# TiVo wins injunction reinstement and damages



## Curtis52

"In sum, because of a failure of proof of literal infringement, we reverse the 
judgment of infringement of the hardware claims with respect to all of the accused 
devices. We remand for any further proceedings that may be necessary with respect to 
those claims. We affirm the judgment of infringement of the software claims with 
respect to all of the accused devices. Because the damages calculation at trial was not 
predicated on the infringement of particular claims, and because we have upheld the 
jury’s verdict that all of the accused devices infringe the software claims, we affirm the 
damages award entered by the district court. 
The district court’s injunction was stayed during the course of these proceedings. 
The stay that was issued pending appeal will dissolve when this appeal becomes final. 
At 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. 
Each party shall bear its own costs for this appeal. 
AFFIRMED IN PART, REVERSED IN PART, and REMANDED. "


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## FTA Michael

What are you citing? When was it issued? Got a link to share?


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## Curtis52

http://www.cafc.uscourts.gov/dailylog.html


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## Curtis52

TiVo can ask for retrial on hardware claims but what's the point. They've won essentially all the marbles.

""At several points, TiVo argues that even if this court were to overturn the jury’s verdict of literal infringement, there would still be ample evidence of infringement under the doctrine of equivalents. There are two problems with upholding the judgment on the hardware claims on that basis. First, the jury was told that if it found literal infringement it should not make a determination as to whether there was infringement under the doctrine of equivalents, so there was no verdict on the issue of equivalents with regard to the hardware claims. Second, we have construed two of the claim limitations more restrictively than the trial court’s instructions permitted. For that reason, even if the jury had reached a verdict with respect to the doctrine of equivalents we could not sustain that verdict merely upon finding that substantial evidence supported it. At this juncture, we could uphold the judgment on the basis of the doctrine of equivalents only if we were to conclude that no reasonable jury, given proper instructions, could reach any verdict other than to find infringement by equivalents. The parties, however, have not briefed that issue in any detail, and we therefore do not address it. More generally, we do not decide what further proceedings, if any, are appropriate in the district court regarding the equivalents issue. Instead, we leave 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."


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## elbodude

E* can end this by just buying Tivo.


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## Curtis52

elbodude said:


> E* can end this by just buying Tivo.


TiVo has a poison pill. A takeover would be virtually impossible. I suppose if they offer enough money, TiVo might be agreeable.


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## HobbyTalk

I doubt that E* could afford to buy a company worth a bit under a billion $.


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## ernste40

So, as someone who has only been following this process vaguely, but who now has an increased interest in it after just signing a new 18 month commitment to E*, what, if anyone here can decipher it, is the nuts and bolts outcome of this decision for us with Dish DVRs in our homes?


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## elbodude

Curtis52 said:


> TiVo has a poison pill. A takeover would be virtually impossible. I suppose if they offer enough money, TiVo might be agreeable.


True. But...I would love to have Tivo software running on my 622's.

I can look out my cube window and see Tivo HQ across the freeway. Everytime I see that logo, I recall my Tivo days. Don't get me wrong, I love the 622 as is, but I do miss the Tivo interface.


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## Lord Vader

ernste40 said:


> So, as someone who has only been following this process vaguely, but who now has an increased interest in it after just signing a new 18 month commitment to E*, what, if anyone here can decipher it, is the nuts and bolts outcome of this decision for us with Dish DVRs in our homes?


I spoke to a buddy of mine, a patent attorney, who called me after this ruling was handed down today, and he explained that DISH can do either of the following:

1. Pay TIVO the damages sued for ($73 million, IIRC)

2. Agree to remove the infringed features from their affected DVRs (thereby crippling the units in question)

3. Or both may happen

This is in absent of some kind of settlement/agreement. Of course, this is just one lawyer's opinion. Time will tell what will happen.


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## markman07

I know 73 million is a lot to most but is it really that much to Dish? And to refresh people's memories does anyone recall the exact patents violated? (Without getting into to much detail)?


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## Ken_F

Lord Vader said:


> I spoke to a buddy of mine, a patent attorney, who called me after this ruling was handed down today, and he explained that DISH can do either of the following:
> 
> 1. Pay TIVO the damages sued for ($73 million, IIRC)
> 
> 2. Agree to remove the infringed features from their affected DVRs (thereby crippling the units in question)
> 
> 3. Or both may happen
> 
> This is in absent of some kind of settlement/agreement. Of course, this is just one lawyer's opinion. Time will tell what will happen.





Lord Vader said:


> I spoke to a buddy of mine, a patent attorney, who called me after this ruling was handed down today, and he explained that DISH can do either of the following:
> 
> 1. Pay TIVO the damages sued for ($73 million, IIRC)


You're a little off here.

The ~$74 million is the amount owed to TiVo for past infringement up until April, 2006. The court will have to decide what TiVo is owed for the infringement from April, 2006 to February, 2008. That could be another $100 million.

Furthermore, payment of these damages does not allowed continued operation of Dish DVRs. That money is for *past* infringement. Dish Network must still license the TiVo patents if it wants to allow continued operation of the DP-501, DP-508, DP-510, DP-721, DP-921, DP-522, DP-625, DP-942, and any other DVRs whose implementations "are not more than colorably different from any of these products." Infringing products are said to fall into two categories -- "50x" DVRs and "Broadcom" DVRs."

Dish Network has 30 days from the day the appeal is finalized to either (1) reach a licensing agreement with TiVo, potentially for hundreds of millions of dollars, or (2) disable the DVR functionality on the DP-501, DP-508, DP-510, DP-721, DP-921, DP-522, DP-625, DP-942 DVRs, and any other DVRs whose implementations "are not more than colorably different from any of these products." Being Broadcom-based, the ViP622 and ViP722 likely fall into that category as well.


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## Curtis52

Lord Vader said:


> I spoke to a buddy of mine, a patent attorney, who called me after this ruling was handed down today, and he explained that DISH can do either of the following:
> 
> 1. Pay TIVO the damages sued for ($73 million, IIRC)
> 
> 2. Agree to remove the infringed features from their affected DVRs (thereby crippling the units in question)
> 
> 3. Or both may happen
> 
> This is in absent of some kind of settlement/agreement. Of course, this is just one lawyer's opinion. Time will tell what will happen.


Dish has to pay the money damages. It is not optional. With interest it's up to $200 million.

The injunction required Dish to disable the hard drives within 30 days. The 30 days has long since passed. They may get another 30 days. Maybe not.


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## James Long

markman07 said:


> I know 73 million is a lot to most but is it really that much to Dish? And to refresh people's memories does anyone recall the exact patents violated? (Without getting into to much detail)?


The real loss will be removing the "Tivo" code from DVRs (if they have not done that already) or paying ongoing fees to keep that code.


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## Curtis52

James Long said:


> The real loss will be removing the "Tivo" code from DVRs (if they have not done that already) or paying ongoing fees to keep that code.


The injunction requires that the hard drives be disabled.


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## dreadlk

Does this mean the End for E* ??
Normaly I would not think so but the way that E* happend to split itself up just recently, almost sounds like Charlie is abandonig ship on the satellite division.


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## Earl Bonovich

dreadlk said:


> Does this mean the End for E* ??
> Normaly I would not think so but the way that E* happend to split itself up just recently, almost sounds like Charlie is abandonig ship on the satellite division.


According to the "response" from Echostar:


> "We are pleased the Federal Circuit found for us on Tivo's hardware claims, but are disappointed in the Federal Circuit's decision on the software claims. The decision, however, will have no effect on our current or future customers because EchoStar's engineers have developed and deployed 'next-generation' DVR software to our customers' DVRs. This improved software is fully operational, has been automatically downloaded to current customers, and does not infringe the Tivo patent at issue in the Federal Circuit's ruling.
> 
> All DISH Network customers can continue to use their DVRs without any interruption or changes to the award-winning DVR features and services provided by DISH Network.
> 
> We intend to appeal the Federal Circuit's ruling affirming the $94 million jury verdict."


(Quote from TV Predictions as of 1:08pm CT)

It might just be a $$$ hit.


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## elbodude

Curtis52 said:


> The injunction requires that the hard drives be disabled.


That would also disable my 18-month contract with Dish.


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## zeekle

Ya I think losing my DVR would make me jump ship within a couple of hours.


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## davemayo

Lord Vader said:


> I spoke to a buddy of mine, a patent attorney, who called me after this ruling was handed down today, and he explained that DISH can do either of the following:
> 
> 1. Pay TIVO the damages sued for ($73 million, IIRC)
> 
> 2. Agree to remove the infringed features from their affected DVRs (thereby crippling the units in question)
> 
> 3. Or both may happen
> 
> This is in absent of some kind of settlement/agreement. Of course, this is just one lawyer's opinion. Time will tell what will happen.


Absent a settlement, both must happen because of the injunction.


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## joshhyde

From TVPredictions.com:

If the appeals court ruling is final, Dish Network would either have to pay TiVo the $73 million in damages or work out a licensing agreement with the DVR service.
However, Dish Network this afternoon issued a statement saying it will appeal today's decision:

"We are pleased the Federal Circuit found for us on Tivo's hardware claims, but are disappointed in the Federal Circuit's decision on the software claims. *The decision, however, will have no effect on our current or future customers because EchoStar's engineers have developed and deployed 'next-generation' DVR software to our customers' DVRs. This improved software is fully operational, has been automatically downloaded to current customers, and does not infringe the Tivo patent at issue in the Federal Circuit's ruling. *

All DISH Network customers can continue to use their DVRs without any interruption or changes to the award-winning DVR features and services provided by DISH Network.

We intend to appeal the Federal Circuit's ruling affirming the $94 million jury verdict."


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## Ken_F

Earl Bonovich said:


> According to the "response" from Echostar:
> 
> (Quote from TV Predictions as of 1:08pm CT)
> 
> It might just be a $$$ hit.


Unfortunately, Dish Network can't just say "we changed our software and no longer infringe" and make it all go away.

During the trial, TiVo claimed that it was not possible to build a Broadcom-based DVR that did not infringe. That's why they referred to the infringing products as "Broadcom DVRs."


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## davemayo

Ken_F said:


> Unfortunately, Dish Network can't just say "we changed our software and no longer infringe" and make it all go away.


If the change to the software gets them outside of the injunction they can (along with paying $74 million plus interest).


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## Curtis52

davemayo said:


> If the change to the software gets them outside of the injunction they can (along with paying $74 million plus interest).


It's too bad they didn't say anything about new software during the appeal. The Supreme Court will only look at the same stuff the Appeals court looked at. Besides, the software is probably in firmware that can't be changed remotely such as on the Broadcom chip.


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## Herdfan

davemayo said:


> If the change to the software gets them outside of the injunction they can (along with paying $74 million plus interest).


Plus infringement from October 2006 until the software download.


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## James Long

Ken_F said:


> Unfortunately, Dish Network can't just say "we changed our software and no longer infringe" and make it all go away.


Charlie Ergen's pervious public statements on the matter have said just that ... and apparently they have.



> During the trial, TiVo claimed that it was not possible to build a Broadcom-based DVR that did not infringe. That's why they referred to the infringing products as "Broadcom DVRs."


Did the court agree with this additional claim?

There is still room for an appeal. E* will not be turning off their DVRs. Not without federal marshals busting down the doors of the business, arresting everyone involved and forcing whatever software download would be required. EchoStar is just THAT FIRM about not turning off their DVRs.


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## Austin316

I think it just time for Charlie to take care of this mess and buy tivo and put this all behind them and then port tivo to dish dvr and be done with it.


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## davemayo

James Long said:


> There is still room for an appeal. E* will not be turning off their DVRs. Not without federal marshals busting down the doors of the business, arresting everyone involved and forcing whatever software download would be required. EchoStar is just THAT FIRM about not turning off their DVRs.


Unless the issue appealed to the Supreme Court is of significant importance to this area of law, the Supreme Court will not readily hear the case. Appeal to the Supremes is discretionary, not as of right. I don't see any issues signficant enough for the Supreme Court to agree to hear this case, but you never know.


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## Curtis52

Ken_F said:


> Unfortunately, Dish Network can't just say "we changed our software and no longer infringe" and make it all go away.


Correct. The injunction requires that "DVR functionality ie. storage to and playback from a hard disk drive of television data be diabled".

They can change their software if they want to comply but that would mean the hard drive would be disabled.


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## tomcrown1

Is the other way around this for Dish to become part of Direct TV??


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## Ken_F

James Long said:


> Charlie Ergen's pervious public statements on the matter have said just that ... and apparently they have.


From day one, Charlie Ergen has always maintained that their DVR products do not infringe.

It doesn't really matter what the company knows or thinks about the subject internally; they've got to maintain a certain image for the public. If customers thought there was any significant chance of their DVRs being disabled, they would jump ship. Hence, the statement from Dish Network today.

Now, I don't think there is any chance that Dish Network DVRs will be disabled. But I suspect that will be the result of a settlement, not some unproven claim of new software that accomplishes what was deemed impossible at the time of the jury trial.



James Long said:


> Did the court agree with this additional claim?


It's not an "additional claim." It is an aspect of their software claims, which the court reaffirmed. The injunction doesn't say, "you can change your software to continue working." It says that playback from the hard drive must be disabled.

Having been found guilty of infringement, the burden is now on Echostar to show that they do not infringe with new products.


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## Greg Bimson

Now, more than likely, the judge will get motions from TiVo asking that any newer DVR's not part of the original suit are added to the list, and TiVo may ask again that damages be trebled for willful infringement. The second part is key because if Dish Network released a newer DVR since the jury rendered the verdict, the continuing use of the software in newer products could be considered willful infringement.

I fully suspect DISH and SATS to license the TiVo software, within 30 days, unless some other magical appeal shows up.


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## dgordo

Charlie is in serious denial.


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## rtd2

Ken_F said:


> Unfortunately, Dish Network can't just say "we changed our software and no longer infringe" and make it all go away.
> 
> During the trial, TiVo claimed that it was not possible to build a Broadcom-based DVR that did not infringe. That's why they referred to the infringing products as "Broadcom DVRs."


My DVR is still fully funtional.....


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## bobukcat

dgordo said:


> Charlie is in serious denial.


It may seem that way to outsiders but he is a very successful business man, and you don't get to his level without some skills. I promise you that they have analyzed their available options over and over and over and over again (x 1K) and have had plans to deal with this potential outcome. To do otherwise would be negligent and open him and the rest of the directors up for a HUGE lawsuit from stockholders if the company gets seriously hurt. He may have believed they would win (and they still might) but that doesn't mean you don't hedge your bets and make sure you know what the play is if the cards don't come to you.


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## Greg Bimson

All I need to do is go back to the Distant Network Service suit to show the lack of planning. Yes, I know about All America Direct, but even that is being examined by the courts.


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## rtd2

bobukcat said:


> It may seem that way to outsiders but he is a very successful business man, and you don't get to his level without some skills. I promise you that they have analyzed their available options over and over and over and over again (x 1K) and have had plans to deal with this potential outcome. To do otherwise would be negligent and open him and the rest of the directors up for a HUGE lawsuit from stockholders if the company gets seriously hurt. He may have believed they would win (and they still might) but that doesn't mean you don't hedge your bets and make sure you know what the play is if the cards don't come to you.


GREAT point! It hasnt been too long ago people were predicting Charlies demise over the Distant Networks. All along they had a plan "B" so I'm sure this is no different. I'm not worried and dont look at it as a competition. I just recommended Direct to my parents they are dumping cable and the 20$ off is a good deal so its all about saving money to some. I prefer the better equipment over the price....


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## theoak

Curtis52 said:


> "In sum, because of a failure of proof of literal infringement, we *reverse *the
> judgment of infringement of the *hardware *claims with respect to all of the accused
> devices. ...





joshhyde said:


> ...
> "We are pleased the Federal Circuit found for us on Tivo's hardware claims, but are disappointed in the Federal Circuit's decision on the software claims. *The decision, however, will have no effect on our current or future customers because EchoStar's engineers have developed and deployed 'next-generation' DVR software to our customers' DVRs. This improved software is fully operational, has been automatically downloaded to current customers, and does not infringe the Tivo patent at issue in the Federal Circuit's ruling. *
> 
> *All DISH Network customers can continue to use their DVRs without any interruption or changes to the award-winning DVR features and services provided by DISH Network. *
> 
> We intend to appeal the Federal Circuit's ruling affirming the $94 million jury verdict."





Ken_F said:


> Unfortunately, Dish Network can't just say "we changed our software and no longer infringe" and make it all go away.
> 
> During the trial, TiVo claimed that it was not possible to build a Broadcom-based DVR that did not infringe. That's why they referred to the infringing products as "Broadcom DVRs."


The hardware claims were reversed. Hence from what I can gather, the hardware that Dish uses is okay.

However, there is "offending" software that Dish must correct.

Dish has stated however that they have corrected the offending software.

Therefore all Dish should have to worry about is past charges.

However as stated, Dish will appeal the decision ... so back to court it goes ...

Existing systems are fine:

1. They got a green light on their current hardware.
2. They have changed the software.

Conclusion:

No worries.

(Except of course for damages while Dish used "offending" software.)


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## bobukcat

Greg Bimson said:


> All I need to do is go back to the Distant Network Service suit to show the lack of planning. Yes, I know about All America Direct, but even that is being examined by the courts.


I think you proved my point (although I'm sure that's _not_ how you meant it  ) - how long did it take to get the deal with the 3rd party provider for DNS in place, IIRC it was a couple of days, if not hours? In any case, I think the number of people affected if they have to kill the DVR functionality will be many orders of magnitude greater than was affected by DNS shutdown, add in the inability to sign up new subs without a DVR option available and the incentive (pressure) to have a backup plan is obvious.


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## Greg Bimson

bobukcat said:


> I think you proved my point (although I'm sure that's not how you meant it ) - how long did it take to get the deal with the 3rd party provider for DNS in place, IIRC it was a couple of days, if not hours?


Well, it went from 900,000 subscribers to just over 100K subscriber, so 800K lost their distants. I'm certain others left Dish Network, while some just simply kept their local channels. Either way, it isn't over.

And this one is a bit different. TiVo gets to go back to the court and ask for more money, specifically the amount since August 2006. Dish Network will then counter with the fact they have new software, so the cut-off should be at this point.

Then the judge must decide whether or not the new software infringes.

Just because Dish Network says the software doesn't infringe doesn't mean it doesn't infringe.


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## dgordo

theoak said:


> The hardware claims were reversed. Hence from what I can gather, the hardware that Dish uses is okay.
> 
> However, there is "offending" software that Dish must correct.
> 
> Dish has stated however that they have corrected the offending software.
> 
> Therefore all Dish should have to worry about is past charges.
> 
> However as stated, Dish will appeal the decision ... so back to court it goes ...
> 
> Existing systems are fine:
> 
> 1. They got a green light on their current hardware.
> 2. They have changed the software.
> 
> Conclusion:
> 
> No worries.
> 
> (Except of course for damages while Dish used "offending" software.)


Dish customers should be fine, but Charlie will be paying Tivo a lot of money. When I said he was in denial this is what i was referring to, the money damages.

Dish may file an appeal but that doesn't mean it goes back to court. This case was decided by the United States Court of Appeals for the Federal Circuit. Appeals from here go to the US supreme court. Appeals to the supreme court are discretionary. I cant see them taking this case.


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## Paul Secic

HobbyTalk said:


> I doubt that E* could afford to buy a company worth a bit under a billion $.


Isn't Charle worth billions? I say buy the two bit company!


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## Ken_F

Greg Bimson said:


> *Just because Dish Network says the software doesn't infringe doesn't mean it doesn't infringe.*


Bolded for emphasis.

Dish Network has said from day one that their software doesn't infringe. They still say their older software doesn't infringe. But saying it doesn't make it so. Dish Network's track record on legal issues is not good.


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## celticpride

Hmmm. if somehow dish was to install tivo software in their HD dvrs, i would leave directv and sign up with dish. although i have been with D* for 13 years,i'll NEVER forgive them for abandoning tivo.


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## Curtis52

theoak said:


> Existing systems are fine:
> 
> 1. They got a green light on their current hardware.
> 2. They have changed the software.


As long as the new software disables the hard drive as required by the injunction then the new software complies.

As far as hardware goes, they aren't off the hook yet:

"At several points, TiVo argues that even if this court were to overturn the jury's 
verdict of literal infringement, there would still be ample evidence of infringement under 
the doctrine of equivalents. There are two problems with upholding the judgment on the hardware claims on that basis. First, the jury was told that if it found literal infringement it should not make a determination as to whether there was infringement under the doctrine of equivalents, so there was no verdict on the issue of equivalents with regard to the hardware claims. Second, we have construed two of the claim limitations more restrictively than the trial court's instructions permitted. For that reason, even if the jury had reached a verdict with respect to the doctrine of equivalents we could not sustain that verdict merely upon finding that substantial evidence supported it. At this juncture, we could uphold the judgment on the basis of the doctrine of equivalents only if we were to conclude that no reasonable jury, given proper instructions, could reach any verdict other than to find infringement by equivalents. The parties, however, have not briefed that issue in any detail, and we therefore do not address it. More generally, we do not decide what further proceedings, if any, are appropriate in the district court regarding the equivalents issue. Instead, we leave 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."


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## tonyd79

Ken_F said:


> Bolded for emphasis.
> 
> Dish Network has said from day one that their software doesn't infringe. They still say their older software doesn't infringe. But saying it doesn't make it so. Dish Network's track record on legal issues is not good.


No, it is not. Charlie has had his hand forced in the past (DNS is an example where he got hit hard).

And Tivo will not accept that Dish has fixed the problem without proof. Nor will the court. Unless they can prove the changes, I somehow expect a ticking clock on the DVRs has started.

And if Dish cannot prove their claim that they changed the software to not infringe, then they are in real trouble. The court can start to get punative because they would be lying to the court, not to Tivo.


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## Herdfan

theoak said:


> However as stated, Dish will appeal the decision ... so back to court it goes ...


Assuming the US Supreme Court decides to hear the case. They could decide to not accept it and that will effectively end it.


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## Curtis52

Statements from Dish and TiVo

""This decision will have no effect on our current or future customers because EchoStar's engineers have developed and deployed 'next-generation' DVR software to our customers' DVRs," spokeswoman Kathie Gonzalez said in a statement.

TiVo, however, doesn't believe EchoStar has the necessary technology to get around its patent.

"EchoStar has made a series of statements over the years related to the infringement of the TiVo patents that turned out to be both false and misleading," the company said in a statement. "At this point it doesn't really matter what EchoStar says by way of further self-serving statements. It matters what the courts say - and the courts have spoken."


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## HobbyTalk

Part to this is how much would E* have paid TiVo over this time if they licensed the software from TiVo? You should subtract that from the "fine" to figure out the true additional cost to E*.


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## dreadlk

I wonder if they can afford it, they seem to be having lots of problems of late.



Earl Bonovich said:


> According to the "response" from Echostar:
> 
> (Quote from TV Predictions as of 1:08pm CT)
> 
> It might just be a $$$ hit.


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## Earl Bonovich

Curtis52 said:


> "EchoStar has made a series of statements over the years related to the infringement of the TiVo patents that turned out to be both false and misleading," the company said in a statement. "At this point it doesn't really matter what EchoStar says by way of further self-serving statements. It matters what the courts say - and the courts have spoken."


Do you have a link to that statement?

If it is true.... 
One word: "DAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAANGGGGGG!!!"

Them fighting words


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## MikeW

Here's a link to the statement.

http://www.bloomberg.com/apps/news?pid=20601087&sid=a0v3GRyy.KA0&refer=home


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## hdtvfan0001

dreadlk said:


> I wonder if they can afford it, they seem to be having lots of problems of late.


$94 Million will clean their clock for revenue for some time.

My guess is that they will now be forced to work out some kind of alternative deal with Tivo and also pay them some $$$.


MikeW said:


> Here's a link to the statement.
> 
> http://www.bloomberg.com/apps/news?pid=20601087&sid=a0v3GRyy.KA0&refer=home


This is going to cost them big time one way or another.

To quote Earl - Daaaaaaaaannnnnnnggggg.


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## Curtis52

hdtvfan0001 said:


> $94 Million will clean their clock for revenue for some time.


$94 million was as of 4-06. You have to add continued infringement during the appeal for the millions of DVRs. The award was based on a per-month calculation for each DVR. Then there's interest on top of that. It's up to $200 million by now.


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## Badger

HobbyTalk said:


> Part to this is how much would E* have paid TiVo over this time if they licensed the software from TiVo? You should subtract that from the "fine" to figure out the true additional cost to E*.


We don't know if TIVO has (or has ever had) a desire to license their software to E*. 
It appears that the court has said that the hard drives of E*'s DVR's have to be shut off. It will be interesting to see how their DVR's are going to work without a working hard drive.
And my last thought is that E* isn't really paying for this mess its customers are or will be the ones paying!


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## moman19

Aren't D* and TiVo cozying up again? If that's true, why would/should TiVo agree to be purchased by E*? It simply may not be for sale and quite eager to see Charlie empty his deep pockets. 

As an early TiVo series 1 user, I too miss the TiVo User Interface and find the 622 DVR cumbersome compared to the elegance and simplicy of the TiVo. I've always wondered why E* didn't just license the TiVo interface years ago. Instead, they decided to grow (steal?) their own version of a DVR that was a disaster in the beginning and has taken many years and dollars to even come close to what TiVo has always been.


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## Earl Bonovich

Sorry if this sounds like a DirecTV guy piling on...

But I am sure TiVo isn't too happy too about Dish's latest advertisement campaign....


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## Earl Bonovich

moman19 said:


> Aren't D* and TiVo cozying up again?


They are not.

DirecTV just completed a purchase of ReplayTV...
The TiVo support contract expires in 2011...

DirecTV will be providing an update to the DirecTivos sometime early this year, but that is about it.

There have been no more announcements or indications that it is anymore then just continuation of the support already agreed to.

And with the release in the last week of a new model: The R16
And a new sub-model the HR21-200
And the impending release of the HR21-PRO..

That continues to indicate DirecTV moving further and further from TiVo


----------



## elbodude

Earl Bonovich said:


> Sorry if this sounds like a DirecTV guy piling on...
> 
> But I am sure TiVo isn't too happy too about Dish's latest advertisement campaign....


I agree, they are pushing it with: "better than Tivo"


----------



## anex80

Perhaps a dumb question, but how is it that DirecTV's DVRs do not infringe on Tivo patents? Don't they all do the same thing?


----------



## moman19

elbodude said:


> I agree, they were pushing it with: "better than Tivo"


It may be better from a hardware perspective, but that's not the issue so I guess Charlie can toot his horn. Sounds more like a stupid marketing campaign.

I stand corrected about TiVo and D* cozying up. Not sure where I heard that.


----------



## elbodude

"I stand corrected about TiVo and D* cozying up. Not sure where I heard that."



I heard it from Leo Laporte.


----------



## bidger

Badger said:


> We don't know if TIVO has (or has ever had) a desire to license their software to E*.


It's my understanding that the lawsuit stems from TiVo leaving a prototype at DISH Networks offices for software engineers to evaluate.

I can't imagine TiVo _not_ being interested in an agreement with any multichannel provider.

Great username, btw.


----------



## dgordo

anex80 said:


> Perhaps a dumb question, but how is it that DirecTV's DVRs do not infringe on Tivo patents? Don't they all do the same thing?


Who says they don't. Tivo has never sued them.


----------



## rrmills

dgordo said:


> Who says they don't. Tivo has never sued them.


DirecTV has an existing licensing agreement with TiVo (from the DirectTiVo days). So I wouldn't expect them to get sued anytime soon.


----------



## Earl Bonovich

rrmills said:


> DirecTV has an existing licensing agreement with TiVo (from the DirectTiVo days). So I wouldn't expect them to get sued anytime soon.


Not really a licensing agreement....

But more of an agreement that DirecTV will not sue DirecTV for cases where they may infringe on TiVo's technology...

DirecTV can't go an add just any piece of TiVo's patented technology....

But now with DirecTV owning ReplayTV, which has a LOT of patents in their portfolio... some that challenge some of TiVo's as well.


----------



## bobcamp1

Curtis52 said:


> $94 million was as of 4-06. You have to add continued infringement during the appeal for the millions of DVRs. The award was based on a per-month calculation for each DVR. Then there's interest on top of that. It's up to $200 million by now.


Interest, yes. But they don't have to pay on continuing infringement if they downloaded new software at some point to work around the patents.

The award was also probably based on hardware infringement, which was overturned. So the original reward amount could be reduced.

Tivo doesn't think E* can perform this software modification. E* claims they already have. It's only up to the judge. Here we go again....


----------



## Curtis52

bobcamp1 said:


> Interest, yes. But they don't have to pay on continuing infringement if they downloaded new software at some point to work around the patents.
> 
> The award was also probably based on hardware infringement, which was overturned. So the original reward amount could be reduced.
> 
> Tivo doesn't think E* can perform this software modification. E* claims they already have. It's only up to the judge. Here we go again....


It's a permanent injunction. If Dish ever gets it lifted it won't be lifted retroactively. TiVo will have spent the money by then.

The ruling recommends that the district court take a look at revising the award amount upwards. There is absolutely no mention of reducing the award.


----------



## kog

bobcamp1 said:


> The award was also probably based on hardware infringement, which was overturned. So the original reward amount could be reduced.


From the appeals court ruling:



> Because the damages calculation at trial was not predicated on the infringement of particular claims, and because we have upheld the jury's verdict that all of the accused devices infringe the software claims, we affirm the damages award entered by the district court.


So the full amount of the award is still in place and continues to accrue. As for Dish claiming their new software is not infringing, good luck convincing Judge Folsom of that.


----------



## tomcrown1

tivo will come after everyone if this goes in their favor Direct TV is not immune either pay TIVo or go to court


----------



## Herdfan

tomcrown1 said:


> tivo will come after everyone if this goes in their favor Direct TV is not immune either pay TIVo or go to court


Yeah, they probably are. D* continues to pay TiVo a license fee for TiVo based DVR's as part of an agreement that doesn't expire until 2011. As part of this agreement, both TiVo and D* agreed not to sue each other for patent infringement. Now with D* owning Replay and it patents, TiVo will not be coming after D* because some would argue that TiVo has infringed on Replay's patents.

So TiVo and D* will peacefully coexist like a couple that has an amicable divorce.


----------



## James Long

Greg Bimson said:


> Just because Dish Network says the software doesn't infringe doesn't mean it doesn't infringe.


And just because Tivo claims one cannot build a Broadcomm based DVR without infringing doesn't mean it's true.

I'm still reading E*'s comments as "you can take our DVRs when you pry them from our cold dead hands".


----------



## Richard King

If all hardware claims were thrown out, is not Broadcom a hardware item? Would any connection to the Broadcom chip not have been thrown out with the hardware claims?


----------



## bidger

tomcrown1 said:


> tivo will come after everyone if this goes in their favor Direct TV is not immune either pay TIVo or go to court


Since DIRECTV purchased ReplayTV _and_ their patents, the same company that reached an out-of-court settlement with TiVo, they seem immune to me.


----------



## Curtis52

Richard King said:


> If all hardware claims were thrown out, is not Broadcom a hardware item? Would any connection to the Broadcom chip not have been thrown out with the hardware claims?


The hardware claims were remanded back to the district court.

"we leave 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. "


----------



## Curtis52

bidger said:


> Since DIRECTV purchased ReplayTV _and_ their patents, the same company that reached an out-of-court settlement with TiVo, they seem immune to me.


There was no out of court settlement with ReplayTV.


----------



## MikeW

Curtis52 said:


> The hardware claims were remanded back to the district court.
> 
> "we leave 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. "


Curtis..just curious...is this something you are following closely for a reason? You seem to have quick, logical answers for most questions and your posts really paint a dim picture for Echostar.


----------



## Lord Vader

James Long said:


> Charlie Ergen's pervious public statements on the matter have said just that ... and apparently they have.
> 
> Did the court agree with this additional claim?
> 
> There is still room for an appeal. E* will not be turning off their DVRs. Not without federal marshals busting down the doors of the business, arresting everyone involved and forcing whatever software download would be required. EchoStar is just THAT FIRM about not turning off their DVRs.


Then if they were to thumb their noses at a federal appeals court, the 2nd highest court in the nation this particular court is often considered, they're in for a major smackdown the like of which could be devastating.

BTW, I highly doubt SCOTUS will even grant cert in this anyway.


----------



## dgordo

MikeW said:


> Curtis..just curious...is this something you are following closely for a reason? You seem to have quick, logical answers for most questions and your posts really paint a dim picture for Echostar.


The reason he paints a dim picture for Echostar is he understands how big of an obstacle Echostar now must overcome. The patent office, the district court and the court of appeals have all ruled against Echostar, this is dim.


----------



## bidger

Curtis52 said:


> There was no out of court settlement with ReplayTV.


OK, if you want to play semantics it was SonicBlue, Replay's parent company at the time.


----------



## Curtis52

bidger said:


> OK, if you want to play semantics it was SonicBlue, Replay's parent company at the time.


Nope. I wasn't splitting hairs. There was no settlement. They both just withdrew. Sonicblue was being sued into bankruptcy by the studios and didn't have the money to pursue a lawsuit with TiVo. TiVo knew they couldn't get blood out of a turnip. Sonicblue filed for bankruptcy four months later.


----------



## racton1

dgordo said:


> The reason he paints a dim picture for Echostar is he understands how big of an obstacle Echostar now must overcome. The patent office, the district court and the court of appeals have all ruled against Echostar, this is dim.


Whatever the outcome is to be, it doesn't matter to me. The only reason I went with E is for the DVR. If I can' t use it I just goe to D!!


----------



## ernste40

racton1 said:


> Whatever the outcome is to be, it doesn't matter to me. The only reason I went with E is for the DVR. If I can' t use it I just goe to D!!


Looking at a worst case scenario. If Dish needs to kill the DVRs, can they still hold up the 18 month contracts? Boy, I could see that being a huge crapstorm for them if they tried that...


----------



## BNUMM

E* stated that they set aside money( I believe the amount was $120 million ) so they will not be hurt financially.


----------



## jclewter79

I do n't think that we will ever see the DVR's shut off Charlie won't let that happen.


----------



## dgordo

As bad as this is monetarily for echostar, customers don't need to worry about losing their dvrs.


----------



## Kheldar

ernste40 said:


> Looking at a worst case scenario. If Dish needs to kill the DVRs, can they still hold up the 18 month contracts? Boy, I could see that being a huge crapstorm for them if they tried that...


The E* Customer Agreement, Sections 4c & 4d (bold emphasis is mine):



> C. *DISH Network reserves the rights to alter software, features and/or functionality in your DISH Network receivers, provide data and content to Personal Video Recorder/Digital Video Recorder ("PVR/DVR") products, store data and content on the hard drives of PVR/DVR products, and send electronic counter-measures to your DISH Network receivers, through periodic downloads.* DISH Network will use commercially reasonable efforts to schedule these downloads to minimize interference with or interruption to your Services, but shall have no liability to you for any interruptions in Services arising out of or related to such downloads.
> 
> D. DISH Network's PVR/DVR Products allow you to record programming in digital format. Total recording time varies depending on your receiver and the nature of the programs being recorded. *DISH Network does not guarantee access to or recording of any particular programming.* Most programming is the copyrighted material of the third party that supplies it, is protected by copyright and other applicable laws, and may not be reproduced, published, broadcast, rewritten, or redistributed without the written permission of the third party that supplied it except as permitted by the "fair use" provisions of the U.S. copyright laws. *DISH Network may, in its sole discretion, add, change or remove features of its PVR/DVR Products and, upon notice to you, introduce or change fees for the use of PVR/DVR Product features. DISH Network will notify you of any change that is within its reasonable control.* Unless otherwise specified in the terms and conditions of the customer agreement(s) applicable to the promotion(s) pursuant to which you are receiving Services and/or Equipment, we will charge you a monthly DISH Network DVR service fee ("DISH Network DVR Service Fee") for each PVR/DVR receiver activated on your account.


So, the customer agreement says E* can "alter software, features and/or functionality in your DISH Network receivers", "not guarantee access to or recording of any particular programming", and "in its sole discretion, add, change or remove features of its PVR/DVR Products".

Nowhere in those paragraphs does it allow you to escape any contracts/commitments due to the loss of your DVR service.


----------



## ernste40

Kheldar said:


> The E* Customer Agreement, Sections 4c & 4d (bold emphasis is mine):
> 
> So, the customer agreement says E* can "alter software, features and/or functionality in your DISH Network receivers", "not guarantee access to or recording of any particular programming", and "in its sole discretion, add, change or remove features of its PVR/DVR Products".
> 
> Nowhere in those paragraphs does it allow you to escape any contracts/commitments due to the loss of your DVR service.


Regardless of those notes, can you imagine the firestorm they would feel from the millions of customers who would be tied into a contract based on advertising for the "Best DVR," only to not be able to have DVR service. My mind quakes just thinking about it!


----------



## Kheldar

ernste40 said:


> Regardless of those notes, can you imagine the firestorm they would feel from the millions of customers who would be tied into a contract based on advertising for the "Best DVR," only to not be able to have DVR service. My mind quakes just thinking about it!


I'd hate to be an E* phone agent on that date.

Right now, their IVR starts the call with "Thank you for choosing Dish Network, leader in _DVR_ and HDTV", emphasizing and pausing after "DVR".

And front and center on their site is this ad (see attached).

So, it appears that E* is pretty much ignoring the court's decision. Granted, though, the decision doesn't take effect _immediately_, but I question the ethics of a company that is actively marketing a product (and getting contracts from customers for) that they have a large chance of not being able to offer in the near future.


----------



## dgordo

Kheldar said:


> I'd hate to be an E* phone agent on that date.
> 
> Right now, their IVR starts the call with "Thank you for choosing Dish Network, leader in _DVR_ and HDTV", emphasizing and pausing after "DVR".
> 
> And front and center on their site is this ad (see attached).
> 
> So, it appears that E* is pretty much ignoring the court's decision. Granted, though, the decision doesn't take effect _immediately_, but I question the ethics of a company that is actively marketing a product (and getting contracts from customers for) that they have a large chance of not being able to offer in the near future.


Dish is in a lot of trouble, but they are not going to have to stop offering dvrs. They will come to some agreement with tivo, that has to be cheaper than losing all customers that want a dvr.


----------



## bobukcat

dgordo said:


> Dish is in a lot of trouble, but they are not going to have to stop offering dvrs. They will come to some agreement with tivo, that has to be cheaper than losing all customers that want a dvr.


Exactly, and Tivo has no monetary interest in the destruction of E*, quite the opposite: they want their s/w running on DVRs and to collect royalties for it. I have to believe that they have a list of other manufacturers to go after if this all settles in their favor. I'm just wondering how much my monthly DVR fees are going to go up!!


----------



## Herdfan

It seems based on the DirecTV/TiVo deal that the going rate is around $1 per month per sub. And that is for the real TiVo software. So perhaps $0.50 per sub for the infringement. Not going to break anybody. 

Now you add that up for every DVR user, that could be a lot of money for TiVo. The one thing TiVo has to consider when licensing their IP is to make sure the costs are low enough to not create an incentive for companies to spend large R&D $$ to come up with a way to bypass it.


----------



## Bobham

Does anybody know if this lawsuit impacts the new line of DVRs? I'm hoping to upgrade to HD soon, and would be looking at the VIP722 and VIP222.


----------



## bobukcat

Herdfan said:


> It seems based on the DirecTV/TiVo deal that the going rate is around $1 per month per sub. And that is for the real TiVo software. So perhaps $0.50 per sub for the infringement. Not going to break anybody.
> 
> Now you add that up for every DVR user, that could be a lot of money for TiVo. The one thing TiVo has to consider when licensing their IP is to make sure the costs are low enough to not create an incentive for companies to spend large R&D $$ to come up with a way to bypass it.


If it's that low for the D* deal why in the world do they charge so much ($12.95!!!) for their standalone service? I think that E*'s $6 a month DVR fee is bogus, but $13 is really over the top and I'm not so sure that Tivo will be as generous this time since they've forced E* into it (if it does happen).

I completely agree with your point about the licensing fees being reasonable, there is price point that, if exceeded will lead to big-time R&D to find a way around the patents.


----------



## crazyeyez

BNUMM said:


> E* stated that they set aside money( I believe the amount was $120 million ) so they will not be hurt financially.


I have money set aside in my savings account. If someone took it away, I would be hurt financially.


----------



## James Long

crazyeyez said:


> I have money set aside in my savings account. If someone took it away, I would be hurt financially.


In this case, it's not savings ... it is a written off expense that has yet to be paid. Not to say getting the money back into the "general fund" wouldn't be better than sending it to Tivo, but the loss has already been taken.


----------



## Richard King

http://www.nytimes.com/2005/10/07/business/07adco.html
According to the above, at the published date, Directv paid Tivo $1.13 per subscriber using a Tivo box.


----------



## dgordo

Herdfan said:


> It seems based on the DirecTV/TiVo deal that the going rate is around $1 per month per sub. And that is for the real TiVo software. So perhaps $0.50 per sub for the infringement. Not going to break anybody.
> 
> Now you add that up for every DVR user, that could be a lot of money for TiVo. The one thing TiVo has to consider when licensing their IP is to make sure the costs are low enough to not create an incentive for companies to spend large R&D $$ to come up with a way to bypass it.


Penalties for infringment are set by the court and in fact they have already determined the amount. Any licennsing fee, should dish and tivo go that route, wont be cheap, at this point tivo has no reason to play nice.


----------



## HobbyTalk

Sure they do. If the cost is too high it would compel E* to quickly develop (if they haven't already haven't) or buy (like D* did) another solution. As an exmple they could grab an extra $50 mil now by playing hard ball or get $10 mil in royalties per year (increasing every year) for years to come.


----------



## crazyeyez

James Long said:


> In this case, it's not savings ... it is a written off expense that has yet to be paid. Not to say getting the money back into the "general fund" wouldn't be better than sending it to Tivo, but the loss has already been taken.


I absolutely agree if they have already written down that amount. Is that fact, though? It would be unusual to write down losses that are still pending litigation.


----------



## Greg Bimson

HobbyTalk said:


> Sure they do. If the cost is too high it would compel E* to quickly develop (if they haven't already haven't) or buy (like D* did) another solution. As an exmple they could grab an extra $50 mil now by playing hard ball or get $10 mil in royalties per year (increasing every year) for years to come.


But this assumes a couple of points where the factors are yet to be known...

Did Dish Network in fact create software that no longer infringes on the Time Warp patent? If not, TiVo will get their licensing agreement by hook or by crook, since Dish Network will not want to disable their DVR's. If Dish Network did work around the patent, then the licensing agreement is moot.

Because of the fact it is impossible to change the hardware configurations of the DVR's Dish Network has already sold, it is possible TiVo goes back after infringement on the hardware claims of the patent. It would make the infringement judgement iron-clad if TiVo can win this point. I suspect we'll see some wrangling over the next couple of months by TiVo on this issue.

We do know that TiVo believes any change to the Echostar DVR software will still infringe on the Time Warp patent. So expect TiVo to go after Dish Network on this point. We do know that the hardware claims will still need some validation, so I'd think TiVo will also work on that as well.

Dish Network will do what it can to delay the proceedings some more. So expect them to request the Court of Appeals to rehear the case _en banc_ (have the entire bench of the Court of Appeals rule on the case), and from there would go to the Supreme Court. Once those appeals run dry (most likely), they will go in front of the District Court judge and try to convince him that the software they now use does not employ TiVo's patented technology, and they will also do whatever it takes to keep the hardware claims from being reconsidered.


----------



## Curtis52

crazyeyez said:


> I absolutely agree if they have already written down that amount. Is that fact, though? It would be unusual to write down losses that are still pending litigation.


From Dish SEC filing: "During April 2006, a Texas jury concluded that certain of our digital video recorders, or DVRs, infringed a patent held by Tivo. The Texas court subsequently issued an injunction prohibiting us from offering DVR functionality. A Court of Appeals has stayed that injunction during the pendency of our appeal.
In accordance with Statement of Financial Accounting Standards No. 5, "Accounting for Contingencies" ("SFAS 5"), we recorded a total reserve of $94.0 million in "Tivo litigation expense" on our Condensed Consolidated Statement of Operations to reflect the jury verdict, supplemental damages and pre-judgment interest awarded by the Texas court through September 8, 2006. Based on our current analysis of the case, including the appellate record and other factors, we believe it is more likely than not that we will prevail on appeal. Consequently, we are not recording additional amounts for supplemental damages or interest subsequent to the September 8, 2006 judgment date. If the verdict is upheld on appeal, the $94.0 million amount would increase by approximately $35.0 million through 2007.
If the verdict is upheld on appeal and we are not able to successfully implement alternative technology (including the successful defense of any challenge that such technology infringes Tivo's patent), we would owe substantial additional damages and we could also be prohibited from distributing DVRs, or be required to modify or eliminate certain user-friendly DVR features that we currently offer to consumers. In that event we would be at a significant disadvantage to our competitors who could offer this functionality and, while we would attempt to provide that functionality through other manufacturers, the adverse affect on our business could be material"


----------



## dgordo

Greg Bimson said:


> But this assumes a couple of points where the factors are yet to be known...
> 
> Did Dish Network in fact create software that no longer infringes on the Time Warp patent? If not, TiVo will get their licensing agreement by hook or by crook, since Dish Network will not want to disable their DVR's. If Dish Network did work around the patent, then the licensing agreement is moot.
> 
> Because of the fact it is impossible to change the hardware configurations of the DVR's Dish Network has already sold, it is possible TiVo goes back after infringement on the hardware claims of the patent. It would make the infringement judgement iron-clad if TiVo can win this point. I suspect we'll see some wrangling over the next couple of months by TiVo on this issue.
> 
> We do know that TiVo believes any change to the Echostar DVR software will still infringe on the Time Warp patent. So expect TiVo to go after Dish Network on this point. We do know that the hardware claims will still need some validation, so I'd think TiVo will also work on that as well.
> 
> Dish Network will do what it can to delay the proceedings some more. So expect them to request the Court of Appeals to rehear the case _en banc_ (have the entire bench of the Court of Appeals rule on the case), and from there would go to the Supreme Court. Once those appeals run dry (most likely), they will go in front of the District Court judge and try to convince him that the software they now use does not employ TiVo's patented technology, and they will also do whatever it takes to keep the hardware claims from being reconsidered.


exactly.


----------



## HobbyTalk

Greg Bimson said:


> Because of the fact it is impossible to change the hardware configurations of the DVR's Dish Network has already sold, it is possible TiVo goes back after infringement on the hardware claims of the patent. It would make the infringement judgement iron-clad if TiVo can win this point. I suspect we'll see some wrangling over the next couple of months by TiVo on this issue.


Again, if the cost is too high E* could just develop a new STB (if they haven't already) to eliminate the infringement. The cost to replace all of the infringing STBs with the new model could be less then the TiVo asking fee if they ask for too much. That would also eliminate any future royalty fees and further lower the overall cost in the future.

E* claims to have rolled out software updates that eliminate the infringement and we didn't know that happened. As far as we know, they already have an STB designed and ready to produce if needed.

I would guess much depends on if TiVo is looking for short term gains or a long term viable future for TiVo. Remember that TiVo has seldom shown a profit. Royalty fees are pure profit plays that can produce income for many years.

As you said "But this assumes a couple of points where the factors are yet to be known..." and the majority of this is just a bunch of clueless keyboard cowboys spouting off


----------



## James Long

Greg Bimson said:


> Did Dish Network in fact create software that no longer infringes on the Time Warp patent? If not, TiVo will get their licensing agreement by hook or by crook, since Dish Network will not want to disable their DVR's. If Dish Network did work around the patent, then the licensing agreement is moot.


Per public statements, DISH believes they _HAVE_ worked around the software problem - thus ending any potential infringement and royalties as of the date they sent that software to receivers. Per public statements, that software is already in the field (although a date has not been made public).

The next court case will be Tivo trying to prove that claim false, unless there is some sort of settlement. If it isn't a settlement that EchoStar likes it will certainly be a case of "we fixed that, see you in court".

Winning the hardware claims is the major victory that will keep DVRs humming along.


----------



## Lord Vader

Considering that the hardware is useless without the proper software, the key issue in this case was the _*software*_, and DISH lost this. Consequently, the overall effect of this decision was much worse than had the software claims been reversed and the hardware claims affirmed.


----------



## Maverickster

Kheldar said:


> I'd hate to be an E* phone agent on that date.


Me too. It would REALLY suck to be looking for a new job on the date my employer filed for Chapter 11.

--Mav


----------



## Curtis52

James Long said:


> Per public statements, DISH believes they _HAVE_ worked around the software problem - thus ending any potential infringement and royalties as of the date they sent that software to receivers. Per public statements, that software is already in the field (although a date has not been made public).
> 
> The next court case will be Tivo trying to prove that claim false, unless there is some sort of settlement. If it isn't a settlement that EchoStar likes it will certainly be a case of "we fixed that, see you in court".


TiVo doesn't have the burden of proof. TiVo has an injunction against Dish and they are happy.


----------



## Herdfan

bobukcat said:


> If it's that low for the D* deal why in the world do they charge so much ($12.95!!!) for their standalone service?


Probably because they can.:lol:

But on a more serious note, with the SA TiVo's, TiVo has the expense of support whereas with the DirecTiVo's, D* has the cost of support. Plus the SA have more features and should cost more but not sure of it is worth 13x as much.


----------



## Herdfan

James Long said:


> In this case, it's not savings ... it is a written off expense *that has yet to be paid*. Not to say getting the money back into the "general fund" wouldn't be better than sending it to Tivo, but the loss has already been taken.


Actually, quite a bit of it has been "paid" to the court as bond for the appeal. So not only has E* written it off as expense, they no longer have the cash. If they continue to appeal and if they win, then they can get it back.


----------



## Maverickster

Greg Bimson said:


> Did Dish Network in fact create software that no longer infringes on the Time Warp patent? If not, TiVo will get their licensing agreement by hook or by crook, since Dish Network will not want to disable their DVR's. If Dish Network did work around the patent, then the licensing agreement is moot.


Agreed. But, I think the point is that, putting the procedural issues aside for the moment (e.g. the inevitable reconsideration motions, applications for cert, reconsideration on that, etc.), the burden is on Dish Network to show that their new software doesn't violate the injunction. If they can't do that in an extremely timely fashion, they're screwed.

The "business point" here is that TiVo has them by the proverbial short hairs. There will invariably be a deal and TiVo will get a more "reaching" benefit than $200M in cash and the implosion of E*. I'm EXTREMELY curious to see what gets worked out. I just have a difficult time believing that this is the beginning of the end for Dish Network (which it would be unless either (a) they can make a deal with TiVo or (b) they can prove -- in short order -- that their "new" software doesn't violate the injunction).

--Mav


----------



## Curtis52

Herdfan said:


> Probably because they can.:lol:
> 
> But on a more serious note, with the SA TiVo's, TiVo has the expense of support whereas with the DirecTiVo's, D* has the cost of support. Plus the SA have more features and should cost more but not sure of it is worth 13x as much.


TiVo's subscriber acquisition cost (SAC) for standalone subscribers is several hundred dollars. There is/was no SAC for DirecTiVo subscribers.


----------



## Maverickster

James Long said:


> The next court case will be Tivo trying to prove that claim false, unless there is some sort of settlement. If it isn't a settlement that EchoStar likes it will certainly be a case of "we fixed that, see you in court".


I don't think this is right. Assuming there is no settlement to be had, I *think* the "next court case" is a contempt motion by TiVo simply alleging the "new" software violates the injunction and E* attempting to prove that it doesn't. Seems like a nuancy difference, but the question of who has the burden is an important one.

--Mav


----------



## Curtis52

Maverickster said:


> I don't think this is right. Assuming there is no settlement to be had, I *think* the "next court case" is a contempt motion by TiVo simply alleging the "new" software violates the injunction and E* attempting to prove that it doesn't. Seems like a nuancy difference, but the question of who has the burden is an important one.


The only thing TiVo would have to show is that Dish hasn't disabled the hard drives. That is what the injunction requires.


----------



## Maverickster

Curtis52 said:


> The only thing TiVo would have to show is that Dish hasn't disabled the hard drives. That is what the injunction requires.


Do they even have to show that? I dunno. I don't do this work and it's been awhile since law school, but I thought all they had to do was allege a violation of the injunction to shift the entire burden to the enjoined party -- E*. It's entirely possible they've got to do a little more though.

--Mav


----------



## James Long

Lord Vader said:


> Considering that the hardware is useless without the proper software, the key issue in this case was the _*software*_, and DISH lost this. Consequently, the overall effect of this decision was much worse than had the software claims been reversed and the hardware claims affirmed.


Replacing hardware is difficult and expensive. Replacing software is a lot simplier (especially if it has already been done, as claimed).



Curtis52 said:


> TiVo doesn't have the burden of proof. TiVo has an injunction against Dish and they are happy.


Tivo has an injuction against _infringing_ products. They have not received the settlement and EchoStar receivers continue to operate. Do you really believe they are happy?



Curtis52 said:


> The only thing TiVo would have to show is that Dish hasn't disabled the hard drives. That is what the injunction requires.


On a software claim? EchoStar won the hardware claims. The injunction needs to reflect this.


----------



## dgordo

James Long said:


> Per public statements, DISH believes they _HAVE_ worked around the software problem - thus ending any potential infringement and royalties as of the date they sent that software to receivers. Per public statements, that software is already in the field (although a date has not been made public).
> 
> The next court case will be Tivo trying to prove that claim false, unless there is some sort of settlement. If it isn't a settlement that EchoStar likes it will certainly be a case of "we fixed that, see you in court".
> 
> Winning the hardware claims is the major victory that will keep DVRs humming along.


Just because dish believes that doesnt make it true. They have they burden of proving that it does not infringe. And I dish did not win on the hardware claim despite what their misleading press release stated. That issue was remanded to the trial court to be litigated under the correct standard.


----------



## Curtis52

James Long said:


> On a software claim? EchoStar won the hardware claims. The injunction needs to reflect this.


The appeals court reinstasted the injunction as written. Also, if Dish doesn't disable the hard drives that would be a willful violation. Damages could be trebled.


----------



## TBoneit

bobukcat said:


> If it's that low for the D* deal why in the world do they charge so much ($12.95!!!) for their standalone service? I think that E*'s $6 a month DVR fee is bogus, but $13 is really over the top and I'm not so sure that Tivo will be as generous this time since they've forced E* into it (if it does happen).
> 
> I completely agree with your point about the licensing fees being reasonable, there is price point that, if exceeded will lead to big-time R&D to find a way around the patents.


The cost for Tivo on the standalones is maintaining a network so that the Standalone units can call in to get guide data, either their own or a rented one.

The second cost is the cost of the guide data and putting it into a format that the Units can use.

Plus the costs asscoiated with supporting the Lifetime subbed units such as mine that generate no continuing revenue.

Not to mention would you want to run that process so it only breaks even and contributes nothing to your company?

The costs for the standalone guide data are born by Tivo. The DirecTV Tivos have all that done by D* AFAIK.

Hope this helps?


----------



## Curtis52

James Long said:


> Tivo has an injuction against _infringing_ products. They have not received the settlement and EchoStar receivers continue to operate. Do you really believe they are happy?


Read it yourself.
http://www.zatznotfunny.com/2006-08/tivo-wins-permanent-injunction-against-echostar-and-cash/


----------



## Herdfan

dgordo said:


> And I dish did not win on the hardware claim despite what their misleading press release stated. That issue was remanded to the trial court to be litigated under the correct standard.


Exactly. So it goes back to the trial court for a retrial.

However, the judge could impose such stiff sanctions on E* for the software infringement that it wouldn't matter if they did manage to win the hardware retrial in a year or so.

E* needs to settle NOW before they find themselves with even less bargaining power than they have now. You have to guess that an E* DVR with TiVo would be worth several hundred thousand new customers immediately and more as the zealots DirecTiVo's die over the next few years. These people don't care that D* new DVR's are solid, they are not TiVo's and they will follow the TiVo.

E* can still turn this into a win if they will check their ego's at the door and do what is best for their future.


----------



## Curtis52

Herdfan said:


> Exactly. So it goes back to the trial court for a retrial.
> 
> However, the judge could impose such stiff sanctions on E* for the software infringement that it wouldn't matter if they did manage to win the hardware retrial in a year or so.
> 
> E* needs to settle NOW before they find themselves with even less bargaining power than they have now. You have to guess that an E* DVR with TiVo would be worth several hundred thousand new customers immediately and more as the zealots DirecTiVo's die over the next few years. These people don't care that D* new DVR's are solid, they are not TiVo's and they will follow the TiVo.
> 
> E* can still turn this into a win if they will check their ego's at the door and do what is best for their future.


The damages have already been determined (at least as of 4-06). The appeals court mentioned that the district court can add additional damages for the interest and ongoing infringement during the appeal. There is a per-month formula for each DVR deployed.


----------



## Greg Bimson

Curtis, the damages were determined as of August 2006. From an older article atThe Denver Post, dated 19 August, 2006, when the Court of Appeals stayed the injunction:


> EchoStar Communications Corp. said Friday it has won a temporary injunction in its patent infringement case with TiVo Inc., a day after a U.S. District Court ordered the Douglas County-based company to pay TiVo nearly $90 million in damages.
> 
> [...]
> 
> The injunction comes after a quick appeal to Thursday's district court ruling. That decision ordered EchoStar to pay $5.6 million in interest and $10.3 million in additional damages, TiVo said, and upheld a jury damage award of $74 million from April.


That is $16 million over a 4 month period. It has been 16 months since that award, or multiplying it out, another $60 million. Add in any newer receivers possibly considered not colorably different than any of the other Dish Network models, and more subscribers to those services, and this could be closer to $200 million.

The onus is on Dish Network to prove they are no longer infringing on the software claims.


----------



## anex80

E* is now forcing new customers into a 24-month commitment. I wonder if they are playing the odds that most people won't jump ship when DVR's are disabled if they have a costly early-termination fee.


----------



## Earl Bonovich

anex80 said:


> E* is now forcing new customers into a 24-month commitment. I wonder if they are playing the odds that most people won't jump ship when DVR's are disabled if they have a costly early-termination fee.


IF... the DVR's are disabled...

I would be stunned if they started to charge the early-termination fee...
As that has class-action written all over it if they did.

How many people do you would stick around... if they called to find out why their DVR wasn't working, and they could give you no ETA on when they would be active again.....

I could easily then see Dish's competitors (all of them)... Initiating programs, that they would PAY those early termination fees, if they switch over to their systems.


----------



## Herdfan

Curtis52 said:


> The damages have already been determined (at least as of 4-06). The appeals court mentioned that the district court can add additional damages for the interest and ongoing infringement during the appeal. There is a per-month formula for each DVR deployed.


Correct in that monetary damages have been calculated and can be enforced. But the judge also has the power to determine how much leeway to give E* with regard to the DVR shutoff.

He could take a hard line and force them to kill the hard drives as soon as the case gets back to him or he could give E* a chance to prove their changes no longer infringe. Or he could stay the hard drive shutoff as long as E* negotiates in good faith with TiVo for a settlement. This judge has a lot of power.


----------



## normang

If the hardware claim is settled, and Dish Won, why in the world would they have to "kill all the hard drives" .

If the issue is in the software, and Dish Claims that they've made changes to resolve the "infringement" in the software then sure, its up to Dish to prove that the changes in the software do not infringe, which could take months or years again..

I concur with those that say Dish should just buy out Tivo, they can recover some or all the cost by assuming the income from those licenses that are still out there for as long as that lasts. Poison pills can be overcome.. its not impossible to take over Tivo with enough money..


----------



## Earl Bonovich

normang said:


> If the hardware claim is settled, and Dish Won, why in the world would they have to "kill all the hard drives" .
> 
> If the issue is in the software, and Dish Claims that they've made changes to resolve the "infringement" in the software then sure, its up to Dish to prove that the changes in the software do not infringe, which could take months or years again..
> 
> I concur with those that say Dish should just buy out Tivo, they can recover some or all the cost by assuming the income from those licenses that are still out there for as long as that lasts. Poison pills can be overcome.. its not impossible to take over Tivo with enough money..


But in the bigger picture...

Is the extra expense (that would be significant) to buy TiVo... be worth it to DishNetwork (or EchoStar)?


----------



## HobbyTalk

Also consider that it would cost over $1 billion for a company that has seldom made a profit.


----------



## normang

Earl Bonovich said:


> But in the bigger picture...
> 
> Is the extra expense (that would be significant) to buy TiVo... be worth it to DishNetwork (or EchoStar)?


Its hard to say, perhaps they've done the math and just decided its not worth it... This saga will continue until someone with a brain somewhere decides to end it with a ruling that makes both sides sort of happy.

I am surprised Tivo still hangs in there myself, sure some like their software interface, I personally don't care for it. I also don't like that they monitor what is watched and recorded. And as noted elsewhere in the thread, who pays $13 a month or $156 a year for guide information? Its only a matter of time before they are done IMHO...


----------



## bobukcat

normang said:


> I am surprised Tivo still hangs in there myself, sure some like their software interface, I personally don't care for it. I also don't like that they monitor what is watched and recorded. And as noted elsewhere in the thread, who pays $13 a month or $156 a year for guide information? Its only a matter of time before they are done IMHO...


I would have agreed with this statement not too long ago, but with the way this case is shaping up they may indeed end up getting royalties for every DVR manufacturer out there until a different DVR methodology / technology is perfected.


----------



## Kheldar

normang said:


> If the hardware claim is settled, and Dish Won, why in the world would they have to "kill all the hard drives" .


But the hardware claim is _not_ settled. According to the ruling (PDF, page 36):


> In sum, because of a failure of proof of literal infringement, we reverse the judgment of infringement of the hardware claims with respect to all of the accused devices. We remand for any further proceedings that may be necessary with respect to those claims.


So, the court sent the "hardware" claims back to the original trial court. That means the situation is only over if TiVo decides not to pursue it with the courts.


----------



## HobbyTalk

normang said:


> I also don't like that they monitor what is watched and recorded.


Coming to a sat. STB near you 
http://www.multichannel.com/article/CA6527709.html


----------



## Maverickster

normang said:


> Poison pills can be overcome.. its not impossible to take over Tivo with enough money..


Not cost effectively they can't. Depending on what TiVo's poison pill says, the cost to acquire control of TiVo may be so high that the act of paying it would actually open E* up to shareholder and derivative suits by E*'s existing shareholders.



> Also consider that it would cost over $1 billion for a company that has seldom made a profit.


TiVo's value is not in its cash flow or profitability; it's in its IP, intangibles, and good will. This case is kind of a perfect example of that.

Unless TiVo now sees the handwriting on the wall (that standalone DVR service is soon to be a relic) and views this as an opportunity to get itself acquired at a nice premium, the acquisition "out" is probably dead before it started. There are, of course, other settlement alternatives, but "just buy them" isn't a realistic one without TiVo's cooperation (which will be expensive).


----------



## dave1234

With Dish stock soaring, someone thinks this is a win for Dish... 
This ruling adds a small measure of certainty, something the stock market likes.


----------



## scooper

Could Echostar buy Tivo ?

Undoubtedly, even with the poison pill. DO they want to ? probably not. 

If they decided to - all of you thinking there would be a big lawsuit from E* shareholders - let me remind you that between Mr. Ergen, his wife, and Mr deFranco - they control well over 90% of the voting stock.


----------



## Maverickster

scooper said:


> Could Echostar buy Tivo ?
> 
> Undoubtedly, even with the poison pill. DO they want to ? probably not.
> 
> If they decided to - all of you thinking there would be a big lawsuit from E* shareholders - let me remind you that between Mr. Ergen, his wife, and Mr deFranco - they control well over 90% of the voting stock.


Unless they own 100%, that doesn't really matter either -- not to a shareholder derivative suit anyway. If they decide to acquire TiVo and TiVo triggers its poison pill, the cost to acquire the dilluted shares would be so high that I can guarantee* you suit would be filed the next day. It is corporate suicide for E* to try that. They won't.

There are other solutions in here somewhere which make sense (a hostile acquisition of TiVo not being among them). I don't know what it is, but they'll figure it out. The problem for E* is that while TiVo may not be holding all of the cards, they've got an awful lot of them.

--Mav

*not a guarantee.


----------



## Paul Secic

dreadlk said:


> I wonder if they can afford it, they seem to be having lots of problems of late.


Problems, what problems?:lol:


----------



## mark722

As we say here in Texas, "Y'all need to just chill!" Dish Network is a big profit making company and will continue to be one in the future. Some of the Tivo Lovers / Dish Haters that regularly post their overblown opinions on this site would have us believe that this is the end of Dish. Nothing could be further from the truth. Dish will take care of business as they always have and settle with Tivo. Despite what many may think, the survival of Dish is good for the future of Tivo. Dish will provide Tivo with the damages they seek for the infringement of their software, and provide them with future profits for their continued licensing of that software. Dish provides Tivo with a customer base of millions more than they have today. If Tivo were to drive Dish into bankruptcy, those future profits would be gone. I wouldn't worry too much about Dish DVRs being disabled. It just wouldn't make good business sense for either party.


----------



## Kheldar

mark722 said:


> I wouldn't worry too much about Dish DVRs being disabled. It just wouldn't make good business sense for either party.


True, but E* has had several examples of not following "good business sense" in the past. It wasn't good business sense to piss off the networks by illegally offering distant networks, so they lost the legal right to carry them at all. And then, once the court forces them to shut off the distant networks, they sign a clearly illegal (according to the networks) agreement with MyDistantNetworks.com to continue offering those channels. That case is headed back to court soon (see PDF attachment).

So based on their past history, just because something makes good business sense doesn't mean they will actually do it that way.

Granted, that last sentence could apply to just about any company, though.


----------



## HobbyTalk

Maverickster said:


> TiVo's value is not in its cash flow or profitability; it's in its IP, intangibles, and good will. This case is kind of a perfect example of that.


Obviously their IP isn't worth much as it has not turned a profit for them in a dozen years. If TiVo can't make a profit from their IP, intangibles, etc. then why should we expect that anyone else can?


----------



## dgordo

HobbyTalk said:


> Obviously their IP isn't worth much as it has not turned a profit for them in a dozen years. If TiVo can't make a profit from their IP, intangibles, etc. then why should we expect that anyone else can?


Tivo's profits have been low because companies have been using their IP without paying for it. This echostar suit is just the beginning.


----------



## arkenhill

Want to know how ugly it can get? Anyone remember RIM vs NTP? RIM had to cough up $612 Million to keep Blackberry's up and running. Not saying the two are the same, it's just that when you get into patent infringements and injunctions, things can get very strange and costly.

http://www.engadget.com/2006/03/03/rim-ntp-settle-for-612-million-finally/


----------



## HobbyTalk

The case is not over yet so at this point their IP is worthless and their profits and stock prices reflect that.


----------



## HobbyTalk

arkenhill said:


> Want to know how ugly it can get? Anyone remember RIM vs NTP? RIM had to cough up $612 Million to keep Blackberry's up and running. Not saying the two are the same, it's just that when you get into patent infringements and injunctions, things can get very strange and costly.
> 
> http://www.engadget.com/2006/03/03/rim-ntp-settle-for-612-million-finally/


And also the other way... remember SCO?

2 anylisis downgraded TiVo today... seems some are not so bullish.


----------



## Badger

Curtis52 said:


> TiVo doesn't have the burden of proof. TiVo has an injunction against Dish and they are happy.


Exactly! E* has the burden of proof.


----------



## dgordo

HobbyTalk said:


> The case is not over yet so at this point their IP is worthless and their profits and stock prices reflect that.


Not technically over, but when the patent office, the trial court and the federal appeal court all rule against you, you're in trouble.


----------



## Badger

James Long said:


> Replacing hardware is difficult and expensive. Replacing software is a lot simplier (especially if it has already been done, as claimed).
> 
> Tivo has an injuction against _infringing_ products. They have not received the settlement and EchoStar receivers continue to operate. Do you really believe they are happy?
> 
> On a software claim? EchoStar won the hardware claims. The injunction needs to reflect this.


Are you sure E* won the hardware claims? It looked to me like the appeals court made no ruling on that but sent that issue back to the district court.


----------



## Kheldar

Badger said:


> Are you sure E* won the hardware claims? It looked to me like the appeals court made no ruling on that but sent that issue back to the district court.


http://www.dbstalk.com/showpost.php?p=1428550&postcount=132


----------



## normang

While I am sure this thread will go on for pages and pages. The speculation of what will happen will accomplish largely nothing.. There are at least three things for sure that are relatively obvious to me.

1. Dish is not going to let our DVR's die..
2. Its going to cost some money
3. We don't have all the facts, because the media never gives or gets them all.


----------



## tomcrown1

normang said:


> While I am sure this thread will go on for pages and pages. The speculation of what will happen will accomplish largely nothing.. There are at least three things for sure that are relatively obvious to me.
> 
> 1. Dish is not going to let our DVR's die..
> 2. Its going to cost some money
> 3. We don't have all the facts, because the media never gives or gets them all.


You are right it is point less.

This is up to a judge now and if the Judge is hostile toward TIVO it can work against them. It can also go the other way around that is why I believe thier will be an agreemnet reached between Dish and TIVO.

PS do not be surprised if ATT buys Dish and then buys TIVO. ATT then sues DIrect TV.

Anything can happen this is not over by a long shot. I will bet that we will be talking abouth this five years from now.


----------



## arkenhill

HobbyTalk said:


> And also the other way... remember SCO?
> 
> 2 anylisis downgraded TiVo today... seems some are not so bullish.


I read Groklaw every day (and I so enjoy watching SCO flop around like a dying fish). The difference is that TiVo won their suit. I don't agree that they should have, but they did. Hopefully, this lawsuit and the RIM/NTP lawsuit inspire major changes in patent law. But Dish had better get this settled now and move on. The courts do not care if millions of people loose their DVRs. They care about the law and the law only. And the law (right or wrong) is on TiVo's side.


----------



## James Long

HobbyTalk said:


> Also consider that it would cost over $1 billion for a company that has seldom made a profit.


Seldom? Every quarter is seldom? Sheesh!
When is the last quarter EchoStar didn't post a profit?



Badger said:


> Are you sure E* won the hardware claims?


Not losing is a win.

On another note ...

Ever since the Tivo suit started I've been reading predictions that DVRs will be turned off. Constantly. People have been speaking as if it was absolutely a done deal. How about WAITING until a date certain is set? Or is that too hard for the people who what to spout gloom, doom and agony on E?


----------



## HobbyTalk

James Long said:


> Seldom? Every quarter is seldom? Sheesh!
> When is the last quarter EchoStar didn't post a profit?


Sheesh! You maybe need glasses? I said "it would cost over $1 billion for a company that has seldom made a profit." Not sure how you can't comprehend that? Why would anyone pay over $1B for a company that seldoms makes a profit *not* why would a company that seldom makes a profit spend $1B?


----------



## Kheldar

James Long said:


> Seldom? Every quarter is seldom? Sheesh!
> When is the last quarter EchoStar didn't post a profit?
> 
> Not losing is a win.
> 
> On another note ...
> 
> Ever since the Tivo suit started I've been reading predictions that DVRs will be turned off. Constantly. People have been speaking as if it was absolutely a done deal. How about WAITING until a date certain is set? Or is that too hard for the people who what to spout gloom, doom and agony on E?


*A certain date was set: 30 days after August 17, 2006*. They were granted a stay, which will expire as soon as the most recent Appeals Court decision becomes "final".


----------



## James Long

HobbyTalk said:


> Sheesh! You maybe need glasses? I said "it would cost over $1 billion for a company that has seldom made a profit." Not sure how you can't comprehend that? Why would anyone pay over $1B for a company that seldoms makes a profit *not* why would a company that seldom makes a profit spend $1B?


Ahh ... you were talking about Tivo "seldom making a profit" ... not E* seldom making a profit.



Kheldar said:


> *A certain date was set: 30 days after August 17, 2006*. They were granted a stay, which will expire as soon as the most recent Appeals Court decision becomes "final".


My DVR is still working on February 1st, 2008. Looks like the August date was accurate. 

It isn't over yet.


----------



## phrelin

This thread got so long so fast, I'm not sure this hasn't already been discussed, but....

Rather than some kind of hostile takeover, couldn't some licensing agreements in both directions plus money solve this problem?

Or better yet a merger between the new Echostar and TiVo thereby creating the potential of a 712/722 TiVo look-alike with TiVo-like software being sold to everyone - profits for all! Well almost all, as it might eliminate the new Dish Network's only real advantage.


----------



## racton1

anex80 said:


> E* is now forcing new customers into a 24-month commitment. I wonder if they are playing the odds that most people won't jump ship when DVR's are disabled if they have a costly early-termination fee.


I willl be the first one to jump ship. I will be calling D first to get my installation date and then E to cancell my service. That's how important DVR service is to me. I don't worry about their cancellation policy. I dont think they would enforce it in this case. There would be too many of us doing the same thing.


----------



## Slamminc11

racton1 said:


> I willl be the first one to jump ship. I will be calling D first to get my installation date and then E to cancell my service. That's how important DVR service is to me. I don't worry about their cancellation policy. I dont think they would enforce it in this case. There would be too many of us doing the same thing.


considering the Dish DVR isn't going anywhere, I guess it's a moot point, eh!


----------



## dgordo

James Long said:


> Ahh ... you were talking about Tivo "seldom making a profit" ... not E* seldom making a profit.
> 
> My DVR is still working on February 1st, 2008. Looks like the August date was accurate.
> 
> It isn't over yet.


Your dvr will always work. The only question are, what will it cost charlie to keep it working and when will he have to pay?


----------



## Earl Bonovich

dgordo said:


> Your dvr will always work. The only question are, what will it cost charlie to keep it working and when will he have to pay?


Is that similar to when they said... VIACOM won't go dark...

There is no telling what is going to happen at this point.


----------



## Kheldar

dgordo said:


> Your dvr will always work. The only question are, what will it cost charlie to keep it working and when will he have to pay?


The Viacom channels will never be shut off... (2 days)
They wouldn't be stupid enough to lose the distant networks... (permanent)
They won't piss off a bunch of women by losing Lifetime... (30 days)
They won't lose their DVR service...

But, believe what they say, _your DVR service will always work..._


----------



## James Long

DVRs are more important than all the rest ... combined.


----------



## Earl Bonovich

James Long said:


> DVRs are more important than all the rest ... combined.


True... but when you have 4 of a kind in your hand... there is only one thing that will beat that.

Right now... TiVo has a lot of cards in their hand... is willing to call Dish's hand.

Honestly... TiVo has nothing to lose, and everything to gain by continuing this fight.


----------



## luckydob

I believe the internet to be more important than DVR and if I recall quite a few of us lost our Cable internet in Chicago back in 2001 or 2002 all due to legal issues. It was out for days...things happen. DVR's can be shut off and might have to be unless $$ is paid.


----------



## phrelin

Earl Bonovich said:


> Honestly... TiVo has nothing to lose, and everything to gain by continuing this fight.


That's the most important thing about this situation. TiVo has yet to turn a profit, is only worth about 5% of E*, and back damage and license payments from E* could represent as much as its total annual revenue for one year. It's only an irritation for E*that does make a profit, a big irritation, but a settlement would represent less than 2% of it annual revenue for one year and they've already set aside a chunk for that.

Were E* to offer 1 of its shares for 2 TiVo shares in a merger, it's hard to imagine how TiVo' s board could turn that down and not face serious shareholder lawsuits.


> ....TiVo Inc. wavered as analysts disagreed on the value of a federal appeals court patent ruling.


See _full article_.


----------



## kmill14

James Long said:


> Seldom? Every quarter is seldom? Sheesh!
> When is the last quarter EchoStar didn't post a profit?
> 
> Not losing is a win.
> 
> On another note ...
> 
> Ever since the Tivo suit started I've been reading predictions that DVRs will be turned off. Constantly. People have been speaking as if it was absolutely a done deal. How about WAITING until a date certain is set? Or is that too hard for the people who what to spout gloom, doom and agony on E?


James Long,

E* may have "won" as you put it on the hardware claims, but thats not the end of the story as far as they are concerned. If you read the verdict, the judges gave TiVo the option to have a new trial regarding the HW claims if they so choose based on more defined claims construction.

Regardless of the HW claims, the injunction can be put back on by the district court as soon as it is in their hands to do so. There is no reason to assume he won't do this, and most feel E* can't fix their software issues with a simple "patch".

Their only option is to settle with Tivo to license the patent. Charlie is a hardass though and will drag it out as long as he can.


----------



## Mr.72

At some point you have to consider the age of the TiVo patents when weighing the value of acquiring the intellectual property. Remember once the patent is 15 years old it becomes public domain and anyone can use it without any licensing.

I'd say the odds of E* acquiring TiVo are probably near zero.


----------



## Curtis52

Mr.72 said:


> Remember once the patent is 15 years old it becomes public domain and anyone can use it without any licensing.


20 years.


----------



## Earl Bonovich

Mr.72 said:


> At some point you have to consider the age of the TiVo patents when weighing the value of acquiring the intellectual property. Remember once the patent is 15 years old it becomes public domain and anyone can use it without any licensing.


And that is only for usage AFTER the patent expires...
Any infringements PRIOR to that is still in effect.


----------



## jclewter79

Good point Earl. I expect to see tivo pull this will every provider that they can if this works out good for them. Defintly a better income stream for them than just standalone service. Might have been a smart idea to go for a smaller fish first so that they would have had presidence on their side when they took on a hardass like Charlie.


----------



## dave1234

normang said:


> While I am sure this thread will go on for pages and pages. The speculation of what will happen will accomplish largely nothing.. There are at least three things for sure that are relatively obvious to me.
> 
> 1. Dish is not going to let our DVR's die..
> 2. Its going to cost some money
> 3. We don't have all the facts, because the media never gives or gets them all.


Well stated, my sentiments exactly...


----------



## dave1234

Mr.72 said:


> Remember once the patent is 15 years old it becomes public domain and anyone can use it without any licensing.


I thought it was 17 years. Anyone know the correct answer 15,17,20 years?


----------



## Curtis52

dave1234 said:


> I thought it was 17 years. Anyone know the correct answer 15,17,20 years?


"In the United States, under current patent law, for patents filed on or after June 8, 1995, the term of the patent is 20 years from the earliest claimed filing date. For patents filed prior to June 8, 1995, the term of patent is either 20 years from the earliest claimed filing date or 17 years from the issue date, whichever is longer. Extensions may also be had for various administrative delays. (See: Term of patent in the United States). The exact date of termination may be zealously litigated, especially where daily profits from a patent amount to millions of dollars, e.g., pharmaceuticals."

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


----------



## normang

arkenhill said:


> I read Groklaw every day (and I so enjoy watching SCO flop around like a dying fish). The difference is that TiVo won their suit. I don't agree that they should have, but they did. Hopefully, this lawsuit and the RIM/NTP lawsuit inspire major changes in patent law. But Dish had better get this settled now and move on. The courts do not care if millions of people loose their DVRs. They care about the law and the law only. And the law (right or wrong) is on TiVo's side.


If courts "really" cared about the law and nothing but the law, we would not have judges making law from the bench...


----------



## normang

Kheldar said:


> The Viacom channels will never be shut off... (2 days)
> They wouldn't be stupid enough to lose the distant networks... (permanent)
> They won't piss off a bunch of women by losing Lifetime... (30 days)
> They won't lose their DVR service... But, believe what they say, _your DVR service will always work..._


Viacom. who cares
Distants - some cared, drop in the proverbial bucket in comparson to DVR numbers
Lifetime, big don't care, don't even know one woman that watches..

DVR service will not go anywhere... it will get fixed one way or another, no matter how pessimistic you want to be, and based on your posts, you seem to be hoping it happens..


----------



## HobbyTalk

A bit of interesting reading on just how arcane these patent lawsuits can get.
http://blogs.zdnet.com/Burnette/?p=516

In part:
How can you not appreciate passages like this one, which delves into one of life's great mysteries: is the word "an" singular or plural?

As a general rule, the words "a" or "an" in a patent claim carry the meaning of "one or more." That is particularly true when those words are used in combination with the open-ended antecedent "comprising." However, the question whether "a" or "an" is treated as singular or plural depends heavily on the context of its use. &#8230; Unlike the case in Baldwin Graphic, where the claims and the written description could be read to encompass either a singular or plural interpretation of "a" or "an," the claims and written description in this case make clear that the singular meaning applies.

TiVo's patent (6,233,389) says that the "Output Section assembles said video and audio components into an MPEG stream". TiVo, bless them, tried to claim that "an" meant "one or more" in this context. EchoStar said "an" meant "one", and their DVR assembled the video and audio into two separate MPEG streams so the patent didn't cover them, thank you very much. The court sided with EchoStar on this particular point, but not on several others.


----------



## dgordo

I dont think there is any doubt that tivo will continue with the hardware claim.

The doctrine of equivalents allows the court to find infringement even if the device does not fall within the scope of the patent but is still equivalent to the patented product.

There are two tests:

1. An invention is deemed equivalent if:
a. it performs substantially the same function
b. in substantially the same way
c. to accomplish the same substantial result

2. An invention is deemed equivalent if there is only an "insubstantial change" between each of the elements of the accused device or process and each of the elements of the patent claim.

From my experience, these are pretty easy tests to meet and why I fully expect Tivo to continue with the hardware claim.


----------



## BNUMM

dgordo said:


> I dont think there is any doubt that tivo will continue with the hardware claim.
> 
> The doctrine of equivalents allows the court to find infringement even if the device does not fall within the scope of the patent but is still equivalent to the patented product.
> 
> There are two tests:
> 
> 1. An invention is deemed equivalent if:
> a. it performs substantially the same function
> b. in substantially the same way
> c. to accomplish the same substantial result
> 
> 2. An invention is deemed equivalent if there is only an "insubstantial change" between each of the elements of the accused device or process and each of the elements of the patent claim.
> 
> From my experience, these are pretty easy tests to meet and why I fully expect Tivo to continue with the hardware claim.


Also, because this has been decided by the Supreme Court it would be difficult to appeal the decision.


----------



## Greg Bimson

BNUMM - the Court of Appeals ruled on the decision, and remanded it back to the District Court to continue the penalty phase of the case. The Supreme Court has yet to even receive any kind of appeal.

To everyone, I don't fully suspect that Echostar will turn off DVR's. However, I am just concerned when they play the game of brinksmanship, as they do so often, be prepared for some unforeseen consequences.

No, the sky isn't falling.


----------



## BNUMM

Greg Bimson said:


> BNUMM - the Court of Appeals ruled on the decision, and remanded it back to the District Court to continue the penalty phase of the case. The Supreme Court has yet to even receive any kind of appeal.
> 
> To everyone, I don't fully suspect that Echostar will turn off DVR's. However, I am just concerned when they play the game of brinksmanship, as they do so often, be prepared for some unforeseen consequences.
> 
> No, the sky isn't falling.


The Supreme Court has already decided the "Doctrine of Equivalents". I was not referring to the Appeals Court decision. If Tivo asks the court to consider the "Doctrine of Equivqlents" and the court ruled in favor of Tivo then that decision would be difficult to appeal. I have a Dish DVR and I don't believe the sky is falling. Something will be worked out eventually.


----------



## dave1234

BNUMM said:


> The Supreme Court has already decided the "Doctrine of Equivalents". I was not referring to the Appeals Court decision. If Tivo asks the court to consider the "Doctrine of Equivqlents" and the court ruled in favor of Tivo then that decision would be difficult to appeal. I have a Dish DVR and I don't believe the sky is falling. Something will be worked out eventually.


Just to be clear: The court cannot rule in favor of Tivo on the doctrine of equivalents as Tivo made no such claim. In order to get a favorable verdict Tivo will have to bring an entirely new case against Dish(new jury trial) using that arguement. Please correct me if I have misunderstood the ruling.


----------



## James Long

I believe you are correct. New claims cannot be added later - if they didn't raise an issue before, Tivo will have to start over.


----------



## dgordo

In federal court claims can be added at pleadings can be amended at anytime at the judges discretion. However, it is very unlikely that the judge would permit amendment at this time. Tivo will most likely have to refile the hardware claim, but would probably immediately move for summary judgment.


----------



## peak_reception

It's hard to imagine more secure and gainful employment than being a lawyer for Echostar.


----------



## Kheldar

peak_reception said:


> It's hard to imagine more secure and gainful employment than being a lawyer for Echostar.


:grin:


----------



## Herdfan

peak_reception said:


> It's hard to imagine more secure and gainful employment than being a lawyer for Echostar.


I don't know. At some point Charlie is bound to tire of getting his butt kicked.:eek2:


----------



## James Long

As long as he pays the lawyers, his "tiredness" isn't a concern. 

E* could roll over and play dead every time someone comes after them ... but they choose to stand up for themselves. If that means a couple of high profile lawsuits that keep them publicly operating normally (most people have no clue that E* has sued or been sued) then so be it. The other option would be to roll over on every claim and raise their rates to pay extortion to those claimants.

At least the way E* has been doing it, they know they are paying or changing their system because they were proven wrong in court not just that they were assumed to be wrong.

In the TiVo case (hey, we're back to topic!) EchoStar got the hardware decision removed. The courts will have to decide on that part again. And E* continues to offer DVR service years after TiVo wanted them to cease or pay up. The money has bought E* time as well as a more solid decision.


----------



## Lord Vader

In looking through the case's opinions, however, the software issue was the most critical and most damaging to DISH. Had they had a preference, the software issue and not the hardware issue would have been the best one to win. The fact that the appellate court left intact the software claims is potentially more foreboding for DISH than are the hardware claims.


----------



## dgordo

Echostar has Donald Dunner representing them in the tivo case. His firm Finnegan, Henderson, Farabow, Garrett & Dunner is one the best IP firms. I almost went to work for them after law school when my internship with the patent office was finished. Its safe to say if Dunner is the lead attoney Charlie is going to end up paying 8 figures for legal fees.


----------



## Curtis52

James Long said:


> EchoStar got the hardware decision removed. The courts will have to decide on that part again.


Only if TiVo eventually chooses to bring it up. Meanwhile, There won't be a picture on over 4 million DVRs.

Here is part of the injunction the appeals court ordered reinstated unchanged:

"Defendants are hereby FURTHER ORDERED to, within thirty (30) days of the issuance of this order, disable the DVR functionality (ie. . 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.

Infringing products: DP-501, DP-508,DP-510,DP-522,DP-625;,DP-721,DP-921, and DP-942."

It's pretty clear.


----------



## phrelin

Curtis52 said:


> Infringing products: DP-501, DP-508,DP-510,DP-522,DP-625;,DP-721,DP-921, and DP-942."


Keep in mind that these are not MPEG-4 receivers with a home network connection, so they have no future anyway. I'm just simply watching or burning to dvd what I've recorded on my two 508's. Better to be safe than sorry.


----------



## Curtis52

phrelin said:


> Keep in mind that these are not MPEG-4 receivers with a home network connection, so they have no future anyway.


Can Dish survive for long losing $264+ million per month due to the disabled boxes?


----------



## James Long

29% of their revenue is a lot of money. Why pick that figure?


----------



## Curtis52

James Long said:


> 29% of their revenue is a lot of money. Why pick that figure?


4 million boxes X $66 (avg. box revenue) = $264 million


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## James Long

That isn't the average box revenue ... it is close to the average account revenue. But assuming that E* would lose all the accounts with DVRs the $264 is still a nice estimate.
(All in speculation that E* will be forced to turn off a single DVR.)


----------



## Lyle_JP

Well, the situation is simple. If the 501 gets turned off, D* gets a call.


----------



## phrelin

Lyle_JP said:


> Well, the situation is simple. If the 501 gets turned off, D* gets a call.


What if it were cheaper for E* to replace your 501, my two 508s and all others with 722s (or some equivalent model) than it would be to license TiVo software for all the old receivers? Particularly since they are looking at MPEG-4 streams for the future anyway?


----------



## scooper

I could live with that - but it better be a pretty quick replacement... as a longtime customer (October 2000), I'd expect to be close to the front of the line (those who were there before me should get even higher priority).


----------



## mark722

Curtis52 said:


> 4 million boxes X $66 (avg. box revenue) = $264 million


Sounds like this guy has the demise of Dish Network all worked out. As I've said before, let's not let the Tivo Lovers / Dish Haters try to predict the future for us. We'll cross the disabled DVR bridge when and if we ever get to it. Until then, let's just enjoy our "Better Than Tivo" Dish DVRs.


----------



## scooper

mark722 said:


> Sounds like this guy has the demise of Dish Network all worked out. As I've said before, let's not let the Tivo Lovers / Dish Haters try to predict the future for us. We'll cross the disabled DVR bridge when and if we ever get to it. Until then, let's just enjoy our "Better Than Tivo" Dish DVRs.


Yep - worry about it *IF* it ever comes to pass. E* will do everything in its power to keep the units going, and then to keep customers.


----------



## Curtis52

Dish asked for an extension of time to file a petition for rehearing.

"2/7/2008 MOTION: Entry 61 :by Appellants - Motion of EchoStar Communicatons of an extension of time within which to file their petition for rehearing and/or rehearing en banc. SERVICE : by Mail on 2/7/2008"


----------



## Kheldar

Curtis52 said:


> Dish asked for an extension of time to file a petition for rehearing.
> 
> "2/7/2008 MOTION: Entry 61 :by Appellants - Motion of EchoStar Communicatons of an extension of time within which to file their petition for rehearing and/or rehearing en banc. SERVICE : by Mail on 2/7/2008"


If I understand that correctly, then:
* the recent ruling (PDF)  was in front of a 3-judge panel in the "United States Court of Appeals for the Federal Circuit".
* the "petition for rehearing and/or rehearing en banc" is E* asking for the full panel of 12 judges to hear the case.
* So, they must think that the other 9 judges, that did not hear the original case, would give a different opinion and therefore overturn the 3-judge panel. Or it could be a delaying tactic while trying to negotiate w/ TiVo.

Am I understanding the correct purpose of this latest request?


----------



## Curtis52

Kheldar said:


> If I understand that correctly, then:
> * the recent ruling (PDF)  was in front of a 3-judge panel in the "United States Court of Appeals for the Federal Circuit".
> * the "petition for rehearing and/or rehearing en banc" is E* asking for the full panel of 12 judges to hear the case.
> * So, they must think that the other 9 judges, that did not hear the original case, would give a different opinion and therefore overturn the 3-judge panel.
> 
> Am I understanding the correct purpose of this latest request?


Well, the ruling by the appeals court was designated precedential so any request for rehearing would be en banc as per the rules. As to the justification for the request for an extension of time, I don't have a clue. If they ever get around to filing a petition for rehearing, I can't imagine what their rationale might be. If they don't get an extension, it looks like it will be due Feb 15 if the 14 day requirement is in calendar days as opposed to working days (I'm not sure which it is).


----------



## JosephF

Lord Vader said:


> In looking through the case's opinions, however, the software issue was the most critical and most damaging to DISH. Had they had a preference, the software issue and not the hardware issue would have been the best one to win. The fact that the appellate court left intact the software claims is potentially more foreboding for DISH than are the hardware claims.


I completely disagree. There is nothing they can do to change the hardware of the millions of receivers that are already fielded. They can (and have per the press releases) changed the software to address any patent issues.

Winning the hardware portion was huge.


----------



## Greg Bimson

Without trying to sound like a TiVo lover or Dish hater:


Kheldar said:


> So, they must think that the other 9 judges, that did not hear the original case, would give a different opinion and therefore overturn the 3-judge panel. Or it could be a delaying tactic while trying to negotiate w/ TiVo.


No, just a delaying tactic, having nothing to do with negotiation.

An _en banc_ request will usually be heard only in cases where there is some kind of split decision. In this case, the three judges that heard the appeal voted 3-0 in their course of action. I am fairly certain the _en banc_ request will be denied. After all, this is the same Court of Appeals that just dismissed the hardware claims, yet Dish Network/Echostar is trying to go back for more relief.

Once an _en banc_ request is denied, this of course will lead to the appeal directly to the Supreme Court, which will most likely be denied.

Then the case will make its way back to the District Court, where we can expect all kinds of sparks to fly. Echostar/Dish Network will ask for some kind of leniency and report lower subscriber numbers for "offending units", while reporting they have a "work around" to the TiVo patent. Then, TiVo will ask the court to include all newer DVR's since the original court case as infringing, ask for trebled damages for willful infringement and ask for summary judgement on the hardware claims dismissed by the Court of Appeals. Those outcomes are a bit more murky.

I figure by summer of '08, Dish Network will have settled with TiVo, only because I don't believe there is a true workaround in the software. As wicked as this case has been, I think it is truly about to become quite ugly.


----------



## phrelin

Closing share price today: SATS $34.86, TIVO $8.84

If Echostar offered 1 share for 3 in a "merger", TiVo's Board would have to agree or face a shareholders lawsuit. Think about it. If you owned 3,000 shares of TiVo you'd make an instant $8,000 on a company that has yet to make a profit.

If Charlie made an offer like that, everything would go away. Remember, he just invested $150 million in TerreStar in _cash_. I don't know why, but I think money isn't the issue for him or TiVo which is what makes lawyers rich.


----------



## Curtis52

phrelin said:


> Closing share price today: SATS $34.86, TIVO $8.84
> 
> If Echostar offered 1 share for 3 in a "merger", TiVo's Board would have to agree or face a shareholders lawsuit. Think about it. If you owned 3,000 shares of TiVo you'd make an instant $8,000 on a company that has yet to make a profit.
> 
> If Charlie made an offer like that, everything would go away. Remember, he just invested $150 million in TerreStar in _cash_. I don't know why, but I think money isn't the issue for him or TiVo which is what makes lawyers rich.


TiVo shares went up almost that much two weeks ago without a buyout and will go up much more than that when TiVo gets the damages award and a settlement. Also, that would dilute SATS shares and reduce the share price.


----------



## Greg Bimson

phrelin said:


> If Charlie made an offer like that, everything would go away. Remember, he just invested $150 million in TerreStar in *cash*. I don't know why, but I think money isn't the issue for him or TiVo which is what makes lawyers rich.


But now you've hit the nail on the head, here. Happy to invest $150 million in a new company, after purchasing Sling during the past year. What has been spent on acquisitions could have easily taken care of a licensing agreement with TiVo.

Of course, as an owner, I would also pick and choose where my money goes. But the fights sometimes are just downright crazy, always putting the Dish Network consumer at some kind of risk. The good news is that unlike the distant network fiasco, where an injunction was mandated, there will always be room for licensing TiVo software in lieu of an injunction, so Dish Network customers will most likely not have their DVR functions removed.

That is, of course, unless Dish Network does something during their fight that is absolutely foolish.


----------



## kog

Everyone seems to be assuming that at some point if Tivo wins out, that Dish can strike a deal with Tivo to keep their DVR's operating. What if Tivo says no? Or chooses to ask for an exorbitant sum like say $10/month per DVR? What would Dish do then? Considering how nasty this fight has been between the two, I don't see why Tivo would want to deal. They already got their chunk of money in terms of the judgment and interest accrues daily as this drags on, why license?

So if I was a Dish sub with a DVR that has the offending software, I'd consider upgrading to one of the newer MPEG-4 based units that aren't part of the lawsuit. The one piece of good news for Dish in this whole appeals was that the hardware section was thrown out. That means those "broadcom dvr" are no longer part of the injunction. I am sure Tivo will try and fight to have those ruled as infringing but that will probably take another couple of years. :nono2:


----------



## HiDefGator

kog said:


> Everyone seems to be assuming that at some point if Tivo wins out, that Dish can strike a deal with Tivo to keep their DVR's operating. What if Tivo says no?


You are suggesting that Dish offers to give Tivo money but Tivo mgmt says No. That would get Tivo mgmt fired. Tivo has no DVR that can work with Dish directly today.


----------



## Curtis52

kog said:


> The one piece of good news for Dish in this whole appeals was that the hardware section was thrown out. That means those "broadcom dvr" are no longer part of the injunction. I am sure Tivo will try and fight to have those ruled as infringing but that will probably take another couple of years.


Where did you get such an idea? The Broadcom DVRs are very much a part of the injunction.

The appeals court didn't reduce the damages award by a single penny. In fact, they recommended that the district court look at increasing the damages award.

Likewise, the appeals court didn't change a single word in the injunction.

Here is what the appeals court required:

"Defendants are hereby FURTHER ORDERED to, within thirty (30) days of the issuance of this order, disable the DVR functionality (ie. 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.

Infringing products: DP-501, DP-508, DP-510, DP-522, DP-625, DP-721, DP-921, and DP-942."


----------



## mark722

Curtis52 said:


> Where did you get such an idea? The Broadcom DVRs are very much a part of the injunction.


All Dish DVRs including the "Broadcom DVRs" are still working today. Since the Tivo Lovers seem so eager to predict the future, maybe we could get them to post the next winning lottery numbers for us. My prediction is that we have about as much of a chance of winning the lottery as we do of having our DVRs disabled.:lol:


----------



## dgordo

mark722 said:


> All Dish DVRs including the "Broadcom DVRs" are still working today. Since the Tivo Lovers seem so eager to predict the future, maybe we could get them to post the next winning lottery numbers for us. My prediction is that we have about as much of a chance of winning the lottery as we do of having our DVRs disabled.:lol:


Just because some of us who understand the law paint a bleak picture for dish doesn't mean we are Tivo lovers or can predict that future. There is something in the law called precedent, hence why some of use believe Charlie better get his checkbook ready.


----------



## normang

Precedent in many cases has meant nothing, its been walked over in several situations that I've read about. While I would have to go looking for a specific example, I know its happened. 

Time will tell, and I've said it before, I'll say it again, all the speculation here means zip. Because we don't have all the facts, and are rarely given them all. I have no reason to believe that Dish is going to allow this to disable my DVR or anyone else's.

Tivo may have a legal leg up, but they are still a small company and they've made no profit that I recall in years.. if ever. So even if handed a large chunk of change, I doubt it will change their future fortunes, it will only enrich a few at the top and do nothing for the rest of the company..


----------



## dgordo

normang said:


> Precedent in many cases has meant nothing, its been walked over in several situations that I've read about. While I would have to go looking for a specific example, I know its happened.


Precedent says that when someone someone is awarded a judgement in a trial and the appeals court fails to find in your favor on appeal you pay. Can you find an example of a non-bankrupt defendant who did not have to pay the judgement when this happens?



normang said:


> Time will tell, and I've said it before, I'll say it again, all the speculation here means zip. Because we don't have all the facts, and are rarely given them all. I have no reason to believe that Dish is going to allow this to disable my DVR or anyone else's.


I never claimed that dish will disable your dvr, they will just have to pay a lot of money to avoid doing so.



normang said:


> Tivo may have a legal leg up, but they are still a small company and they've made no profit that I recall in years.. if ever. So even if handed a large chunk of change, I doubt it will change their future fortunes, it will only enrich a few at the top and do nothing for the rest of the company..


This is all true, but that fact that tivo rarely makes money has no bearing on the guilt of dish.


----------



## Kheldar

normang said:


> Tivo may have a legal leg up, but they are still a small company and they've made no profit that I recall in years.. if ever. So even if handed a large chunk of change, I doubt it will change their future fortunes, it will only enrich a few at the top and do nothing for the rest of the company..


If you were in their shoes, and most of the cable and satellite companies were illegally using your patented ideas, I wouldn't be surprised if you couldn't turn a profit either.

Unfortunately, TiVo's future is in licensing their technologies to other companies. They realized this a long time ago when they started licensing their patents to D*, and more recently to Comcast.

Once (if ever?) this E* lawsuit is completed, expect more licensing of TiVo patents by cable companies, or more lawsuits will follow. The results of the E* lawsuit will be the tipping point deciding TiVo's future.


----------



## Greg Bimson

Kheldar said:


> So even if handed a large chunk of change, I doubt it will change their future fortunes, it will only enrich a few at the top and do nothing for the rest of the company..


And since when does a judgment only, "enrich a few at the top and do nothing for the rest of the company," when shareholders would have a field day if TiVo management plundered the company?

The reality is that TiVo is suing for ongoing licensing fees. As of August, 2006, Echostar owes TiVo $90 million. When time comes, the District Court wil also award TiVo any other monthly fees for the past 18 months, as well as interest. And that is only what Echostar and Dish Network must pay while shutting of the DVR's, unless Echostar has been found to rewrite the code so the software no longer infringes. So any settlement between TiVo and Echostar will hinge on going-forward licensing fees, so that TiVo can start forcing other cable companies to license the TiVo software, thus creating a rather large recurring revenue stream for the company.


----------



## TBoneit

If Dish had to license the Tivo copyrights that would be OK. If they had to turn the DVRs into Tivos that would stink. I never Cared for many of the Tivo features such as suggestions or the guide. I've found that I prefer the time block of selected channels over showing more hours of one channel. I have my guide set to show 3 hours by as many channels as I can. 

First thing I did after I bought a Tivo was turn off sounds followed by Suggestions. The search/wishlist works but seems cumbersome and slow.


----------



## Curtis52

TBoneit said:


> If Dish had to license the Tivo copyrights that would be OK. If they had to turn the DVRs into Tivos that would stink. I never Cared for many of the Tivo features such as suggestions or the guide. I've found that I prefer the time block of selected channels over showing more hours of one channel. I have my guide set to show 3 hours by as many channels as I can.
> 
> First thing I did after I bought a Tivo was turn off sounds followed by Suggestions. The search/wishlist works but seems cumbersome and slow.


This thread is more about following the trial than it is about preferences for the user interface.


----------



## James Long

What happens in the future is an important part of this thread. The easiest (and most wrong, in my opinion) speculation is that EchoStar DVRs will simply stop working. Most agree that will not be happening so looking at the next impact (speculating what will change) can be part of this thread.

Will the UI remain the accepted one that we have become accustomed to or will EchoStar be forced to take the UI with the licensing? I agree with TBoneit ... and hope that E* is not forced to change the UI (more than the inclusion of a TiVo logo, if required).


----------



## Greg Bimson

Has anyone seen what the TiVo-based Comcast DVR's look like? I'd suspect TiVo would simply take a fee. After all, "Powered by TiVo" is about the only mention of TiVo on the old DirecTV DVR's.


----------



## mark722

dgordo said:


> Just because some of us who understand the law paint a bleak picture for dish doesn't mean we are Tivo lovers or can predict that future. There is something in the law called precedent, hence why some of use believe Charlie better get his checkbook ready.


It's pretty obvious which side of the fence certain people are on when they use their facts and figures to spread doom and gloom predictions about the future of Dish Network. If your not a Tivo Lover or Dish Hater, why would you spend so much time gathering your facts and figures to support your predictions?


----------



## phrelin

Greg Bimson said:


> So any settlement between TiVo and Echostar will hinge on going-forward licensing fees, so that TiVo can start forcing other cable companies to license the TiVo software, thus creating a rather large recurring revenue stream for the company.


This is the crux of the matter. TiVo has a major claim on future revenue sharing from Echostar only if one accepts the doctrine of equivalents. The problem facing TiVo is that Echostar is the potential tip of the iceberg and the doctrine of equivalents issue is muddy at best since it wasn't really adjudicated.

If all "name-based-recording" boxes on all cable and satellite systems could represent a potential revenue stream for TiVo in the foreseeable future, then the smart thing to do would be to settle with Echostar for a modest share of future box rental/sales revenue and take the award for code infringement, IMHO. It is very likely that everyone has eliminated literal code infringement in this length of time. So if they could cajole everyone into sharing a bit of revenue for a decade for simply using the idea - sort of a make a nuisance go away settlements.

But it appears there is a lot of emotion and attorneys in the way.


----------



## Curtis52

phrelin said:


> TiVo has a major claim on future revenue sharing from Echostar only if one accepts the doctrine of equivalents.


The appeals court didn't agree with you. The appeals court required that over 4 million DVRs be shut down. TiVo can ask the court to remove the injunction if there is a royalty agreement with Dish, otherwise Dish loses $264 million per month. The Doctrine of Equivalents doesn't even enter into it.


----------



## Greg Bimson

mark722 said:


> It's pretty obvious which side of the fence certain people are on when they use their facts and figures to spread doom and gloom predictions about the future of Dish Network. If your not a Tivo Lover or Dish Hater, why would you spend so much time gathering your facts and figures to support your predictions?


It is normally because of the posts that some people say, "there will be nothing wrong".

I was fairly on target regarding my predictions with the distant network suit, where many people believed that Dish Network's money will make all problems go away. I don't want people to have the wool pulled over their eyes when it comes to the law.

There will more than likely be a settlement. It is a matter of how much maneouvering both sides do to get their points favorable to the judge.


----------



## phrelin

Curtis52 said:


> The appeals court didn't agree with you. The appeals court required that over 4 million DVRs be shut down.


If Charlie want's to be obnoxious, which seems to be the case here, he could ship out replacement MPEG-4 capable DVRs and waste a bunch more money on attorneys.


----------



## Curtis52

phrelin said:


> If Charlie want's to be obnoxious, which seems to be the case here, he could ship out replacement MPEG-4 capable DVRs and waste a bunch more money on attorneys.


That couldn't be done overnight and it would cost almost a billion dollars in hardware cost alone. On top of that would be several billion dollars lost from subscribers with turned off boxes in the interim. Then there is the very good chance that Judge Folsom would say that those boxes also infringe.


----------



## Greg Bimson

This is the part that laymen don't understand:

It is possible the MPEG-4 boxes infringe, and can be lumped into the current court case.

As much as Charlie can be obnoxious, these attorneys that TiVo hired were very good in the court case to leave so many different ways to get at Echostar through the courts.


----------



## mark722

Greg Bimson said:


> There will more than likely be a settlement. It is a matter of how much maneouvering both sides do to get their points favorable to the judge.


Thanks for the expert opinion. If what you are saying is "Expect the worse and hope for the best", then I completely agree. But what I disagree with is the "expert opinions" that use facts and figures to say "This is what's going to happen so you better get used to it". Having an opinion is one thing, claiming to know what will happen is another.


----------



## phrelin

Maybe the MPEG-4 boxes infringe, maybe they don't. And of course it would be costly to replace the other boxes now though it will have to be done over time anyway. And maybe Dish can't delay enough or maybe they can. And maybe they could just settle. Or maybe Dish could buy TiVo. Or maybe Dish will fold up tomorrow, or not.

I'm just burning off what I have on my two 508's, partly just in case, mostly because I want to replace them. I'm not worrying much about my 722, though maybe i should.


----------



## Curtis52

Greg Bimson said:


> This is the part that laymen don't understand:
> 
> It is possible the MPEG-4 boxes infringe, and can be lumped into the current court case.


Surely no one here thinks that MPEG 4 boxes don't infringe. The claims that Dish was found to infringe don't mention MPEG 4 or MPEG 2 or any other flavor of MPEG. It's irrelevent.


----------



## James Long

Curtis52 said:


> Surely no one here thinks that MPEG 4 boxes don't infringe. The claims that Dish was found to infringe don't mention MPEG 4 or MPEG 2 or any other flavor of MPEG. It's irrelevent.


The suit was filed prior to the release of the MPEG4 boxes ... which is why in the list of infringing receivers the ViP series don't get a mention.

I'm sure TiVo thinks they are covered ... I'm sure EchoStar thinks nothing current is covered (due to software changes since the time that the infringing software was on the receivers). I'm sure that we're not going to decide the issue ... a court is!


----------



## phrelin

phrelin said:


> ...and waste a bunch more money on attorneys.


This really is my point here. E* likely would lose in the end except for _*time*_, which in corporate lawsuit land tends to favor the money.

What's confusing me about the alarmists on this thread is what would I do about it if I knew Dish were going to turn off all the DVRs tomorrow? I have literally over 200 hours of recordings on Dish DVRs and related external hard drives. I would disconnect the 508's from the dish if I knew a turn off was imminent, but what else?


----------



## mark722

Curtis52 said:


> Surely no one here thinks that MPEG 4 boxes don't infringe. The claims that Dish was found to infringe don't mention MPEG 4 or MPEG 2 or any other flavor of MPEG. It's irrelevent.


Surely no one here thinks this guy can read our minds or has the power to decide what is relevent and what is not.


----------



## kog

HiDefGator said:


> You are suggesting that Dish offers to give Tivo money but Tivo mgmt says No. That would get Tivo mgmt fired. Tivo has no DVR that can work with Dish directly today.


It all depends on how much money. Tivo is the one in position of power in that case. So they can squeeze Dish pretty hard for money.


----------



## dgordo

mark722 said:


> It's pretty obvious which side of the fence certain people are on when they use their facts and figures to spread doom and gloom predictions about the future of Dish Network. If your not a Tivo Lover or Dish Hater, why would you spend so much time gathering your facts and figures to support your predictions?


I don't own a Tivo and probably never will. Why anyone would be a "Tivo lover or dish hater" is beyond me. I cant speak for anyone else, but my interest is two fold. I am a dish shareholder and as I mentioned I interned in the patent office during law school and I find this case interesting. Despite what you think, it would be much better for me if dish had won this lawsuit.


----------



## tomcrown1

PSST Dish can declare bankrupcy and avoid paying TIvo---Just like Xerox----IBM ETC.


----------



## kog

Curtis52 said:


> Here is what the appeals court required:
> 
> "Defendants are hereby FURTHER ORDERED to, within thirty (30) days of the issuance of this order, disable the DVR functionality (ie. 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.
> 
> Infringing products: DP-501, DP-508, DP-510, DP-522, DP-625, DP-721, DP-921, and DP-942."


But that doesn't include the newer DVRs that Dish has been deploying to people's homes like the the 612 or the 622. Now they may still be infringing but Tivo will have to prove that in court without the benefit of the hardware ruling.


----------



## Curtis52

kog said:


> But that doesn't include the newer DVRs that Dish has been deploying to people's homes like the the 612 or the 622. Now they may still be infringing but Tivo will have to prove that in court without the benefit of the hardware ruling.


Well, there are some that say the burden of proof will be on Dish to prove they don't infringe. Anyway, I doubt whether TiVo would approve anything but a comprehensive royalty agreement and tivo will be holding 4 million DVRs hostage.


----------



## scooper

dgordo said:


> I don't own a Tivo and probably never will. Why anyone would be a "Tivo lover or dish hater" is beyond me. I cant speak for anyone else, but my interest is two fold. I am a dish shareholder and as I mentioned I interned in the patent office during law school and I find this case interesting. Despite what you think, it would be much better for me if dish had won this lawsuit.


YOu INTERNED at the Patent Office !?!?

What a messed up place - Tivo should never have gotten a patent on that - Copyrightable, certainly - but Patentable - are you kidding !?!/

I may not be a lawyer - but I DO know dataprocessing (Computer Science degree here) and I was utterly shocked that the jurors in Texas said this was a valid patent.


----------



## HobbyTalk

Curtis52 said:


> Well, there are some that say the burden of proof will be on Dish to prove they don't infringe. Anyway, I doubt whether TiVo would approve anything but a comprehensive royalty agreement and tivo will be holding 4 million DVRs hostage.


Sounds like you are graping at straws here. No where in the suit are the VIP series noted. I see no way that E* would have to prove anything. You can doubt all you want but really, not to be rude, who are you that it should matter what you believe? It would be up to TiVo to refile to prove that products not named in to suit infringes.

Who am I? I was associated with a suit for IP infringement. While all suits vary in scope I can draw a conclusion from that. They could not later add products not previously named in the original suit without basically going back to the start of the filing to add those products or they could have started a 2nd suit to cover the other products.

It is way too late into this suit for TiVo to say "we want to add these products to the suit".... it would add years to a resolution. Early on they could have without a huge delay but the findings have been made and to change those findings would not be timely or most likely not even a wise things to do at this point.

Suits such as this tend to be very specific. They spell out processes and product in very detailed filings. Not doing so would leave loopholes big enough to drive a truck through. But doing so also means any process or product outside of those presented are generally not affected by the proceedings.


----------



## kog

Curtis52 said:


> Well, there are some that say the burden of proof will be on Dish to prove they don't infringe. Anyway, I doubt whether TiVo would approve anything but a comprehensive royalty agreement and tivo will be holding 4 million DVRs hostage.


I guess it all depends on just how many DVRs are found to infringe. Do we really know how many DP-501, DP-508, DP-510, DP-522, DP-625, DP-721, DP-921, and DP-942 that Dish has deployed? If there's enough of them then Tivo can use that as leverage on a comprehensive royalty agreement. If not, then Dish could in theory just swap out those units with MPEG-4 units and say "Go sue us!" on those new units.


----------



## Curtis52

HobbyTalk said:


> They could not later add products not previously named in the original suit without basically going back to the start of the filing to add those products or they could have started a 2nd suit to cover the other products.


Besides the specific model numbers listed, the injunction also covers "all other products that are only colorably different therefrom in the context of the infringed claims."

A summary judgment from Judge Folsom might be needed but that's all. No big deal. Dish might ask for it to preclude a finding of willful infringement resulting in triple damages.


----------



## Kheldar

HobbyTalk said:


> It is way too late into this suit for TiVo to say "we want to add these products to the suit".... it would add years to a resolution. Early on they could have without a huge delay but the findings have been made and to change those findings would not be timely or most likely not even a wise things to do at this point.


But didn't the original injunction (PDF) already cover this situation?

(page 1)


> Defendants' following DVR receivers (collectively the "Infringing Products"): DP-501; DP-508; DP-510; DP-522; DP-625; DP-721; DP-921; and the DP-942.


(page 2)


> IT IS FURTHER ORDERED THAT
> Each Defendant, its officers, agents, servants, employees and attorneys, and those persons in active concert or participation with them who receive actual notice hereof, are hereby restrained and enjoined, pursuant to 35 U.S.C. § 283 and Fed. R. Civ. P. 65(d), from making, using, offering to sell or selling in the Untied States, the Infringing Products, either alone or in combination with any other productand all other products that are only colorably different therefrom in the context of the Infringed Claims, whether individually or in combination with other products or as a part of another product, and from otherwise infringing or inducing others to infringe the Infringed Claims of the '389 patent.
> 
> Defendants are hereby FURTHER ORDERED to, within thirty (30) days of the issuance of this order, 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, i.e., disable all storage to and playback from a hard disk drive of television data) shall not be enabled in any new placements of the Infringing Products.


What exactly is the legal definition of "colorably different"? Does it mean that, even if the model number isn't listed in the "Infringing Products", if any other models are infringing on the same patent, they would also be included in the injunction?

_Apparently I took too long to write this, and Curtis52 beat me to the punch._


----------



## Curtis52

United States Code:

"TITLE 35 > PART III > CHAPTER 29 > § 295
§ 295. Presumption: Product made by patented process
In actions alleging infringement of a process patent based on the importation, sale, offer for sale, or use of a product which is made from a process patented in the United States, if the court finds—
(1) that a substantial likelihood exists that the product was made by the patented process, and
(2) that the plaintiff has made a reasonable effort to determine the process actually used in the production of the product and was unable to so determine,
the product shall be presumed to have been so made, and the burden of establishing that the product was not made by the process shall be on the party asserting that it was not so made."

Here is how it might go:

TiVo: "Your honor, we think these other Dish model numbers probably also infringe since they already infringe with 4 million other DVRs. We've tried to get details on them but we have been unable to."

Judge Folsom: "I agree. They shall be considered as infringing."


----------



## dgordo

scooper said:


> YOu INTERNED at the Patent Office !?!?
> 
> What a messed up place - Tivo should never have gotten a patent on that - Copyrightable, certainly - but Patentable - are you kidding !?!/
> 
> I may not be a lawyer - but I DO know dataprocessing (Computer Science degree here) and I was utterly shocked that the jurors in Texas said this was a valid patent.


Absolutely, It was a once in a lifetime opportunity for a law student who wanted to be a patent lawyer. I withhold my opinion on whether Tivo deserved the patent in the first place, I never worked on the case and the law is my expertise, not the technology behind a Tivo. It wasn't just the jury that found this to be a valid patent, it was the appeals court and the patent office.


----------



## dgordo

Colorably different means that the difference is obvious. I don't know enough about this technology to say what that would be. In the RIM/NTP case, RIMs so called work-around was not colorably different. I realize these are different types of software but it is an example of how hard it is to change software to avoid infringement.


----------



## HobbyTalk

And in the end all we have here is a bunch of armchair wannabe lawyers that basically don't have a clue what they are talking about  The outcome won't be known until the final appeal and verdict.


----------



## Greg Bimson

So it always gets back to this:

Echostar/Dish Network has two appeals left before the case heads back to the same court that found them guilty of patent infringement: an _en banc_ request for the entire jurist panel of the Court of Appeals, and a writ of certiorari to appeal to the Supreme Court. I am no lawyer, but I also believe it would be extremely difficult for either court to accept a request.

TiVo can only wait until they get back to the District Court, back in front of the same judge that issued the injunction. We know that TiVo will:

1) try to claim that the "new software" still infringes on the Time Warp patent
2) try to claim that the entire VIP series infringes on the Time Warp patent
3) could try to claim that if the VIP series infringes on the Time Warp patent, that Echostar is still willfully infringing, and therefore be subject to trebled damages
4) if any or all of the above fail, TiVo will probably also try to get summary judgment for the hardware claims that the Court of Appeals struck down

We also know that Echostar/Dish Network will try to somehow convince the court they aren't using the Time Warp patent anymore. Because if they are still using the Time Warp patent, the injunction will trump anything and force Echostar/Dish Network to license the TiVo software. There even may be a grey area where it won't matter if Echostar/Dish Network is using the Time Warp patent; there is the possibility the judge will not want to hear it and force Dish Network to come to an agreement with TiVo by imposing the injunction without regard to the Echostar/Dish Network claims of a software rewrite.

That should have all of the bases covered.


----------



## dgordo

HobbyTalk said:


> And in the end all we have here is a bunch of armchair wannabe lawyers that basically don't have a clue what they are talking about  The outcome won't be known until the final appeal and verdict.


Im pretty sure when I passed the bar exam I became more than a wannabe lawyer.


----------



## Michael P

Sorry if this has been covered before in this lengthy thread. I just started reading the last few pages. 

How does this suit affect the spin off that just occurred. Do the two companies (DISH & SATS) equally share in the liability or is it all on one (presumably SATS)?


----------



## HobbyTalk

This suit may be the least of our problems.

Patent Firm Attacks Cable and Digital TV
It is attacking two key technology standards used by the cable and broadcast industries, CableLabs' DOCSIS and the Advanced Television Systems Committee's digital-TV spec. 'If they're successful, this could affect everything from the cost of cable service to the price of TVs,'
http://www.multichannel.com/article/CA6532982.html


----------



## dgordo

Companies like Rembrandt and NTP are the problem with the patent system.


----------



## Richard King

Michael P said:


> Sorry if this has been covered before in this lengthy thread. I just started reading the last few pages.
> 
> How does this suit affect the spin off that just occurred. Do the two companies (DISH & SATS) equally share in the liability or is it all on one (presumably SATS)?


The law suit is covered by the current Dish Network (DISH) up to the date of the split of the companies. Any liability to that point is held by DISH. After that point it is held be Echostar (SATS), the hardware company. Any penalty will be prorated at the date of the spinoff.


----------



## BNUMM

dgordo said:


> Im pretty sure when I passed the bar exam I became more than a wannabe lawyer.


Please don't stop posting because of rude comments. I for one value your comments. My daughter is an attorney but she has no interest in Satelllite TV matters so I don't bother her about those type of legal questions. That is why I am pleased when someone with a legal background adds their input.


----------



## scooper

BNUMM said:


> Please don't stop posting because of rude comments. I for one value your comments. My daughter is an attorney but she has no interest in Satelllite TV matters so I don't bother her about those type of legal questions. That is why I am pleased when someone with a legal background adds their input.


Ditto. I may not always agree, but I do value input, especially from trained people (in the field).


----------



## HobbyTalk

If he's an attorney then he should be able to take a little heat from a keyboard cowboy


----------



## dgordo

I have no problem with a little heat and will always give my opinion if I understand the case. After all, I never would have become a lawyer if I cared what people thought of me. :lol:


----------



## Curtis52

There's one on every board.


----------



## HobbyTalk

dgordo.... too funny. Thanks for the chuckle!

curtis52, get over it! You're a bit too serious.


----------



## Curtis52

Dish SEC filing:

"On January 31, 2008, the U.S. Court of Appeals for the Federal Circuit affirmed in part and reversed in part the April 2006 jury verdict concluding that certain of our digital video recorders, or DVRs, infringed a patent held by Tivo. In its decision, the Federal Circuit affirmed the jury’s verdict of infringement on Tivo’s “software claims,” upheld the award of damages from the district court, and ordered that the stay of the district court’s injunction against us, which was issued pending appeal, will dissolve when the appeal becomes final. The Federal Circuit, however, found that we did not literally infringe Tivo’s “hardware claims,” and remanded such claims back to the district court for further proceedings. We are appealing the Federal Circuit’s ruling.

In addition, we have developed and deployed ‘next-generation’ DVR software to our customers’ DVRs. This improved software is fully operational and has been automatically downloaded to current customers (the “Design-Around”). We have formal legal opinions from outside counsel that conclude that our Design-Around does not infringe, literally or under the doctrine of equivalents, either the hardware or software claims of Tivo’s patent.


In accordance with Statement of Financial Accounting Standards No. 5, “Accounting for Contingencies” (“SFAS 5”), we recorded a total reserve of $128 million in “Litigation expense” on our Consolidated Balance Sheets to reflect the jury verdict, supplemental damages and pre-judgment interest awarded by the Texas court. This amount also includes the estimated cost of any software infringement prior to the Design-Around, plus interest subsequent to the jury verdict.

If the Federal Circuit’s decision is upheld and Tivo decides to challenge the Design-Around, we will mount a vigorous defense. If we are unsuccessful in subsequent appeals or in defending against claims that the Design-Around infringes Tivo’s patent, we could be prohibited from distributing DVRs, or be required to modify or eliminate certain user-friendly DVR features that we currently offer to consumers. In that event we would be at a significant disadvantage to our competitors who could offer this functionality and, while we would attempt to provide that functionality through other manufacturers, the adverse affect on our business could be material. We could also have to pay substantial additional damages."


----------



## Michael P

> In addition, we have developed and deployed 'next-generation' DVR software to our customers' DVRs. This improved software is fully operational and has been automatically downloaded to current customers (the "Design-Around"). We have formal legal opinions from outside counsel that conclude that our Design-Around does not infringe, literally or under the doctrine of equivalents, either the hardware or software claims of Tivo's patent.


My 921 has had s/w version L332 since Spring '07. Since the 921 was specifically listed as being one of the infringing models, how can the above quoted statement be true (unless the design-around was deployed last Spring)?


----------



## kog

And how can a software update change the status of a hardware infringement? That makes no sense at all.


----------



## James Long

What hardware infringement? That part of the decision was overturned and remanded back to the lower court.


----------



## Greg Bimson

Only because Dish Network has not been found to violate the hardware claims, yet. The Court of Appeals dismissed the hardware charges, but TiVo can certainly ask the District Court judge for a summary judgment or a quick-trial on the hardware claims.

I know the SEC requirements make a company report these issues in a bad light. However, the SEC filing does make it appear that kog has a point. If the violation of hardware claims is reinstated, Dish Network is in a world of trouble.

I said the fireworks will fly when the case gets back to the District Court, back to Judge Folsom. Wow, will those sparks fly.


----------



## James Long

As I noted earlier in the thread ... it is going to take armed marshals to get DISH Network to turn off their DVRs. They are going to fight this until they win.


----------



## Greg Bimson

James Long said:


> They are going to fight this until they win.


Or lose. 

I believe that Dish Network should be careful not to take this too far. They may paint themselves in a corner again, like the distant networks. The fight may cost them more than an amicable settlement now.

As an addendum to my last post, because Dish Network must show that the "new software" does not infringe, the hardware claims can be brought back to life as well. It's that good ol' point/counterpoint routine:

Dish Network will argue vigorously that they no longer infringe on the software claims, so they will need to show the judge and TiVo their work to prove it. Then TiVo will ask to reinstate the hardware claims, because after all, it is easier than checking on modified software.


----------



## BNUMM

The part of this that concerns me the most is the "Doctrine of Equivalents". If the hardware issue is brought back to court the "Doctrine of Equivalents" will definitely be brought up. The fact that Dish mentioned it shows that they are probably concerned about it.


----------



## Lord Vader

James Long said:


> As I noted earlier in the thread ... it is going to take armed marshals to get DISH Network to turn off their DVRs. They are going to fight this until they win.


That's what Vonage said in their lawsuit with Verizon, and look who ended up on the short end of that one.


----------



## dgordo

James Long said:


> What hardware infringement? That part of the decision was overturned and remanded back to the lower court.


The one dish mentions in their 10K.


----------



## dgordo

BNUMM said:


> The part of this that concerns me the most is the "Doctrine of Equivalents". If the hardware issue is brought back to court the "Doctrine of Equivalents" will definitely be brought up. The fact that Dish mentioned it shows that they are probably concerned about it.


As they should be. As I mentioned before, it is a very simple standard to meet.


----------



## jclewter79

I realize that E* says that the software has been changed but, I have had my 625 for over a year and have not noticed any change in functionality in that time. Has their been changes in functionality before I got mine? Is the software in question something that does not affect functionality? TIVO needs to be careful themselves, a company like them could go bankrupt waiting for E*'s check to clear


----------



## jpeckinp

Tivo wants us shutdown.

From todays Swanni:

http://www.tvpredictions.com/tivoecho031108.htm


----------



## Kheldar

jpeckinp said:


> Tivo wants us shutdown.
> 
> From todays Swanni:
> 
> http://www.tvpredictions.com/tivoecho031108.htm


Wants it shut down? Doubtful.
Wants a contract with E* for their DVR service? Absolutely.
And the threat of a shutdown seems to be the only way to get Charlie's attention.


----------



## Lord Vader

Charlie Ergen defiant? Never!


----------



## koralis

ernste40 said:


> Regardless of those notes, can you imagine the firestorm they would feel from the millions of customers who would be tied into a contract based on advertising for the "Best DVR," only to not be able to have DVR service. My mind quakes just thinking about it!


Class-action lawsuit.


----------



## Kheldar

koralis said:


> Class-action lawsuit.


Possibly, but there is text in their Residential Agreement that might protect them from that. Section 4(c) and 4(d):


> C. DISH Network reserves the rights to alter software, features and/or functionality in your DISH Network receivers, provide data and content to Personal Video Recorder/Digital Video Recorder ("PVR/DVR") products, store data and content on the hard drives of PVR/DVR products, and send electronic counter-measures to your DISH Network receivers, through periodic downloads. DISH Network will use commercially reasonable efforts to schedule these downloads to minimize interference with or interruption to your Services, but shall have no liability to you for any interruptions in Services arising out of or related to such downloads.
> 
> D. DISH Network's PVR/DVR Products allow you to record programming in digital format. Total recording time varies depending on your receiver and the nature of the programs being recorded. DISH Network does not guarantee access to or recording of any particular programming. Most programming is the copyrighted material of the third party that supplies it, is protected by copyright and other applicable laws, and may not be reproduced, published, broadcast, rewritten, or redistributed without the written permission of the third party that supplied it except as permitted by the "fair use" provisions of the U.S. copyright laws. DISH Network may, in its sole discretion, add, change or remove features of its PVR/DVR Products and, upon notice to you, introduce or change fees for the use of PVR/DVR Product features. DISH Network will notify you of any change that is within its reasonable control. Unless otherwise specified in the terms and conditions of the customer agreement(s) applicable to the promotion(s) pursuant to which you are receiving Services and/or Equipment, we will charge you a monthly DISH Network DVR service fee ("DISH Network DVR Service Fee") for each PVR/DVR receiver activated on your account.


----------



## Ray_Clum

Residential Agreement said:


> DISH Network may, in its sole discretion, *add, change or remove features* of its PVR/DVR Products and, upon notice to you, introduce or change fees for the use of PVR/DVR Product features. DISH Network will notify you of any change that is within its reasonable control.


Please note that it is describing features of the PVR/DVR. Not the entire functionality of the PVR/DVR.


----------



## James Long

Please note it refers to "features of its PVR/DVR products". One of those features being ... it's a DVR!

I don't believe that DISH will ever "turn off" the DVRs. Certainly not because of threatening words from Tivo. DISH believes their current DVRs are now compliant with the rulings so far. They are not going to just roll over and die.


----------



## phrelin

Paragraph "C" both distinguishes receivers from PVR/DVRs and reserves the right to alter receivers: (emphasis added)


> C. DISH Network reserves the rights to alter software, features and/or functionality in your DISH Network _*receivers*_, *<coma>*provide data and content to Personal Video Recorder/Digital Video Recorder ("PVR/DVR") products, store data and content on the hard drives of PVR/DVR products,...


Based upon a literal reading of this paragraph, there is a difference between a "receiver" and a "PVR/DVR". Paragraph "D" explains the difference and a whole lot more: (emphasis added)


> D. _*DISH Network's PVR/DVR Products allow you to record programming in digital format.*_ Total recording time varies depending on your receiver and the nature of the programs being recorded. _*DISH Network does not guarantee access to or recording of any particular programming.*_ Most programming is the _*copyrighted* _material of the third party that supplies it, is protected by _copyright _and other applicable laws, and may not be reproduced, published, broadcast, rewritten, or redistributed without the written permission of the third party that supplied it _*except as permitted by the "fair use" provisions of the U.S. copyright laws*_. DISH Network may, in its sole discretion, add, change or remove _*features*_ of its PVR/DVR Products and, upon notice to you, introduce or change fees for the use of PVR/DVR Product features. DISH Network will notify you of any change that is within its reasonable control. Unless otherwise specified in the terms and conditions of the customer agreement(s) applicable to the promotion(s) pursuant to which you are receiving Services and/or Equipment, we will charge you a monthly DISH Network DVR service fee ("DISH Network DVR Service Fee") for each PVR/DVR receiver activated on your account.


It seems fairly clear that any changes Dish makes to a PVR/DVR pursuant to paragraph "D" are within the context of copyright law related to programming and they can be changes to "features". This could hardly be interpreted by a reasonable person to turn a "PVR/DVR" into a "receiver". And it is true that there is a strong body of new advertising built entirely on the capabilities of the DVR, as distinguised from a receiver. So one might make a case that they were misled. But what harm resulted? I'm going to be irritated. But irritation is generally not regarded as harm.

So long as I have a some reasonable time to watch my existing recordings including about 70 HD movies, I haven't suffered any real or imaginary damages. Even if I can't watch the existing recordings, paragraph "D" specifically says that Dish doesn't guarantee access to recorded programming. So I'm probably out of luck having any claim on that issue even if the cause isn't a programming copyright issue.

My two old _owned_ 508's would go from having little market value to no market value because they wouldn't be able to record, but the agreement in the same sentence doesn't guarantee that they can record any programming. And I'm really just renting my 722.

If I recently bought a 612/622/722, that would be another issue within the context of the advertising campaign. But can one recover some vague lost value of owned equipment based upon its continued functionality? Think Betamax and HD-DVD. How much did Betamax recorder owners get from Sony?

Oh yeah, I suppose there could be the inconvenience of going through another crappy install experience from DirectTV or Comcast. In a class action, that could result in a $2 settlement. :lol:

On the other hand, real damages could result from Dish having to turn off all its recording devices. Dish shares would be worth considerably less without its equipment edge, which is entirely the DVR. This could result in a shareholders lawsuit claiming that Charlie & Co. were reckless. For that reason, I don't think we'll ever see the time the PVR/DVR feature will be turned off. But then "pride goeth...."


----------



## BNUMM

First TIVO must request a "Show Cause Hearing".


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## DustoMan

James Long said:


> Please note it refers to "features of its PVR/DVR products". One of those features being ... it's a DVR!
> 
> I don't believe that DISH will ever "turn off" the DVRs. Certainly not because of threatening words from Tivo. DISH believes their current DVRs are now compliant with the rulings so far. They are not going to just roll over and die.


Not only that but Charlie has said on multiple occasions, including the last chat on Monday, that they did it before Tivo. He'll fight Tivo till his last breath before taking features away from his customers.


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## James Long

My opinion: Armed federal marshals is the only way Charlie will disable a DVR.

Kinda makes this contract re-reading a moot point.


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## phrelin

James Long said:


> My opinion: Armed federal marshals is the only way Charlie will disable a DVR.


:lol:


----------



## tomcrown1

DustoMan said:


> Not only that but Charlie has said on multiple occasions, including the last chat on Monday, that they did it before Tivo. He'll fight Tivo till his last breath before taking features away from his customers.


It is true that Dish had DVR before TIVO if Charlie goes back to WEBTV. WEBTV was the first company with DVR feature.(this is before WEBTV joined forces with dish)

Did Charlie buy the license from Microsoft for DVR function?? If true how could TIVO claim Dish interfered with its patient?? WEBTV first had the patient for modern day DVR before TIVO.


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## Earl Bonovich

tomcrown1 said:


> It is true that Dish had DVR before TIVO if Charlie goes back to WEBTV. WEBTV was the first company with DVR feature.(this is before WEBTV joined forces with dish)
> 
> Did Charlie buy the license from Microsoft for DVR function?? If true how could TIVO claim Dish interfered with its patient?? WEBTV first had the patient for modern day DVR before TIVO.


It's all in the magic of what is being violated...
The "concept" of the DVR... isn't really patentable....
The implementation and methods to do it, though... are.


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## Lyle_JP

Also, it doesn't seem to matter who makes something first or markets something first, only who _patents _something first.


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## jacmyoung

Earl Bonovich said:


> It's all in the magic of what is being violated...
> The "concept" of the DVR... isn't really patentable....
> The implementation and methods to do it, though... are.


I agree, which is why who had the DVR concept or not has no bearing on this lawsuit, Charlie was just talking like an 18-year-old *****ing to his girlfriend.

But unless something new just happened, last I read Charlie actually won the case, that is if he was truthful that they had downloaded new software that no longer violates the codes. That is a big if of course, he could be bluffing for all we know.

But if true, Tivo's days are numbered. Even if they get $200 mil from Charlie, if Charlie can use the new code without legal implications, then no one else would feel compelled to deal with Tivo, in fact DirecTV seemed to have already given Tivo the finger.

Not only that Charlies also said they now have pretty much patented every codes under the sun themselves, that could severely restrict anyone else who tries to develop DVR functions, including Tivo itself.


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## Lord Vader

If Charlie would have won, the Appellate Court would not have remanded it back to the lower court for further proceedings.


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## Earl Bonovich

jacmyoung said:


> Not only that Charlies also said they now have pretty much patented every codes under the sun themselves, that could severely restrict anyone else who tries to develop DVR functions, including Tivo itself.


But that is the "beauty/nightmare" of the patent game....

The courts deciding if the patent is valid, enforcable, or who truely owns it...

DirecTV bought a LARGE portfolio of DVR patents in the Replay technology purchase... so my guess... in the bigger picture... this is a topic that is going to be discussed for a very very long time.

As you also have the land-based providers (cable/fiber) that have their DVR technology, which they developed... ect....


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## mark722

jacmyoung said:


> But unless something new just happened, last I read Charlie actually won the case, that is if he was truthful that they had downloaded new software that no longer violates the codes. That is a big if of course, he could be bluffing for all we know.


Dish is not bluffing when they say they have a workaround solution for the Tivo patent. Here is a link to the patent application for the workaround.

http://appft1.uspto.gov/netacgi/nph...&S1=20080056682&OS=20080056682&RS=20080056682

I think it's important to note how Echostar goes to the trouble to distinguish their patent from others including Tivo's. Determining if the software is "colorably" different will be for the court to decide.


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## Jhon69

jacmyoung said:


> I agree, which is why who had the DVR concept or not has no bearing on this lawsuit, Charlie was just talking like an 18-year-old *****ing to his girlfriend.
> 
> But unless something new just happened, last I read Charlie actually won the case, that is if he was truthful that they had downloaded new software that no longer violates the codes. That is a big if of course, he could be bluffing for all we know.
> 
> But if true, Tivo's days are numbered. Even if they get $200 mil from Charlie, if Charlie can use the new code without legal implications, then no one else would feel compelled to deal with Tivo, in fact DirecTV seemed to have already given Tivo the finger.
> 
> Not only that Charlies also said they now have pretty much patented every codes under the sun themselves, that could severely restrict anyone else who tries to develop DVR functions, including Tivo itself.


Don't see how Tivo's days are numbered as Tivo has a foot hold now in cable.

Wonder if Dish's DVRs violate any patents that Replay TV has?


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## Lord Vader

mark722 said:


> Dish is not bluffing when they say they have a workaround solution for the Tivo patent.


And Vonage wasn't bluffing when _they _said they had a workaround for the Verizon patent, yet guess who won that case?


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## Earl Bonovich

Jhon69 said:


> Don't see how Tivo's days are numbered as Tivo has a foot hold now in cable.


Right now... I would call it a couple toes... maybe a single foot, in shallow depth. ComcastTiVo is only in one market, 3 years after the process started.

Let's see how rapidly it spreads to their entire customer base, if it ever does.

And there hasn't been any updates to the progress of the COX TiVo in sometime now...



Jhon69 said:


> Wonder if Dish's DVRs violate any patents that Replay TV has?


It is certainly possible... and it is possible that DirecTV's units violate something that Dish has applied for... or maybe DirecTV has applied for a patent that Dish's violates...

Hence why the patent "process" has gotten way out of control.
Everyone patents every little thing... even if it is trivial... and thus the "bigger" things that are what patents are truely supposed to protect... get bogged down... lost, can't find them... then issues arrise 15 years later.


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## mark722

Lord Vader said:


> And Vonage wasn't bluffing when _they _said they had a workaround for the Verizon patent, yet guess who won that case?


Keep your helmet on Vader, as I said before, this will be for the courts to decide. Constantly using the Vonage / Verizon case as a predictor of how this case will turn out is getting old.


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## Lord Vader

But nonetheless apropo considering the claims being made by the defendants in both cases.


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## HobbyTalk

Lord Vader said:


> But nonetheless apropo considering the claims being made by the defendants in both cases.


What about the 100s of other cases where what they said were true? Not that I have the time to look any of them up but it is pretty imaginable that there have been 100s (if not 1000s) of cases where changes were make to items so they no longer violate a patent. So we have your one case or 100s of others.


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## Jhon69

Earl Bonovich said:


> Right now... I would call it a couple toes... maybe a single foot, in shallow depth. ComcastTiVo is only in one market, 3 years after the process started.
> 
> Let's see how rapidly it spreads to their entire customer base, if it ever does.
> 
> And there hasn't been any updates to the progress of the COX TiVo in sometime now...
> 
> It is certainly possible... and it is possible that DirecTV's units violate something that Dish has applied for... or maybe DirecTV has applied for a patent that Dish's violates...
> 
> Hence why the patent "process" has gotten way out of control.
> Everyone patents every little thing... even if it is trivial... and thus the "bigger" things that are what patents are truely supposed to protect... get bogged down... lost, can't find them... then issues arrise 15 years later.


So all of us won't know until we see on our DVRs"Powered by Tivo/NDS/Replay/Ultimate"?. 
Oh ya and Dish.


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## Lord Vader

HobbyTalk said:


> What about the 100s of other cases where what they said were true? Not that I have the time to look any of them up but it is pretty imaginable that there have been 100s (if not 1000s) of cases where changes were make to items so they no longer violate a patent. So we have your one case or 100s of others.


There was only one case, _TIVO v. Echostar. _DISH won one part of it while TIVO won the rest, with that aspect of it being remanded to the district court.


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## jacmyoung

Again I am going back to my point. If nothing new has developed since my last read, the appeals court had over turned (regardless the reasons behind it) the hardware claim by Tivo, if Tivo wants to continue down that route they must seek a retrial, which can mean another 10 years.

The software claim was upheld, and DISH is seeking relief from the Supreme Court. In the worst case they are asked to pay the fine, and if (again a big if) Charlie was right they now use the new codes that do not voilate Tivo's patent, and since those are NEW codes, likely will not violate Replay codes either, then DISH is standing on a firm legal ground.

My commnet about Tivo's days are numbered was a little dramatic, but think about it, if after all the lengthy trial all Tivo will get is this $200 million one time payment, and DISH will no longer be under the cloud of legal implcation from Tivo, then no one else, including cable will feel compelled to licensing Tivo.

There is no doubt in my mind most companies are reluctant to pay Tivo for the DVR functions, and they are watching this case closely.

Companies trade patents to allow each other to benefit all the time, that can be true between DISH and DirecTV for example, but if Charlie prevails, you can almost bet he will not trade with Tivo in any shape or form. And Charlie can most certainly offer his codes to everyone in order to put Tivo out of business if he wants to, he did not say "better than Tivo" for no reason.

Hence my dramatic comment about Tivo's days are numbered.


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## Greg Bimson

jacmyoung said:


> Again I am going back to my point. If nothing new has developed since my last read, the appeals court had over turned (regardless the reasons behind it) the hardware claim by Tivo, if Tivo wants to continue down that route they must seek a retrial, which can mean another 10 years.


Not necessarily 10 years. Not necessarily 10 minutes. The Court of Appeals basically remanded the hardware claims back to the District Court. The judge can have the hardware placed on a retrial course, or could rule immediately on a request to find Dish Network and Echostar guilty on the new interpretation of the hardware claims. And this is especially possible since Echostar and Dish Network will have to open up the hood on the software to see if it still infringes on TiVo's patent.


jacmyoung said:


> The software claim was upheld, and DISH is seeking relief from the Supreme Court. In the worst case they are asked to pay the fine, and if (again a big if) Charlie was right they now use the new codes that do not voilate Tivo's patent, and since those are NEW codes, likely will not violate Replay codes either, then DISH is standing on a firm legal ground.


Dish Network and Echostar have yet to ask the Supreme Court for relief. The companies are asking for an extension to file an _en banc_ request back to the same Court of Appeals that overturned the hardware claims. No other appeal has been sought at this time. And once the case heads back to the District Court, the judge will have to examine the stayed injunction, to see whether or not Dish Network and Echostar do have a work around of the patent, or whether or not TiVo can request that all DVR's made since the lawsuit violate that work around.


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## BNUMM

Dish only has a Patent application. The Patent has to be approved before it can be used as evidence in court. I am sure there will be challenges to the Patent application.


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## jacmyoung

Greg Bimson said:


> Not necessarily 10 years. Not necessarily 10 minutes. The Court of Appeals basically remanded the hardware claims back to the District Court. The judge can have the hardware placed on a retrial course, or could rule immediately on a request to find Dish Network and Echostar guilty on the new interpretation of the hardware claims. And this is especially possible since Echostar and Dish Network will have to open up the hood on the software to see if it still infringes on TiVo's patent...


The way I read the appeals court opinion was the hardware jury verdict could not withstand based on the instructions given by the judge, that means that judge can not simply provide new instructions for a new interpretation, and even if he does so, he will be on a very shaky ground due to technicality, but I am no lawyer so can't say for sure. I always thought a jury's verdict should be either taking in or thrown out.



Greg Bimson said:


> Dish Network and Echostar have yet to ask the Supreme Court for relief. The companies are asking for an extension to file an _en banc_ request back to the same Court of Appeals that overturned the hardware claims. No other appeal has been sought at this time. And once the case heads back to the District Court, the judge will have to examine the stayed injunction, to see whether or not Dish Network and Echostar do have a work around of the patent, or whether or not TiVo can request that all DVR's made since the lawsuit violate that work around.


That is why I said all eyes will be on whether Charlie did what he think he did, that his new codes no longer violate the Tivo patent. If so then the best Tivo can hope for is $200 million. It has nothing to do with if DISH simply filed an application but has not been accepted yet. As long as in the court's opinion those patents described in the application are valid, DISH is cleared.


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## jacmyoung

BNUMM said:


> Dish only has a Patent application. The Patent has to be approved before it can be used as evidence in court. I am sure there will be challenges to the Patent application.


I don't think so. The standard of proof is much lower if DISH is only stating their codes no longer violate the Tivo patent. Now if DISH is suing Tivo for violating DISH's new codes, then you are correct.


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## BNUMM

Mark 722 linked the Patent Application as proof that Dish was no longer violating the Tivo Patent. I was just pointing out that the application alone was not evidence that Dish was no longer violating the Tivo Patent. If Dish presents evidence that it has new software that no longer violates the Tivo Patent then their Patent Application is not necessary as evidence.


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## jacmyoung

BNUMM said:


> Mark 722 linked the Patent Application as proof that Dish was no longer violating the Tivo Patent. I was just pointing out that the application alone was not evidence that Dish was no longer violating the Tivo Patent. If Dish presents evidence that it has new software that no longer violates the Tivo Patent then their Patent Application is not necessary as evidence.


He might have done that and if so you have a good point.

If one reads that application though, it is immediately clear it was to make a point that the new DISH method is different from the earlier ones, especially that of Tivo.

What appeared to me a big stretch about this application was it claims the new method is more efficient than that of Tivo, by means of some abstract statistical or probability methods post storage, instead of Tivo's physical indexing prior to storage. The goal of such claim seems to demonstrate that it deserves its own patent.

When in fact this new method may just be less efficient than the earlier ones including that of Tivo because the so called statistical or probability search method appear to need more computing power. Of course such higher computing power demand can easily be managed by today's DVR's such as 622 and 722. My understanding of the Tivo indexing method (time warp if I recall) was that it was developed to get around the lack of CPU power in earlier DVR products.

That however does not disprove that the new method is different than the Tivo code and therefore not in violation of Tivo's patent. DISH might have insisted the new method is more efficient so it has merit as a patent application, when its true intent was to demonstrate that the new method is indeed different therefore not in violation of the Tivo code.

My above of course is mostly guess work. Maybe if I have enough time and brain stability to read through the entire thing, I would be able to form some opinion whether this application is total BS or is indeed a solid evidence for the court.


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## James Long

A patent application is a patent application ... it makes it obvious that DISH believes that their new way of operating a DVR is unique enough that it does not fall under the previous patent. But what a patent application seeks is a patent.

The "Time Warp" code was the major sticking point that EchoStar lost on ... and, as promised EchoStar no longer uses that code. DISH has their own patent pending code.

If the patent office grants this new patent it will prove that they are no longer in violation ... but that is not the immediate problem. The immediate problem for EchoStar is making sure that the armed marshals with guns are not sent --- that when the injunction is re-issued it applies only to the software claims (no more "Time Warp") and when the hardware claims are re-decided that EchoStar wins.


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## Greg Bimson

James Long said:


> A patent application is a patent application ... it makes it obvious that DISH believes that their new way of operating a DVR is unique enough that it does not fall under the previous patent. But what a patent application seeks is a patent.


Let's get back to basics here. Dish Network has filed an application for a patent because they believe they have an efficient method or process that no one thought of before. However, it is still entirely possible the patent application is already based on prior art. This patent still may have nothing to do with the TiVo patent. Also, it still doesn't prove that Dish Network and Echostar are no longer using the Time Warp patent, as jacmyoung points out.


James Long said:


> The "Time Warp" code was the major sticking point that EchoStar lost on ... and, as promised EchoStar no longer uses that code. DISH has their own patent pending code.


Let's not put the cart before the horse here. While I can agree that Dish Network may no longer be using the code that infringed on the TiVo patent, I cannot say for a fact the new code doesn't still infringe on the Time Warp patent. That will be up to the judge to decide.


James Long said:


> If the patent office grants this new patent it will prove that they are no longer in violation ...


Not necessarily true. If this patent is granted, it only means the process is unique enough to warrant protection to Echostar and Dish Network. However, what if one has to use the Time Warp patent in order to use the Echostar/Dish Network patent? We don't know if the patent is mutually exclusive of TiVo's Time Warp patent, yet.

That is why I said a while ago the sparks will only start flying once the case is remanded back to District Court.


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## jacmyoung

Alright then, can anyone tell us what the f%^& this "time Warp" thing is all about, in layman's term?


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## Greg Bimson

jacmyoung said:


> Alright then, can anyone tell us what the f%^& this "time Warp" thing is all about, in layman's term?


The ability to record one or more programs while watching a previous recording, by offloading the I/O processing cycles usually done by a CPU to the dreaded "Barton Media Switch". Because the hardware claims are out, it is the software that supports the process of offloading which Echostar and Dish Network were found infringing on the TiVo Time Warp patent. If the software was not materially changed so that it no longer infringes upon one software claim of the Time Warp patent, Dish Network and Echostar will still be considered infringing.

I'm no expert in this, either. And if the _en banc_ appeal is turned down later this month (which usually happens), the case will go back to the District Court and experts will testify, yadda yadda yadda...

You get the picture.

The lines in the sand are drawn again. CEO Ergen says they have a work-around on the software. CEO Rogers says there's no way. Someone is waiting for a smackdown.


----------



## Richard King

IF Echostar/Dish has, in fact, done a work around and is granted a new patent, watch for Echostar Corp to begin marketing DVR's on the shelves of major retailers and internet marketplaces that will compete directly with Tivo. Of course they will then be able to tout the fact that they have a "better" DVR than Tivo. This IS a make or break situation for Tivo (and to a lesser extent, Dish). Anticipation of this "new product" could be one of the major reasons for the split up of the company. If they develop a product that is usable on cable, over the air, and, who knows, maybe DirecTv, it is much more likely to find a willing marketplace as an Echostar product with "no affilliation" to Dish Network than if it were a Dish Network product.


----------



## harsh

Richard King said:


> IF Echostar/Dish has, in fact, done a work around and is granted a new patent, watch for Echostar Corp to begin marketing DVR's on the shelves of major retailers and internet marketplaces that will compete directly with Tivo.


They've already fired that warning shot with the announcement of the TR50. For quite a while TiVo forsaked the OTA crowd by labelling the Series 2 as being "CATV only".

The question that remains is how (and how well) Echostar implements the guide.

Before anyone gets carried away suggesting that they will have to compete with the HDD/DVD recorders, I would point out that many of those no longer feature OTA tuners.


----------



## jacmyoung

Greg Bimson said:


> The ability to record one or more programs while watching a previous recording, by offloading the I/O processing cycles usually done by a CPU to the dreaded "Barton Media Switch". Because the hardware claims are out, it is the software that supports the process of offloading which Echostar and Dish Network were found infringing on the TiVo Time Warp patent. If the software was not materially changed so that it no longer infringes upon one software claim of the Time Warp patent, Dish Network and Echostar will still be considered infringing.
> 
> I'm no expert in this, either. And if the _en banc_ appeal is turned down later this month (which usually happens), the case will go back to the District Court and experts will testify, yadda yadda yadda...
> 
> You get the picture.
> 
> The lines in the sand are drawn again. CEO Ergen says they have a work-around on the software. CEO Rogers says there's no way. Someone is waiting for a smackdown.


I think you are correct in everything said above.

I have risked a brain freeze to read through the entire application. And it was clear to me the intent of the application is to demonstrate a work around of the "pre-storage indexing" and the use of the "Barton Media Switch" (two combined to be called "time warp", I could be totally wrong on this) patented by Tivo to achieve this thing called "recording while watching a previous recording."

The DISH code as they explained does not use the "pre-storage indexing" therefore has no need to employ the "Barton Media Switch" for processing of the index file during DVR "trick play".

The point of contention is Tivo CEO said after his lawyers and engineers read DISH's claim they came to the conclusion that such is impossible. And to prove it one way or the other should be simple, all you need to do is ask DISH to provide a copy of the code, and examine it to be sure there is no elements in the code that employ "pre-storage indexing" and then make sure such code is indeed loaded into the DISH DVR, and hand the judge the remote and ask him to do all the DVR trick plays, some training may be required and possibly some really jaw dropping TV programming content may be offered to keep everyone interested and pants wet during the demonstration.

If the DISH DVR still does everything a DVR supposed to do, then Tivo's Rogers should go pound the sand immediately, or otherwise Charlie should kiss Rogers' a$% and sign a lifetime agreement with Tivo.


----------



## Herdfan

Greg Bimson said:


> The lines in the sand are drawn again. CEO Ergen says they have a work-around on the software. CEO Rogers says there's no way. Someone is waiting for a smackdown.


Charlie is playing with fire here. Never go head to head with with someone who has less to lose when you are already on shaky ground especially when the judge doesn't seem to like you.


----------



## Herdfan

Lord Vader said:


> There was only one case, _TIVO v. Echostar. _DISH won one part of it while TIVO won the rest, with that aspect of it being remanded to the district court.


DISH didn't win part of it. The Appeals Court said the judge used the wrong standard. So it goes back for a retrial. The score is back to 0-0 and DISH could just as easily lose based on the new standard.


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## HobbyTalk

Or they could win. No one here knows enough to say which could happen.


----------



## jacmyoung

HobbyTalk said:


> Or they could win. No one here knows enough to say which could happen.


And time is on DISH's side if a retrial is ordered. Tivo does not have another 10 years to burn, but DISH can continue to polish their DVR code to clear the violation.


----------



## dgordo

jacmyoung said:


> And time is on DISH's side if a retrial is ordered. Tivo does not have another 10 years to burn, but DISH can continue to polish their DVR code to clear the violation.


Tivo doesn't have 10 years but one way or the other this will be over with much sooner than that. Of course, it may be the money Dish owes Tivo so far that keeps Tivo going long enough to keep the suit going.


----------



## jacmyoung

dgordo said:


> ... Of course, it may be the money Dish owes Tivo so far that keeps Tivo going long enough to keep the suit going.


How much do you want to bet this is NOT what keeps Tivo going?


----------



## dgordo

jacmyoung said:


> How much do you want to bet this is NOT what keeps Tivo going?


Long term?

I think it is unlikely that Tivo as they exist today will still exist in 10 years.


----------



## James Long

Greg Bimson said:


> James Long said:
> 
> 
> 
> If the patent office grants this new patent it will prove that they are no longer in violation ...
> 
> 
> 
> We don't know if the patent is mutually exclusive of TiVo's Time Warp patent, yet.
> 
> That is why I said a while ago the sparks will only start flying once the case is remanded back to District Court.
Click to expand...

The patent claims is that it IS independent of Time Warp ... how can the patent office grant an application with such a claim if it is not true?

http://appft1.uspto.gov/netacgi/nph...&S1=20080056682&OS=20080056682&RS=20080056682

[0006]*A later recording system, developed at TiVo Inc. and described in the specification of U.S. Pat. No. 6,233,389, to Barton, et al., also employed a specific type of intelligent parsing/indexing during input and prior to storage of the broadcast information on a storage device.* The system described in that patent employs a special circuit called a "Media Switch" that generates indices and fills separate appropriate buffers with specific data. The disclosed "Media Switch" mediates between the central processing unit (CPU), storage device, and memory and thus off-loads the intensive index-based processing of the input stream from the CPU to a separate device. Also in the Barton, et al., system, a software "source object" converts the data into data streams and fills a buffer that is assigned by a central software "transform object" that is responsible for overall control of buffer assignment. The software "transform object" then writes the data to a hard disk. The software "transform object" is also responsible for reading data from the hard disk, filling buffers with the data, and assigning the filled buffers to a software "sink object" for later decoding and playback.

[0008]*The methods and systems described herein improve upon prior methods* and systems for receiving broadcast data *by eliminating* unnecessary *parsing, separating, transforming or other processing functions before program data is stored on a storage device*, and by utilizing instead statistical and probabilistic algorithms to search for and keep track of the program data when presenting such data from the storage device.​They are seeking a patent on a DVR method that does not use Tivo's patent.


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## jacmyoung

dgordo said:


> Long term?
> 
> I think it is unlikely that Tivo as they exist today will still exist in 10 years.


We have no disagreement then.

That is why Tivo is not going after the $200 million, their long term prospect depends completely on the total success of this lawsuit, meaning they have to get DISH to agree to license their software, then have everyone else follow suit, in order to succeed, or else go bust.

I found it hard to believe there is simply no way of makeing a functional DVR without this "time warp" patent. Because the whole idea behind it was that at the time CPU's used in the DVR boxes had limited power, and Tivo's idea allowed the DVR trick plays to work by off load some of the tasks to other components.

The advancement of CPU computing power in the past ten years (it is actually more like 100 years in the computer world of progress) means such gimmik is no longer needed. Now it may not be DISH that will be the one to break the news to Tivo, but for Tivo somehow continue to convince itself their 10-year old patent will be the key for all future DVR's and therefore rule the world.

It simply flies in the face of logic.


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## DJ Lon

Mar 17, 8:47 PM (ET)

By AMANDA FEHD

SAN JOSE, Calif. (AP) - Dish Network Corp. (DISH) on Monday asked a federal appeals court to rehear a patent dispute with TiVo Inc. (TIVO), saying the court's earlier ruling in TiVo's favor relied on inaccurate testimony from a TiVo witness.

...

In a petition filed Monday, Dish said an expert witness who testified for TiVo contradicted himself and that means the software infringement verdict wasn't "supported by substantial evidence."

More at source: http://apnews.myway.com//article/20080318/D8VFH3HO0.html


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## Earl Bonovich

What's the phrase.... when it rains it pours.

Interesting angle... you think this would have been presented at the previous hearings


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## davemayo

These types of petitions to the Federal Circuit almost NEVER succeed.

It is very rare to successfully petition for panel rehearing or rehearing en banc.


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## Curtis52

Earl Bonovich said:


> Interesting angle... you think this would have been presented at the previous hearings


From the appeal ruling:

"EchoStar points out that TiVo's expert, Dr. Gibson, did not refer to the temporary 
data storage buffer in the course of his general characterization of the components of 
the physical data source in the EchoStar DVRs. Instead, he stated that "the physical 
data source is on the Broadcom chip," and he identified a number of circuits on that chip 
on which the physical data source "relies." In that context, he did not specifically state 
that the temporary data storage buffer to which the data was pushed was part of the 
physical data source or part of the Broadcom chip. EchoStar's experts, Drs. Rhyne and 
Johnson, testified that the data is "pushed" out of the elements on the Broadcom chip to 
the temporary data storage buffer adjoining, but separate from, the Broadcom chip. 
Even though EchoStar does not contest that the data is extracted from the temporary 
data storage buffer, it contends that the temporary storage buffer is not part of the 
physical data source and therefore that the data is not extracted from the physical data 
source. Dr. Gibson also testified, however, that the Ioctl command extracts the video 
and audio data from the "physical data source." Under EchoStar's reasoning, his two 
statements, made one after the other, are in conflict. Even assuming a conflict in his 
testimony, however, the jury was entitled to weigh the evidence and find that Dr. 
Gibson's failure to specifically identify the temporary data storage buffer as part of the 
physical data source is outweighed by his much clearer statement that the Ioctl 
command extracts data from the physical data source, which necessarily includes the 
adjoining temporary data storage buffer. "

Assuming this is the same "conflict" Dish cites in the rehearing request, the appeals court has already considered the argument.


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## dgordo

This is a hail mary and if it involves the testimony of Gibson this will really piss of the appeals court.


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## jacmyoung

dgordo said:


> This is a hail mary and if it involves the testimony of Gibson this will really piss of the appeals court.


Of course but DOES it? Or even if it does, will there be anything new?


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## dgordo

jacmyoung said:


> Of course but DOES it? Or even if it does, will there be anything new?


Yes, it does. Nothing new here.

"Dish, in a filing Monday, said one of TiVo's expert witnesses contradicted himself and argued that the infringement verdict was not "supported by substantial evidence."

EchoStar argued that a TiVo expert witness, Jerry Gibson, testified at one point that a Broadcom chip in Dish's digital video recorder included software that extracted audio and video from a physical data source (a process he said pertained to the Time Warp patent).

At another point, however, Gibson identified the Dish DVR's "Ioctl command" as the software that extracted audio and video - a command, according to Dish, that's handled by a separate data-buffering memory chip, not the Broadcom chip.

"The two parts of Dr. Gibson's testimony the [appeals court] panel considered are thus in conflict," Dish said in its petition."


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## jacmyoung

dgordo said:


> Yes, it does. Nothing new here.
> 
> "Dish, in a filing Monday, said one of TiVo's expert witnesses contradicted himself and argued that the infringement verdict was not "supported by substantial evidence."
> 
> EchoStar argued that a TiVo expert witness, Jerry Gibson, testified at one point that a Broadcom chip in Dish's digital video recorder included software that extracted audio and video from a physical data source (a process he said pertained to the Time Warp patent).
> 
> At another point, however, Gibson identified the Dish DVR's "Ioctl command" as the software that extracted audio and video - a command, according to Dish, that's handled by a separate data-buffering memory chip, not the Broadcom chip.
> 
> "The two parts of Dr. Gibson's testimony the [appeals court] panel considered are thus in conflict," Dish said in its petition."


Let's assume this is DISH's another attempt to drag things a little longer, it seemed everyone on the Tivo side is gleaming from the fact Tivo will get the 150 million.

What the Tivo folks must look forward to is to prove that DISH still has not find a way to get around the Tivo patent, therefore DISH must license Tivo' patent or shut off all DVR's. If Tivo can't do that its days are numbered.


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## gully_foyle

jacmyoung said:


> The software claim was upheld, and DISH is seeking relief from the Supreme Court. In the worst case they are asked to pay the fine, and if (again a big if) Charlie was right they now use the new codes that do not voilate Tivo's patent, and since those are NEW codes, likely will not violate Replay codes either, then DISH is standing on a firm legal ground.


And if the new software is also infringing, DiSH gets eaten alive by the penalties for intentional infringement. Maximum assigned royalties, then tripled. And, no, TiVo will not have to go 10 years again to get that.


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## Curtis52

jacmyoung said:


> What the Tivo folks must look forward to is to prove that DISH still has not find a way to get around the Tivo patent, therefore DISH must license Tivo' patent or shut off all DVR's.


TiVo doesn't have to prove anything to shut off most of the DVRs. Here is what the injunction says:

"Defendants are hereby FURTHER ORDERED to, within thirty (30) days of the issuance of this order, disable the DVR functionality (ie. 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.

Infringing products: DP-501, DP-508, DP-510, DP-522, DP-625, DP-721, DP-921, and DP-942."

If Dish doesn't also shut off the newer models, there will be a contempt of court hearing where Dish will have an opportunity to explain why they haven't turned them off.


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## jacmyoung

Curtis52 said:


> TiVo doesn't have to prove anything to shut off most of the DVRs. Here is what the injunction says:
> 
> "Defendants are hereby FURTHER ORDERED to, within thirty (30) days of the issuance of this order, disable the DVR functionality (ie. 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.
> 
> Infringing products: DP-501, DP-508, DP-510, DP-522, DP-625, DP-721, DP-921, and DP-942."
> 
> If Dish doesn't also shut off the newer models, there will be a contempt of court hearing where Dish will have an opportunity to explain why they haven't turned them off.


Which is why I think DISH is trying to drag on. The DVR's in question are older models, DISH needs time to replace them with the newer ones that does not infringe on the patent.

Anyone has an idea now many of the above DVR's are out there NOW? I know 921's and 942's are all history. Keep in mind that even if DISH must pay, they can still claim the new software in the above older models are now non-infringing, therefore drag out a little longer still.

The goal obviously is to buy more time for replacement.

Of course all these hinges on whether they do in fact have a work around on the patent.

As I said earier, the question is not if someone can find a way to get around the Tivo patent, rather when. The Tivo patent existed at a time when the CPU's in the old DVR's had limited power, the "time warp" thing was to get around such limitation. Today's CPU's are light years ahead of those made ten years ago. So the Tivo patent can be easily out-done.


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## Curtis52

jacmyoung said:


> Keep in mind that even if DISH must pay, they can still claim the new software in the above older models are now non-infringing, therefore drag out a little longer still.


The injunction doesn't allow any wiggle room. Words saying "If you do X, Y, or Z you don't have to shut down the DVRs" aren't there.


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## jacmyoung

Curtis52 said:


> The injunction doesn't allow any wiggle room. Words saying "If you do X, Y, or Z you don't have to shut down the DVRs" aren't there.


The injuction said this should have been done a long time ago, is it happening?

BTW, just to further demonstrate how the replacements are planned to dicth Tivo. DirecTV has stated starting this Q2, they will begin to phase out all SDDVR's, and provide only HDDVR's even if you don't need HD. The newer models are likely not dependent on that Tivo patent as I explained above. That in conjunction with the buying of Replay, it is very clear Tivo's days with DirecTV is already numbered.

DISH must have a similar plan too, the only difference is DirecTV bought time when they signed an agreement with Tivo two years ago, DISH must buy more time by dragging the feet on this lawsuit.


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## Curtis52

jacmyoung said:


> The injuction said this should have been done a long time ago, is it happening?


No. Against Judge Folson's wishes, the appeals court stayed the injunction. There won't be further stays. The appeals court has said their stay will dissolve when the appeal ruling becomes final.

"The district court's injunction was stayed during the course of these proceedings. 
The stay that was issued pending appeal will dissolve when this appeal becomes final. "


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## jacmyoung

Curtis52 said:


> No. Against Judge Folson's wishes, the appeals court stayed the injunction. There won't be further stays. The appeals court has said their stay will dissolve when the appeal ruling becomes final.
> 
> "The district court's injunction was stayed during the course of these proceedings.
> The stay that was issued pending appeal will dissolve when this appeal becomes final. "


Even by Rogers of Tivo best estimate it will be another three months. That was not considering the latest petition.

Let's not ignore those facts I laid out above. Modern DVR's do not need the Tivo pattent to function. In the worst case scenario, DISH will have to move fast to replace those older DVR's.

If DirecTV can manage to get rid of Tivo, do anyoen honestly believe DISH will be forced to pay Tivo in the long term?


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## James Long

jacmyoung said:


> If DirecTV can manage to get rid of Tivo, do anyoen honestly believe DISH will be forced to pay Tivo in the long term?


Only for the past.

IMHO: DISH will pick a day, claim that their software did not violate after that date and not pay a penny after that date with a "see you in court!" response to Tivo's complaints.

Other than that: Armed marshals, with guns. Enough said!


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## Curtis52

jacmyoung said:


> Even by Rogers of Tivo best estimate it will be another three months. That was not considering the latest petition.


Of course Rogers considered it. The whole world knew that Dish was going to submit a request for rehearing on March 17. He has always been very conservative in his estimates. The rehearing request will die by default in 2-3 weeks or sooner if the judges bother to vote on it.


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## Earl Bonovich

jacmyoung said:


> BTW, just to further demonstrate how the replacements are planned to dicth Tivo. DirecTV has stated starting this Q2, they will begin to phase out all SDDVR's, and provide only HDDVR's even if you don't need HD. The newer models are likely not dependent on that Tivo patent as I explained above. That in conjunction with the buying of Replay, it is very clear Tivo's days with DirecTV is already numbered.
> .


That is not entirly true.

DirecTV has stated that they will start to phase out the SD-DVR's you see today, from new installations... they are not going to replace existing units.... They will be going to a model that will be MPEG-4 that can be upgraded to HD... (so basically an HD one with the HD disabled)... and eventually just a single unit model by 2010.

There has been no documentation or anything stating that DirecTV current DVR platforms are dependent on TiVo's patent that you are referring to.

You can see their actuall comments and plans on the Investor's page, there is a link to the PDF and the audio webcast of Romulo Pontual CTO, explaining their 3 year plan.

TiVo's day's with DirecTV where number a LONG LONG time ago...
The purchase of the Replay technology simply adds to the fact that TiVo/DirecTV is not going to happen again.


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## jacmyoung

Earl Bonovich said:


> That is not entirly true.
> 
> DirecTV has stated that they will start to phase out the SD-DVR's you see today, from new installations... they are not going to replace existing units.... They will be going to a model that will be MPEG-4 that can be upgraded to HD... (so basically an HD one with the HD disabled)... and eventually just a single unit model by 2010.
> 
> There has been no documentation or anything stating that DirecTV current DVR platforms are dependent on TiVo's patent that you are referring to.
> 
> You can see their actuall comments and plans on the Investor's page, there is a link to the PDF and the audio webcast of Romulo Pontual CTO, explaining their 3 year plan.
> 
> TiVo's day's with DirecTV where number a LONG LONG time ago...
> The purchase of the Replay technology simply adds to the fact that TiVo/DirecTV is not going to happen again.


I believe they are watching this lawsuit with intense interest, and to begin to phase out the SDDVR's is one way of ensuring Tivo can not do the same to them what they did to DISH.

If the older DirecTV DVR's were not based on the Tivo patent, then there would be no need to sign that agreement with Tivo two years ago basically calling a truce for a specific time period.

Regardless, if we can agree neither DISH nor DirecTV will have anything to do with Tivo, it is a pretty good sign Tivo will disappear sooner or later, at least in the form it seeks to continue today.

I will not give much weight to Tivo's relations with cable companies, when was the last time cable did anyting right?


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## harsh

Earl Bonovich said:


> There has been no documentation or anything stating that DirecTV current DVR platforms are dependent on TiVo's patent that you are referring to.


Perhaps nothing speaking directly to using TiVo technology, but remember the part of their ongoing agreement that consists of TiVo not being able to sue DIRECTV for same. If DIRECTV wasn't concerned about infringing, they probably wouldn't have put that clause in the contract.


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## MIKE0616

Earl Bonovich said:


> What's the phrase.... when it rains it pours.
> 
> Interesting angle... you think this would have been presented at the previous hearings


:beatdeadhorse: <- Crazy Chuckie at it again, not wanting to admit defeat, preferring stock going through the basement, instead. :lol:

I find it interesting that the lawyers are now trying to do a cross-examination of a witness wayyyyyyyyyyyyyyyyyyyyy after the fact. If they had ANY basis, sounds like they should have raised it at the trial.


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## jacmyoung

MIKE0616 said:


> :beatdeadhorse: <- Crazy Chuckie at it again, not wanting to admit defeat, preferring stock going through the basement, instead. :lol:...


Last I checked yesterday DISH stock was the only one up, Tivo was down along with other related stocks. I know this should never be a critical measure but since you used it trying to make a point in a fairly dramatic fashion.


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## MIKE0616

jacmyoung said:


> Last I checked yesterday DISH stock was the only one up, Tivo was down along with other related stocks. I know this should never be a critical measure but since you used it trying to make a point in a fairly dramatic fashion.


Please correct the reporter on this article, then. http://news.yahoo.com/s/usatoday/20080320/tc_usatoday/dishnetworkhasalotofproblemsonitsplate

In particular where he states "Shares in the No. 2 satellite company, formerly known as EchoStar, have plummeted 36% since early November, closing Wednesday at $28.05."

I would think that at least part of the losses can be attributed to the uncertainty (the old FUD factor, as it were) about the TIVO suit.


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## Chinatown

Charlie is worth 10 Billion.....................Just write the check..............and get on with adding HD content............


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## James Long

MIKE0616 said:


> Please correct the reporter on this article, then. http://news.yahoo.com/s/usatoday/20080320/tc_usatoday/dishnetworkhasalotofproblemsonitsplate
> 
> In particular where he states "Shares in the No. 2 satellite company, formerly known as EchoStar, have plummeted 36% since early November, closing Wednesday at $28.05."
> 
> I would think that at least part of the losses can be attributed to the uncertainty (the old FUD factor, as it were) about the TIVO suit.


Perhaps one should also look at the markets in general and similar businesses.

The reporter is too eager to jump to conclusions.


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## jacmyoung

James Long said:


> ...The reporter is too eager to jump to conclusions.


Part of the reason to think that way is because that reporter also attributed the failure of AMC-14 to the demise of DISH's HD LIL plan, when in fact DISH's HD LIL plan is in full speed ahead, as if AMC-14 never existed. Talk about jumping into conclusion.

The stock value as Greg said had a lot to to with the speculative nature of the ATT take over, and also the bad quarterly results back to back. Did Tivo verdict have anything to do with it? Maybe but you can hardly put your finger on it if you look at the stock reactions vs. the timeline on the Tivo suit.


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## James Long

The long battle about how courts operate has outgrown this thread ... please visit the new thread if you would like to read all about it:
Tivo and How Courts Operate (Spin Off)

Let's save this thread for anything new and real coming from the courts ... and not legal speculation. Thanks!

:backtotop


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## MIKE0616

James Long said:


> Perhaps one should also look at the markets in general and similar businesses.
> 
> The reporter is too eager to jump to conclusions.


And some are just in denial.


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## jacmyoung

MIKE0616 said:


> And some are just in denial.


And if so more than likely that reporter is since he did not know the facts before he wrote that piece as I stated earlier.


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## tnsprin

If we are going to use a new thread, then shouldn't this one be unstckied?


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## James Long

The new thread is for the spin-off ... this thread will be left stickied for real news.


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## Greg Bimson

jacmyoung said:


> Part of the reason to think that way is because that reporter also attributed the failure of AMC-14 to the demise of DISH's HD LIL plan, when in fact DISH's HD LIL plan is in full speed ahead, as if AMC-14 never existed. Talk about jumping into conclusion.


But one has to ask, if the Dish Network plan could be implemented without AMC-14, why was Dish Network waiting to launch all of their new HD until after AMC-14 was up?

In other words, why did Dish Network delay what could have been implemented a year or two ago without AMC-14?


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## James Long

DISH apparently wanted to do more there than just host a wing dish HD source. Perhaps even a "one dish" service using 61.5° and possibly 77° and/or 72.5°. Speculation on such is ongoing in other threads (and probably should not be continued in this TiVo thread).

A year ago for the locals I wonder myself ... two years ago for locals or a year ago for national HD I understand. The channels were not there to carry. (Again, another non Tivo topic that could be brought up in other threads.)


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## HobbyTalk

jacmyoung said:


> And if so more than likely that reporter is since he did not know the facts before he wrote that piece as I stated earlier.


If anyone feels an article or report is in error, they should email that paper/magazine and let them know, giveing them the facts and where those facts can be found. I have done this a number of times and the articles have been changed.

The latest was an article that said E* owned AMC-14. I emailed letting them know this was wrong sending them to the ILS web page with the correct information. The next day they changed their article,

So, you can sit at your keyboard and ***** about it or use those keystokes to really do something about it.


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## Paul Secic

MIKE0616 said:


> And some are just in denial.


TIVO is just a ripoff of VCRS INHO


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## Greg Bimson

Paul Secic said:


> TIVO is just a ripoff of VCRS INHO


Because this thread is entitled _TiVo wins injunction reinstement and damages_, a TiVo is not quite a rip-off of a VCR. One doesn't even program them the same way, although you can.

This thread is about TiVo winning the part of the appeal which keeps both the damages and the injunction intact. Let's keep this on topic, please.


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## kev0381

elbodude said:


> True. But...I would love to have Tivo software running on my 622's.
> 
> I can look out my cube window and see Tivo HQ across the freeway. Everytime I see that logo, I recall my Tivo days. Don't get me wrong, I love the 622 as is, but I do miss the Tivo interface.


As dish customer I think that changing the way we program our timers is not fair the interface was not that close and Tivo needs other equipment to work. Where as the dish dvr is a self sustaining product. When they changed the 50x and 510 receivers it made it more difficult to operate. It also caused all kinds of other problems.


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## Curtis52

Tomorrow is the day that denial by default of Echostar's petition for rehearing is expected. If a judge asked for more info from TiVo or whatever it could take longer. If nothing like that happened and no judges expressed interest, the petion dies by default and the case goes back to the district court for damages assessment and injunction enforcement.


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## Herdfan

Tomorrow came and went. Anything?


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## James Long

My DVR still works this morning.


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## dgordo

Although I cant find anything to back it up, I hear the petition for a rehearing has expired.


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## Greg Bimson

Nothing will be done with the stayed injunction until the case heads back to the District Court. Because the case is still "in appeals", it just takes that much longer to get back to District Court. However, if there has been no ruling on the appeal, and it is denied by default, it shouldn't be long before the case is back in District Court.


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## djlong

My Dishplayer lost all 50+ recordings and all timers when I got home this afternoon.


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## Curtis52

"PETITIONS FOR REHEARING AND REHEARING EN BANC

2006-1574	TIVO, INC. v. ECHOSTAR COMMUNICATIONS CORPORATION, ET AL. 
Denied.

http://www.cafc.uscourts.gov/daily.txt


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## Greg Bimson

This leaves the concurrent issues of asking the Supreme Court for an emergency stay, while sending the case back to District Court for the final resolution.


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## James Long

New phase ... please check out the new thread ...

http://www.dbstalk.com/showthread.php?t=125680


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## Lord Vader

I highly doubt SCOTUS would even touch this case, especially with CJ Roberts's new attitude of taking even fewer cases for the Court.


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## Curtis52

The Supreme Court only accepts about 4% of the cases submitted.


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