Echostar lost against TiVo Inc. An article yesterday incorrectly referred to the charge as a settlement.


Yesterday, BusinessWeek.com reported the "charge" correctly but the story from the day before still incorrectly refers to a settlement.

There has been no correction from the Associated Press, although the AP stories distributed yesterday did state it correctly.


----------



## Jebberwocky!

JacksTiVo said:


> Under accounting rules, even though the verdict was in April, a public company has to reserve from revenues (take a charge) any future expense in which they know is at risk. In this case, it is "known" prior to releasing the quarterly results that the jury awarded $74M and reserving it in the 1st qtr. is prudent. If the judge awards a greater amount, then in the 2nd qtr. they will have to take an additional charge.
> 
> I am not an accountant so my terminology may not be very precise, but I believe this is the gist of the accounting principles involved in this case.


I am an accountant and you did a pretty decent job explaining. Auditors can and do use hindsight when they review the books. These rules apply to all companies who issues certified reports


----------



## herdfan

Wasn't there also discussion by one of the reports that E* had to post, or will have to post a $74M bond?


----------



## ChuckyBox

herdfan said:


> Wasn't there also discussion by one of the reports that E* had to post, or will have to post a $74M bond?


If it appeals the decision, E* will likely have to post a bond for the amount of the final judgement (whatever that turns out to be) until the appeal is resolved.


----------



## jfh3

ChuckyBox said:


> If it appeals the decision, E* will likely have to post a bond for the amount of the final judgement (whatever that turns out to be) until the appeal is resolved.


Technically, it would be a new bond for the final judgement less $74M 

The 74M is already on the books for 1Q, the bond for the delta will (hopefully) be required for 2Q.


----------



## ChuckyBox

jfh3 said:


> Technically, it would be a new bond for the final judgement less $74M
> 
> The 74M is already on the books for 1Q, the bond for the delta will (hopefully) be required for 2Q.


Not quite. Echostar has booked the charge, but it still has the money. When it is required of them, they will literally have to put the money in an account that will be controlled by the court. But that won't happen until there is a judgement by the court and they appeal.


----------



## jfh3

ChuckyBox said:


> Not quite. Echostar has booked the charge, but it still has the money. When it is required of them, they will literally have to put the money in an account that will be controlled by the court. But that won't happen until there is a judgement by the court and they appeal.


Didn't realize that - so when the judge makes the final ruling, Echostar has to put the full amount in some sort of escrow account?


----------



## davezatz

jfh3 said:


> Didn't realize that - so when the judge makes the final ruling, Echostar has to put the full amount in some sort of escrow account?


Do you think I could volunteer my bank account? You know, a sort of a civic duty kinda thing...


----------



## jfh3

davezatz said:


> Do you think I could volunteer my bank account? You know, a sort of a civic duty kinda thing...


Never fails to amaze me how willing to help TCF members are ...


----------



## samo

jfh3 said:


> Didn't realize that - so when the judge makes the final ruling, Echostar has to put the full amount in some sort of escrow account?


Either that or to buy a bond for equal amount. Considering the high degree of solvency for E* and very low probability that E* will not be able to pay and/or settle in case they lose their appeal and/or countersuit, bond price shouldn't be terribly expensive.


----------



## ChuckyBox

jfh3 said:


> Didn't realize that - so when the judge makes the final ruling, Echostar has to put the full amount in some sort of escrow account?


No, he'll tell Echostar to pay TiVo, and probably issue an injunction against the distribution of infringing technology. Echostar will appeal. It will ask a judge (not necessarily the original one) to stay the judgement pending the appeal. The judge will likely grant the stay, and order Echostar to put up the money, which they will do either as cash or, as Samo says, a bond.

Any way you slice it, though, the appeal process will be very expensive for Echostar. The legal fees will be significant, and during the entire lengthy process, damages and interest will accumulate. If Echostar wins, the likely outcome is that the whole show goes back to Texas, where it was so soundly beaten the last time. Obviously, if Echostar ultimately wins or narrows the scope of the judgement it may be worth it, but at some point a settlement becomes a better choice, especially if Echostar licenses additional TiVo technology in the process.


----------



## tomboyangel

Given the schedule set yesterday, looks like the judgment will not be entered until the end of June?


----------



## jmoak

Can you fill us in on the schedule that was set yesterday?


----------



## tomboyangel

ORDER
A jury trial was held in this case during March and April 2006, concluding with a jury verdict on April 13, 2006. 

The Court hereby SETS the following schedule for the bench trial and remaining briefing:

The Court will conduct a bench trial and hear argument by the parties on June 26-28, 2006, in Texarkana. The bench trial will commence at 10:00 a.m. on June 26. Each party is limited to 5 hours for trial presentation. Following the bench trial, the parties will be heard regarding the motions listed below. Each party is limited to 2.5 hours for motion argument. 

The parties must file pretrial briefing no later than June 13, 2006. Any responses thereto must be filed no later than June 20, 2006. 

Following the bench trial, the parties shall file proposed Findings of Fact and Conclusions of Law no later than July 7, 2006.

During the June 26-28, 2006 setting, the Court anticipates it will hear argument from the parties regarding prejudgement interest, enhanced damages and exceptional case designation, as well as a motion for permanent injunction. These issues shall be briefed according to the following schedule:

 Prejudgment interest and permanent injunction: motions due May 22; responses due June 6; replies due June 13.

 Enhanced damages and exceptional case designation: motions due May 25; responses due June 9; replies due June 16. 

It is further ORDERED that, absent advance leave of Court for good cause, the parties are limited to 30 pages for any brief, motion, or response and are limited to 15 pages for any reply. Absent advance leave of Court for good cause, no sur-reply or supplemental briefing shall be filed.


----------



## dswallow

Only 30 pages for a brief, motion or response? Is there a minimum font size, leading and spacing? How about a maximum paper size?


----------



## ChuckyBox

tomboyangel said:


> Given the schedule set yesterday, looks like the judgment will not be entered until the end of June?


Mid to late July. The bench trial is late June, and each side must file a brief by July 7th that states what findings they want the judge to make. Then he'll think about it a bit.


----------



## ChuckyBox

dswallow said:


> Only 30 pages for a brief, motion or response? Is there a minimum font size, leading and spacing? How about a maximum paper size?


All of those things are defined and standardized by the court. Judges set length limits to force the lawyers to make their points and move on. Otherwise they would submit thousand-page motions and the slow-grinding wheels of justice would come to a complete stop.


----------



## yunlin12

Tivo asked for injunction


----------



## mtchamp

I had a look at at the Docket Report through PACER this afternoon and I did see a Sealed Motion by TiVo for an Injunction against Echostar dated 05/22/06. I believe it was the reason for the story with quotes from the Motion in the Rocky Mountain News story.

"Each day EchoStar is allowed to continue its infringement, EchoStar takes subscribers that would otherwise be 
TiVo's," TiVo wrote in a document available on the court's Web site. "TiVo is a small company with essentially one 
product  its patented DVR technology. If TiVo cannot deliver this technology, its current business will fail." 

The Sealed Motion for an Injunction is now gone from PACER. It may have been accidentally live (Not Sealed). This may be the reason only Rocky Mountain News is reporting on it and the reason it's down from PACER.


----------



## ufo4sale

If that's true I guess that means that there's not going to be a deal between the two companies.


----------



## Dan203

Or that TiVo is really putting the screws to them to force a deal.

Dan


----------



## jmoak

*Echostar- Re:USPTO-"Tivo's patent claims invalid"*

ENGLEWOOD, Colo.--(BUSINESS WIRE)--May 24, 2006--EchoStar Communications Corporation has issued the following statement regarding recent developments in the Tivo Inc. v. EchoStar Communications Corp. lawsuit:

"We are pleased that the United States Patent and Trademark Office yesterday rejected many of Tivo's patent claims as invalid. That reexamination ruling, together with the favorable decision from the Court of Appeals earlier this month (finding that the Texas court abused its discretion in connection with key trial evidence withheld from the jury), are steps in the right direction as we prepare our response to Tivo's recently filed injunction motion. Similarly, the favorable U.S. Supreme Court decision last week in the Ebay patent injunction case will be considered as part of the long process ahead."

http://biz.yahoo.com/bw/060524/20060524005349.html?.v=1
____________________________________________________

http://www.tivocommunity.com/tivo-vb/showthread.php?t=301101


----------



## jfh3

If true, does it really matter if the key patent claims were unaffected? Time Warp is the key one, right?

I thought there were a number of hardware and software patents that weren't part of the USPO re-examination? If so, aren't they still basis for the jury's finding?

Also - what is this appeal victory E* is referencing?

You would think there would be a much more strongly worded press release if there was real substance behind it. On the surface, it looks like a nasty E* move on the day of Tivo's 1Q2007 earnings call.


----------



## jfh3

Way to go Tivo!

ALVISO, Calif., May 24, 2006 /PRNewswire-FirstCall via COMTEX/ -- TiVo Inc. (Nasdaq: TIVO), the creator of and a leader in television services for digital video recorders (DVR), today offered the following comment on the recent developments in the lawsuit against EchoStar Communications Corporation: 

"The level of misleading spin that EchoStar is putting out with respect to
our patent case against them is quite extraordinary. We are pleased to
state that the USPTO issued its first Office Action in the reexamination.
The USPTO reexamined all 61 claims set forth in the Barton patent
confirming the validity of most of the claims, including two of the claims
that EchoStar has been found to have willfully infringed. In the Office
Action, the USPTO expressly rejected the invalidity arguments put forward
by EchoStar. While certain of the patent claims were rejected by the
patent office, this should in no way impact the jury verdict. We will now
be given an opportunity with the patent office to discuss our claims which
we believe should result in a reaffirmed and strengthened patent. We will
provide a real understanding of how this process works on our earnings
call after close of market today."


----------



## jmoak

Thanks, jfh3

link


----------



## samo

I love spin! E* states that many TiVo claims were invalidated. TiVo states that majority of the claims were confirmed valid. How many and what claims were invalidated? Who knows. TiVo states "The USPTO reexamined all 61 claims set forth in the Barton patent
confirming the validity of most of the claims, including two of the claims
that EchoStar has been found to have willfully infringed.". Sounds good, but jury found that E* infringed on 9 claims. Does it mean that 7 of 9 claims were invalidated? Would it affect the verdict if only 2 out of the 9 claims were valid? My guess that this case will be argued and appealed in courts for years to come.


----------



## HDTiVo

samo said:


> I love spin! E* states that many TiVo claims were invalidated. TiVo states that majority of the claims were confirmed valid. How many and what claims were invalidated? Who knows. TiVo states "The USPTO reexamined all 61 claims set forth in the Barton patent
> confirming the validity of most of the claims, including two of the claims
> that EchoStar has been found to have willfully infringed.". Sounds good, but jury found that E* infringed on 9 claims. Does it mean that 7 of 9 claims were invalidated? Would it affect the verdict if only 2 out of the 9 claims were valid? My guess that this case will be argued and appealed in courts for years to come.


See last 30 sec of conf. call.


----------



## Dan203

What happened in the last 30 sec of the conference call? I don't see a recap anywhere.

Dan


----------



## jfh3

Dan203 said:


> What happened in the last 30 sec of the conference call?


I wasn't quite paying attention, but I believe Zisk said that for the nine involved in the suit, the hardware claims were rejected and the software claims were upheld.

I'm not sure if the Barton Media switch is hardware, software or both, but if what I thought I heard was true, I'd rather have the software patents anyway.


----------



## jfh3

samo said:


> I Would it affect the verdict if only 2 out of the 9 claims were valid?


Don't think so, as long as the patent claims on which the willful infringement and damages are against those that the USPO reaffirmed.



> My guess that this case will be argued and appealed in courts for years to come.


That's Echostar's only hope.


----------



## samo

jfh3 said:


> I wasn't quite paying attention, but I believe Zisk said that for the nine involved in the suit, the hardware claims were rejected and the software claims were upheld.
> 
> I'm not sure if the Barton Media switch is hardware, software or both, but if what I thought I heard was true, I'd rather have the software patents anyway.


If what you say is correct the following TiVo patent claims were rejected:


> 1. A process for the simultaneous storage and play back of multimedia data, comprising the steps of:
> 
> accepting television (TV) broadcast signals, wherein said TV signals are based on a multitude of standards, including, but not limited to, National Television Standards Committee (NTSC) broadcast, PAL broadcast, satellite transmission, DSS, DBS, or ATSC;
> 
> tuning said TV signals to a specific program;
> 
> providing at least one Input Section, wherein said Input Section converts said specific program to an Moving Pictures Experts Group (MPEG) formatted stream for internal transfer and manipulation;
> 
> providing a Media Switch, wherein said Media Switch parses said MPEG stream, said MPEG stream is separated into its video and audio components;
> 
> storing said video and audio components on a storage device;
> 
> providing at least one Output Section, wherein said Output Section extracts said video and audio components from said storage device;
> 
> wherein said Output Section assembles said video and audio components into an MPEG stream;
> 
> wherein said Output Section sends said MPEG stream to a decoder;
> 
> wherein said decoder converts said MPEG stream into TV output signals;
> 
> wherein said decoder delivers said TV output signals to a TV receiver; and
> 
> accepting control commands from a user, wherein said control commands are sent through the system and affect the flow of said MPEG stream.
> 5. The process of claim 1, wherein the storing and extracting of said video and audio components from said storage device are performed simultaneously.
> 21. The process of claim 1, wherein said storage device is connected to said Media Switch.
> 23. The process of claim 1, wherein said Media Switch is implemented in hardware.
> 32. An apparatus for the simultaneous storage and play back of multimedia data, comprising:
> 
> a module for accepting television (TV) broadcast signals, wherein said TV signals are based on a multitude of standards, including, but not limited to, National Television Standards Committee (NTSC) broadcast, PAL broadcast, satellite transmission, DSS, DBS, or ATSC;
> 
> a module for tuning said TV signals to a specific program;
> 
> at least one Input Section, wherein said Input Section converts said specific program to an Moving Pictures Experts Group (MPEG) formatted stream for internal transfer and manipulation;
> 
> a Media Switch, wherein said Media Switch parses said MPEG stream, said MPEG stream is separated into its video and audio components;
> 
> a module for storing said video and audio components on a storage device;
> 
> at least one Output Section, wherein said Output Section extracts said video and audio components from said storage device;
> 
> wherein said Output Section assembles said video and audio components into an MPEG stream;
> 
> wherein said Output Section sends said MPEG stream to a decoder;
> 
> wherein said decoder converts said MPEG stream into TV output signals;
> 
> wherein said decoder delivers said TV output signals to a TV receiver; and
> 
> accepting control commands from a user, wherein said control commands are sent through the system and affect the flow of said MPEG stream.
> 52. The apparatus of claim 32, wherein said storage device is connected to said Media Switch


The following claims were upheld:


> 31. A process for the simultaneous storage and play back of multimedia data, comprising the steps of:
> 
> providing a physical data source, wherein said physical data source accepts broadcast data from an input device, parses video and audio data from said broadcast data, and temporarily stores said video and audio data;
> 
> providing a source object, wherein said source object extracts video and audio data from said physical data source;
> 
> providing a transform object, wherein said transform object stores and retrieves data streams onto a storage device;
> 
> wherein said source object obtains a buffer from said transform object, said source object converts video data into data streams and fills said buffer with said streams;
> 
> wherein said source object is automatically flow controlled by said transform object;
> 
> providing a sink object, wherein said sink object obtains data stream buffers from said transform object and outputs said streams to a video and audio decoder;
> 
> wherein said decoder converts said streams into display signals and sends said signals to a display;
> 
> wherein said sink object is automatically flow controlled by said transform object;
> 
> providing a control object, wherein said control object receives commands from a user, said commands control the flow of the broadcast data through the system; and
> 
> wherein said control object sends flow command events to said source, transform, and sink objects.
> 
> 61. An apparatus for the simultaneous storage and play back of multimedia data, comprising:
> 
> a physical data source, wherein said physical data source accepts broadcast data from an input device, parses video and audio data from said broadcast data, and temporarily stores said video and audio data;
> 
> a source object, wherein said source object extracts video and audio data from said physical data source;
> 
> a transform object, wherein said transform object stores and retrieves data streams onto a storage device;
> 
> wherein said source object obtains a buffer from said transform object, said source object converts video data into data streams and fills said buffer with said streams;
> 
> wherein said source object is automatically flow controlled by said transform object;
> 
> a sink object, wherein said sink object obtains data stream buffers from said transform object and outputs said streams to a video and audio decoder;
> 
> wherein said decoder converts said streams into display signals and sends said signals to a display;
> 
> wherein said sink object is automatically flow controlled by said transform object;
> 
> a control object, wherein said control object receives commands from a user, said commands control the flow of the broadcast data through the system; and
> 
> wherein said control object sends flow command events to said source, transform, and sink objects.


The way it sounds to me that only patented part left is a general description of software steps in a particular order. Not being an attorney or a computer programmer, I can't figure out if it has much value by itself without all the rejected hardware claims.


----------



## jones07

My head hurts


----------



## Squeege96

Any updates on the trial?


----------



## jfh3

Squeege96 said:


> Any updates on the trial?


Don't expect that we'll hear much until after the bench trial on damages later this month. (Don't remember the exact dates).


----------



## yunlin12

Starts 6/26, will probably go into early July.


----------



## peteypete

I think bench trials are pretty short. I bet mr. rocket docket gets it done before july 4th holiday.


----------



## mtchamp

06/05/2006 735 ORDER re [733] SEALED PATENT MOTION for Injunction filed by TIVO Inc, & ORDER RE: ECHOSTAR'S MOTION FOR STAY PENDING APPEAL. Pursuant to the agreement of the parties and for good cause shown, the Court hereby ORDERS that (i) EchoStar shall combine its motion for stay pending appeal with its response to TiVo's motion for an injunction (due 6/6/06); (ii) EchoStar shall have a total of 40 pages for its combined response and motion for stay; (iii) TiVo shall combine its response to EchoStar's motion for stay with its reply in support of its motion for an injunction (due 6/13/06); and (iv) EchoStar's reply in support of its motion for stay shall be due 6/20/06. Signed by Judge David Folsom on 6/5/06. (mpv, ) (Entered: 06/05/2006)

06/06/2006 736 SEALED PATENT RESPONSE to SEALED PATENT MOTION re [732] SEALED PATENT MOTION For Prejudgment Interest and Supplemental Damages filed by "EchoStar defendants". (Attachments: # (1) Affidavit of Matthew R. Lynde# (2) Exhibit A-K to Lynde Decl.# (3) Affidavit of Karl Kramer# (4) Exhibit A-J to Kramer Decl.)(Kramer, Karl) (Entered: 06/06/2006)

06/06/2006 737 SEALED PATENT MOTION EchoStar's (1) Opposition to TiVo's Motion for Entry of Judgment and Permanent Injunction and (2) Cross-Motion to Stay Any Injunction Pending Appeal by "EchoStar defendants". (Attachments: # (1) Affidavit of Erik Carlson# (2) Affidavit of Jody Martin# (3) Affidavit of Dan Minnick# (4) Affidavit of John J. Yodzis# (5) Affidavit of Robert Harkins# (6) Exhibit 1-17 of Harkins Decl.# (7) Exhibit 18-22 of Harkins Decl.# (8) Text of Proposed Order)(Harkins, Robert) (Entered: 06/06/2006)

06/09/2006 738 ORDER RE: TIVO'S BRIEF (i) IN FURTHER SUPPORT OF ITS MOTION FOR PERMANENT INJUNCTION AND (ii) IN RESPONSE TO ECHOSTAR'S MOTION FOR STAY PENDING APPEAL; the Court hereby ORDERS that (i) TiVO shall have a total of 25 pgs for its combined reply in support of its motion for an injunction and response in opposition to EchoStar's motion for stay pending appeal, (ii) TiVo's combined brief shall be due 6/14/06 and (iii) EchoStar's reply in support of its motion for stay shall be due 6/21/06. All other dates remain unchanged. Signed by Judge David Folsom on 6/9/06. (mrm, ) (Entered: 06/09/2006)

06/09/2006 739 SEALED PATENT DOCUMENT EchoStar's Opposition to TiVo's Motion for Enhanced Damages and Attorneys' Fees. (Attachments: # (1) Affidavit of Rachel Krevans# (2) Exhibit 1-4# (3) Exhibit 5 part 1# (4) Exhibit 5 part 2# (5) Exhibit 6 part 1# (6) Exhibit 6 part 2# (7) Exhibit 7-12# (8) Exhibit 13-22# (9) Exhibit 23# (10) Exhibit 24-28)(Krevans, Rachel) (Entered: 06/09/2006)

06/09/2006 740 SEALED PATENT ADDITIONAL ATTACHMENTS to Main Document: [739] Sealed Patent Document,. (Attachments: # (1) Exhibit 29 part 2# (2) Exhibit 29 part 3# (3) Exhibit 29 part 4# (4) Exhibit 29 part 5# (5) Exhibit 29 part 6# (6) Exhibit 29 part 7# (7) Exhibit 29 part 8)(Krevans, Rachel) (Entered: 06/09/2006)

06/09/2006 741 SEALED PATENT ADDITIONAL ATTACHMENTS to Main Document: [739] Sealed Patent Document,. (Attachments: # (1) Exhibit 30 part 2# (2) Exhibit 30 part 3# (3) Exhibit 30 part 4# (4) Exhibit 30 part 5# (5) Exhibit 30 part 6# (6) Exhibit 30 part 7# (7) Exhibit 30 part 8# (8) Exhibit 31-32)(Krevans, Rachel) (Entered: 06/09/2006)

06/09/2006 742 SEALED PATENT ADDITIONAL ATTACHMENTS to Main Document: [739] Sealed Patent Document,. (Attachments: # (1) Exhibit 33 part 2# (2) Exhibit 33 part 3# (3) Exhibit 33 part 4# (4) Exhibit 33 part 5# (5) Exhibit 33 part 6# (6) Exhibit 33 part 7# (7) Exhibit 33 part 8)(Krevans, Rachel) (Entered: 06/09/2006)

06/09/2006 743 SEALED PATENT ADDITIONAL ATTACHMENTS to Main Document: [739] Sealed Patent Document,. (Attachments: # (1) Exhibit 39 part 1# (2) Exhibit 39 part 2# (3) Exhibit 39 part 3# (4) Exhibit 39 part 4)(Krevans, Rachel) (Entered: 06/09/2006)


----------



## peteypete

mtchamp said:


> 06/05/2006 735 ORDER re [733] SEALED PATENT MOTION for Injunction filed by TIVO Inc, & ORDER RE: ECHOSTAR'S MOTION FOR STAY PENDING APPEAL. Pursuant to the agreement of the parties and for good cause shown, the Court hereby ORDERS that (i) EchoStar shall combine its motion for stay pending appeal with its response to TiVo's motion for an injunction (due 6/6/06); (ii) EchoStar shall have a total of 40 pages for its combined response and motion for stay; (iii) TiVo shall combine its response to EchoStar's motion for stay with its reply in support of its motion for an injunction (due 6/13/06); and (iv) EchoStar's reply in support of its motion for stay shall be due 6/20/06. Signed by Judge David Folsom on 6/5/06. (mpv, ) (Entered: 06/05/2006)
> 
> 06/06/2006 736 SEALED PATENT RESPONSE to SEALED PATENT MOTION re [732] SEALED PATENT MOTION....
> 
> ...Document,. (Attachments: # (1) Exhibit 39 part 1# (2) Exhibit 39 part 2# (3) Exhibit 39 part 3# (4) Exhibit 39 part 4)(Krevans, Rachel) (Entered: 06/09/2006)


WHATS IT ALL MEAN???? Looks like the Judge can read all the docs in a couple of hours.


----------



## ChuckyBox

Saw this on the Yahoo! TIVO stock board. It looks pretty good for TiVo. The examiner and the TiVo folks seem to have reached an agreement. I'll try to attach the patent office document here, but if that doesn't work, you can get it here .


----------



## 1283

That "agreement" just says that TiVo will submit more arguments for the claim.


----------



## ChuckyBox

That wouldn't necessitate the examiner reserving the right to further consideration.  What's he going to do, go home and decide he doesn't want to hear TiVo's arguments after all? He doesn't even have that option.

The agreement is that the invention has "structural differences" from the prior art. TiVo will submit arguments that those differences are contained in the claims as written. If the examiner accepts the arguments (as he seems to be indicating he will do), the patent is most likely going to be fully validated. If he doesn't, the claim will be amended to make clear the differences. Either way, the patent is going to be restored with the most important claim(s) intact.


----------



## HDTiVo

Was does it say only 1 claim(s) were involved and why isn't it just an agreement to delay until looking at more info to be submitted by TiVo before making any substantive decision(s)?


----------



## yunlin12

I'm guessing this 1 claim has to be either claim 1 or 32, which are the two original hardware claims. All the other hardware claims are derivatives of these two.


----------



## ChuckyBox

yunlin12 said:


> I'm guessing this 1 claim has to be either claim 1 or 32, which are the two original hardware claims. All the other hardware claims are derivatives of these two.


I'm guessing than when it says "Claims discussed:____" it isn't asking how many, it is asking which claims. In this case, claim 1 was discussed. It is the primary claim, and 32 is nearly identical.



HDTiVo said:


> ...why isn't it just an agreement to delay until looking at more info to be submitted by TiVo before making any substantive decision(s)?


Since the purpose of these interviews is to identify and, if possible, resolve differences between the applicant and the examiner, an agreement to delay would not qualify as an "agreement." That would be an "agreement was not reached." Since there was no mention of amending the claim, it appears that the examiner is satisfied with Barton's "identification of structural differences," and unless TiVo's write-up of the meeting falls woefully short, he will validate claims 1 and (almost certainly) 32. He'll then go through the other rejected claims and validate any that were rejected by virtue of their parent being rejected. Any remaining rejected claims will be further discussed until they are ultimately validated, validated after amendment, or finally rejected. TiVo is likely to fight pretty hard for all of the claims, and may even try to add new claims, if possible. This could take a while, but there will be more office actions to let us know how it is going.


----------



## peteypete

anybody have a copy of the latest pacer docs? It looks like a settlement is in the works.


----------



## mtchamp

McElhinny for Echostar and Chu for TiVo respond to questions by Judge Folsom regarding settlement talks and discussions in the last section of these court notes from day 3 of the Bench Trial and Motion Hearing on 06/28/06.



3rd DAY MOTION HEARING 6/28/06
9:33 ct opens; ct/ add ptys; Baxter/ add issue of trebling; 9:56 McElhinny/ responds; 11:00
ct/ next motion; Chu/ supplemental damages; and then motion on injunction; 11:00 recess;
11:18 ct resumes; 11:18 ct/ motion for supplemental damages; Byrd/ argues motion for
supplemental damages; 11:27 McElhinny/ responds; 11:31 Byrd/ reply; 11:35 McElhinny/
sur-reply; ct/ leaves us with motion concerning injunction; Chu/ yes expect 45 mins;
McElhinny/ an hour and 45 mins; 11:36 recess; 1:19 ct resumes; 1:19 Chu/ argues issue
of injunction; 1:53 McElhinny/ responds; 2:38 Chu/ reply; 3:09 McElhinny/ sur-reply; 3:14
Chu/ sur-reply; 3:17 ct/ add ptys; recess; 3:22 ICC with Chu, Mr. Jim Barton (client);
Case 2:04-cv-00001-DF-CMC Document 755 Filed 06/26/2006 Page 2 of 3

Baxter, McElhinny, Krevans, Pickett; ct/ schedule, to have order out by 8/1st; target is to
have those out; are ptys talking to try and resolve this; McElhinny/ they are and are
meeting with Judge Faulknor; ct/ discussions prior to these orders; 3:24 dfts step out; ct/
add plfs; Chu/ have had several sessions; 3:30 recess; 3:32 ct/ add dfts and thoughts; will
let Judge Faulknor that if ptys would like my involvement I am available; if ptys feel
uncomfortable with me being involved just let Judge Faulknor know he does not need to
report to me which pty did not want my involvement; 3:36 recess;
3:36 adjourned
Case 2:04-cv-00001-DF-CMC Document 755 Filed 06/26/2006 Page 3 of 3


----------



## jmoak

> 760 Filed & Entered: 07/07/2006
> Proposed Findings of Fact
> 
> 46 page document. Not a lot people on this board don't already know but here is the summary.
> 
> VI. SUMMARY OF CONCLUSIONS OF LAW
> 213. The Court finds in favor of TiVo and against EchoStar on the defense of
> inequitable conduct and finds the Barton patent to be enforceable.
> 214. The Court finds in favor of TiVo and against EchoStar on the defense of equitable estoppel.
> 215. The Court finds in favor of TiVo and against EchoStar on the defense of laches.
> 216. Judgment will be entered in favor of TiVo and against EchoStar accordance with the jury verdict and the Courts decision herein.


__________


----------



## generalpatton71

So what's up now??? Is there a settlement?? Are they trying to work out a license or is tivo still going to try and get a injunction on E* DVRs?


----------



## mtchamp

There have been still more court filings and motions on both sides since the bench trial at the end of June. We were supposed to have some decisions handed down from the judge by 08/01/06. The judge did make an order on that date but it's sealed and the contents have not been leaked.

TiVo is continuing to combat Echostar's delay tactics for final judgement and decisions in this case in several courts. It appears Echostar is doing everything it can to avoid an injunction, but TiVo is fighting back.

The major problem is that Echostar still has not turned over all of the documents as ordered by the court to TiVo. These missing documents are holding everything up. Tivo and the court needs these documents in order to enter a final verdict on willfullness and then be able to rule on trebel damages.

You can read some good posts both factual and speculative on the TiVo forum at InvestorsVillage.com

http://investorvillage.com/smbd.asp?mb=3928&pt=m

It appears that the judge has the power and good cause to at least issue the injunction immediately according to several Notices filed by TiVo last week asking the judge to rule on TiVo's Permanent Injunction Motion. TiVo has also asked a Judge to sanction Echostar and hold them in contempt for not turning over all documents that the court ordered them to produce to TiVo. TiVo wants all 360 something documents that are known to exist, to be reviewed in-camera by a judge, because Echostar has so far turned over less than 100 of them to TiVo.

One of those missing documents is likely the smoking gun that seals Echostar's fate on Enhanced Damages and kills Echostar's chances of an appeal because it is presumed to show that Echostar was advised by outside counsel that they would be infringing on TiVo's patents if they built their own DVR and they went ahead and built them and sold them anyway. Maybe the judge will finally do something this week.


----------



## ZeoTiVo

you know there are a lot of trials like this out there where one side just holds things up as long as it can. It really hurts the judicial system as it is a common negotiatiing tactic before trial to say the case will be dragged out to nobodies benefit.

After due deliberation has been done and it is painfully obvious one side is just not going to give up some eveidence - why not just hit them with a contempt charge that says within one week a ruling will be made that will assume the severest cosnequences are born out by the said evidence ?

it would speed along many, many civil trials


----------



## HiDefGator

mtchamp said:


> One of those missing documents is likely the smoking gun that seals Echostar's fate on Enhanced Damages and kills Echostar's chances of an appeal because it is presumed to show that Echostar was advised by outside counsel that they would be infringing on TiVo's patents if they built their own DVR and they went ahead and built them and sold them anyway.


If they asked 10 patent attorneys and 7 said no they wouldn't be infringing and 3 said yes they would how does that provide a smoking gun?

Attorneys could not definitively say before a trial if they would be infringing or not. They could only provide an opinion or best guess. Until the trial and all design documents are presented along with previous art there is no way an attroney could say they would be infringing or not.

As I understand it the entire dvr is not infringing. Only the media switch and the ability to start watching a show while it is still recording. The media switch is pretty questionable. Since they used a completely different chip set from the Tivo design.


----------



## jfh3

HiDefGator said:


> Attorneys could not definitively say before a trial if they would be infringing or not. They could only provide an opinion or best guess. Until the trial and all design documents are presented along with previous art there is no way an attroney could say they would be infringing or not.


The difference here is that Echistar apparently claimed that had not received an opinion that their DVR infringed on Tivos patents. If the "smoking gun" memo is produced that shows outside council did in fact offer that opinion, that wouldn't seem to bode well for Echostar.


----------



## HDTiVo

Several days ago EchoStar stated that they have filed a request for a new trial. I think that was something new.


----------



## Curtis

HiDefGator said:


> As I understand it the entire dvr is not infringing. Only the media switch and the ability to start watching a show while it is still recording.


That pretty much covers everything. Even "live" TV isn't really live on a DVR. It is first recorded on the hard drive.


----------



## drew2k

Curtis said:


> That pretty much covers everything. Even "live" TV isn't really live on a DVR. It is first recorded on the hard drive.


Not true on all DVRs - I take exception with the word "first".

Cablevision's SA-8300-HD DVR with Sarah software does not display live TV from the buffer UNTIL the user pauses or rewinds. Then there's a noticeable delay as playback begins from the recording.

If I change channels on the 8300 and never press a trick-play button on the remote, the hard drive will buffer what I'm watching, but I am in no way accessing the recording of live TV on the hard drive. It's truly "live" until I press a trick-play button.


----------



## David Scavo

TIVO Granted Injunction Against EchoStar !

Linky


----------



## jmoak

Wow.... wow....

_"Here we go folks, It's Showtime!"_


----------



## davezatz

Screen shots of court ruling here:
http://www.zatznotfunny.com/2006-08/tivo-wins-permanent-injunction-against-echostar-and-cash/


----------



## sbiller

I digged it. 

So in my mind the big question for tomorrow is, how much will the s**** jump when the news hits the general public?


----------



## 1283

sbiller said:


> So in my mind the big question for tomorrow is, how much will the s**** jump when the news hits the general public?


We should not talk about the "s" word.


----------



## sbiller

So how exactly does E* disable the PVR functions within 30 days? Is this something that can really be done remotely? I'm guessing there will be a lot of very upset customers. 

Is there any speculation on which companies besides E* are infringing on the TiVo patents? 

I'm sitting here dreaming about the day when my cable company HD PVR is running the TiVo SW....


----------



## davezatz

sbiller said:


> So how exactly does E* disable the PVR functions within 30 days? Is this something that can really be done remotely?


I'm wondering the same... though while they've been dragging their feet in court, I assume they had their engineers working on a backup plan.



> Is there any speculation on which companies besides E* are infringing on the TiVo patents?


TiVo's extensions with DTV included something about they wouldn't go after each other for patent infringement. I dont' recall the details, but I think that's the gist of it.


----------



## cap

So does this infringment/injunction also include Dish's new VIP622 hd-dvr?
I didn't see it listed on the pictured docs.


----------



## sbiller

Here is a blog discussing the decision

Tivo_wins_injunction


----------



## MichaelK

who da thunk...


----------



## jfh3

If I understand the ruling correctly, Tivo was not (and will not be) awarded treble damages.

If the infringement was willfull and the injunction granted, how can the court NOT award treble damages?


----------



## doormat

I think its because TiVo failed to prove echostar acted in bad faith. They were a little sneaky, but not in bad faith. 

And maybe this 90M can hurry up and hire a few more engineers to move the S3 along sooner!


----------



## davezatz

TiVo Statement on Order Granting Injunction Against EchoStar and Damages of Over $89.6 Million



TiVo Inc. (Nasdaq: TIVO), the creator of and a leader in television services for digital video recorders (DVR), today announced that U.S. District Court Judge David Folsom granted TiVo's motion for permanent injunction to prevent EchoStar Communications Corp. (Nasdaq: DISH; "ECC") from making, using, offering for sale or selling in the United States their DVR products at issue in the case (DP-501, DP-508, DP-510, DP-721, DP-921, DP-522, DP-625, DP-942, and all EchoStar DVRs that are not more than colorably different from any of these products). Judge Folsom also ordered ECC to pay TiVo approximately $73.992 million in damages as awarded by the jury, prejudgment interest at the prime rate through July 31, 2006 of approximately $5.638 million, and supplemental damages for infringement through July 31, 2006 in the amount of approximately $10.317 million. Judge Folsom denied EchoStar's request to stay the injunction pending appeal. The injunction extends to all of ECC's affiliates, employees,
agents and representatives, and any persons in active concert or participation with them who have notice of the order. The Judge's ruling is final and is appealable. 

TiVo sued EchoStar in Federal District Court on January 5, 2004, alleging that ECC and certain subsidiaries are violating U.S. Patent No. 6,233,389 issued to TiVo in May 2001, known as the "Time Warp" patent. The Time Warp patent discloses systems and methods for the simultaneous storage and playback of programs, supporting advanced capabilities such as pausing live television, fast-forwarding, rewinding, instant replays, and slow motion. On April 13, 2006, a Marshall, Texas jury concluded that EchoStar had willfully infringed TiVo's Time Warp patent.

The company said, "TiVo is pleased that Judge Folsom has granted a permanent injunction against EchoStar's DVR products along with supplemental damages and interest. This decision recognizes that our intellectual property is valuable and will ensure that moving forward EchoStar will be unable to use our patented technology without our authorization.

"TiVo is built on a strong foundation of innovative technology and intellectual property. Beyond the U.S. Time Warp patent, we now hold more than 86 patents in our worldwide patent portfolio and have more than 138 patent applications pending. TiVo has a long list of licensees in the consumer electronics, cable and satellite markets, and we will continue to license our technology under appropriate circumstances and arrangements. We will also continue to vigorously defend our intellectual property for the benefit of our licensees and shareholders."


----------



## 1283

The war is not over yet. "EchoStar Asks Federal Court to Stay Texas Injunction":

http://biz.yahoo.com/bw/060818/20060817005745.html?.v=1


----------



## sbiller

c3 said:


> The war is not over yet. "EchoStar Asks Federal Court to Stay Texas Injunction":
> 
> http://biz.yahoo.com/bw/060818/20060817005745.html?.v=1


From the E* news release, "Existing DISH Network customers with DVRs are not immediately impacted by these recent developments, and we will keep consumers informed as events develop. We hope to have additional information for our customers very soon."

Right... not impacted immediately... true. They have 30 days to act. This should be interesting.


----------



## Gunnyman

Wow. No wonder DTV made a deal with TiVo again. Charlie Ergan's kinda screwed.


----------



## BlackBetty

the things we can't speak about here should be very interesting to watch today.


----------



## ZeoTiVo

29 days


----------



## Lee L

sbiller said:


> So how exactly does E* disable the PVR functions within 30 days? Is this something that can really be done remotely?


They can force a software download as their system does not require a phone line (at least the stuff they were using 2.5 years ago did not). They could also just stop delivering guide data (though they used to use some of the guide data for their regular receivers so that might need a SW update too in order to not screw them up).

I would guess this will never happen as I am sure Charlie can pay the $90 million out of his walking around money, he just won't like it.


----------



## ZeoTiVo

Lee L said:


> I would guess this will never happen as I am sure Charlie can pay the $90 million out of his walking around money, he just won't like it.


no it is both - pay TiVo 90 million AND stop the DVRs within 30 days.
to keep using the DVR they either have to overturn the injunction or reach an additional agreemnet with TiVo inc.

now actually 
The backup plan they speak of is probably to stop the ability to watch something while it is being recorded. That would mean no trickplay on a live TV buffer and you wait for a recording to finish before it can be viewed. I have no idea if the court would have any say in that does or does not meet the injunction or if TiVo would have to bring action if they felt it did not meet the injunction.

either way it takes functionality away from E* users so I can only see bringing in a new DVR E* feels is not infringing to swap with customers or else make an agreement with TiVo.


----------



## Lee L

ZeoTiVo said:


> no it is both - pay TiVo 90 million AND stop the DVRs within 30 days.
> to keep using the DVR they either have to overturn the injunction or reach an additional agreemnet with TiVo inc.


Oo, how did I miss that. That is a killer.


----------



## generalpatton71

The decision said the judge reserved the right to award further damages to tivo. Is he still waiting on seeing those documents dish won't turn over?


----------



## GoodSpike

I'm sure this is covered in another forum, but for those of us who don't make it there:

http://today.reuters.com/news/artic...ECH-TIVO-ECHOSTAR-URGENT.XML&rpc=66&type=qcna

A permanent injunction was issued against Echostar. That basically means they won at the trial court level. Echostar will have to appeal and obtain a stay to continue to offer DVRs (at least ones with this feature).

I hope they have a similar claim against DirecTV.


----------



## IndyJones1023

Wow. Dish is such a bag of suck anyway. My brother is forced to use Dish in his condo, and my dad had it at the house. This summer, while visiting both of them, they had to repeatedly reboot their Dish boxes. Pieces of crap.


----------



## cwoody222

Forgive me if I'm smeeking but how come TiVo hasn't sued cable co's using DVRs? Isn't it the same technology? Cable cos aren't paying TiVo royalties are they?


----------



## MichaelK

davezatz said:


> TiVo Statement on Order Granting Injunction Against EchoStar and Damages of Over $89.6 Million
> 
> ... injunction to prevent EchoStar Communications Corp. (Nasdaq: DISH; "ECC") from making, using, offering for sale or selling in the United States their DVR products at issue in the case (DP-501, DP-508, DP-510, DP-721, DP-921, DP-522, DP-625, DP-942, and all EchoStar DVRs that are not more than colorably different from any of these products). ..."


anyone know how many of those are deployed and which are current models?

I know the current HD one is the 622- so presumably that one is ok?


----------



## jfh3

ZeoTiVo said:


> The backup plan they speak of is probably to stop the ability to watch something while it is being recorded. That would mean no trickplay on a live TV buffer and you wait for a recording to finish before it can be viewed. I have no idea if the court would have any say in that does or does not meet the injunction or if TiVo would have to bring action if they felt it did not meet the injunction.


The judge was pretty clear in the ruling - can't RECORD ANYTHING TO THE HARDDRIVE.

To me, that means the DVRs in the field (except for about 192K) essentially have to have all the DVR functionality disabled, which means the boxes would essentially be turned into standard receivers.


----------



## Bob_Newhart

They do have more HD content, however.


----------



## davezatz

cwoody222 said:


> Forgive me if I'm smeeking but how come TiVo hasn't sued cable co's using DVRs? Isn't it the same technology? Cable cos aren't paying TiVo royalties are they?


A small company like TiVo has to pick their battles carefully. They loaned Dish a TiVo model to check out. When they told TiVo they didn't want to partner, they conveniently lost the sample model and here we are. I think it was strategic - if you win one big case, it'll motivate others to partner or license.


----------



## IndyJones1023

Doesn't do you any good if you can't watch it.


----------



## Lee L

GoodSpike said:


> I hope they have a similar claim against DirecTV.


As part of the recent agreement extending the support on DirecTiVos a few years (until 2010 IIRC) Both TiVo and DirecTV agreend not to bring patent enforcement suits against each other while the agreement is in force.


----------



## IndyJones1023

Lee L said:


> As part of the recent agreement extending the support on DirecTiVos a few years (until 2010 IIRC) Both TiVo and DirecTV agreend not to bring patent enforcement suits against each other while the agreement is in force.


I wish they'd agree to update the boxes, too, then.


----------



## jsmeeker

IndyJones1023 said:


> Doesn't do you any good if you can't watch it.


I'm sure they have non DVR receivers that work just fine.

The programming packages themselves seeem to be pretty decent. Good value.


----------



## Bob_Newhart

IndyJones1023 said:


> Doesn't do you any good if you can't watch it.


Nah, as long as you know that it is being broadcast should be all it takes to make a person happy. Actually being able to see it would just be the gravy on the biscuit.


----------



## IndyJones1023

jsmeeker said:


> I'm sure they have non DVR receivers that work just fine.
> 
> The programming packages themselves seeem to be pretty decent. Good value.


I was talking about the non-DVR receivers. Neither my bro nor my dad have DVRs. These were just their plain boxes not able to get guide data and needing a couple of reboots a day.


----------



## ChuckyBox

cwoody222 said:


> Forgive me if I'm smeeking but how come TiVo hasn't sued cable co's using DVRs? Isn't it the same technology? Cable cos aren't paying TiVo royalties are they?


They aren't suing cable because:

1. They are trying to negotiate deals with some of the MSOs, and they don't want to sue potential customers.
2. They already have a deal with Comcast, so they're out.
3. Charter is broke, so they're out.
4. This case has been extremely expensive, and it is prosecuting a patent that had never been tested in court, nor gone through a patent office re-review.

While Time-Warner is a likely target, I imagine the next suits will go against Motorola and Scientific Atlanta (now Cisco Systems). I wouldn't be surprised to see a few IP deals for TiVo over the next six months.


----------



## IndyJones1023

Bob_Newhart said:


> Nah, as long as you know that it is being broadcast should be all it takes to make a person happy. Actually being able to see it would just be the gravy on the biscuit.


----------



## davezatz

ChuckyBox said:



> I imagine the next suits will go against Motorola and Scientific Atlanta (now Cisco Systems).


How about Microsoft?


----------



## sWampy

Patent office run amuck, yeah, reminds me of the bag on the end of stick patent for catching dog crap before it hit the ground patent that was recently issued. The ability to watch one show while recording another, is something that has been attempted since the first phonograph was first invented. A patent should not be issued just because hardware finally developed to the point that this inherently obvious thing could finally be realized. Now if tivo had patented the specific hardware/software for doing that fine, but that's not what they did.


----------



## MichaelK

Lee L said:


> They can force a software download as their system does not require a phone line (at least the stuff they were using 2.5 years ago did not). They could also just stop delivering guide data (though they used to use some of the guide data for their regular receivers so that might need a SW update too in order to not screw them up).
> 
> I would guess this will never happen as I am sure Charlie can pay the $90 million out of his walking around money, he just won't like it.


I dont know- the guy routinely lets his content get turned off in disputes over programming costs.

They also routinely scoff at and abuse court rulings:
http://www.denverpost.com/business/ci_3791466


----------



## IndyJones1023

sWampy said:


> The ability to watch one show while recording another, is something that has been attempted since the first phonograph was first invented.


Now that guy had foresight!


----------



## MichaelK

ChuckyBox said:


> They aren't suing cable because:
> 
> 1. They are trying to negotiate deals with some of the MSOs, and they don't want to sue potential customers.
> 2. They already have a deal with Comcast, so they're out.
> 3. Charter is broke, so they're out.
> 4. This case has been extremely expensive, and it is prosecuting a patent that had never been tested in court, nor gone through a patent office re-review.
> 
> While Time-Warner is a likely target, I imagine the next suits will go against Motorola and Scientific Atlanta (now Cisco Systems). I wouldn't be surprised to see a few IP deals for TiVo over the next six months.


i think they also have some kind of trial dial with stand alone boxes with cablevision? Or they did in the past? So that takes them off the table too.

ANyway- I think your point about Moto and SA getting it next are right on. Tivo needs to nail the box providers not the people that buy the boxes. It just happens that Dish does both. (Directv too but they made a deal to play nicey nice recently)


----------



## ChuckyBox

MichaelK said:


> anyone know how many of those are deployed and which are current models?


There are in excess of 4 million infringing DVRs deployed by Echostar. I don't believe they have a non-infringing model to sell, except maybe this new HD one. But replacing 4 million DVRs in the field with that unit would take many months and be crazy expensive. Not to mention, that unit might infringe, too.


----------



## ParadiseDave

Edison also invented rabbit ears. Didn't you know?


----------



## sWampy

IndyJones1023 said:


> Now that guy had foresight!


Chase play has been something the audio world wanted since the first commercially produced records started being produced, and that's what tivo patented, only with video.


----------



## ChuckyBox

davezatz said:


> How about Microsoft?


They're also trying to be chummy with MSFT. And MSFT could just buy TiVo and collect royalties from everyone else. They've got the muscle and market position to really milk an IP portfolio.


----------



## d_anders

jfh3 said:


> The judge was pretty clear in the ruling - can't RECORD ANYTHING TO THE HARDDRIVE.
> 
> To me, that means the DVRs in the field (except for about 192K) essentially have to have all the DVR functionality disabled, which means the boxes would essentially be turned into standard receivers.


It will not come to that, otherwise it would be death to Dish.

Dish will somehow get another injunction, or they'll come to terms with an IP/licensing agreement agreeement with TiVo.

Remember the RIM (Blackberry) case? RIM finally settled with a patent holding company that really didn't have any products. In this case TiVo most certainly has products. I think Dish's case here is even weaker than RIM's, so it will be an interesting 30 days.

Other than legal expenses, this is all good for TiVo. They're going to get more IP/licensing deals out of this.


----------



## MichaelK

sWampy said:


> Patent office run amuck,... Now if tivo had patented the specific hardware/software for doing that fine, but that's not what they did.


I'm not positvie but it sure seems to me that the discussion in the thread 9here: http://www.tivocommunity.com/tivo-vb/showthread.php?t=293670 ) about the trial says E* violated a specific bit of hardware/software that Tivo made- the media switch .

for example the latest DISH DVR's like the 622 are not covered in the injunction so presumably they can record and watch by using a differnt unpatented method.


----------



## generalpatton71

Why would the vip622 be except? I've heard no mention of it being alowed to run???


----------



## MichaelK

generalpatton71 said:


> Why would the vip622 be except? I've heard no mention of it being alowed to run???


it's not listed as infringing int he tivo press release about the injunction

see this post:
http://www.tivocommunity.com/tivo-vb/showthread.php?p=4288321&&#post4288321



> ...U.S. District Court Judge David Folsom granted TiVo's motion for permanent injunction to prevent EchoStar Communications Corp. (Nasdaq: DISH; "ECC") from making, using, offering for sale or selling in the United States their DVR products at issue in the case (DP-501, DP-508, DP-510, DP-721, DP-921, DP-522, DP-625, DP-942, and all EchoStar DVRs that are not more than colorably different from any of these products)....


----------



## generalpatton71

What about where it said

"and all EchoStar DVRs that are not more than colorably different from any of these products"


----------



## GoodSpike

sWampy said:


> Patent office run amuck, yeah, reminds me of the bag on the end of stick patent for catching dog crap before it hit the ground patent that was recently issued. The ability to watch one show while recording another, is something that has been attempted since the first phonograph was first invented. A patent should not be issued just because hardware finally developed to the point that this inherently obvious thing could finally be realized. Now if tivo had patented the specific hardware/software for doing that fine, but that's not what they did.


But that's what the court system is for. As of this point in the proceeding, they've basically determined that the patent was properly issued. That could change on appeal of course. But we're well beyond just the patent office having issued a patent.

Besides, attempting to do something since time began is not a reason not to issue a patent. It's not like you need a new idea so much as a new way of actually accomplishing something. Under your system you'd probably need to through out every computer related patent issued in the past 20 years.


----------



## stevel

Part of the case with Echostar is that TiVo had gone to E* and shown them TiVo technology in the hopes of striking up a deal, as the then in progress E* boxes didn't work well. E* then supposedly copied the TiVo technology.


----------



## generalpatton71

Looks like E* got a stay.
http://phx.corporate-ir.net/phoenix.zhtml?c=68854&p=irol-newsArticle&ID=897186&highlight=


----------



## Dajad

I've added a post about this on my site here:

http://daledietrich.com/imedia/2006...hostar-appeals-court-grants-a-temporary-stay/

If I can find a copy of the injunction decision I will post it there. If anyone has a copy of the deicsion, in any format, please e-mail it to me: [email protected] and I will post it.

It appears that Echostar has already had the order stayed by the Federal Circuit Court of Appeal.

FYI, Here's a link to the original TiVo Jury Trial Victory Story:

http://daledietrich.com/imedia/2006/04/13/196/

...Dale


----------



## MichaelK

what is the real world on the stay- does that mean days, weeks, months, or years or delay waiting to see if it will get enforced?


----------



## generalpatton71

MichaelK said:


> what is the real world on the stay- does that mean days, weeks, months, or years or delay waiting to see if it will get enforced?


Right now it seems short term until the judge has more time to review and to rule on a long term stay while E* appeals. The judge may review and say sorry E* the injunction is back in place. He may also review and stay the injunction pending E* appeal, but all he has done to my knowledge is stay the injunction until he is finished reviewing the injunction.


----------



## grecorj

> "We also continue to work on modifications to our new DVRs, and to our DVRs in the field, intended to avoid future alleged infringement."


Huh? Why would you modify something if you don't believe TiVo has a case?


----------



## Sevenfeet

It's called covering your bases...


----------



## MichaelK

grecorj said:


> Huh? Why would you modify something if you don't believe TiVo has a case?


I saw the same thing. I realize it's CYA and Plan B sort of thing- but it's funny that they advertise it.

It's almost like

"and if our lawyers truly are as wrong as Tivo says then our engineers will step in and fix it"


----------



## ping

MichaelK said:


> I saw the same thing. I realize it's CYA and Plan B sort of thing- but it's funny that they advertise it.
> 
> It's almost like
> 
> "and if our lawyers truly are as wrong as Tivo says then our engineers will step in and fix it"


RIM very publicly announced they had a workaround, too, and then they settled. Workarounds seldom are without drawbacks.


----------



## MichaelK

ZeoTiVo said:



> you linked to the begining of this very thread
> which seems appropriate somehow on how the trial and appeals and stays and retrial is progressing as well. A fair trial is a good thing but this just points out how common sense and efficiency have just been written out of our legal system


whoops sorry posted in the wrong thread- was tryign to aim the people in the happy hour here- gotta go fix it...

sorry

Edit- maybe the threads got merged? I cant find the one in the happy hour...


----------



## MichaelK

ping said:


> RIM very publicly announced they had a workaround, too, and then they settled. Workarounds seldom are without drawbacks.


Now that you mention it- probably part of their negotiating with Tivo.

Make it seem like they can just change their code so no need to pay tivo a big licensing fee going forward


----------



## SullyND

MichaelK said:


> Edit- maybe the threads got merged? I cant find the one in the happy hour...


Yes, I believe they were mergededid.


----------



## davezatz

Anyone know which court EchoStar used this AM? I'm trying to track down the documentation. So far the only thing I've seen is their press release (and spin).


----------



## Rob Helmerichs

This was posted on another board, unfortunately wihtout attribution:



> A judge has ordered EchoStar to disable the digital video recorders used by several million subscribers to its Dish satellite TV service because they infringe on patents held by TiVo. Thursday's ruling from U.S. District Judge David Folsom in Marshall, Texas, demands that within 30 days EchoStar must basically render useless all but 192,708 of the DVR units it has deployed. The decision comes four months after a jury ruled that EchoStar should pay TiVo $74.9 million because it willfully infringed TiVo patents that allow for the digital storage of TV programming. The judge also denied EchoStar's request that the injunction be stayed pending appeal, making it difficult for EchoStar to continue offering its subscribers' DVR functionality without striking a quick licensing deal with TiVo or another DVR maker.


----------



## JimSpence

The injunction has been blocked.
http://www.tivocommunity.com/tivo-vb/showthread.php?p=4289343&&#post4289343


----------



## generalpatton71

JimSpence said:


> The injunction has been blocked.
> http://www.tivocommunity.com/tivo-vb/showthread.php?p=4289343&&#post4289343


 This was already posted several posts up. We are waiting to see something besides a E* press release about it.


----------



## MichaelK

davezatz said:


> Anyone know which court EchoStar used this AM? I'm trying to track down the documentation. So far the only thing I've seen is their press release (and spin).


posted in the wrong thread- people keep opening new ones...



MichaelK said:


> Dave-
> 
> I think I saw a post someplace that it was an appeals court in washington DC?


http://phx.corporate-ir.net/phoenix.zhtml?c=68854&p=irol-newsArticle&ID=897186&highlight=



> "We are pleased that this morning, the Federal Circuit Court of Appeals in Washington, D.C. temporarily blocked an injunction issued by a Texas Court, while it considers a longer-term stay of that injunction.


----------



## HDTiVo

MichaelK said:


> what is the real world on the stay- does that mean days, weeks, months, or years or delay waiting to see if it will get enforced?


It also means the check is not in the mail.


----------



## davezatz

TiVo replies... and as soon as my blog is working normally, I might update it. 

TiVo Statement in Response to the Federal Circuit Court of Appeals' Decision to Temporarily Block Injunction



TiVo Inc. (Nasdaq: TIVO), the creator of and a leader in television services for digital video recorders (DVR), today offered the following statement on the Federal Circuit Court of Appeals in Washington, D.C. decision to temporarily block the injunction ordered by U.S. District Court Judge David Folsom:

The company said, "We are very pleased by recent developments involving the issuance of a permanent injunction in our patent case against EchoStar by the United States District Court, Eastern District of Texas. The court of appeals temporarily stayed the district court injunction until it reviews the papers submitted by the parties and decides whether a stay should or should not be in effect for the duration of the appeals process. The court stated that the temporary stay is not based on a consideration of the merits of EchoStar's request, and is entered to preserve the status quo while the court considers the parties' papers."


----------



## MichaelK

from PR newsire:



> TiVo Statement in Response to the Federal Circuit Court of Appeals' Decision to Temporarily Block Injunction
> 
> ALVISO, Calif., Aug. 18 /PRNewswire-FirstCall/ -- TiVo Inc. (Nasdaq:
> TIVO), the creator of and a leader in television services for digital video
> recorders (DVR), today offered the following statement on the Federal
> Circuit Court of Appeals in Washington, D.C. decision to temporarily block
> the injunction ordered by U.S. District Court Judge David Folsom:
> The company said, "We are very pleased by recent developments involving
> the issuance of a permanent injunction in our patent case against EchoStar
> by the United States District Court, Eastern District of Texas. The court
> of appeals temporarily stayed the district court injunction until it
> reviews the papers submitted by the parties and decides whether a stay
> should or should not be in effect for the duration of the appeals process.
> The court stated that the temporary stay is not based on a consideration of
> the merits of EchoStar's request, and is entered to preserve the status quo
> while the court considers the parties' papers."
> About TiVo
> Founded in 1997, TiVo pioneered a brand new category of products with
> the development of the first commercially available digital video recorder
> (DVR). Sold through leading consumer electronic retailers, TiVo has
> developed a brand which resonates boldly with consumers as providing a
> superior television experience. Through agreements with leading satellite
> and cable providers, TiVo also integrates its full set of DVR service
> features into the set-top boxes of mass distributors. TiVo's DVR
> functionality and ease of use, with such features as Season Pass(TM)
> recordings and WishList(R) searches, has elevated its popularity among
> consumers and has created a whole new way for viewers to watch television.
> With a continued investment in its patented technologies, TiVo is
> revolutionizing the way consumers watch and access home entertainment.
> Rapidly becoming the focal point of the digital living room, TiVo's DVR is
> at the center of experiencing new forms of content on the TV, such as
> broadband delivered video, music and photos. With innovative features such
> as, TiVoToGo(TM) and online scheduling, TiVo is expanding the notion of
> consumers experiencing "TiVo, TV your way." The TiVo(R) service is also at
> the forefront of providing innovative marketing solutions for the
> television industry, including a unique platform for advertisers and
> audience measurement research. The company is based in Alviso, Calif.
> This release contains certain forward-looking statements within the
> meaning of the Private Securities Litigation Reform Act of 1995. These
> statements relate to, among other things, TiVo's business, services,
> financial statements, future product strategy, and the impact of the
> EchoStar litigation. Forward-looking statements generally can be identified
> by the use of forward-looking terminology such as, "believe," "expect,"
> "may," "will," "intend," "estimate," "continue," or similar expressions or
> the negative of those terms or expressions. Such statements involve risks
> and uncertainties, which could cause actual results to vary materially from
> those expressed in or indicated by the forward-looking statements. Factors
> that may cause actual results to differ materially include delays in
> development, competitive service offerings and lack of market acceptance,
> as well as the other potential factors described under "Risk Factors" in
> the Company's public reports filed with the Securities and Exchange
> Commission, including the Company's Annual Report on Form 10-K for the
> fiscal year ended January 31, 2006, as updated by subsequent Quarterly
> Reports on Form 10-Q and Current Reports on Form 8-K. The Company cautions
> you not to place undue reliance on forward-looking statements, which
> reflect an analysis only and speak only as of the date hereof. TiVo
> disclaims any obligation to update these forward- looking statements.


----------



## MichaelK

i need to learn to type faster... LOL


----------



## HDTiVo

ZeoTiVo said:


> 29 days


And holding.


----------



## cwoody222

davezatz said:


> A small company like TiVo has to pick their battles carefully. They loaned Dish a TiVo model to check out. When they told TiVo they didn't want to partner, they conveniently lost the sample model and here we are. I think it was strategic - if you win one big case, it'll motivate others to partner or license.


I had no idea about the 'loan' and 'lost' aspect here. Wow, that's pretty sh!tty of Dish!


----------



## herdfan

In my mind the stay was expected.

The court looks at injunctions as to what harm will come to the party(DISH) if the injunction is upheld should the ultimately prevail. DISH would suffer huge losses if it had to turn off millions of DVRs while this wound it way through the appeals process.

TiVo on the other hand had very little to lose with the injuction being stayed, ie they are in no worse position than they were before the trial.

DISH should still be required to pay the $90M to the court.


----------



## generalpatton71

herdfan said:


> In my mind the stay was expected.
> 
> The court looks at injunctions as to what harm will come to the party(DISH) if the injunction is upheld should the ultimately prevail. DISH would suffer huge losses if it had to turn off millions of DVRs while this wound it way through the appeals process.
> 
> TiVo on the other hand had very little to lose with the injuction being stayed, ie they are in no worse position than they were before the trial.
> 
> DISH should still be required to pay the $90M to the court.


I disagree and so did the judge when he gave the injunction. I expected this short stay when it came out that they were trying to get a stay from another judge. Judges do this almost 100% of the time so the new court can catch up on the subject. If tivo wins in appeals court and they weren't granted a stay. It would mean increase damages ect. Read what the initial judge said when he granted the injunction and you will understand what I mean.


----------



## jmoak

Tivo sues Echostar in January of 2004.

Motions, cases, orders... heck, even a patent challenge.

Tivo wins 'em all.

Now here it is, two and a half years later, august of 2006, and what's tivo got for it's trouble and theft of it's ip and innovation?

Lawyer bills, a lick, a promise and a handful of nothing.


Kinda makes you wonder, don't it?


----------



## sbiller

jmoak said:


> Kinda makes you wonder, don't it?


These patent disputes take a long time but can be very rewarding.

RIM Lawsuit

Not to mention the number of deals that TiVo will probably ink because of the possibility of a lawsuit.


----------



## ChuckyBox

HDTiVo said:


> It also means the check is not in the mail.


No, but there is likely a much bigger one on a table in a mediator's office somewhere in Texas.

(A judge named Faulkner has been given the task. The word on him is that he's very, very good.)


----------



## Sapphire

cwoody222 said:


> I had no idea about the 'loan' and 'lost' aspect here. Wow, that's pretty sh!tty of Dish!


That's just plain DISHonesty.


----------



## HDTiVo

ChuckyBox said:


> No, but there is likely a much bigger one on a table in a mediator's office somewhere in Texas.
> 
> (A judge named Faulkner has been given the task. The word on him is that he's very, very good.)


Bigger than the one when the damages might have been tripled?

I don't think any of what's just happend will move the negotiations very far.


----------



## Curtis

HDTiVo said:


> Bigger than the one when the damages might have been tripled?


The damages may triple. TiVo is considering an appeal.


----------



## btwyx

IndyJones1023 said:


> I wish they'd agree to update the boxes, too, then.


They did. The D* agreement included support, which includes upgrades, I'm not sure if that was explicit though.


----------



## davezatz

btwyx said:


> They did. The D* agreement included support, which includes upgrades, I'm not sure if that was explicit though.


From TiVo's relevant press release: _Existing DIRECTV TiVo subscribers will be able to continue to receive the award-winning TiVo(R) service, with TiVo providing ongoing maintenance and support._ Without seeing the agreement, "maintenance and support" seems inclusive of upgrades to me... though that doesn't necessarily mean DTV will choose to implement HMO stuff. (Given their new SD and HD DVRs, I doubt they'd want to.)


----------



## ChuckyBox

HDTiVo said:


> Bigger than the one when the damages might have been tripled?


That one may not have ever existed. But the injunction is much more damaging to Echostar than a cash award, so yes, probably bigger than that one.



> I don't think any of what's just happend will move the negotiations very far.


You didn't think TiVo would win the trial.


----------



## jfh3

_The following is from a post made on another message board. I happen to know the poster and agree with his comments here. Hopefully he won't mind my reposting, with slight edits for the family channel. Note that this was written before the temporary stay, but after reading the judge's ruling in docket 775, I'd be surprised if Dish gets a stay throughout the appeal process.
_

"TiVo got everything they asked for except the triple damages and attorneys' fees. TiVo solidly, crushingly, won on every count. E*'s defenses were denied, TiVo got its interest and supplemental damages, and most importantly, it's injunction. And injunction not only on further deployments, but on all (but 192,000) of E*'s currently deployed DVRs. E*'s motion for a stay pending appeal was denied. It is an absolute victory on everything the judge could give TiVo, except the exceptional case motion, which the judge denied, arguing (correctly, if not generously) that TiVo was at least partially responsible for the difficulty of the case.

But the judge couldn't give TiVo the triple damages. He (by his own admission in the judgement) had denied E* the right to introduce the disputed opinion of non-infringement, and had not given E* the time it requested to complete its appeal of his order to produce the related documents. So if he gave TiVo the benefit of the jury's finding of willfulness by awarding triple damages, E* would have a solid argument for appeal, and possibly a new trial (at least on willfulness). And that means the injunction would be stayed, and we'd be looking at months and months of more uncertainty and E* stealing TiVo customers and all the **** we've been putting up with for years.

The genius of this ruling is that it cuts E*'s feet from under them. They can appeal the willfulness verdict, but it didn't cost them anything, so the judge has made it moot. Now all they've got to appeal is a lengthy list of lame complaints that the appeals court can just toss aside (a very, very real and scary possibility when staring down the barrel of an extremely expensive injunction).

But TiVo can appeal. If TiVo manages to wrest control of some documents that destroy E*'s credibility on the Merchant letter, or (better yet) show actual criminal or civil misconduct, they can appeal the judge's decision against triple damages (or file another suit on the basis of the misconduct) and get their enhanced damages. The judge gave them that by making the Merchant letter the focus of his ruling. And now Folsom can continue the post-trial motions until the document issue (now in Georgia court) is resolved. And if TiVo can't get the evidence they want, then they would lose the appeal, they'd lose the retrial on willfulness, and wouldn't get their triple damages anyway.

This way, TiVo can still get their triple damages if they succeed in the Georgia court, but if not, they still get $90 million, and E* is totally hosed because of the injunction. They now may be forced to settle for an amount far in excess of the triple damages TiVo sought.

It's pure genius. Folsom is da man."


----------



## Deacon West

Could someone explain in layman's terms why some of the E* DVR were not found to infringe. Similarly, why aren't all the Cable Co.'s and D*'s DVR infringing on the patent as well. Can DVR's now be made at a consumer friendly price point that does not infringe on TiVo's patents?


----------



## MichaelK

Deacon West said:


> Could someone explain in layman's terms why some of the E* DVR were not found to infringe. Similarly, why aren't all the Cable Co.'s and D*'s DVR infringing on the patent as well. Can DVR's now be made at a consumer friendly price point that does not infringe on TiVo's patents?


the first generation models of DISH DVR's aren't included. (dishplayers)

It's about 30 pages back, but I seem to recall there is some silly technicality that Tivo like tivo didn't write 'patent pending' on the rear of the boxes until after the dishplayers were out. I think the logic was that Tivo didn't assert their patent by writing that on the boxes so they cant complain if someone infringed before that.

(any of you legal scholars feel free to correct me- i can barely keep up- LOL)


----------



## Deacon West

Next thought, I'm a somewhat happy Comcast customer so I won't do this myself. However, couldn't someone sign up for an E* DVR, hoping to get one that infringed upon the TiVo patent, now so that a) E* would have to make it up to you or b)take advantage of any deals D* might give (alluded to in previous posts) in order to gain market share from E*'s troubles?


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## HDTiVo

ChuckyBox said:


> That one may not have ever existed. But the injunction is much more damaging to Echostar than a cash award, so yes, probably bigger than that one.
> 
> You didn't think TiVo would win the trial.


The reason I think there is not much movement by the parties is that everything that has happened is fairly pro-forma in the process. Echostar should have been contemplating a high probability of an injunction in the judgement, so actually getting the injunction should move their contemplated settlement up moderately. The extra damages contemplated pre-judgement by E* should have been somewhat higher than $10M (out of a $150M potential), so the $10M enhancement should be below E* expectations, pushing their contemplated settlement lower. Net, I figure not much movement.

I figure TiVo is very confident and was expecting the injunction and near triple damages. Perhaps their view would move down now that they offically got only $10M extra in the judgement.

I think the two sides are probably very far apart, valuing the injunction and the liklihood and amount of money damages ultimately being collected very differently.

The injunction is dead for at least a couple of months while the Appeals Court works on the case. It might end up dead for a couple years while Courts handle the case, and even be completely eliminated. One thing to consider is that money damages - in lieu of an injunction - have already been calculated in the original trial for past infringement. Its not unreasonable to think that because an injunction could be so costly to E*'s business that money damages would statisfy any ongoing infringement until everything is final, at which point an injunction could be part of the judgement.

While the injunction is in limbo, E* can make plans to reduce the exposure to its business. Philosophically, is an injunction really better for TiVo than a stayed injunction with potential money damages accumulating?

I didn't really commit to whether TiVo would win the trial - that's just too random an outcome. I was very concerned about certain aspects that it didn't look like TiVo was handling right because I thought the Court was incorrect in the way it seemed it was interpreting something not absolutely in TiVo's favor. But I knew I didn't have all the details of what was happening. Ultimately it looked like the Judge completely avoided the issue in the way he instructed the Jury, which was interesting to read and probably best for TiVo.

I think the Jury award was pretty high for what was involved and that the ultimate outcome is very uncertain and a long way off unless settled. I think if TiVo can get a moderate amount of money from E* they should take it and get on with the business of selling DVRs and out of the IP litigation business.


----------



## ChuckyBox

HDTiVo said:


> The reason I think there is not much movement by the parties is that everything that has happened is fairly pro-forma in the process.


Maybe pro-forma, but also necessary to complete the process. There seems to be a general assumption that TiVo has wanted to settle or was willing to take a "reasonable" settlement. But that's probably not the case. TiVo has wanted this ruling. It wanted a court to validate its patent, and it wanted damages, and most importantly, it wanted an injunction. TiVo wanted these things so that it can negotiate other licensing deals from a position of relative strength. Settling with Echostar now is secondary, and is just a matter of getting an amount that is on par with other licensing deals they want to negotiate.

Echostar is facing a mass of uncertainty and potentially very expensive outcomes. Despite your claim that the injunction is dead for at least a couple of months, TiVo has until this coming Wednesday (Aug. 23) to file a response. Which means the injunction could be back in effect as early as the end of next week or any time the following week. Even if the injunction is stayed during appeal, there is no guarantee that the appeal will be heard, or successful, or that anything that is sent back to the Texas court will impact the issues of infringement or validity. Meanwhile, Echostar* will still be on the hook for about $4M per month in supplemental damages and interest, plus TiVo's attorney's fees, plus TiVo could win their appeal of the treble damages ruling, meaning that not only is the award tripled, but the supplemental damages and interest are, too. And at the end of that road, there may still be an injunction.

Uncertainty is bad for a publicly-traded company. If you are a DISH shareholder right now, you want two things: settle with TiVo, and settle with the affiliate broadcasters. Either of those settlements (but especially the TiVo one) will boost the share price by more than the cost of the settlement. If Echostar has to bite the bullet on either of the injunctions, the cost in market cap is going to dwarf the financial cost to the company. And, of course, if you want the company to be sold, as DISH shareholders seem to, you do not want business-disrupting injunctions hanging over your head.

There is a lot more pressure for Echostar to settle now than there was a few days ago (and significantly more justification), and TiVo is much more likely to be open to a settlement. (Though some analysts have suggested that TiVo may decide to go the distance and let the injunction stand, which would make them very popular with the cable crowd.)



> I think if TiVo can get a moderate amount of money from E* they should take it and get on with the business of selling DVRs and out of the IP litigation business.


On that we agree, though I think our idea of what constitutes "a moderate amount of money" is probably different.


----------



## Gerald S. Y.

The element mentioned in news reports of the trial:


> Watching a recorded program while recording another.


A friend and I have been doing that since the mid 90's.
Fall 2000 we spent "decades of unhappy moment" during 29 days of a "30 day free" trial offer of a DVR from the satellite provider who "ran away with the spoon".
I resolved the money part on my MENSA Master Card with MBNA my card issuer. What the (former now) "Authorized Local Vender" sold was not what we received. The credit card terminology is "Not as described".

TiVo has an Idea and an Expression that content carriers try to emulate.

The largest cable company that serves 'most' of Denver commissioned (bought, licened? I.D.K.) software for their leasable "dual tuner DVR's" in 2004. The software was downsized(?) to run on the standard and hi-def leasable tuner only hardware. Legacy bugs in the downsized software have this ultimate result: a call to their customer service sales associates (24-7) gets an


> upsell to the dual tuner dvr


. "Tastes like chicken but sticks in my throat like bait and switch"(IMHO).

TiVo is the vanguard. It should set the standard then licence (as they are attempting) and improve.

Can someone tell me, technical description, if the TiVo software/hardware offering(s) have multiple, addressable, configurable (audio and video monitor) signal output capability.

I found computer user groups launched me into the digital information age. AI, until it's perfected, LI (living intelligence 12 jurors) for now, is fine by me.

Jerry


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## HDTiVo

ChuckyBox said:


> Uncertainty is bad for a publicly-traded company. If you are a DISH shareholder


What would you write for the paragraph: If you are TiVo's _Managment and Board_?


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## ac3dd

Bear in mind that an injunction could be dangerous to TiVo if they lose the appeal. If Echostar prevails after an injunction (which could last years until the appeal is finalized), TiVo would have to pay Echostar for losses during the injunction period.


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## Curtis

ac3dd said:


> Bear in mind that an injunction could be dangerous to TiVo if they lose the appeal. If Echostar prevails after an injunction (which could last years until the appeal is finalized), TiVo would have to pay Echostar for losses during the injunction period.


The injunction is the judge's decision. Maybe E* could sue the judge if they win the appeal.


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## ac3dd

Curtis said:


> The injunction is the judge's decision. Maybe E* could sue the judge if they win the appeal.


The judge's decision *in conjunction with what TiVo asked for*. If TiVo didn't request an injunction, there would be none.

When an injunction is in place, a losing plaintiff (i.e. loses at the end of appeals) has to pay damages to the defendant for losses in the injunction period. If there is no injunction, a finally defeated defendant has to pay additional damages for ongoing infringement that happened during the appeals process.


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## ChuckyBox

HDTiVo said:


> What would you write for the paragraph: If you are TiVo's _Managment and Board_?


That's a tough one because I'm not privy to what is going on behind the scenes. I don't know what, if anything, Echostar is offering to settle, or what advantage TiVo gains in other negotiations by leaving Echostar hanging. I also don't know what TiVo's lawyers are telling management about the liklihood of various outcomes. Obviously managements wants the company to grow and become profitable, which a deal with Echostar could certainly help bring about. But if that queers a deal with, say, Cox, then it might not be their best option.

If you want a paragraph on what TiVo's shareholders want, that's easier: Settle with Echostar. Get another MSO deal or two. Get the Series 3 box out. Push the standalone business as hard as you can. Make some big content deals.


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## MichaelK

I'm not sure 'getting out of the IP litagatiopn business' is best for tivo. 

Long term - yes they want to be out of it- but becasue they have proven their patent's are key and have forced everyone to pay up. If they decide to bail on litagation just becasue 'litiagation is bad' then they potentially shoot themselves int he foot going forward. 

If they chicken out and settle for a "low" figure (whatever that is defined as)- the other players might just be imboldened that whatever deal E* gets is the worst possible case and have their accountants calculate to ignore Tivo for another few years in the hopes that they get bought up by someone in the mean time.

If they can get a big nut that is not a concern. But they settling just for the sake of settling isn't in TiVo's best interest I'd think...


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## HDTiVo

ac3dd:


HDTiVo said:


> One thing to consider is that money damages - in lieu of an injunction - have already been calculated in the original trial for past infringement. Its not unreasonable to think that because an injunction could be so costly to E*'s business that money damages would statisfy any ongoing infringement until everything is final, at which point an injunction could be part of the judgement.
> ...
> Philosophically, is an injunction really better for TiVo than a stayed injunction with potential money damages accumulating?





Chuckybox said:


> If you want a paragraph on what TiVo's shareholders want


That's an essential problem. The shareholders aren't going to decide it for TiVo or E*. The shareholder perspective is less interesting to take because its not controlling the outcome.



Chuckybox said:


> Uncertainty is bad for a publicly-traded company.


I think you were writing before from the shareholder's perspective of the publicly traded company, and saying the pain is worse on the E* side than the TiVo side. However, for E* paying $90M and turning off most DVRs in 6 weeks or three months, or paying $150M and turning off most DVRs in two years isn't going to injure them to the degree that TiVo getting zip would hurt TiVo. If TiVo gets zip, they are very close to hitting rock bottom in a few QTRs unless there is a drastic turn around in the business.

To expand the discussion to other IP deals with other carriers, TiVo Management has been very dour about any progress towards deal since the Jury verdict. What has happend since is that TiVo got an Injunction they were likely to get and a small increment in damages, and E* got a Stay which they were likely to get. So I doubt the other parties are much further impressed.

Beyond the Case itself, the Patent was pretty much destroyed by the Patent Office, and to my knowledge it has not been restored yet. Unless TiVo gets key Claims restored, the original verdict will be worthless.

If I were TiVo's Management and Board, I'd ask for $15M with a long term cross license agreement. Then I'd get in gear fixing the Company before its too late.


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## MichaelK

HDTiVo said:


> ...
> That's an essential problem. The shareholders aren't going to decide it for TiVo or E*. The shareholder perspective is less interesting to take because its not controlling the outcome.
> 
> ...
> .


in this day and age- they have to at least LOOk like they were thinking about what is best for the shareholders if they dont want to wind up getting sued themselves...

I dont think anyone is acting so egregious at this point but if one or the other totally screws up from being too hard headed then that is something to think about....


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## jfh3

HDTiVo said:


> If TiVo gets zip, they are very close to hitting rock bottom in a few QTRs unless there is a drastic turn around in the business.


Based on what? Tivo's not in the dire financial straights some seem to think.



> What has happend since is that TiVo got an Injunction they were likely to get


From what I read, most didn't expect this.



> Beyond the Case itself, the Patent was pretty much destroyed by the Patent Office, and to my knowledge it has not been restored yet. Unless TiVo gets key Claims restored, the original verdict will be worthless.


No and Not hardly.



> If I were TiVo's Management and Board, I'd ask for $15M with a long term cross license agreement. Then I'd get in gear fixing the Company before its too late.


I thought you had some good ideas about pricing, but you are way off here.


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## generalpatton71

Is it just me or does everybody seem to think this was a permanent stay? People it's a temp. stay that could literally last days or weeks. The judge has not I repeat has not stayed the injuction pending appeal!! Just read what tivo's response was to all this a few posts back.


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## ChuckyBox

HDTiVo said:


> I think you were writing before from the shareholder's perspective of the publicly traded company, and saying the pain is worse on the E* side than the TiVo side.


I was talking about Echostar because you said not much had changed with the recent rulings. A lot has changed for Echostar.



> However, for E* paying $90M and turning off most DVRs in 6 weeks or three months, or paying $150M and turning off most DVRs in two years isn't going to injure them to the degree that TiVo getting zip would hurt TiVo.


You have to be kidding. For Echostar to have to shut down 4 million DVRs and stop selling new ones would be very expensive. Replacing the DVRs would take many months and cost upward of $1B. In the meantime they would be losing hundreds of thousands of their highest-ARPU, lowest-churn subscribers. Subs that cost on order of $650 each to replace. The sub growth would stagnate without a DVR offering; and without growth the market cap of the company would plunge, spurring shareholder lawsuits against the company's management.

If TiVo loses the suit, it is back to business as usual, except legal fees will be a lot less.



> Beyond the Case itself, the Patent was pretty much destroyed by the Patent Office, and to my knowledge it has not been restored yet. Unless TiVo gets key Claims restored, the original verdict will be worthless.


You are wrong here on so many fronts, it is hard to know where to start. Two of the claims Echostar was found to have wilfully infringed were validated -- that alone is enough to maintain the verdict. But the patent examiner had an interview with Barton et al., and he noted in a report on the interview that the parties reached agreement. TiVo's response to that indicates that the examiner has agreed that there are structural differences between the TiVo patent's primary claims and the prior art. TiVo submitted documentation the examiner requested, pointing out those differences. It is likely that many, if not all, of TiVo's claims will be restored. Even Echostar has given up on this avenue -- in their previous 10-Q they mentioned the patent office review as one area of hope in the litigation, but that language is gone from the most recent 10-Q. And finally, the patent is valid until the PTO says it is not, and there is a lengthy, appeal-filled process before it gets there. Even Echostar admitted that the lawsuit could go through the entire appeals process and they would be stuck with a final ruling before a ruling was reached on the patent.



> If TiVo gets zip, they are very close to hitting rock bottom in a few QTRs unless there is a drastic turn around in the business.
> 
> If I were TiVo's Management and Board, I'd ask for $15M with a long term cross license agreement. Then I'd get in gear fixing the Company before its too late.


These statements seem inconsistent. If TiVo gets zip, they are close to hitting rock bottom, but you think they should take $15M and walk away? I can't see how $15M is much more than zip in this case.

All I can say is I'm glad you aren't running the company. You'd take a $90 million award (that includes monthly "royalty" payments) and an incredibly powerful injunction that required two and a half years and probably $30 million in legal fees to obtain, and trade it for $15M. Talk about snatching defeat from the jaws of victory.

In contrast, NTP took a $137 million judgement and an injunction, much of which had been sent back on appeal, and patents that really had been shredded by the PTO, and turned it into $612 million.


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## Curtis

HDTiVo said:


> Beyond the Case itself, the Patent was pretty much destroyed by the Patent Office, and to my knowledge it has not been restored yet. Unless TiVo gets key Claims restored, the original verdict will be worthless.


The patent office hasn't made a final ruling. At last report, TiVo and the examiner had reached an agreement. The software claims (31 and 61 in the patent) were not in jeopardy. Anyway, as far as this case is concerned it doesn't matter. RIM had to pay $612 million in the Blackberry suit even after the patent office ruled NTP's patent invalid. See Wikipedia .


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## ac3dd

Curtis said:


> The patent office hasn't made a final ruling. At last report, TiVo and the examiner had reached an agreement. The software claims (31 and 61 in the patent) were not in jeopardy. Anyway, as far as this case is concerned it doesn't matter. RIM had to pay $612 million in the Blackberry suit even after the patent office ruled NTP's patent invalid. See Wikipedia .


RIM didn't *have to* pay. It was a settlement, not a judgement. They chose to pay the settlement to get the crap over with. The announcement of their agreement to pay was only days after the patents were ruled invalid. By that time they may have exchanged too many signatures and handshakes to back out of the settlement without more legal problems.


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## Curtis

ac3dd said:


> RIM didn't *have to* pay. It was a settlement, not a judgement. They chose to pay the settlement to get the crap over with.


Well, that's true. They didn't *have to* settle. They could have just shut off all the Blackberry's.


----------



## HDTiVo

ChuckyBox said:


> You have to be kidding. For Echostar to have to shut down 4 million DVRs and stop selling new ones would be very expensive. Replacing the DVRs would take many months and cost upward of $1B. In the meantime they would be losing hundreds of thousands of their highest-ARPU, lowest-churn subscribers. Subs that cost on order of $650 each to replace. The sub growth would stagnate without a DVR offering; and without growth the market cap of the company would plunge, spurring shareholder lawsuits against the company's management.
> 
> If TiVo loses the suit, it is back to business as usual, except legal fees will be a lot less.
> 
> You are wrong here on so many fronts, it is hard to know where to start. Two of the claims Echostar was found to have wilfully infringed were validated -- that alone is enough to maintain the verdict. But the patent examiner had an interview with Barton et al., and he noted in a report on the interview that the parties reached agreement. TiVo's response to that indicates that the examiner has agreed that there are structural differences between the TiVo patent's primary claims and the prior art. TiVo submitted documentation the examiner requested, pointing out those differences. It is likely that many, if not all, of TiVo's claims will be restored. Even Echostar has given up on this avenue -- in their previous 10-Q they mentioned the patent office review as one area of hope in the litigation, but that language is gone from the most recent 10-Q. And finally, the patent is valid until the PTO says it is not, and there is a lengthy, appeal-filled process before it gets there. Even Echostar admitted that the lawsuit could go through the entire appeals process and they would be stuck with a final ruling before a ruling was reached on the patent.
> 
> These statements seem inconsistent. If TiVo gets zip, they are close to hitting rock bottom, but you think they should take $15M and walk away? I can't see how $15M is much more than zip in this case.
> 
> All I can say is I'm glad you aren't running the company. You'd take a $90 million award (that includes monthly "royalty" payments) and an incredibly powerful injunction that required two and a half years and probably $30 million in legal fees to obtain, and trade it for $15M. Talk about snatching defeat from the jaws of victory.
> 
> In contrast, NTP took a $137 million judgement and an injunction, much of which had been sent back on appeal, and patents that really had been shredded by the PTO, and turned it into $612 million.


What you say about the status of the patent makes alot of sense. I should value the Patent much higher at this point. If only the software claims were to remain valid, would E* necessarily have to replace the boxes? Would that precipitate a new trial? Would the damages be the same?

The absolute cost to E* is extremely high, several times higher than to TiVo, in their respective worst cases. I just say its not going to break E*, whereas TiVo is heading into the abyss if nothing changes and they get nothing from E*.

I'm not being inconsistent because taking the settlement necesitates also getting their act together in other areas. If operations are going to continue as they are they might as well just sue everyone they can and become an IP royalty company. Litigation is so draining and intense that there is no way this group can do both, especially since Rogers seems to have trouble staying awake past 6pm.


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## ah30k

Curtis said:


> Well, that's true. They didn't *have to* settle. They could have just shut off all the Blackberry's.


No, a third option was that they could have won. You are missing the difference between a settlement and a judgement. There are three possibilities; settlement, fight and win or fight and lose.


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## ZeoTiVo

HDTiVo said:


> The absolute cost to E* is extremely high, several times higher than to TiVo, in their respective worst cases. I just say its not going to break E*, whereas TiVo is heading into the abyss if nothing changes and they get nothing from E*.


this is not the only thing TiVo is focused on. There is Comcast and now we have rumors of a new download deal possibility via iTunes. I doubt TiVo is looking to just become an IP litigation company. Wrong players and way too much R&D money being spent for such a business plan.

Now the best case to TiVo is a large upside of getting continued licensing deals with sat providers. That is worth some risk and already paid a small dividend with directTV extension so DirecTV can hedge their bets


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## Welshdog

ZeoTiVo said:


> There is Comcast and now we have rumors of a new download deal possibility via iTunes.


What download via iTunes rumor?


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## Curtis

ah30k said:


> No, a third option was that they could have won. You are missing the difference between a settlement and a judgement. There are three possibilities; settlement, fight and win or fight and lose.


RIM could have won? How?

"In January of 2006, the US Supreme Court refused to hear RIM's appeal of the conviction for patent infringement, and the matter was returned to a lower court. The previously granted injunction preventing all RIM sales in the US and use of the BlackBerry device might have been enforced by the presiding district court judge had the two parties not been able to reach a settlement.

On 3 March 2006, after a stern warning from judge Spencer, RIM and NTP announced that they had settled their dispute. Under the terms of the settlement, RIM has agreed to pay NTP $612.5 million (USD) in a full and final settlement of all claims.


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## ZeoTiVo

Welshdog said:


> What download via iTunes rumor?


here
http://www.tivocommunity.com/tivo-vb/showthread.php?p=4284749&&#post4284749

but it is a post by someone who only posted twice and is gone. No cooberation of any sort, etc.. just a rumor that would be really, really nice to believe in


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## btwyx

I can corroborate that there were TiVo people at the WWDC, as for the rest of it, I couldn't say.


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## HDTiVo

btwyx said:


> I can corroborate that there were TiVo people at the WWDC, as for the rest of it, I couldn't say.


What look did they have on their faces?


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## btwyx

HDTiVo said:


> What look did they have on their faces?


Seemed quite relaxed, unless you asked about certain, eagerly awaited, products.


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## Dan203

ZeoTiVo said:


> here
> http://www.tivocommunity.com/tivo-vb/showthread.php?p=4284749&&#post4284749
> 
> but it is a post by someone who only posted twice and is gone. No cooberation of any sort, etc.. just a rumor that would be really, really nice to believe in


Wow that would be awesome if it turned out to be true.

Dan


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## ChuckyBox

HDTiVo said:


> If only the software claims were to remain valid, would E* necessarily have to replace the boxes? Would that precipitate a new trial? Would the damages be the same?


A lot of unknowns there. It is hard to imagine a software change that would make it non-infringing but still allow the boxes to do the thing they do. But I imagine E* would go that route if it came to that point, and they may try it anyway. But I think the burden of proof would switch to them, and TiVo's lawyers wouldn't make that easy.

As far as I know that outcome would not require a new trial or a change in damages, but that all depends on a lot of legal maneuvering that's well beyond my current knowledge.



> I just say its not going to break E*, whereas TiVo is heading into the abyss if nothing changes and they get nothing from E*.


Clearly TiVo can't go on losing money forever. But they've got Comcast coming next quarter, are still growing the standalone base (we'll see if Q3 and Q4 can produce the higher growth that Rogers wants), and should be able to able to get to break-even without much trouble. Which means they'll be around, if not very exciting.


----------



## ChuckyBox

btwyx said:


> Seemed quite relaxed, unless you asked about certain, eagerly awaited, products.


So why were they there if wasn't to talk about certain, eagerly awaited products?


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## Bierboy

ChuckyBox said:


> So why were they there if wasn't to talk about certain, eagerly awaited products?


To give you more fodder for one of your well-written, eagerly-awaited and critically-acclaimed rants.


----------



## Curtis

ChuckyBox said:


> A lot of unknowns there. It is hard to imagine a software change that would make it non-infringing but still allow the boxes to do the thing they do. But I imagine E* would go that route if it came to that point, and they may try it anyway. But I think the burden of proof would switch to them, and TiVo's lawyers wouldn't make that easy.
> 
> As far as I know that outcome would not require a new trial or a change in damages, but that all depends on a lot of legal maneuvering that's well beyond my current knowledge.


All of TiVo's patent claims are still valid as far as the law is concerned. The software claims are not in jepordy. The hardware claims are being investigated by the patent office. If they are found invalid, TiVo can appeal all the way to the Supreme Court. Meanwhile they are valid as far as the law is concerned.


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## yunlin12

Curtis said:


> All of TiVo's patent claims are still valid as far as the law is concerned. The software claims are not in jepordy. The hardware claims are being investigated by the patent office. If they are found invalid, TiVo can appeal all the way to the Supreme Court. Meanwhile they are valid as far as the law is concerned.


Tivo filed for the patent in 1999, and told Dish about it in 2000. It's been six years and Dish has gotten around it yet.


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## Dajad

ChuckyBox said:


> ...(Though some analysts have suggested that TiVo may decide to go the distance and let the injunction stand, which would make them very popular with the cable crowd.


Not so fast Chuck. If I were an MSO I wouldn't be so happy about a TiVo win. That means TiVo could be coming after me and my infringing SFA/MOT boxes. Yes, it would be a nice short term stab at E* I guess but it will be a precedent that TiVo can use against every other PVR pervayer until they pay up too!

...Dale


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## HDTiVo

ChuckyBox said:


> A lot of unknowns there. It is hard to imagine a software change that would make it non-infringing but still allow the boxes to do the thing they do. But I imagine E* would go that route if it came to that point, and they may try it anyway. But I think the burden of proof would switch to them, and TiVo's lawyers wouldn't make that easy.
> 
> As far as I know that outcome would not require a new trial or a change in damages, but that all depends on a lot of legal maneuvering that's well beyond my current knowledge.


All that is why I apply such a big discount. If TiVo takes a modest sum and gets on with it, they are still in position to get similar deals with other companies. I don't see how any company would consider something like several dollars a box and $1/mo royalty fees (correct my figures please) a reasonable price for _licensing_ the Patent. DTV is different because the relationship involved far more than just a license. Its always been my impression that TiVo had very large demands for license fees and/or development deals, that were non-starters with other companies. Taking a simple royalty of a couple of $s/box is more in line. So if they settle for the modest amount and get the rest of the industry on board with comparable amounts, they could be well on the way towards collecting upwards of $200M in royalties over the next couple of years.



ChuckyBox said:


> Clearly TiVo can't go on losing money forever. But they've got Comcast coming next quarter, are still growing the standalone base (we'll see if Q3 and Q4 can produce the higher growth that Rogers wants), and should be able to able to get to break-even without much trouble. Which means they'll be around, if not very exciting.


I don't know if Comcast is going to do a heck of alot more than just replace DTV subscriber revs and margins? Its going to take a hell of alot of cable-TiVoes at around $1/mo to get TiVo very far.

The we'll see thing is pretty worn out, but yes they should be able to break-even considering they virtually did the first 6 months of last year with much lower service net margin.

But here's another wrinkle. I think we are coming up for the first time on the expiration of commitments. S3 sales won't grow the base relative to expiration rates. Will TiVo's churn start to climb? Will people be both leaving and switching boxes - which is very costly for TiVo? I don't think their model is properly prepared to deal with this.

So unless something significant happens, a major decline in the SA business in the next two years would threaten that ability to 'break-even.'


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## ChuckyBox

Dajad said:


> Not so fast Chuck. If I were an MSO I wouldn't be so happy about a TiVo win. That means TiVo could be coming after me and my infringing SFA/MOT boxes. Yes, it would be a nice short term stab at E* I guess but it will be a precedent that TiVo can use against every other PVR pervayer until they pay up too!
> 
> ...Dale


That is an issue for them, but if you look at the numbers, it should work out pretty well for the cable guys. Let's say you are Time-Warner. You give TiVo maybe $50 million for, I don't know, let's call it "retroactive licensing," and maybe $1.50/DVR/month, you have no worries, and it's costing you maybe $4 million per month. Meanwhile Echostar has 4 million customers who are really pissed off. If you snag just 100K of them at maybe $70 ARPU (i could look this up but I'm in a hurry), you've got $7 million per month in new revenue. And that's a tiny, tiny fraction of the vulnerable subs. If I were Time-Warner, I'd sign on with TiVo just to make that happen.


----------



## HDTiVo

ChuckyBox said:


> That is an issue for them, but if you look at the numbers, it should work out pretty well for the cable guys. Let's say you are Time-Warner. You give TiVo maybe $50 million for, I don't know, let's call it "retroactive licensing," and maybe $1.50/DVR/month, you have no worries, and it's costing you maybe $4 million per month. Meanwhile Echostar has 4 million customers who are really pissed off. If you snag just 100K of them at maybe $70 ARPU (i could look this up but I'm in a hurry), you've got $7 million per month in new revenue. And that's a tiny, tiny fraction of the vulnerable subs. If I were Time-Warner, I'd sign on with TiVo just to make that happen.


That's $50M for less than 2M DVRs over a much shorter time span than E*. $1.50 is more than DTV pays and more than the E* Judgement (I think.)

From that I have to infer you think TiVo should take upwards of $100M plus ongoing royalties from E* in a settlement.

For TWC, they could just target the E* subs anyway and say F**k TiVo, they haven't even sued us yet. Besides, _WE_ don't make the boxes, so F**k MOT and CSCO*.

* We don't even know what, if any, MOT/CSCO boxes infringe in any way, or what patents they have to play against TiVo.


----------



## Curtis

HDTiVo said:


> For TWC, they could just target the E* subs anyway and say F**k TiVo, they haven't even sued us yet. Besides, _WE_ don't make the boxes, so F**k MOT and CSCO*.


It doesn't matter whether TWC makes the infringing DVRs or not it's still illegal .


----------



## btwyx

ChuckyBox said:


> So why were they there if wasn't to talk about certain, eagerly awaited products?


I assume the same as everyone else there. The WWDC is to see what's coming in the future for the Mac platform, developers attend so they can make better Mac products in future. (Can anyone say "Mac Desktop"?)


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## HDTiVo

Curtis said:


> It doesn't matter whether TWC makes the infringing DVRs or not it's still illegal .


But cable cos. would almost certainly use indemnification clauses to put the burden on MOT/CSCO.


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## dswallow

HDTiVo said:


> But cable cos. would almost certainly use indemnification clauses to put the burden on MOT/CSCO.


That still wouldn't permit the infringement to continue.


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## ChuckyBox

HDTiVo said:


> That's $50M for less than 2M DVRs over a much shorter time span than E*. $1.50 is more than DTV pays and more than the E* Judgement (I think.)


I was throwing those numbers out there as examples of the rough figures we are talking about, not necessarily exact numbers. The DTV and Comcast contracts were made before the Echostar suit was won and therefore have less favorable terms for TiVo. But I think Time-Warner could get a Comcast-like deal (that includes similar advertising benefits to TiVo) for about the amount I mentioned. But the point was more that the amounts of money are pretty small relative to what a cable/sat sub pays monthly.



> From that I have to infer you think TiVo should take upwards of $100M plus ongoing royalties from E* in a settlement.


Yes, TiVo won't settle unless there are ongoing payments. A significant part of the case (and the jury's award) were devoted to the recurring revenues model TiVo used to establish damages. (I suppose they'd give up monthly payments if the cash payment was large enough, but I doubt Echostar would want to play it that way.)



> For TWC, they could just target the E* subs anyway and say F**k TiVo, they haven't even sued us yet. Besides, _WE_ don't make the boxes, so F**k MOT and CSCO*.


And then TiVo settles with Echostar and sues Time-Warner. T-W gets hit with the injunction, and the tables are turned. They can avoid that, and get the positive results I mentioned in the previous post, with a relatively inexpensive deal with TiVo.

Once a patent has been through a vetting in both court and the PTO, it is reasonable to just pay it off rather than fight it -- especially in a case like this where you can get real value for your licensing dollar (the TiVo brand and excellent interface, the ad-management software, etc.) Comcast figured that out more than a year ago, I suspect that the other big MSOs will be coming along, too.


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## HDTiVo

What would each of you sign for in money and terms with E* today?


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## ZeoTiVo

the whole 100 million or whatever it gets to by the day of signing an agreement that is slightly more onerous than DirectTVs say 1.75 a DVR a month. 

after that is signed and sealed we could talk development money for better software if DISH cared to.


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## Dajad

The Echostar/TiVo lawsuit and stay is the first story on Engadget's newest podcast 85:

http://www.engadget.com/2006/08/22/engadget-podcast-085-08-22-2006/

They seem to conclude that overhauling the patent system is the solution to this problem. I generally respect these guys and enjoy their podcasts and blog, but for them to seemingly conclude that this is a frivilous lawsuit is, frankly, misguided and uninformed.

...Dale


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## Dan203

Dajad said:


> They seem to conclude that overhauling the patent system is the solution to this problem. I generally respect these guys and enjoy their podcasts and blog, but for them to seemingly conclude that this is a frivilous lawsuit is, frankly, misguided and uninformed.


The patent system might very well need an overhaul, but the fact that TiVo loaned E* a development sample that mysteriously disapeared while they "developed" their own unit, makes this case far from frivilous.

Dan


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## ZeoTiVo

Dajad said:


> The Echostar/TiVo lawsuit and stay is the first story on Engadget's newest podcast 85:
> 
> http://www.engadget.com/2006/08/22/engadget-podcast-085-08-22-2006/
> 
> They seem to conclude that overhauling the patent system is the solution to this problem. I generally respect these guys and enjoy their podcasts and blog, but for them to seemingly conclude that this is a frivilous lawsuit is, frankly, misguided and uninformed.
> 
> ...Dale


I think they are just trying to not be fanboys. 4 miilion DISH readers may not want to keep reading a site sounding like it approves of TiVo persuing the injunction.


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## Curtis

Dan203 said:


> The patent system might very well need an overhaul, but the fact that TiVo loaned E* a development sample that mysteriously disapeared while they "developed" their own unit, makes this case far from frivilous.


It seems to me the only thing germane was whether Dish infringed the patent not whether there was theft or whatever of a box that had no patent number on it.


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## MichaelK

Curtis said:


> It doesn't matter whether TWC makes the infringing DVRs or not it's still illegal .


but wouldn't the manufactureres like moto have to pay and not TWC?

IF not by normal laws- isn't it likely the cable companies got clauses in the contracts that it's the manufactureres problem?


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## MichaelK

dswallow said:


> That still wouldn't permit the infringement to continue.


but motorolla and cisco (they own scientific atlanta- right?) are tons less confrontational and irrational as compared to ergen. If they were to lose a patent fight one would have to assume they would settle before any injunction actually occured. (With ergen who knows he might just shut down all his dvr's to try and be a hard guy...)


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## Curtis

MichaelK said:


> but wouldn't the manufactureres like moto have to pay and not TWC?
> 
> IF not by normal laws- isn't it likely the cable companies got clauses in the contracts that it's the manufactureres problem?


Anyone that makes money supplying an infringing product can be sued by the patent holder.

I hadn't thought about it but yes it's likely that a seller would probably be indemnified by contract with the manufacturer. Sony was indemnified by TiVo in a patent suit recently. TiVo had to pay. TiVo supplied the software that Sony used.


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## Welshdog

Dajad said:


> The Echostar/TiVo lawsuit and stay is the first story on Engadget's newest podcast 85:
> 
> http://www.engadget.com/2006/08/22/engadget-podcast-085-08-22-2006/
> 
> They seem to conclude that overhauling the patent system is the solution to this problem. I generally respect these guys and enjoy their podcasts and blog, but for them to seemingly conclude that this is a frivilous lawsuit is, frankly, misguided and uninformed.
> 
> ...Dale


Lynn Ashby, a really funny newspaper columnist in Houston once called talk radio "an exchange of ignorance". I think it's easy to see that PodCasts can fall under that same umbrella.


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## MichaelK

Curtis said:


> Anyone that makes money supplying an infringing product can be sued by the patent holder.
> 
> I hadn't thought about it but yes it's likely that a seller would probably be indemnified by contract with the manufacturer. Sony was indemnified by TiVo in a patent suit recently. TiVo had to pay. TiVo supplied the software that Sony used.


thanks for the facts


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## HDTiVo

Welshdog said:


> Lynn Ashby, a really funny newspaper columnist in Houston once called talk radio "an exchange of ignorance". I think it's easy to see that PodCasts can fall under that same umbrella.


Or perhaps Streaming Ignorance,

or in TiVo's case, Streaming Ignorance without Pause.


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## davezatz

HDTiVo said:


> or in TiVo's case, Streaming Ignorance without Pause.


Now _that_ was funny!


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## sbiller

Can someone explain what this means wrt the stay on the injunction?


8:04AM TiVo on stay of EchoStar's patent lawsuit pending reexamination (TIVO) 7.85 : 
Co offered the following statement on the court stay of EchoStar (DISH) Technology Corporation's lawsuit against TiVo and Humax USA. On July 14, 2006, United States Magistrate Judge Caroline M. Craven for the United States District Court, Eastern District of Texas, issued a stay order, which is now final. "We are pleased with the Court's order to stay EchoStar Technology Corporation's patent infringement litigation pending the outcome of the USPTO reexamination proceedings of certain EchoStar patents. The reexamination requests TiVo submitted to the USPTO detail how a large number of prior art references that the USPTO did not previously consider raise substantial new questions regarding the validity of the claims EchoStar asserted and why those claims are invalid. TiVo will continue to defend its technology vigorously and will not be intimidated by claims such as those EchoStar asserted against TiVo -- claims EchoStar asserted in response to TiVo's successful suit against EchoStar..."


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## davezatz

sbiller said:


> Can someone explain what this means wrt the stay on the injunction?


Seperate case. This is in response to EchoStar suing TiVo.


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## sbiller

davezatz said:


> Seperate case. This is in response to EchoStar suing TiVo.


Thanks.

When are we expecting the court to rule on the Echostar temporary stay on the injunction?


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## MichaelK

Without knowing all the facts i would think the stay in the Dish/E* suing TiVo case gives TiVo a better bargaining position for settlement. Ergen wont have any quick ability to smack them back. 


Probably eventuially see a settlment that encompasses both cases- T vs E and E vs T

What does everyone else think?


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## jfh3

MichaelK said:


> Without knowing all the facts i would think the stay in the Dish/E* suing TiVo case gives TiVo a better bargaining position for settlement. Ergen wont have any quick ability to smack them back.
> 
> Probably eventuially see a settlment that encompasses both cases- T vs E and E vs T
> 
> What does everyone else think?


The Echostar countersuit was generally seen as a method to intimidate Tivo and was filed only after the Tivo suit.

I doubt this significantly impacts any settlement discussions.


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## jautor

Any eventual settlement would very likely include a "patent cross-license" agreement between the companies... Even without a lawsuit, those types of agreements are typical when one company strikes a patent agreement. 

Jeff


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## 1283

If the Echostar patents are invalidated, then there is nothing to cross-license.


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## sbiller

E* settled one dispute, is TiVo next?

EchoStar Settles Dispute w/ Networks for $100M


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## MichaelK

that one wnet on for like 5 years- i think tivo has another 3 to go- LOL


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## sbiller

MichaelK said:


> that one wnet on for like 5 years- i think tivo has another 3 to go- LOL


I was thinking the same thing when I read the story. I think the injunction may accelerate things a bit.


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## MichaelK

assuming the stay gets lifted...


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## segaily

The Wall Street Journal Online is reporting that "EchoStar Agrees To Settle Lawsuit, Pays $100 Million" 

I do not subscribe so I can not read the article but that is the headline.


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## davezatz

Which lawsuit? The one with the local TV stations or the one with TiVo? Has anyone seen that article? The news today was $100 million to continue broadcasting locals... Seems awfully coincidental unless there another story tonight.


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## segaily

It is probably nothing then. It was reported as TiVo news, but that may just mean they also talk about TiVo in the Article


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## drew2k

davezatz said:


> Which lawsuit? The one with the local TV stations or the one with TiVo? Has anyone seen that article? The news today was $100 million to continue broadcasting locals... Seems awfully coincidental unless there another story tonight.


E* settled with the networks regarding the DNS issue, but Fox pulled out of the settlement at the last minute, possibly jeopardizing the settlements with the other networks. One article made a point of mentioning that Fox was in Rupert Murdoch's media empire, as of course is DirecTV, Echostar's primary competition. Gee ... what are they implying? That Rupert may have some incentive to see Echostar lose face with their customers over network broadcast rights?!


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## davezatz

drew2k said:


> E* settled with the networks regarding the DNS issue, but Fox pulled out of the settlement at the last minute, possibly jeopardizing the settlements with the other networks.


I caught all that earlier today... so the WSJ story has nothing to do with TiVo suit. segaily, are you the one who got Alex over at TiVoBlog all excited?


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## TiVo Troll

Dan203 said:


> The patent system might very well need an overhaul, but the fact that TiVo loaned E* a development sample that mysteriously disapeared while they "developed" their own unit, makes this case far from frivilous.
> 
> Dan


There are several companies making DVR's. Why is Echostar the only one potentially subject to a service cut-off?

Is the loaner the operative factor; another technicality inherent in the lawsuit, or something else?


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## davezatz

TiVo Troll said:


> There are several companies making DVR's. Why is Echostar the only one potentially subject to a service cut-off?


TiVo it too small to sue every company at the same time. The strategy is probably win one then send cease & desist letters to the others citing this case and hoping that they work out licensing deals. If you have to win one, I think you'd pick the case you felt you had the best odds with... borrowing and never returning the DVR make for good evidence.


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## dswallow

TiVo Troll said:


> There are several companies making DVR's. Why is Echostar the only one potentially subject to a service cut-off?
> 
> Is the loaner the operative factor; another technicality inherent in the lawsuit, or something else?


Someone had to be first; Echostar had more DVR's deployed; there was a clearer path to infringement due to how TiVo first approached them with the idea; Echostar both designs, builds and uses the DVRs as opposed to the myriad of involved parties in the cable DVR environment... basically any number of reasons might've made Echostar simply more attractive as the first to sue for infringement. But in the end, someone had to be first.


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## MichaelK

plus Ergen probably made it clear he would never make a deal to licence tivo software- looks like many of the cable companies at least have an open mind.

Also- TiVo didn't just sue broadbased because it's a DVR- apparently the crux of THIS case is theat the DISH box uses somethign akin to the "media switch" that tivo patented. It's possible that other manufactureres use other methods to do the same thing (although seems unlikely since it apparently allows for much weaker (EG CHEAPER) hardware to go the pateneted TiVo route.


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## megazone

Yeah, if you look at the case TiVo was working with EchoStar early on, before EchoStar had any DVRs, and even give them a prototype to play with. Then EchoStar ended things, TiVo never got their prototype and info back, and then EchoStar produced their own DVRs which used TiVo's concepts. So this was a strong case to use as a trial for their IP.


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## ChuckyBox

TiVo Troll said:


> Is the loaner the operative factor; another technicality inherent in the lawsuit, or something else?


The loaner is actually a bit of a red herring. Patent cases are not about copying -- Echostar could have copied large parts of TiVo's DVR and been found not to have infringed the specific claims of the patent, or they could have worked with no outside input and independently come up with their entire DVR design, and still been found not only to infringe, but to have done it wilfully.


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## megazone

Yeah, the fact that they were working with TiVo and had hardware goes more to the wilfull aspect than the base infringement.


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## TiVo Troll

It's gonna' be interesting to see how the case ultimately resolves. If Echostar eventually has to stop providing DVR service from its own STB's, that's a big deal. If not, it's no big deal at all!


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## ChuckyBox

TiVo Troll said:


> It's gonna' be interesting to see how the case ultimately resolves. If Echostar eventually has to stop providing DVR service from its own STB's, that's a big deal. If not, it's no big deal at all!


It will be a big deal to TiVo if they get a big pile of money from Echostar. As it stands, Echostar owes TiVo about $90 million, with continuing damages and interest accumulating at more than $3 million per month -- which is a big deal to a little company like TiVo. If TiVo gets its motion for treble damages reconsidered by the judge or on appeal, those amounts could triple.


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## HDTiVo

Informative article on the subject...

http://www.law.com/jsp/article.jsp?id=1157030380266


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## TiVo Troll

ChuckyBox said:


> It will be a big deal to TiVo if they get a big pile of money from Echostar.


If TiVo gets the green in a timely fashion, you're right. But we'll have to see; often these kind of disputes drag on and on before being settled. *Charlie Ergen*'s a crapshooter with plenty of dough!


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## HiDefGator

The big deal in this case will not be how much cash E* pays Tivo. That will be a one time lump sum that will not change Tivo's long term revenue outlook. The important part of this case is what deal they come to to keep the E* dvr's running. 

Best Case for Tivo is Tivo works a deal like the cox\comcast deal that allows Tivo to sell their software to E* subs that want to pay extra for it. Seems unlikley E* would do this since they hate Tivo with a passion now.

Worst case for Tivo is E* agrees to just pay them a $1 month for each dvr out there. This generates cash flow for Tivo until E* can come up with a non-infringing dvr. But it doesn't get Tivo any more subs which they desperately need.

In any case the E* dvrs will NOT be shutdown. E* will agree to a deal before that happens.


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## ChuckyBox

HiDefGator said:


> The big deal in this case will not be how much cash E* pays Tivo. That will be a one time lump sum that will not change Tivo's long term revenue outlook. The important part of this case is what deal they come to to keep the E* dvr's running.
> 
> Best Case for Tivo is Tivo works a deal like the cox\comcast deal that allows Tivo to sell their software to E* subs that want to pay extra for it. Seems unlikley E* would do this since they hate Tivo with a passion now.
> 
> Worst case for Tivo is E* agrees to just pay them a $1 month for each dvr out there. This generates cash flow for Tivo until E* can come up with a non-infringing dvr. But it doesn't get Tivo any more subs which they desperately need.


You misunderstand TiVo's market position. TiVo does not want it's software on Dish boxex, because TiVo is positioning itself as an ally of cable _against_ the satellite providers. A lump sum and ongoing royalty payments would be exactly the best outcome for TiVo. The only thing that would make it better would be getting their advertising software (and the right to sell advertising) on Dish DVRs. That may or may not happen, depending on how desperate Echostar becomes.



> In any case the E* dvrs will NOT be shutdown. E* will agree to a deal before that happens.


I'm sure Echostar would agree to a deal right now. The problem for them is it takes two to tango. TiVo is obviously holding out for more than Echostar is willing to pay. And TiVo may not even want a settlement. They may want the injunction enforced to set an example.


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## HiDefGator

>> TiVo does not want it's software on Dish boxex, because TiVo is positioning itself as an ally of cable against the satellite providers. 

That's a brilliant strategy. Let's eliminate 25% of the market place. Tivo needs subs. Way more subs then they have today. It would be rediculous to not go after all the possible subs they can. They don't currently need cash. Without subs all their plans for advertizing dollars will collapse.


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## derekcbart

Unfortunately, Dish Network has no desire to work with TiVo. I am a Dish Network subscriber and I use a TiVo Series 2 with IR Blaster to control the satellite receiver. I have been emailing with Dish Network to try and see if they would work with TiVo to create a TiVo/Dish Receiver/DVR and I received this statement in my last email:

"DISH Network believes the lower court ruling was wrong, and should be reversed on appeal.* We also continue to work on modifications to our new DVRs, and to our DVRs in the field, intended to avoid future alleged infringement and to permit you to continue using your DVR even if TIVO wins the case."

Of course, the Dish Network people repeatedly haven't been fully reading my emails since they keep saying I can continue to use my Dish DVR (something that I do not have), but it is obvious that if they are working on modifications to their DVRs to get around the patent infringement then there is no reason to believe that they will ever work with TiVo to create a proper Dish/TiVo DVR/Receiver.

And that really sucks because I would much rather stay with Dish Network than switch to digital/HD cable in order to have HD programming and TiVo. I have told them that TiVo is more important to me than my television provider.


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## HiDefGator

>> Unfortunately, Dish Network has no desire to work with TiVo.

And thus the reason no agreement has been reached yet. Tivo wants a shot at Dish subs and Dish doesn't want to give it to them.


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## ChuckyBox

HiDefGator said:


> That's a brilliant strategy. Let's eliminate 25% of the market place. Tivo needs subs. Way more subs then they have today. It would be rediculous to not go after all the possible subs they can. They don't currently need cash. Without subs all their plans for advertizing dollars will collapse.


Given that DTV is going their own way (after having great success with TiVo) and TiVo negotiated unsuccessfully for years with Echostar, that 25% is really 0%. One of the selling points of TiVo to the cable companies, and reasons to partner with them, is precisely that TiVo is not available from the satellite providers. If Echostar has to give TiVo a few million dollars every month with no expense on TiVo's part, that's just cash flow that lets TiVo concentrate on their real prospects -- the standalone and cable (and to some extent, telephone company) businesses.


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## cap

derekcbart said:


> And that really sucks because I would much rather stay with Dish Network than switch to digital/HD cable in order to have HD programming and TiVo. I have told them that TiVo is more important to me than my television provider.


I was actually in the same boat. Been with Dish for almost 3 years and went back to Cable for the Series 3 about 2 weeks ago.
I also recently got a dual tuner series 2 and boy is that nice being able to actually use the 2 tuners.
I can only imagine how nice the series 3 is going to be.

Even though, I REALLY miss Dish's lineup and quality. 

I hope they do manage to bang out an agreement so I can go back one day.


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## ChuckyBox

derekcbart said:


> "DISH Network believes the lower court ruling was wrong, and should be reversed on appeal.* We also continue to work on modifications to our new DVRs, and to our DVRs in the field, intended to avoid future alleged infringement and to permit you to continue using your DVR even if TIVO wins the case."


That's just BS public relations spin. They don't want their customers, potential customers, and resellers to start looking at other options. The Dish hardware violates TiVo's patent, and it is hard to see how modifications in the field are going change that. And the chances of a verdict-overturning appeal are slim, at best. If Echostar can't strike a deal with TiVo, and the injunction stay is lifted, those DVRs become receivers at best and doorstops at worst.


----------



## Deacon West

Any new news?


----------



## peteypete

I think Dish and Tivo filed a joint motion since they are likely deep into talks to get some sort of deal done.

I'd follow the RIMM lawsuit timeline to get a feel of what will play out. (But the timeline is likely compressed, since Tivo has an even better case than NTP did and things have been progressing faster)

The court would rather have them settle but will bang the loser (DISH) over the head (injunction) to get something done. 

RIMM/NTP started at something out with something like a 25 mil award and RIMM ended up paying about 625 mil. Not a good move to drag it out. NTP was smart to stick to their guns and that's what Tivo is doing also.


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## ChuckyBox

peteypete said:


> I think Dish and Tivo filed a joint motion since they are likely deep into talks to get some sort of deal done.


It's a bit complicated, but they appear to be negotiating a deal as to the form of the security Echostar will post pending the appeal. Normally that would just be a bond for the amount in question. It is not clear what alternative they might be negotiating. They've asked the court to give them until Sept. 11th to hammer things out, but they could always ask for another extension.

This does not appear to be a negotiation to settle the overall case.


----------



## MichaelK

what would be in it for TiVo to allow them to post anything but a bond? 

Is TiVo obligated to negotiate that?

Or is TiVO tryign for some other concession in exchange?


----------



## samo

The best deal for TiVo would be to forfeit lawsuit win in exchange for the contract to port TiVo software to all E* boxes. That would double TiVo installed base and make Tivo a leader in marketshare. But this would never happen as long as lawyers are involved.


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## dswallow

samo said:


> The best deal for TiVo would be to forfeit lawsuit win in exchange for
> the contract to port TiVo software to all E* boxes. That would double TiVo installed base and make Tivo a leader in marketshare. But this would never happen as long as lawyers are involved.


You misspelled "Charlie Ergen is".


----------



## thp427

Any new news on this? I was going to upgrade to Dish HD DVR for a couple hundred bucks last month when I learned about this. I don't want to spend the $ until I know there is some arrangement so the DVR won't be rendered useless.


----------



## Gregor

Nothing more than what's been posted here. You can set up a Google alert to let you know if Tivo vs Echostar hits the news.


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## HDTiVo

I think the most recent news is that the check is still not in the mail and 5 weeks later the DVRs are still on with no injunction deadline set.


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## ChuckyBox

HDTiVo said:


> I think the most recent news is that the check is still not in the mail and 5 weeks later the DVRs are still on with no injunction deadline set.


Pretty much. Last week TiVo filed its own appeal of the Texas judgment, asking for a finding of literal infringement, triple damages, and attorneys' fees. Other than that, the legal front has been very quiet.

TiVo and E* did get their "alternate security" arrangement approved by the court. It appears to be some kind of escrow account, but the details of the agreement are sealed. It is unclear what terms of such an agreement might be of such benefit to both parties that they would put substantial work into it when the alternative (a simple bond put up by Echostar) would be both customary and simple. We may never find out.


----------



## jfh3

Looks like Echostar's request to stay the injunction got granted. 

Anyone have an idea as to how long it might be before the case is heard.

"TiVo Inc. (Nasdaq: TIVO), the creator of and leader in television services for digital video recorders (DVR), today announced that U.S. Court of Appeals for the Federal Circuit granted the request of EchoStar Communications Corp. ("ECC") to stay the permanent injunction imposed by the U.S. District Court to prevent ECC from making, using, offering for sale or selling in the United States the DVR products involved in the case (DP-501, DP-508, DP-510, DP-721, DP-921, DP-522, DP-625, DP-942, and all EchoStar DVRs that are not more than colorably different from any of these products) pending the outcome of ECC's appeal. 

TiVo sued EchoStar in Federal District Court on January 5, 2004, alleging that ECC and certain subsidiaries are violating a key TiVo patent (U.S. Patent No. 6,233,389 issued to TiVo in May 2001, known as the "Time Warp" patent). The Time Warp patent discloses systems and methods for the simultaneous storage and playback of programs, supporting advanced capabilities such as pausing live television, fast-forwarding, rewinding, instant replays, and slow motion. On April 13, 2006, a Marshall, Texas jury concluded that EchoStar had willfully infringed TiVo's Time Warp patent. 

"We are confident that the jury's decision in TiVo's favor will be upheld once the Federal Circuit has the opportunity to review the entire record in this case. It is important to note that most injunctions in patent cases are stayed pending appeal, and the appeal itself will be decided on a totally different standard of review," stated the company. "

What does Tivo mean when they say "the appeal itself will be decided on a totally different standard of review"?


----------



## bkdtv

> What does Tivo mean when they say "the appeal itself will be decided on a totally different standard of review"?


The appeal isn't a retrial of the facts / evidence or jury verdict. The appeal only looks to see whether the District Court made errors.


----------



## HDTiVo

jfh3 said:


> Looks like Echostar's request to stay the injunction got granted.


So the check _still _ isn't in the mail?


----------



## HDTiVo

HDTiVo said:


> If I were TiVo's Management and Board, I'd ask for $15M with a long term cross license agreement. Then I'd get in gear fixing the Company before its too late.





ChuckyBox said:


> All I can say is I'm glad you aren't running the company. You'd take a $90 million award (that includes monthly "royalty" payments) and an incredibly powerful injunction that required two and a half years and probably $30 million in legal fees to obtain, and trade it for $15M. Talk about snatching defeat from the jaws of victory.


The stupid $15M is looking a little better.


----------



## BlackBetty

HDTiVo said:


> The stupid $15M is looking a little better.


No not at all. Still pretty damn idiotic.


----------



## 1283

HDTiVo said:


> The stupid $15M is looking a little better.


Not really. We all know that you're a [email protected] Chicken.


----------



## ChuckyBox

jfh3 said:


> What does Tivo mean when they say "the appeal itself will be decided on a totally different standard of review"?


The standards for granting a stay are fairly low. It's basically 1) have a prayer of winning, and 2) suffer great damage if the injunction is enforced. Since both of those things are pretty obviously true here, and injunctions themselves are a bit shakier than they used to be, the stay was hardly unexpected.

But when the appeals court actually considers the appeal itself (rather than the motion to stay the injunction during the appeal) they have much higher standards of proof, and a great body of law upon which the parties arguments must be made and the rulings will be decided.

What I find bizarre about this is that in granting Echostar's motion, the judge denied TiVo's motion to strike certain Echostar arguments, but granted their alternative motion to be allowed to file a surreply to those arguments, and granted an Echostar motion to file a response to TiVo's surreply. Why would you make a ruling on a motion, and then allow the parties to continue to argue it? Does that mean that his ruling is open to reconsideration? Is he saying that his grant of the motion is contingent on TiVo's failing to make a really good counterargument? It is very odd. It is also odd that it took him so long to make the ruling in the first place. Was the court on vacation for all of September?


----------



## ChuckyBox

HDTiVo said:


> So the check _still _ isn't in the mail?


That check was never going to be mailed until the appeal was over. This ruling just means that Dish isn't going to have 4 million screaming customers tomorrow. (It'll have 5 or 6 million screaming customers a year or so from now. But Charlie Ergen is hoping he can sell this can of worms to someone else before then. His current best hope is John Malone, but I think he's dreaming.)


----------



## samo

ChuckyBox said:


> That check was never going to be mailed until the appeal was over. This ruling just means that Dish isn't going to have 4 million screaming customers tomorrow. (It'll have 5 or 6 million screaming customers a year or so from now. But Charlie Ergen is hoping he can sell this can of worms to someone else before then. His current best hope is John Malone, but I think he's dreaming.)


Unless you have insider's info on some other major problems with E* besides TiVo lawsuit, I wouldn't call profitable enterprise like E* a can of worms. TiVo problem for E* is a mosquito bite even in worse case. Even if they lose on all counts, they'll just pay whatever negotiated settlement will be. Charlie lost $600 million on his bid for DirecTV and it didn't make a dent on viability of E*. Does he want to sell his business or not is another story. I don't have any reliable information on this subject (although Charlie lives less than 2 miles away from me ). And neither do you or any other so called "experts". Don't believe everything you read. All I know is that Charlie is a majority owner of E* and decision to sell is completely in his hands.


----------



## ChuckyBox

samo said:


> Unless you have insider's info on some other major problems with E* besides TiVo lawsuit, I wouldn't call profitable enterprise like E* a can of worms.


It doesn't take an insider to see their growth is ending, their churn is terrible, and their ability to compete with cable and telco offerings is all but gone. If Murdoch can see the writing on the wall, you can bet Ergen does, too.



> TiVo problem for E* is a mosquito bite even in worse case.


The worst case would have been the stay was lifted. Echostar would have had to shut down 4 million DVRs tomorrow and stop selling new ones. That would have been a multi-billion dollar disaster. Hardly a mosquito bite. And the injunction is still there, just waiting.


----------



## 1283

ChuckyBox said:


> their ability to compete with cable and telco offerings is all but gone.


I don't know what Dish has to offer (and don't care myself), but I have heard people switching from cable to Dish because it has more programs in HD.


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## MichaelK

c3 said:


> I don't know what Dish has to offer (and don't care myself), but I have heard people switching from cable to Dish because it has more programs in HD.


interesting point. I wonder if that overcomes triple play and vod.interactive services. Will be interesting to see over time.

I guess it also matters if DISH can keep that HD lead as cable converts from analog to digital and Telco fiber gets deployed...

I just assumed DBS was dead- but maybe they can keep HD as their niche....


----------



## Jag998

What I find bizarre about this is that in granting Echostar's motion, the judge denied TiVo's motion to strike certain Echostar arguments, but granted their alternative motion to be allowed to file a surreply to those arguments, and granted an Echostar motion to file a response to TiVo's surreply. Why would you make a ruling on a motion, and then allow the parties to continue to argue it? Does that mean that his ruling is open to reconsideration? Is he saying that his grant of the motion is contingent on TiVo's failing to make a really good counterargument? It is very odd. It is also odd that it took him so long to make the ruling in the first place. Was the court on vacation for all of September?[/QUOTE]

What is a surreply?


----------



## ChuckyBox

MichaelK said:


> I just assumed DBS was dead- but maybe they can keep HD as their niche....


DTV is banking pretty heavily on HD plus football. It isn't clear if Dish can keep its price edge and still offer more HD than cable, but that's their hope for the next couple of years. But there isn't that much HD content yet, which gives cable some time to catch up. The sat guys might have a bit more staying power if they teamed up, but that's a tricky case to make. Malone probably has a better shot at pulling it off than Murdoch, but even then it isn't clear where it would go long term.


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## ChuckyBox

Jag998 said:


> What is a surreply?


It is a reply to a reply to a response to a motion.


----------



## HDTiVo

ChuckyBox said:


> The standards for granting a stay are fairly low. It's basically 1) have a prayer of winning, and 2) suffer great damage if the injunction is enforced. Since both of those things are pretty obviously true here, and injunctions themselves are a bit shakier than they used to be, the stay was hardly unexpected.
> 
> ...
> 
> What I find bizarre about this is that in granting Echostar's motion, the judge denied TiVo's motion to strike certain Echostar arguments, but granted their alternative motion to be allowed to file a surreply to those arguments, and granted an Echostar motion to file a response to TiVo's surreply. Why would you make a ruling on a motion, and then allow the parties to continue to argue it? Does that mean that his ruling is open to reconsideration? Is he saying that his grant of the motion is contingent on TiVo's failing to make a really good counterargument? It is very odd. It is also odd that it took him so long to make the ruling in the first place. Was the court on vacation for all of September?


You didn't appear to think the stay was likely before it happened - both the temporary and now this one.

Courts take time. I said about 6 weeks and it took about 6 weeks. Dumb luck.

I think the Judge is just letting both sides make more arguments before making an actual decision on the issue, or perhaps the former is about a pre-trial motion and the latter relates to trial?


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## HDTiVo

ChuckyBox said:


> It doesn't take an insider to see their growth is ending, their churn is terrible, and their ability to compete with cable and telco offerings is all but gone.


That just means its time to focus more on bleeding the shareholders. 



ChuckyBox said:


> The worst case would have been the stay was lifted. Echostar would have had to shut down 4 million DVRs tomorrow and stop selling new ones. That would have been a multi-billion dollar disaster. Hardly a mosquito bite. And the injunction is still there, just waiting.


That's way too harsh a $ number. Besides other alternatives, the Judgement, if fully paid to TiVo, would be a fraction of that cost, and TiVo would be moronic not to settle for even less than that.

Satelite may be losing ground right now, but they may be on the upswing vs. cable later on.


----------



## HDTiVo

Looks like the only check that's in the mail is coming _from _ TiVo. 



AP said:


> AP
> Also Tuesday, TiVo disclosed in a filing with the Securities and Exchange Commission that it paid IBM Corp. an undisclosed amount of cash for a royalty-free, cross-licensing agreement involving all patents or patent applications dated before Sept. 28.


----------



## samo

> It doesn't take an insider to see their growth is ending, their churn is terrible, and their ability to compete with cable and telco offerings is all but gone.


What company are you talking about - TiVo or Dish? Last time I checked E* had profit over a billion a year before taxes. And EBIT was on the rise. Hardly a company in trouble. TiVo is doing fine too. They just printed another batch of worthless paper and sold it for $65 million. If they stopped R&D and sales and concentrated on a printing press they would be swimming in cash


----------



## ChuckyBox

HDTiVo said:


> I think the Judge is just letting both sides make more arguments before making an actual decision on the issue, or perhaps the former is about a pre-trial motion and the latter relates to trial?


But he did make an actual decision -- he ordered a stay pending appeal. And the TiVo motion to strike (or file a surreply) is related directly to Echostar's motion to stay. That's why I find it so odd. If the judge is willing to hear more arguments, why make a ruling? And if he isn't, why allow more arguments?

Where's a law-talkin'-guy when you need one?


----------



## ChuckyBox

HDTiVo said:


> That's way too harsh a $ number. Besides other alternatives, the Judgement, if fully paid to TiVo, would be a fraction of that cost, and TiVo would be moronic not to settle for even less than that.


You are aware that part of the judgment is an injunction, right? So when it comes to fully paying, that's part of it. You're also aware that damages and interest are continuing to accumulate at around $4 million per month? And everything could still be tripled if Echostar has to give up certain disputed documents and they show what everyone knows they show.

At this point TiVo has zero incentive to settle for anything other than... well... everything. As samo points out, they're flush with cash. So they can ride this thing out to the bitter end. What's go be gained from settling?


----------



## generalpatton71

When did Malone ever enter the E* picture? He has a very good chance at getting D* because all of the stock he owns in News corp. Murdoch and the share holders are worried about a take over. So Malone wouldn't mind owning D* and Murdoch would like those shares back. I haven't heard of any mention of any possible deal that would allow Malone to take over E*. I love this type of stuff so if you have a link to a story I'd love to read it.


----------



## ChuckyBox

generalpatton71 said:


> When did Malone ever enter the E* picture? He has a very good chance at getting D* because all of the stock he owns in News corp. Murdoch and the share holders are worried about a take over. So Malone wouldn't mind owning D* and Murdoch would like those shares back. I haven't heard of any mention of any possible deal that would allow Malone to take over E*. I love this type of stuff so if you have a link to a story I'd love to read it.


Most of the articles that discuss the Liberty-News Corp. deal mention it as a likely eventual outcome (like this one ). That's mostly because it is much easier to see a profitable future for one satellite company rather than two competing ones, and there has been talk for years about bringing them together. Obviously that would not be a consumer-friendly result, but the CW is that it may be allowed when there is real telco competition in the pay-TV market. It's interesting stuff, but trying to sort out the likely winners and losers right now is pretty tough.


----------



## BobCamp1

HDTiVo said:


> Looks like the only check that's in the mail is coming _from _ TiVo.


IBM has patents for EVERYTHING. Every new technology company knows to just call IBM and get a cross-licensing agreement before doing anything, regardless of what they're making. It could save them a lot of money down the road.

Of course the stay was granted. 99.99% of patent cases never actually reach the final stage where the infringing company has to stop making the product. It's all about negotiating the exact amount of money, IPR, and resources that will change hands. The drama happening in the courts will affect this amount, but is secondary to the real battle going on. The RIM vs. NTP case was a classic example -- even after judgement was made, the judge pratically ordered them to settle!

Of course Tivo should settle. You never know what will happen on appeal, and it costs Tivo money every day this drags on. And most companies need cash. Especially companies that rarely make a profit.


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## HDTiVo

Chuckybox said:


> Where's a law-talkin'-guy when you need one?


Yeah.



ChuckyBox said:


> You are aware that part of the judgment is an injunction, right? So when it comes to fully paying, that's part of it. You're also aware that damages and interest are continuing to accumulate at around $4 million per month? And everything could still be tripled if Echostar has to give up certain disputed documents and they show what everyone knows they show.
> 
> At this point TiVo has zero incentive to settle for anything other than... well... everything. As samo points out, they're flush with cash. So they can ride this thing out to the bitter end. What's go be gained from settling?


Yes I am certainly aware. What I am saying is TiVo would be insane at this point not to settle for $90+$4M/mo (or even somewhat less). That would be an enormously benefical result for TiVo and cost E* far less than the 'billions' you mentioned.

BTW, are you aware that with the injunction in place the $4M/mo goes bye bye? 

You tell me where TiVo is going to find $4M/mo in pure profit from marketing to E* subs.


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## HDTiVo

BobCamp1 said:


> It's all about negotiating the exact amount of money, IPR, and resources that will change hands. The drama happening in the courts will affect this amount, but is secondary to the real battle going on. The RIM vs. NTP case was a classic example -- even after judgement was made, the judge pratically ordered them to settle!
> 
> Of course Tivo should settle. You never know what will happen on appeal, and it costs Tivo money every day this drags on. And most companies need cash. Especially companies that rarely make a profit.


 :up:


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## ChuckyBox

HDTiVo said:


> Yes I am certainly aware. What I am saying is TiVo would be insane at this point not to settle for $90+$4M/mo (or even somewhat less). That would be an enormously benefical result for TiVo and cost E* far less than the 'billions' you mentioned.


Exactly. And I agree that the amount you are talking about (or slightly more) is in the ballpark of what I think is a reasonable settlement -- but the TiVo and Echostar management may think otherwise. I would guess TiVo wants a bit more up front cash, to cover their legal expenses and such, and Echostar wants smaller monthly payments (or possibly an all up-front deal), which TiVo, for strategic reasons, can't agree to.

At the moment, though, neither side has a big incentive to settle.


----------



## samo

ChuckyBox said:


> Exactly. And I agree that the amount you are talking about (or slightly more) is in the ballpark of what I think is a reasonable settlement -- but the TiVo and Echostar management may think otherwise. I would guess TiVo wants a bit more up front cash, to cover their legal expenses and such, and Echostar wants smaller monthly payments (or possibly an all up-front deal), which TiVo, for strategic reasons, can't agree to.
> 
> At the moment, though, neither side has a big incentive to settle.


Dont't forget that Charlie is involved. This is a same guy who would let ABC to go of the air for a few days, before making a deal. Same guy who went to trial with Gemstar and won. Same guy that lost $600 million, but didn't back out of the attempt to buy DirecTV. He will settle (or will win on appeal), but it will be the last second deal. Hope TiVo still around buy the time dust settles.


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## tbeckner

samo said:


> Dont't forget that Charlie is involved. This is a same guy who would let ABC to go of the air for a few days, before making a deal. Same guy who went to trial with Gemstar and won. Same guy that lost $600 million, but didn't back out of the attempt to buy DirecTV. He will settle (or will win on appeal), but it will be the last second deal. Hope TiVo still around buy the time dust settles.


I agree with your assessment of Charles Ergen; he will wait until the last moment, because he has always been a gambler and a gunslinger, but I wouldnt worry about TiVo being around *by the time the dust settles*.


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## HDTiVo

ChuckyBox said:


> Echostar wants smaller monthly payments (or possibly an all up-front deal), which TiVo, for strategic reasons, can't agree to.


Wouldn't surprise me if this will be the biggest difference. E* may think the idea of monthly payments instead of a couple $ per unit is ridiculous. But there is the Judgement which says monthly for TiVo to cling to.

Creates a huge gap right now.

Why do you think TiVo _can't _ agree to a few $ per unit?


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## ChuckyBox

samo said:


> Dont't forget that Charlie is involved. This is a same guy who would let ABC to go of the air for a few days, before making a deal. Same guy who went to trial with Gemstar and won. Same guy that lost $600 million, but didn't back out of the attempt to buy DirecTV. He will settle (or will win on appeal), but it will be the last second deal. Hope TiVo still around buy the time dust settles.


Yes, the guy seems to have no qualms about losing money or getting his ass kicked in court, but he also seems to be losing steam and his company has a new president and a new CFO who may have a different philosophy of managing business risk. Like, you know, actually managing it.

Echostar still has a lot at risk, and a settlement isn't going to get any cheaper than it is right now (assuming TiVo is willing to settle). And it doesn't seem likely that TiVo is going to go out of business in the next year or two. Even if it did, the judgement is a business asset that won't just disappear.


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## ChuckyBox

HDTiVo said:


> Why do you think TiVo _can't _ agree to a few $ per unit?


Because their business is based on recurring revenue (not hardware sales), so their case for damages is predicated on monthly revenues.

If they settle with Echostar for some amount per box, they would have to make similar deals with all the other infringers. Which would remove TiVo's leverage for other MSOs to sign up to offer the TiVo service. There wouldn't be much of a future for TiVo.


----------



## HDTiVo

ChuckyBox said:


> Because their business is based on recurring revenue (not hardware sales), so their case for damages is predicated on monthly revenues.
> 
> If they settle with Echostar for some amount per box, they would have to make similar deals with all the other infringers. Which would remove TiVo's leverage for other MSOs to sign up to offer the TiVo service. There wouldn't be much of a future for TiVo.


The E* relationship would be vastly different from the agreements with DTV, Comcast and Cox. Its easy to justify why the E* type deal should be $ per box and the others should be $/mo.



> a settlement isn't going to get any cheaper than it is right now


If E* gets something like a new trial its going to get alot cheaper.


----------



## ChuckyBox

HDTiVo said:


> The E* relationship would be vastly different from the agreements with DTV, Comcast and Cox. Its easy to justify why the E* type deal should be $ per box and the others should be $/mo.


Depends on your point of view. TiVo got the deals with DTV, Comcast, and Cox because of, at least in part, the threat of having to write big checks for back and ongoing damages. And future deals with other MSOs and box suppliers will be negotiated with the same threat in place. The deal you suggest greatly reduces the threat, because it shows that TiVo is willing to negotiate deals on a $/box basis, and future defendants could argue that in court.

But I'm not sure why you are arguing the point -- the jury had no problem with TiVo's damages and the judge had no problem with TiVo's damages. And nobody at TiVo has the slightest interest in a settlement that doesn't include some kind of monthly "royalty."



> If E* gets something like a new trial its going to get alot cheaper.


As unlikely as that is, if it happens, I wouldn't expect the result to be any different than the drubbing Echostar took the last time. And this time the jury might not be as kind with the damages. Nor the judge. Echostar can drag this thing out, but they're unlikely to slip the noose completely.

Until TiVo needs money, they're not going to settle on the cheap. And I don't see TiVo getting that needy.


----------



## HDTiVo

ChuckyBox said:


> Depends on your point of view. TiVo got the deals with DTV, Comcast, and Cox because of, at least in part, the threat of having to write big checks for back and ongoing damages. And future deals with other MSOs and box suppliers will be negotiated with the same threat in place. The deal you suggest greatly reduces the threat, because it shows that TiVo is willing to negotiate deals on a $/box basis, and future defendants could argue that in court.
> 
> But I'm not sure why you are arguing the point -- the jury had no problem with TiVo's damages and the judge had no problem with TiVo's damages. And nobody at TiVo has the slightest interest in a settlement that doesn't include some kind of monthly "royalty."
> 
> As unlikely as that is, if it happens, I wouldn't expect the result to be any different than the drubbing Echostar took the last time. And this time the jury might not be as kind with the damages. Nor the judge. Echostar can drag this thing out, but they're unlikely to slip the noose completely.
> 
> Until TiVo needs money, they're not going to settle on the cheap. And I don't see TiVo getting that needy.


I don't think that old DTV relationship had much to do with patent threats, I think it was done at a time when DTV saw TiVo as a great product that could be good for its business.

TiVo's CEO has said that the litigation with E* has had minimal impact on MSO negotiations. Not that I take the CEO literally, but Comcast was done a year before the Jury verdict. Cox deal is similar to Comcast and may be mostly under the same business logic.

No one knows if the MSO's MOT and SA boxes infringe. We realize that E* once made non-infringing boxes, so it is possible to not infringe. Its a leap to assume the cable DVRs infringe, and beyond that its more MOT and SA's problem than the MSOs' because MOT and SA are probably contractually obligated to insulate the MSOs.

The reason I am discussing a $/box settlement is because I suspect that's what E* wants, so its 'on the table.' Its also a reasonable formula for the type of situation wherein a party uses a patent owned by another, but the device is developed and sold without the patent owner's involvement. I don't see how DTV, Comcast or Cox in any way fit that description, so its entirely appropriate to have a different economic deal with them.

Its not a lock to get a second Jury to award the same damages. The first is as far in TiVo's favor as it could possibly be. If there were a new trial, the circumstances would be different because of the Appeals Court's rulings and the next Jury could decide anything from zero to what TiVo got the first time.

E* knows that TiVo could still lose the case or another Judgement might be far less. You have to look at both sides of the coin, its not just about what TiVo wants and what TiVo thinks its due. Settlement is a compromise on both sides because there are risks to not settling.


----------



## MichaelK

ChuckyBox said:


> DTV is banking pretty heavily on HD plus football. It isn't clear if Dish can keep its price edge and still offer more HD than cable, but that's their hope for the next couple of years. But there isn't that much HD content yet, which gives cable some time to catch up. The sat guys might have a bit more staying power if they teamed up, but that's a tricky case to make. Malone probably has a better shot at pulling it off than Murdoch, but even then it isn't clear where it would go long term.


not to get into a pissing match but DTV doesn't really seam to care much about HD- AT THE CURRENT TIME. So it's tough to judge their motivation long term.

The 2 spaceway sats aren't even half full with LIL.

Even the LIL markets they do offer are typically at a disadvantage to cable since directv doesn't carry all the locals and all the rsn's in HD. ( and doesn't carry any sub channels either)

They sure seam to be spending a pile on HD sats only to have them sit around half empty. Very odd...


----------



## ChuckyBox

HDTiVo said:


> I don't think that old DTV relationship had much to do with patent threats, I think it was done at a time when DTV saw TiVo as a great product that could be good for its business.


I was thinking more in terms of the new DTV relationship.



> The reason I am discussing a $/box settlement is because I suspect that's what E* wants, so its 'on the table.' Its also a reasonable formula for the type of situation wherein a party uses a patent owned by another, but the device is developed and sold without the patent owner's involvement.


Case law has pretty well established that damages extend to products or services that the infringing product enables, so it is not a reasonable formula in this case. Echostar may want that, but they probably just want the whole thing to go away, too. And there is no reason to expect either of those things. Keep in mind that we are not talking about a licensing agreement, we are talking about compensation for damages.



> Its not a lock to get a second Jury to award the same damages. The first is as far in TiVo's favor as it could possibly be.


Not really. The jury did not award TiVo damages for the entire time of the infringement, based on some marking issues -- something the TiVo lawyers would likely address the second time around. And TiVo had another higher-dollar damages analysis that was not admitted the first time around because of some technical or timing glitch. But the real danger to Echostar would be if they win a retrial on the wilfulness issue because of the disputed Merchant and Gould letter (which is much more likely than a retrial on the infringement or damages), and the jury still finds the infringement wilful. In that case the judge would almost certainly award the triple damages he denied the first time around, and Echostar's appeals "victory" would cost them $200 million or more. And they'd still face the injunction.



> E* knows that TiVo could still lose the case or another Judgement might be far less. You have to look at both sides of the coin, its not just about what TiVo wants and what TiVo thinks its due. Settlement is a compromise on both sides because there are risks to not settling.


Of course you have to look at it from both sides. And business is all about managing risk. The worst case for TiVo is they get nothing and the status quo remains. They are only risking whatever Echostar is currently offering, if they are indeed offering anything. Echostar's biggest risk is the injunction, with a lesser risk of a potential tripling of damages. The likely value of a "win" has to be weighed with legal costs vs. the cost of settlement in light of those risks. As we saw in the RIM case, the injunction threat, even when stayed, far outweighs the dollar damages.


----------



## ChuckyBox

MichaelK said:


> They sure seam to be spending a pile on HD sats only to have them sit around half empty. Very odd...


They've been having HD DVR problems, which is a significant factor in their HD plans. Their HD plans are centered on MPEG4, which the current TiVo-based HD DVRs won't decode. The new DVR has hit some snags, and has only recently become available. I don't know the status of their non-DVR HD receivers, but I imagine they'll start pushing the HD stuff once they're confident in the new DVR. People over on the AVS forum for DTV would know more.


----------



## MichaelK

could be- but i would argue that that is stupid as hell. Hold off HD while waiting for a DVR that only a fraction of the HD subs need/want/use.

Also that doesn't explain why they dont put up anythign but the big 4. If they already offer HD LIL in 36ish markets why not do it right in those markets?

the only logical explanation I can come up with is they have done the math and done think HD is worth spending money on (in terms of new subs or retention) so they will do the bare minimum required for HD and not pay the extra money to add encoders and backhaul for CW/My/PBS/etc in each market. 

It seems to me they decided HD is NOT important right now to be the leading provider (or even an adequate provider as compared to cable or DISH)


----------



## thp427

Still no word? I'm buying a Pioneer 5070 plasma soon. I guess I'll go ahead and upgrade to Dish's HD DVR since it doesn't look like it's going to be killed any time soon. The upgrade from my nonHD receiver is only a couple hundred bucks. 

Actually, I don't even care if I can record in HD -- but I want to record somehow and still pass the HD signal through to the tv.


----------



## MichaelK

is cable an option to you for HD? THe series3 is one neat toy!


----------



## thp427

The local cable company still doesn't have any agreement with Tivo, so it would be a significant purchase by itself. Also, their HD content sucks. I haven't found anthing to compare with Dish, which has around a dozen channels or so.


----------



## BlackBetty

thp427 said:


> Still no word?


And what word are you looking for?


----------



## MichaelK

thp427 said:


> The local cable company still doesn't have any agreement with Tivo, so it would be a significant purchase by itself. ....


if you are not offended by getting triple play from cable- the first year savings can tuypically cover the cost of the S3 and you would get to won it too.



thp427 said:


> ... Also, their HD content sucks. I haven't found anthing to compare with Dish, which has around a dozen channels or so.


That's something that tivo cant help- where the content is. Myself I'm lucky- my cable has around twice the HD that I could get with directv (more then a dozen by far) But still not near dish's total (aren't they are like 40 channels?) But luckily for me- they have the particular channels that I am interested in.

To each his own.

Good luck.


----------



## HDTiVo

No Word?

Seemed to me this was significant:



> http://www.zatznotfunny.com/2006-10/interesting-news-dave-hasnt-covered-60/
> 
> Because EchoStars DVR was found to infringe both the hardware and software claims, to obtain a stay of the injunction, EchoStar must show that it is likely to prevail on its arguments concerning both sets of claims. Based upon our review of the motions papers, and without prejudicing the ultimate determination of this case by the merits panel, EchoStar has met its burden  of showing that there is a substantial case on the merits and that the harm factors militate in its favor. Thus, the motion for a stay is granted.


But we only post one side of the story around here, don't we.


----------



## ZeoTiVo

and in the interest of getting the full picture 

from the article Dave Zatz had linked to in his article
http://www.zatznotfunny.com/2006-10/interesting-news-dave-hasnt-covered-60/
(I added the bolded emphasis)


Press release from Echostar about the stay said:


> As a result of the stay EchoStar can continue to sell, and provide to consumers, all of its digital video recorder models. We continue to believe the Texas decision was wrong, and should be reversed on appeal. *We also continue to work on modifications to our new DVRs, and to our DVRs in the field, intended to avoid future alleged infringement.*


----------



## HDTiVo

ZeoTiVo said:


> and in the interest of getting the full picture
> 
> from the article Dave Zatz had linked to in his article
> http://www.zatznotfunny.com/2006-10/interesting-news-dave-hasnt-covered-60/
> (I added the bolded emphasis)


I suppose if that had in any way been new information it would have been worth posting. 

Now what would be news is TiVo talking about _their _ backup plan should they get squat.


----------



## ZeoTiVo

HDTiVo said:


> I suppose if that had in any way been new information it would have been worth posting.


that is a crappy comment and you know it. It was the repsonse to your "news" . It was direct from Echostar in their press release about the stay. if mine was not 'news" then yours was even less 'news".


----------



## BlackBetty

ZeoTiVo said:


> that is a crappy comment and you know it. It was the repsonse to your "news" . It was direct from Echostar in their press release about the stay. if mine was not 'news" then yours was even less 'news".


+1 :up: :up:


----------



## HDTiVo

ZeoTiVo said:


> that is a crappy comment and you know it. It was the repsonse to your "news" . It was direct from Echostar in their press release about the stay. if mine was not 'news" then yours was even less 'news".


 

OK... how about this...

E* has a contingency plan to stop the bleeding if they lose. What does TiVo have?


----------



## ZeoTiVo

HDTiVo said:


> OK... how about this...
> 
> E* has a contingency plan to stop the bleeding if they lose. What does TiVo have?


since you made it apparent you just want to spread your agenda rather than have a discussion then you can do that without me


----------



## HDTiVo

ZeoTiVo said:


> since you made it apparent you just want to spread your agenda rather than have a discussion then you can do that without me


OK, here's another piece of what you'd call news:

Despite a couple of posts today, ZeoTiVo remains firmly on my Ignorant List.

In other headlines...

The news that E* is working on their contingency plan is several months old. That they are continuing to work on it is completely expected and not news worthy. That E* is working on it can only go against TiVo's interests. TiVo does not talk about having a contingency, because there probably is little that can be done.

The Appeals Court Ruling's wording implying E* has shown it is likely to win on both hardware and software claims is new and significant information, and therefore quite news worthy.

Putting up old and insignificant news, which also is anti-TiVo, as a counter-point to the Ruling is idiotic.


----------



## drew2k

In other headlines: No, there's no new word.


----------



## ZeoTiVo

HDTiVo said:


> OK, here's another piece of what you'd call news:
> 
> Despite a couple of posts today, ZeoTiVo remains firmly on my Ignorant List.
> .


 that would put me on most other people's informed list


----------



## gonzotek

HDTiVo said:


> The news that E* is working on their contingency plan is several months old. That they are continuing to work on it is completely expected and not news worthy. That E* is working on it can only go against TiVo's interests. TiVo does not talk about having a contingency, because there probably is little that can be done.


Or perhaps TiVo feels that revealing any contingency plans they may have, for public scrutiny, may not be in their own best interests.


----------



## ChuckyBox

HDTiVo said:


> The Appeals Court Ruling's wording implying E* has shown it is likely to win on both hardware and software claims is new and significant information, and therefore quite news worthy.


No it isn't. The bar is set very low on a stay of injunction. How many patent cases have you seen where a business-altering, expensive injunction was enforced during an appeal? All that has been established is that echostar has legitimate beefs with some of the court decisions. But we already knew that. The issue with the Merchant & Gould letter alone is enough to satisfy the requirements. And they stand a good chance of winning on that issue. And the original judge is going to have to reconsider damages and the injunction in light of that. And then Echostar runs into a brick wall because he already has considered the letter in Echostar's favor. So if the appeals court is dumb enough not to recognize that fact, then they can send Echostar back for a wilfulness retrial, where at best they'll end up with the same judgment against them, or at worst get hit with triple damages and attorney's fees, then bring it on.

Their other arguments are largely quibbling with an experienced patent judge, and they're not likely to get very far with that.

Meanwhile damages continue to accumulate.


----------



## ChuckyBox

gonzotek said:


> Or perhaps TiVo feels that revealing any contingency plans they may have, for public scrutiny, may not be in their own best interests.


I don't even understand the need for a contingency plan. If they lose the case, they go back to business as usual, which is what they're doing anyway.


----------



## Puppy76

I love thinking how every single day Echostar owes Tivo more and more money 

It would be great if they have to shut everything off right in time for Christmas


----------



## jfh3

ChuckyBox said:


> No it isn't. The bar is set very low on a stay of injunction. How many patent cases have you seen where a business-altering, expensive injunction was enforced during an appeal? All that has been established is that echostar has legitimate beefs with some of the court decisions. But we already knew that. The issue with the Merchant & Gould letter alone is enough to satisfy the requirements. And they stand a good chance of winning on that issue. And the original judge is going to have to reconsider damages and the injunction in light of that. And then Echostar runs into a brick wall because he already has considered the letter in Echostar's favor. So if the appeals court is dumb enough not to recognize that fact, then they can send Echostar back for a wilfulness retrial, where at best they'll end up with the same judgment against them, or at worst get hit with triple damages and attorney's fees, then bring it on.
> 
> Their other arguments are largely quibbling with an experienced patent judge, and they're not likely to get very far with that.
> 
> Meanwhile damages continue to accumulate.


Bingo.

Chucky: 1 HDTivo: 0


----------



## HDTiVo

ChuckyBox said:


> No it isn't. The bar is set very low on a stay of injunction. How many patent cases have you seen where a business-altering, expensive injunction was enforced during an appeal?


Normally I would think that is the case - remember I thought the injunction was likely, you didn't as much  Its just seeing the way the Appeals Court wrote it, saying it had to be *likely* on both.

It didn't say 'a likelihood' or 'a reasonable possibility.'

Then it commented that its sense of it being likely would not prejudice the ultimate decision.

It really reads like the Appeals Court thinks E* will prevail.

I don't think the Appeals Court is stupid or has trouble writing what it means.


----------



## jfh3

HDTiVo said:


> It really reads like the Appeals Court thinks E* will prevail.


And, if that were really true, E* would've had press releases out ensuring everyone and his mother thought that too.

E* was uncharacteristicly low-key on the decision, which pretty much tells me that their lawyers believe what most others who have weighed in on this think - that the stay was granted is not significant to either party in the grand scheme of things.


----------



## HDTiVo

jfh3 said:


> And, if that were really true, E* would've had press releases out ensuring everyone and his mother thought that too.
> 
> E* was uncharacteristicly low-key on the decision, which pretty much tells me that their lawyers believe what most others who have weighed in on this think - that the stay was granted is not significant to either party in the grand scheme of things.


So why write likely? Likely is more than 50%, isn't it? (That's rhetorical for the below-grade-level readers.)

There's nothing else to speculate on right now, so lets beat this to death.


----------



## drew2k

HDTiVo said:


> There's nothing else to speculate on right now, so lets beat this to death.


Let's. (That's with an apostrophe, for the below-grade-level writers.)


----------



## HDTiVo

drew2k said:


> Let's. (That's with an apostrophe, for the below-grade-level writers.)


Whoops. Ill leaf it their four fun.


----------



## samo

> There's nothing else to speculate on right now, so lets beat this to death.


Funny. Chucky, Zeo and HDTivo are arguing, but stating exactly the same facts. The facts are:
1. Federal Appeals Court will make the decision on this case. Nobody here nor parties to the lawsuit know what this decision will be (overwise this case would have been settled long time ago).
2. E* has the contingency plan. They have no choice, but to have one (see 1. above for the reason ). If E* loses, they will push software update and claim that new update no longer infringes on TiVo patent. TiVo will argue that it does and case will go back to court unless both parties play smart and reach some kind of settlement.
3. TiVo has not announced the contingency plan. Without a patent that they can milk, they have very little chance to survive a competition. Business as usual means continuous loss of market share and negative bottom line. They can't do it forever. If they lose this case - Wall Street will put them 6 ft under.
Any speculation by world renown attorneys Chucky, Zeo and HDTiVo should be put on hold until Federal Appeals Court makes the decision on this case.
_Edited to reflect davezatz comment._


----------



## gonzotek

samo said:


> 3. TiVo does not have a contingency plan. Without a patent that they can milk, they have very little chance to survive a competition. Business as usual means continuous loss of market share and negative bottom line. They can't do it forever. If they lose this case - Wall Street will put them 6 ft under.
> Any speculation by world renown attorneys Chucky, Zeo and HDTiVo should be put on hold until Federal Appeals Court makes the decision on this case.


I'm no legal eagle, but I thought they had more than one patent, a whole portfolio of them, in fact. They bought some additional ones from IBM not all that long ago. Why would this one case, involving this one patent, sink them? What would prevent them from capitalizing on the rest of the portfolio? Though, I'll admit that wouldn't exactly be business as usual.


----------



## ZeoTiVo

samo said:


> 3. TiVo does not have a contingency plan. Without a patent that they can milk, they have very little chance to survive a competition. Business as usual means continuous loss of market share and negative bottom line. They can't do it forever. If they lose this case - Wall Street will put them 6 ft under.
> Any speculation by world renown attorneys Chucky, Zeo and HDTiVo should be put on hold until Federal Appeals Court makes the decision on this case.


actually I am conflicted on the outcome. If TiVos loses it then they have to focus on making the Stand Alone's sell and will sink ALL their effort into that - thus more features for me  I don't think Wall street will sink them, they have already lived with a low stock price. It will be whatever Stand Alone market they can fill that will determine their longevity or not.

When TiVo wins the case then they will be split between licsenisng issues/deals with MSOs and the stand alone market. I doubt they will give it up but they will not be having to throw everything they can into it. Good for the bottom line but I would wonder where the Stand Alone will stand on that line.


----------



## davezatz

samo said:


> 3. TiVo does not have a contingency plan.


I think it's more accurate to say they don't have a plan that _we_ are _aware_ of.


----------



## samo

davezatz said:


> I think it's more accurate to say they don't have a plan that _we_ are _aware_ of.


Agree with you 100%. It would be absolutely stupid for TiVo not to have some kind of contingency plan. They haven't announced it and it isn't obvious what they may do in case of the loss, but you are absolutely right. I'll edit my post.


----------



## ChuckyBox

HDTiVo said:


> Normally I would think that is the case - remember I thought the injunction was likely, you didn't as much  Its just seeing the way the Appeals Court wrote it, saying it had to be *likely* on both.


The court was paraphrasing the standard set by the law when it said "likely." Given that stays of injunction are routinely given during appeal (they are automatic on monetary damages), but the majority of appeals by the infringing party fail, it would seem that "likely" in this context doesn't have the meaning you ascribe to it.



> I don't think the Appeals Court is stupid or has trouble writing what it means.


No, but that doesn't mean you are properly interpreting what was written.


----------



## ChuckyBox

HDTiVo said:


> So why write likely? Likely is more than 50%, isn't it?


No, it isn't. It is context-dependent.


----------



## ChuckyBox

samo said:


> 2. E* has the contingency plan. They have no choice, but to have one (see 1. above for the reason ). If E* loses, they will push software update and claim that new update no longer infringes on TiVo patent. TiVo will argue that it does and case will go back to court unless both parties play smart and reach some kind of settlement.


Um, no. That's not how it works. Echostar would have to prove to the court that they no longer infringed the patent in order to get the injunction lifted and the damages stopped. At that point, it would be TiVo's turn to drag out the proceedings. Echostar's contingency plan is to settle with TiVo.



> 3. TiVo has not announced the contingency plan. Without a patent that they can milk, they have very little chance to survive a competition. Business as usual means continuous loss of market share and negative bottom line. They can't do it forever. If they lose this case - Wall Street will put them 6 ft under.


I like how you state that as a fact when it is nothing more than your personal spin.

So two out of three of your "facts" are not facts at all, and the other one is more like stating the incredibly obvious than a fact. But now that I think about it, that's a pretty good batting average for you.


----------



## Dajad

samo said:


> Funny. Chucky, Zeo and HDTivo are arguing, but stating exactly the same facts. The facts are:
> 1. Federal Appeals Court will make the decision on this case. Nobody here nor parties to the lawsuit know what this decision will be (overwise this case would have been settled long time ago).
> 2. E* has the contingency plan. They have no choice, but to have one (see 1. above for the reason ). If E* loses, they will push software update and claim that new update no longer infringes on TiVo patent. TiVo will argue that it does and case will go back to court unless both parties play smart and reach some kind of settlement.
> 3. TiVo has not announced the contingency plan. Without a patent that they can milk, they have very little chance to survive a competition. Business as usual means continuous loss of market share and negative bottom line. They can't do it forever. If they lose this case - Wall Street will put them 6 ft under.
> Any speculation by world renown attorneys Chucky, Zeo and HDTiVo should be put on hold until Federal Appeals Court makes the decision on this case.
> _Edited to reflect davezatz comment._


If E* does what you suggest in point 2, deploying such software will not absolve them of prior infringement liability, which if I recall correctly, the court has computed to be worth $80M and counting. That will have to be paid immediately --- enough of a war chest for TiVo to keep up the good fight for quite some time.

...Dale


----------



## jfh3

Chucky: 2 Samo: 0

Chucky: 4: HDTivo: 0

This is fun.


----------



## HiDefGator

Dajad said:


> If E* does what you suggest in point 2, deploying such software will not absolve them of prior infringement liability, which if I recall correctly, the court has computed to be worth $80M and counting. That will have to be paid immediately --- enough of a war chest for TiVo to keep up the good fight for quite some time.
> 
> ...Dale


I don't believe E* can get around the media switch patent with new software for the existing dvr's. I believe most of that patent is in the hardware.

But what would Tivo do with the money? They can't seem to find a profitable use for the cash they have now. And 80 million would barely make E* flinch. The longer E* can drag it out the less bargaining power Tivo has and the longer E* has to come up with a noninfringing replacement dvr.

In the mean time Tivo's ability to go after other infringers is limited by this case not being settled. Anyone else they sued would ask for a delay until this trial settled the issues once and for all. Mean while the value and remaining life of Tivo's patents are slowly getting smaller and smaller every day.


----------



## drew2k

jfh3 said:


> Chucky: 2 Samo: 0
> 
> Chucky: 4: HDTivo: 0
> 
> This is fun.


Overuse of colons: Priceless.


----------



## dswallow

HiDefGator said:


> I don't believe E* can get around the media switch patent with new software for the existing dvr's. I believe most of that patent is in the hardware.
> 
> But what would Tivo do with the money? They can't seem to find a profitable use for the cash they have now. And 80 million would barely make E* flinch. The longer E* can drag it out the less bargaining power Tivo has and the longer E* has to come up with a noninfringing replacement dvr.
> 
> In the mean time Tivo's ability to go after other infringers is limited by this case not being settled. Anyone else they sued would ask for a delay until this trial settled the issues once and for all. Mean while the value and remaining life of Tivo's patents are slowly getting smaller and smaller every day.


The remaining life doesn't make prior infringement less costly; it has nothing to do with it at all, actually. Even if the patent were expired today, if you infringed yesterday you can be sued for it.

Coming up with a non-infringing replacement DVR won't make Echostar owe any less money if the ruling is upheld. And there'd still be a substantial expense to Echostar to replace all those infringing DVRs with non-infringing ones. And there's still no guarantee there won't be other infringement in their so-called non-infringing DVRs.

Anyone who thinks Echostar dragging this out for years somehow will end up with TiVo disappearing is foolish; they've got Comcast licensing beginning real soon as well as continued revenue from DirecTV, plus their own base of standalone subscribers and customers for their advertising and aggregated data. TiVo doesn't need a contingency plan like Echostar does; TiVo just continues business as usual no matter what happens with Echostar.


----------



## samo

ChuckyBox said:


> Um, no. That's not how it works. Echostar would have to prove to the court that they no longer infringed the patent in order to get the injunction lifted and the damages stopped. At that point, it would be TiVo's turn to drag out the proceedings. Echostar's contingency plan is to settle with TiVo.


I'm glad you know how it works. You are an expert in patent law after all. All I know (see Zeo's post #731) that E* announced the contingency plan to modify new and existing DVRs so they don't infringe. Of course their lawyers and engineers don't know nearly as much as you do about what is possible to modify on their DVRs, but at least they announced these modifications in case they lose in court.
As for point 3. I'll give it to you. Although TiVo didn't announce contingency plan, they must have one. Since I am not an insider, everything I said in third paragraph is just my opinion. TiVo probably already figured out what to do in case they lose this case or in case they lose pending lawsuit on a patents E* claims they are infringing on. They probably have plans to make profit and to gain market share with existing products as well. They just don't want to execute these plans unless they lose in court.


----------



## samo

Dajad said:


> If E* does what you suggest in point 2, deploying such software will not absolve them of prior infringement liability, which if I recall correctly, the court has computed to be worth $80M and counting. That will have to be paid immediately --- enough of a war chest for TiVo to keep up the good fight for quite some time.
> 
> ...Dale


Of course. For E* this is a pocket change, for TiVo it is a fortune. Contingency plan E* announced is just something that they need in case they lose AND can not agree with TiVo on some kind of settlement. I'm sure that if E* loses they will be much more inclined to sign some kind of licensing deal with TiVo. And TiVo would be foolish not to make some kind of mutually beneficial agreement with E*.


----------



## MighTiVo

samo said:


> Of course. For E* this is a pocket change, for TiVo it is a fortune. Contingency plan E* announced is just something that they need in case they lose AND can not agree with TiVo on some kind of settlement. I'm sure that if E* loses they will be much more inclined to sign some kind of licensing deal with TiVo. And TiVo would be foolish not to make some kind of mutually beneficial agreement with E*.


If I can get a Dish TiVo with MRV I'll switch back to Dish!


----------



## HDTiVo

ChuckyBox said:


> No, it isn't. It is context-dependent.


Can you give an example of that?

Even so, its still "likely," which is what I said in the first place.


----------



## jfh3

samo said:


> I'm sure that if E* loses they will be much more inclined to sign some kind of licensing deal with TiVo.


If E* lets it go that far, it'll be FAR more expensive than it would be now. E* would be RIMMed for sure ...


----------



## ChuckyBox

HDTiVo said:


> Can you give an example of that?


There are any number of ways we could approach this, and I suspect you are smart enough to come up with examples of your own.

But a practical example: if a person's chance of dying in a given day (which is normally a small fraction of a percent) was 10% without taking certain action, most people would consider their death "likely." Certainly likely enough to take remedial action.

This example isn't inapplicable to the TiVo-Echostar case. Were the injunction enforced, the damage to Echostar would be immediate, irreversable, and run into the hundreds of millions of dollars. Even a small likelihood of prevailing in their appeal warrants a stay of injunction.


----------



## ChuckyBox

jfh3 said:


> If E* lets it go that far, it'll be FAR more expensive than it would be now. E* would be RIMMed for sure ...


I think it has already gone that far. TiVo has the injunction and probably won't settle for what they would have earlier. If Echostar screws up anywhere during the appeal, they'll be a sitting duck. (And it appears they have already screwed up -- they've applied for an extension of the time to file their brief, and the filing date has already passed. They'll probably get the extension, but it is going to cost them in the court's measure of their good faith.)


----------



## jfh3

ChuckyBox said:


> And it appears they have already screwed up -- they've applied for an extension of the time to file their brief, and the filing date has already passed. They'll probably get the extension, but it is going to cost them in the court's measure of their good faith.


That's not a screw up, that's SOP for E* - they want to delay as much as possible, as often as possible.

But I hope that will back-fire on them in this case and that the court will step up and say "enough" to E*'s continued disrespect of the process.


----------



## ChuckyBox

jfh3 said:


> That's not a screw up, that's SOP for E* - they want to delay as much as possible, as often as possible.


That was my initial thought, too. And it may turn out to be correct. But asking for an extension when a lower court has ruled that you are doing ongoing irrepairable harm to the appellee is going to require a pretty strong argument as to why you will be unfairly prejudiced by meeting the normal schedule. So either there's been a development that we're not hearing about that justifies the request, or Echostar is taking a substantial risk to buy 60 days.


----------



## Greg Bimson

Just to add my two cents about the good-faith of the Echostar defense team.

Echostar fought the good fight, but didn't know when it was time to give up...

The affiliate boards of ABC, NBC, CBS and FOX, as well as each of those four networks, sued Dish Network for violating the qualifications for distant networks in the SHVA in 1998. The suit, after an appeal and remand, was finally adjudicated in June, 2003. Dish Network lost, and the judge issued an injunction that would have forced Dish Network to requalify all of their distant network subscribers. A requalification would have probably cost Dish Network about half of their estimated 800,000 to 1 million distant network subscribers.

Dish Network appealed, saying the decision to requalify everyone was too onerous. The network affiliate boards cross-appealed, saying the decision to requalify everyone was not good enough, and that a permanent nationwide injunction should be issued against all four networks. The Appeals Court also in this case issued a stay to the injunction.

Keep in mind that by this time, ABC and NBC Networks dropped out of the suit, and CBS settled during the appeals process. FOX was the only network remaining in the suit, and did not cross-appeal. FOX only wanted to have Dish Network remove all customers that weren't qualified for the reception of distant networks.

The Eleventh Circuit Court of Appeals received the case, and finally issued their decision in May, 2006. In a 3-0 decision, the jurists on the Court of Appeals found that Echostar blatantly violated the law; upon finding that Echostar did so with a pattern or practice of willful copyright infringment, the Appeals Court remanded the case back to the District Court to have the District Court judge issue the nationwide injunction. The nationwide injunction is the only penalty prescribed in the law when the courts find a pattern or practice of willful infringment.

Echostar appealed to have all jurists on the Eleventh Circuit Court of Appeals appraise the decision, which is called an _en banc_ request. The _en banc_ request was denied in July, 2006.

Echostar then appealed to the Supreme Court to have an emergency stay issued against the injunction while Dish Network could gather their papers for a writ of certoriari, to challenge the Appeals Court decision in the Supreme Court. Justice Thomas denied the request in August, 2006.

So, with only one appeal left (this would be the writ of certoriari to the Supreme Court), Echostar finally agreed to a settlement with the four affiliate boards of the networks, but not FOX network. Echostar would pay the affilate boards a total of $100 million, and would subject their entire distant network subscriber base to a requalification.

It was too late. Because the Appeals Court issued the mandate for a permanent injunction upon remand of the case back to the District Court, and because the only recourse for a pattern or practice of willful infringment is a permanent injunction, the District Court has issued the permanent injunction to take effect on 1 December. The settlement was voided.

Yes, Echostar has sent their writ of certoriari to the Supreme Court. But the Supreme Court will not issue an emergency stay of the injunction. So, even if the Supreme Court agrees to hear the case, they may not place it on the docket until the following year, which would be long after the injunction takes effect.

Keep in mind what is also tied to the license that will be subject to the injunction on 1 December. Dish Network will no longer have the ability to provide distant network programming to anyone: no white-area customers, no RV or Trucker waivers and no waivers from individual stations. If a Dish Network customer will has locals from outside of their own market, they will be terminated in one month.

Dish Network will also lose the ability to retransmit distant DIGITAL local channels. The agreement with CBS HD will expire upon the date of the injunction, and people in rural areas will not be able to receive any network programming in HD, digital or analog if Dish Network does not carry their local channels.

Also gone will be any of the signficantly-viewed channels. No more DC stations for those Dish Network customers living in Howard and Anne Arundel Counties in Maryland. No more WMUR, the only full-power network affiliate in New Hampshire, to be given to customers outside the Boston market.

It was the prospect of losing this license that caused Dish Network to pony up the $100 million settlement. Now, Dish Network faces a problem where up to 6 percent of their subscriber base will lose programming, and faces a real difficulty in the RV and Trucker markets as well as the rural markets because network programming will no longer be available to these customers.

By the way, the Echostar legal team was strongly rebuked by the Appeals Court for filing frivolous claims during appeal. The Echostar Executive Management team was also strongly rebuked for practically lying to the court in the original court case.

This makes the Echostar defense team's job very difficult, as every time they walk into a courtroom to represent Echostar, these delays and stalls will look badly upon the defense team. If Echostar tries too many tricks, they may have the rug pulled out from under them again.


----------



## goony

Thank you for the post Greg.

A couple of years ago Dish Network torqued me off in a disupute over excessive DVR charges (I had one of the original WebTV + DVR Dishplayers - 'nuff said).

When I left Dish for DirecTV I wondered if I would miss the distant networks. I thought I would, but I never did - the (hacked) DTivos are wonderful and having dual tuners and networked functions far outweighed the loss of the west coast nets.


----------



## MichaelK

might have been posted earlier-

but it's Dish's MO to abuse the court system:

http://www.denverpost.com/ci_3791466?source=rss


----------



## peteypete

http://davisfreeberg.com/2006/10/31/tivo-and-echostar-best-friends-forever/

Does this thing have legs?


----------



## drew2k

peteypete said:


> http://davisfreeberg.com/2006/10/31/tivo-and-echostar-best-friends-forever/
> 
> Does this thing have legs?





> the order likely meant that TiVo and Echostar were very close to a settlement, but that the details havent been completely finalized.





> [...] things could still end up falling apart, he felt that, based on the courts action, it would be unusual for TiVo and Echostar to not reach an agreement at this stage in the case.


I guess we'll know within 14 days!


----------



## ChuckyBox

peteypete said:


> http://davisfreeberg.com/2006/10/31/tivo-and-echostar-best-friends-forever/
> 
> Does this thing have legs?


I don't think so. I don't believe that what is happening in court right now indicates a settlement is in the works.


----------



## MichaelK

ChuckyBox said:


> I don't think so. I don't believe that what is happening in court right now indicates a settlement is in the works.


you guys all seem to know much more than I.

WHat else could a 14 day stay indicate?


----------



## HiDefGator

If this really meant a settlement was immenient don't you think the stock price would be going up instead of down? That alone should tell you its not.


----------



## MichaelK

that's a good indicator.

Why else would they get a stay? 

maybe there's another open issue that needs to get resolved before the move forward?


----------



## davezatz

MichaelK said:


> maybe there's another open issue that needs to get resolved before the move forward?


some think so...
http://www.zatznotfunny.com/2006-11/tivo-v-echostar-update-part-2/

From our vantage point, a good deal will always be speculative... but perhaps a few reasonable guesses can be made.


----------



## jfh3

HiDefGator said:


> If this really meant a settlement was immenient don't you think the stock price would be going up instead of down? That alone should tell you its not.


Stock talk is against TCF rules.


----------



## ChuckyBox

HDTiVo said:


> No Word?
> 
> Seemed to me this was significant:
> 
> http://www.zatznotfunny.com/2006-10...snt-covered-60/
> 
> Because EchoStars DVR was found to infringe both the hardware and software claims, to obtain a stay of the injunction, EchoStar must show that it is likely to prevail on its arguments concerning both sets of claims. Based upon our review of the motions papers, and without prejudicing the ultimate determination of this case by the merits panel, EchoStar has met its burden of showing that there is a substantial case on the merits and that the harm factors militate in its favor. Thus, the motion for a stay is granted.
> 
> But we only post one side of the story around here, don't we.


Funny thing about that. I had a look at this order and there is some text in the paragraph preceeding that one:



> To obtain a stay, pending appeal, a movant must establish a strong likelihood of success on the merits or, *failing that*, nonetheless demonstrate a substantial case on the merits provided that the harm factors militate in its favor. [Emphasis mine]


So it appears that Echostar failed to meet the stricter criteria of "strong likelihood" and only met the weaker criteria (substantial case plus harm factors). And now you know the other side of the story.

The full order is attached.


----------



## ZeoTiVo

samo said:


> All I know (see Zeo's post #731) that E* announced the contingency plan to modify new and existing DVRs so they don't infringe.
> 
> They[sic- meaning TiVo] probably have plans to make profit and to gain market share with existing products as well. They just don't want to execute these plans unless they lose in court.


 I would think TiVo would and is executing those plans for existing products despite any outcome of the court case. Since we are not privy to the spreadsheets showing how it is going only time will tell us how thw execution went.

now perhaps a better question - Would TiVo have some contigency plan in reagrds to TiVo DVR for Sat. if they do not get an inroad via some settlement from this case? Does TiVo want an inroad into Sat. or have they dropped Sat. from their plans?

Recording HD from a video output on a Sat. receiver is not commercially viable so all I can think of is going back to the FCC to get some mandate on standardized access to the Sat. digital bytestream.


----------



## MichaelK

ZeoTiVo said:


> ...
> 
> Recording HD from a video output on a Sat. receiver is not commercially viable so all I can think of is going back to the FCC to get some mandate on standardized access to the Sat. digital bytestream.


I belive DBS won specific exemption from the rules that mandated STB's should be commercially availible at retail (the rules that made cablecard).

But that aside- even if TiVo could make such a case- I really believe they could make an HDMI INPUT recording device before any such ruling would get implemented. And it would be alot cheaper.

There are now SECOND generation MPEG4 HD recording camcorders. Some can be had for under a grand. No one has exmplained to me yet how you couldn't take the uncompressed ouput form the image chip and instead replace that with the uncompressed HMDI feed from a STB. It will take some time to develop and it wouldn't be free for sure, but I think the technology is catchign up to make real time MP4 HD capture a possibility if anyone wanted to do it.


----------



## samo

ZeoTiVo said:


> now perhaps a better question - Would TiVo have some contigency plan in reagrds to TiVo DVR for Sat. if they do not get an inroad via some settlement from this case? Does TiVo want an inroad into Sat. or have they dropped Sat. from their plans?


There is no question in my mind that unless E* wins an appeal outright, there will be some kind of settlement. The most favorable settlement for TiVo would be to get some kind of development contract from Dish. Time will tell, but if TiVo can get foot in a door with E* they could claim that they have all the markets covered. Whole deal of course depends on Charlie's feeling toward losing control of DVR development. He had very bad experience with Microsoft (took them to court of course, don't recall how it ended), so he made a decision to have their own DVRs. Very seldom (if ever) Charlie reverses his decisions (unless he is forced to do it by courts).


----------



## yunlin12

peteypete said:


> http://davisfreeberg.com/2006/10/31/tivo-and-echostar-best-friends-forever/
> 
> Does this thing have legs?


Anything yet? It's been 14 days.


----------



## ChuckyBox

yunlin12 said:


> Anything yet? It's been 14 days.


I think Davis misinterpreted the order to mean that Echostar had 14 days to notify the court of them taking specific action, but the wording is ambiguous. It appears now that once the Texas court rules on Echostar's final motions, Echostar will have 14 days to notify the Appeals court of that action, and then the briefing schedule for the appeal will be established.

But there is no reason to believe that a settlement is imminent.


----------



## dr_lha

samo said:


> There is no question in my mind that unless E* wins an appeal outright, there will be some kind of settlement. The most favorable settlement for TiVo would be to get some kind of development contract from Dish. Time will tell, but if TiVo can get foot in a door with E* they could claim that they have all the markets covered. Whole deal of course depends on Charlie's feeling toward losing control of DVR development. He had very bad experience with Microsoft (took them to court of course, don't recall how it ended), so he made a decision to have their own DVRs. Very seldom (if ever) Charlie reverses his decisions (unless he is forced to do it by courts).


I'm pissed with my cable company, and am considering going back to satellite. I had dish before and liked them but their DVR sucked compared to TiVo. Now that DirecTV have basically dumped TiVO as well, I think Dish would do well to have a TiVo enabled DVR. If they started selling Dish TiVo based DVRs I would move over to them in an instant.


----------



## MighTiVo

dr_lha said:


> I'm pissed with my cable company, and am considering going back to satellite. I had dish before and liked them but their DVR sucked compared to TiVo. Now that DirecTV have basically dumped TiVO as well, I think Dish would do well to have a TiVo enabled DVR. If they started selling Dish TiVo based DVRs I would move over to them in an instant.


Since years of calling DTV seems to have failed, perhaps calling Dish and letting them know that TiVo is a deal maker would do some good. It seems Dish needs a big deal like this to get out of the woods...


----------



## MighTiVo

samo said:


> There is no question in my mind that unless E* wins an appeal outright, there will be some kind of settlement. The most favorable settlement for TiVo would be to get some kind of development contract from Dish. Time will tell, but if TiVo can get foot in a door with E* they could claim that they have all the markets covered. Whole deal of course depends on Charlie's feeling toward losing control of DVR development. He had very bad experience with Microsoft (took them to court of course, don't recall how it ended), so he made a decision to have their own DVRs. Very seldom (if ever) Charlie reverses his decisions (unless he is forced to do it by courts).


While Charlie is the one to make the decision, I think the ball is in TiVo's court to make him a deal he can't refuse. TiVo has everything to gain by this kind of deal and should be doing everything they can to get it. (assuming they didn't mess up and offer some sort of cable exclusivity deal earlier)


----------



## davezatz

MighTiVo said:


> (assuming they didn't mess up and offer some sort of cable exclusivity deal earlier)


their cable deals are non-exclusive


----------



## ChuckyBox

davezatz said:


> their cable deals are non-exclusive


Yes, but TiVo has been pitching itself to the cable MSOs as a way to differentiate themselves from satellite, so the odds are against any kind of branded deal with Echostar. If there is a settlement, I'd expect it to be IP licensing only (though there might be some kind of deal on TiVo's advertising platform).


----------



## MichaelK

ChuckyBox said:


> Yes, but TiVo has been pitching itself to the cable MSOs as a way to differentiate themselves from satellite, so the odds are against any kind of branded deal with Echostar. If there is a settlement, I'd expect it to be IP licensing only (though there might be some kind of deal on TiVo's advertising platform).


you guys know much more then I, but sat accounts for like 25% of the market. Do you think TiVo can really ignore 25% and be ubiqitous?


----------



## ChuckyBox

MichaelK said:


> you guys know much more then I, but sat accounts for like 25% of the market. Do you think TiVo can really ignore 25% and be ubiqitous?


I'm not sure ubiquity is required for TiVo's business plan. At this point they are focusing on offering their software as a differentiating feature to cable. Given the competitive pressure that satellite is starting to feel from "triple-play" cable offerings (and soon the telco offerings), and cable will soon feel from the telcos, having a widly-recognized brand like TiVo available to them is a marketing advantage (as well as a potential ARPU booster). Were TiVo available on Dish or DTV that differentiation would be lost (though if enough competitors had TiVo offerings, there would then be pressure to sign TiVo just to keep up).

But TiVo has no leverage to force its branded software on anyone. DTV has moved away from a TiVo solution and the companies now have an IP and advertising-only extension of their agreement. While a settlement of some kind my eventually be forced upon Echostar, I think Charlie Ergen will fight to the bitter end, and is unlikely to ever accept TiVo software, even if it means replacing all the infringing hardware in the field (probably costing Echostar in excess of a billion dollars and thousands of customers -- something the cable operators will greatly appreciate). So ubiquity doesn't even seem possible.


----------



## MichaelK

I totally agree that ergen will likley die before there's a tivo logo on his boxes. I think he might go for a license or royalty fee or something (but steam rolling all his current DVR's wouldn't be out of his realm for sure).

I was just wondering about your views on their business plan.

I saw the add they did for the S3 touting that it deosn't work for sat. But I'm curious is that sort of thing just the easy marketing spin of the month since they have no sat customers for their software or have they been more direct that their plan is to go the cable route. (been busy of late so I havne't had the time to keep up to know what they have been saying- thanks for your informative posts)


----------



## timckelley

This is all very confusing. I wonder how much longer is it possible for this thing to drag on.


----------



## davezatz

Someone compared it to the RIM case and if it follows the same track, it could be 2008. I can't imagine it taking that long, but folks probably didn't imagine the RIM case dragging out like it did.


----------



## MichaelK

davezatz said:


> Someone compared it to the RIM case and if it follows the same track, it could be 2008. I can't imagine it taking that long, but folks probably didn't imagine the RIM case dragging out like it did.


I didn't think the rim case got finihsed so fast.

2008 is quicker then i thought for this case. So that's positive

BTW- did anyone see the RIM sue people (NTP i think?)- now is suing palm over the treo. Apparently they think that picking up email wirelessly is all theirs? I dont have enough time to follow tivo- afraid to open a new can learning about that one...


----------



## timckelley

Something sounds unethical about the notion that somebody can be infringed upon, then assert their rights in court, incurring a lot of legal fees, and win a ruling in court that they were indeed infringed, and yet still have it take years longer to actually collect damages. I don't like that.


----------



## MichaelK

timckelley said:


> Something sounds unethical about the notion that somebody can be infringed upon, then assert their rights in court, incurring a lot of legal fees, and win a ruling in court that they were indeed infringed, and yet still have it take years longer to actually collect damages. I don't like that.


I'm not 100% positive- but I think I read above that:

#1 damages continue to accrue (i'm sure)
#2 interest is charged (pretty sure)
#3 Estar had to bost a bond or other security to cover the inital damages during appeal

As a whole I think it's a tough situation, but if you force people to pay up immediately before appeal then you could effectively bankrupt a smaller party before they had a chance to appeal. This way the right to appeal seems preserved somewhat so if the original verdict is messed up you have a way to get your beef's heard.

Flip the sides (like if Dishs's case against tivo ever makes it to court)- and assume Dish wins and that tivo had to pay up immeidately before appeal. Dish could bankrupt TiVo right then and there and there would be no appeal availible for tivo.


----------



## timckelley

My complaint though is that the process takes years to complete.


----------



## MichaelK

timckelley said:


> My complaint though is that the process takes years to complete.


I think that's a universal complaint accross our entire judicial system unfortunately...

Everythign seems to take forever.

Supposedly the court in texas that tivo picked is one of the fastest for patent cases (although I wonder does that matter once the original case is done and all the appeals start- since it sounds like DISH files appeals wherever they want? )


----------



## ChuckyBox

timckelley said:


> Something sounds unethical about the notion that somebody can be infringed upon, then assert their rights in court, incurring a lot of legal fees, and win a ruling in court that they were indeed infringed, and yet still have it take years longer to actually collect damages. I don't like that.


A lot of people would agree with you on that issue. Equally hard to justify is the notion that you can win an injunction to stop the infringement and protect your business, but the appeals court can stay it while they fiddle around for a couple of years.

The system is designed to be fair to everyone, and to do the least damage while the cases are being argued. But the appeals process has somehow become more important than the trial process, and "fairness" seems to lean heavily toward the party with the most resources and the ability to drag things out for as long as possible.

On the bright side, at least for TiVo, Echostar's latest 10Q indicates that if TiVo wins the appeal, the damages as of Oct. 31 would be pushing $110 million, and growing at $6+ million per month (and increasing with compound interest and more DVRs deployed). So there is the potential for a treat at the end of the maze.


----------



## HDTiVo

MichaelK said:


> I saw the add they did for the S3 touting that it deosn't work for sat. But I'm curious is that sort of thing just the easy marketing spin of the month since they have no sat customers for their software or have they been more direct that their plan is to go the cable route. (been busy of late so I havne't had the time to keep up to know what they have been saying- thanks for your informative posts)


Yes, when you are holding a crappy hand, that's what you do; with the corollary being when you see a company do this, you know they are probably holding a weak hand.

There endeth the lesson.


----------



## Dajad

ChuckyBox said:


> The system is designed to be fair to everyone, and to do the least damage while the cases are being argued.


The system was designed hundreds of years ago in a land far far away ... with a few minor revisions over the years. It was NOT designed to deal with the realities of a globally Internet-connected, fast paced, technologically changing world we live in now. Specifically the system was NOT designed to handle this type of trial. But, alas, its all we have. Big companies with resources to fund powerful law firms know how to game the system to their maximum advantage. Delay will NEVER hurt Echostar and its in their interest to delay as long as possible. Delay can very much hurt TiVo - and that's what Echostar is counting on!

...Dale


----------



## davezatz

I picked up a Xbox 360 today, so I'm not blogging... 

Nov. 27 (Bloomberg) -- EchoStar Communications Corp. lost a bid for a new trial in a patent-infringement suit that TiVo Inc. won over digital video recorders.

U.S. District Judge David Folsom in Marshall, Texas, said EchoStar hadn't raised any new legal issues to merit a new trial in the case.

http://www.bloomberg.com/apps/news?pid=conewsstory&refer=conews&tkr=TIVO:US&sid=aE74jy75hOtk


----------



## timckelley

Take that, EchoStar.


----------



## SullyND

timckelley said:


> Take that, EchoStar.


Unfortunately this does not mean an end to the appeal.


----------



## Einselen

SullyND said:


> Unfortunately this does not mean an end to the appeal.


Yes but appeals are hardly granted, well I mean they happen but there are a small number of cases that are overturned. What will now happen is the facts will be looked at see if any were inconstant with the law and if the ruling was unfair/unjust in the eyese of just the facts and the law.

Echostar losing a bid for a new trial is a "win" for Tivo. Esentially no new fact, no new evidence, etc. means they are going off the original loss which again a small number of cases are overturned in the appeals process (it could happen though so don't be counting those eggs yet)


----------



## ChuckyBox

SullyND said:


> Unfortunately this does not mean an end to the appeal.


It actually means the appeal can now proceed. The briefing schedule has been stayed for the past few weeks while the parties awaited the rulings on these motions. Echostar now appears to have 14 days to notify the appeals court of the disposition of these motions, at which point the court will set a new briefing schedule, and the case can proceed. Given that Echostar has already had a great deal of time to prepare their brief, theirs may be due before Christmas, and TiVo's sometime in January (30 days post-Echostar-brief would be standard, but they may get a bit more because of the holidays and because of Echostar's extra time.)

While this ruling was expected, the judge made short work of Echostar's arguments and declined to even (re)address most of them, discussing only the matters he had not previously ruled upon. Since the rule 50 and 59 motions are considered a preview of a defendant's appeal, nothing about what happened can be considered good news for Echostar.

I would attach the ruling, but the PDF is too big.


----------



## BBURNES

Chuckybox,

Have you seen any news on this? I know it likely will be a long time before this becomes settled. 

But hadn't seen anything on it in a while.

Thanks!


----------



## BlackBetty

TiVo should be getting the $100M check in the mail anyday now.


----------



## Deacon West

Chucky, where are you? Don't make me start using google or  watching the network news to get information.


----------



## ChuckyBox

Hi Folks,

There have been two recent developments of note:

1) Echostar notified the Appeals Court that the "final postjudgment motion" has been settled in the Texas court. This means that the Court can now set a briefing schedule for the appeal, and the proceedings can resume.

2) In the Georgia court, where TiVo is trying to pry some documents from the death grip Echostar has on them, the judge put the smackdown on Echostar. Dave Zatz has some details.


----------



## timckelley

> Judge Duffey also took the uncompromising step of ordering Echostar and Knearl to provide to him, for in camera review, all documents for which they claim attorney-client privilege. Both orders were to be executed by February 15th.


I will be interested in hearing an update on this on February 15th.


----------



## MichaelK

is it possibe Echostar refuses to show the documents entirely? I belive they lost the DNS case becasue they flat out refuses to show any proof at all that they did or did not try to qualify people?


----------



## timckelley

The Echostar lawyers are what give lawyers a bad name. They know they're guilty but will stoop to unethical tactics to avoid letting their client pay for their crime.


----------



## drew2k

Could Echostar be taking so long because they are manufacturing or doctoring documents that will support their position? Unless a whistleblower came forward, who would know? Or maybe the documents were destroyed already, and Echostar doesn't want to admit it?


----------



## MichaelK

drew2k said:


> Could Echostar be taking so long because they are manufacturing or doctoring documents that will support their position? Unless a whistleblower came forward, who would know? Or maybe the documents were destroyed already, and Echostar doesn't want to admit it?


with echostar you never know....

they have been censured time and again by the courts for their lawyers questionable ethics.

I think they are somehwat more resticted this time since it's an outside firm involved and also it sounds like some of the lawyers from that firm have since left. So besides DISH distoring the truth (I wont say outrigh lie) , they would have to get a firm to distort the truth the same way, and then track down the lawyers that moved on and have them go with the same story. Not very likley (I would HOPE)


----------



## ChuckyBox

drew2k said:


> Could Echostar be taking so long because they are manufacturing or doctoring documents that will support their position? Unless a whistleblower came forward, who would know? Or maybe the documents were destroyed already, and Echostar doesn't want to admit it?


It would be incredibly risky to do any of that. There are a large number of documents, and they've all already been catalogued. There are multiple people from multiple firms who have seen the documents, and Judge Duffey has seen many of them himself when he did an _in camera_ review of the documents prior to his first order (later revised under an Appeals Court order). So any tampering is very likely to be discovered. And there is a big difference between using (and abusing) the legal system to your advantage, and getting yourself disbarred and thrown in prison for a client who can easily buy its way out of its problems.

Echostar is between a rock and a hard place here. The Merchant and Gould opinion is the only thing standing between them and triple damages and (probably) an enforced injunction. It is probably the strongest point in their appeal, and they've already made a big fuss over it with the court. So they can't drop it from their case, but if they give TiVo documents that undermine its credibility, they will have created an extremely unsympathetic court, to put it mildly.

But, knowing Echostar, they will fight bravely on, delaying as much as possible, continuing to fake their way through until the bitter end.


----------



## Deacon West

timckelley said:


> I will be interested in hearing an update on this on February 15th.


Yeah, we all want to know if the executions took place by the 15th.


----------



## yunlin12

> Both orders were to be executed by February 15th.


thought I read "Both were to be executed by February 15th.", and thinking hmmm E* and its lawyers, not a bad lineup for the firing squad.


----------



## jmoak

Okey Dokey... it's the afternoon of the 15th.

What's the word?


----------



## timckelley

Please tell me that Echostar has been smacked down, hard, by the judge.


----------



## ChuckyBox

jmoak said:


> Okey Dokey... it's the afternoon of the 15th.
> 
> What's the word?


Echostar filed the documents they were required to file. It is too soon to tell if that will satisfy the judge or TiVo. We also don't know (and maybe never will know) if any of this did TiVo any good.


----------



## peteypete

ChuckyBox said:


> Echostar filed the documents they were required to file. It is too soon to tell if that will satisfy the judge or TiVo. We also don't know (and maybe never will know) if any of this did TiVo any good.


How do you know? and can we see them?


----------



## jmoak

Thanks Chucky.


----------



## MichaelK

ChuckyBox said:


> Echostar filed the documents they were required to file. It is too soon to tell if that will satisfy the judge or TiVo. ....


Are you saying that Echostar handed in some documents and it's still not clear if they included everything requested?

(I think that's what you mean but i can be dense at times-LOL)


----------



## ChuckyBox

MichaelK said:


> Are you saying that Echostar handed in some documents and it's still not clear if they included everything requested?
> 
> (I think that's what you mean but i can be dense at times-LOL)


The judge required that two particular people file affidavits as to what documents they have given to TiVo, what documents another party has given to TiVo, and for what documents they claim privilege. Those affidavits were filed with the court today, with only minor sidestepping. Depending on what the judge is looking for, these may be good enough.

The court also required delivery to the court of all the documents for which privilege was claimed. I do not know if those documents were delivered, but I assume they were. The judge wiil review all of those documents and decide if any of those should be turned over to TiVo. The rule is that if a document was communicated to Echostar, or references a communication with Echostar, then TiVo gets to see it.

Pete, I have a PACER account that lets me download court documents (if they aren't sealed). There isn't much to see, and it would be a bit hard to post it all -- the list of privileged documents is 39 pages long.


----------



## dswallow

ChuckyBox said:


> Pete, I have a PACER account that lets me download court documents (if they aren't sealed). There isn't much to see, and it would be a bit hard to post it all -- the list of privileged documents is 39 pages long.


If you care to download whatever you can and email it to me, I'll place it online as well as provide a sumamry post with links to everything.


----------



## peteypete

ChuckyBox said:


> The judge required that two particular people file affidavits as to what documents they have given to TiVo, what documents another party has given to TiVo, and for what documents they claim privilege. Those affidavits were filed with the court today, with only minor sidestepping. Depending on what the judge is looking for, these may be good enough.
> 
> The court also required delivery to the court of all the documents for which privilege was claimed. I do not know if those documents were delivered, but I assume they were. The judge wiil review all of those documents and decide if any of those should be turned over to TiVo. The rule is that if a document was communicated to Echostar, or references a communication with Echostar, then TiVo gets to see it.
> 
> Pete, I have a PACER account that lets me download court documents (if they aren't sealed). There isn't much to see, and it would be a bit hard to post it all -- the list of privileged documents is 39 pages long.


Are the "smoking gun" docs, ie statements by lawyers hired by Echostar that show that infringement did exist, one of the docs released to court?


----------



## MichaelK

peteypete said:


> Are the "smoking gun" docs, ie statements by lawyers hired by Echostar that show that infringement did exist, one of the docs released to court?


I believe Tivo is under the impression that such a document does exist and it's in the pile that Echostar claims as privileged. So if such a "smoking gun" exists the judgelikelyy has it in his hand now.

Then if I further understand chuckybox the judge is going through all those docs that were claimed as privileged and if they pertain to Tivo's case he will give it to them to be used in the court in Texas.

(chuckybox- feel free to correct or otherwise explain how i'm completely wrong- LOL)

Another interesting thing to me is that means that in theory at this juncture Echostar has either given everything to Tivo or handed it all to the Judge to decide if Tivo gets it or not. But with Echostar's reputation I do have to wonder if there aren't other documents that they are hiding. I mean- didn't some legal documents related to charges against the Clinton's "disappear" for some months and then they magically reappeared in the fridge next to Bill's chocolate cake or something? So if cheesy stuf like that happens at the upper levels of our government, I can only imagine what happens at a business with what seem to be the lowest levels of legal morals like Echostar.


----------



## ChuckyBox

MichaelK said:


> I believe Tivo is under the impression that such a document does exist and it's in the pile that Echostar claims as privileged. So if such a "smoking gun" exists the judgelikelyy has it in his hand now.


It isn't clear if there is some single document that qualifies as a smoking gun -- a document like, for instance, something showing the M&G lawyers tailoring their "opinion" to suit Echostar's needs. It is possible that such a conclusion would be drawn by considering the whole body of evidence, rather than a single document. Whatever is there, Echostar has really, really fought discovery on these documents.



> Then if I further understand chuckybox the judge is going through all those docs that were claimed as privileged and if they pertain to Tivo's case he will give it to them to be used in the court in Texas.


It isn't a matter of whether they pertain to TiVo's case -- they all do that -- but if a document was communicated to Echostar or references a communication with Echostar, then TiVo is entitled to see it.


----------



## MichaelK

ChuckyBox said:


> ....
> 
> It isn't a matter of whether they pertain to TiVo's case -- they all do that -- but if a document was communicated to Echostar or references a communication with Echostar, then TiVo is entitled to see it.


OH- thanks. Now the lightbulb is kicking in over my head!

So tivo is looking to find written evidence of out what the outside lawyers told E*.

WHy couldn't Tivo just ask those lawyers under oath if they ever told E* that they could be infringing and if the lawyers changed their written opinions based upon comments from E*?Wouldn't asking the few lawyers involved a few questions like that get to the heart of the matter much quicker?

Serious real world question- can you not trust the lawyers to answer truthfully so you have to get the written proof? Or are you not allowed to ask lawyers about their communications on the stand (but somehow can get relevent written communication)?


----------



## MichaelK

Chuckybox- one last question. Thank's for your time explaining-

Do lawyers routinely make transcripts or notes of verbal conversations?


----------



## jfh3

ChuckyBox said:


> Whatever is there, Echostar has really, really fought discovery on these documents.


Which is why this is so interesting. Either it's going to be something really good (e.g. beneficial to Tivo) or it will be "ho hum", in which case people will wonder if Echostar actually produced everything they were supposed to.

Think about it - as questionable as Echostar's legal tactics are - why would they have gone this far to withhold these docs if they weren't essentially the smoking gun that Tivo thinks they are?


----------



## drew2k

Two weeks later and still nothing new from the courts?


----------



## dswallow

drew2k said:


> Two weeks later and still nothing new from the courts?


There's nothing speedy going on here. Move along.


----------



## ChuckyBox

drew2k said:


> Two weeks later and still nothing new from the courts?


The appeals court has set a due date for Echostar's brief: April 17. As near as anyone can tell, TiVo's brief will be 40 days after that, then Echostar's reply is another 40 days, and then TiVo's reply is 14 after that. Beyond that, the schedule becomes even more unclear. I don't know enough about appeals court procedure to know what the likely scenarios are. It's likely that there will be a hearing, but I think the judges could make a ruling on the briefs.

Anyway, don't hold your breath. In April we might get a look at Echostar's case.

As for the documents, there has been no further action since the 15th. Presumably the judge will rule on whether TiVo should get more of the docs, but it could take a few weeks for him to review them and make a ruling. I imagine TiVo will wait for that ruling before they try anything else.

I had a look at the list of documents. I didn't see any phone logs (which all lawyers keep for billing purposes) or indications of emails or letters in which M&G asked for, or Echostar communicated, a lot of the information that must have been exchanged between them, so apparently it all just magically appeared at M&G's offices. I don't know if that stuff was turned over earlier and therefore not part of the lists Echostar filed, of if maybe it's all in there but not well described -- there isn't a lot of detail. Or perhaps those docs fell outside the original subpeona, though I can't see how that would be. I would think the individual phone logs, at least, would be in there even if they were summarized in the billing statements (that were included).

Anyway, I'm sure TiVo's lawyers know what they're doing. If they think Echostar is holding back, we'll hear about it soon enough.


----------



## drew2k

ChuckyBox said:


> The appeals court has set a due date for Echostar's brief: April 17. As near as anyone can tell, TiVo's brief will be 40 days after that, then Echostar's reply is another 40 days, and then TiVo's reply is 14 after that. Beyond that, the schedule becomes even more unclear. I don't know enough about appeals court procedure to know what the likely scenarios are. It's likely that there will be a hearing, but I think the judges could make a ruling on the briefs.
> 
> Anyway, don't hold your breath. In April we might get a look at Echostar's case.


Thanks for the info. If I input correctly to Excel, the significant upcoming dates are:

04/17/2007 -- Echostar Brief due
05/27/2007 -- TiVo Brief due
07/06/2007 -- Echostar's response due
07/20/2007 -- TiVo response due

I guess it will be the end of summer before we have a final decision! That's crazy!


----------



## dswallow

drew2k said:


> Thanks for the info. If I input correctly to Excel, the significant upcoming dates are:
> 
> 04/17/2007 -- Echostar Brief due
> 05/27/2007 -- TiVo Brief due
> 07/06/2007 -- Echostar's response due
> 07/20/2007 -- TiVo response due
> 
> I guess it will be the end of summer before we have a final decision! That's crazy!


Just imagine if this was how the typical case on _Boston Legal_ progressed.


----------



## mtchamp

http://www.investorvillage.com/smbd.asp?mb=3928&mn=5154&pt=msg&mid=1742550

ORDER DIRECTING that Echostar and Homer Knearl SHOW CAUSE by 3/30/07, why the following documents should not be produced: MG PRIV 16, 27, 32-35, 37, 55, 68, 69, 72, 73, 75, 85, 88, 95, 105, 177, 179, 180, 271, 274, 276, 287, 291, and 305. Echostar or Knearl must state in detail for each document the privilege asserted, and the grounds for that privilege, including a description of the identity and role of each author, recipient, cc recipient, or bcc recipient of the document. IT IS FURTHER ORDERED that if any portion of the above documents was submitted to the Court in redacted form, unredacted copies be provided for in camera review by 3/30/07. These documents shall be marked in such a way as to allow the Court to discern easily which portions were previously redacted. Signed by Judge William S. Duffey Jr. on 3/22/07. (kt) (Entered: 03/22/2007)


----------



## ZeoTiVo

mtchamp said:


> These documents shall be marked in such a way as to allow the Court to discern easily which portions were previously redacted. Signed by Judge William S. Duffey Jr. on 3/22/07. (kt) (Entered: 03/22/2007)


now were cooking. Thanks for the info :up:


----------



## timckelley

This process is too SLOOOOOWWWWWW.


----------



## BlackBetty

pay up already Echostar!!!! lol


----------



## peteypete

The smoking gun will not be buried!

Gotta be some good docs for Tivo if Echostar is fighting so hard on this.


----------



## ChuckyBox

peteypete said:


> The smoking gun will not be buried!
> 
> Gotta be some good docs for Tivo if Echostar is fighting so hard on this.


Echostar is in a bit of a tough spot here. Its briefing to the US Court of Appeals is due on 4/17. If it continues to harp on how unfair it was that it was denied the right to introduce the M&G letter, and TiVo manages to discredit the letter, Echostar is dead. But if Echostar minimizes the letter in its brief, its case becomes much weaker, and TiVo will key on the obvious backpedaling and have a good argument to have the injunction stay lifted.

The tricky bit is that Echostar will likely have to make its decision on what to argue before it knows what additional documents it will have to turn over to TiVo. But TiVo may well get the documents, and even (finally) depose the lawyer before its brief is due.

Charlie Ergen, being a gambler of the "never fold" variety, will predictably have the lawyers go for broke. He undoubtedly assumes that he can always settle later. And he may be right. But once that brief is filed, the price of settlement could go up dramatically.


----------



## samo

> Charlie Ergen, being a gambler of the "never fold" variety, will predictably have the lawyers go for broke. He undoubtedly assumes that he can always settle later. And he may be right. But once that brief is filed, the price of settlement could go up dramatically.


That is an excellent assessment of Charlie's character and probably the major reason why TiVo decided to go after Echostar in precedent setting lawsuit. But Charlie is also known for having a backup plan. I been told that some of the E* employes are beta testing a software release that avoids using 2 remaining TiVo claims and would allow E* to continue DVR service in case TiVo wins the injunction.


----------



## peteypete

samo said:


> That is an excellent assessment of Charlie's character and probably the major reason why TiVo decided to go after Echostar in precedent setting lawsuit. But Charlie is also known for having a backup plan. I been told that some of the E* employes are beta testing a software release that avoids using 2 remaining TiVo claims and would allow E* to continue DVR service in case TiVo wins the injunction.


I agree Charlie plays hardball till the end and he know he's exhausted all avenues.

Regarding the backup plan, it would still mean that Echostar would owe infringement up until the new software was deployed (which by now may be over 150 million) and most likely it's clunky and expensive.

It's more of a tactic to "blunt" the final settlement terms. E* can't go in admitting that it has NO backup plan and that their boxes are in threat of becoming extremely crippled and customers screaming for a fix and dropping in droves.

The parallels to the blackberry case are astounding. In the end Rimm settled for an astronomical sum and their "backup" never saw the light of day.


----------



## ChuckyBox

samo said:


> I been told that some of the E* employes are beta testing a software release that avoids using 2 remaining TiVo claims and would allow E* to continue DVR service in case TiVo wins the injunction.


All of the claims of the TiVo patent that Echostar was found to infringe are still valid in the eyes of the federal court. Given that seven of the nine claims were for hardware, it is hard to see how a software fix is going to change the infringement status of the boxes. But who knows what they'll come up with. It will be up to Echostar to prove to the Texas court that they no longer infringe.


----------



## MichaelK

ChuckyBox said:


> All of the claims of the TiVo patent that Echostar was found to infringe are still valid in the eyes of the federal court. Given that seven of the nine claims were for hardware, it is hard to see how a software fix is going to change the infringement status of the boxes. But who knows what they'll come up with. It will be up to Echostar to prove to the Texas court that they no longer infringe.


not a programmer.
Not a lawyer.

So would it be possible to make a software update which basically doesn't use the offending hardware parts (theoretically) and then it would be non-infringing? Or is the mere fact that the infringing hardware is physically there a problem even if it is never used?

made up example= if amd got sued by intel that their dual core cpu's infringed an intel patent- could amd just update the bios in those pc's so that only one core worked at a time? Would that be a way to make those chips legal?

Again no idea of if that's even possible in this case but I'm wondering about how such a thing would work.


----------



## Justin Thyme

Michael- it would not remove the fact that the physical mechanism exists, and it is an embodiement of intellectual property that Echostar does not own. That is, Tivo's properity is in a couple million units, in a physical form. Not a lawyer, but I suppose they could sue to demand the return of such infringing parts for proper destruction. It's a huge amount of leverage. Echostar felt they could get away with bullying a small company, and it didn't work. Tough break. They sold something that wasn't theirs. So Tivo can say, fine. Find all our stuff that you took and return it.

I don't understand much about such court machinations. In this appeal process, is there any possibility that an appeal court would, though unsolicited by either party, rule that the damage award was too small/ too big, or that other remedies were too small/ too big?

Chucky, what's your reading of how wild this could get?

My take on after the award came out was that it would be like it has been so far- a long inevitable phase of failed challenges. After this bit, then finally years later paying up, but then the only really interesting part being the negotiated deal regarding how much Dish would / would not enter into partnership.


----------



## swinca

Wow, if I had known all of this last month, I might not have signed up for the Dish. Having said that, I can also say that I am impressed with some of the things their DVR does. Like being able to watch recorded stuff on 2 TVs with 1 DVR, even though what's shown on the 2nd TV will not be in HD. Tivo needs to steal that feature from them.


----------



## ChuckyBox

Justin Thyme said:


> I don't understand much about such court machinations. In this appeal process, is there any possibility that an appeal court would, though unsolicited by either party, rule that the damage award was too small/ too big, or that other remedies were too small/ too big?
> 
> Chucky, what's your reading of how wild this could get?


Typically a court will not take action that isn't requested by one party or another. An appeals court is asked to correct a lower court's mistakes of law, which usually means reversing that court's decision and sending the case back to them to be resolved under the the guidelines set by the higher court. In this case Echostar will try to find an error that is serious enough that it will cause appeals court to overturn the jury's verdict and send the case back to Texas for a new trial. Anything less than that (i.e., anything that simply instructs the judge to revise the basis for his judgement) is going to be a significant setback for them. They will also try to get the injunction overturned, obviously. TiVo will likely ask for the Texas court to reconsider its request for triple damages and also a ruling of literal infringement that was denied early on.

Statistically, the most likely outcome is for the lower court's decisions to be upheld. But in this case the issue of the M&G opinion letter is likely to produce some kind of ruling from the appeals court. It will be interesting to see how the parties argue the issue.


----------



## DCIFRTHS

ChuckyBox said:


> ... But in this case the issue of the M&G opinion letter is likely to produce some kind of ruling from the appeals court. ...


I have been following this thread with great interest. There is one thing still unanswered for me. I have searched the thread, but I can't find an answer...  : What does M&G stand for?


----------



## kido

Merchant & Gould, the law firm that wrote an opinion letter for echostar stating they don't infringe upon tivo's patent.


----------



## DCIFRTHS

kido said:


> Merchant & Gould, the law firm that wrote an opinion letter for echostar stating they don't infringe upon tivo's patent.


Thanks!


----------



## timckelley

We need this case to be finalized as follows:

Echostar loses
Echostar fined millions of dollars
Echostar's patent work around ruled illegal
Echostar forced to close up chop, and all their stock plummetting to $0 per share as a result
The executive staff of Echostar and all their lawyers personally fined $millions
The executive staff of Echostar and all their lawyers all sent to prison and forced to stay there for many years


----------



## MichaelK

timckelley said:


> We need this case to be finalized as follows:
> 
> Echostar loses
> Echostar fined millions of dollars
> Echostar's patent work around ruled illegal
> Echostar force to close up chop, and all their stock plummetting to $0 per share as a result
> The executive staff of Echostar and all their lawyers personally fined $millions
> The executive staff of Echostar and all their lawyers all sent to prison and forced to stay there for many years


I'm cool if E* loses. Gets fined millions. And Ergen and his lawyers get personally fined TONS for attampting to manipulate the legal system. They really give a bad name to lawyers the shinanegans they play...


----------



## HDTiVo

timckelley said:


> We need this case to be finalized as follows:
> 
> Echostar loses
> Echostar fined millions of dollars
> Echostar's patent work around ruled illegal
> Echostar force to close up chop, and all their stock plummetting to $0 per share as a result
> The executive staff of Echostar and all their lawyers personally fined $millions
> The executive staff of Echostar and all their lawyers all sent to prison and forced to stay there for many years


Then who will there be to put the check in the mail?


----------



## timckelley

HDTiVo said:


> Then who will there be to put the check in the mail?


All their assets could be siezed and deeded over to TiVo.


----------



## ZeoTiVo

MichaelK said:


> I'm cool if E* loses. Gets fined millions. And Ergen and his lawyers get personally fined TONS for attampting to manipulate the legal system. They really give a bad name to lawyers the shinanegans they play...


While being complete shysters happy to manipulate the system they have done nothing actionable that I am aware of save what the courts have already done in demanding the unsent docs or reasons why they are priviliged.

the scenario should be

*echostar looses
* they are fined millions (but just readily available cash to E*)
* the injunction is put in place
* they loose money from mad subscribers and stock goes down
* stockholders oust the executives involved


----------



## dswallow

ZeoTiVo said:


> *echostar looses


Echostar always plays fast and loose; that'll be nothing new.


----------



## MichaelK

ZeoTiVo said:


> While being complete shysters happy to manipulate the system they have done nothing actionable that I am aware of save what the courts have already done in demanding the unsent docs or reasons why they are priviliged.
> 
> the scenario should be
> 
> *echostar looses
> * they are fined millions (but just readily available cash to E*)
> * the injunction is put in place
> * they loose money from mad subscribers and stock goes down
> * stockholders oust the executives involved


I'm not talking specifically JUST about this case. But give them time to show their hand.

I also am fairly certain (in my mind) that some scummy thing was already done - a documnet shreadded or perhaps an off the record undocumented telephone call years ago where perhaps hypothetically a partner in M&G called Eren directly and said "dude you are on crack- you completely infringed, we'll try to bail you out but serisouly you better hope tivo goes belly up becasue you can never win- now let me go write your letter" Such a thing will never show up- but I dont doubt for a minute something scummy occured.


----------



## HDTiVo

timckelley said:


> All their assets could be siezed and deeded over to TiVo.


And then there will be no ongoing royalties for using the patent(s). 

I thought we are supposed to get all frenzied up about hundreds and hundreds of millions. You only want millions. Couldn't that put TiVo out of business?


----------



## ZeoTiVo

dswallow said:


> Echostar always plays fast and loose; that'll be nothing new.


nominee - best Typo zinger 2007


----------



## ZeoTiVo

MichaelK said:


> I also am fairly certain (in my mind) that some scummy thing was already done


Oh I agree with you on that, hence called them shysters. It is just that it would take a large team to get the goods on them most likely. Unless entire 401Ks go missing I doubt we would see such resources employed.

"obvious to us all" evidence is just not a good way to go in our legal system unfortunately


----------



## timckelley

HDTiVo said:


> And then there will be no ongoing royalties for using the patent(s).
> 
> I thought we are supposed to get all frenzied up about hundreds and hundreds of millions. You only want millions. Couldn't that put TiVo out of business?


Okay, for the sake of keeping TiVo profitable, rather than bankrupting EchoStar and putting it out of business, I propose that the courts force them to sell all their shares to TiVo for 1 cent per share. Echostar continues to thrive, but under TiVo ownership.


----------



## atmuscarella

Well I would hate to lose my Dish 510 DVR but I guess I could live with just my 2 Tivos and standard dish STBs. 

For any of you that don't know the term "What goes around comes around" really applies to dish network. Dish steel's DVR tech form TiVo and builds millions of DVRs and millions of people are stealing programing from them (dish network's encryption has been "hack" and their signal is basically available to anyone who is willing to steel it). 

Which brings me to what I wish had happened which is that TiVo had included their settlement the requirement for Dish to convert to "cable card" type encryption and forced them to open up their system. The FCC exempted dish and direct from the cable card requirement because of the costs - but given the state of dish's current encryption dumping it and switching to cable cards doesn't seem like it would hurt dish all that much anymore. 

Thanks,


----------



## hammer32

I hope the outcome is good for TiVo. The best possible thing I could imagine would be TiVo's being used by Dish (or again by DirecTV) but that doesn't seem too likely.


----------



## samo

timckelley said:


> Okay, for the sake of keeping TiVo profitable, rather than bankrupting EchoStar and putting it out of business, I propose that the courts force them to sell all their shares to TiVo for 1 cent per share. Echostar continues to thrive, but under TiVo ownership.


First, to buy anything it really helps to have money.  But if Dish loses an appeal I wouldn't exclude the possibility that :
1. if TiVo doesn't strike a licensing deal with Dish AND 
2. if Dish doesn't strike a licensing deal with Replay AND
3. if Dish can not come up with a solution to avoid injunction AND 
4. if Dish does not want to purchase Replay division from D&M for some reason
then
Dish will acquire the controlling interest in TiVo from mutual funds and investors. Poison pill that TiVo has has been greatly diluted and hostile takeover is possible if Dish decides to do so.
Of course Dish has so many much cheaper alternatives, that hostile takeover is probably on a bottom of the list, but Dish has money to do it. Or even simpler - stock swap with major TiVo investors.


----------



## BlackBetty

mtchamp said:


> http://www.investorvillage.com/smbd.asp?mb=3928&mn=5154&pt=msg&mid=1742550
> 
> ORDER DIRECTING that Echostar and Homer Knearl SHOW CAUSE by 3/30/07, why the following documents should not be produced: MG PRIV 16, 27, 32-35, 37, 55, 68, 69, 72, 73, 75, 85, 88, 95, 105, 177, 179, 180, 271, 274, 276, 287, 291, and 305. Echostar or Knearl must state in detail for each document the privilege asserted, and the grounds for that privilege, including a description of the identity and role of each author, recipient, cc recipient, or bcc recipient of the document. IT IS FURTHER ORDERED that if any portion of the above documents was submitted to the Court in redacted form, unredacted copies be provided for in camera review by 3/30/07. These documents shall be marked in such a way as to allow the Court to discern easily which portions were previously redacted. Signed by Judge William S. Duffey Jr. on 3/22/07. (kt) (Entered: 03/22/2007)


tomorrow is 3/30, anyword if Echostar has shown cause why the docs should not be produced?


----------



## peteypete

kido said:


> Merchant & Gould, the law firm that wrote an opinion letter for echostar stating they don't infringe upon tivo's patent.


Actually, I think the letter actually says that they DO INFRINGE and that's why it was buried. Because lawyers PAID for by Echostar said something they didn't like.


----------



## HDTiVo

BlackBetty said:


> tomorrow is 3/30, anyword if Echostar has shown cause why the docs should not be produced?


I hear they've decided to really put the screws to the Court and wait until the deadline (tomorrow...) 



peteypete said:


> Actually, I think the letter actually says that they DO INFRINGE and that's why it was buried. Because lawyers PAID for by Echostar said something they didn't like.


I think the letter reads:



> HOW THE HECK SHOULD WE KNOW? WHAT THE HECK IS A MEDIA SWITCH ANYWAY?
> 
> This letter should not be relied on for anything, unless its either never challenged or it is challenged and turns out to be upheld.


----------



## 1283

Let's see if Echostar will produce the documents on TiVo's Blue Moon Day.


----------



## BlackBetty

HDTiVo said:


> I hear they've decided to really put the screws to the Court and wait until the deadline (tomorrow...)


Was that sarcasm meant for me.... if it was, why?


----------



## HDTiVo

BlackBetty said:


> Was that sarcasm meant for me.... if it was, why?


Only a little bit towards the over anxiousness - with the deadline being 'tomorrow' - then I was mixing in the whole 'E* likes to play hardball' theme for the rest of the parody.

The 'annihilate E* and exile its people to the dark side of the moon while TiVo collects hundreds of millions of dollars the instant the smoking gun is turned over' theme didn't make it in there though.


----------



## timckelley

Today's the deadline. Hopefully the judge looks at their display of 'cause' (why they shouldn't show the docs), and laughs and says "You call this cause?" At this point, let us hope the expression on the judge's face turns from comical to serious, and that he then draws a gun, cocks the trigger, and says "Now are you going to turn over those docs, or am I going to pull this trigger?".

At that point, let us hope the sounds in that courtroom are that of a trickling sound: the sound of Echostar's lawyers peeing in their pants, and their quivvering hands turning over the documents.


----------



## dswallow

timckelley said:


> At that point, let us hope the sounds in that courtroom are that of a trickling sound: the sound of Echostar's lawyers peeing in their pants, and their quivvering hands turning over the documents.


The lawyers don't care. They get paid either way. They're probably getting bonuses to drag this out as long as they can and to wring every last ounce of possible delay out of the court.

What needs to happen is a serious slap in the form of a hugely enlarged award to punish them for their outlandish behavior throughout the trial.


----------



## Redux

dswallow said:


> What needs to happen is a serious slap in the form of a hugely enlarged award to punish them for their outlandish behavior throughout the trial.


What they believe is that they have nothing to lose. Take one outrageous shot after another. At the end of the day, Tivo because of its financial situation will have to take whatever setllement they offer.


----------



## ChuckyBox

samo said:


> Poison pill that TiVo has has been greatly diluted and hostile takeover is possible if Dish decides to do so.


Why do you say this? I've seen nothing that indicates that the provisions of the "Stockholder Rights Plan" have been weakened.


----------



## ChuckyBox

BlackBetty said:


> tomorrow is 3/30, anyword if Echostar has shown cause why the docs should not be produced?


As of right now, nothing has been posted to the docket. One presumes Echostar will file by the end of the day. But if it is late in the day when they file, we might not know about it before Monday when the court clerk gets it posted.


----------



## ChuckyBox

peteypete said:


> Actually, I think the letter actually says that they DO INFRINGE and that's why it was buried. Because lawyers PAID for by Echostar said something they didn't like.


No, the letter says they don't infringe, but the documentation TiVo seeks may show that the conclusion isn't supported by the analysis or that the opinion was tailored to suit Echostar's legal needs, rather than being an "objective" analysis. So it is the credibility of the document that is in doubt, not its content. That credibility isn't helped by the fact that Echostar commissioned an earlier analysis from another firm that purportedly did not produce an opinion (for reasons that are both unclear and disputed).


----------



## Budget_HT

ChuckyBox,

I really appreciate your fact-based contributions to this thread and others. Speculation is abundant in these forums at times, so it is nice to find posts from informed sources.


----------



## Bierboy

Budget_HT said:


> ChuckyBox,
> 
> I really appreciate your fact-based contributions to this thread and others. Speculation is abundant in these forums at times, so it is nice to find posts from informed sources.


+ Bierboy


----------



## timckelley

Yes, we have a number of experts here. For example, Edmund is our remote control expert.

ChuckyBox is our local TiVo/Echostar/lawsuit expert.


----------



## jmoak

Budget_HT said:


> ChuckyBox,
> 
> I really appreciate your fact-based contributions to this thread and others. Speculation is abundant in these forums at times, so it is nice to find posts from informed sources.


+ jmoak


----------



## BlackBetty

Budget_HT said:


> ChuckyBox,
> 
> I really appreciate your fact-based contributions to this thread and others. Speculation is abundant in these forums at times, so it is nice to find posts from informed sources.


+ chocolate betty


----------



## samo

ChuckyBox said:


> Why do you say this? I've seen nothing that indicates that the provisions of the "Stockholder Rights Plan" have been weakened.


Simple. In 2001 hostile takeover would require control of 68% of common shares that was theoretically impossible without Barton or Ramsey joining the "dark side". Today hostile takeover requires control of 54% of common shares that can be accomplished (for the right price of course) because 64% of TiVo common stock is help by institutional investors. I'm not suggesting that hostile takeover would be a smart or financially responsible move. Just stating a fact that it is possible and that Dish has enough cash and assets to do so. Of course it will never happen - Charlie is not stupid. But it is theoretically possible for Dish to take TiVo over even with poison pill. It is theoretically impossible for TiVo to take over Dish regardless of court decision.


----------



## BlackBetty

So no news if E* was able to show cause why they shouldn't produce the above mentioned documents?


----------



## drew2k

ChuckyBox said if EchoStar filed late Friday, the court clerk likely wouldn't have it entered until Monday, so we won't know until ... Monday.


----------



## Budget_HT

timckelley said:


> Yes, we have a number of experts here. For example, Edmund is our remote control expert.
> 
> ChuckyBox is our local TiVo/Echostar/lawsuit expert.


Edmund is also a highly-regarded resource here. I happen to use OneForAll remotes (including some factory remotes OEM'd by OFA, like Pioneer and Vizio) so between Edmund and Rob, I have exploited many undocumented capabilities of those remotes, without using JP-1.

I believe the OFA remotes are the best universal remote control bargain out there.


----------



## timckelley

Budget_HT said:


> Edmund is also a highly-regarded resource here. I happen to use OneForAll remotes (including some factory remotes OEM'd by OFA, like Pioneer and Vizio) so between Edmund and Rob, I have exploited many undocumented capabilities of those remotes, without using JP-1.
> 
> I believe the OFA remotes are the best universal remote control bargain out there.


Yes, thanks to Edmund, I purchased a OFA, which I would not have purchased were it not for his sage advice. He also helped me set it up with my devices.


----------



## peteypete

Any docs out yet? Someone posted something on Yahoo! Finance Tivo MB, but not sure how bona fide they are (or even what all the lawyer gibberish means!)


----------



## BlackBetty

This is what was posted on the yahoo finance TiVo message board. Consider the source and the date posted.....take with a grain of salt.



> IN THE UNITED STATES DISTRICT COURT
> FOR THE NORTHERN DISTRICT OF GEORGIA
> ATLANTA DIVISION
> 
> TIVO INC., A DELAWARE
> CORPORATION
> V.
> ECHOSTAR COMMUNICATIONS
> Civil Action No.:1:05cv2799 WSD
> CORPORATION, A NEVADA
> CORPORATION; ECHOSTAR DBS
> CORPORATION, A COLORADO
> CORPORATION; ECHOSTAR
> TECHNOLOGIES CORPORATION, A
> TEXAS CORPORATION; and
> ECHOSPHERE LIMITED LIABILITY
> COMPANY, A COLORADO LIMITED
> LIABILITY COMPANY
> 
> DECLARATION OF HOMER KNEARL
> 
> I, Homer Knearl, declare:
> 
> 1. I am a member of the bar of the State of Colorado (inactive as of January 1, 2007) and was, in late 2004 when the law firm Merchant & Gould was first retained in this matter, a partner in the Denver office of Merchant & Gould.
> Subsequently, and until March 31, 2006, I was a Senior Counsel with Merchant & Gould, working out of the firm's Atlanta office. Except where otherwise stated, I
> have personal knowledge of the facts set forth herein and, if called as a witness, I could competently testify thereto.
> 
> 2. Beginning in late 2004, Merchant & Gould was retained as outside counsel to EchoStar to provide advice on legal matters related to the pending litigation brought by TiVo, Inc. George C. Lewis and Tadd F. Wilson were associates in Merchant & Gould's Denver office, and assisted me in this work.
> 
> 3. In the course of our work we bad communications with EchoStar, culminating in the delivery of four opinions finding that EchoStar's devices did not infringe U.S. Patent No. 6,233,389 (the "'389 patent"). The primary opinions were dated May 19, 2005 and May 27, 2005, and two brief update opinions were dated December 28, 2005. I understand that all four of these non-infringement opinions,
> together with other documents reflecting communications between Merchant & Gould and EchoStar, have been previously produced in this litigation.
> 
> 4. To the extent that we analyzed issues other than non-infringement of the '389 patent, I did not communicate or authorize anyone else to communicate the results of that analysis to EchoStar, either orally or in writing.
> 
> 5. To the extent that we prepared draft opinion letters before May 19, 2005, we did not send those draft letters to EchoStar.' In particular, I did not send or authorize anyone else to send any opinion letter until it was in final form, bearing my signature and the signature of my Merchant & Gould partner Tim Scull. Thus, 1 do not believe that anyone ever sent to EchoStar the documents labeled MG PR1V 27 (a March 31, 2005 draft letter), MG PRIV 69 (a December 20, 2005 draft letter), MG PRIV 271 (a January 31, 2005 draft letter), or MG PRIV 274 (an annotated and partial April 25, 2005 draft letter). Nor did I ever discuss
> with EchoStar (or authorize anyone else to discuss with EchoStar) the contents of those draft opinions.
> 
> 6. Not every document that appears to be one of our opinions in its final form is such a document. In particular, I believe that MG PR1V 68 is a misprinted
> copy of our May 27, 2005 opinion letter, prepared when documents were collected and printed for production in this litigation. The document closely resembles our final opinion dated May 27, 2005, but it is not the same as that final opinion. In particular, the dates and the order of the pages are wrong in the portion of Document 68 that I understand is being printed on pink paper in a copy for the (' We did send EcboStar a memorandum that we had prepared describing EchoStar's systems, and significant portions of that memorandum were later incorporated into the opinions. I understand that memorandum has been produced.) Court. I understand that the opinion Merchant & Gould did send to EchoStar dated May 27, 2005 has been produced in the litigation. By contrast, Document 68 was not communicated to EchoStar, and it does not reference, describe, or disclose a communication with EchoStar.
> 
> 7. When first engaged by EchoStar on this matter, I participated in a telephone call with one (or possibly two) of the associates who assisted me in the matter, and with one (or possibly two) associates at the law firm of Morrison & Foerster. I understood that a Morrison & Foerster team led by Harold McElhinny was trial counsel to EchoStar in the litigation against TiVo. I understand that Jason Crotty was, during the relevant time, a litigation associate at Morrison & Foerster working with Mr. McElhinny. The notes labeled MG PRIV 88 are not mine, but
> they reflect the conversation on that call. Nobody from EchoStar participated in that telephone call. Nor did I convey or authorize anyone to convey to EchoStar the substance of the communication on that call.
> 
> 8. During the telephone call, a Morrison & Foerster associate outlined some litigation-related considerations and provided an overview of the status of the pending litigation between EcboStar and TiVo. Document 88 also suggests that we discussed on that call another piece of pending litigation, which was relevant
> for a different matter Merchant & Gould was handling and not for the TiVo litigation or the '389 patent.
> 
> 9. The document labeled MG PRIV 276 discusses my availability to discuss technical design information with "David," who I believe is David St. John-Larkin, an in-house attorney at EchoStar. This e-mail was not sent to anybody at EchoStar, and I do not know that anybody ever passed on to EchoStar the information in it. I do know that I never participated in any video or telephone conference as contemplated in this e-mail. Thus, this document does not constitute a communication with EchoStar and does not reference, describe, or discuss any communication that occurred with EchoStar.
> 
> 10. I have reviewed the documents subject to the Order to Show Cause and see that some are a-mails internal to Merchant & Gould. I did not forward any of those a-mails to EchoStar, nor authorize anyone else to do so. Nor did I communicate the substance of those e-mails orally to EchoStar.
> 
> 11. The document labeled MG PRIV 305 is a compilation of other documents. Some pieces of MG PRIV 305, such as the first page, are forms that were internal to Merchant & Gould and used by our accounting department. Some pieces of the document, such as the second page, refer to work unrelated to the TiVo litigation or the '389 patent. And some pieces of the document are the
> 
> invoices that were sent to EchoStar for the TiVo-related matter. Those portions of MG PRIV 305 that were sent to EchoStar and that relate to the TiVo patent have already been produced in the litigation, however. (See, e.g., T1000-090321-61.) MG PRIV 305, as a single document, was never sent to EchoStar.
> 
> I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct.
> 
> DATED this 30th day of March 2007.
> 
> /s/ Homer Knearl


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## drew2k

Lots of typos in that piece obtained from the Yahoo forums ...

What I don't see is how that is a response to the order to show cause why documents were not produced. Is this lawyer saying they weren't produced because he doesn't think all of the items mentioned as MG PRIV XXXX actually exist, since he claims only four opinion letters were actually delivered to EchoStar?


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## MichaelK

drew2k said:


> Lots of typos in that piece obtained from the Yahoo forums ...
> 
> What I don't see is how that is a response to the order to show cause why documents were not produced. Is this lawyer saying they weren't produced because he doesn't think all of the items mentioned as MG PRIV XXXX actually exist, since he claims only four opinion letters were actually delivered to EchoStar?


my layman understanding.

The issue is if the lawyer (MG) decided that the patent was non infringing on their own or if Echostar prodded them into saying that.

The guy is trying to day that he had no contact with echostar so the opinion's he gave were his own and not something that echostar told him to say.

So he might have changed his mind- apparently their were 4 drafts so he changed his way of seeing things to some degree- but as long as echostar didn't ASK him to change his mind then his opinion still counts to show that as far as echostar knew the device was non-infringing because their expert never told them it was.

We do expert testimony work in my firm- so I have some understanding of what goes on (not a legal expert though). If I understand correctly- we can and do have candid conversations with lawyers about their cases- but they can ignore our opinion and shop for someone who agrees with the case and as long as they don't tell their client we said the case is crap then they can proceed and no one ever knows we told the lawyer the case is crap. If on the other hand we talk to the client directly then that's open knowledge in court. Also there's some ability for the lawyer to have "attorney client" privilege and tell the client we what we said but that doesn't have to be public- except I think again as in this case if it shows echostar should have known their thing infringed.

I find it a little odd that the guy made 4 drafts over a matter of months (item #5) and never had any conversations with E* about his opinion during that period. Why make drafts if not to solicit feedback- who's feedback was he getting? If it was his partner's wouldn't they just talk it over- why would it take several months if it was internal feedback. Of course these guys are pro's at defending scum so they know not to ever show proof that feedback from E* was solicited....


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## HDTiVo

MichaelK said:


> my layman understanding.


All those things seem to have occured in 2005, so for the purposes of them, any possible notice started then. Probably makes a difference.


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## ChuckyBox

samo said:


> Simple. In 2001 hostile takeover would require control of 68% of common shares that was theoretically impossible without Barton or Ramsey joining the "dark side". Today hostile takeover requires control of 54% of common shares that can be accomplished (for the right price of course) because 64% of TiVo common stock is help by institutional investors.


That doesn't have anything to do with the poison pill, which kicks in when someone acquires more than 15% of the stock (30% if the somebody is AOL). Even if you could somehow acquire 50+% of the stock, the board could activate the pill and dilute you out of control before you could force a vote.

The pill doesn't stop a hostile takeover, it just makes it more expensive. But given what TiVo's board would probably want for the company in a "friendly" buyout, it might actually be the cheaper way to go.


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## ChuckyBox

drew2k said:


> What I don't see is how that is a response to the order to show cause why documents were not produced. Is this lawyer saying they weren't produced because he doesn't think all of the items mentioned as MG PRIV XXXX actually exist, since he claims only four opinion letters were actually delivered to EchoStar?


The letter from Knearl is only one of several documents produced in response to the judge's order. Echostar submitted a 46 page brief that detailed their reasoning on each of the documents the judge itemized. There were also statements by Knearl and a couple of other attorneys. The judge will have to sort through all of it and decide what is privileged and what goes to TiVo.


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## timckelley

Hopefully the judge says it ALL goes to TiVo.


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## samo

ChuckyBox said:


> That doesn't have anything to do with the poison pill, which kicks in when someone acquires more than 15% of the stock (30% if the somebody is AOL). Even if you could somehow acquire 50+% of the stock, the board could activate the pill and dilute you out of control before you could force a vote.
> 
> The pill doesn't stop a hostile takeover, it just makes it more expensive. But given what TiVo's board would probably want for the company in a "friendly" buyout, it might actually be the cheaper way to go.


Exactly what I said. Except in 2001 TiVo board could dilute your holding to the point that you would have to acquire 68% of common stock before you can get a control. So takeover was not possible even theoretically. Today that number is 54% and it is theoretically possible, but obviously it is a nonsense. "Friendly" merger would be much cheaper (TiVo board will never reject millions they stand to make if merger was offered by E*).
What I hope the final outcome from this trial would be is a development contract similar to Comcast to port TiVo software to E* hardware. That would be win-win-win situation for all parties involved. TiVo will get money and huge jump in market share, E* will get out of the legal bind with relatively small loses and Dish customers will get a choice of software they can use. Considering how Charlie settled Gemstar lawsuit, I would give this outcome better than 50% chance (if E* loses their appeal of course).


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## MichaelK

ChuckyBox said:


> The letter from Knearl is only one of several documents produced in response to the judge's order. Echostar submitted a 46 page brief that detailed their reasoning on each of the documents the judge itemized. There were also statements by Knearl and a couple of other attorneys. The judge will have to sort through all of it and decide what is privileged and what goes to TiVo.


ChuckyBox-

since you haven't corrected me it seems my layman understanding of the thing as posted above is sort of true- the issue is:
was E* told by the MG that the thing infringed but asked MG not to say so?

But let's assume for a minute that E* never gave feedback to MG to say it was non-infringing. Basically anyone with a brain knows that was what E* was paying MG to say. So my question is does it matter if MG changed their mind "on their own"?

Say for example MG called 10 computer scientists for expert advice and all 10 said it was infringing but then MG called an 11th guy who just graduated from high school last week "and knows all about tivo and dvr's he's had one since his freshman year"- and that kid said that it was not infringing- Is there any legal repercussion if MG ignores the 10 experts and goes with the latest "expert" just so they can write the letter that E* clearly wanted?

E* wouldn't know the letter was based on BS so you really couldn't hold it against them- right?

But would the lawyer have to answer to the judge or the state bar or anyone for opinion shopping?

Not saying this is what happened (but who knows?)- but I am wondering what would happen in the real world if someone acted that way?


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## ZeoTiVo

samo said:


> What I hope the final outcome from this trial would be is a development contract similar to Comcast to port TiVo software to E* hardware. That would be win-win-win situation for all parties involved. TiVo will get money and huge jump in market share, E* will get out of the legal bind with relatively small loses and Dish customers will get a choice of software they can use. Considering how Charlie settled Gemstar lawsuit, I would give this outcome better than 50% chance (if E* loses their appeal of course).


I agree with you Samo - the revenue from the advertising base those new subscriptions would add is alone worth TiVo making the deal. Business is business at the end of the day, though it will be great to see TiVo negotiating from a strong posistion for once.


----------



## ChuckyBox

MichaelK said:


> ChuckyBox-
> 
> since you haven't corrected me it seems my layman understanding of the thing as posted above is sort of true- the issue is:
> was E* told by the MG that the thing infringed but asked MG not to say so?


I don't think it is this clear cut. When Judge Duffey reviewed the documents last year, he did not find any specific evidence of that level of fraud or deception (though he may not have seen all the documents). What he did comment on was the large number of drafts and iterations of the opinion. That suggests to the skeptical observer that the M&G opinion evolved (with or without input from Echostar) to give Echostar the opinion they wanted while very carefully skirting problematic issues of infringement. If TiVo were to have all of the drafts, they could trace the evolution of the opinion and try to demonstrate to judge or jury that the opinion was not credible. Or, TiVo could try to connect changes to the document with times of contact between M&G and Echostar. That kind of thing. I don't know all of the possibilities, but you get the idea -- TiVo wants to discredit the opinion.



> Say for example MG called 10 computer scientists for expert advice and all 10 said it was infringing but then MG called an 11th guy who just graduated from high school last week "and knows all about tivo and dvr's he's had one since his freshman year"- and that kid said that it was not infringing- Is there any legal repercussion if MG ignores the 10 experts and goes with the latest "expert" just so they can write the letter that E* clearly wanted?


If TiVo knew this had happened, they could probably draw it out during a deposition or on the witness stand. That would tend to kill the credibility of the opinion.



> E* wouldn't know the letter was based on BS so you really couldn't hold it against them- right?


If you could show that they knew it was BS, or should have known, then that would tend to demonstrate willfulness. The defense Echostar seeks all comes down to what they resonably believed (in the eyes of the law) about their infringement. If they, in good faith, believed they were not infringing, then it is hard to find willfulness.


----------



## MichaelK

ChuckyBox said:


> I don't think it is this clear cut. When Judge Duffey reviewed the documents last year, he did not find any specific evidence of that level of fraud or deception (though he may not have seen all the documents). What he did comment on was the large number of drafts and iterations of the opinion. That suggests to the skeptical observer that the M&G opinion evolved (with or without input from Echostar) to give Echostar the opinion they wanted while very carefully skirting problematic issues of infringement. If TiVo were to have all of the drafts, they could trace the evolution of the opinion and try to demonstrate to judge or jury that the opinion was not credible. Or, TiVo could try to connect changes to the document with times of contact between M&G and Echostar. That kind of thing. I don't know all of the possibilities, but you get the idea -- TiVo wants to discredit the opinion.
> 
> ....


I dont think anyone can say that it's clear cut- as I said above even I know that if I'm the lawyer not to have any evidence that I was steered by my cleint. But I'm guessing it's what tivo suspects and why they want all the documents to try and show that to show the willfull intention.

As I wrote above- I too find it odd that there are 4 drafts over 4 months. Something weird was going on.



ChuckyBox said:


> ...
> 
> If TiVo knew this had happened, they could probably draw it out during a deposition or on the witness stand. That would tend to kill the credibility of the opinion.
> 
> If you could show that they knew it was BS, or should have known, then that would tend to demonstrate willfulness. The defense Echostar seeks all comes down to what they resonably believed (in the eyes of the law) about their infringement. If they, in good faith, believed they were not infringing, then it is hard to find willfulness.


I'm curious beyon the client (in this case Echostar)- but more about the lawyers' liability (is that the right word) to use good science or facts or opinions. I mean isn't it clear that when a client defending itself in a lawsuit (in this case E*) wants a letter to say their use is not infringing? There has to be some amount of pressure on the lawfirm to produce such a letter. So if they "do whatever it takes" to write the letter the client wants what can happen to them?

(not saying at all that's what happened- the discussion just got me to thinking that's all...)


----------



## ChuckyBox

MichaelK said:


> As I wrote above- I too find it odd that there are 4 drafts over 4 months. Something weird was going on.


It's not quite like that. M&G gave Echostar two different opinions -- I'm not sure why there were two; possibly because there were multiple Echostar DVRs invloved. The opinions were then updated after the judge issued his claim construction order. This is understandable since that order defined the terms by which infringement would be determined.

It is the number of internal drafts that is somewhat questionable. The privilege log lists something close to 40 items that are "draft" or "portion of draft" opinion letters that Echostar doesn't want TiVo to have. Without seeing the documents, though, we can't know how different these drafts were, what changed, or why.



> I'm curious beyon the client (in this case Echostar)- but more about the lawyers' liability (is that the right word) to use good science or facts or opinions. I mean isn't it clear that when a client defending itself in a lawsuit (in this case E*) wants a letter to say their use is not infringing? There has to be some amount of pressure on the lawfirm to produce such a letter. So if they "do whatever it takes" to write the letter the client wants what can happen to them?


Since it is just an "opinion" they can say pretty much anything they want without any concern for their liability. It's my opinion that the world is flat. Look out the window: flat. Sure, you can claim I'm ignoring a lot of other evidence, but I say it is just a matter of what evidence one chooses to emphasize.

And that's why I think this whole defense is a load of BS. Asking lawyers to provide a defense for their clients is absurd. It would be like having your lawyer testify on your behalf at trial -- what possible value could it have in getting at the truth?

But that's why this whole thing is probably going to turn out to be a lot of noise for little result. It is very unlikely at this point (for various reasons) that TiVo is going to get a "smoking gun" (though they may already have what they need to punch holes in the document, we'll have to wait to see the appeals briefings to know for sure). But if this ever does get in front of a jury again, Echostar is going to wave that letter around, and TiVo is going to say, "yeah, their lawyers wrote that opinion for them, what else is it going to say?" And the jury, being composed of generally sane people, is going to say, "Duh."


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## MichaelK

thanks for your opinion about opinions- I was curious. Actually now that you mention it- it is kind of odd- I rape case here in NJ just got thrown out because the victem was handicapped (I forget either deaf or blind) and the prosecutor said in his closing that because of that her other senses were better so she was sure of the identification by the senses she had. The appeals court ruled that he was sharing his opinion or vouching for the credibility of the victim's (his "client") testimony so the verdict was overturned. It's not exactly the same but similar. 

Sorry I wasn't clear but I was talking about the internal drafts too- not the 4 letters they gave E*. I didn't realize their were 40 drafts- that's even more "odd" - I was just talking about the 4 drafts for one opinion itemized in #5 above from the letter posted from Homer Kneal. 

My point is if you are sending one opinion letter / report to e* why are there 4 drafts of that single opinion over 4 months if you weren't getting someone's feedback? I write drafts of my reports all the time- they are typically for my associates in my firm to give peer review or on occasion for our clients to provide feedback (we will allow client feedback as long as it doesn't change the bottom line facts or judgements that my firm makes- for example we might describe an area of a plant as "the area with red walls" and they might prefer it says "the area with burnt orange walls"- who cares what you call it- just don't ask me to change my professional opinion of the situation.) If I'm just getting peer review it doesn't take 4 months and hopefully not 4 drafts. If I'm getting paid hourly (like I assume these guys were) I usually don't have to wait weeks or months to find someone to review it as they can tack on their billiable hour too. On the other hand if I am waiting for the client to provide commetns- then sometimes it does take weeks or months...

So that's what jumped out at me as strange- the 4 drafts listed in item 5 that E* supposedly never knew about. His statements are kind of sketchy in too- "I never authorized", " thus I do not believe", i think he left the firm so maybe it's just that he can't be positive- but it's pretty simple to ask all the empoyees directly "did anyone here ever send this draft to E*?" and then you could say "no one at the firm ever send the draft". Don't lawyers track correspondence and email and log all such stuff? They could show those logs as evidence that no of that stuff ever went to e*- no?


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## shadowfax9x

The Appeals Court Alpha Wolf...

Arthur J. Gajarsa 
Circuit judge, born March 1, 1941 in Norcia (Pro. Perugia), Italy Married. Five children. Education: Rensselaer Polytechnic Institute, Troy, NY, 1958-62, B.S.E.E., Catholic University of America, Washington, D.C., 1968; M.A. in economics, graduate studies; Georgetown University Law Center, Washington, D.C. 1967, J.D.; Career Record: 1962-1963; Patent Examiner, U.S. Patent Office, Dept. of Commerce; 1963-64, Patent Adviser, U.S. Air Force, Dept. of Defense; 1964-67, Patent Adviser, Cushman, Darby and Cushman; 1967-68, Law Clerk to Honorable Joseph McGarraghy, U.S. District Court for the District of Columbia, Washington, D.C.; 1968-69, attorney, Office of General Counsel, Aetna Life and Casualty Co.; 1969-71, Special Counsel and Asst. to the Commissioner of Indian Affairs, Bureau of Indian Affairs, Dept. of Interior; 1971-72, Associate, Duncan and Brown; 1972-78, Partner, Gajarsa, Liss and Sterenbuch; 1978-80, Partner, Gajarsa, Liss and Conroy; 1980-86, Partner, Wender, Murase and White; 1987-97, Partner and Officer, Joseph, Gajarsa, McDermott and Reiner, P.C. Registered Patent Agent, Registered Patent Attorney, 1963. Admitted to DC Bar 1968, CT State Bar, 1969. Nominated for appointment April 18, 1996 by President William Jefferson Clinton (D); was confirmed by Senate July 31, 1997. Entered service September 12, 1997. 

fedcir.gov


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## shadowfax9x

I've searched for this Writ of Mandamus and haven't seen it posted on this or any of the other threads that are covering the TiVo v Echostar case... It certainly helps to explain Judge Gajarsa hang up with the privledge issues... If it is a duplication, scusilo... Ditto that for the format... I would have provided the link, but rookies are prohibited from doing so per the thread marshall...

United States Court of Appeals for the Federal CircuitMISCELLANEOUS DOCKET NOS. 803, 805 IN RE ECHOSTAR COMMUNICATIONS CORPORATION, ECHOSTAR DBS CORPORATION, ECHOSTAR TECHNOLOGIES CORPORATION, and ECHOSPHERE LIMITED LIABILITY COMPANY, and MERCHANT & GOULD P.C., Petitioners. ON PETITION FOR WRIT OF MANDAMUS Before SCHALL, GAJARSA, and PROST, Circuit Judges. GAJARSA, Circuit Judge. O R D E REchoStar Communications Corporation, EchoStar DBS Corporation, EchoStar Technologies Corporation, and Echosphere Limited Liability Company (collectively EchoStar) petition for a writ of mandamus, in Miscellaneous Docket No. 803, to directthe United States District Court for the Eastern District of Texas, in case 2:04-CV-1, to vacate its September 26, 2005 and October 6, 2005 orders that compelled EchoStar to produce documents created by the law firm Merchant & Gould P.C. that EchoStarasserts are protected from discovery by the work-product doctrine. Merchant & Gould 
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moves for leave to intervene in Miscellaneous Docket No. 803 and submits its own petition for a writ of mandamus, filed as Miscellaneous Docket No. 805. TiVo, Inc.opposes the petitions and responds to the motion for leave to intervene. EchoStar and Merchant & Gould reply. We grant Merchant & Goulds unopposed motion for leave to intervene in Miscellaneous Docket No. 803. The motions for leave to file the replies are also granted. To the extent set forth below, we grant the petition for mandamus. I TiVo sued EchoStar for infringement of its U.S. Patent No. 6,233,389 (the 389 patent). In response to the allegation of willful infringement, EchoStar asserted the defense of reliance on advice of counsel. Prior to the filing of the action, EchoStar relied on advice of in-house counsel. After the action was filed, EchoStar obtained additional legal advice from Merchant & Gould but elected not to rely on it. Presumably to explore further EchoStars state of mind in determining that it did not infringe the patent, TiVo sought production of documents in the possession of EchoStar and Merchant & Gould. The district court held that by relying on advice of in-house counsel EchoStar waived its attorney-client privilege and attorney work-product immunity relating to advice of any counsel regarding infringement, including Merchant & Gould. The district court indicated that the scope of the waiver included communications made either before or after the filing of the complaint and any work product, whether or not the product was communicated to EchoStar. The district court also held that EchoStarcould redact information related only to trial preparation or information unrelated to infringement. EchoStar produced communications, including two infringement opinionsMisc. 803, 805 2 
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from Merchant & Gould, but did not produce any work product related to the Merchant & Gould opinions.1Thereafter, the parties sought clarification of the district courts order. TiVo argued that the district court should order EchoStar to produce all Merchant & Gould documents that relate to the advice-of-counsel defense, even if EchoStar was not in possession of the documents because they were never communicated to EchoStar.EchoStar argued that it should only be required to produce documents that wereprovided to it by Merchant & Gould. On October 5, 2005, the district court issued an order that clarified its previousorder and stated that the waiver of immunity extended to all work product of Merchant & Gould, whether or not communicated to EchoStar. The district court determined thatthe documents could be relevant or lead to the discovery of admissible evidencebecause they might contain information that was conveyed to EchoStar, even if the documents were not themselves conveyed to EchoStar. EchoStar petitions this courtfor a writ of mandamus with respect to the Merchant & Gould documents not provided toEchoStar,2challenging the district courts rulings. Merchant & Gould moves for leave tointervene in EchoStars petition and submits its own petition for a writ of mandamus. II The remedy of mandamus is available in extraordinary situations to correct a clearabuse of discretion or usurpation of judicial power. In re Calmar, Inc., 854 F.2d 461, 464 (Fed. Cir. 1988). A party seeking a writ bears the burden of proving that it has no other1EchoStar also provided notes and communications relating to infringementprepared by another firm. 2No in-house counsel documents are at issue in the petition. Misc. 803, 805 3 
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means of obtaining the relief desired, Mallard v. U.S. Dist. Court, 490 U.S. 296, 309 (1989), and that the right to issuance of the writ is clear and indisputable, Allied Chem.Corp. v. Daiflon, Inc., 449 U.S. 33, 35 (1980). A writ of mandamus may be sought whenthe challenged order turns on questions of privilege. In re Regents of Univ. of Cal., 101 F.3d 1386, 1387 (Fed. Cir. 1996); In re Pioneer Hi-Bred Intl, Inc., 238 F.3d 1370, 1374 (Fed. Cir. 2001). EchoStar argues that a writ of mandamus should issue, among other reasons,because the district court erred in determining that (1) the attorney-client privilege had been waived and (2) the waiver of any privilege extended to work-product that was not communicated to EchoStar because, inter alia, the documents are not relevant to whetherEchoStar had a good faith belief that it did not infringe. Merchant & Gould also argues that the district court erred in requiring the production of documents that Merchant & Gould did not provide to EchoStar because any such documents could not be relevant to whetherEchoStar reasonably had a good faith belief that it did not infringe, based upon advicefrom counsel. In response, TiVo argues, inter alia, that (1) EchoStar is not entitled to a writ of mandamus because it has complied, in large part, with the district court orders it now challenges, (2) the attorney-client privilege was waived when EchoStar asserted a defense of reliance on advice of in-house counsel, (3) the relevance of the Merchant & Gould documents can be determined when they are offered as evidence, and (4) even though the Merchant & Gould documents may not have been provided to EchoStar, they may contain information that was otherwise conveyed to EchoStar. Misc. 803, 805 4 
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Regarding TiVos first argument, that EchoStar is not entitled to mandamus because it has complied in large part with the order, we do not believe it is a requirement that a party refuse to comply at all with an order, if it seeks to challenge only a part of the order. Such a rule would encourage parties not to comply with district court orders that, in large part, they do not challenge, so that they could preserve a challenge only to the portions that they believe are erroneous. EchoStar cannot undo the disclosures it has made to TiVo, but it can challenge the portions of the order that require additional disclosures. We now turn to the more substantive arguments underlying this petition. III In this petition, we apply our own law, rather than the law of the regional circuit. This case involves the extent to which a party waives its attorney-client privilege and work-product immunity when it asserts the advice-of-counsel defense in response to a charge of willful patent infringement. Federal Circuit law applies when deciding whether particular written or other materials are discoverable in a patent case, if those materials relate to an issue of substantive patent law. Advanced Cardiovascular Sys. v. Medtronic, Inc., 265 F.3d 1294, 1307 (Fed. Cir. 2001). A remedy for willful patentinfringement is specifically provided for in the Patent Act, see 35 U.S.C. §§ 284-285;therefore, questions of privilege and discoverability that arise from assertion of the advice-of-counsel defense necessarily involve issues of substantive patent law, see In re Spalding Sports Worldwide, Inc., 203 F.3d 800, 803-04 (Fed. Cir. 2000) (applying Federal Circuit law to question of attorney-client privilege between patent attorney and patentee). Misc. 803, 805 5 
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A EchoStar first challenges the district courts holding that EchoStar waived the attorney-client privilege when it asserted its defense in response to the charge of willful infringement. The attorney-client privilege protects disclosure of communicationsbetween a client and his attorney. United States v. Zolin, 491 U.S. 554, 562 (1989); Upjohn Co. v. United States, 449 U.S. 383, 389 (1981). Once a party announces that it will rely on advice of counsel, for example, in response to an assertion of willful infringement, the attorney-client privilege is waived. The widely applied standard for determining the scope of a waiver of attorney-clientprivilege is that the waiver applies to all other communications relating to the same subject matter. Fort James Corp. v. Solo Cup Co., 412 F.3d 1340, 1349 (Fed. Cir. 2005). EchoStar argues that it did not assert the advice-of-counsel defense because itintended to rely only on an in-house investigation supervised by in-house counsel.The district court held that the opinion formed by in-house counsel and conveyed to EchoStar executives, although not a traditional opinion of counsel, constituted a legal opinion. We see no error in the district courts determination. EchoStar summarily asserts that an internal investigation involving in-house engineers and in-house counsel is simply a different subject matter from legal opinions commissioned at a later date from outside lawyers. This argument is without merit.Whether counsel is employed by the client or hired by outside contract, the offered advice or opinion is advice of counsel or an opinion of counsel. Use of in-house counsel may affect the strength of the defense, but it does not affect the legal nature of Misc. 803, 805 6 
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the advice. See Underwater Devices, Inc. v. Morrison-Knudsen Co., 717 F.2d 1380,1390 (Fed. Cir. 1983) (overruled in part on other grounds by Knorr-Bremse Systeme Fuer Nutzfahrzeuge GmbH v. Dana Corp., 383 F.3d 1337 (Fed. Cir. 2004) (en banc)). Thus, when EchoStar chose to rely on the advice of in-house counsel, it waived the attorney-client privilege with regard to any attorney-client communications relating to the same subject matter, including communications with counsel other than in-house counsel, which would include communications with Merchant & Gould. See Akeva LLC v. Mizuno Corp., 243 F. Supp. 2d 418, 423 (M.D.N.C. 2003). B EchoStar next asserts that the district courts order cast too wide a net by including within the waivers scope documents that were never communicated fromMerchant & Gould (the attorney) to EchoStar (the client). The district court stated: EchoStar had the benefit of choice, as explained by the Federal Circuit in Knorr-Bremse Systeme Fuer Nutzfahrzeuge GmbH v. DanaCorp., of whether to introduce [in-house counsels] opinion. But once EchoStar chose to introduce the opinion, it opened to inspection all related advice sought and developed regarding EchoStars potential infringementof the 389 patent. Regardless of when the opinions or materials were transcribed or communicated to EchoStar, such information necessarilyrelates to the opinion being offered by [in-house counsel] and goes to show EchoStars state of mind with respect to willful infringement. This isparticularly true where, as is the case here, EchoStars willfulness witnesswas privy to the substance of the willfulness opinions developed by outside counsel both pre- and post-filing. . . . TiVo, Inc. v. EchoStar Comm. Corp., No. 2:04-CV-1, at 13 (E.D. Tex. Sept. 26, 2005) (September Order). Noting that district courts had ruled differently on whether the waiver of work-product protection covered documents that were not disclosed to the client, the district court discussed the reasons for requiring production of uncommunicated work product: Misc. 803, 805 7 
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Still, other courts have mandated production of all materialregardless of whether they were disclosed, maintaining that the discovery of such information is necessary to uncover what the client was actually told by opinion counsel. See Aspex Eyewear Inc. v. ELite Optik Inc., 276F. Supp. 2d 1084, 1092-93 (D. Nev. 2003); Novartis Pharms. Corp. v. EON Labs Mfg., Inc., 206 F.R.D. 396 (D. Del. 2002). In Novartis, the court stated, it is critical for the patentee to have a full opportunity to probe, not only the state of mind of the infringer, but also the mind of the infringerslawyer upon which the infringer so firmly relied. Id. at 399. The rationale behind this approach is that, by imposing broad waiver, the advice of counsel defense will only be invoked by infringers who prudently and sincerely sought competent advice from competent counsel . . . and [m]oreover, focusing on the infringers waiver rather than state of mind may reduce the chances of legal gamesmanship creeping into the practice of rendering infringement and validity opinions. Id. _f negative information was important enough to reduce to a memorandum, there is a reasonable possibility that the information was conveyed in some form or fashion to the client. Beneficial Franchise Co. Inc. v. Bank One N.A., 205 F.R.D. 212, 218 (N.D. Ill. 2001). September Order at 11-12. In a subsequent order, the district court further explained why the scope of the waiver should include work product that was not disclosed to EchoStar: Were discovery of uncommunicated materials not allowed, accused infringers could easily shield themselves from disclosing any unfavorable analysis by simply requesting that their opinion counsel not send it. This would be unfair. TiVo, Inc. v. EchoStar Comm. Corp., No. 2:04-CV-1, at 3 (E.D. Tex. Oct. 6, 2005) (October Order). We review the district courts determination as to the scope of the waiver for an abuse of discretion. In re Pioneer, 238 F.3d at 1373 n.2 (t appears that virtually all the circuits review the decision of a district court [regarding waiver of privilege] underlying a petition for writ of mandamus for abuse of discretion.). EchoStar assertsthat to apply the broad scope employed by the district court to the waiver of both Misc. 803, 805 8 
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attorney-client privilege and work-product doctrine was an abuse of discretion. We agree. The attorney-client privilege and the work-product doctrine, though related, are two distinct concepts and waiver of one does not necessarily waive the other. SeeCarter v. Gibbs, 909 F.2d 1450, 1451 (Fed. Cir. 1990) (en banc), superseded in non-relevant part, Pub. L. No. 103-424, § 9(c), 108 Stat. 4361 (1994), as recognized inMudge v. United States, 308 F.3d 1220, 1223 (Fed. Cir. 2002); see also United Statesv. Nobles, 422 U.S. 225, 238 n.11 (1975). In general, a party may obtain discovery ofany matter that (1) is not privileged and (2) is relevant to the claim or defense of anyparty. Fed. R. Civ. P. 26(b)(1). Among other things, attorney-client communications are designated as privileged. See Upjohn, 449 U.S. at 389; Genentech, Inc. v. Intl Trade Commn, 122 F.3d 1409, 1415 (Fed. Cir. 1997). The attorney-client privilege protects the confidentiality of communications between attorney and client made for the purpose of obtaining legal advice. Id. We recognize the privilege in order to promote full and frank communication between a client and his attorney so that the client can make well-informed legal decisions and conform his activities to the law. See Upjohn, 449 U.S. at 389; XYZ Corp. v. United States, 348 F.3d 16, 22 (1st Cir. 2003). Thisprivilege is at the discretion of the client. Knorr-Bremse, 383 F.3d at 1345; Carter, 909 F.2d at 1451. The client can waive the attorney-client privilege when, for instance, ituses the advice to establish a defense. See id. However, selective waiver of theprivilege may lead to the inequitable result that the waiving party could waive its privilege for favorable advice while asserting its privilege on unfavorable advice. XYZCorp., 348 F.3d at 24. In such a case, the party uses the attorney-client privilege as Misc. 803, 805 9 
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both a sword and a shield. Id.; Fort James Corp., 412 F.3d at 1349. To prevent such abuses, we recognize that when a party defends its actions by disclosing an attorney-client communication, it waives the attorney-client privilege as to all such communications regarding the same subject matter. Id.In contrast to the attorney-client privilege, the work-product doctrine, or work-product immunity as it is also called, can protect documents and tangible thingsprepared in anticipation of litigation that are both non-privileged and relevant. Fed. R. Civ. P. 26(b)(3). Unlike the attorney-client privilege, which protects all communication whether written or oral, work-product immunity protects documents and tangible things, such as memorandums, letters, and e-mails. See generally Judicial Watch, Inc. v. Deptof Justice, 432 F.3d 366 (D.C. Cir. 2005). We recognize work-product immunitybecause it promotes a fair and efficient adversarial system by protecting the attorneys thought processes and legal recommendations from the prying eyes of his or heropponent. Genentech, 122 F.3d at 1415 (citations omitted); accord Hickman v. Taylor, 329 U.S. 495, 511-14 (1947) (Proper preparation of a clients case demands that he assemble information, sift what he considers to be the relevant from the irrelevant facts, prepare his legal theories and plan his strategy without undue and needlessinterference. . . . Were such materials open to opposing counsel on mere demand,much of what is now put down in writing would remain unwritten. . . . Inefficiency, unfairness and sharp practices would inevitably develop in the giving of legal advice and in the preparation of cases for trial. The effect on the legal profession would be demoralizing. And the interests of the clients and the cause of justice would be poorly served.); see also Nobles, 422 U.S. at 237; Coastal States Gas Corp. v. Dept ofMisc. 803, 805 10 
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Energy, 617 F.2d 854, 864 (D.C. Cir. 1980). Essentially, the work-product doctrine encourages attorneys to write down their thoughts and opinions with the knowledge thattheir opponents will not rob them of the fruits of their labor. Hickman, 329 U.S. at 511;Id. at 516 (Jackson, J. concurring) ([A] common law trial is and always should be an adversary proceeding. Discovery was hardly intended to enable a learned profession to perform its functions either without wits or on wits borrowed from the adversary.);United States v. Adlman, 68 F.3d 1495, 1501 (2d Cir. 1995) (The purpose of the doctrine is to establish a zone of privacy for strategic litigation planning and to preventone party from piggybacking on the adversary's preparation.); Coastal States, 617 F.2d at 864 (noting that the effect of no immunity would mean less work-product would be committed to paper, which might harm the quality of trial preparation). Like the attorney-client privilege, however, the work-product doctrine is notabsolute. See In re Martin Marietta Corp., 856 F.2d 619, 626 (4th Cir. 1988). First, a party may discover certain types of work product if they have substantial need of the materials in the preparation of the partys case and that the party is unable without undue hardship to obtain the substantial equivalent . . . by other means. Rule 26(b)(3). This rule, however, only allows discovery of factual or non-opinion work product and requires a court to protect against the disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative. Id.; accord United States v. Adlman, 134 F.3d 1194, 1197 (2d Cir. 1998); Martin Marietta Corp., 856 F.2d at 626. Second, a party may discover work product if the party waives its immunity. Seeid. at 622-23; Thorn EMI N. Am. v. Micron Tech., 837 F. Supp. 616, 621 (D. Del. 1993).Misc. 803, 805 11 
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However, work product waiver is not a broad waiver of all work product related to the same subject matter like the attorney-client privilege. Martin Marietta Corp., 856 F.2d at626. Instead, work-product waiver only extends to factual or non-opinion work product concerning the same subject matter as the disclosed work product. See id. at625 (noting that a party impliedly waived the work-product privilege as to all non-opinion work-product on the same subject matter as that disclosed.) (citing Nobles, 422 U.S. at 239). We recognize that the line between factual work product and opinion work product is not always distinct, especially when, as here, an attorneys opinion may itselfbe factual work product. When faced with the distinction between where that line lies,however, a district court should balance the policies to prevent sword-and-shield litigation tactics with the policy to protect work product. That being said, we recognize at least three categories of work product that are potentially relevant to the advice-of-counsel defense here. They include: (1) documents that embody a communication between the attorney and client concerning the subjectmatter of the case, such as a traditional opinion letter; (2) documents analyzing the law,facts, trial strategy, and so forth that reflect the attorneys mental impressions but werenot given to the client; and (3) documents that discuss a communication between attorney and client concerning the subject matter of the case but are not themselvescommunications to or from the client. See Thorn EMI, 837 F. Supp. at 622-623.3As tothe first category, we already noted in section A that when a party relies on the advice-of-counsel as a defense to willful infringement the party waives its attorney-client3We by no means anticipate that all work product in every case will fit intoone of these three categories. Misc. 803, 805 12 
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privilege for all communications between the attorney and client, including anydocumentary communications such as opinion letters and memoranda. See also Akeva LLC, 243 F. Supp. 2d at 423.4As to the other two categories, scholars have noted that our prior opinions do not clearly define the scope of the work-product waiver.5As aresult, the district courts that have addressed this issue are split on just how far to extend that scope. Compare Thorn EMI, 837 F. Supp. at 621-623 and Steelcase, Inc. v. Haworth, Inc., 954 F. Supp. 1195, 1198-99 (W.D. Mich. 1997) with Mushroom Assoc. v. Monterey Mushrooms, Inc., 24 U.S.P.Q.2d 1767 (N.D. Cal. 1992); FMT Corp. v. Nissei ASB Co., 24 U.S.P.Q.2d 1073 (N.D. Ga. 1992); and Handgards, Inc. v. Johnson & Johnson, 413 F. Supp. 926 (N.D. Cal. 1976). As we discuss in more detail below, weconclude that waiver extends to the third category but does not extend so far as the second. By asserting the advice-of-counsel defense to a charge of willful infringement, the accused infringer and his or her attorney do not give their opponent unfettered discretion to rummage through all of their files and pillage all of their litigation strategies. 4EchoStar contends that waiver of opinions does not extend to advice and work product given after litigation began. While this may be true when the work productis never communicated to the client, it is not the case when the advice is relevant to ongoing willful infringement, so long as that ongoing infringement is at issue in the litigation. See Akeva LLC, 243 F. Supp. 2d at 423 ([O]nce a party asserts the defense of advice of counsel, this opens to inspection the advice received during the entire course of the alleged infringement.); see also Crystal Semiconductor Corp. v. Tritech Microelectronics Intl, Inc., 246 F.3d 1336, 1351-1353 (Fed. Cir. 2001) (noting that an infringer may continue its infringement after notification of the patent by filing suit and that the infringer has a duty of due care to avoid infringement after such notification). 5See David O. Taylor, Wasting Resources: Reinventing the Scope ofWaiver Resulting from the Advice-of-Counsel Defense to a Charge of Willful Patent Infringement, 12 Tex. Intell. Prop. L.J. 319, 320-21 (2004); William F. Lee & LawrenceP. Cogswell, III, Understanding and Addressing the Unfair Dilemma Created by the Doctrine of Willful Patent Infringement, 41 Hous. L. Rev. 393, 436-37 (2004).Misc. 803, 805 13 
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See Thorn EMI, 837 F. Supp. at 621-623 ([C]ourts generally find a [work-product] waiver only if facts relevant to a particular, narrow subject matter are at issue and havebeen disclosed under circumstances where it would be unfair to deny the other party an opportunity to discover other facts relevant to that subject matter.). Work-product waiver extends only so far as to inform the court of the infringers state of mind.Counsels opinion is not important for its legal correctness. It is important to the inquirywhether it is thorough enough, as combined with other factors, to instill a belief in the infringer that a court might reasonably hold the patent is invalid, not infringed, or unenforceable. Ortho Pharm. Corp. v. Smith, 959 F.2d 936, 944 (Fed. Cir. 1992). It is what the alleged infringer knew or believed, and by contradistinction not what other items counsel may have prepared but did not communicate to the client, that informs the court of an infringers willfulness. The overarching goal of waiver in such a case is to prevent a party from using the advice he received as both a sword, by waiving privilege to favorable advice, and a shield, by asserting privilege to unfavorable advice. See Fort James Corp., 412 F.3d at 1349; Martin Marietta Corp., 856 F.2d at 626; In re Sealed Case, 676 F.2d 793, 818 (D.C. Cir. 1982) ([W]hen a party seeks greater advantage from its control over work product than the law must provide to maintain a healthy adversary system[,] then the balance of interests recognized in Hickman . . . shifts.). To the extent the work-product immunity could have such an effect, it is waived. The second category of work product, which is never communicated to the client, is not discoverable. Under Rule 26(b)(3), this so-called opinion work product deserves the highest protection from disclosure. See Adlman, 134 F.3d at 1197. While an Misc. 803, 805 14 
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accused infringer may waive the immunity for work product that embodies an opinion in letters and memorandum communicated to the client, he does not waive the attorneys own analysis and debate over what advice will be given. See Ortho Pharm., 959 F.2d at 944. Upon waiver of attorney-client privilege, communicative documents, such as opinion letters, become evidence of a non-privileged, relevant fact, namely what wascommunicated to the client, see Nobles, 422 U.S. at 239 n.14 ([W]here . . . counsel attempts to make a testimonial use of [work-product] materials the normal rules ofevidence come into play with respect to . . . production of documents.); however,counsels legal opinions and mental impressions that were not communicated do notacquire such factual characteristics and are, therefore, not within the scope of thewaiver. As the Martin Marietta Corp. court noted, There is relatively little danger that a litigant will attempt to use a pure mental impression or legal theory as a sword and as a shield in the trial ofa case so as to distort the factfinding process. Thus, the protection oflawyers from the broad repercussions of subject matter waiver in this context strengthens the adversary process, and, unlike the selective disclosure of evidence, may ultimately and ideally further the search for the truth. 856 F.2d at 626. Thus, if a legal opinion or mental impression was nevercommunicated to the client, then it provides little if any assistance to the court in determining whether the accused knew it was infringing, and any relative value isoutweighed by the policies supporting the work-product doctrine. The third category of work product material falls admittedly somewhere interstitially between the first and second. In some instances there may be documentsin the attorneys file that reference and/or describe a communication between the attorney and client, but were not themselves actually communicated to the client. ForMisc. 803, 805 15 
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example, if an attorney writes a memorandum or an e-mail to his associate referencing a phone call with the client, in which he indicates that he discussed the clients potential infringement, then such a memorandum is discoverable. Unlike work product that was uncommunicated, this work product references a specific communication to the client. Though it is not a communication to the client directly nor does it contain a substantive reference to what was communicated, it will aid the parties in determining what communications were made to the client and protect against intentional or unintentionalwithholding of attorney-client communications from the court. Still, we must emphasize that such communications may contain work product of the second kindlegal analysis that was not communicated. In those situations, the parties should take special care to redact such information, and if necessary the district court may review such material in camera. See Rule 26(b)(3); see also id. advisorycommittees note (1970) ([T]he courts will sometimes find it necessary to order disclosure of a document but with portions deleted.); Martin Marietta Corp., 856 F.2d at 626. Therefore, when an alleged infringer asserts its advice-of-counsel defense regarding willful infringement of a particular patent, it waives its immunity for anydocument or opinion that embodies or discusses a communication to or from it concerning whether that patent is valid, enforceable, and infringed by the accused. Thiswaiver of both the attorney-client privilege and the work-product immunity includes notonly any letters, memorandum, conversation, or the like between the attorney and his orMisc. 803, 805 16 
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her client, but also includes, when appropriate, any documents referencing a communication between attorney and client.6Here, Merchant & Gould work product that was not communicated to EchoStar or does not reflect a communication is not within the scope of EchoStars waiver because it obviously played no part in EchoStars belief as to infringement of the 389 patent.See Steelcase, 954 F. Supp. at 1198-99. It may very well be true, as TiVo suggests,that at times some parties would communicate draft opinion letters or the contents thereof to the client confidentially in order to avoid disclosing that communication during potential discovery if and when the attorney-client privilege is waived, but we cannoteviscerate the legitimate policies of the work-product doctrine and chill the principles ofour adversary system as a whole on account of the possibility that, from time to time,there may be occurrences of ethical transgressions. In sum, the advice-of-counsel defense to willfulness requires the court to decide,inter alia, whether counsels opinion was thorough enough to instill a belief in the infringer that a court might reasonably hold the patent is invalid, not infringed, or unenforceable. Ortho Pharm., 959 F.2d at 944. If a Merchant & Gould document was not communicated to EchoStar or if a Merchant & Gould document does not reference a communication between Merchant & Gould and EchoStar, its relevant value isoutweighed by the policies of the work-product doctrine. Thus, it was an abuse of6Merchant & Gould contends that it alone retains the right to deny a partyaccess to work product not communicated to a client. While we do not answer this question directly; here, the client, EchoStar, holds the right to waive privilege forattorney-client communications, Carter, 909 F.2d at 1451, and therefore the right to waive privilege to evidence of those communications contained in Merchant & Gouldsfiles. As we stated before, there may be a redaction of information which reflects legal opinions and mental impressions of Merchant & Gould attorneys that were not communicated to EchoStar. Rule 26(b)(3). Misc. 803, 805 17 
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discretion for the district court to determine that the scope of the waiver of privilege extended to such documents. Accordingly, IT IS ORDERED THAT: The petitions are granted. The district court is directed to vacate its orders, to the extent noted above. TiVo is entitled to discovery of Merchant & Gould documentsconsistent with, and in the manner set forth in, this opinion. FOR THE COURT___5-1-06________ _s/Arthur J. Gajarsa___ DateArthur J. Gajarsa Circuit JudgeMisc. 803, 805 18

fedcir.gov_


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## samo

Help! Any attorneys here? Can somebody translate this thing into regular English?
Executive summary please.


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## Redux

The point is, E* simply asked a law firm for an honest opinion as to whether E* had stolen anything from Tivo. The law firm replied no. End of issue. The fact that the law firm was mistaken is their mistake. E* acted in good faith.

Tivo seems to feel it actually happened a little differently.


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## shadowfax9x

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION

TIVO INC., A DELAWARE
CORPORATION
V.
ECHOSTAR COMMUNICATIONS
Civil Action No.:1:05cv2799 WSD
CORPORATION, A NEVADA
CORPORATION; ECHOSTAR DBS
CORPORATION, A COLORADO
CORPORATION; ECHOSTAR
TECHNOLOGIES CORPORATION, A
TEXAS CORPORATION; and
ECHOSPHERE LIMITED LIABILITY
COMPANY, A COLORADO LIMITED
LIABILITY COMPANY

TIVO INC.'S RESPONSE TO ECHOSTAR'S AND HOMER
KNEARL'S RESPONSE TO ORDER TO SHOW CAUSE

The Court's Order to Show Cause identifies 26 documents for which EchoStar and Homer Knearl were ordered to justify the assertion of privilege.EchoStar and Mr. Knearl have failed to make the requisite showing. For 18 of the 26 documents the Response states that each document was never communicated to EchoStar (in this form or orally), and it does not reference, describe or disclose any communication with EchoStar. See Response re: Documents 16, 27, 32, 33, 34, 35, 37, 72, 75, 85, 88, 95, 105, 177, 271, 274, 287 & 291. However, the Response only cites evidence to support this statement for four of these 18 documents. Compare Response re: Documents 27, 32, 271 and 274 (citing affidavits) with Response re: Documents 16, 33, 34, 35, 37, 72, 75, 85, 88, 95, 105, 177, 287 & 291(statements entirely unsupported).

As TiVo has previously explained (and EchoStar has not disputed), the proponent of a privilege bears the burden of demonstrating facts sufficient to establish the privilege's applicability. In re Subpoena Duces Tecum, 439 F.3d 740, 751-55 (D.C. Cir. 2006). Similarly, [t]he 'basis of [a] privilege' must be 'adequately established in the record,' through evidence 'sufficient ... to establish the privilege ... with reasonable certainty.' Id. at 751 (citations omitted). See also Pippenger v. Gruppe, 883 F.Supp. 1201, 1212 (S.D. Ind. 1994) (attorney's unsupported assertions of work product privilege insufficient; In order to allow a court to make an informed determination as to whether the work product immunity in fact applies, the party invoking the privilege must come forward with specific facts which support a finding of privilege.; Of course, a specific and detailed showing by the party resisting disclosure can be made 'in any of the traditional ways in which proof is produced in pretrial proceedings such as affidavits made on personal knowledge, depositions, or answers to interrogatories.' Toledo Edison v. G.A. Technologies, Inc., 847 F.2d 335, 339 (6th Cir. 1988).

However, unsworn representations of an attorney are not evidence and do not become a part of the record. Henderson v. Zurn Industries, Inc., 131 F.R.D. at 570 n. 10 ( citing Morrison v. Duckworth, 898 F.2d 1298, 1299 (7th Cir.1990)). The decision to cite evidence for some of the statements but not others strongly suggests that EchoStar and Mr. Knearl do not have evidentiary support for most of the statements. And even for the four of these 18 documents for which the Response cites to evidence, the evidence does not match the statement. The only evidence submitted consisted of affidavits from M&G attorneys, Mr. Knearl with respect to Documents 27, 271 and 274, and Mr. Wilson with respect to Document 32. These M&G affidavits do not foreclose the likelihood that Morrison & Foerster  serving as joint counsel to both M&G and EchoStar  served as a conduit of information between EchoStar and M&G. Indeed, given that EchoStar and M&G chose to have Morrison & Foerster act as their joint counsel, it is difficult to imagine that Morrison & Foerster did not relay the substance of the documents to EchoStar.1

The absence of any affidavit from Morrison & Foerster on this critical issue speaks volumes. For three of the 26 documents, the Response includes a statement similar to what is stated with respect to the 18 documents referred to above, but conspicuously omits the phrase in this form or orally from the statement. See Response re: Documents 55, 68 & 69. This omission strongly suggests that the documents were at least communicated orally to EchoStar.2

For the five remaining documents (i.e., Documents 73, 179, 180, 276 and 305), the statements in the Response are very different. EchoStar states that it has produced Document 73, and that it made a mistake in listing that document on its privilege log. With respect to Documents 179 and 180, EchoStar merely states that Mr. Wilson [did not] communicate the information contained in Document 179 [or Document 180] to EchoStar, or authorize anyone else to do so. EchoStar's Response re: Documents 179 & 180. Of course, this carefully worded statement leaves open the possibility (which seems likely) that Morrison & Foerster communicated the information to EchoStar. Telling is the absence of any affidavit from EchoStar denying knowledge of the prior-art search results (or the substance of the draft M&G opinions regarding the validity of the patent). With respect to Document 276, EchoStar states: Mr. Knearl did not know that anybody had passed on the information to EchoStar. EchoStar's Response re: Document 276.

The clear indication from this statement is that the information was passed on to EchoStar, and the document therefore reflects communications with EchoStar. As for Document 305, EchoStar states that some portions were not communicated to EchoStar, some portions are non-responsive, and that its redactions were proper because the redacted portions were primarily related to trial strategy, unresponsive, or unrelated to infringement or validity. EchoStar Response re: Document 305. These statements are unsupported by evidence. Moreover, it is difficult to understand how portions of an invoice from opinion counsel (M&G) could be primarily related to trial strategy given that M&G did not act as litigation counsel. EchoStar also contends that the scope of the waiver extends only to the issue of non-infringement, and not to validity (or unenforceability). EchoStar is incorrect. EchoStar is hard-pressed to take this position (especially unilaterally) given that the Federal Circuit plainly stated in In re EchoStar that when an alleged infringer asserts its advice-of-counsel defense regarding willful infringement of a particular patent, it waives its immunity for any document or opinion that discusses a communication to or from it concerning whether that patent is valid, enforceable, and infringed by the accused. In re EchoStar, 448 F.3d 1294, 1304 (Fed. Cir. 2006).

Similarly, the Federal Circuit also held that the waiver covered documents that discuss a communication between attorney and client concerning the subject matter of the case. Id. at 1302. In other words, the Federal Circuit did not limit the scope of the waiver to the particular defense discussed in the opinion of counsel, but rather more broadly extended it to the subject matter of the case. Intex Recreation Corp. v. Team Worldwide Corp., 439 F. Supp. 2d 46, 50 (D.D.C. 2006) ("The use of the phrase 'subject matter of the case' rather than 'subject matter of the opinion' suggests that the Federal Circuit contemplated a broad waiver rather than the limited waiver envisioned by [plaintiff]."). Following In re EchoStar, this Court ordered the production of materials responsive to the subpoena that were delivered, or the content of which was disclosed in whole or in part, to EchoStar or which reference, describe or disclose a communication with EchoStar. June 8, 2006 Order at 3.

The Court's Order was not limited to communications pertaining to infringement, and EchoStar's position is a violation of this Court's Order. In clinging to its narrow view of the scope of the waiver, EchoStar cites a number of district court cases, including Autobytel, Inc. v. Dealix Corp., 455 F. Supp. 2d 569 (E.D. Tex. 2006). But these cases cannot relieve EchoStar of its obligations under the controlling rulings in this case by the Federal Circuit and by this Court, and are at odds with numerous other cases construing In re EchoStar. See, e.g., Kimberly-Clark Corp. v. Tyco Healthcare Retail Group, 2007 WL 218721, *2 (E.D. Wis. Jan 26, 2007) (expressly rejecting Autobytel's narrow interpretation of In re EchoStar; "[defendant] cannot disclose only the opinion it finds favorable to its position and conceal the unfavorable opinion"); Outside The Box Innovations, LLC v. Travel Caddy, Inc., 455 F. Supp. 2d 1374, 1379 (N.D. Ga. 2006) (ordering production of all documents that "reflect communications  that relate to the scope, validity, infringement, and/or unenforceability of the [] patents"); Intex Recreation Corp. v. Team Worldwide Corp., 439 F. Supp. 2d 46, 51 (D.D.C. 2006) (defendant "waived the attorney-client and work product privileges 'for any document or opinion that embodies or discusses a communication to or from it concerning whether [the patent] is valid, enforceable, and infringed.'"); Affinion Net Patents, Inc. v. Maritz, Inc., 440 F. Supp. 2d 354, 356 (D. Del. 2006) ("Defendant has asserted advice of counsel as a defense to Plaintiff's claims of willful infringement, and therefore, Defendant has waived the attorney-client privilege as to all communications relating to non-infringement, invalidity, and unenforceability.").

In conclusion, because EchoStar and Mr. Knearl have failed to make an adequate showing, all of the documents identified by the Court should be produced. Respectfully submitted this 4th day of April, 2007.

IRELL & MANELLA LLP 
Perry M. Goldberg 
Admitted Pro Hac Vice 
1800 Avenue of the Stars 
Suite 900 
Los Angeles, California 
90067-4276 
(310) 277-1010 
WEINBERG, WEELER, 
HUDGINGS, GUNN & DIAL, LLC 
/s/ William C. Buhay 
Terrrance C. Sullivan 
Georgia Bar No. 691725 
William C. Buhay 
Georgia Bar No. 093940 
Attorneys for Plaintiff Tivo Inc. 
One Atlanta Plaza  Suite 3000 
950 East Paces Ferry Road 
Suite 300 
Atlanta, Georgia 30326

CERTIFICATE OF SERVICE 
This is to certify∗ that a copy of the foregoing TIVO INC.'S RESPONSE TO ECHOSTAR'S AND HOMER KNEARL'S RESPONSE TO ORDER TO SHOW CAUSE was served on this 4th day of April 2007, via the Court's electronic filing system, upon counsel of record for all parties. 
/s/ William C. Buhay 
Attorney


----------



## ChuckyBox

samo said:


> Help! Any attorneys here? Can somebody translate this thing into regular English?
> Executive summary please.


Not an attorney, but it is summed up pretty well on p. 17:



> If a Merchant & Gould document was not communicated to EchoStar or if a Merchant & Gould document does not reference a communication between Merchant & Gould and EchoStar, its relevant value isoutweighed by the policies of the work-product doctrine.


----------



## MichaelK

Redux said:


> The point is, E* simply asked a law firm for an honest opinion as to whether E* had stolen anything from Tivo. The law firm replied no. End of issue. The fact that the law firm was mistaken is their mistake. E* acted in good faith.
> 
> Tivo seems to feel it actually happened a little differently.


your first paragraph is based on what? Echostar and their lawyers opinions? Or the opinions of the courts?

You seem to be implying the issue was decided? But it seems it hasn't? (I'm not sure ?)


----------



## MichaelK

seems Tivo find it intersesting like I do that they dont use abosultes all over:



MichaelK said:


> ...His statements are kind of sketchy in too- "I never authorized", " thus I do not believe", i think he left the firm so maybe it's just that he can't be positive- but it's pretty simple to ask all the empoyees directly "did anyone here ever send this draft to E*?" and then you could say "no one at the firm ever send the draft". Don't lawyers track correspondence and email and log all such stuff? They could show those logs as evidence that no of that stuff ever went to e*- no?


seems tivo even points to places where they make absoulte statements but then other places where the wording is carefully choosen to seem to avoid saying that.

If they never gave any of the documents why wouldn't the lawyers just say

"none of the documents in question were ever communicated in anyway shape of form to echostar"

and E* could say "no communication on the matter besides the documents already supplied ever occured between us and MG"

Done- absolute- clear...


----------



## Curtis

MichaelK said:


> If they never gave any of the documents why wouldn't the lawyers just say
> 
> "none of the documents in question were ever communicated in anyway shape of form to echostar"
> 
> and E* could say "no communication on the matter besides the documents already supplied ever occured between us and MG"
> 
> Done- absolute- clear...


As far as I know, it isn't possible to testify on behalf of another person or an entire group of people.


----------



## ZeoTiVo

Wtf?


----------



## shadowfax9x

I'd say that TiVo will have pretty good representation at the Appeal's level...

*Morgan Chu*

Education

Harvard Law School (J.D., 1976), magna cum laude

Yale University (M.S.L., 1974)

University of California, Los Angeles (A.B., 1971, M.A. 1972, Ph.D. 1973)

Professional Profile

Mr. Chu is a partner of Irell & Manella LLP. He was Co-Managing Partner of the firm from 1997 to 2003 and has been a member of its Executive Committee since 1985.

After law school, Mr. Chu clerked for the Honorable Charles M. Merrill of the United States Court of Appeals for the Ninth Circuit, joined Irell & Manella as an associate in 1977 and became a partner in 1982.

Mr. Chu was plaintiffs lead trial counsel in Stac Electronics v. Microsoft, in which the jury returned a $120 million verdict, and City of Hope v. Genentech, in which the jury returned a verdict of over $500 million. Mr. Chu was co-counsel for the plaintiff in Texas Instruments v. Samsung, which resulted in a settlement for the plaintiff of more than $1 billion.

Mr. Chu was lead counsel for the defendant in one of the Top Ten Defense Verdicts for 2005, Ultratech Stepper Inc. v. ASML, in which the jury found plaintiffs patent invalid by clear and convincing evidence, and in Boole & Babbage v. Candle Corporation in the first trial involving a patent on computer software in 1986 where the jury also invalidated the patent.

Some of Mr. Chus professional awards include:

National

One of the Top Ten Trial Lawyers in the nation, National Law Journal

One of the 100 Most Influential Lawyers in America by the National Law Journal since 1994

The "Best Intellectual Property Lawyer" in the nation and one of 12 Superstars in all practice areas based on a 2001 survey of company directors, law school deans, and lawyers by Corporate Board Member

Named Top Intellectual Property Lawyer in United States in first Chambers Award for Excellence 2006

Fellow of the American College of Trial Lawyers

Featured in The Best Lawyers in America (in seven categories: bet-the-company litigation, business litigation, intellectual property law, cyber law, commercial litigation, information technology law, and technology law), Whos Who in America, Whos Who in the World and Whos Who in American Law

Top 45 Lawyers Under 45 in the United States by the American Lawyer

Top Players in High-Tech Intellectual Property based on a national survey by the National Law Journal (1991)

Recipient of the Significant Achievement Award for Excellence and Innovation in Alternative Dispute Resolution (ADR) from the Center for Public Resources (1987)

Featured in article Up and Coming by American Lawyer, describing his role in precedent-setting litigation (1986)

One of ten New Superstars in a survey by the Legal Times of Washington (1983) 
California

The "Number One Super Lawyer in Southern California" (received highest vote total in a poll of 65,000 lawyers) by Los Angeles Magazine in 2004

Number One IP lawyer in California in 2003-04, according to Chambers Global 
One of "100 Most Influential Lawyers in California" every year since inception by the Los Angeles Daily Journal

One of the Top 10 Most Influential Lawyers in California by California Law Business (1999)

One of the Whos Who in Technology" of "Top Most Influential People in Los Angeles Internet Industry Companies by the Los Angeles Business Journal (1998)

One of the Top 20 Lawyers in Los Angeles Firms by California Law Business (1994)

1994 Executive of the Year in Law by the Los Angeles Business Journal

The Dream Team law firm by California Law Business (1992)

One of the top intellectual property lawyers in a survey of clients and lawyers by the California Lawyer (1992)


----------



## MichaelK

Curtis said:


> As far as I know, it isn't possible to testify on behalf of another person or an entire group of people.


I guess you can't say with 100% certainty unless anyone who touched the docs made statements. But then why not voluntarily submit statemetns from everyone at the firm.

Or at least you could just do one big statement:

"I am the named partner in the firm, I took everyone that works for me individually into a room and asked them if they ever sent any of these documents to echostar. I told them I wanted the truth and that they should expect to be fired if they lied. I was able to interview 100 out of 103 employees that worked with us at the timeframe inquestion as 3 had moved on. The 3 that lefted were named bill, bob, and mike. I asked bill, bob, and mike's, superiors if bill, bob, or mike were ever instructed to send the documents to E* , if they had any interaction with E*, or if the supervisors thought there was any reason bill, bob, or mike would send the documents. They replied no on all counts. The last know address we have for bill, bob, and mike are x,y,z please feel free to contact them. While none of my employees were under oath, I believe they all told me the truth and instructed them to do so at risk of losing their job, we would have no problem if tivo would like a signed affidavit from each employee that says that. And if any of my employees fails to comply, changes his story under oath, or is otherwise found to be lying I am fully willing to be sanctioned by the court, and in fact would expect it"

Or maybe just limit it to the sub group that worked on the case- or something . But why not make a broad statement unless it's not true?

Now still that's not 100% bullet proof, no one is under oath, only the "boss man" is testifying or submitting a statement. But it's a lot less wishy washy they what they appeared to have said. And Tivo's reply would have been much more muted- limited to arguing that maybe one of the employees lied rather then saying the wording is cheesy and looks like they are hiding something.


----------



## ITVGuy2000

Forgive me if I missed the answer to my question in this thread.

Can someone summarize when the appeal will go in front of a judge, how long it will likely take, and when it will likely conclude?

Would I be correct in concluding that the appeal case has already begun (this based upon some of the posted news reports here)?

Thanks.


----------



## drew2k

From earlier in this thread (http://www.tivocommunity.com/tivo-vb/showthread.php?p=4921934&&#post4921934):



drew2k said:


> Thanks for the info. If I input correctly to Excel, the significant upcoming dates are:
> 
> 04/17/2007 -- Echostar Brief due
> 05/27/2007 -- TiVo Brief due
> 07/06/2007 -- Echostar's response due
> 07/20/2007 -- TiVo response due
> 
> I guess it will be the end of summer before we have a final decision! That's crazy!


----------



## ITVGuy2000

So, apparently the trial has already begun? Is there some news coming out over the last few days?


----------



## Rucker

I believe federal civil appeals are normally handled by a 3 judge panel, not a jury. Also, I don't believe there is a trial in appeals court. In most cases, the panel decides based on written briefs, but sometimes there are oral arguments.


----------



## shadowfax9x

A good chance the three judge panel will be Judges Schall, Garjarsa and Prost as they rendered the opinion on the Knearl matter... The Appellant (Echostar) submitted its written blue brief on April 17th... The Appellee (TiVo) will submit its written brief on May 27th... Then, Echostar will submit their response on July 6th and TiVo will respond to that on July 27th... (Each judge will then muster their law clerks and review the appeal to determine if it has any legs to stand on)

At a later date, the Appeal's Court panel will convene and the Appellant (Echostar) will be scheduled to present a 15 minute oral argument to the court... It is the panel of judges who will argue the case with the Appellant's attorney as to why they should overturn the lower court's (E. TX) decision...

The court will recess and schedule a date for their decision... (Remember, the Appeal's Court is only in session one week of each month and they have a full case load, so a decision probably won't be announced until late in the year)

Proposition: I'm laying 8:5 odds that the Appeal's Court rules in favor of TiVo and then even money that Echostar petitions the Supreme Court to hear the case...It will be denied and then Echostar will have to go back before Judge Folsom in Texas with their hats in hands while the Hank Williams song _Your Cheatin' Heart_ can be heard coming from the sheriff's radio...


----------



## shadowfax9x

SUPREME COURT OF THE UNITED STATES 
Syllabus - April 30, 2007
KSR INTERNATIONAL CO. v. TELEFLEX INC. ET AL.

http://www.fedcirc.us/opinions/04-1350.pdf


----------



## drew2k

shadowfax9x said:


> SUPREME COURT OF THE UNITED STATES
> Syllabus - April 30, 2007
> KSR INTERNATIONAL CO. v. TELEFLEX INC. ET AL.
> 
> http://www.fedcirc.us/opinions/04-1350.pdf


 Does this have any relevance to the ongoing discussion of the TiVo/Echostar trial?


----------



## atmuscarella

> Originally Posted by *drew2k*
> Does this have any relevance to the ongoing discussion of the TiVo/Echostar trial?


 Only if Echostar can use it to invalidate TiVo's patents. This article explains more:http://www.eweek.com/article2/0,1895,2124994,00.asp?kc=EWNAVEMNL050307EOAD

Thanks,


----------



## shadowfax9x

drew2k said:


> Does this have any relevance to the ongoing discussion of the TiVo/Echostar trial?


The Echostar "mofo's" will certainly argue that it is relevant as will Vonage in their case with Verizon... However, the Tivo v. Echostar case was heard by a patent savvy judge at the District Court level and decided by a level headed jury which will make it difficult for the higher courts to justify overturning it...

http://www.mofo.com/news/updates/files/12234.html


----------



## MichaelK

I'm no patent lawyer but it's been repeatedly said in this thread that it's not some broad obvious patent that tivo has on DVR's or time-shifting or hard drive video - but rather a patent about some bit of hardware (media bridge I believe) that is used to keep most of the data away from the CPU to allow for a weaker cpu, etc. 

so E* could argue but Tivo will say it's not broad and obvious as there are other ways to make a DVR.


----------



## samo

If nothing else it will give E* an opportunity for yet another appeal, potentially all way up to Supreme Court. Time is on E* side and if they can introduce another 2 or 3 years of delay, they will be already ahead.
It also makes it much riskier for TiVo to try to extort money from other DVR makers, because chance of the patent being invalidated is much higher. They already lost more than a dozen claims on a patent due to PTO re-examination in E* trial, who knows what the next iteration will do.


----------



## MichaelK

samo said:


> If nothing else it will give E* an opportunity for yet another appeal, potentially all way up to Supreme Court. Time is on E* side and if they can introduce another 2 or 3 years of delay, they will be already ahead.
> It also makes it much riskier for TiVo to try to extort money from other DVR makers, because chance of the patent being invalidated is much higher. They already lost more than a dozen claims on a patent due to PTO re-examination in E* trial, who knows what the next iteration will do.


all true- but I almost think they at some point they have to go through their big pile of patents and whittle down the bs- what's left as "legit" will have much mroe power.

I wonder if this supreme court ruling will have an effect on the tv guide "grid" patent.

if that aint obvious i dont know what is...


----------



## ZeoTiVo

MichaelK said:


> I'm no patent lawyer but it's been repeatedly said in this thread that it's not some broad obvious patent that tivo has on DVR's or time-shifting or hard drive video - but rather a patent about some bit of hardware (media bridge I believe) that is used to keep most of the data away from the CPU to allow for a weaker cpu, etc.
> 
> so E* could argue but Tivo will say it's not broad and obvious as there are other ways to make a DVR.


so the ruling implies that the earlier factors to consider still apply and they are
"There the Supreme Court described four factors that are relevant to a determination of obviousness: 
(1) the scope and content of the prior art; 
(2) the skill level of a person of ordinary skill in the art; 
(3) the differences between the claimed invention and the prior arts teachings; (4) any objective indications of nonobviousness, such as the commercial success 
of the invention"

it seems to me that Since DVRs were not common in design at the time of the infringement and the skill level to make the specific component, "the bridge", would be higher than ordinary skill and that this bridge was a significant step forward from prior art and has indeed led to much of the success of TiVo inc. since they could make a DVR much cheaper and thus try and compete that the ruling really just clarifies the law around the case and actually makes TiVo Inc's specific patent's that much stronger.


----------



## yunlin12

GA court update, copied from this link:
http://www.investorvillage.com/smbd.asp?mb=3928&mn=5809&pt=msg&mid=2086475

"05/03/2007 73 ORDER re: 70 Response to Order to Show Cause. It is hereby ORDERED that EchoStar produce by 5/16/07, in unredacted form, the following documents: MG PRIV 68 179, (excepting the first two pages), and 180 (excepting the first two pages), and the following portions of MG PRIV 305: ECHO T1000-090340, T1000-090353 (Entry for 4/07/05 only), T1000-090354, and T1000-090360. Signed by Judge William S. Duffey Jr. on 5/3/07. (kt) (Entered: 05/04/2007)"


----------



## timckelley

yunlin12 said:


> It is hereby ORDERED that EchoStar produce by 5/16/07, in unredacted form, the following documents:


I will be interested in hearing an update on this in 8 days.


----------



## ZeoTiVo

Ok, so it is 5/17. what is the update


----------



## ChuckyBox

ZeoTiVo said:


> Ok, so it is 5/17. what is the update


The update is that there is no update. One presumes that Echostar gave the required documents to TiVo. There would be no need for a court filing for that, though they might have sent the judge a letter saying that they complied.

The alternative is that they didn't give up the documents because they filed an appeal (though you would expect to see a notice of intent to appeal filed with the Georgia court if that were the case). No such notice has been filed, and no other motions remain before the court.

So unless TiVo tries something more, it looks like the issue is settled and TiVo has all of the documents it will get. Meanwhile, TiVo's brief to the appeals court is due 5/30.


----------



## yunlin12

There's an update that AT&T's petition to join Echo on defense has been denied. There's a thread on Yahoo stock message board regarding that.


----------



## drew2k

I just realized we're only 60 post from 1,000! I hope we get definitive results before we reach that magic number, or that we convince the TCF powers to keep this thread open until we do!


----------



## ChuckyBox

yunlin12 said:


> There's an update that AT&T's petition to join Echo on defense has been denied. There's a thread on Yahoo stock message board regarding that.


I saw that item on the docket, but I didn't know that it was AT&T -- has someone retrieved the filing from the court? It would be interesting to see the arguments, but I didn't think it would be worth the effort for what is essentially a sideshow.

Basically someone -- the claim here is AT&T -- made a motion to file a "friend of the court" brief. Not really joining Echostar on the defense, but filing a brief as a non-party to the suit on behalf of Echostar. The court denied the motion, so the brief will not be seen by the judges in the case.


----------



## yunlin12

There's something on Investor village, someone quoted some SB analysis on court brief:
http://www.investorvillage.com/smbd.asp?mb=3928&mn=5759&pt=msg&mid=2053415

"* AT&T Joins the Fight ? AT&T (which resells DISH's product)
filed an Amicus Brief requesting the court grant permission to
allow the company to join DISH in its patent case. Generally,
we found no new defenses in this brief that were not covered in
the DISH brief. While AT&T?s potential participation is not
likely to change the trial outcome, it does underscore the high
stakes DISH/T face if the district court?s injunction and
damages are upheld. "

"To our surprise, AT&T has recently (on April 27) joined the patent dispute
with its filing of an Amicus Curiae brief that sides with DISH in the
upcoming patent trial. AT&T claims to have a vested interest in the case
given its Home Zone triple play offering (e.g., voice, data, and TV) which
resells DISH?s DVRs (we would note that T also has $500 million loaned out
to DISH). AT&T?s interest in the case was reportedly made public a year ago,
but has clearly been under the radar until late last week.

After reviewing AT&T?s brief, we do not see any additional arguments against
TIVO that do not appear in the DISH brief. AT&T?s arguments largely focus on
the separation of audio and video streams in the contested DVRs and the use
of object software to extract data from memory (both recapped below).
Essentially, these are definitional disputes that are similar to the claims
made by DISH in its brief. TIVO is opposing AT&T?s participation based on the
financial relationship between DISH and T as well as on the grounds that they
do not see the Amicus adding any new arguments to the DISH brief. While we
do not see AT&T?s participation as changing the outcome of the trial, it does
underscore the high stakes DISH/T face if the district court?s injunction and
damages are upheld."


----------



## Justin Thyme

There aren't any central issues for AT&T. It's not their technology, and they know Tivo will deal with Dish and their business plan for triple play will not be disrupted.

So why do they bother. Because it costs them nothing. They get points with Dish as an ally, and it costs them nothing because Tivo will work with anyone regardless of past disagreements.

That AT&T would even spend the money on the lawyers means that they think that Dish would value their addition. That contributes to the analysis that says that insiders know that Dish is hurting and needs all the help it can get. 

Pure conjecture, but this is the only reason I can fathom for AT&T bothering to file this amicus.


----------



## yunlin12

I see this as more stuff for the court to read and an attempt to further delay the process, glad to see the court denied it quickly.


----------



## shadowfax9x

AT&T's amicus brief in support of Echostar's appeal may have more to do with its quest to completely dominate the world of home entertainment... It's big rollout of U-Verse has begun and it has ordered boocoo numbers of Motorola DVR boxes as part of this promotion... AT&T full well realizes that Motorola will be in TiVo's gun sights if the District Court decision is upheld for TiVo on appeal...


----------



## samo

shadowfax9x said:


> AT&T's amicus brief in support of Echostar's appeal may have more to do with its quest to completely dominate the world of home entertainment... It's big rollout of U-Verse has begun and it has ordered boocoo numbers of Motorola DVR boxes as part of this promotion... AT&T full well realizes that Motorola will be in TiVo's gun sights if the District Court decision is upheld for TiVo on appeal...


Motorola licensed software from Replay and is immune to any TiVo lawsuit due to result of Replay-TiVo lawsuit settlement.


----------



## btwyx

samo said:


> result of Replay-TiVo lawsuit settlement.


Can you give a quick recap of that one?


----------



## samo

btwyx said:


> Can you give a quick recap of that one?


About seven years ago Replay filed a lawsuit against TiVo for stealing Replay's technology. TiVo filed a countersuit (sort of like E* did in this lawsuit). At a time both TiVo and Replay had very small number of subs and, if I recall it correctly, TiVo just started negotiations with DirecTV or was at early design stage. It was to a mutual benefit of both Replay and TiVo to cross license patents and to sign a settlement to not sue each other nor companies who bought licenses from them. So anybody who sells DVRs under Replay license is immune from TiVo lawsuit (and any TiVo license holder is immune from Replay lawsuit).
To my knowledge, both Motorola and Scientific Atlanta built DVRs under Replay license. Dish and Microsoft are only major DVR players who built DVRs on their own. Microsoft not only has stronger patents than TiVo but also has a prior art claim (original DishPlayer was designed before Tivo and was first at retail stores, although TiVo was first in online direct sales). This is a reason why original DishPlayer is excluded from E* lawsuit. Dish parted with Microsoft in 2000 to build 5XX series on their own. Rest of the story is now playing in courts.


----------



## ChuckyBox

samo said:


> Microsoft not only has stronger patents than TiVo but also has a prior art claim (original DishPlayer was designed before Tivo and was first at retail stores, although TiVo was first in online direct sales). This is a reason why original DishPlayer is excluded from E* lawsuit.


This is a common misunderstanding about patents. If Microsoft had prior art, it would invalidate TiVo's patent (entirely, not just for Microsoft). That never happened, and as far as I know, no Microsoft art was or is being asserted against the TiVo patent. It matters not in the least who brought the product to market first. The TiVo patent isn't for The DVR or the idea of the DVR in gereral, it is for a specific implementation of a DVR.

The Microsoft DVRs were not brought into the suit because there were not very many of them and they were based on a different (possibly infringing, possibly non-infringing) technology. Including them would have greatly complicated the trial for little in potential damages.



> So anybody who sells DVRs under Replay license is immune from TiVo lawsuit (and any TiVo license holder is immune from Replay lawsuit).


You are the only person I have ever heard make that assertion. It is generally believed that one of the reasons for cable to deal with TiVo is to escape IP litigation. The terms of the Comcast deal, for instance, protect Comcast suppliers (i.e., Motorola and Scientific Atlanta) from IP claims by TiVo against the hardware they've sold to Comcast. If you have evidence that Motorola and Scientific Atlanta are immune to TiVo's IP, it will be news to almost everyone who follows the industry.


----------



## samo

ChuckyBox said:


> You are the only person I have ever heard make that assertion. It is generally believed that one of the reasons for cable to deal with TiVo is to escape IP litigation. The terms of the Comcast deal, for instance, protect Comcast suppliers (i.e., Motorola and Scientific Atlanta) from IP claims by TiVo against the hardware they've sold to Comcast. If you have evidence that Motorola and Scientific Atlanta are immune to TiVo's IP, it will be news to almost everyone who follows the industry.


Quick Google
http://news.zdnet.com/2100-9595_22-803554.html
Settlement between Replay and TiVo was reached Nov 8, 2002 (from SEC filings). I couldn't find detail by doing quick Google, but if somebody really cares about these details, information should be available.
You are right, TiVo DOES NOT have a patent for DVR, just for specific implementation. So all the bull about Cable companies worrying about IP rights has no merit.


----------



## ZeoTiVo

samo said:


> Quick Google
> http://news.zdnet.com/2100-9595_22-803554.html
> Settlement between Replay and TiVo was reached Nov 8, 2002 (from SEC filings). I couldn't find detail by doing quick Google, but if somebody really cares about these details, information should be available.
> You are right, TiVo DOES NOT have a patent for DVR, just for specific implementation. So all the bull about Cable companies worrying about IP rights has no merit.


Some of the problems early Cable Company DVRs had was due to *not* infirnging on the specific TiVo implementatation but trying to do things differently and thus having a harder time getting performance and realiability under control.


----------



## davezatz

shadowfax9x said:


> AT&T full well realizes that Motorola will be in TiVo's gun sights if the District Court decision is upheld for TiVo on appeal...


More likely it has to do with looking out for a current friend/partner - AT&T's "Homezone" triple play includes Dish satellite service.

http://www.att.com/gen/general?pid=7910
http://www.att.com/gen/general?pid=7901


----------



## ThreeSoFar

AT&T could easily afford to buy TiVo.


----------



## bkdtv

samo said:


> Motorola licensed software from Replay and is immune to any TiVo lawsuit due to result of Replay-TiVo lawsuit settlement.


Motorola simply produces a hardware platform (i.e. the computer). They don't do software. The software provider is responsible for licensing the appropriate Tivo patents. Comcast, Cox, and DirecTV have all reached agreements with Tivo to avoid litigation. Dish Network and Time Warner have not.

Further, licensing technology from Replay would not mitigate the Tivo patents. Tivo and ReplayTV have an agreement that says they won't pursue litigation against one another, but licensees of ReplayTV technology have no such protection.


----------



## ChuckyBox

ThreeSoFar said:


> AT&T could easily afford to buy TiVo.


So could Echostar. So could Comcast. But Comcast chose to partner, and Echostar chose to fight. AT&T's management is a bit more civilized than Charlie Ergen's destroy-everyone-who-dares-oppose-me philosophy, and they exert a very large influence over what Echostar does, so they'll probably force a deal if the situation gets tricky. But I don't think Comcast would allow AT&T to buy TiVo.


----------



## ChuckyBox

samo said:


> You are right, TiVo DOES NOT have a patent for DVR, just for specific implementation. So all the bull about Cable companies worrying about IP rights has no merit.


That's a _non sequitur_. If the cable DVRs violate TiVo's IP, they have to worry about the potential for litigation, damages, and possibly injunction.


----------



## Justin Thyme

ThreeSoFar said:


> AT&T could easily afford to buy TiVo.


With your post count, you must know that takeover talk is a common comment on TCF. The trouble is, they don't want to be bought and they have a substantial poison pill defence in place that puts it out of reach of a hostile bid- even for companies like Cisco, MS, AT&T, or Comcast.


----------



## TiVo Troll

bkdtv said:


> ...licensing technology from Replay would not mitigate the Tivo patents. Tivo and ReplayTV have an agreement that says they won't pursue litigation against one another, but licensees of ReplayTV technology have no such protection.


Can you post a reference link which supports your statement?

Perhaps that's the reason that DNNA hasn't licensed ReplayTV's s/w to another vender. What a waste! I'd welcome a ReplayTV based DVD recorder or cable box.


----------



## yunlin12

This line from Tivo's 1/31/2003 10K (filed on 5/1) seems to indicate that anyone who licences Tivo's technology is indemnified against patent infringement. I'm guessing it's a common practice and would be the case for ReplayTV and their licensees as well.

"Under our agreements with many of our manufacturing and licensing partners, we are obligated to indemnify them in the event that our technology infringes upon the intellectual property rights of third parties."

http://www.shareholder.com/Common/Edgar/1088825/1012870-03-2231/03-00.pdf


----------



## TexasAg

yunlin12 said:


> This line from Tivo's 1/31/2003 10K (filed on 5/1) seems to indicate that anyone who licences Tivo's technology is indemnified against patent infringement. I'm guessing it's a common practice and would be the case for ReplayTV and their licensees as well.
> 
> "Under our agreements with many of our manufacturing and licensing partners, we are obligated to indemnify them in the event that our technology infringes upon the intellectual property rights of third parties."
> 
> http://www.google.com/url?sa=t&ct=r...Cl-JuNO0rzl5v0Inw&sig2=NvCRAe2ge2EF8QcwDpPSNA


This is common practice. The partners of Tivo would typically require that Tivo indemnify them if they happen to infringe someone else's patents on Tivo's behalf (making a product for Tivo, selling a product for Tivo, etc.). It's unrelated to the ReplayTV stuff.


----------



## bkdtv

TiVo Troll said:


> Can you post a reference link which supports your statement?
> 
> Perhaps that's the reason that DNNA hasn't licensed ReplayTV's s/w to another vender. What a waste! I'd welcome a ReplayTV based DVD recorder or cable box.


We don't know the full details of the agreement, but that's not quite what I meant.

I was responding to the suggestion that some company could license ReplayTV's technology (patents, ip, etc) and that would automatically imdemnify them against an infringement suit. That is not the case. Simply licensing ReplayTV's patents and technology does not give a company the right to use Tivo's patents.

The use of ReplayTV's software is a different scenario. If, say, Toshiba paid ReplayTV to create a version of their software for a DVD recorder, then they might be indemnified against Tivo patent litigation, depending on the contents of the Tivo-ReplayTV agreement.


----------



## MichaelK

bkdtv said:


> We don't know the full details of the agreement, but that's not quite what I meant.
> 
> I was responding to the suggestion that some company could license ReplayTV's technology (patents, ip, etc) and that would automatically imdemnify them against an infringement suit. That is not the case. Simply licensing ReplayTV's patents and technology does not give a company the right to use Tivo's patents.
> 
> The use of ReplayTV's software is a different scenario. If, say, Toshiba paid ReplayTV to create a version of their software for a DVD recorder, then they might be indemnified against Tivo patent litigation, depending on the contents of the Tivo-ReplayTV agreement.


that's my understanding too- tivo might have rights to replays patents (and vice versa) but tivo can't give directv rights to replay patents to use in there new in house dvr's.

It's sort of like saying I will let my friend borrow my car if he has to get his worked on. My friend might lend his car to his brother if his brothers car is getting fixed. But If my firend borrows my car and then lets his brother drive it without asking me, then I'm pissed.

But as above if replay makes software for moto rather then just give moto rights to patents then moto can't get sued by tivo because replay produced the software.


----------



## shadowfax9x

Echostar fights off patent troll - Forgent 

http://biz.yahoo.com/pz/070521/120002.html


----------



## yunlin12

TexasAg said:


> This is common practice. The partners of Tivo would typically require that Tivo indemnify them if they happen to infringe someone else's patents on Tivo's behalf (making a product for Tivo, selling a product for Tivo, etc.). It's unrelated to the ReplayTV stuff.


I meant to say that if Tivo is covering the asses of the people who licensed Tivo's technology from any patent infringement case brought against Tivo and their licensensees, then ReplayTV probably would've done the same for those who licensed ReplayTV's technology against anyone who may sue them, i.e., Tivo.

It's not hard evidence, but seems like common sense. If Tivo and ReplayTV had agreed to live and let live, allowing each other to try expand the DVR market on its own, then it would make sense they would allow each other to profit off their own technology by not going after people who may license each's technology.


----------



## 1283

yunlin12 said:


> It's not hard evidence, but seems like common sense. If Tivo and ReplayTV had agreed to live and let live, allowing each other to try expand the DVR market on its own, then it would make sense they would allow each other to profit off their own technology by not going after people who may license each's technology.


It's extremely unlikely that TiVo gave ReplayTV the permission to license TiVo's patents to whomever ReplayTV chooses. MichaelK explained it well with the car analogy.


----------



## Redux

c3 said:


> It's extremely unlikely that TiVo gave ReplayTV the permission to license TiVo's patents to whomever ReplayTV chooses.


Jeeze, look at the original message that suggested this idiocy, and look at who it was. You guys, taking this as worthy of serious discussion, have the patience of saints.


----------



## 1283

Redux said:


> Jeeze, look at the original message that suggested this idiocy, and look at who it was.


Oh, THAT guy.


----------



## samo

yunlin12 said:


> It's not hard evidence, but seems like common sense. If Tivo and ReplayTV had agreed to live and let live, allowing each other to try expand the DVR market on its own, then it would make sense they would allow each other to profit off their own technology by not going after people who may license each's technology.


It is not just common sense, it was a part of Replay-TiVo settlement (mainly benefiting TiVo at the time, because TiVo already sold the license to SONY and Replay was specifically suing TiVo for "licensing and offering to license its DVR technology").


----------



## ZeoTiVo

bkdtv said:


> We don't know the full details of the agreement, but that's not quite what I meant.
> 
> I was responding to the suggestion that some company could license ReplayTV's technology (patents, ip, etc) and that would automatically imdemnify them against an infringement suit. That is not the case. Simply licensing ReplayTV's patents and technology does not give a company the right to use Tivo's patents.
> 
> The use of ReplayTV's software is a different scenario. If, say, Toshiba paid ReplayTV to create a version of their software for a DVD recorder, then they might be indemnified against Tivo patent litigation, depending on the contents of the Tivo-ReplayTV agreement.


exactly - the indemnity EXTENDS to any other use of the replay software covered by the agreement. It is not some magic blanket that covers everything. For example even if Dish had licensed replay software the current DVRs listed in this suit would not be protected.


----------



## yunlin12

c3 said:


> It's extremely unlikely that TiVo gave ReplayTV the permission to license TiVo's patents to whomever ReplayTV chooses. MichaelK explained it well with the car analogy.


I was trying to say if Tivo thinks ReplayTV's technology infringed upon Tivo's patent, but give ReplayTV a pass so that both can survive, then that pass may well extent to anyone who license Replay's technology, even though that technology may infringe upon Tivo's patents. It seems logical to me for both company to survive they need to be able to license their technology and profit from it. It wouldn't make sense for their settlement to not include that aspect of their business.

However, I'm not sure about the scope of the settlement in terms of which Tivo patent it covers. If a company licenses Replay's technology that is covered in the Tivo/ReplayTV settlement, but also went off on their own to include addtional technology that belongs to other Tivo patent, which are not covered under the Tivo/ReplayTV settlement, then Tivo may very well go after them with a infringement case.


----------



## yunlin12

Another interesting that may be a factor if Tivo goes after Motorola. There is a company called Command Audio, which apparently holds some on demand patents that are related to DVR's, and successfully sued Sony for infringement in Sony-made Tivo's in 2005 (patent 6,330,334). They licensed to SA and ReplayTV in 2006 and 2007, and Motorola is one of their investors.

http://www.commandaudio.com/press_room.php


----------



## shadowfax9x

TiVo v. Forgent
United States District Court for the Northern District of California
07-cv-2629
May 17, 2007

https://ecf.cand.uscourts.gov/cgi-bin/show_case_doc?1,192213,0,MAGIC,0,,9,1

While TiVo was not a party to the Forgent v. Echostar (together with 17 other DVR defendents, most of whom have license agreements with TiVo) infringement lawsuit over Forgent's '746 patent, it has opted to enter into the fray to protect its turf...

Meandering :: I cannot help but visualize a Denny Crane/Alan Shore (Boston Legal) relationship between Morgan Chu of Irell & Manella and Harold McElhinny of Morrison/Foerster... They already have this case benefically settled between the parties as they sit and smoke their Montecristo cigars with an 18 year old scotch chaser, regardless on how it plays out in the appeals court :: ...


----------



## ZeoTiVo

shadowfax9x said:


> https://ecf.cand.uscourts.gov/cgi-bin/show_case_doc?1,192213,0,MAGIC,0,,9,1


oops



from URLs said:


> ECF/PACER Login
> 
> Notice
> This is a Restricted Web Site for Official Court Business only. Unauthorized entry is prohibited and subject to prosecution under Title 18 of the U.S. Code. All activities and access attempts are logged.


----------



## davezatz

Zeo, you're busted!


----------



## TexasAg

yunlin12 said:


> Another interesting that may be a factor if Tivo goes after Motorola. There is a company called Command Audio, which apparently holds some on demand patents that are related to DVR's, and successfully sued Sony for infringement in Sony-made Tivo's in 2005 (patent 6,330,334). They licensed to SA and ReplayTV in 2006 and 2007, and Motorola is one of their investors.
> 
> http://www.commandaudio.com/press_room.php


Not to mention that Tivo likely took a hit from that lawsuit. Tivo said in their SEC filings that they had agreed to indemnify Sony, so any money Sony paid to settle that suit likely got repaid to Sony by Tivo.


----------



## ZeoTiVo

davezatz said:


> Zeo, you're busted!


it was entrapment and I have witnesses


----------



## shadowfax9x

TexasAg said:


> Not to mention that Tivo likely took a hit from that lawsuit./QUOTE]
> 
> Precisely the reason why Al Gore invented liability insurance...


----------



## 1283

shadowfax9x said:


> Precisely the reason why Al Gore invented liability insurance...


Don't forget that he invented the Internet as well.


----------



## TexasAg

yunlin12 said:


> Well the man did chair the congressional committee that funded the creation of internet as we know it now. So he didn't invent it, but he did create it. I think that's what Gore actually said as well. Fox news probably invented the "invent" version.


No it didn't, but don't let the facts get in the way of your Fox bashing.


----------



## acvthree

GORE: Well, I will be offering -- I'll be offering my vision when my campaign begins. And it will be comprehensive and sweeping. And I hope that it will be compelling enough to draw people toward it. I feel that it will be. 

But it will emerge from my dialogue with the American people. I've traveled to every part of this country during the last six years. During my service in the United States Congress, I took the initiative in creating the Internet. I took the initiative in moving forward a whole range of initiatives that have proven to be important to our country's economic growth and environmental protection, improvements in our educational system.


----------



## terpfan1980

TexasAg said:


> yunlin12 said:
> 
> 
> 
> Well the man did chair the congressional committee that funded the creation of internet as we know it now. So he didn't invent it, but he did create it. I think that's what Gore actually said as well. Fox news probably invented the "invent" version.
> 
> 
> 
> No it didn't, but don't let the facts get in the way of your Fox bashing.
Click to expand...

From WhySanity.net


WhySanity.net Animal House quotes said:


> *Animal House*
> written by Douglas Kenney, Chris Miller, & Harold Ramis
> 
> *D-Day (Bruce McGill):* War's over, man. Wormer dropped the big one.
> *Bluto (John Belushi):* Over? Did you say "over"? Nothing is over until we decide it is! Was it over when the Germans bombed Pearl Harbor? Hell no!
> *Otter (Tim Matheson):* {whispering} Germans?
> *Boon (Peter Riegert):* Forget it, he's rolling.
> *Bluto:* And it ain't over now. 'Cause when the goin' gets tough... {thinks hard} the tough get goin'! Who's with me? Let's go! {runs out, alone; then returns} What the f--- happened to the Delta I used to know? Where's the spirit? Where's the guts, huh? "Ooh, we're afraid to go with you Bluto, we might get in trouble." Well just kiss my a-- from now on! Not me! I'm not gonna take this. Wormer, he's a dead man! Marmalard, dead! Niedermeyer -
> *Otter:* Dead! Bluto's right. Psychotic, but absolutely right. We gotta take these b--tards. Now we could do it with conventional weapons that could take years and cost millions of lives. No, I think we have to go all out. I think that this situation absolutely requires a really futile and stupid gesture be done on somebody's part.
> *Bluto:* We're just the guys to do it.
> *D-Day:* Let's do it.
> *Bluto:* LET'S DO IT!!
> {Chaos ensues--for most of the rest of the movie}


----------



## 1283

Create or invent, it doesn't matter. He did not create the Internet, based on most people's definition of "create".


----------



## terpfan1980

yunlin12 said:


> Really, try these two sentences:
> 
> Roosevelt invented social security.
> 
> Roosevelt created social security.
> 
> What Gore did is funding the creation of the internet, how is that not creating it?


How many other Senators and Congress people were involved in the votes for same and why do you think any *one* of those individuals deserves any more credit than any other?

Why would the credit not belong to the actual technical people that *built* the network from the ground up without concern for where the money was coming from? Those are the people that *really* invented and created the Internet.

Anyone else claiming to have done it is just a poser. Period.


----------



## psyton

yunlin12 said:


> What Gore did is funding the *creation* of the internet, how is that not creating it?


No he didn't. As ARPANET moved into deployment, Gore was finishing college and serving in the Army. Gore didn't reach the House until '76, and the Senate until '85, well after the internet was created.

While he may of had a hand in *continuing* funding of the internet, and funding the explosion of the internet, he had no hand in the conception, invention or creation of the internet, despite what you may believe.


----------



## 1283

yunlin12 said:


> What Gore did is funding the creation of the internet, how is that not creating it?


Internet already existed. That bill accelerated the expansion of the network. It did not create the Internet.


----------



## acvthree

Well, here is the scopes reference...

http://www.snopes.com/quotes/internet.asp


----------



## drew2k

Where the hell are the moderators on this forum?

And where the hell is the graphic for ...

*BACK TO TOPIC!*


----------



## BlackBetty

drew2k said:


> Where the hell are the moderators on this forum?
> 
> And where the hell is the graphic for ...
> 
> *BACK TO TOPIC!*


+1 knock it off people. Create a new thread about Gore and the Internet elsewhere.


----------



## terpfan1980

BlackBetty said:


> +1 knock it off people. Create a new thread about Gore and the Internet elsewhere.


Someone died and left you as god?  

But, in the spirit of talking about trials and such, I think the original poster here:


acvthree said:


> Well, here is the *scopes reference...*
> 
> http://www.snopes.com/quotes/internet.asp


... could have been talking about a trial, but probably not the one being discussed in the original topic?!?


----------



## drew2k

bdowell said:


> Someone died and left you as god?
> 
> But, in the spirit of talking about trials and such, I think the original poster here:
> 
> ... could have been talking about a trial, but probably not the one being discussed in the original topic?!?


Seriously, why do people want to risk having this thread closed with such off-topic discussions? This forum traditionally closes threads when the post counts reach 1000, and we're dangerously close to that with the final results of the Echostar/TiVo trial still up in the air. There's a reason posts are called off-topic, and there's a reason they should be taken elsewhere: they're not on topic!

Now ... what's the latest on the trial? I want news!

07:52 AM EST: EDITED TO ADD response to bdowell's message below (so I don't inflate the thread post-count): 

Now back to the trial!


----------



## terpfan1980

drew2k said:


> Seriously, why do people want to risk having this thread closed with such off-topic discussions? This forum traditionally closes threads when the post counts reach 1000, and we're dangerously close to that with the final results of the Echostar/TiVo trial still up in the air. There's a reason posts are called off-topic, and there's a reason they should be taken elsewhere: they're not on topic!
> 
> Now ... what's the latest on the trial? I want news!


And discussing the fact that a thread seems to be off-topic just adds +1 to the post count also, making it get ever closer to the 1,000 mark too.

If you really want to complain about content in the thread, then use the report this post button and a mod will respond.

The only problem with that is that the mod could respond by locking the thread in which case a new thread would need to be started anyway.

As is, this thread will likely wind up continued into a new one anyway given that we're still not to the end of the road by a long shot. Echostar will do as they always do (and as most people participating in the legal system in this country do) and will make use of every appeal possible so they can delay payment of any compensation as long as possible.

Unless things seriously change in the legal system (and tort reform really seems to be going no where anytime soon), the end of Echostar vs. TiVo may be a long, long way off. (Probably two more threads worth at this rate....)


----------



## BlackBetty

bdowell said:


> If you really want to complain about content in the thread, then use the report this post button and a mod will respond.


Done


----------



## BobCamp1

yunlin12 said:


> I meant to say that if Tivo is covering the asses of the people who licensed Tivo's technology from any patent infringement case brought against Tivo and their licensensees, then ReplayTV probably would've done the same for those who licensed ReplayTV's technology against anyone who may sue them, i.e., Tivo.
> 
> It's not hard evidence, but seems like common sense. If Tivo and ReplayTV had agreed to live and let live, allowing each other to try expand the DVR market on its own, then it would make sense they would allow each other to profit off their own technology by not going after people who may license each's technology.


Usually, an official signed agreement is reached where the two companies are allowed to use each other's Intellectual Property Rights. Sometimes money exchanges hands. It does happen all the time. It clearly did NOT happen in this case.

Really, these two knucklehead companies haven't settled this yet? It's not like Tivo doesn't need the money or Dish doesn't need a DVR. IPR cases are always settled. I've never seen a judgement actually fully carried out. Settle already!


----------



## psyton

BlackBetty said:


> bdowell said:
> 
> 
> 
> If you really want to complain about content in the thread, then use the report this post button and a mod will respond.
> 
> 
> 
> Done
Click to expand...

Pot calling the kettle black_betty_. A quick peruse of your posts will reveal you're not so perfect yourself.

http://www.tivocommunity.com/tivo-vb/showthread.php?p=4739028&&#post4739028


BlackBetty said:


> I know this is off topic but....


----------



## bidger

BobCamp1 said:


> It's not like Tivo doesn't need the money or Dish doesn't need a DVR.


I think you'll find the vast majority of Dish DVR users are quite happy with their platform as it stands now and don't want the cartoony TiVo interface. The whole nature of Dish Network is to squeeze blood out of stone when it comes to money paid out to others. It's the reason they're always in court and the fact that they always haggle with content providers.


----------



## ChuckyBox

bidger said:


> The whole nature of Dish Network is to squeeze blood out of stone when it comes to money paid out to others. It's the reason they're always in court and the fact that they always haggle with content providers.


That tactic has already backfired with the distant locals issue, and if the TiVo injunction is enforced it will have backfired monumentally. Most people assume TiVo will settle, but there is a school of thought that TiVo will try to boost its cable relationships by leaving Echostar twisting in the wind with 4 million customers with dead DVRs.


----------



## BlackBetty

psyton said:


> Pot calling the kettle black_betty_. A quick peruse of your posts will reveal you're not so perfect yourself.
> 
> http://www.tivocommunity.com/tivo-vb/showthread.php?p=4739028&&#post4739028


wow you really got me there!!! lol I asked how fast a bullet travels. Keep in mind this was asked in a thread about guns.

I can't stop laughing.


----------



## ZeoTiVo

ChuckyBox said:


> That tactic has already backfired with the distant locals issue, and if the TiVo injunction is enforced it will have backfired monumentally. Most people assume TiVo will settle, but there is a school of thought that TiVo will try to boost its cable relationships by leaving Echostar twisting in the wind with 4 million customers with dead DVRs.


It will not be TiVo leaving Echostar twisting in the wind. It will be echostar business practices that do that


----------



## shadowfax9x

Much to my surprise, nary a comment on my Forgent v. Echostar court decision or the Tivo v. Forgent posts...

In Forgent v. Echostar, the law firm of Morrison-Foerster successfully argued that Forgent's '746 patent (playback feature) was invalid and the E. Texas jury agreed in favor of Echostar...

It makes one wonder... Why did the likes of Time Warner, Comcast, Cox, Motorola, Scientific Atlanta, Direct TV and others throw in the towel and settle with Forgent??? Especially since the PTO Review Panel had already ruled that Forgent's PTO '746 patent does not describe or enable a system with the capability of playback during storage... It also makes one wonder why a patent troll, like Forgent, announce that it still intends to pursue its infringement case against Echostar Technologies and Echosphere when the outcome appears to be a slam dunk for those two remaining defendents....

The thread rail birds might reply: So, what does that have to do with TiVo???

Well, in light of the recent discussion regarding potential future TiVo infringers and the indemnification of TiVo's licensees, it is most relevant and it may explain why TiVo recently filed their complaint against Forgent in the District Court in N. California...

As a TiVo shareholder, I am a little bit concerned about a recent comment made by Supreme Court Justice Scalia regarding patent complaints (paraphrased) _We need to get a grip and rope in those cowboys in E. Texas_

Sobering comments from the likes of ChuckyBox and the other alpha dogs are most welcome...


----------



## mtchamp

So TiVo sues Forgent on 05/17 one day after they get documents through the Geogia Court from Echostar and during a USPTO re-exam of which the outcome, if there is one, is not yet public. What is the significance, if any, of TiVo to being suing anyone for patent infringement at this time, or is Forgent a slam dunk because they just lost their suit against Echostar for DVR infringement of Forgent's DVR patent?


----------



## Greg Bimson

I could be off the mark here, but I believe that Echostar simply won its case. I didn't see anything where Forgent lost the patent because of a re-exam.

However, I recall that DirecTV lost a similar-type patent suit to Finisar. Dish Network then sued Finisar to avoid being sued by Finisar. Dish Network wanted to be found outside the scope of the Finisar patent.

So I'd believe that TiVo is trying the exact same tactic with Forgent. A jury just found Forgent's patent does not apply to Echostar's DVR's, and another jury could find that TiVo's DVR's do not infringe. Going there and with the PTO's re-exam, there is a chance Forgent is left with nothing.

It's simply a matter of kicking Forgent while they are down.


----------



## mtchamp

TiVo is the one I was speaking of that is now going through a patent re-exam for hardware claims in their time warp patent that were invalidated when Echostar requested a re-exam. TiVo's software claims were upheld and TiVo is now waiting to see if the USPTO will restore the hardware claims.


----------



## Greg Bimson

Missed that TiVo was trying to get their hardware claims restored. Thanks.


----------



## ChuckyBox

shadowfax9x said:


> Much to my surprise, nary a comment on my Forgent v. Echostar court decision or the Tivo v. Forgent posts...



I haven't really been following the Forgent suit, so I didn't have much comment. But I read TiVo's complaint that you linked.

Basically, the timing of this action appears coincidental with the other actions discussed. In the complaint TiVo is asking for Equitable Estoppel of a Forgent suit against it. Under that doctrine if, to my detriment, I rely upon "representations" made by you, which you then reverse, it is only fair that you should be prevented (estopped) from suing me.

In this case, TiVo is saying that Forgent made a bunch of noise in 2001 and 2002 about suing TiVo over Forgent's '746 patent. TiVo replied to them that they didn't believe they infringed and they believed the patent to be invalid. Forgent then ignored TiVo for the next four years (w.r.t. this patent). But during that time they sued a bunch of people, including TiVo, over an unrelated patent. Then, last year, Forgent sued every major DVR manufacturer *except TiVo* over the '746 patent. But TiVo has learned that Forgent now intends to sue TiVo, as well. TiVo is saying "no fair" -- that Forgent, by dropping the matter for four years and by suing everyone but TiVo, sent the message that they agreed with TiVo's position that it didn't infringe, and therefore denied TiVo the opportunity to take any remedial action (etc.) that it could have taken had the issue been pursued in a timely fashion.

They also say that the patent is invalid, all of its claims have been rejected on the (as yet unfinished) review.

There is no mention of Forgent v. Echostar or the results of that case.

My view of Forgent is that they are successful because they have very little invested in their patents and they have no actual business in which they compete with anyone, so they can charge very little to license their patents and still be profitable. They pick a price at which the defendant company will probably pay more in legal fees fighting them (with ultimately uncertain results) than just settling. It is successful often enough that they make money. There are very few companies like Echostar who will fight no matter what. Echostar probably spent more fighting the case than it would have cost them to settle (and probably spent far more than Forgent), but that's the way they work. Meanwhile, Forgent goes on collecting a few million here, a few million there...


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## ZeoTiVo

I made the new thread as it is best to not keep posting in a thread over 1,000 posts. It hurts the databse resources to do so.

new thread
Continued Coverage of TiVo/Echostar Trial


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## shadowfax9x

mtchamp said:


> So TiVo sues Forgent on 05/17 one day after they get documents through the Geogia Court from Echostar and during a USPTO re-exam of which the outcome, if there is one, is not yet public. What is the significance, if any, of TiVo to being suing anyone for patent infringement at this time, or is Forgent a slam dunk because they just lost their suit against Echostar for DVR infringement of Forgent's DVR patent?


When the Forgent v. Echostar court decision was first reported, I pulled up multiple reliable references pertaining to the PTO exam of Forgent's '746 patent... I have yet to locate the exact quoted reference that I mentioned in my post... For now, I can only offer you this tid bit found in Bloomberg's: "The U.S. Patent and Trademark Office also is reviewing the Forgent patent and, in preliminary decisions, has rejected it. The jury wasn't told of the patent office's review, Krevans said." 



The significance as it applies to TiVo can be found in any TiVo 10-K filing under the Indemnification to licensees section... As a number of TiVo licensees have already settled with Forgent, I'm not exactly sure if the TiVo v. Forgent action in N. California can or will negate those settlements if successful... By the way, Forgent has already announced that it will appeal the Forgent v. Echostar decision...


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## ThreeSoFar

ZeoTiVo said:


> I made the new thread as it is best to not keep posting in a thread over 1,000 posts. It hurts the databse resources to do so.
> 
> new thread
> Continued Coverage of TiVo/Echostar Trial


Rather than filling the new thread witn "me too" posts, just to sub to it, here's a direct link to do so:

http://www.tivocommunity.com/tivo-vb/subscription.php?do=addsubscription&t=353290


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## shadowfax9x

*Where there is a will, there is a way... The sheer madness of it all...*


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## ZeoTiVo

shadowfax9x said:


> *Where there is a will, there is a way... The sheer madness of it all...*


thiis the second thread trail and there has been a third that got locked and now a fourth thread trail - best to use the new fourth thread - TiVo and Echostar have filed their latest briefs


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## Puppy76

There's a FOURTH thread? I had no idea there was a second until today, and had wondered why updates had stopped.


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