TIVO vs E*

[jacmyoung]

...I'm saying that Tivo made a mistake to attempt to build their entire business model on what appears to be a weak and obviously arguable patent.

Basically, they are attempting to build a castle on the sand. And as much fun as it is for the Tivo faithful to vilify E* throughout all this, we shouldn't just limit the scope of Tivo's problems to just E* here...

.

I disagree. I don't think one can say their "castle" was built on "sand" when E* had just lost $100M to TiVo on an infringement judgment, after even the Supreme Court had rejected E*'s apeal. That is as solid a case as you can even think of.

But, yes there is a but, I will explain in the next post.

 

[jacmyoung]

...I could see Echostar managing to drag this out another 5 years. The patents will expire before Echostar gives up.

While it may appear E* has been trying to drag it out, it is in fact not the case. Each and everyone of E*'s so-called "delay attempts" had some very good purpose, I will explain:

First they succeeded in convincing Judge Folsom that they should not pay TiVo treble damages and attorney fees, even though the jury had found willful infringement.

Then by appealing Judge Folsom's final judgment and the injunction, they succeeded in having the Circuit Court staying the injunction, and pushing the Circuit Court decision back by about one and one half year. This time allowed E* to design around the TiVo's DVR patent. Had they not convinced the appeals court to stay the injunction, they would not have had the opportunity to design around, they would have to first shut off the 4 million DVRs.

The next move was to file a declaratory judgment suit against TiVo in the DE court, the next business day after the 5/30/08 status meeting, when they were sure TiVo was going to press the contempt issue. This move had also succeeded in its first phase:

1) It caught TiVo by surprise. Usually people assume TiVo would first try to prove E* in contempt, then TiVo would try to accuse E*'s new DVRs next, but this E*'s suit denied TiVo's such future attempt.

2) In responding to E*'s surprise move, TiVo made a big mistake, as the DE judge said so himself, instead of trying to move this E*'s new case to the TX court, TiVo boldly motioned the DE court to totally dismiss this E*'s case.

3) In trying to dismiss this new E* case, TiVo made many arguments that are very much related to the current contempt proceeding, and forced the DE judge to respond to each and everyone of those arguments. As I said, the DE judge rebutted all of them, and let his opinions known on 3/31/09. These DE judge's opinions will have some potential long term impact on all the subsequent proceedings.

Now there was another move E* made that could be potentially even more damaging to TiVo. In 10/08, E* also convinced the USPTO to re-examine the validity of the remaining two TiVo's patent claims. Apparrently all this time E* continued to try to research all the past prior patents, and finally discovered that there were two prior patents, when combined together, can invalidate TiVo's current software patent claims.

If E* ultimately succeeds in the re-examination attempt, no one will fear TiVo's threat anymore, regardless when TiVo's patent may expire.

You see, E* did not just try to simply delay the process, each and eveyone of their "delay tactics" had a clear objective, and they have been for the most part moving along according to the plan.

 

[vampz26]

.

I disagree. I don't think one can say their "castle" was built on "sand" when E* had just lost $100M to TiVo on an infringement judgment, after even the Supreme Court had rejected E*'s apeal. That is as solid a case as you can even think of.

But, yes there is a but, I will explain in the next post.

You know, you can go through the peaks and valleys of this whole case to pretty much prove or disprove anything at this point, but I don't think you quite got what I was saying...

Tivo is trying to build a licensing business around a patent that is proving itself to be highly challengeable. I mean, if all Tivo wants to do at this point is sit back and get paid, and whether or not they win or lose, are they prepared to do battle like this EVERY time somebody out there feels they've built a better mousetrap? There will be others...

I said years ago that this thing was going to get litigated to death, and it IS getting litigated to death.

 

[jacmyoung]

...I said years ago that this thing was going to get litigated to death, and it IS getting litigated to death.

You said so because you knew TiVo's case was built on sand, or you said so because you knew Charlie would fight all the way?

Because if you knew TiVo's case was built on sand, keep in mind that it was not, the jury found E* willfully infringed, and all the way to the Supreme Court the finding was upheld.

Now you may be right that had someone fought this case all the way, TiVo's patent could be eventually defeated, but did you anticipate anyone would try to fight all the way?

I had a story about this, right after Charlie lost the jury verdict and was handed down the final judgment, Forgent sued E*, D* and Time Warner in that same TX court for a similar DVR infringement, both D* and TW settled with Forgent right before the jury trial for $8M and $20M each, respectively.

Charlie, after just having lost one case big time, used the same lawyers, and managed to use a different strategy to convince the jury to throw the Forgent case out of the window. Had D* and TW only went along with Charlie they would not have to pay the settlement, but they did, and that is what most companies do, they settle, and you would never have known Forgent's case would be thrown out, had Charlie not fought it rather settled also.

The point is, Charlie is a rare breed, without him, others would have just liscensed TiVo's patent, in fact they did, both D*, Comcast and Cox did license TiVo's patent. No one would have even tried to invalidate TiVo's patent.

Unfortunately TiVo ran into Charlie.

And BTW, Charlie did not just fight for the sake of fighting to get here. It was a very tough fight, along the way any missstep would have doomed his fight, as I demonstrated above, a lot of work was put into this whole fight to turn the tide one step at a time.

Rarely had the history played this way before, and therefore I suspect you did not have such foresight to predict this to happen from years ago. I doubt even Charlie had predicted it this way, he only had the balls to risk it, that is who he is.

In most cases once the patentees get the infringement verdicts, especially after the appeals court upholds them, people settle, and the patents do not get challenged further, and people go about their own businesses.

 

[vampz26]

You said so because you knew TiVo's case was built on sand, or you said so because you knew Charlie would fight all the way?

Because if you knew TiVo's case was built on sand, keep in mind that it was not, the jury found E* willfully infringed, and all the way to the Supreme Court the finding was upheld.

Now you may be right that had someone fought this case all the way, TiVo's patent could be eventually defeated, but did you anticipate anyone would try to fight all the way?

I had a story about this, right after Charlie lost the jury verdict and was handed down the final judgment, Forgent sued E*, D* and Time Warner in that same TX court for a similar DVR infringement, both D* and TW settled with Forgent right before the jury trial for $8M and $20M each, respectively.

Charlie, after just having lost one case big time, used the same lawyers, and managed to use a different strategy to convince the jury to throw the Forgent case out of the window. Had D* and TW only went along with Charlie they would not have to pay the settlement, but they did, and that is what most companies do, they settle, and you would never have known Forgent's case would be thrown out, had Charlie not fought it rather settled also.

The point is, Charlie is a rare breed, without him, others would have just liscensed TiVo's patent, in fact they did, both D*, Comcast and Cox did license TiVo's patent. No one would have even tried to invalidate TiVo's patent.

Unfortunately TiVo ran into Charlie.

And BTW, Charlie did not just fight for the sake of fighting to get here. It was a very tough fight, along the way any missstep would have doomed his fight, as I demonstrated above, a lot of work was put into this whole fight to turn the tide one step at a time.

Rarely had the history played this way before, and therefore I suspect you did not have such foresight to predict this to happen from years ago. I doubt even Charlie had predicted it this way, he only had the balls to risk it, that is who he is.

In most cases once the patentees get the infringement verdicts, especially after the appeals court upholds them, people settle, and the patents do not get challenged further, and people go about their own businesses.

You know, every time you waste way to many words trying to sound 'smart'. Just....don't...

Now...here is your challenge, speak clearly and concisely, and no doublespeak or nonsense, ok? Lets see if you can do it...

My only point was to pose a simple question: Does Tivo have the stamina to go through this nonsense every time a competitor builds a better mousetrap? Because if they don't, they are in the wrong business if they are looking to cash in on licensing. This patent is obviously refutable on many levels for a case to go on like this one has. Thats the 'sand' I'm referring too...

And as for my prediction, I said in the very beginning that this whole thing was destined to get litigated to death, and so far I've been right.

As for the rest of whatever you said....I don't really read it. Any point worth reading can be said in a few short sentences and doesn't require all the unnecessary verbage. Just keep that in mind when talking to me. Save the faux-courtroom drama for Greg. I personally am not nor have ever been impressed by it...

 

[jacmyoung]

...My only point was to pose a simple question: Does Tivo have the stamina to go through this nonsense every time a competitor builds a better mousetrap? Because if they don't, they are in the wrong business if they are looking to cash in on licensing. This patent is obviously refutable on many levels for a case to go on like this one has. Thats the 'sand' I'm referring too...

To that my response was, not "everytime" a competitor will contest TiVo when TiVo threatens a lawsuit, D* did not, Comcast did not, Cox did not, they all licensed with TiVo, even Time Warner, the supposed most powerful cable legal house, did not, they settled with Forgent for $20M, two weeks before E* defeated Forgent in that jury trial.

So far there is only one person who has been willing to fight the fight with TiVo, therefore the notion that "someone else..." does not apply here. All of them, D*, Comcast, Cox, TM, all of them have DVRs, they all "settled" without a fight.

And as for my prediction, I said in the very beginning that this whole thing was destined to get litigated to death, and so far I've been right.

A simple question, what is your prediction how long this fight will last from now on?

 

[vampz26]

To that my response was, not "everytime" a competitor will contest TiVo when TiVo threatens a lawsuit, D* did not, Comcast did not, Cox did not, they all licensed with TiVo, even Time Warner, the supposed most powerful cable legal house, did not, they settled with Forgent for $20M, two weeks before E* defeated Forgent in that jury trial.

So far there is only one person who has been willing to fight the fight with TiVo, therefore the notion that "someone else..." does not apply here. All of them, D*, Comcast, Cox, TM, all of them have DVRs, they all "settled" without a fight.

I'm talking future state, not current state. The courtcase has exposed a lot of weaknesses, and thus a lot of opportunity.

A simple question, what is your prediction how long this fight will last from now on?

Don't know...I predicted a slow and painful 'to the death' process, and its still on-going as I predicted.

I predict that one day all this trial nonsense...people will just stop talking about it...it will disappear. Just like the supposed breakup of microsoft. Never happened....

...or maybe not...lol.

 

[jacmyoung]

...Don't know...I predicted a slow and painful 'to the death' process, and its still on-going as I predicted...

That is fine. You don't know how long this "to the death" process will last from now on.

But what if both parties settle and end the case? Do you consider that "to the death?"

I am not saying I predict they may settle, just asking if they do settle at some point in the future, will you still call it "to the death?"

 

[tnsprin]

This was their biggest mistake. Of all the companies to sue to start with Echostar was the wrong company. Others would have just settled to end the hassels. I could see Echostar managing to drag this out another 5 years. The patents will expire before Echostar gives up.

Perhaps a mistake. However Echostar was selling, and perhaps still sells/leases, more DVR than anyone else. And DirecTv, Microsoft (Dishplayer), and Replay either had, or soon had. already reached agreements or settlements.

 

[HobbyTalk]

Perhaps a mistake. However Echostar was selling, and perhaps still sells/leases, more DVR than anyone else. And DirecTv, Microsoft (Dishplayer), and Replay either had, or soon had. already reached agreements or settlements.

Don't forget Moto and Moxi who both sell DVRs to cables companies. I would guess those two dwarf Echostar in sells.

 

[vampz26]

That is fine. You don't know how long this "to the death" process will last from now on.

But what if both parties settle and end the case? Do you consider that "to the death?"

I am not saying I predict they may settle, just asking if they do settle at some point in the future, will you still call it "to the death?"

I'm thinking the whole 'to the death' process could hang on even longer than it already has. I don't think E* cares about winning, I think they care about being the last man standing...

...and if they do settle, who knows what that will mean. Could be a form of 'death' for both of them...

 

[jacmyoung]

...I don't think E* cares about winning, I think they care about being the last man standing...

That is your opinion, I disagree, I have just listed all the things E* did after they lost to TiVo two years ago, they did not just try to delay, but each and every one of their steps was aimed to win the next round. And so far things had been unfolding mostly as they planned.

...and if they do settle, who knows what that will mean. Could be a form of 'death' for both of them...

Of course Charlie can settle, he just "settled" with the NFL, when the NFL decided to drop their case against him, and settled to keep the status quo right before the NFL started its lawsuit.

So basically even though they called it a settlement, in reality the NFL lost, Charlie won.

Now I am not saying this will happen, but let's say Charlie is found not in contempt, TiVo decides to drop the case, agrees to say Charlie no longer infringes, in exchange for a settlement which both of them cross-license each others patents. Essentially to work together to make their DVRs the best there can be, and ultimately beat everyone else in the market.

Still think it is a form of "death" for both of them?

 

[Scott Greczkowski]

Guys this thread is too well behaved. I think because of this I am going to need to move it to our regulatory and legislative forum (even though the discussion has nothing to with either topic.)

Oh wait we don't have a forum like that. So I guess carry on.

Happy Easter everyone!

 

[jacmyoung]

Guys this thread is too well behaved. I think because of this I am going to need to move it to our regulatory and legislative forum (even though the discussion has nothing to with either topic.)

Oh wait we don't have a forum like that. So I guess carry on.

Happy Easter everyone!

Waiting for some VIP guests to come over for Easter can be pain in the you know what, thanks for the joke, I have not laughed so hard for a while

Happy Easter!

 

[vampz26]

That is your opinion, I disagree, I have just listed all the things E* did after they lost to TiVo two years ago, they did not just try to delay, but each and every one of their steps was aimed to win the next round. And so far things had been unfolding mostly as they planned.

How is planning to win individual battles not a factor in delaying the outcome of the war?

Dude, seriously....think here...you seem way to focused on minutiae and missing quite a bit in the process...

Of course Charlie can settle, he just "settled" with the NFL, when the NFL decided to drop their case against him, and settled to keep the status quo right before the NFL started its lawsuit.

So basically even though they called it a settlement, in reality the NFL lost, Charlie won.

Now I am not saying this will happen, but let's say Charlie is found not in contempt, TiVo decides to drop the case, agrees to say Charlie no longer infringes, in exchange for a settlement which both of them cross-license each others patents. Essentially to work together to make their DVRs the best there can be, and ultimately beat everyone else in the market.

Still think it is a form of "death" for both of them?

Sure...why not?

Now ask yourself this...your last quote above.

How much of that had any value to the discussion? Lot of fluff just to say, "sure, why not"...lol...

wasting words = bad.
'what if' games = bad.

"what if" games are just bogus attempts at trying to pass of imaginary scenarios as real ones...lol.

Stick with reality...than we can talk...

 

[DishSubLA]

Perhaps a mistake. However Echostar was selling, and perhaps still sells/leases, more DVR than anyone else. And DirecTv, Microsoft (Dishplayer), and Replay either had, or soon had. already reached agreements or settlements.

This is precisely why Tivo sued Echostar, because if they could, in the end, win against the largest DVR provider, Tivo believed they would have incredible leverage with EVERYONE else, all cable, satellite, phone and FiOS provider. They would all be willing to settle than take a risk at losing if Echostar fails. Tivo would then approach all providers and say, "pay us our licensing fees or we will sue. Look what happened to Echostar."

Will Tivo still be in business by the time this is come to a conclusion? We shall see.

 

[jacmyoung]

How is planning to win individual battles ...

I never said they did not want to delay, rather disagreed with what you said they did not care about winning, now you at least agreed they did care to win individual battles. I will add that the goal of winning individual battles is so, ultimately they can win.

Dude, seriously....think here...you seem way to focused on minutiae and missing quite a bit in the process...

I think Scott was somewhat very skillful in saying, let's be nice We had gone through this type of things before, you know how they always ended.

..."what if" games are just bogus attempts at trying to pass of imaginary scenarios as real ones...lol.

Stick with reality...than we can talk...

As I said, I did not predict it that way, only that such possibility does exist. I have seen settlements more surprising, bed fellows more strange than E* and TiVo, and the question is, if that should happen, can you still call such settlement a "death" for both? Because you said, any settlement would likely be death for both.

You do not have to answer it if you do not like the question, as far as sticking to reality, if you only read our posts, I have stated more facts and reality than you have ever tried to.

The only thing you have said so far is, you have predicted years ago this case would be tried to death, and now it is proven you were right, but as I asked you how long did you think this case would be fought from now on, you said you did not know.

What happened? You were so good a few years ago making such difficult prediction, why not make another one now? How many years do you think this case will go on, so this many years from now you may come back and say, hey I told you so, not once, but twice

 

[jacmyoung]

This is precisely why Tivo sued Echostar, because if they could, in the end, win against the largest DVR provider, Tivo believed they would have incredible leverage with EVERYONE else, all cable, satellite, phone and FiOS provider. They would all be willing to settle than take a risk at losing if Echostar fails. Tivo would then approach all providers and say, "pay us our licensing fees or we will sue. Look what happened to Echostar."

Will Tivo still be in business by the time this is come to a conclusion? We shall see.

The most important reason for TiVo to decide to sue E* was TiVo did have a very strong case against E* at that time. TiVo offered E* its DVR prototype, gave E* their software codes, trying to talk E* into working together on the DVR project.

What TiVo did back then was stupid, they should never have given another company all its trade secrets.

E* looked at the invention, used it on its own DVRs, then told TiVo to take a hike. E* lost that one, paid the $100M for the "crime" committed, that case was over.

Now E* designed around the TiVo's invention, something the DE judge said was an act that should be encouraged by the court. We shall see what Judge Folsom's ruling will be.

 

[Tyralak]

Now E* designed around the TiVo's invention,

tivo didn't invent the DVR. Replay did.

 

[David_Levin]

Wow, the TiVo people have gotten quiet. We don't need to be mean, but it is a silly patent. It is time for the Patent office to pay attention to what it's doing.

Cool, it's been a year since I said this:

This is gonna get very interesting....

Tivo's hardware patents were thrown out. Only the software patents remain. Dish claims to have modified the software so the PVRs are no longer in violation. I suppose they would still be liabile for the orginal $100M settlement for the time in violation.

This situation may be unprecendented. I would think dish would be under obligation to prove they are no longer in violation (still seems funny - there's probably not that many ways to code a fifo). Can they do this? It'll take a patent lawyer to respond.

If Dish prevails Direct and Comcast owe them a big thank you. Everyone will be able to build a PVR without giving TiVo a dime.

http://www.satelliteguys.us/dish-ne...32547-notice-tivo-injunction.html#post1325858