# Supreme Court won't hear EchoStar/DISH



## davezatz (Apr 18, 2002)

Supreme Court won't hear EchoStar/DISH appeal...

EchoStar & DISH's response:


> DISH Network Corporation (NASDAQ: DISH) and EchoStar Corporation (NASDAQ: SATS) issued the following statement regarding today's ruling by the United States Supreme Court in EchoStar Communications Corporation vs. Tivo: "As expected, the Supreme Court denied our petition for certiorari today. The Supreme Court's decision, however, does not impact our software design-around, which has been placed in DISH DVRs subject to the district court's injunction, and our customers can continue using their DISH DVRs. We believe that the design-around does not infringe Tivo's patent and that Tivo's pending motion for contempt should be denied. We look forward to that ruling in the near future. *Because of the Supreme Court's decision, we will pay Tivo approximately $104 million (the amount the jury awarded in 2006 plus interest). The money is in an escrow account and will be released to Tivo in the next few days.*"


TiVo's response:


> TiVo Inc. (Nasdaq: TIVO), the creator of and leader in television products and services for digital video recorders (DVR), offered the following statement today on the ruling by the United States Supreme Court to deny an appeal by EchoStar Communications Corporation: "We are extremely pleased that the United States Supreme Court has denied EchoStar's petition to review the United States Court of Appeals for the Federal Circuit unanimous ruling that upheld the District Court judgment of willful patent infringement, full award of damages, and a permanent injunction against EchoStar's infringing DVR products. We look forward to the expeditious receipt of damages awarded by the District Court covering the period through September 8, 2006 and *remain confident that the District Court will enforce the injunction and award further damages from EchoStar's continued infringement of our Time Warp patent.*"


http://www.zatznotfunny.com/2008-10/breaking-echostar-dish-to-finally-pay-tivo/


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## morac (Mar 14, 2003)

$104 million is a hefty chunk of change. I'm curious as to how TiVo will put that to use.


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## jlb (Dec 13, 2001)

Maybe they'll use it for a new marketing campaign....

"TiVo, the funnest DVR"


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## Dajad (Oct 7, 1999)

Hip Hip Hooray!!!


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## GoHokies! (Sep 21, 2005)

Bravo.

The money is long, long overdue.


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## LoREvanescence (Jun 19, 2007)

That's some good news=)


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## bmgoodman (Dec 20, 2000)

jlb said:


> Maybe they'll use it for a new marketing campaign....
> 
> "TiVo, the funnest DVR"


I'm expecting they'll use the extra money to find a way to give us more yellow-star goodness and even more targeted ads! 

Calm down. I kid because I love!


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## Sapphire (Sep 10, 2002)

morac said:


> $104 million is a hefty chunk of change. I'm curious as to how TiVo will put that to use.


The irony is that they'll probably use it to develop a new DVR for DirecTV.


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## gastrof (Oct 31, 2003)

And in the meantime Dish is coming out with its TR-50 DVR for OTA later this month or next.


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## ZeoTiVo (Jan 2, 2004)

morac said:


> $104 million is a hefty chunk of change. I'm curious as to how TiVo will put that to use.


those remotes for the 11 year anniversary are going to look mighty spiffy 

ETA - or maybe they are working on my beloved HoLocube

The money is a nice shot in the arm, though of course how much of it goes to the lawyers? The real contest TiVo execs should be focused on is the contempt hearing and if the Judge will allow the "software workaround" Dish touts even in the press release on the Supreme Court decision. If TiVo wins there then it will be a truly strong patent portfolio they bring to the table


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## rainwater (Sep 21, 2004)

How much money they get from Echostar really isn't any type of long term financial solution. TiVo wants to win the lawsuit to strengthen it's patent portfolio so it can go to DVR makers and force licensing deals.


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## Lazlo123 (Nov 7, 2006)

This may sound silly... but I haven't followed this very much at all, and was wondering if somebody might be able to tell me what exactly was infringed upon? (Is that an appropriate use of words..? hmm..  )


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## ZeoTiVo (Jan 2, 2004)

Lazlo123 said:


> This may sound silly... but I haven't followed this very much at all, and was wondering if somebody might be able to tell me what exactly was infringed upon? (Is that an appropriate use of words..? hmm..  )


more than a thousand posts on that very topic, enjoy.


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## garbec (May 14, 2004)

If I were TIVO, I would use all the money to hire lawyers to go after every other DVR in the country for license fees.

This judgment sets a legal precidence that needs to be leveraged.


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## Lazlo123 (Nov 7, 2006)

ZeoTiVo said:


> more than a thousand posts on that very topic, enjoy.


Thanks for the link. But with 1,000's of posts.. Its kind of like looking for a new in a haystack... or hay in a need stack...


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## davezatz (Apr 18, 2002)

garbec said:


> If I were TIVO, I would use all the money to hire lawyers to go after every other DVR in the country for license fees.


Well they already have deals with DirecTV, Cox, and Comcast. Not sure it'd make sense strategically to potentially alienate Cox and Comcast by going after their hardware partners (Motorola, Scientific Atlanta/Cisco), especially since TiVo software is being designed to run on them. No sense in going after Digeo, who is dying. Verizon's got money, maybe go after them. But given how many years (4?) and how much money this took, I'd suggest investing whatever's left into R&D and marketing.


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## gastrof (Oct 31, 2003)

Lazlo123 said:


> This may sound silly... but I haven't followed this very much at all, and was wondering if somebody might be able to tell me what exactly was infringed upon? (Is that an appropriate use of words..? hmm..  )


My ISP carried an article about this from the Associated Press this afternoon.

In part, it said

*"In January, the U.S. Court of Appeals for the Federal Circuit agreed with a lower court that digital video recorders distributed by Dish, formerly known as EchoStar Communications Corp., violated the software elements of Alviso,Calif.-based TiVo's patent. The ruling overturned the lower court's finding that Dish also infringed on the patent's hardware elements.

"...TiVo sued in 2004, alleging that EchoStar, a satellite broadcaster, infringed on TiVo's patented technology that allows viewers to record one program while watching another.

"...Dish Network has said that the ruling would not affect its customers because the company had developed and distributed new DVR software that 'does not infringe the Tivo patent at issue in the Federal Circuit's ruling.' "*

So in the eyes of the law, DISH used software to drive their recorder that was in some way a little too much like TiVo's software. TiVo originally said Dish's hardware was also a rip-off of theirs, but the courts ended up saying 'No, it isn't.'


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## MichaelK (Jan 10, 2002)

gastrof said:


> My ISP carried an article about this from the Associated Press this afternoon.
> 
> In part, it said
> 
> ...


Specifically part of tivo's patent that deals with how the data gets indexed for quick trickplay if i understand correctly. There was also something in there about tivo using a special asic to do that instead of letting the cpu get abused.

And I'm not certain as I'm no lawyer but i dont think any court said "no, it isn't"- my laymans understanding is the court said "although the jury said dish did infringe on your hardware, you didn't prove it, so that part of the decision is void feel free to argue that again" - tivo didn't retry on that count YET but might not have for any of many different reasons.


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## ZeoTiVo (Jan 2, 2004)

MichaelK said:


> And I'm not certain as I'm no lawyer but i dont think any court said "no, it isn't"- my laymans understanding is the court said "although the jury said dish did infringe on your hardware, you didn't prove it, so that part of the decision is void feel free to argue that again" - tivo didn't retry on that count YET but might not have for any of many different reasons.


that is right there are 3 doctrines or some such thing discussed in the longer thread and the higher court said the wrong doctrine was used for the hardware finding. So they remanded it back to the lower court to do it again with the correct doctrine - but it is TiVo that must start the ball rolling again.

I think with the time involved already they chose to go forward with the software part only as that was fairly far along.


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## rainwater (Sep 21, 2004)

davezatz said:


> Well they already have deals with DirecTV, Cox, and Comcast. Not sure it'd make sense strategically to potentially alienate Cox and Comcast by going after their hardware partners (Motorola, Scientific Atlanta/Cisco), especially since TiVo software is being designed to run on them. No sense in going after Digeo, who is dying. Verizon's got money, maybe go after them. But given how many years (4?) and how much money this took, I'd suggest investing whatever's left into R&D and marketing.


I don't think they are planning on going on a lawsuit frenzy. I think it will help them get into areas where they couldn't before. Having the leverage is probably what helped them get back in bed with DirectTV. I think in a few years you may see TiVo software available for other cable providers besides Comcast because of the ruling.


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## Dan203 (Apr 17, 2000)

rainwater said:


> Having the leverage is probably what helped them get back in bed with DirectTV.


Nah, TiVo signed a deal with DirecTV shortly after they got the initial verdict which protected them from getting sued for at least a few years. The reason TiVo was able to break back into DirecTV is because DirecTV got bought up by a new company who, unlike the last one, didn't have their own DVR technology they wanted to leverage. If News Corp hadn't bought DirecTV in the first place then TiVo would still be the premiere DVR for the service. Lucky for them, and us, News Corp's reign was short lived and the new owners are smart enough to give TiVo another shot at their customers.

Dan


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## destek (Jan 15, 2001)

As an early adopter of TIVO (paid a very high price for the DVR, but dirt cheap on the lifetime sub) I am very pleased with this. Yeah the 104 mil is a nice chunk of change, but I agree with the posters that it's more about future licensing than the cash.
I am also a person who thinks software patents are often evil - but in this case I think TIVO was correct to step in and protect themselves from a company so clearly bent on taking someone elses great ideas and development efforts and call it their own. I was once a DISH fan - but really felt they were pushing this piece of garbage they called a DVR (so far as to say it was "as good as TIVO") as a cash grab to keep people from buying and using a clearly superior product.

Des


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## dslunceford (Oct 19, 2000)

Might have missed this posted elsewhere, but seeing twitter posts that TiVo received $104,600,472 payment from EchoStar....


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## rainwater (Sep 21, 2004)

http://www.prnewswire.com/cgi-bin/stories.pl?ACCT=109&STORY=/www/story/10-09-2008/0004901307&EDATE=


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## ZeoTiVo (Jan 2, 2004)

rainwater said:


> http://www.prnewswire.com/cgi-bin/stories.pl?ACCT=109&STORY=/www/story/10-09-2008/0004901307&EDATE=


from link
We remain confident that the District Court will enforce the
injunction and award further damages from EchoStar's continued infringement
of our Time Warp patent."

Hope their confidence is correct


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## CuriousMark (Jan 13, 2005)

ZeoTiVo said:


> from link
> We remain confident that the District Court will enforce the
> injunction and award further damages from EchoStar's continued infringement
> of our Time Warp patent."
> ...


Well they will get at least 16 million more even if the court does not enforce the injunction and accepts Dish's lowball damage calculation number. I think they will do better than that, but how much and when is the question.


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## BlackBetty (Nov 6, 2004)

CuriousMark said:


> Well they will get at least 16 million more even if the court does not enforce the injunction and accepts Dish's lowball damage calculation number. I think they will do better than that, but how much and when is the question.


The judge pretty much laughed when Dish said $16M. So I'd say its a safe bet TiVo gets more than that.


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## SleepyBob (Sep 28, 2000)

When do we expect to hear more on the continued infringement/contempt part of things?


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## swinca (Jun 19, 2003)

destek said:


> I was once a DISH fan - but really felt they were pushing this piece of garbage they called a DVR (so far as to say it was "as good as TIVO") as a cash grab to keep people from buying and using a clearly superior product.
> 
> Des


Have you used a Dish DVR lately? I have both the Dish HD DVR and a Tivo Series 2. The Dish DVR has some features that are better than Tivo - like multi-room viewing with 1 DVR. I like both of them for different reasons.


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## CuriousMark (Jan 13, 2005)

SleepyBob said:


> When do we expect to hear more on the continued infringement/contempt part of things?


It is hard to say. The Texas judge could rule any day or wait for nearly another month before ruling. The Delaware judge could decide to accept or throw out Dish's case there at any minute or wait to see what the Texas judge does first. Then again TiVo and Dish could be talking behind the scenes and an announcement from them could come first. I think both judges are hoping for that.

If we get a ruling, one way or the other, it will almost surely be appealed and that process can take a year or more, so don't hold your breath.


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## magnumis (Jan 6, 2005)

swinca said:


> Have you used a Dish DVR lately? I have both the Dish HD DVR and a Tivo Series 2. The Dish DVR has some features that are better than Tivo - like multi-room viewing with 1 DVR. I like both of them for different reasons.


The multi-room viewing with one DVR works great for me. The Dish DVR also has a faster menu response than my Tivos.


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## mike3775 (Jan 3, 2003)

keep in mind, praising any DVR over TIVO is frowned upon on these boards, its like a major major sin to say that anything is better than a Tivo on these 
boards, and if you say anything bad about Tivo, you are nothing but a troll


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## rainwater (Sep 21, 2004)

mike3775 said:


> keep in mind, praising any DVR over TIVO is frowned upon on these boards, its like a major major sin to say that anything is better than a Tivo on these
> boards, and if you say anything bad about Tivo, you are nothing but a troll


That is not true. There are things I found using Moxi that I liked better than TiVo and noted them on this forum. People didn't respond to me like I was a troll. However, this is a TiVo board, so you are going to have most of the forum members to be happy TiVo owners, so you can't expect many people praising other products.


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## mike3775 (Jan 3, 2003)

I know that rainwater, but some here no matter what, say what I said exactly

I have been called a troll because I said that there are things that the Comcast DVR can do that Tivo can't, and in that instance, the DVR is better than the Tivo, and I got the usual "well go be happy with the piece of crap" or "the comcrapular DVR sucks compared to Tivo" bits

Hell I was once called a troll because I said that Customer Support actually was very helpful and actually helped me out. And that never happens you know, since Tivo only hires incompetent idiots to answer the phones and only goes off of a book in helping


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## ZeoTiVo (Jan 2, 2004)

mike3775 said:


> I know that rainwater, but some here no matter what, say what I said exactly


 so since a few act that way, you would brand the whole board as that. It sounds like you are doing the very thing you decry, just in a different context.

anyhow it would be best to keep the thread on the topic of the trial/injunction. Since new developments only come along at the slow pace of the justice system these threads have a tendency to wander off topic and then some flame can erupt and get the thread locked... again.


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## kb7oeb (Jan 18, 2005)

gastrof said:


> And in the meantime Dish is coming out with its TR-50 DVR for OTA later this month or next.


TR-50 is months over due, I wonder if the lawsuit had any impact on that.


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## larrs (May 2, 2005)

rainwater said:


> That is not true. There are things I found using Moxi that I liked better than TiVo and noted them on this forum. People didn't respond to me like I was a troll. However, this is a TiVo board, so you are going to have most of the forum members to be happy TiVo owners, so you can't expect many people praising other products.


Same here. I had ReplayTV and still wish Tivo would implement the ability to schedule to one DVR from another DVR when there are conficts. No one flamed me for that.


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## fallingwater (Dec 29, 2007)

mike3775 said:


> keep in mind, praising any DVR over TIVO is frowned upon on these boards, its like a major major sin to say that anything is better than a Tivo on these boards, and if you say anything bad about Tivo, you are nothing but a troll


Tivo is optimized for timeshifting and offers many features beyond just those of a DVR

TiVo is the only DVR not offered by a satellite or cable program provider. TiVo is unsurpassed regarding its stability and reliability.

Other DVRs have features which TiVo doesn't.

It's a customer's choice.


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## davezatz (Apr 18, 2002)

fallingwater said:


> TiVo is the only DVR not affiliated with a satellite or cable program provider


TiVo has business relationships with Cox, Comcast, and DirecTV to provide DVR services. And Cablevision Mexico resells TiVo hardware. Not to mention that group of smaller cable providers.


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## fallingwater (Dec 29, 2007)

Your post was read and the post you quoted is corrected. Thanks.


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## CuriousMark (Jan 13, 2005)

fallingwater said:


> TiVo is the only DVR not offered by a satellite or cable program provider.


Getting closer. Comcast now offers TiVo service on their DVR for an additional fee, Cox is expected to roll out similar service around the end of the year and late next year DirecTV will again offer a DVR with TiVo service.

But your point that TiVo is not captive to any of these program providers and is an option with all of them (sort of) is valid.

Things are certainly getting more and more interesting.


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## gastrof (Oct 31, 2003)

fallingwater said:


> ...TiVo is the only DVR not offered by a satellite or cable program provider...


But, as mentioned above, doesn't Comcast offer DVRs with TiVo software, and doesn't that Mexican cable company offer TiVo hardware?

Plus, isn't DirecTV going back into partnership with TiVo to produce new DVR/Satellite boxes that will be able to tune and record their newer bunch of HD channels?


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## rv65 (Aug 30, 2008)

Yes Directv and Tivo have made a deal. Might just be like the Comcast Tivo that gives you a tivo interface on the Directv hardware. It could just be the existing hardware or will probably be the next generation Series 4 tivo but with Directv capabilities. I'm sure Directv will cripple it here and there.


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## CuriousMark (Jan 13, 2005)

Things coming up in the case:

- Judge Folsom in Texas may issue an order on whether or not Dish is in contempt for not shutting down enjoined DVRs and on how much additional damages Dish owes in November or perhaps a little sooner.

- The Delaware court could decide to entertain or throw out Dish's request to have their modified software declared non-infringing at any minute or wait to see what Judge Folsom does.

- TiVo and Dish could reach an agreement to settle and keep all those DVRs on

- Things could drag out into next year.

It's like watching paint dry in single frame mode.


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## reh523 (Feb 28, 2006)

gastrof said:


> And in the meantime Dish is coming out with its TR-50 DVR for OTA later this month or next.


And in the meantime *Echostar* is coming out with its TR-50 DVR for OTA later this month or next.

FTFY


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## gastrof (Oct 31, 2003)

Interesting.

The TR-40 is said to be "by Dish Network".

www.dtvpal.com

Odd that's its sister device would be by 'an entirely different company'.


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## fallingwater (Dec 29, 2007)

http://www.dtvpal.com/

© Copyright 2008, EchoStar Satellite L.L.C.


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## davezatz (Apr 18, 2002)

fallingwater said:


> http://www.dtvpal.com/
> © Copyright 2008, EchoStar Satellite L.L.C.


There's still not a clear distinction between EchoStar and DISH - especially in regards to the DTVPal and TR-50, which began their lives before the company split into two. In fact, I've seen DTVPal units with EchoStar branding AND units with DISH Network branding. The one their PR team sent me had DISH branding on the unit and remote. In theory, EchoStar produces the hardware for DISH who sells it to consumers. But who knows in this case.


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## kb7oeb (Jan 18, 2005)

Echostar sells hardware to out of country providers like Bell in Canada and other products in Europe. If you look at the Bell hardware it is the same stuff Dish uses but runs different software. Dish Network was part of Echostar before they separated it.


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## BlackBetty (Nov 6, 2004)

is it me or does this Judge seem to be taking an awfully long time to decide contempt or not? I mean its his very own injunction and he can't figure out if Dish is in contempt or not for not following his very order? Its been like 5 months since contempt has been brought in front of the Judge.

Doesn't look good for TiVo.


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## nrc (Nov 17, 1999)

BlackBetty said:


> is it me or does this Judge seem to be taking an awfully long time to decide contempt or not? I mean its his very own injunction and he can't figure out if Dish is in contempt or not for not following his very order? Its been like 5 months since contempt has been brought in front of the Judge.
> 
> Doesn't look good for TiVo.


I doubt that the time has anything to do with who is favored. The judge stated at the time that his schedule wouldn't permit a quick ruling. He knows that regardless of his ruling it will be appealed. So he has to thoroughly research the legal points of the arguments put before him, form an opinion, and write a ruling that clearly lays out the reasons for that ruling. All while trying other cases.

Keep in mind also that there are actually two issues to be ruled on. One is contempt and the other is enhanced damages during the period following the ruling.


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## Greg Bimson (Jun 19, 2004)

nrc said:


> Keep in mind also that there are actually two issues to be ruled on. One is contempt and the other is enhanced damages during the period following the ruling.


Good point.

The resolution of the motion requesting will be complex, and is probably taking up the largest chunk of the decision.

For those that do not know, DISH is claiming they owe only an additional $16 million in damages from 8 September 2006 to 18 April 2008. They are claiming that once they've downloaded new software to the products that were found as infringements, the damages (which accrued at $1.25 per receiver) ended.

TiVo on the other hand has requested damages in three different categories totalling $220 million...

1) $55 million for the receivers running old software until new software was downloaded; this calculation includes lost profit damages on 375K receivers. The lost profit damages are based on a simple but-for analysis: but for the stay, these receivers would have been disabled, and TiVo would have signed up another 375K customers.

2) $113 million for the receivers adjudged as infringements which had the old software and received new software, from 8 September 2006 to 18 April 2008. TiVo is arguing the damages rate should increase to $2.25 per receiver.

3) $52 million for the receivers that never had old software and received only the new software, between 8 September 2006 and 18 April 2008. In other words, TiVo is asking the court to find that the eight models of DVR found infringing, but with only the newer software, are still infringing. Therefore, the court will need to determine if those receivers infringe and if they are merely colorably different from the original eight models. If the answer to both is yes, Judge Folsom can find DISH/SATS in contempt regarding infringement in those models and award the damages in this category.

This is quite a bit more work than writing a decision regarding contempt of a direct order.


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## jrm01 (Oct 17, 2003)

And, the first downpayment of $104 million has been made.
http://investor.tivo.com/releasedetail.cfm?ReleaseID=339469


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## davezatz (Apr 18, 2002)

jrm01 said:


> And, the first downpayment of $104 million has been made. http://investor.tivo.com/releasedetail.cfm?ReleaseID=339469


That was like a month ago and is quoted in the first post in this thread.  However, TiVo's really hunkering down... All that cash, and they're still moving forward with layoffs? Not that they really need 500 employees.


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## jrm01 (Oct 17, 2003)

davezatz said:


> That was like a month ago and is quoted in the first post in this thread.  .


Whoops. I jump in and out of these threads just to see what is going on and missed that part of the first post. Guess I should stay away from the keyboard on this issue and just keep my eyes on the screen.


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