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EchoStar sleeping counter suit against TiVo can come back alive says judge

There is a development in the legal actions between TiVo and EchoStar this week, but for the most part it’s not really relevant to all those $100s mil

By PETER WHITE

Published: 10 February, 2011

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There is a development in the legal actions between TiVo and EchoStar this week, but for the most part it’s not really relevant to all those $100s million which were at stake in the suit where TiVo was suing EchoStar and its one time parent Dish Networks.

Instead this is the counter suit, held up for some 4 years, and likely to be held up a little longer if the assertions on TiVo’s web site are anything to go on, because TiVo asked for most of the 4 patents in question to be invalidated and for the most part has already got its way.

The court said that what’s left of the suit can go ahead, but it has narrowed from 4 patents, to one sand its claims have been re-stated, and TiVo’s statement says that it is confident that it does not infringe this patent.

We have to remember that TiVo has a win in the bag for its patent infringement suit and although the money it received for a contempt of court judgment is once again in jeopardy because of an en banc re-hearing of the case, which began last November, the re-examination of TiVos patents have pretty much been resolved in TiVo’s favor.

You might think that this is a case of two companies both researching Digital Video Recorders, each having a patent or two that is valid, but actually the patents that EchoStar are suing with weren’t its own. When TiVo began legal actions EchoStar looked around for some patents that might allow a “quid pro quo” deal with TiVo and found some at IBM, which had not yet withstood legal scrutiny, and it bought them.

Interestingly this is way after IBM sold all of its DVR patents to TiVo a year earlier, and what EchoStar picked up were some patents filed between 1996 and March 2003 relating to formatting methods, and ways of recording broadcast programs. The patents that IBM sold to TiVo earlier related to audience measurement and the integration of TV signals with internet access, automatic rescheduling of recordings, content screening, enhanced program information search and electronic program guide interface enhancements. So EchoStar got to buy what was left and then sued with it.

The big issue is what comes out of the en banc review, because TiVo might have to repay (or not receive) the full contempt payment and EchoStar might get some of its money back. At the same time once the original court sees that TiVo’s patents are good EchoStar will have to pay a further license fee to cover its use from the first infringement finding to now, and a future license fee, or it will have to stop making DVRs and switch off all 4 million it has in the field. So even if the contempt result is reversed, it’s likely that EchoStar and Dish will still have to pay TiVo more money.

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