TiVo vs Echostar ... Discussion leading to September 4th Hearing

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  1. May 17, 2008 #1 of 2549
    Curtis52

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    Re: TiVo Inc. v. EchoStar, et al.. Case No. 2-Q4CV-01

    Dear Judge Folsom:

    Pursuant to the Court's April 23, 2008 Order (Docket No. 822), plaintiff TiVo submits two topics of discussion for the status conference on May 30, 2008: (1) Enforcement of the Court's Permanent Injunction, and (2) Determination of the damages TiVo sustained during the stay of the injunction. The issues relating to each topic are set forth in Section B of this letter.

    To provide prompt resolution of these issues, TiVo requests:
    • A hearing at the earliest possible date to determine whether EchoStar should be held
    in contempt for its failure to disable the DVR functionality in the Infringing Products and for its placement of new infringing DVRs (and new EchoStar products that are only colorably different); and

    • Permission to serve limited discovery to obtain additional information before determining the damages TiVo sustained during the stay of the injunction, and, if necessary, bringing a motion for an order to show cause why EchoStar is not in contempt for the continuing use of the Infringing Products, changed only by downloading modified, but still infringing, software (and new EchoStar products that are only colorably different).

    TiVo is also prepared to address any questions that the Court may have about the pending Bill of Costs that TiVo submitted on September 22, 2006, which is awaiting resolution. TiVo's requested costs total $333,600.03.

    A. BACKGROUND

    On September 8, 2006, this Court entered a Final Judgment and Permanent Injunction against all defendants (collectively “EchoStar”) for willful infringement of U.S. Patent No. 6,233,389 (the “Barton Patent”). The amount of the judgment was $93,969,159.00, which included the jury verdict of $73,991,964.00, supplemental damages of $13,819,160.00, and prejudgment interest of $6,158,035.00. (Amended Final Judgment and Permanent Injunction, Docket No. 806 (attached as Exhibit A), and Order Re Supplemental Damages and Prejudgment Interest for the Period of August 1, 2006 to September 8, 2006, Docket No. 819).

    The Permanent Injunction required EchoStar to do, among other things, the following:

    (a) cease “making, using, offering to sell, selling, or importing into the United States,” the infringing models of EchoStar DVR receivers (DP-501, DP-508, DP-510, DP-522, DP-625, DP-721, DP-921 and DP-942, the “Infringing Products”) “and all other products that are only colorably different therefrom in the context of the Infringed Claims”; and

    (b) “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. The DVR functionality . . . shall not be enabled in any new placements of the Infringing Products.” (Amended Final Judgment and Permanent Injunction, Ex. A, at 2).

    The injunction’s exception for 192,708 units represents the then-existing units on which the jury had awarded TiVo lost profits damages. (Verdict Form, Docket No. 690).

    TiVo did not seek an injunction on these specific units. Lost profits have not been awarded for any units placed after the jury verdict, so the injunction’s “lost profits” exception could not logically apply to any units placed after the jury verdict.

    This Court denied EchoStar's request for a stay of injunction but, on October 3, 2006, the Federal Circuit granted a stay pending appeal. In persuading the Federal Circuit to enter a stay, EchoStar argued that if it were unable to offer DVRs, it faced “a high risk of losing a significant portion of its existing and potential subscribers” and “if the injunction were to cause just half of EchoStar's current customers with DVRs to leave EchoStar for another provider, EchoStar's revenues would fall by nearly $90 million per month.” (EchoStar's Emergency Motion to Stay The District Court's Injunction, at 18 (citing Martin Decl. ¶ 8) (emphasis in original)).


    On November 28, 2007, in connection with the reexamination proceedings initiated by EchoStar, the United States Patent and Trademark Office confirmed the validity of all of the claims of the Barton Patent. On January 31, 2008, the Federal Circuit affirmed the jury's finding that EchoStar infringed claims 31 and 61 (the “software claims”) of the Barton Patent. TiVo Inc. v. EchoStar Commc’ns Corp., 516 F.3d 1290, 1310 (Fed. Cir. 2008). The Federal Circuit reversed the jury's finding of literal infringement of claims 1 and 32 (the “hardware claims”), and declined to rule on whether there was nevertheless sufficient evidence of infringement under the doctrine of equivalents, “leav[ing] that issue for the district court to resolve in the event that, on remand, TiVo decides to continue to pursue the hardware claims in light of this decision.” Id. at 1305.

    The Federal Circuit stated that the stay pending appeal would dissolve when the appeal became final, and “[a]t that time, the district court can make a determination as to the additional damages, if any, that TiVo has sustained while the stay of the permanent injunction has been in effect.” Id. at 1312.

    EchoStar requested rehearing of this decision by both the panel and the Circuit en banc but this motion was denied on April 11, 2008. The mandate of the Federal Circuit issued April 18, 2008. On this date, pursuant to the January 31, 2008 Order, the stay dissolved and the Permanent Injunction took effect.1

    B. TOPICS OF DISCUSSION

    1. Enforcement of the Permanent Injunction

    Although the injunction required EchoStar to “disable the DVR functionality,” with respect to the Infringing Products, EchoStar has refused to do so. Despite the plain language of the injunction, EchoStar argues that it need not disable the DVR functionality because it has modified its software so that it supposedly no longer infringes TiVo’s patent. On May 12, 2008, EchoStar made its modified source code available for review by TiVo. EchoStar also waived privilege and produced to TiVo three opinions of counsel relating to EchoStar’s modified software. After review of the software that EchoStar provided and the opinion letters, TiVo does not believe that the modifications avoid infringement. In fact, TiVo believes that EchoStar is violating the Court’s injunction in at least three different ways.

    1 As security for payment of the judgment, the parties agreed to the deposit of monies in an escrow account. The amount in escrow totals $104,241,309 through April 30, 2008. EchoStar has announced that it intends to file a petition for writ of certiorari to the U.S. Supreme Court, thereby delaying payment of the escrowed funds to TiVo.

    First, TiVo believes that EchoStar is in violation of the injunction by failing to “disable the DVR functionality,” and by selling new DVRs, regardless of any changes to the software. In fact, what EchoStar is doing now is what it proposed to the Court in 2006, and which the Court rejected. Specifically, EchoStar’s 2006 proposal was that the Court enjoin only “the provision of infringing DVR software upon activation.” (EchoStar’s (1) Opposition to TiVo’s Motion for Entry of Judgment and (2) Cross-Motion to Stay any Injunction Pending Appeal, Docket No. 737, at 16). In opposing EchoStar's language, TiVo warned that EchoStar’s formulation would be a recipe for abuse:

    This clever formulation is an invitation for EchoStar to engage in mischief. Such an injunction would only result in EchoStar providing what it deemed as “non-infringing” DVR software to its already-found-to-be-infringing DVRs, creating the opportunity for interminable disputes to determine what exactly is “infringing DVR software.” (TiVo's (1) Reply Re Motion for Entry of Judgment and Permanent Injunction and (2) Opposition to EchoStar's Cross-Motion to Stay Injunction, Docket No. 747, at 11). This Court rejected EchoStar’s proposal and adopted, instead, the straightforward “disable the DVR functionality” provision that appears in the Permanent Injunction.

    If EchoStar believed that the “disable the DVR functionality” provision of the injunction was inappropriate, EchoStar could have challenged it, but — despite multiple opportunities before both this Court and the Federal Circuit — it chose not to do so. EchoStar cannot simply ignore the Court’s unambiguous Order, even if EchoStar were to contend, which it has not previously done, that the injunction as written is inappropriate. W. Water Mgmt., Inc. v. Brown, 40 F.3d 105, 108 (5th Cir. 1994) (prohibiting defendants from arguing in a contempt proceeding that injunction was overbroad because “collateral attack on an injunction during contempt proceedings is prohibited if earlier review of the injunction was available” (citing United States v. Ryan, 402 U.S. 530, 532 n.4 (1971))).

    Nevertheless, EchoStar has proceeded as if its proposed injunction language had been accepted, not rejected, and has refused to disable the DVR functionality. EchoStar announced to the public that it had modified its software and instructed its distributors that this modified software obviates the effect of the Court's injunction in this case. EchoStar's notice to its distributors, and another notice clarifying the first, are attached as Exhibit B to this letter.

    Second, EchoStar is misusing the Court's language that requires 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.” (Amended Final Judgment and Permanent Injunction, Ex. A, at 2 (emphasis added)). In particular, EchoStar is taking the position that it can place new infringing DVRs on an ongoing basis, as long as the total number of infringing DVRs does not exceed 192,708. The Court's language, however, is clear: the 192,708 number applies to existing DVRs that had already been placed with customers. The injunction prohibited EchoStar from delivering any new infringing DVRs.

    Third, even if EchoStar’s injunction language were adopted, EchoStar would still be violating it. All EchoStar has done to the infringing products is download a modified version of its software to its otherwise unmodified set top boxes. TiVo was given access to some of EchoStar’s modified software this week and is in the process of reviewing it. The changes described in the opinion letters produced by EchoStar do not render the products noninfringing, and TiVo has seen nothing so far in its review of source code that changes this. However, to avoid any doubt, TiVo will complete its analysis of the allegedly new software and, with the Court’s permission, will request written discovery on both the Infringing Products and those believed to be only colorably different (attached as Exhibit C) and possibly two depositions, depending on the content of EchoStar’s discovery responses and documents.

    EchoStar's violations of the injunction constitute contempt of court. The standard as set forth by the Fifth Circuit is that “[a] party commits contempt when he violates a definite and specific order of the court requiring him to perform or refrain from performing a particular act or acts with knowledge of the court’s order.” SEC v. First Fin. Group, 659 F.2d 660, 669 (5th Cir. 1981). Regarding the modified software, the court need only compare it to the original infringing product. Unless there is “more than a colorable difference” between the two, a contempt proceeding is appropriate. KSM Fastening Sys., Inc. v. H.A. Jones Co., 776 F.2d 1522, 1532 (Fed. Cir. 1985). Then, so long as the modified software “falls within the . . . adjudicated scope of the [patent] claims,” EchoStar is in contempt of court. KSM Fastening, 776 F.2d at 1530.

    Until EchoStar is held in contempt, it will continue to conduct its business as if the injunction were never issued. TiVo is prepared to make a motion now for an Order To Show Cause Regarding Contempt with respect to EchoStar’s failure to disable the DVR functionality and its placement of new infringing DVRs (grounds one and two above).

    With respect to EchoStar's modified software, TiVo requests permission to serve limited
    discovery to obtain additional technical information before bringing a motion on ground
    number three.2 While TiVo believes that EchoStar is in contempt on all three grounds, the2 Although EchoStar voluntarily provided some information about the modified software, it refused to provide other information that TiVo requested. For example, EchoStar provided TiVo access to the relevant source code but refused to allow TiVo to analyze the code using the same software used by EchoStar to develop the code, which is necessary for the efficient analysis of the code. EchoStar also refused to produce any documents relating to the first two grounds appear to be primarily legal issues. TiVo can present these right away. To provide timely relief from EchoStar's continuing infringement and violation of the Court's injunction, TiVo requests a hearing on EchoStar's failure to disable the DVR functionality and its placement of new infringing DVRs at the earliest available time.

    2. Determination of Damages During the Stay of the Injunction

    The Federal Circuit remanded the case with instructions that the District Court determine the damages that TiVo incurred during the period that the injunction was stayed. TiVo, 516 F.3d at 1312. The Federal Circuit's recent decision mAmado v. Microsoft Corp., 517 F.3d 1353, 1361-62 (Fed. Cir. 2008), makes clear that damages for infringement taking place after the injunction should be at a royalty rate higher than what the jury found to be an appropriate pre-verdict reasonable royalty. Id. at!362n.2. hi assessing post-verdict damages, the trial court must consider financial and economic information related to the change in the parties' bargaining positions and economic circumstances as a result of the determination of liability, as well as the evidence and arguments presented in connection with the granting of the injunction and the stay. Id. at 1362.

    To that end, TiVo asked EchoStar to provide certain information related to the assessment of damages during the stay period, e.g., the number of infringing units and financial information related to EchoStar's nationwide "Better Than TiVo" advertising campaign undertaken during the stay period to attract new customers at TiVo's expense.

    EchoStar refused to provide informally most of the damages information that TiVo has requested. Accordingly, TiVo requests permission for limited formal discovery relating to the damages issues. Once TiVo has obtained the information from EchoStar, TiVo will promptly file a motion requesting those damages.
     
  2. May 17, 2008 #2 of 2549
    Curtis52

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    Exhibit C attached to Tivo filing - 1st Set of Interrogatories
    II. INTERROGATORIES
    1. Identify for each model of EchoStar product that has digital video recorder (DVR)
    functionality, including, but not limited to, DP-501, DP-508, DP-510, DP-721, DP-921, DP-522,
    DP-625, DP-942, ViP 322, ViP 611, ViP 612, ViP 622, ViP 722, ViP 211 (new version that can
    be converted into a DVR with addition of an external hard disk drive): (1) whether all units at
    end-users' sites have software that EchoStar contends does not infringe the Barton patent and, if
    applicable, what date EchoStar first changed the software to a version that it currently contends
    is not infringing in those units and how the software was changed from the version adjudged to
    be infringing; (2) whether all units at EchoStar's distributors have software that EchoStar
    contends does not infringe the Barton patent and, if applicable, what date EchoStar first changed
    the software to a version that it currently contends is not infringing in those units and how the
    software was changed from the version adjudged to be infringing; and (3) whether all newly
    manufactured units have software that EchoStar contends does not infringe the Barton patent
    and, if applicable, what date EchoStar started incorporating a version of software that it currently
    contends is not infringing in those units and how the software was changed from the version
    adjudged to be infringing.
    2. Describe with specificity for each model of EchoStar product that has digital
    video recorder (DVR) functionality, including, but not limited to, DP-501, DP-508, DP-510, DP-
    721, DP-921, DP-522, DP-625, DP-942, ViP 322, ViP 611, ViP 612, ViP 622, ViP 722, ViP 211
    (new version that can be converted into a DVR with addition of an external hard disk drive), the
    limitation or limitations of the Barton patent claims that EchoStar currently contends the product
    does not meet and why EchoStar believes the element or elements are not met.
    3. Identify all individuals, including but not limited to EchoStar employees,
    EchoStar attorneys, and outside counsel, by name and employer/firm, who were involved in any
    communications concerning changes to EchoStar's products that it contends render the products
    noninfringing of the Barton patent, and the date and duration of each communication.
    4. Provide the total number of (a) DVR placements and (b) DISH subscriber
    households possessing or using an EchoStar DVR on an end-of-month or end-of-quarter basis
    from September 8, 2006 through the present.
    5. Provide the total and gross number of DVR placements per DISH subscriber
    household on an end-of-month or end-of quarter basis from September 8, 2006 through the
    present.
    6. Provide the total number of new DISH Network subscribers with an EchoStar
    DVR as a percentage of the total number of new DISH Network subscribers from September 8,
    2006 to the present, on a monthly or quarterly basis.
    7. Provide the monthly or quarterly churn (i.e., turnover) rate for DISH Network
    subscribing households receiving or using DVR(s), and with DISH Network subscribing
    households not receiving or using DVR(s), from September 8, 2006 through the present.
    8. Provide the monthly or quarterly total Average Revenue Per Unit ("ARPU") for
    DISH Network subscribing households receiving or using DVR(s), and with DISH Network
    subscribing households not receiving or using DVR(s), from September 8, 2006 through the
    present.
    9. Provide EchoStar's incremental profitability on its DVR customers (including
    EchoStar's revenues associated with its DVR customers and EchoStar's direct and/or variable
    costs associated with its DVR customers) on a monthly or quarterly basis from September 8,
    2006 through the present.
    10. Provide EchoStar's total expenditure on advertising that (a) mentions DVR and/or
    (b) mentions TiVo or that compares EchoStar's products to TiVo's, on a monthly basis from
    December 31, 2005, to the present.
     
  3. May 17, 2008 #3 of 2549
    Curtis52

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    Exhibit C Attached to Tivo Filing - Documents to be produced
    II. DOCUMENTS TO BE PRODUCED
    1. All source code modules or schematics that were modified to allegedly avoid
    infringement of the Barton patent for each of the following models of EchoStar digital video
    recorders (DVRs): DP-501, DP-508, DP-510, DP-721, DP-921, DP-522, DP-625, and DP-942.
    2. All documents relating to all changes made to allegedly avoid infringement of the
    Barton patent for each of the following models of EchoStar DVRs: DP-501, DP-508, DP-510,
    DP-721, DP-921, DP-522, DP-625, and DP-942.
    3. All source code, block diagrams, schematics, bills of materials, and parts lists for
    any EchoStar products with DVR functionality (other than those listed in requests #1-2),
    including, but not limited to, ViP 322, ViP 611, ViP 612, ViP 622, ViP 722, ViP 211 (new
    version that can be converted into a DVR with addition of an external hard disk drive).
    4. All documents relating to the operation of the software in any EchoStar products
    with DVR functionality (other than those listed in requests #1-2), including, but not limited to,
    ViP 322, ViP 611, ViP 612, ViP 622, ViP 722, ViP 211 (new version that can be converted into
    a DVR with addition of an external hard disk drive).
    5. Documents sufficient to determine, on an end-of-month or end-of-quarter basis
    from September 8, 2006, through the present: (1) the total number of DVR placements; (2) the
    total number of DISH subscriber households possessing or using an EchoStar DVR; and (3) the
    average number of DVR placements per DISH subscriber household possessing or using an
    EchoStar DVR.
    6. Documents sufficient to determine the total number of new DISH Network
    subscribers with an EchoStar DVR as a percent of the total number of new DISH Network
    subscribers from September 8, 2006, to the present, on a monthly or quarterly basis.
    7. Documents sufficient to. show the monthly or quarterly churn (i.e., turnover) rate
    for DISH Network subscribing households receiving or using DVR(s), and with DISH Network
    subscribing households not receiving or using DVR(s), from September 8, 2006 through the
    present.
    8. Documents sufficient to show the monthly or quarterly total Average Revenue Per
    Unit ("ARPU") for DISH Network subscribing households receiving or using DVR(s), and,
    separately, for DISH Network subscribing households not receiving or using DVR(s), from
    September 8, 2006 through the present.
    9. Documents sufficient to show EchoStar's incremental profitability on its DVR
    customers (including EchoStar's revenues associated with its DVR customers and EchoStar's
    direct and/or variable costs associated with its DVR customers) on a monthly or quarterly basis
    from September 8, 2006 through the present.
    10. Any and all studies or investigations, and the relevant results thereof, addressing
    in whole or in part the effect of DVR possession or usage on churn, pay-per-view or VOD usage,
    ARPU, or marginal profit.
    11. Documents sufficient to determine EchoStar's total expenditure on advertising
    that: (a) mentions DVRs; and/or (b) mentions TiVo or compares EchoStar's products to TiVo's,
    on a monthly basis from September 8, 2006, to the present.
     
  4. May 17, 2008 #4 of 2549
    jacmyoung

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    None of the above should be any surprise at all. I do want to point out that Tivo did not try to address the hardware claim.

    So what is this talk about the hardware claim was just a matter of asking judge for a slam dunk summary ruling?

    Now obviously DISH will respond and I don't know how the hardware non-infringement will be used, but DISH will most certainly argue that their new software is more than colorably different so the judge should not rule DISH in contempt, rather arrange the discovery of the new software claim, and the injunction should be stayed while the judge pursues such course.

    Of course the judge does not have to rule in DISH's favor, he can still find DISH in contempt of court, and give DISH the opportunity to appeal. The appeals court had stayed the injunction once in the past against the judge's will, and reversed part of the jury verdict afterwards. DISH is certainly going to count on that again, if they do not settle with Tivo by then.

    So my prediction was correct that unlike some of you falsely believed the hardware issue could be easily resolved, it is in fact something Tivo rather not touch at this time. A motion for summary judgement is a very dangerous path to take.
     
  5. May 17, 2008 #5 of 2549
    Greg Bimson

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    Wow. Not even a mention on the hardware claims.

    This appears to be a fairly decent job by TiVo's attorneys. They want DISH/SATS to be found in contempt for violating the injunction immediately. They also are asking for a boat load of discovery items when DISH/SATS tries to mount its "new software doesn't infringe" defense.
     
  6. May 17, 2008 #6 of 2549
    Greg Bimson

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    I always said it was 50/50.

    This probably is being kept in the back pocket in case TiVo cannot get what they want through the software issues.
     
  7. May 17, 2008 #7 of 2549
    Curtis52

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    This is the good part:

    "If EchoStar believed that the “disable the DVR functionality” provision of the injunction was inappropriate, EchoStar could have challenged it, but — despite multiple opportunities before both this Court and the Federal Circuit — it chose not to do so. EchoStar cannot simply ignore the Court’s unambiguous Order, even if EchoStar were to contend, which it has not previously done, that the injunction as written is inappropriate. W. Water Mgmt., Inc. v. Brown, 40 F.3d 105, 108 (5th Cir. 1994) (prohibiting defendants from arguing in a contempt proceeding that injunction was overbroad because “collateral attack on an injunction during contempt proceedings is prohibited if earlier review of the injunction was available” (citing United States v. Ryan, 402 U.S. 530, 532 n.4 (1971)))."
     
  8. May 17, 2008 #8 of 2549
    jacmyoung

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    Except this is not what DISH is saying, DISH contends that they are in compliance with the injunction. They can bring up the hardware issue without attacking the injunction.
     
  9. May 17, 2008 #9 of 2549
    jacmyoung

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    It would be too late by then.

    I have always said the appeals court made it clear they would have difficulty upholding a verdict that is not produced by the jury, I think Tivo's lawyers at least somewhat saw it the similar way and decided not to risk it.

    In fact since Tivo's lawyers are anticipating that DISH will appeal (by not motion a summary judgement on the hardware claim), it is my opinion that we will not likely see a settlement, contrary to what the analyst had thought.
     
  10. May 17, 2008 #10 of 2549
    Greg Bimson

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    In a literal sense, DISH/SATS is out of compliance of the injunction. What TiVo is arguing is that DISH/SATS had many places to argue that the language of the injunction could or should be changed. New software does not change what the plain language of the injunction directed: shut down DVR functionality in listed, infringing units. It does not say only shut down DVR functionality on units that still infringe. Hardware issue or software issue, the injunction order states to disable all DVR storage and playback functions for listed units, and those "only colorably different".

    As I've said many times before, changing a standing injunction is difficult, and it is why parties settle prior to an injunction becoming active in full force and effect. The wording already causes a problem.

    Regarding addressing the hardware claims later:
    Where did this come from?

    Like I said before, it was 50/50 that hardware would even be brought up. The injunction does currently have enough teeth in it to warrant a shut down of DVR functionality. If DISH/SATS proceeds to shut down offending, listed DVR's, then the only way to go after a licensing agreement is to go after the hardware claims, so the rest of DISH/SATS DVR's are enjoined.

    And since the hardware claims have not been addressed by TiVo here, those claims certainly can be addressed at a later date.
     
  11. May 17, 2008 #11 of 2549
    jacmyoung

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    It came from when some of you insisted the hardware verdict reversal could be easily taking care of, if the Tivo lawyers thought the same way, they would certainly have made it an issue now. The reason they did not was likely not what you said that they believed the software verdict was more than enough, rather to pursue the hardware claim would be very risky. Remember Tivo already made a mistake by not bring up the equivalents issue before, probably due to over confidence, I am sure they would not have done it again.

    I never cared what you said about the 50/50 chance, I did not argue with you on that, rather that your notion a summary judgment would be a slam dunk, not so according to Tivo.

    That is again your opinion. Yours will be proven only when DISH fails on all appeals on a contempt of court ruling, we don't know that yet.

    Apparently Tivo thinks otherwise, they knew DISH will not shut down their DVRs, nor will DISH settle, that is why they are asking for all DVRs now and maximum damages, without a hardware claim in hand. If Tivo fails in this attempt to shut off the DVRs, bringing back the hardware claim will be moot. They either do it now or decided not to rely on it.
     
  12. May 17, 2008 #12 of 2549
    spear61

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    I know Charlie likes to talk about being a gambler and doubling down, but seems a dangerous thing to do when he says he loses 90 million of income each month if TIOV prevails. It seems to me the injunction and following actions can be honestly argued for either party. That means the resolution is cloudy. And, if the TIVO arguement carrys, even for a month or so, Charlie would see a major loss of his customer base with Directv lurking at the sidelines with their ad campaign and warehouses ready to go.
     
  13. May 17, 2008 #13 of 2549
    Greg Bimson

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    1) never said it was easy or a slam dunk, always said it was 50/50 that TiVo would ask for a summary judgment, and 50/50 that it would even be granted by Judge Folsom. I felt that was the easiest, quickest method to go after the hardware claims. Did state that if I were TiVo I'd go after the hardware only to make the injunction more bulletproof, but because I am not on anyone's legal team, I don't know what plans TiVo may have regarding the hardware.

    2) TiVo did not have to bring up the equivalents issue. If it is a mistake that TiVo did not bring up the equivalents issue to the Court of Appeals, it is a much larger mistake that DISH/SATS did not bring up the injunction wording to the Court of Appeals as changing a standing injunction is difficult:
    In other words, shut down the DVR's until we figure out if the new software is infringing, because that is what the injunction states.
    No, the reason to ask for higher damages and the shut down is to increase the amount of the licensing agreement. TiVo is trying to settle for a lot of money. Any court inflicted damage would be considered in a licensing agreement.

    DISH/SATS always plays this game of brinksmanship. When DISH was "owned" by Rupert Murdoch and NewsCorp's lobbying to stop the Echostar/DirecTV merger, DISH walked the plank and immediately paid $600 million to DirecTV. When DISH found they were going to lose the distant network case, DISH walked the plank offered $100 million to settle and keep the distants alive. TiVo is just trying to get more money because DISH/SATS is once again taking a walk down the plank, which usually means DISH/SATS will pay a lot not to be pushed off the plank.
     
  14. May 17, 2008 #14 of 2549
    peak_reception

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    Under
    is the following information which is surprising to me:

    Did the court order E* to provide this? Otherwise, why would they? (maybe trying to scare TiVo off?). I know it's just through attorneys but I'm surprised that they're dealing with each other like this outside of court unless there was some offer of settlement from E* which accompanied the code.
     
  15. May 17, 2008 #15 of 2549
    jacmyoung

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    Sep 8, 2006


    But DISH couldn't, because during the last appeal, the injunction was most certainly appropriate based on both the software and hardware infringement verdicts. There was no justification for DISH to argue the wording of the injunction. DISH isn't arguing about the wording of the injunction now either, at least not yet, so to even bring it up is a strawman argument.

    No, fair trade rules regulate certain aspects of fair contract negotiations. Tivo will be able to ask for maximum damages, but when it comes to a new license agreement, Tivo must be fair. If they allow DirecTV to use its license for $.80/ea, for example, and then turn around insist DISH pay $12/ea (like Curtis had hoped), they will be easily struck down by the feds.

    Totally wrong example. DISH simply kept its end of the bargain to pay DirecTV after the FCC denied the merger move. DISH had agreed to such payment (though I do not recall it was $600 million) to DirecTV as part of the merger deal, Charlie simply kept his end of contractual obligation.

    And in the end decided not to, simply turned off the distants. We have been at this before, had DISH wanted the distants so badly, they could still pursue the settlement deal, but since it was clear FOX would not allow that, DISH did not bother.

    Like I said before Tivo of course wants the maximum damages, but Tivo can not use such threat to blackmail DISH into an unreasonable license agreement.
     
  16. May 17, 2008 #16 of 2549
    Curtis52

    Curtis52 Hall Of Fame

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    The date on the TiVo request for documents was 4-3-2008. Dish provided some of the documents but not others. This was all done out of court.
     
  17. May 17, 2008 #17 of 2549
    jacmyoung

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    Likely because DISH thought it may convince Tivo that the new software claim has its merit. But Tivo is saying DISH did not offer enough codes and info, and is seeking more from the judge.

    BTW, since Tivo is seeking "new evidence", I think some of you can stop arguing that there will be no talk of any new evidence necessary, can't you?
     
  18. May 17, 2008 #18 of 2549
    jacmyoung

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    So far Tivo has shown to disagree with you guys on two things:

    1) Unlike you, Tivo did not think it was a good idea to revisit the hardware claim.

    2) Unlike you, Tivo saw value in the new evidence DISH had claimed, so much so Tivo initiated the request to obtain such new evidence from DISH, and when DISH provided only partial evidence, Tivo felt compelled to ask the judge to get the rest of the new evidence for them.

    Who said the hardware claim could be easily resolved? Who said "new evidence" was irrelevant?
     
  19. May 17, 2008 #19 of 2549
    Herdfan

    Herdfan Well-Known Member

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    Teays...
    Let me add "at this time". TiVo can always pursue the hardware claim in the future. It is something thye have in their back pocket to help "encourage" DISH to settle.

    But for now, TiVo thinks the software claim has enough merit to get what they want, but if for some reason they lose, they can just drag out the hardware claim and start all over.
     
  20. May 17, 2008 #20 of 2549
    HobbyTalk

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    And by the time that is all over the patents will have expired. Sure, E* may have to pay some damages when that is all over but TiVo will be dead in the water by that time... maybe even bankrupt.
     
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