Jury's formular was surprisingly low according to Judge Folsom, but Judge Folsom initially used such jury's formular anyway, the patentee appealed because they wanted $250 (while Toyota wanted $17), and the appeals court vacated Judge Folsom's rate decision not because Juge Folsom applied the jury's formular, rather that Judge Folsom failed to explain where the $25 came from. The $25 was not the jury rate rather made up by Judge Folsom, otherwise the appeals court would not have questioned where it came from.
I'm sorry, I can't just let this go. You're deliberately confusing the issue, in my opinion, to try and confuse others. Look, this is real simple. There were 2 rates: Pre-judgement infringement and post-judgement infringement. The first was set by the jury, $25. HJF did say he thought that rate was low, but he went with it anyway because nobody objected. The second rate was the post-judgement rate and it was initially set at $25 as well. HJF used the same jury rate for this, but failed to explain why he did so. This is what was remanded. He then did the analysis and came up with a number that was 4X the original jury rate for post-judgement infringment. Period. That's it. 4X was the number: not 3X, nor 2X, but 4X. The Monty Python fans will get that last sentence.
Now in this case, TiVo wanted $2.25, E* said $1.00, Judge Folsom said $1.25. Unless TiVo appeals the $1.25 decision, the $1.25 will be used, yes it can be raised in the future, but not above the $2.25 TiVo asked for.
Wrong again, but thanks for playing. Again, think about pre-judgement infringement versus post-judgement infringement. Your above comments are for the former, not the latter. The former is in the books and was decided yesterday. The latter is what is being discussed here, and any analysis of what rate would be fair at this time would be radically higher than the rate set yesterday. The rate that was set yesterday was based on an assumed negotiation that would have taken place in 2006. Clearly, the legal footing has changed significantly at this point and if you will read HJF's decision from yesterday you will see that he says as much in the ruling. I won't post a link, because I got in trouble for it last time, but most of you can find it, I think.
TiVo can of course ask for $5 if E* wants to settle with TiVo, the settlement does not have to conform to Judge Folsom's rate, but still E* can object to the court if TiVo's asking rate is unreasonable, but regardless, I am saying if TiVo asks for $5, E* likely will just replace the DVRs, it might cost less that way.
Any private settlement negotiations will not be part of a court filing and there won't be any objections to the court about whatever rate TiVo asks for. If HJF is forced to set a post-judgement rate, you can be assured it will be somewhere north of 3X the pre-judgement rate. E* would do well to come to the table at this point and agree to anything less than that. On the other hand, TiVo may just decide to nail them to the wall at this point. I probably would, if I was in their shoes. They have all the cards at this point, and E* has tried everything, including theft of their property, to put them out of business. I wouldn't settle for anything less than 3x the pre-judgement rate if I was TiVo.
As far as replacing the DVR's goes, it won't help E* do anything but delay the inevitable. HJF has already said the software is not more than colorably different and the new devices run the same software. The hardware doesn't matter at that point, since the software claims are what are being violated right now.
Of course, that's the strategy E* has continued up till now (delay, delay, delay), so I fully expect them to try. It will just keep costing them more and more the longer they fight it.
