# Dish has been found to be in contempt in TiVo lawsuit



## Curtis (Dec 2, 2003)

developing...


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## hefe (Dec 5, 2000)

<Ballmer>Developing, developing, developing, developing...</Ballmer>


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## CrispyCritter (Feb 28, 2001)

Very interesting! I'm not sure at all that TiVo is suddenly worth 40% more than it was an hour ago, but it is good news. An excerpt posted on Yahoo:



> An excerpt from the document (conclusion):
> Therefore, this Court finds that a hypothetical negotiation between the parties in September
> 2006 would have settled on the jury's verdict for the twenty-month stay period. TiVo shall be
> awarded $1.25 per DVR subscriber per month, notwithstanding EchoStar's design-around efforts.
> ...


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## nrc (Nov 17, 1999)

CrispyCritter said:


> Very interesting! I'm not sure at all that TiVo is suddenly worth 40% more than it was an hour ago, but it is good news. An excerpt posted on Yahoo:


It's because according to TiVo the court "rejected EchoStar's attempted workaround claim regarding the TiVo patent, found EchoStar to be in contempt of court *and ordered the permanent injunction fully enforced.*" 
http://news.prnewswire.com/DisplayR...STORY=/www/story/06-02-2009/0005037328&EDATE=

If true, that means that Echostar will have to shutdown DVR service on any remaining adjudged DVRs in the field unless they arrive at some agreement with TiVo.


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## Daniel (Feb 25, 2001)

Oh, they'll get the shut off stayed by the appellate court, but the end is near for E*.


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## ZeoTiVo (Jan 2, 2004)

nrc said:


> It's because according to TiVo the court "rejected EchoStar's attempted workaround claim regarding the TiVo patent, found EchoStar to be in contempt of court *and ordered the permanent injunction fully enforced.*"
> http://news.prnewswire.com/DisplayR...STORY=/www/story/06-02-2009/0005037328&EDATE=


"EchoStar may attempt to further delay this case but we are very pleased the Court has made it clear that there are major ramifications for continued infringement."


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## Bierboy (Jun 12, 2004)

Yay for TiVo.


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## BlackBetty (Nov 6, 2004)

about time!!! Congrats TiVo Corp. Well deserved win! Long live TiVo!!!!


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## bkdtv (Jan 9, 2003)

Looks like TiVo just doubled its cash-on-hand from $200 million to ~$400 million. And that's before any settlement...

_Edit: That should say $300 million._



> "For the reasons set forth above, this Court finds EchoStar in contempt of its permanent injunction. EchoStar's modified software is not more than colorably different from the products adjudged to infringe; furthermore, EchoStar's products continue to infringe TiVo's patent. Finally, EchoStar failed to comply this Court's order that it disable the DVR functionality in the infringing products.
> 
> The harm caused to TiVo by EchoStar's contempt is substantial. EchoStar has gained millions of customers since this Court's injunction issued, customers that are now potentially unreachable by TiVo. See Dkt. No. 773 at 10. As this Court has noted in the past, "loss of market share and of customer base as a result of infringement cause severe injury," and "every day of Defendant's infringement affects Plaintiff's business." Id. at 10-11. Although EchoStar requests that this Court stay its injunction further, this Court declines to do so. EchoStar has escaped this Court's injunction for over two years and further delay will be manifestly unjust to TiVo and cause TiVo substantial harm.
> 
> ...





> Pursuant to Rule 58 of the Federal Rules of Civil Procedure, and in accordance with the jury verdict delivered on April 13, 2006 and the Federal Circuit mandate issued April 18, 2008, and with the Court's contemporaneously filed opinions and orders, the Court hereby enters judgment for Plaintiff against Defendants for willful infringement of U.S. Patent No. 6,233,389 ("the '389 Patent") claims 31 and 61 ("the Infringed Claims") by Defendants' following DVR receivers...
> 
> IT IS THEREFORE ORDERED THAT Plaintiff shall have and recover from Defendants, jointly and severally, the total sum of $73,991,964.00, together with prejudgment interest at the rate of prime, said prejudgment interest in the total sum of $5,367,544.00, together with supplemental damages in the amount of $10,317,108.00, together with post-judgment interest on the entire sum calculated pursuant to 28 U.S.C. § 1961. In addition, Plaintiff shall have and recover from Defendants, jointly and severally, the sum of $103,068,836 in damages accrued during the stay of this Court's injunction, together with post-judgment interest on that sum calculated pursuant to 28 U.S.C. § 1961. The amounts awarded in this judgment shall bear interest from the date of judgment at the lawful federal rate.
> 
> ...


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## CuriousMark (Jan 13, 2005)

bkdtv said:


> Looks like TiVo just doubled its cash-on-hand from $200 million to ~$400 million. And that's before any settlement...


It will be a while before that money actually ends up on TiVo's balance sheet. {edit}by the way, it is only $103 million plus interest more, so less than a double{/edit} Dish will appeal first and try to take it all the way to the Supreme court before letting their cold dead fingers slip off the cash. Of course a settlement could certainly speed things up. So I am hopeful.


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## MichaelK (Jan 10, 2002)

so what's the likelihood that dish actually shuts off the dvr's withing 30 days.

And why is the court giving them another 30 days when it's been like years since they were told to do it. I guess that's normal but it's like a parent saying "OK really this time i really mean it". 

And at what point can the judge sent the marshals to ergans house to arrest the thief for blowing off the courts rulings?


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## ZeoTiVo (Jan 2, 2004)

CuriousMark said:


> It will be a while before that money actually ends up on TiVo's balance sheet. Dish will appeal first and try to take it all the way to the Supreme court before letting their cold dead fingers slip off the cash. Of course a settlement could certainly speed things up. So I am hopeful.


how can you appeal a finding of contempt? What basis would DISH have?


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## nrc (Nov 17, 1999)

From the judgement:


> EchoStar has escaped this Court's injunction for over two years and further delay will be manifestly unjust to TiVo and cause TiVo substantial harm.


 Hopefully the appeals court will take that into account when Dish asks for another stay pending yet another appeal.

Reading through the opinion it looks like Dish lost on nearly every point. They lost on both grounds for contempt. Here's the real killer:



> Accordingly, this Court finds EchoStar in contempt of this Court's permanent injunction. Specifically, EchoStar is in contempt of the Infringement Provision of this Court's order, which enjoined EchoStar from "making, using, offering to sell, selling or importing in the United States, the Infringing Products, either alone or in combination with any other product and all other products that are only colorably different therefrom in the context of the Infringed Claims."
> IV
> Even if EchoStar had achieved a non-infringing design-around, this Court would still find that EchoStar is in contempt of this Court's permanent injunction. EchoStar never complied with the Disablement Provision of this Court's order, which ordered EchoStar to "disable the DVR functionality (i.e. disable all storage to and playback from a hard disk drive of television data) in all but 192,708 units of the Infringing Products that have been placed with an end user or subscriber."


So they're guilty of contempt because they've failed to work around the patent _and_ they're guilty because they've failed to comply with the plain language of the injunction. In order to prevail in an appeal they'll have to overturn both of those points.

Also interesting to note that Folsom has simply _deferred_ any monetary sanctions at this time. It sounds like that's a hammer that he wants to keep in his pocket.


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## MichaelK (Jan 10, 2002)

nrc said:


> ...
> Also interesting to note that Folsom has simply _deferred_ any monetary sanctions at this time. It sounds like that's a hammer that he wants to keep in his pocket.


that was my next question- sounds like they just so far are paying royalties and interest - same as they would if they werent violating a court order and things got settled.

So what's the "punishment"? If a government employee union goes on strike and gets ordered back and they dont return the court sends the police to arrest the union leaders and then starts fining the union. Does the judge get to arrest ergen and his band of theives? Can he fine them? If he fines them who gets the money- tivo or the goverment?


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## CuriousMark (Jan 13, 2005)

MichaelK said:


> So what's the "punishment"? If a government employee union goes on strike and gets ordered back and they dont return the court sends the police to arrest the union leaders and then starts fining the union. Does the judge get to arrest ergen and his band of theives? Can he fine them? If he fines them who gets the money- tivo or the goverment?


The punishment will most likely be monetary. Don't expect any arrests or Marshalls visiting Dish facilities.

As to who gets the money, it can go either way. The court can give it to TiVo, keep it, or do some of each.


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## cheerdude (Feb 27, 2001)

This seems like it has been going on forever... and while this is a great victory, it still seems like it will be a while before this is finally finally over with.


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## Curtis (Dec 2, 2003)

ZeoTiVo said:


> how can you appeal a finding of contempt? What basis would DISH have?


It's done all the time. KSM was an appeal of a contempt finding. Almost anything a judge does can be appealed. It's "due process".


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## CuriousMark (Jan 13, 2005)

Yes, Dish will find ways to drag it out further. They are very dependable that way.


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## nrc (Nov 17, 1999)

Evidently TiVo gets to argue for what they think the sanctions for contempt should be.



> Although this Court finds EchoStar in contempt, it defers any ruling regarding sanctions.
> TiVo is hereby ORDERED to raise by motion any request for sanctions by June 26, 2009. It is further ORDERED that the following deadlines shall apply to this issue.
> Date Event
> June 26, 2009 TiVo's Motion & Opening Brief on Sanctions due
> ...


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## davezatz (Apr 18, 2002)

bkdtv said:


> Looks like TiVo just doubled its cash-on-hand from $200 million to ~$400 million. And that's before any settlement...


I'm on a work trip and doing my best to stay current with the news... Is this award above and beyond the money already paid out? Thanks!


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## CuriousMark (Jan 13, 2005)

davezatz said:


> I'm on a work trip and doing my best to stay current with the news... Is this award above and beyond the money already paid out? Thanks!


It is a new award of $103 million plus interest. Although TiVo probably won't see it soon.

On top of that there may be sanctions money from Dish for being in contempt. That could be more, a LOT more. Someone posted elsewhere that it could include disgorgement of all profits earned from customers with the DVRs that should have been shut off. There will be a new hearing on that subject at the end of July.


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## Curtis (Dec 2, 2003)

davezatz said:


> I'm on a work trip and doing my best to stay current with the news... Is this award above and beyond the money already paid out? Thanks!


The new award is for damages while the stay was in effect. Monetary sanctions haven't been calculated yet. That would be for the time period Dish was in contempt which is the 14 months or so since appeals were exhausted. Could be very punitive and include attorney's fees.


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## MichaelK (Jan 10, 2002)

Curtis said:


> The new award is for damages while the stay was in effect. Monetary sanctions haven't been calculated yet. That would be for the time period Dish was in contempt which is the 14 months or so since appeals were exhausted. Could be very punitive and include attorney's fees.


is this something that like treble damages come into play? or is that only on crappy tv shows?


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## jfh3 (Apr 15, 2004)

Yes, an additional $103M + interest due now.

Sanctions for the contempt violation and damages since (given Paice v. Toyota, I'd guess around $350M+).

Then whatever Tivo gets on top of that for licensing. So - Tivo should end up with at least a half a billion dollars in cash and ongoing licensing fees from Dish.

I also suspect that the Comcast rollout will magically accelerate and other MSOs will get serious about dealing with Tivo.


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## ZeoTiVo (Jan 2, 2004)

Curtis said:


> It's done all the time. KSM was an appeal of a contempt finding. Almost anything a judge does can be appealed. It's "due process".


ok, I thought the first answer was "yes"
now what semi serious basis for an appeal, that won't be directly shot down. can DISH come up with?


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## KoG (Apr 20, 2002)

Curtis said:


> The new award is for damages while the stay was in effect. Monetary sanctions haven't been calculated yet. That would be for the time period Dish was in contempt which is the 14 months or so since appeals were exhausted. Could be very punitive and include attorney's fees.


Don't you mean for the period from Dish rolling out their 'workaround'? After the Supreme Court rejected Dish's appeal I thought they paid up to the point where they felt they no longer infringed.


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## bkdtv (Jan 9, 2003)

KoG said:


> Don't you mean for the period from Dish rolling out their 'workaround'? After the Supreme Court rejected Dish's appeal I thought they paid up to the point where they felt they no longer infringed.


Dish Network only paid up to the point of the original decision announced on April 13, 2006. That was $73.9 million plus interest; that came to ~$104 million with interest when it was finally paid late last year.

The new $104 million (plus interest not yet assessed) is for infringement between April, 2006 and June, 2009. That figure does *not* include any sanctions for contempt. Hearings on that will begin later this month.


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## KoG (Apr 20, 2002)

bkdtv said:


> Dish Network only paid up to the point of the original decision announced on April 13, 2006. That was $73.9 million plus interest; that came to ~$104 million with interest when it was finally paid late last year.
> 
> The new $104 million (plus interest not yet assessed) is for infringement since April, 2006.
> 
> That figure does not include any sanctions for contempt. Hearings on that will begin later this month.


Ah, found it. So wonder if Dish deployed their workaround in Sept.

http://www.multichannel.com/article/135025-TiVo_Collects_105_Million_From_EchoStar.php



> TiVo said the $104,600,472 from EchoStar included the initial $74 million in damages awarded by the U.S. District Court for the Eastern District of Texas, after the satellite company was found to have infringed TiVos Time Warp patent for DVR controls, plus interest and supplemental damages accrued through Sept. 8, 2006.


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## jfh3 (Apr 15, 2004)

KoG said:


> So wonder if Dish deployed their workaround in Sept.


Doesn't matter if or when they did now.


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## KoG (Apr 20, 2002)

jfh3 said:


> Doesn't matter if or when they did now.


True but I was curious. I guess the next step is to see if Dish can get this injunction stayed pending appeal (if even that appeal will be granted or not). Guess we'll find out in the next 30 days.


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## CuriousMark (Jan 13, 2005)

KoG said:


> Ah, found it. So wonder if Dish deployed their workaround in Sept.
> 
> http://www.multichannel.com/article/135025-TiVo_Collects_105_Million_From_EchoStar.php


Not till when the workaround was deployed. It is until the stay was dissolved.


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## Curtis (Dec 2, 2003)

bkdtv said:


> The new $104 million (plus interest not yet assessed) is for infringement between April, 2006 and June, 2009.


Not quite.


> Plaintiff shall have and recover from Defendants, jointly and severally, the sum of $103,068,836 in damages accrued *during the stay of this Court's injunction*


The stay was granted September 9, 2006 and dissolved April 18, 2008. The $103 million covers the period the stay was in effect which was 09-09-06 through 04-18-08.


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## davezatz (Apr 18, 2002)

Interesting stuff. Given the appeals process and contempt hearing could be a long while before this is finally resolved (again). 

The infringing DVRs are some of the older models, right? Not the current crop? If so, DISH would have saved a lot of money by swapping out those units instead of going down this path. Hm.


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## Curtis (Dec 2, 2003)

davezatz said:


> The infringing DVRs are some of the older models, right? Not the current crop? If so, DISH would have saved a lot of money by swapping out those units instead of going down this path. Hm.


It will only take another contempt hearing to include the newer models. The groundwork has already been laid. It shouldn't take more than a couple of months.


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## kevinwill1 (Apr 18, 2004)

It looks like the fine folks at DISH completely brought this on themselves. Oh well... You would think they could have seen this coming or at least had a hunch that things could turn ugly for them. That's what they get for not wanting to work with TiVo.


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## rainwater (Sep 21, 2004)

At some point Dish is going to have to work out an agreement with TiVo or they are just going to keep digging a bigger hole. It seems this decision is probably the clearest decision yet, that they have no chance to get out of this.


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## Bierboy (Jun 12, 2004)

rainwater said:


> At some point Dish is going to have to work out an agreement with TiVo or they are just going to keep digging a bigger hole. It seems this decision is probably the clearest decision yet, that they have no chance to get out of this.


My thoughts exactly...when do they finally admit they screwed up and have to pay the piper? This can get no better for them.


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## MichaelK (Jan 10, 2002)

Curtis said:


> It will only take another contempt hearing to include the newer models. The groundwork has already been laid. It shouldn't take more than a couple of months.


whhoaaa- so you are saying that the newer models could be called non colorably different too?

that is HUGE.


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## CuriousMark (Jan 13, 2005)

Yes, they could, but Dish will fight it and try to delay such a ruling as long as possible. So a couple of months might be a little optimistic. Hopefully Dish now has enough motivation to settle, and it will never come to that, but their history belies that desire.


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## davecramer74 (Mar 17, 2006)

so comcast, directv, etc arent infringing? Or are they paying tivo a licensing fee? Whats dish doing that other operators arent?


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## bkdtv (Jan 9, 2003)

Curtis said:


> Not quite.
> 
> The stay was granted September 9, 2006 and dissolved April 18, 2008. The $103 million covers the period the stay was in effect which was 09-09-06 through 04-18-08.


Thanks for that correction.

So damages between 4-18-08 and June 30, 2009 have not yet been determined?


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## bkdtv (Jan 9, 2003)

MichaelK said:


> whhoaaa- so you are saying that the newer models *could* be called non colorably different too?


Of course.

The original litigation is from 2004, with the jury verdict in 2006, so obviously none of the newer models are mentioned by name. But each decision / ruling has always included the statement, "and all other products that are only colorably different...in the context of the Infringed Claims."

To this point, Echostar has not been found to have any non-infringing software on any DVR. They'll have to show how their Broadcom HD DVRs (ViP622/722) are more than colorably different -- _with respect to the patent claims_ -- from their infringing Broadcom SD DVRs.


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## SullyND (Dec 30, 2004)

davecramer74 said:


> so comcast, directv, etc arent infringing? Or are they paying tivo a licensing fee? Whats dish doing that other operators arent?


You don't sue everyone under the sun. You pick your battles, win that case, then go to the others with a win in your pocket. DirecTV and Comcast must have seen something in TiVos patents, because they do both have agreements with TiVo.


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## morac (Mar 14, 2003)

Whatever happened with the USPTO reexamining TiVO's patents again?

Wouldn't Dish's new appeal depend on how that turns out?


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## Curtis (Dec 2, 2003)

bkdtv said:


> So damages between 4-18-08 and June 30, 2009 have not yet been determined?


Correct.

"Although this Court finds EchoStar in contempt, it defers any ruling regarding sanctions.

TiVo is hereby ORDERED to raise by motion any request for sanctions by June 26, 2009. It is further ORDERED that the following deadlines shall apply to this issue.

Date Event

June 26, 2009 TiVo's Motion & Opening Brief on Sanctions due 
July 10, 2009 EchoStar's Responsive Brief on Sanctions due 
July 17, 2009 TiVo's Reply Brief due 
July 24, 2009 EchoStar's Sur-reply Brief due"


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## Curtis (Dec 2, 2003)

morac said:


> Whatever happened with the USPTO reexamining TiVO's patents again?
> 
> Wouldn't Dish's new appeal depend on how that turns out?


The reexamination going on now will have no impact. Even if an issue is raised, patents are considered valid until the day all appeals are exhausted. Appeals can go all the way to the Supreme Court. That could take years. Meanwhile, the patent is considered as valid as the day it was issued.


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## CrispyCritter (Feb 28, 2001)

davecramer74 said:


> so comcast, directv, etc arent infringing? Or are they paying tivo a licensing fee? Whats dish doing that other operators arent?


Comcast, DirecTV, Cox all can't be sued because of the various agreements already in place. TiVo has always said it would much rather have partnership agreements than law suits (or even royalties, although I don't think TiVo has ever stated that flatly).

Time Warner is the big unknown - we'll have to see what happens there.


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## Adam1115 (Dec 15, 2003)

I can't imagine they have many of those old DVR's left, why didn't they just turn them off and offer customers a free upgrade...?


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## nrc (Nov 17, 1999)

bkdtv said:


> Thanks for that correction.
> 
> So damages between 4-18-08 and June 30, 2009 have not yet been determined?


Yes, because if the court's order had been followed there would have been no damages after 4/18/08.

Additional damages at the royalty rate used for the previous awards would amount to something like another $75 million plus interest. TiVo will probably ask for at least triple that.

Assuming that Dish doesn't get the injunction stayed pending appeal and that they dont' reach a deal, when Dish takes action to comply with the injunction is the time when TiVo will likely start attacking Dish's other infringing DVRs. If they shut off or replace all the named DVRs TiVo will say that they're still not in compliance because these other models are no more than colorably different.


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## nrc (Nov 17, 1999)

Adam1115 said:


> I can't imagine they have many of those old DVR's left, why didn't they just turn them off and offer customers a free upgrade...?


The royalty rate that Dish was charged was $1.25 per DVR per month. So $103 million for 19 months implies 4.3 million infringing DVRs still in service. If it costs $250 to replace each DVR then that would cost $1.1 Billion dollars. Nevermind the fact that you simply can't replace 4.3 million DVRs in a month.

That's assuming that Dish even has any DVRs that are more than colorably different.


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## [email protected] (Dec 1, 2007)

Well, the market certainly thinks this is a good thing for TiVo; their stock is up over 50&#37;


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## jfh3 (Apr 15, 2004)

bkdtv said:


> To this point, Echostar has not been found to have any non-infringing software on any DVR. They'll have to show how their Broadcom HD DVRs (ViP622/722) are more than colorably different -- _with respect to the patent claims_ -- from their infringing Broadcom SD DVRs.


True, but given that Dish's expert testified that the software found to be not more than colorably different is on the VIP boxes, it seems to be somewhat of a formality at this point. Perhaps that's why Dish tried (and failed) to have that testimony removed.


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## dimitri2000 (Sep 18, 2007)

davecramer74 said:


> so comcast, directv, etc arent infringing? Or are they paying tivo a licensing fee? Whats dish doing that other operators arent?


Didn't Directv buy Replay tv presicly for its patents to try to avoid just this type of situation?


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## Curtis (Dec 2, 2003)

Dish got a temporary stay today.


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## 20TIL6 (Sep 7, 2006)

dimitri2000 said:


> Didn't Directv buy Replay tv presicly for its patents to try to avoid just this type of situation?


That's probably the impression they would like to present. But two questions:

Why buy Replay, and then still maintain licensing agreements with TiVo? If Replay patents were that solid, then you'd certainly think no more agreement with TiVo would be necessary. And yes, there are still DirecTV/TiVo units deployed. So that could necessitate some sort of agreement. But why sign on to develop a new DirecTV/TiVo?

And secondly, if owning Replay really made any difference, why didn't DISH buy them long ago? They are the ones dealing with infringement litigation. And further, why wouldn't TiVo just buy the remainders of Replay if it would really lock things up?

I just don't think Replay IP amounts to a whole lot. Maybe muddies the water a bit, but nothing more.


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## KoG (Apr 20, 2002)

Curtis said:


> Dish got a temporary stay today.


I am guessing this is to allow Dish time to put together a filing to appeal this most recent ruling? Wonder how long that is going to take.


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## bkdtv (Jan 9, 2003)

20TIL6 said:


> That's probably the impression they would like to present. But two questions:
> 
> Why buy Replay, and then still maintain licensing agreements with TiVo? If Replay patents were that solid, then you'd certainly think no more agreement with TiVo would be necessary. And yes, there are still DirecTV/TiVo units deployed. So that could necessitate some sort of agreement. But why sign on to develop a new DirecTV/TiVo?


ReplayTV has patents on DVR features that TiVo does not, and vice versa. By owning the ReplayTV patents and licensing the TiVo patents, there is very little to limit DirecTV's DVR efforts.

Owning the ReplayTV patents potentially allows DirecTV to implement functionality that the competition (ex: Dish, cable) cannot.


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## 20TIL6 (Sep 7, 2006)

KoG said:


> I am guessing this is to allow Dish time to put together a filing to appeal this most recent ruling? Wonder how long that is going to take.


E* has already filed the appeal. Miraculously they just happened to have it ready. 

The temp stay is for the court to determine if the appeal has any merit. If so, they grant a full stay to last during the appeal hearings. If not, they revoke the temp stay. This decision...what, maybe a week?


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## 20TIL6 (Sep 7, 2006)

bkdtv said:


> Owning the ReplayTV patents potentially allows DirecTV to implement functionality that the competition (ex: Dish, cable) cannot.


Seriously, I see your point. But I kinda' laugh at that last statement. Whoever owns whatever patent does not seem to limit what DISH wants to do. I mean, that's the whole point of this discussion.


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## tivohaydon (Mar 24, 2001)

Out of curiosity - why are people cheerleading TiVo on this one?

While I've historically liked TiVo products I can't say I agree with being able to patent something so patently obvious and use it to beat up the other guy. (Whether you like them or not.)


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## ZeoTiVo (Jan 2, 2004)

davecramer74 said:


> so comcast, directv, etc arent infringing? Or are they paying tivo a licensing fee? Whats dish doing that other operators arent?


acting like arrogant asses


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## Curtis (Dec 2, 2003)

20TIL6 said:


> E* has already filed the appeal. Miraculously they just happened to have it ready.
> 
> The temp stay is for the court to determine if the appeal has any merit. If so, they grant a full stay to last during the appeal hearings. If not, they revoke the temp stay. This decision...what, maybe a week?


It is my understanding that the request for the temporary stay only required a minimum of documentation. Not much more than a copy of the judgment. I think Dish has some time to put together an appeal request with full rationale. They will probably take the full allotted time to prepare that whatever it is.


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## Curtis (Dec 2, 2003)

TiVo Statement on the Federal Circuit Court of Appeals' Decision to Issue a Temporary Stay of Injunction
Last update: 6/3/2009 7:02:00 PM
ALVISO, Calif., June 3, 2009 /PRNewswire-FirstCall via COMTEX/ -- TiVo Inc. (TIVO), the creator of and a leader in television products and services for digital video recorders (DVR), offered the following statement today on the U.S. Court of Appeals for the Federal Circuit in Washington, D.C. decision to issue a temporary stay of injunction in its lawsuit against EchoStar Communications Corporation:
"We are very pleased with the recent decision by the United States District Court, Eastern District of Texas, to fully enforce a permanent injunction in our patent case against EchoStar in addition to rejecting EchoStar's alleged workaround claim regarding the TiVo patent and finding EchoStar to be in contempt of the Court's permanent injunction. The U.S. Court of Appeals temporarily stayed the District Court's ruling pending the Court's consideration of TiVo's response to EchoStar's motion for stay pending appeal. We are confident the U.S. Court of Appeals will again uphold the District Court ruling and not permit EchoStar to further delay this case once it has an opportunity to consider TiVo's response and EchoStar's motion on the issue of the stay."


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## bkdtv (Jan 9, 2003)

tivohaydon said:


> While I've historically liked TiVo products I can't say I agree with being able to patent something so patently obvious and use it to beat up the other guy. (Whether you like them or not.)


Everything seems obvious after it's been on the market for ten years.

Before TiVo and ReplayTV, there were no low-cost DVRs. For much of the previous decade, all we had were military-grade digital recorders costing tens (or hundreds) of thousands of dollars. TiVo patented an implementation for a low-cost DVR design and was the first to produce it using custom hardware. After seeing how TiVo did it, others created hardware and software to do the same thing.

Virtually every component of every technology we use today (cars, stereos, phones, portable music players, computers, etc) was patented and licensed at one time or another. We rarely hear about it because 99% of the time, companies license the technology rather than trying to fight it in court.


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## 20TIL6 (Sep 7, 2006)

Curtis said:


> It is my understanding that the request for the temporary stay only required a minimum of documentation. Not much more than a copy of the judgment. I think Dish has some time to put together an appeal request with full rationale. They will probably take the full allotted time to prepare that whatever it is.


Probably right on that. I'm sure whatever DISH had to file, they had it ready.


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## Adam1115 (Dec 15, 2003)

tivohaydon said:


> Out of curiosity - why are people cheerleading TiVo on this one?)


Did you notice the name of the forum you're on?


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## MichaelK (Jan 10, 2002)

jfh3 said:


> True, but given that Dish's expert testified that the software found to be not more than colorably different is on the VIP boxes, it seems to be somewhat of a formality at this point. Perhaps that's why Dish tried (and failed) to have that testimony removed.


whoa- that's a neat nugget. So Dish's own expert said the software on all the boxes (both those already named in the suit and the others not yet named) is the same?

DISH is in a bad spot...


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## samo (Oct 7, 1999)

> Out of curiosity - why are people cheerleading TiVo on this one?


Perhaps because some of the members here are small time TiVo shareholders and stand to gain should TiVo win big. Funny thing is that most member stand to lose should TiVo win big. By big I mean $100s of millions plus royalty from Dish on present and future DVRs.
Should that happen, TiVo will have zero incentive to invest in SA business that has been losing money for last 10 years. If anything, they will try to get out of SA hardware and software by raising cost on both (who needs 900K recurring SA subs when you have 10 million satellite subs). Instead they will most likely concentrate on the software for cable boxes to corner the market.


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## MichaelK (Jan 10, 2002)

tivohaydon said:


> Out of curiosity - why are people cheerleading TiVo on this one?
> 
> While I've historically liked TiVo products I can't say I agree with being able to patent something so patently obvious and use it to beat up the other guy. (Whether you like them or not.)


beyond the well stated answer above- DISH is also perceived to be a complete bunch of scumbags. DISH and their lawyers have repeatedly been found over the years to be in contempt of court and also been busted trying to manipulate the court system for their own gain.

so the sense of some of us i= dish is scum and gets what they deserve. Karma's a *****.

Tivo hasn't sued anyone else (well i forget what the deal was with replay before they kissed and made up). They have made deals with some like comcast, cox, and directv for really harmless terms- like tivo is given the opportunity to be an upgrade and maybe make a buck a box if the consumer picks it. Before replay basically went belly up tivo and replay agreed not to sue each other. So tivo is far from some patent extortionist firm.


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## MichaelK (Jan 10, 2002)

samo said:


> Perhaps because some of the members here are small time TiVo shareholders and stand to gain should TiVo win big. Funny thing is that most member stand to lose should TiVo win big. By big I mean $100s of millions plus royalty from Dish on present and future DVRs.
> Should that happen, TiVo will have zero incentive to invest in SA business that has been losing money for last 10 years. If anything, they will try to get out of SA hardware and software by raising cost on both (who needs 900K recurring SA subs when you have 10 million satellite subs). Instead they will most likely concentrate on the software for cable boxes to corner the market.


glass half full huh?


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## CuriousMark (Jan 13, 2005)

samo said:


> If anything, they will try to get out of SA hardware and software by raising cost on both (who needs 900K recurring SA subs when you have 10 million satellite subs). Instead they will most likely concentrate on the software for cable boxes to corner the market.


Who's to say they aren't already doing that now!
[edit]And who's to say that it isn't a good thing for us small time customers!

TiVo seems to have been changing course in this very direction for some time now. Still, they have also said they find value in maintaining their stand alone offerings, so it isn't clear.[/edit]


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## nrc (Nov 17, 1999)

tivohaydon said:


> Out of curiosity - why are people cheerleading TiVo on this one?
> 
> While I've historically liked TiVo products I can't say I agree with being able to patent something so patently obvious and use it to beat up the other guy. (Whether you like them or not.)


TiVo didn't patent something patently obvious. They didn't patent the concept of a DVR and that's not what they're suing Dish for. They patented a specific process that made it practical to have a responsive DVR with resonably priced hardware. It's not impossible to create a DVR without violating that patent.

Dish knowingly violated that very specific patent. They've dragged the fight over it out as long as possible using every possible delaying tactic just hoping that TiVo would give up or run out of money.

TiVo isn't a patent troll. They're not running around suing companies simply to extract license agreements. They want to make an ongoing business of selling technology and services based of a collection of innovations that have made a big difference in our lives. The problem is some large companies like Dish might prefer to ignore them and simply copy their technology. TiVo is exactly the kind of real innovator that the patent system was intended to protect.

It's true that Tivo does have exclusive rights to a much more broad DVR patent which they acquired (5,241,428 - Variable-Delay Video Recorder), but they haven't sued anyone over it and they probably won't unless they have to as a counter suit. It's their nuclear option.


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## nrc (Nov 17, 1999)

dimitri2000 said:


> Didn't Directv buy Replay tv presicly for its patents to try to avoid just this type of situation?


They were certainly adding to the patent portfolio, but as far as I've been find in the patent database ReplayTV and Sonicblue have surprisingly little in the way of DVR patents.


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## nrc (Nov 17, 1999)

samo said:


> Should that happen, TiVo will have zero incentive to invest in SA business that has been losing money for last 10 years. If anything, they will try to get out of SA hardware and software by raising cost on both (who needs 900K recurring SA subs when you have 10 million satellite subs). Instead they will most likely concentrate on the software for cable boxes to corner the market.


TiVo understands that their owned subs provide an opportunity for innovation and new features that wouldn't be available if they dropped that line of business entirely. The features that TiVo is now finding a market for among small cable companies and even with companies like Comcast exist because of their standalone business.

If anything, it's more likely that TiVo will use a healthy MSO and business to keep their retail business viable.


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## Curtis (Dec 2, 2003)

nrc said:


> They were certainly adding to the patent portfolio, but as far as I've been find in the patent database ReplayTV and Sonicblue have surprisingly little in the way of DVR patents.


Sonic/ReplayTV had a patent on using program guides to select what to record.


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## lrhorer (Aug 31, 2003)

Curtis said:


> It's done all the time. KSM was an appeal of a contempt finding. Almost anything a judge does can be appealed. It's "due process".


I don't think that's true if the ruling is enacted. If the defendant pays the fine, I don't believe they have any standing to recover it, do they?


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## lrhorer (Aug 31, 2003)

ZeoTiVo said:


> acting like arrogant asses


I don't think that's true. It's just that Dish isn't getting away with it, while the others are.


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## jfh3 (Apr 15, 2004)

MichaelK said:


> whoa- that's a neat nugget. So Dish's own expert said the software on all the boxes (both those already named in the suit and the others not yet named) is the same?
> 
> DISH is in a bad spot...


He didn't say it was identical ... but the implication was certainly that it was close enough, especially where the disputed functions were involved. It took me a while to figure out why Dish wanted that testimony stricken and then the light bulb went on ...


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## lrhorer (Aug 31, 2003)

CrispyCritter said:


> Comcast, DirecTV, Cox all can't be sued because of the various agreements already in place. TiVo has always said it would much rather have partnership agreements than law suits (or even royalties, although I don't think TiVo has ever stated that flatly).
> 
> Time Warner is the big unknown - we'll have to see what happens there.


Cox, and Time Warner can't be sued because they don't produce and sell DVRs, or at least Time Warner doesn't, and I don't think Cox does, either. I don't know about Cisco, Motorola, and Moxi.


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## lrhorer (Aug 31, 2003)

tivohaydon said:


> While I've historically liked TiVo products I can't say I agree with being able to patent something so patently obvious and use it to beat up the other guy. (Whether you like them or not.)


If it is so patently obvious, then why had no one prior to Tivo ever produced one, or even filed for a patent to produce one? Anything is obvious once someone else thinks it up and publishes or produces it. The Tivo patents are as distinguishably unique as any other patent, and far more innovative than most. The repeated rulings in this very case argue strongly for that.


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## Curtis (Dec 2, 2003)

jfh3 said:


> He didn't say it was identical ... but the implication was certainly that it was close enough, especially where the disputed functions were involved. It took me a while to figure out why Dish wanted that testimony stricken and then the light bulb went on ...


I don't see it in the transcript. Can you point it out?


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## Curtis (Dec 2, 2003)

lrhorer said:


> Cox, and Time Warner can't be sued because they don't produce and sell DVRs, or at least Time Warner doesn't, and I don't think Cox does, either. I don't know about Cisco, Motorola, and Moxi.


Anyone that profits from infringement can be sued for infringement.


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## bkdtv (Jan 9, 2003)

lrhorer said:


> Cox, and Time Warner can't be sued because they don't produce and sell DVRs, or at least Time Warner doesn't, and I don't think Cox does, either. I don't know about Cisco, Motorola, and Moxi.


The only companies that can be sued are the cable companies that install the software and activate the DVR.

Motorola and Cisco (Scientific Atlanta) cannot be sued for infringement because they do not ship any functional DVRs. Every Motorola and Cisco (Scientific Atlanta) DVR ships with DVR functionality *disabled*.

TiVo already has an agreement with Comcast and Cox, but I would certainly expect TiVo to go after Verizon FiOS and Time Warner at some point if they don't prove receptive to licensing.


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## lrhorer (Aug 31, 2003)

You know the end game presents a bit of a conundrum for TiVo. Assuming the appeals exhaust themselves and at some point Dish is forced to cry, "Uncle". What does TiVo do?

There was a Marmaduke cartoon some years ago where the little sports car the giant Great Dane habitually chased suddenly jammed on its brakes and stopped. The occupant faced Marmaduke and said, "OK, now you've caught me, what are you going to do with me?"

TiVo will be in somewhat the same boat. Of course, Dish may simply come to an out-of-court settlement with TiVo before this happens, but if not, Tivo does not have to accept any deal allowing the DISH DVRs to remain active. So do they accept such a deal, or force Dish to shut down the DVRs? If Dish does, will the DISH subscribers for the most part be angry at Dish or Tivo? Will it ultimately hurt or boost TiVo sales and subscriptions to have the Dish DVRs shut down?


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## lrhorer (Aug 31, 2003)

bkdtv said:


> The only companies that can be sued are the cable companies that install the software and activate the DVR.


Well, first of all, I am not familiar with TiVo's patents. If any of them are hardware patents, then this is incorrect from the outset, as a hardware patent covers any piece of hardware sold, regardless of functionality at the time of sale. I am unsure whether a subsequent lease of purchased equipment could be actionable or not. At best I would think it would be a very long legal stretch. If GM or Ford infringes on your patent, you sue them, not the GM and Ford dealers. It's certainly possible, though, although Time Warner makes so little off its DVRs, I suspect Tivo wouldn't be able to get much, even if it is actionable. Cisco is the one with the biggest profit on the deal. One does not usually file a patent or copyright suit against the resellers of a product or even the wholesaler. One usually files against the manufacturer.



bkdtv said:


> Motorola and Cisco (Scientific Atlanta) cannot be sued for infringement because they do not ship any functional DVRs. Every Motorola and Cisco (Scientific Atlanta) DVR ships with DVR functionality *disabled*.


It's possible you are correct in this. It is not only the activation of a product that infringes a patent, however, and in fact most often is not. It is usually the production and sale of any product which infringes on the patent. When Apple, Uniloc, and others (separately and at different times) decided to sue because one or more of Microsoft's software offerings infringed upon their copyrights or patents, they did not go after every user who ever bought the software and installed it on their computer, nor did they go after the retailers who installed and activated the software on the computers they sold. They went after Microsoft. I do know for a fact Time Warner licenses the software for their DVRs from Cisco, so whether the DVR is inactive when received or not - and indeed whether the software is ever even used or not - if the software violates the Tivo patents then the act of licensing that software on the part of Cisco constitutes a patent violation. Generally speaking, it is at the point of sale the patent is violated. In Echostar's case, the DVR is leased, not purchased, so the transaction is continuously ongoing, rather than occurring at a point in time. Furthermore, since shutting down the DVR would result in the discontinuation of the lease fees, in this case the infringement can be rescinded, which would not be the case with Time Warner and Cisco. In the Echostar suit, activation and deactivation of the software has more relevance.



bkdtv said:


> TiVo already has an agreement with Comcast and Cox, but I would certainly expect TiVo to go after Verizon FiOS and Time Warner at some point if they don't prove receptive to licensing.


It still would be up to Cisco and Motorola to do the licensing with TiVo. They are the ones producing the software. Since Motorola already has licenses for some of its DVRS, one presumes their agreements would preclude such a move on TiVo's part. I'm not sure about the Passport software, but I seriously doubt the SARA software infringes on any of TiVo's copyrights. I wouldn't know about their hardware patents, if any.

Now of course, TiVo can go to Time Warner and offer to license their software on the Scientific Atlanta hardware, but that's an entirely different matter than trying to sue them for software for which Time Warner paid, not which they are selling.


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## 20TIL6 (Sep 7, 2006)

lrhorer said:


> will the DISH subscribers for the most part be angry at Dish or Tivo? Will it ultimately hurt or boost TiVo sales and subscriptions to have the Dish DVRs shut down?


I can appreciate your approach to this. And while admitting that I can't speak for DISH subscribers, I will say that I would be angry at DISH for not being better stewards of the company.

In my view, DISH management has been clearly arrogant and incredibly stubborn. All of their litigation decisions after the original jury verdict in 2006 have not been derived so as to protect my service. No, protection of my service would have been best served by settling with TiVo. Clearly not by attempting to re-write the software, eliminating indexes and such. In my opinion, in just that sense alone, DISH chose to jeopardize my service.


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## lrhorer (Aug 31, 2003)

20TIL6 said:


> I can appreciate your approach to this. And while admitting that I can't speak for DISH subscribers, I will say that I would be angry at DISH for not being better stewards of the company.


So would I. I'm not quite the average consumer, though. I also don't have any loyalty to Echostar or any vested interest in keeping any Dish DVR up and running. Underestimating the parochial attitude of the American public can be an expensive mistake, but then so can overestimating it. I'm glad it isn't my decision.


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## samo (Oct 7, 1999)

20TIL6 said:


> I can appreciate your approach to this. And while admitting that I can't speak for DISH subscribers, I will say that I would be angry at DISH for not being better stewards of the company.
> 
> In my view, DISH management has been clearly arrogant and incredibly stubborn. All of their litigation decisions after the original jury verdict in 2006 have not been derived so as to protect my service. No, protection of my service would have been best served by settling with TiVo. Clearly not by attempting to re-write the software, eliminating indexes and such. In my opinion, in just that sense alone, DISH chose to jeopardize my service.


If you want to know how Dish subscribers feel visit dsbstalk.com
As for myself (I'm Dish and DirecTv subscriber) I would definitely blame TiVo. In my personal opinion Dish didn't steal anything from TiVo and fact that 12 technically illiterate people decided that they did infinge does not prove anything to me. I definitely believe that workaround Dish did removes last possible connection between TiVo and Dish software. Fact that TiVo has better attorneys and somehow convinced technically illiterate judge in Texas that Dish still infringes does not change my believe.
If Dish is forced to pay - I couldn't care less, but if Dish is forced to disable DVRs I would be really pissed at TiVo. I would definitely never buy any of the TiVo products even if new DirecTivo is the best gadget money can buy.


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## bkdtv (Jan 9, 2003)

lrhorer said:


> Well, first of all, I am not familiar with TiVo's patents. If any of them are hardware patents, then this is incorrect from the outset, as a hardware patent covers any piece of hardware sold, regardless of functionality at the time of sale.


TiVo's "time warp" patent consists of a combination of hardware and software claims. All _[elements of a claim]_ must be met for infringement. Without hardware and software, a product cannot violate TiVo's "time warp" patent, obviously because it cannot function without both.



lrhorer said:


> When Apple, Uniloc, and others (separately and at different times) decided to sue because one or more of Microsoft's software offerings infringed upon their copyrights or patents, they did not go after every user who ever bought the software and installed it on their computer, nor did they go after the retailers who installed and activated the software on the computers they sold. They went after Microsoft.


In this case, the customer is the end-user, not the cable companies. The cable companies are accountable for any infringement, because the law says "whoever actively induces infringement of a patent shall be liable as an infringer."

Had the software supplier represented itself as non-infringing, then perhaps the cable companies could sue to recover some of the money they were assessed in damages. In most cases though, hardware and software suppliers require an indemnity agreement, so they can't be held accountable for what the cable company does with their product.



lrhorer said:


> I do know for a fact Time Warner licenses the software for their DVRs from Cisco, so whether the DVR is inactive when received or not - and indeed whether the software is ever even used or not - if the software violates the Tivo patents then the act of licensing that software on the part of Cisco constitutes a patent violation.


Cisco offers a license for the [primitive] SARA software, but the cable company must upload that software to the box.

Time Warner no longer uses SARA in most markets. Time Warner now uses its own, internally developed software, known as TWC Navigator.



lrhorer said:


> Generally speaking, it is at the point of sale the patent is violated.


In this case, the point of sale (lease) is at the subscriber, not the cable company. Again, all Motorola and Cisco hardware is effectively non-functional until equipped with software and activated by the cable company.



lrhorer said:


> It still would be up to Cisco and Motorola to do the licensing with TiVo. They are the ones producing the software.


Motorola no longer provides DVR software. Cisco does offer its primitive SARA software, but they don't ship it with the DVR. The cable company must opt to install it.


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## 20TIL6 (Sep 7, 2006)

samo said:


> If you want to know how Dish subscribers feel visit dsbstalk.com
> As for myself (I'm Dish and DirecTv subscriber) I would definitely blame TiVo. In my personal opinion Dish didn't steal anything from TiVo and fact that 12 technically illiterate people decided that they did infinge does not prove anything to me. I definitely believe that workaround Dish did removes last possible connection between TiVo and Dish software. Fact that TiVo has better attorneys and somehow convinced technically illiterate judge in Texas that Dish still infringes does not change my believe.
> If Dish is forced to pay - I couldn't care less, but if Dish is forced to disable DVRs I would be really pissed at TiVo. I would definitely never buy any of the TiVo products even if new DirecTivo is the best gadget money can buy.


So says the person from Littleton, CO.

Hey, I said I could not speak for DISH subscribers. Don't want to, don't really care how they would feel about it. If their DISH DVRs go dark, let them blame TiVo.

The point you made about the jury and the judge would probably be the best place to assign blame IMO. If they can't blame DISH/SATS for having the wealth of over 7X the market cap of TiVo, yet can't hire better lawyers.... then yeah, point the blame gun anywhere then (just hope they know which end is which).

But the point is, nobody's DVRs are going dark. Probably the monthly customer bill from DISH might go up, you know, for that TiVo tax. Might have been a cheaper tax if it had been settled three years ago. Obviously TiVo's fault there too.


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## lrhorer (Aug 31, 2003)

bkdtv said:


> TiVo's "time warp" patent consists of a combination of hardware and software claims. All must be met for infringement.


Again, I am not familiar with Tivo's patents, but I do know over 70 have been granted and a total of nearly 180 were submitted. Others in this thread have pointed to at least one not referenced in this lawsuit. I don't doubt you when you say the basis for this lawsuit was related to functionality based upon a combination of patent claims, but it is not in general true that every patent of the holder or even every patent claim in a lawsuit must be infringed for a lawsuit to be valid.



bkdtv said:


> The cable companies are soley responsible (a) uploading software to the boxes, and (b) enabling DVR functionality on the boxes.


Which in and of itself is not a patent or copyright violation. Any suit requires the plaintiff to show damages have been incurred. In particular they must show an unauthorized sale or distribution of product occurred. Admittedly, it gets a little trickier when the whole functionality is not provided at the point of sale, but Ford could not avoid a patent suit from GM simply by selling the engines and car bodies to the dealers separately. The fact Microsoft's software is completely non-functional until the OEM, retailer, or end user marries it to a piece of hardware did not prevent Uniloc from winning its suit against Microsoft. If a manufacturer can show a product only violates a patent when used in a manner completely outside the design intent, then the manufacturer can avoid liability for said use, but otherwise the design is itself in violation of the patent, regardless of what other elements must come into play. A designer may patent both a rifle and a scope to fit the rifle, but that doesn't mean a manufacturer can reproduce just the scope and sell it to Astronomy supply houses without infringing on the scope patent.



bkdtv said:


> Without hardware and software, a product cannot violate TiVo's "time warp" patent.


Perhaps not, but it doesn't absolve both parties from infringement violations, either. Again, if GM buys two different parts of an infringing design from two different parts makers, it doesn't necessarily absolve the parts makers of their responsibility. If there is some other ordinary use for both parts, then it does, but otherwise it represents a conspiracy to avoid the patent. I would think the patent holder would name all three in the suit. There is nothing requiring a single defendant in a suit, and indeed often there are several parties named in a suit.



bkdtv said:


> In this case, the consumer is the DVR customer, not the cable companies.


Well, I'm sure the DVR manufacturer would argue that, especially if they only provide one component. Just because Cisco sells the two as separate components doesn't mitigate the obvious design intent. Certainly there is room here for some interpretation. Resellers are not usually held responsible for patent infringements, however, and I am sure should such a claim be filed, Time Warner would argue just that: they are a reseller. Your arguments further down the post negate this, of course.



bkdtv said:


> Had the software supplier represented itself as non-infringing, then perhaps the cable companies could sue to recover some of the money they were assessed in damages. In most cases though, hardware and software suppliers will require an indemnity agreement, so they can't be held accountable for what the cable company does with their product.


An agreement with the CATV company is in no way binding on TiVo, nor does it mitigate the design intent unless the agreement specifically states the CATV company agrees not to use the software in a prohibited manner.



bkdtv said:


> Cisco offers a license for the [primitive] SARA software, but the cable company must upload that software to the box from the head-end.


And if the SARA software when used on that device - even if it is not a Cisco box - infringes a Tivo patent, then it is no different than what Microsoft did. As I said, however, I seriously doubt the SARA software infringes on anything other than the user's tolerance for bad software.



bkdtv said:


> Time Warner no longer uses SARA in most markets. Time Warner now uses its own, internally developed software, known as TWC Navigator.


The last I heard, it wasn't on the boxes here in San Antonio, yet, and I'm given to understand the markets with SA boxes were to be the last in line. Nonetheless, you are of course correct that once the boxes are running Time Warner's software, then any other than strictly hardware infringements are on Time Warner's plate.



bkdtv said:


> In this case, the point of sale is at the subscriber, not the cable company. Again, all Motorola and Cisco boxes are non-functional until equipped with software and activated by the cable company.


Cisco or Motorola ( or Samsung, Pace, or whomever) can certainly try to argue that, and if the same strategy used against Echostar is used in a suit against them, they might be adjudged as non-complicit, but that doesn't prevent TiVo from using a different strategy in a suit against the other parties. It also doesn't prevent TiVo from naming them along with Time Warner in the suit.



bkdtv said:


> Motorola no longer provides DVR software.


I didn't know that.



bkdtv said:


> Cisco does offer its primitive SARA software, but they don't ship it with the DVR. The cable company must opt to install it.


Again, it probably doesn't matter. In the rifle example above, the manufacturer of the rifle cannot avoid a patent suit simply by shipping the rifle without its firing pin. GM could not sell a car that violates Ford's patents simply by shipping them without gas in the tank or by shipping the car and the steering wheel separately. Although functionality is important, it isn't the only measure of patent coverage. One cannot copy a patented design and avoid a suit simply by using inferior materials which cause the final product to deviate significantly from the patented functionality. One may employ highly superior materials or additional implements so that additional functionality is enjoyed, but this, too, fails to avoid infringement.


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## Curtis (Dec 2, 2003)

lrhorer said:


> Generally speaking, it is at the point of sale the patent is violated.


TITLE 35 > PART III > CHAPTER 28 > § 271

§ 271. Infringement of patent

(a) Except as otherwise provided in this title, whoever without authority makes, uses, offers to sell, or sells any patented invention, within the United States or imports into the United States any patented invention during the term of the patent therefor, infringes the patent.
(b) Whoever actively induces infringement of a patent shall be liable as an infringer.


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## Curtis (Dec 2, 2003)

bkdtv said:


> TiVo's "time warp" patent consists of a combination of hardware and software claims. All must be met for infringement. Without hardware and software, a product cannot violate TiVo's "time warp" patent.


TiVo's patent has 61 claims. Violation of any one of these claims is patent violation.


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## fasTLane (Nov 25, 2005)

Karma ran over your dogma? 

Sorry, Charlie.


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## ZeoTiVo (Jan 2, 2004)

samo said:


> If anything, they will try to get out of SA hardware and software by raising cost on both (who needs 900K recurring SA subs when you have 10 million satellite subs). Instead they will most likely concentrate on the software for cable boxes to corner the market.


they were going down that road LONG before the suit outcome was known in any way. See the Comcast deal Roger's made. That was when TiVo went down the partnering road as a much better business model. Corner the market is unlikely - the suit against DISH is specific in what in the software infringed the patent. It was far more detailed than simply recording a show to a hard drive.
Others can make a DVR that does not infringe on TiVo. Moxi seems to think it is fine, for instance.

so this was you best attempt at some FUD? Trying to rile TiVo owners. 
Retrying the case that is now more than won was just lame Samo.


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## RoyK (Oct 22, 2004)

Curtis said:


> TiVo's patent has 61 claims. Violation of any one of these claims is patent violation.


Actually there are 4 major claims - 1, 31, 32, & 61. All the rest depend on these four.

To infringe the patent one must incorporate every single aspect of any one of these four claims.


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## jcthorne (Jan 28, 2002)

tivohaydon said:


> Out of curiosity - why are people cheerleading TiVo on this one?
> 
> While I've historically liked TiVo products I can't say I agree with being able to patent something so patently obvious and use it to beat up the other guy. (Whether you like them or not.)


In 1998 when Tivo INVENTED the DVR, it was not so patently obvious. It created a whole new type of comsumer electronics product. Tivo is fighting for royalties due based on technology STOLEN by Dish.

Really does not matter if you agree with the whole patent concept or not. Its the law and the basis of intellectual property rights in the US.


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## stevel (Aug 23, 2000)

lrhorer said:


> If it is so patently obvious, then why had no one prior to Tivo ever produced one, or even filed for a patent to produce one?


Here's a patent for DVR functionality filed two years before TiVo's.


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## rainwater (Sep 21, 2004)

stevel said:


> Here's a patent for DVR functionality filed two years before TiVo's.


To be clear TiVo doesn't have a "DVR" patent. They patented a method for storage and playback of recorded media. They patented the process they used but not the idea of a "DVR".


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## stevel (Aug 23, 2000)

Correct. I posted the link to the prior patent to refute the notion that nobody had thought of a DVR before TiVo. As you say, it is only one particular process that TiVo patented.


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## bkdtv (Jan 9, 2003)

Here's one of the earliest DVR patents. This patent covers methods to "permit the simultaneous recording and playback of video material with a variable time delay between recording and playback of a given video program segment."

TiVo holds the exclusive right to license and enforce that patent, although it expires in 2011.


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## ziggy29 (Jul 26, 2002)

bkdtv said:


> TiVo holds the exclusive right to license and enforce that patent, although it expires in 2011.


Maybe Charlie's hoping to drag this out until then!


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## Adam1115 (Dec 15, 2003)

rainwater said:


> To be clear TiVo doesn't have a "DVR" patent. They patented a method for storage and playback of recorded media. They patented the process they used but not the idea of a "DVR".


Plus *EVERYONE* knows that a TiVo is a PVR not a DVR...


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## rainwater (Sep 21, 2004)

ziggy29 said:


> Maybe Charlie's hoping to drag this out until then!


It will still not matter. It would only make them liable for more damages.


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## yunlin12 (Mar 15, 2003)

bkdtv said:


> TiVo holds the exclusive right to license and enforce that patent, although it expires in 2011.


Can Tivo sue retroactively after 2011, for infringement that occurred before that patent expired?


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## Curtis (Dec 2, 2003)

yunlin12 said:


> Can Tivo sue retroactively after 2011, for infringement that occurred before that patent expired?


Definitely.


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## Phantom Gremlin (Jun 20, 2002)

samo said:


> Fact that TiVo has better attorneys and somehow convinced technically illiterate judge in Texas that Dish still infringes does not change my believe.


I pointed out this case to you more than a year ago in a previous version of this thread. Charlie's lawyers were sanctioned and ordered to personally pay $63,000 dollars (in an case unrelated to TiVo).

Which I think is highly relevant. Maybe "better lawyers" aka non-scumbags won't work for Charlie?

But don't despair. I'd say there's at least a 20% chance (pulling a number out of the air) that the latest award to TiVo will be overturned on appeal.


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## lrhorer (Aug 31, 2003)

Phantom Gremlin said:


> I pointed out this case


Does anyone else find this as ironic as I do? Under normal circumstances, if a provider like Echostar had refused to allow Christian programming on their network, the folks who run those networks and their affiliates would have been screaming, "Bloody murder!" at the top of their lungs, complaining endlessly about violating their right to worship and persecuting them for their religious beliefs. When broadcasting such materials threatens to eat into their profits, however, they sing a whole different song.

Note that doesn't make what Echostar did either legal or appropriate, and I'm not commenting on the tenets of anyone's religion, or on the motivations of any private individual. It's just that if the broadcasters were as devout as they publicly claim to be, it seems to me they would welcome all the Christian programming regardless of whose network sponsors it or profits from it.


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## lrhorer (Aug 31, 2003)

lrhorer said:


> *Generally speaking*, it is at the point of sale the patent is violated.


(Emphasis added)



Curtis said:


> TITLE 35 > PART III > CHAPTER 28 > § 271
> 
> § 271. Infringement of patent
> 
> ...


Yes, of course. It is in fact infringement even to manufacture a patented product and lock all the items in a warehouse without a single one ever coming into use. In practical terms, however, if the manufacturer doesn't sell or at least distribute the items in question, then it is very difficult to assign any significant damages to the infringement. Unlike criminal law, where an illegal act does not necessarily have to cause any harm in order to be actionable, in a civil suit the awards, including punitive awards, are based upon the litigant's ability or failure to demonstrate actual damages. In short, if the defendant manufactured but did not distribute the product, then the plaintiff could win the suit, but wouldn't get much money from it. More importantly, it's unlikely the potential plaintiff would ever be able to learn of the infringement unless the items are disseminated through fairly widespread public distribution. Furthermore, while free distribution of unauthorized product is also illegal and by modern definitions is injurious and actionable, it's not going to happen very often. If someone goes to the effort and expense to produce some item on a large scale, they're not too likely to give it away. They're even less likely to lock away all the product and let it sit. It is possible, though, and that is precisely why I said, "Generally speaking". Perhaps I should have phrased it some other way than "is violated", but as the man says, "It ain't illegal if you don't get caught." The act of violation (or one of them) is indeed at the moment of manufacture, but the focus of the litigation is usually going to be the point of sale. This very suit demonstrates this, as Echostar could have gotten themselves out of hot water - or at least this particular pot of hot water - by disabling the recording software on the DVRs, but leaving them otherwise functional as tuners. They weren't (and surely won't be) required to recall and destroy all the infringing devices.


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## Curtis (Dec 2, 2003)

bkdtv said:


> TiVo holds the exclusive right to license and enforce that patent, although it expires in 2011.





ziggy29 said:


> Maybe Charlie's hoping to drag this out until then!


Lest anyone get confused, the patent Dish infringed expires 07-30-2018.


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## MichaelK (Jan 10, 2002)

http://online.wsj.com/article/SB124654731747286401.html



> But late Wednesday Dish was granted another stay from a Federal Circuit judge following its appeal. Now analysts are expecting a resolution late this year or in early 2010.





> The Federal Circuit court set an expedited schedule of briefings over the next few months, with oral arguments slated for November.


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## jmace57 (Nov 30, 2002)

From a different source:

NEW YORK &#8212; Dish satellite TV customers can continue using their digital video recorders while a court battle continues with TiVo Inc. over a patent, the companies said today.

A federal appeals court on Wednesday granted Dish Network Corp. and EchoStar Corp. a stay on a contempt order that would have forced them to disable Dish DVRs.

A judge in the U.S. District Court of the Eastern District of Texas last month found Dish and EchoStar to be in contempt of a permanent injunction on TiVo&#8217;s DVR Time Warp technology, which lets viewers pause, rewind and fast-forward live shows.

Dish had lost a 2004 patent infringement case brought by TiVo, and while the case was on appeal it sent modified software to customers&#8217; DVRs. But TiVo said the workaround software still infringed on its patent and asked the court for the injunction.

Alviso, Calif.-based TiVo said Thursday it was confident that the district court&#8217;s ruling would be upheld on appeal.

TiVo shares fell $1.67, or 16 percent, to $9.10 in premarket trading today. Dish shares were unchanged at $16.48, while EchoStar shares were unchanged at $16.14.


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## steve614 (May 1, 2006)

I wanted to see Echostar/Dish suffer!


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## MichaelK (Jan 10, 2002)

guess all the law guys are away fo the weekend. 

But when they get back...

So oral arguements in November. What's that mean for a decision- March of 2010. 

then who's dish going to appeal to at that point? Is this one of the things were it's a 3 judge panel now and they can appeal to the full circuit court this decision? And then from there to the supreme court?


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## MichaelK (Jan 10, 2002)

Have to say- it's really foul to me how our court system is so slow. What if tivo didn't have a pile of cash all these years but was just some little penniless dink? Dish would basically win by attrition not on the merits...


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## fasTLane (Nov 25, 2005)

I will *never* patronize Dish, just on this behavior alone.


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## MichaelK (Jan 10, 2002)

the fact that I get literal spam from places like [email protected] hawking DISH and never get such spam from directv or cable has told me that I will never do business with dish years ago


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## sbiller (May 10, 2002)

MichaelK said:


> guess all the law guys are away fo the weekend.
> 
> But when they get back...
> 
> ...


Decision could be rendered as early as December 2009. Latest is 1Q10.


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## BobCamp1 (May 15, 2002)

MichaelK said:


> Have to say- it's really foul to me how our court system is so slow. What if tivo didn't have a pile of cash all these years but was just some little penniless dink? Dish would basically win by attrition not on the merits...


Yep. Often that is one of the goals. To drive the smaller company that has the patent into the ground. Then you can buy them, get the patents, and get your money back from previous judgments against you. Of course, that is also the little company's dream. It's not to succeed. It's to grow enough to attract a bigger company's attention and get offered a boatload of cash.

IPR is only a problem when both companies are the same size.


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## morac (Mar 14, 2003)

TiVo was just awarded attorney fees and prejudgment interest in their Dish case. Dish will now have to pay TiVo $500,000 a day until they follow the Judge's order or about $200 million to date.

http://friendfeed.com/davisfreeberg/163d70b8/tivo-was-just-awarded-attorney-fees-and
http://finance.yahoo.com/news/TiVo-Statement-on-US-District-prnews-1422961743.html?x=0&.v=1


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## tibruk (Nov 28, 2003)

The court upholds the contempt charge and awards damages and Dish trys to say:

"While we disagree that any amount of sanctions was warranted, the decision confirms our belief that we designed around TiVo's patent in good faith. We believe that we ultimately will prevail on appeal."

Isn't this the complete opposite of the decision?

Tib


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## ZeoTiVo (Jan 2, 2004)

tibruk said:


> The court upholds the contempt charge and awards damages and Dish trys to say:
> 
> "While we disagree that any amount of sanctions was warranted, the decision confirms our belief that we designed around TiVo's patent in good faith. We believe that we ultimately will prevail on appeal."
> 
> ...


not really - the next paragraph is what DISH is pleased about

"In deciding not to triple the amount he was ordering Dish to pay, Folsom said he would take at face value the testimony of Dish Chief Executive Officer Charles Ergen that the company believed it had worked around the service. "


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## mrmike (May 2, 2001)

ZeoTiVo said:


> not really - the next paragraph is what DISH is pleased about
> 
> "In deciding not to triple the amount he was ordering Dish to pay, Folsom said he would take "at face value" the testimony of Dish Chief Executive Officer Charles Ergen that the company believed it had worked around the service. "


As opposed to just pushing out a new SW version which they knew still infringed to drag the whole thing out?


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## LoadStar (Jul 24, 2001)

tibruk said:


> "... the decision confirms our belief that we designed around TiVo's patent in good faith. ..."





ZeoTiVo said:


> "...Folsom said he would take "at face value" the testimony of Dish Chief Executive Officer Charles Ergen that the company believed it had worked around the service. "


That is the most creative interpretation of what "at face value" means that I've ever heard.


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## fasTLane (Nov 25, 2005)

egg face, bald face or just two face?


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## ZeoTiVo (Jan 2, 2004)

LoadStar said:


> That is the most creative interpretation of what "at face value" means that I've ever heard.


I was shocked to hear a Judge use that phrase _in any meaning_ myself. I thought courts were places of evidence and facts and not hearsay* from an interested party.

*Gosh, the engineers** told me it no longer infringed, short and simple.

** engineers I would have fired if they said anything else.


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## morac (Mar 14, 2003)

ZeoTiVo said:


> I was shocked to hear a Judge use that phrase _in any meaning_ myself. I thought courts were places of evidence and facts and not hearsay* from an interested party.


IANAL, but the judge is basically saying he believed the testimonies of Echostar's engineers when they said that they thought the work around did not infringe on the patent. There's really no way to prove or disprove what the engineers believed, unless there were notes lying around that said something to the effect that the engineers knew the work around still infringed. In other words there had to be proof of malice.

Since the work around was found to infringe, EchoStar still has to pay, but not triple (yet).


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## AJRitz (Mar 25, 2002)

LoadStar said:


> That is the most creative interpretation of what "at face value" means that I've ever heard.


It's about burdens of proof, not creative interpretations of "at face value."

In order to get trebled damages, it was TiVo's burden to prove that Dish continued to participate in willful infringement. The judge was obligated to take Ergen's testimony at face value unless and until it was adequately controverted by TiVo.


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## nrc (Nov 17, 1999)

This is about as close to a loss as TiVo could get in another win. Less than half of the 200 million is really a sanction for contempt, the rest is just the royalty rate originally set by the jury. The extra dollar is simply not going to be adequate to stop Dish from playing this game over and over until they eventually get something that is declared non-infringing. 

The judge said in his contempt ruling that Dish could not be allowed to simply ignore the order just because they thought they had a workaround. Allowing that now with minimal sanctions leaves the contempt ruling toothless.

The only hope I saw was this: "If, however, EchoStar is unsuccessful on appeal and nevertheless continues to disregard this Courts orders, the Court will seriously entertain the award of enhanced sanctions."


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## ZeoTiVo (Jan 2, 2004)

morac said:


> IANAL, but the judge is basically saying he believed the testimonies of Echostar's engineers when they said that they thought the work around did not infringe on the patent. There's really no way to prove or disprove what the engineers believed, unless there were notes lying around that said something to the effect that the engineers knew the work around still infringed. In other words there had to be proof of malice.
> 
> Since the work around was found to infringe, EchoStar still has to pay, but not triple (yet).


then why not just say "TiVo did not prove the willful part" versus the more ambiguous "at face value". Likely just a nitpick from an armchair lawyer but the whole thing is just in a loopy stage and it continues to dismay me how a bigger company can ride such proceedings out and try and grind a smaller company into submission even after verdicts are returned by a jury and now even after a contempt citation is issued by the very judge who is now waffling around.


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## magnus (Nov 12, 2004)

So, is this $200 million above the original amount? And what about the work around that did not successfully work around the Tivo patent. Will Dish be licensing from Tivo or not or will they just continue to violate the order and pay when the judge decides that they should follow his orders?


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## CuriousMark (Jan 13, 2005)

magnus said:


> So, is this $200 million above the original amount? And what about the work around that did not successfully work around the Tivo patent. Will Dish be licensing from Tivo or not or will they just continue to violate the order and pay when the judge decides that they should follow his orders?


Yes, the $200 Million is for the time since the last appeal by Dish was rejected, and this amount will be on top of the amounts awarded previously.

The unsuccessful work around could be licensed if Dish was willing to do so. So far they have not, claiming TiVo wants too much. Dish could continue violating the order, but they have a free pass while the appeal is going on. After that they either need to license, design around again, shut down a few million DVRs, or continue infringing and risk increasingly harsh penalties. As to which they choose to do, well your guess is as good as mine.


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## morac (Mar 14, 2003)

CuriousMark said:


> The unsuccessful work around could be licensed if Dish was willing to do so. So far they have not, claiming TiVo wants too much. Dish could continue violating the order, but they have a free pass while the appeal is going on. After that they either need to license, design around again, shut down a few million DVRs, or continue infringing and risk increasingly harsh penalties. As to which they choose to do, well your guess is as good as mine.


Have they appealed to the Supreme Court yet? If not they could do that.


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## shwru980r (Jun 22, 2008)

Unbelievable that a judge would want to let DISH use the courts to get as close to TIVO as possible without crossing the line. How many bites out of the apple is DISH entitled to? 

The judge must feel sorry for DISH and not want to put them out of business or the Judge hates TIVO but can't do much becuase the law is on the side of TIVO.


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## MichaelK (Jan 10, 2002)

morac said:


> Have they appealed to the Supreme Court yet? If not they could do that.


thats a certainty if their past tactics prove to be the case this time through the court system.

I wouldn't be surprised if Dish isn't one of the top all time filers for appeals to the supreme court...


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## BobCamp1 (May 15, 2002)

shwru980r said:


> Unbelievable that a judge would want to let DISH use the courts to get as close to TIVO as possible without crossing the line. How many bites out of the apple is DISH entitled to?
> 
> The judge must feel sorry for DISH and not want to put them out of business or the Judge hates TIVO but can't do much becuase the law is on the side of TIVO.


Well, it's called justice, and it moves at a snail's pace. And the judge has been pro-Tivo.

Also, there's the whole "Tivo may have their patents rejected" thing going on at the same time. Apparently, Philips and iMedia have prior art for a good chunk of the time-warp patent.


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## HiDefGator (Oct 12, 2004)

shwru980r said:


> Unbelievable that a judge would want to let DISH use the courts to get as close to TIVO as possible without crossing the line. How many bites out of the apple is DISH entitled to?


companies may try to design around a patent as many times as they are willing to try.


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## Curtis (Dec 2, 2003)

Audio of today's oral argument at the appeals court is available:

http://oralarguments.cafc.uscourts.gov/mp3/2009-1374.mp3


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## timckelley (Oct 15, 2002)

My mother-in-law expressed interested in switching to Dish satellite TV. I told her about this lawsuit, and how maybe I'd be nervous in using them before knowing the outcome of this.

I'm curious what you people's opinions are about how risky/good idea/bad idea it would be for someone to to sign up with Dish around now.


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## 20TIL6 (Sep 7, 2006)

I don't think any DISH customer will be negatively impacted. In fact, she just might end up with a TiVo if a settlement works out that way. IMO


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## samo (Oct 7, 1999)

timckelley said:


> My mother-in-law expressed interested in switching to Dish satellite TV. I told her about this lawsuit, and how maybe I'd be nervous in using them before knowing the outcome of this.
> 
> I'm curious what you people's opinions are about how risky/good idea/bad idea it would be for someone to to sign up with Dish around now.


Tell her not worry about it. If she gets DVR, she will get one that is not part of lawsuit and will not be shut down regardless of outcome. As for stability of the company, Dish makes 100's of millions a year in net profit. Worse comes to worse, they will make a little less.


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## 20TIL6 (Sep 7, 2006)

samo said:


> If she gets DVR, she will get one that is not part of lawsuit and will not be shut down regardless of outcome.


I agree that in all likelihood no DVRs will be shutdown, but whether the lawsuit is strictly limited to certain named models is up for ruling. The circuit level has indicated named models PLUS those no more than colorably different. And the numbers of devices indicated in rulings also suggests that the entire DISH deployment of DVRs (except for something like 200,000 - some previous agreement) are infringing.

It's in the court documents.


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## HerronScott (Jan 1, 2002)

I haven't heard anything in a while. What is the status of the lawsuit?

Scott


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## ZeoTiVo (Jan 2, 2004)

timckelley said:


> My mother-in-law expressed interested in switching to Dish satellite TV. I told her about this lawsuit, and how maybe I'd be nervous in using them before knowing the outcome of this.
> 
> I'm curious what you people's opinions are about how risky/good idea/bad idea it would be for someone to to sign up with Dish around now.


The lawsuit is significant for TiVo and for DVRs in general but DISH will stay in operation and your MIL will end up with a really good DVR from DISH is she chooses to get one and it is very unlikely she will see nay impact to her DVR useage.

Note - this is no reflection on value of service


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## SpiritualPoet (Jan 14, 2007)

I'd never encourage ANYONE to sign up for Dish Network, as long as something better, DirecTV is around. There's so much more that DirecTV offers that Dish Network can't. (specialized sports programming tiers, NFL, NBA, regional sports "tickets", etc.) [of course, blackouts apply where applicable].


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## Adam1115 (Dec 15, 2003)

SpiritualPoet said:


> I'd never encourage ANYONE to sign up for Dish Network, as long as something better, DirecTV is around. There's so much more that DirecTV offers that Dish Network can't. (specialized sports programming tiers, NFL, NBA, regional sports "tickets", etc.) [of course, blackouts apply where applicable].


I generally like DirectTV... but...

DirecTV does have an F rating with the BBB.. I know someone who paid his daughters bill ONCE one time... years later she cancelled and they charged ETF to HIS CREDIT CARD! They refused to remove the payment....


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## MichaelK (Jan 10, 2002)

true but i dont see spam from directv on a regular basis. Any company that has "dealers" that are spammers is scum in my mind. (ignoring all the other court affirmed reasons why ergen is scum)


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## magnus (Nov 12, 2004)

It happened to me too.



Adam1115 said:


> I generally like DirectTV... but...
> 
> DirecTV does have an F rating with the BBB.. I know someone who paid his daughters bill ONCE one time... years later she cancelled and they charged ETF to HIS CREDIT CARD! They refused to remove the payment....


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## parzec (Jun 21, 2002)

I could never recommend DirecTV to anyone as a result of their capricious imposition of the ETF. My advice is to *never* give DirecTV your credit card, and if you must -- only use a temporary card number or a card on the verge of expiration. Better yet, just avoid DirecTV like the Plague. F-


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## MikeAndrews (Jan 17, 2002)

parzec said:


> I could never recommend DirecTV to anyone as a result of their capricious imposition of the ETF. My advice is to *never* give DirecTV your credit card, and if you must -- only use a temporary card number or a card on the verge of expiration. Better yet, just avoid DirecTV like the Plague. F-


Preach it, brother!

You also can't pay DevilTV online ONE TIME without authorizing then to auto-deduct your checking account or credit card every month.

At least with a credit card you can dispute the charge.


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## madbeachcat (Jan 31, 2002)

netringer said:


> Preach it, brother!
> 
> You also can't pay DevilTV online ONE TIME without authorizing then to auto-deduct your checking account or credit card every month.
> 
> At least with a credit card you can dispute the charge.


This is absolutely false. I pay them online every month, and have been for years. I am not on Autopay and they do not automaticcally debit my account. The first time this happens will be the last time.


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## dan0 (Jul 7, 2009)

netringer said:


> You also can't pay DevilTV online ONE TIME without authorizing then to auto-deduct your checking account or credit card every month.


yes you can
I've been with DTV since they bought out prime-star. Used to mail in a check but started doing the pay with a check online 3-4 years ago and have NEVER had them autodraft my checking account. In fact I've had my service cut because I forgot to make a payment.


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