TIVO vs E*

[jfh3]

We are confident the U.S. Court of Appeals will again uphold the District Court ruling and not permit EchoStar to further delay this case once it has an opportunity to consider TiVo's response and EchoStar's motion on the issue of the stay."

This is the part I like. So many people forget that the CAFC has essentially already upheld this once before.

 

[jacmyoung]

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.

Unfortunately you only read selectively what I said. In Paice, Paice asked for $250, Toyota asked for $17, the judge initially said $25, Paice appealed because they wanted $250 not $25, the appeals court vacated the judge's rate. On remand, both again argued for their positions, and the judge ruled a $96.

So far so good? Now in this case, TiVo asked for $2.25, E* said $1.00, the judge said $1.25, yes it is abased on the original jury's rate.

If TiVo does not like it, TiVo can appeal, arguing that the $1.25 is too low, $2.25 should be applied, if TiVo wins, then the court can grant the $2.25, or some thig between $1.25 and $2.25. But TiVo first must object to the $1.25 rate, then win on appeal, and then have the rate raised, but not over the $2.25 TiVo asked for themselves. I hope such baby step talk finally works this time.

Judge Folsom will not set on a rate that is higher than asked for. Now on the damages, it can change, but will not be over 3 times more because the law does not give the court the power to go above that. Treble damage is the most a court can hand down.

Wrong again, but thanks for playing. Again, think about pre-judgement infringement versus post-judgement infringement.

The $1.25 Judge Folsom just set is the post-judgment rate, only that it is the same as the pre- in this case. TiVo wanted $2.25 post- using your argument that post- can be higher than pre-, but the judge said in this case, no still the same.

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,

Then we are discussing different things. But still you need to wait till TiVo ask the judge for the $5. They asked for $2.25 and got $1.25, that is a fact, but if you want to speculate that in the future it can be $5, be my guest, what I am saying is if you do at least wait for TiVo to ask for it.

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.

Again exactly what TiVo argued on 9/4/08, but the judge did not buy it. He said still the $1.25 as back in 06.

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.

Yes it does, it in fact happens a lot. If the court says $1.25 is a reasonable rate, and TiVo in private insists $5, there is ground for appeal to the court.

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.

TiVo already tried to "force" him to hand them a $2.25 post-judgment rate but did not get it. So if later TiVo tries to "force" a $5, good luck. Go read Judge Folsom's reasoning why not $2.25.

HJF has already said the software is not more than colorably different and the new devices run the same software.

Judge Folsom never said the latter part, the most you can say about the software in the VIPs is they are similar. To argue for infringement, the term used is not "similar" rather "substantially the same."

 

[jacmyoung]

This is the part I like. So many people forget that the CAFC has essentially already upheld this once before.

And so many people forget the appeals court reversed half of the verdict last time, but unfortunately the other half was good enough to uphold the judgment and the injunction.

Now E* will have to get the appeals court to reverse the other half in a sense. Only this time if this half is reversed, it will be enough to reverse the whole ruling.

 

[jacmyoung]

TiVo Statement on the Federal Circuit Court of Appeals' Decision to Issue a Temporary Stay of Injunction
Last update: 6/3/2009 7:02:00 PM
ALVISO, Calif., June 3, 2009 /PRNewswire-FirstCall via COMTEX/ -- TiVo Inc. (TIVO), the creator of and a leader in television products and services for digital video recorders (DVR), offered the following statement today on the U.S. Court of Appeals for the Federal Circuit in Washington, D.C. decision to issue a temporary stay of injunction in its lawsuit against EchoStar Communications Corporation:
"We are very pleased with the recent decision by the United States District Court, Eastern District of Texas, to fully enforce a permanent injunction in our patent case against EchoStar in addition to rejecting EchoStar's alleged workaround claim regarding the TiVo patent and finding EchoStar to be in contempt of the Court's permanent injunction. The U.S. Court of Appeals temporarily stayed the District Court's ruling pending the Court's consideration of TiVo's response to EchoStar's motion for stay pending appeal. We are confident the U.S. Court of Appeals will again uphold the District Court ruling and not permit EchoStar to further delay this case once it has an opportunity to consider TiVo's response and EchoStar's motion on the issue of the stay."

I guess E* wasted no time at all. So fast that it seems E* had already prepared for this worst case scenario and filed the motion right the way, it is an indication Charlie does want to go the appeal route rather to settle.

 

[Tyralak]

Fromw what I am hearing the new DirecTV Box with Tivo is going to be a standard receiver which can be upgraded with Tivo software on top of the DirecTV software already on the box.

I, for one don't consider tivo an "upgrade".

 

[jfh3]

And so many people forget the appeals court reversed half of the verdict last time, but unfortunately the other half was good enough to uphold the judgment and the injunction.

Now E* will have to get the appeals court to reverse the other half in a sense. Only this time if this half is reversed, it will be enough to reverse the whole ruling.

Remanded is not the same as reversed (I presume you are referring to the hardware claims).

What is it that you think was reversed?

 

[jfh3]

jacmyoung - you are mistaken. The $1.25 applies to the stay period (September 2006 to April 2008) - that was set by the judge. Tivo could appeal it, but I doubt they will. The $5.00 (4x) figure is a reasonable expectation of what could be a sanction for the continued infringement from April 2008 to whatever tome Dish actually disables the DVR function on the infringing devices.

It really isn't that hard to understand.

 

[Slamminc11]

would you two give it a rest already...

 

[vampz26]

I've got my stop order in for 9.50, but if the stock continues to hover around 10.00 a share by Friday I may just sell outright.

 

[jacmyoung]

Remanded is not the same as reversed (I presume you are referring to the hardware claims).

What is it that you think was reversed?

The appeals court said they reversed the hardware claim verdict, I did not say so, did you read the decision? Remand usually follows a reversal.

jacmyoung - you are mistaken. The $1.25 applies to the stay period (September 2006 to April 2008) - that was set by the judge. Tivo could appeal it, but I doubt they will. The $5.00 (4x) figure is a reasonable expectation of what could be a sanction for the continued infringement from April 2008 to whatever tome Dish actually disables the DVR function on the infringing devices.

It really isn't that hard to understand.

The $1.25 is the post-judgment rate, TiVo argued so for $2.25, so was E* for $1.00 on 9/4/08, not me saying it. Judge Folsom now says $1.25, same as the pre-judgment rate. Just because it is the same as the pre-judgment rate does not make it a pre-judgment rate. A post-judgment rate can be higher, but can also be the same as the pre-judgment rate. In some cases it can be lower too.

 

[jfh3]

The $1.25 is the post-judgment rate, TiVo argued so for $2.25, so was E* for $1.00 on 9/4/08, not me saying it. Judge Folsom now says $1.25, same as the pre-judgment rate. Just because it is the same as the pre-judgment rate does not make it a pre-judgment rate. A post-judgment rate can be higher, but can also be the same as the pre-judgment rate. In some cases it can be lower too.

There is no pre or post judgement rate, only the rate for damages during the stay period ($1.25). That has no relevance to what Dish may be required to license the patent from Tivo.

Are you stating that there is no way Folsom can set a different rate than the $1.25 for the sanctions?

 

[jacmyoung]

There is no pre or post judgement rate, only the rate for damages during the stay period ($1.25). That has no relevance to what Dish may be required to license the patent from Tivo.

The rate during the stay is the post judgment rate. The final judgement was made some time in 8/06 I believe, jury's rate was before that final judgment (pre-judgment), the rate during the stay was after that final judgment (post-judgment), only that both happened to be the same amount.

Are you stating that there is no way Folsom can set a different rate than the $1.25 for the sanctions?

Did you not read what I said? Of course he can, just not more than what TiVo had asked for.

 

[kstuart]

would you two give it a rest already...

If they valued the time spent arguing at minimum wage, they could pay E*'s fine and then we would be done !

 

[jhamps10]

At this point, I see Tivo wanting E* to license all past, present (VIP series), and future DVRs to include the T2200S tru2way model. Unfortunately, E* put themselves in this position which why I see (unfortunate for Dish Network customers) Charlie continuing his fight:

1. E* appealing the case
2. E* formally requesting the court to review their "new" workaround
3. All but 192K DVRs of the infringing DVRs having their DVR functionallity disabled
4. Tivo back in court pursuing the other infringing DVR models

I guess I know where all the money in multiple DVR fees went for my three VIP622s.

here's another one.

5. E* files for bankruptcy, then is bought by Directv since E* will lose most of their subs if their DVR's get shut off. We don't have a DVR, but I know if i did have a DVR and it got shut off, contract IMO with dish becomes null, void, and nothing more than a piece of paper. Dish is really playing with fire on this one. And you all know what Dish will do if they settle with tivo.... pass the costs on to us subscribers.

 

[wardconnor]

I have not had the time to read all 70 or so pages to this forum so I apologize for the question that I am about to ask if it has already been answered.

What exactly are the features on Dish Networks DVR's that Tivo does not like? I mean exactly and specifically what features about the DVR. Please be specific.

Please dont say "tivo invented DVR and thats what they dont like." (or something like this in your own words)

 

[jfh3]

Did you not read what I said? Of course he can, just not more than what TiVo had asked for.

That's funny. Just wait and see. If the sanctions against Dish are less than or equal $2.25 a box, I'll donate 1000 shares of Tivo stock to your favorite charity.

 

[jfh3]

I have not had the time to read all 70 or so pages to this forum so I apologize for the question that I am about to ask if it has already been answered.

What exactly are the features on Dish Networks DVR's that Tivo does not like? I mean exactly and specifically what features about the DVR. Please be specific.

Please dont say "tivo invented DVR and thats what they dont like." (or something like this in your own words)

It's not that Tivo "doesn't like features that Dish DVRs", it's that they were implemented in violation of Tivo's IP, specifically claims software claims 31 and 61 of Patent 6,233,389.

Tivo also claimed infringement of the certain hardware claims, but that has yet to be resolved - the CAFC remanded it back to the lower court.

 

[rtmoore4]

The $1.25 is the post-judgment rate, TiVo argued so for $2.25, so was E* for $1.00 on 9/4/08, not me saying it. Judge Folsom now says $1.25, same as the pre-judgment rate. Just because it is the same as the pre-judgment rate does not make it a pre-judgment rate. A post-judgment rate can be higher, but can also be the same as the pre-judgment rate. In some cases it can be lower too.

Ok, now I see where you are confused. You have the time periods of pre-judgment and post-judgment confused. While the period during the stay did happen after the judgment was rendered by HJF, the judgment was not final, as the appeal process was still going forward and the stay was on from the CACF. Thus, when this time period was being examined, pre-judgement damages had to be applied. It's during the time period where E* KNEW they were in violation, as the judgement was then final and the stay had been lifted, and still chose to steal TiVo's property that is to be considered next.

TiVo did try to argue for enhanced damages during the previous time period, but HJF properly found that the rate should be the same, as the judgement was not final. Now it is, and has been for some time. Thus, when the post-judgement damages get figured, you WILL see at LEAST 3X on the pre-judgement number, just like you saw E* get their butts handed to them yesterday.

 

[wardconnor]

It's not that Tivo "doesn't like features that Dish DVRs", it's that they were implemented in violation of Tivo's IP, specifically claims software claims 31 and 61 of Patent 6,233,389.

Tivo also claimed infringement of the certain hardware claims, but that has yet to be resolved - the CAFC remanded it back to the lower court.

I have looked up that patent # and I dont think that this relates to Tivo at all. Can you please give me the patent # again so I can read claim 31 and 61?

You say that its the software that they Tivo does not like. What parts of the software? Please be specific.

 

[rtmoore4]

Unfortunately you only read selectively what I said. In Paice, Paice asked for $250, Toyota asked for $17, the judge initially said $25, Paice appealed because they wanted $250 not $25, the appeals court vacated the judge's rate. On remand, both again argued for their positions, and the judge ruled a $96.

So far so good? Now in this case, TiVo asked for $2.25, E* said $1.00, the judge said $1.25, yes it is abased on the original jury's rate.

If TiVo does not like it, TiVo can appeal, arguing that the $1.25 is too low, $2.25 should be applied, if TiVo wins, then the court can grant the $2.25, or some thig between $1.25 and $2.25. But TiVo first must object to the $1.25 rate, then win on appeal, and then have the rate raised, but not over the $2.25 TiVo asked for themselves. I hope such baby step talk finally works this time.

Judge Folsom will not set on a rate that is higher than asked for. Now on the damages, it can change, but will not be over 3 times more because the law does not give the court the power to go above that. Treble damage is the most a court can hand down.

Please see my post above explaining why you have this wrong. You are just confused about what time period is pre- versus post- judgment.

On the damages front, would you please stop saying the same thing over again, when you've already been proven wrong. In fact, you've proved yourself wrong in your first paragraph above. You quote Paice numbers (incorrectly, of course, but at least you were close). It's actually $25 and $98, not $96. But less than 10 sentences later you say it can't be more than 3X. Hello, is anyone home? $98 is more than 3 times $25. How can anyone take you seriously when you not only ignore a previous post pointing this out, but you're inconsistent with yourself in your very own posts?

Yes it does, it in fact happens a lot. If the court says $1.25 is a reasonable rate, and TiVo in private insists $5, there is ground for appeal to the court.

The only statement E* would have to the court if they don't like whatever private settlement offer TiVo makes them is that, "we can't come to agreement, you're Honor". There is no appeal, no objection, nothing like that. It's a private matter. Now, what happens when the two parties can't come to agreement? Well, you've seen it, and it's about to get much, much worse for E*.