Dish Network Asks Appeals Court To Rehear TiVo Patent Case

Posted on Monday, March 17, 2008 by MegaZone

Dish Network has petitioned the federal appeals court to rehear their appeal in the TiVo patent dispute. They’re claiming an expert witness who testified for TiVo contradicted himself, and therefore the software infringement verdict was not“supported by substantial evidence.” This doesn’t mean anything just yet, the court court deny the petition, or they could agree to rehear the case. And, if they do, it doesn’t mean the results will change. The saga just continues to drag out. If TiVo manages to prevail again, it will mean a higher reward from Dish as interest continues to accrue.

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  • http://www.blu-raystats.com/NewsLog/ Dave C

    Dish should just admit that they are a pack of cheap thieving bastards and pay what they owe. This is such a blatant case I can’t see what they are hoping to achieve.

  • Ivan

    I can’t say I am surprised. Companies like to fight to the end, for example as a way to compel the other party to settle for less money (especially true with huge jury awards that get reduced on appeal). Or if they are worried about setting a precedent. Heck, ExxonMobil is still fighting over Valdeze compensation and it’s been what, 20 years.

  • kog

    This is SOP for Dish, they’ll fight it in court till they exhaust all possible options. If the opposition goes out of business before it ends all the better for them. Considering how the appeals court ruled, I’d be very surprised if they actually get this appeal to have the case heard in front of the entire appeals court. There’s at least 2 or 3 more legal options left for Dish which can drag this thing out for 2-3 years so Tivo shouldn’t expect that check anytime soon.

  • Jack

    kog,
    You are very wrong on the 2-3 years part. Right now we are at the stage of E* asking the appeals court to reconsidering rehearing the case. It is extremely unlikely that this will be granted. And most likely that the appeals judges will get back with a rejection for rehearing within 1-2 months. At that point the appeal becomes final and the injunction can kick in. E* can request to the supreme court to hear the case, but this doesn’t mean the injunction will be stayed. The injunction is the final bullet. The threat of E having to shut down 4-5M DVR’s is enough for them to kneel down to TiVo and accept to pay ongoing royalites (license fee’s). It is also extremely unlikely that the supreme court would hear this case.

    So it looks like 1-2 months from now it goes back to the district court to hammer out the final settlement number and also to reinstate the injunction. Again, the injunction is what will bring this case to an end.

    Jack

  • http://www.gizmolovers.com/ MegaZone

    Jack,

    Remember, Dish also claims that they’ve already pushed a software update to all of their DVRs in the field which supposedly is NOT infringing, and therefore they claim none of their boxes are subject to the injunction. TiVo, of course, claims that is ‘highly unlikely’. But that’s another thing Dish will fight over and will probably have to go to court.

  • kog

    Jack,

    Dish can ask for a stay of the injunction while they appeal to the Supreme Court. I don’t think the Supreme Court will grant the appeal but again it will chew up time. Eventually this will make its way back to the district court in Texas. At which point they will argue that the injunction is no longer needed because they’ve modified the software. The only way to determine that is to have another hearing. Tivo will try to convince Judge Folsom to still enforce the injunction while waiting for and during the hearing. If he does, Dish can appeal to that decision also. So, there are still quite a few options for Dish to drag this out. I would not expect a speedy conclusion to this. The best that Tivo can hope for in the short term is getting a chunk of that cash that applies to Dish’s past infringement which will barely pay for what Tivo has spent on this case. Tivo has been using some pretty top notch lawyers who command top notch rates.

  • Thomas

    Judge Folsom wouldn’t give Dish an injunction stay during the appeal. He wrote a 14 page opinion turning down their request for a stay. The injunction stay was granted over his objection. He won’t give Dish a stay. Here is what he said in his ruling:
    “Plaintiff faces ongoing irreparable injury as Defendants’ infringement continues. As a relatively new and small company, every day of Defendants’ infringement affects Plaintiff’s business. And, as discussed above, Plaintiff’s primary product, its DVRs, are those with which Defendants’ infringing products directly compete. The harm caused by such infringement weighs heavily in favor of an injunction. Enjoining Defendants will likely cause some harm – but on balance, Defendants will endure less harm than Plaintiff. The infringing products do not form the core of Defendants’ satellite transmission business. And the injunction will not interfere with Defendants’ satellite transmission.”

  • ADIDAIllini

    Seriously. Maybe SNL can do one of their “Seriously” sketches from the news on Charlie and E*.

  • KHL

    Kog

    You have the process wrong and your opinion doesn’t sound very lawyerly. We are now at end game. Petitions for a rehearing enbanc are virtually never granted. No stay will be issued pending the outcome of the petition. Echo has virtually no chance of getting to the USSC on this. When the case goes back to Texas, its all over. Echo has reserved $128 million for damages which they calculate up to the time of their “work around.” E*’s damage calc assumes that post stay damages will be calculated at the same rate as pre-trial damages, no too likely. In addition, the burden of proof is on E* to show their work around doesn’t infringe. If Judge Folsom issues an injunction against E* again to shut down their DVR’s, this order in and of itself is not appealable. Rather the order finding that they are again infringing is appealable. In this round E* will be responsible for Tivo’s legal fees. Also, if the work around is found to still infringe, E* will be subject to treble damages and interest. E* is playing a very dangerous game here. They could very well wind up like RIM if they stay this reckless course. The noose is tightening around their necks and Tivo is about to kick the chair out from underneath their feet. This could become a textbook case in why it is often cheaper to pay the “ticket” than it is to fight to the death. If E* had agreed to license back in 2005 maybe they would have paid Tivo $10mm per year at the very most. Now they’ve blown probably $10mm in legal fees, another $128mm in damages and they will still probably wind up paying licensing fees at a much higher rate. If its so easy to go around Tivo’s patent why hasn’t Apple done with Apple TV? Lack of the DVR feature is killing Apple TV. Its a simple matter, they are scared of Tivo’s IP. It is quite obvious that Apple TV could easily have this feature and some hackers have said that it was deliberately omitted.

    This is a matter of classic game theory and right now Tivo is holding all the chips.

  • Jack

    Well said KHL.