As hard to believe as it may be, even if the hardware verdict was upheld, the software update would still be good enough because the hardware claims were actually dependent on the software claim. Tivo does not hold a patent on the hardware DISH DVRs are using. Most DVR hardware used by all companies at the time had the Broadcom design to accomodate Tivo's DVR software, but DISH was not violating Broadcom hardware design, only that when DISH infringed on Tivo's software, the same software also caused the hardware to infringe. Notice in DISH's filing they went into length to explain how the new software no longer uses the Broadcom chips and "switches"? That was to hammer away the idea that the hardware claims needed not to be brought back ever, because it became a foregone issue once the new software was downloaded.