TIVO vs E*

[jacmyoung]

Investors are equally concerned with the fact that they might lose...and the financial downpour it would cost. And when you are paying out the bum for lawyers all the time, a "no decision" is the same thing as losing.

Remember the first rule of gambling...you only bet what you can afford to lose.

Not to mention the bet this time is very much in E*'s favor, not just because in a summary contempt setting, E* only needs show of evidence to demonstrate the doubt, and TiVo needs to prove by clear and convincing evidence.

But if one simply reads the appeals court reasoning when they overturned the hardware claims, it was not easy at all to prove infringement, a little slip here and there would almost have had the whole verdict thrown out.

And BTW that was against the old design that was by all evidence carelessly received from the prototype DVR TiVo had given to E*' engineers back then, and E* did not think through when they just used the TiVo technology.

After the infringement verdict, E* looked at the exact elements they were found to infringe, and made the point to take out the "core" of the invention, this time with all the care and scrutinies applied, because they most certainly did not want to lose another $100M and more.

Taking into consideration all of the above factors, one can make an educated bet. Not that the bet has no risk, all bets have risk, otherwise we do not call them bets.

 

[jacmyoung]

I want to make a correction, though this one is not so relevant to the current contempt issue itself.

Since E* filed the new DE action on 6/2/08, right after the 5/30/08 status meeting in the TX court, I thought E* was trying to beat TiVo in filing a new infringement suit, when in fact E* was trying to beat TiVo to its contempt motion in the TX court. This was what E* said in its most recent filing with the DE judge regarding the DE action:

…And Echostar filed this action before TiVo filed its motion for contempt in the Eastern District of Texas.

TiVo filed the current contempt motion in the middle of June, 2008. E* was trying to file this DE action before TiVo filed such contempt motion in TX court.

In other words, had TiVo filed this contempt motion before E* filed the DE action, it might have been a different story. E*’s rush to file on 6/2/08 now appears to have a more urgent reason behind it.

 

[jacmyoung]

Just read the TiVo's quarterly conference call transcripts, very high legal cost as a result of the 2/17 hearing, projected higher legal cost in the second quarter too due to this TiVo v. E* case regardless of the outcome of the contempt ruling. They did not say how they would make big effort to protect their patents this time, something they said a lot in the past.

D* continued to drop TiVo accounts by large numbers, but TiVo's own standalone accounts had also dropped by 30K. A total of 1.6M TiVo accounts left. I recall in the beginning of 2007 they had 3.6M?

They spent a lot of time talking about new innovative business opportunities, which I recall some of our posters said they should do

 

[riffjim4069]

Yep, TiVo-Owned subscriptions were down another 30K (104K the past 12-months) and MSOs subscriptions were down 109K (501K the past 12-months). I am actually a Tivo convert since we switched to FiOS, but we're looking at the MoxiHD and will consider other DVRs as they arrive to market. Offhand, E* really needs a big licensing agreement with D* or Comcast pushing many Tivo units.

 

[jacmyoung]

Yep, TiVo-Owned subscriptions were down another 30K (104K the past 12-months) and MSOs subscriptions were down 109K (501K the past 12-months). I am actually a Tivo convert since we switched to FiOS, but we're looking at the MoxiHD and will consider other DVRs as they arrive to market. Offhand, E* really needs a big licensing agreement with D* or Comcast pushing many Tivo units.

Your above numbers and your own experience contradict with your very last half of the sentence

This is pure speculation, but Comcast's interest in TiVo for Tru2way might be a response to E*'s Tru2way offer to the cablecos, a lot of talk about competitions without mentioning names there.

 

[riffjim4069]

Your above numbers and your own experience contradict with your very last half of the sentence

This is pure speculation, but Comcast's interest in TiVo for Tru2way might be a response to E*'s Tru2way offer to the cablecos, a lot of talk about competitions without mentioning names there.

Oops! It was late...I meant to say Tivo needs to secure major licensing agreement with E* and have other MSOs deploy Tivo-based products. To be honest, I would love to see E* trumph Tivo (Motorola and SA/Cisco too) by obtaining agreements to make T2200S tru2way HD DVRs for some of the larger Cable operators.

The industry seems to be waiting on the Court's contempt ruling. Yikes! How many more weeks or months are we going to wait on Judge Folsom.

 

[jacmyoung]

...The industry seems to be waiting on the Court's contempt ruling.

Most people seem to think that way, but they might be wrong too

Sounded to me Comcast does not mind using TiVo, but then Comcast is known to pay the least money for licensing or agreement, and they probably don't like the idea of the E* Tru2Way cable DVRs, and can't get their own Motorola DVRs to work so well, so TiVo may be the obvious option.

D* has RePlayTV now, they probably do not care much about the outcome of this case, at least not as much as we think.

If anything, the fact this case got dragged out so long, most companies probably are betting TiVo will have little appetite to sue another large company on the same patent infringement.

...Yikes! How many more weeks or months are we going to wait on Judge Folsom.

I think it should be out in June at least. Did I mention the contempt motion will likely be denied?

 

[jacmyoung]

One more thing, I had recently had time to watch some TV on my 625, I always thought the 625 being the more powerful of the 8 named DVRs handled the new software design just fine, compared to the 50Xs, but the 625 suffers the same picture breakup issue when I did skip forward and back.

So the “indexless” DVR operations also have a visible impact on the Broadcom DVRs. Who knows, maybe the removal of the “automatic flow control” has some to do with the issue too. Not the issue I like to have, but nevertheless it is evident the new design handles the DVR functions with some difficulties just as E* had described during the Feb. hearing.

 

[CuriousMark]

Yikes! How many more weeks or months are we going to wait on Judge Folsom.

Perhaps it will not be long now. It was just reported elsewhere that Delaware has closed the case and marked it as transferred to another Jurisdiction.

 

[jacmyoung]

Perhaps it will not be long now. It was just reported elsewhere that Delaware has closed the case and marked it as transferred to another Jurisdiction.

If true, and judging from the past the two judges did seem to feel each others' pulses, at least the DE judge did, it is almost a sign of no contempt.

 

[CuriousMark]

If true, and judging from the past the two judges did seem to feel each others' pulses, at least the DE judge did, it is almost a sign of no contempt.

I think many would jump to the opposite conclusion. Rather than jumping to conclusions I think we should wait and see.

 

[jacmyoung]

I think many would jump to the opposite conclusion...

Of course they can, one can jump to any conclusion.

The reason for my direction is because to find contempt, TiVo would have proven with clear and convincing evidence the new design is still an infringement, and therefore the DE case would be moot and should be tossed out.

The most likely reason for the DE case to continue is if the question of infringement cannot be determined in the TX court, which means no contempt. The new case will have to take over.

 

[Thomas22]

It was just reported elsewhere that Delaware has closed the case and marked it as transferred to another Jurisdiction.

We can chalk this up as another failed legal effort by Dish.

 

[riffjim4069]

Perhaps it will not be long now. It was just reported elsewhere that Delaware has closed the case and marked it as transferred to another Jurisdiction.

I agree with Thomas when he said, "We can chalk this up as another failed legal effort by Dish" and I agree the logical conclusion is that Dish Network will be found to be in contempt of court and have to scramble to get obtain a licensing agreement with Tivo...under less than best customer terms, no doubt. Of course, there are those who will continue to fill this thread with Dish Network propaganda, disjointed arguments, wild conjecture, and double-talk & rhetoric.

 

[jacmyoung]

I agree with Thomas when he said, "We can chalk this up as another failed legal effort by Dish" and I agree the logical conclusion is that Dish Network will be found to be in contempt of court and have to scramble to get obtain a licensing agreement with Tivo...under less than best customer terms, no doubt. Of course, there are those who will continue to fill this thread with Dish Network propaganda, disjointed arguments, wild conjecture, and double-talk & rhetoric.

But if E* is found not in contempt, what you folks can say for yourselves? I will just let you fill in the blanks.

BTW, I don't think Thomas22 had made a logical conclusion that a case transfer meant E* would be in contempt, so when you tried to agree with him, please make sure you understand what his conclusion was first. Thomas22, care to clarify?

 

[jacmyoung]

Now let’s read what the DE judge said in his new decision:

…and thus imbued the Texas court with an unmatched foundation to inquire into whether the redesigned products are “colorably different” from the products adjudged to infringe, and hence whether contempt proceedings are an appropriate vehicle to address TiVo’s allegations that they still infringe the ‘389 patent.

Based on the above, TiVo can once for all give up the “on the face contempt,” “bad faith effort,” “not informing the court” and “cannot verify every DVR” arguments.

In fact this much was said by the DE judge, if the new design is more than colorably different, this contempt proceeding will be inappropriate, and this new declaratory judgment case (likely another jury trial) will have to take place should TiVo insist.

 

[nobody99]

Based on the above, TiVo can once for all give up the “on the face contempt,” “bad faith effort,” “not informing the court” and “cannot verify every DVR” arguments.

In fact this much was said by the DE judge, if the new design is more than colorably different, this contempt proceeding will be inappropriate, and this new declaratory judgment case (likely another jury trial) will have to take place should TiVo insist.

Umm, you know that the only way the case would have been heard by Delaware was if no contempt was found, right? So prima facie contempt was not an issue for Delaware to address or even consider.

For the other readers, please consider this about Jacmyoung's post. He's claiming that the decision to transfer to TX is a victory for DISH. He also thinks that if the case were not transferred to TX it would be a victory for DISH.

Gentle reader, please consider the source.

 

[jacmyoung]

Umm, you know that the only way the case would have been heard by Delaware was if no contempt was found, right? So prima facie contempt was not an issue for Delaware to address or even consider.

For the other readers, please consider this about Jacmyoung's post. He's claiming that the decision to transfer to TX is a victory for DISH. He also thinks that if the case were not transferred to TX it would be a victory for DISH.

Gentle reader, please consider the source.

First welcome back, I know it had been difficult for you, just words of caution, try not to put words in my mouth again and provide some substances in the posts rather than constantly having personal issues, that will keep you around.

I have said E* faced an uphill battle in this case transfer, they of course lost it, but I think they made a good show of effort, because if you simply read Judge Farnan's decision, he hardly even considered any of the TiVo's arguments, only agreed with some of E*'s arguments then argued on his own why in the end it was still weighing on the side of transfer.

So it is a loss for E*, but hardly a win for TiVo, just like this contempt proceeding, for over a year TiVo has made no meaningful argument that was worth taking seriously. The thing is, while in a case transfer decision, the court does not have to rule against a party that makes poor argument, rather can base its decision on its own discretion. Whereas in a contempt proceeding, TiVo must prove by clear and convincing evidence, or else...which is why they have yet to get a contempt after over a year, even though Judge Folsom had given TiVo opportunity after opportunity, working very hard to break E*'s will and get them to settle.

TiVo did not get what they wanted, they did not get the DE case dismissed, TiVo did get the case transferred, but not because TiVo made any good showing for the transfer.

As far as on-going litigation, expect the cost of the litigation to continue to go up regardless of the outcome of the contempt proceeding, as TiVo said in its own conference call two days ago.

It cost TiVo about $20M on the litigation in the first quarter, mostly attributed to the Feb. hearing, and so it continues.

BTW, don't patronize the readers, they can make their own decisions, whether they agree or not, it is their call to make.

Make your own points with substance for support, without putting words in my mouth, that will go a long way to please the readers.

 

[Scott Greczkowski]

Just saw this...

Is Dish filing a lawsuit against Tivo?

RFC Case Number: P-D09-171T Court Case Number: 2:09-cv-00171-TJW File Date: Thursday, May 28, 2009 Plaintiff: Dish Network Corporation
Echostar DBS Corporation
Echostar Technologies LLC
Echosphere LLC
Dish Network LLC
Plaintiff Counsel: Josy W Engersoll, John W. Shaw, James Higgins of Young Conaway Stargatt & Taylor LLP
Harold J. McElhinny, Rachel Krevans, Jose L. Patino of Morrison & Foerster LLP
Defendant: TiVo Inc.
Cause: 28:1338 Patent Infringement Court: Texas Eastern District Court Judge: Judge T. John Ward
RFCExpress - Dish Network Corporation et al v. TiVo Inc.

 

[hrxtreme]

It keeps going, and going, and going...