TiVo vs. DISH: New hearing set for Feb. 2009

[Curtis]

O R D E R

Before the Court is TiVo’s Motion to Hold EchoStar In Contempt For Violation Of This Court’s Permanent Injunction. Dkt. No. 832.

The Court will hold an additional hearing on this matter in the form of a Bench Trial on February 17-18, 2009 to determine whether EchoStar’s DP-501, DP-508, DP-510, DP-522, DP-625, DP-721, DP-921, and DP-942 receivers continue to infringe claims 1, 5, 21, 23, 32, 36, 52, 31,and 61 of U.S. Patent No. 6,233,389, either literally or under the doctrine of equivalents. The hearing will be held in Texarkana and begin each morning at 9 a.m.. Each side will have five (5) hours to present their case.

IT IS ORDERED that the following discovery limitations shall apply to this matter.

1. Disclosures. To the extent not already disclosed, within 15 days of this Order, each party shall disclose to every other party the following information:

a. the legal theories and, in general, the factual bases of the disclosing party’s claims or defenses;

b. the name, address, and telephone number of persons having knowledge of relevant facts, a brief statement of each identified persons’ connection with the case, and a brief, fair summary of the substance fo the information known by any such person;

c. for any testifying expert, by the date set by the court below, each party shall disclose to the other party or parties:

i. the expert’s name, address, and telephone number;

ii. the subject matter on which the expert will testify;

iii. if the witness is retained or specially employed to provide expert testimony in this case or whose duties as an employee of the disclosing party regularly involve giving expert testimony:

(a) all documents, tangible things, reports, models, or data compilations that have been provided to, reviewed by, or prepared by or for the expert in anticipation of the expert’s testimony; and

(b) the disclosures required by Fed. R. Civ. P. 26(a)(2)(B) and Local Rule CV-26;

iv. for all other experts, the general substance of the expert’s mental impression and opinions and a brief summary of the basis for them or documents reflecting such information.

2. Additional Disclosures. Each party, within 15 days of this Order and without awaiting a discovery request, will provide, to the extent not already provided, every other party a copy of all documents, electronically stored information, and tangible things in the possession, custody, or control of the party that are relevant to the above stated matter.

3. Discovery Limitations. In addition to the disclosure listed in Paragraphs 1 and 2 above, the each side may serve 10 interrogatories, 10 requests for admission on the opposing side. In addition, each side may take 15 hours of fact witness depositions and the depositions of experts.

4. Pre-hearing disclosure. Each party shall provide to every other party within 7 days of the trial the following:

a. the name and, if not previously provided, the address and telephone number, of each witness, separately identifying those whom the party expects to call and those whom the party may call if the need arises;

b. the designation of those witnesses whose testimony is expected to be present by means of a deposition and, if not taken stenographically, a transcript of the pertinent portions of the deposition testimony;

c. an appropriate identification of each document or other exhibit, including summaries of other evidence, separately identifying those that the party expect to offer and those which the party may offer if the need arises;

d. an copy of each demonstrative that the party expects to present, separately identifying those that the party expects to present and those which the party may present if the need arises.

5. Duty to Supplement. After disclosure is made pursuant to this order, each party is under a duty to supplement or correct its disclosures immediately if the party obtains information that a disclosure was incomplete or incorrect when made, or is no longer complete or true.

IT IS FURTHER ORDERED that the following deadlines shall apply to this case.

Date Event

December 22, 2008 TiVo’s Expert Disclosures Due

January 5, 2009 EchoStar’s Expert Disclosures Due

February 10, 2009 Parties’ Proposed Findings of Fact and Conclusions of Law due

[MichaelK]

so- does this mean that the judge decided that ecostar's ignoring of the specific wording was ruled not to be infringement (in other words they didn't turn the boxes dvr portion off)- and so they need to go to the next step to decide if the new software is different to decide if there is continued infringement?

[Curtis]

so- does this mean that the judge decided that ecostar's ignoring of the specific wording was ruled not to be infringement (in other words they didn't turn the boxes dvr portion off)- and so they need to go to the next step to decide if the new software is different to decide if there is continued infringement?The judge has not ruled on anything yet. The contempt motion for not disabling the DVRs is still open.

[CuriousMark]

so- does this mean that the judge decided that ecostar's ignoring of the specific wording was ruled not to be infringement (in other words they didn't turn the boxes dvr portion off)- and so they need to go to the next step to decide if the new software is different to decide if there is continued infringement?

I think it means that the judge feels that he has to find whether the new software is infringing or not before he can rule that the boxes failed to follow the injunction. If it is an infringement then the boxes must be shut down.

In addition to seeing if the new software is infringing or not, he is also going to look at whether or not the hardware claims, remanded by the appeals court, are infringed under the doctrine of equivalents. So those claims of the patent are now back in play. If infringement is found via DOE, the patent gets much stronger, if not, it gets weaker.

This is probably where they should have gone to begin with after the appeals court ruled, instead of trying to hurry things up and find contempt on the face of the injunction.

So now we all wait, all over again.

[CuriousMark]

Good call Curtis, you said it needed to go this way for months now.

[Curtis]

"ALVISO, Calif., Nov. 20 /PRNewswire-FirstCall/ -- TiVo Inc. (Nasdaq: TIVO - News), the creator of and a leader in television products and services for digital video recorders (DVR), offered the following statement today on the order by the United States District Court, Eastern District of Texas, in the lawsuit against EchoStar Communications Corporation:

"We are pleased that the U.S. District Court has scheduled a hearing on EchoStar's purported workaround on February 17, 2009. Contrary To EchoStar's statement today, the Court did not rule on TiVo's pending motion for contempt of the injunction. The Court will do so after the hearing as well as rule on the amount of damages owed to TiVo beyond the nearly $105 million already paid by EchoStar. This is a positive step, particularly the accelerated discovery ordered by the Court, towards the ultimate resolution of all issues in the litigation and we remain confident that we will prevail in showing that EchoStar's workaround does not avoid infringement."

[timckelley]

Go Tivo! :up:

[samo]

http://biz.yahoo.com/prnews/081120/lath545.html?.v=13
I guess that TiVo responding to this statement from Dish:

"We are pleased that the district court did not find us in contempt on the face of the injunction. We look forward to the February bench trial on our software design-around. Our subscribers can continue using their award-winning DVRs from DISH Network."
The way I see it, regardless of the spin either side is pushing, the judge wants to make an informed decision.

[MichaelK]

i have to say- although I'm no lawyer i read the situation the way echostar does.

Tivo argued that it didn't matter what they downloaded that it wasn't an option- period. That on the face of the injunction the dvr functionality should have been shut down.

Echostar argued that their new download means that they aren't in violation.

the judge now orders a hearing to see if the new download makes a difference. So YES- Dish is correct the judge did not rule that on the face /plain wording of the injunction that dish was in contempt.

1 point for dish.

[Curtis]

the judge now orders a hearing to see if the new download makes a difference. So YES- Dish is correct the judge did not rule that on the face /plain wording of the injunction that dish was in contempt.That was also true last week and last month and at any other point in the past. Judge Folsom has not ruled on it yet.

[MichaelK]

agreed that he has not officially ruled anything, but the fact that he is looking for information to determine if dishs defense is correct shows that he doesn't agree up front with tivo- no?

Again- not a lawyer but wasn't it Tivo's point that dish's stated defense is irrelevent as it doesn't matter if it's colorably different or not, dish should just have to turn off the dvr's no matter what.

If the judge sided with tivo then there would be no need for any further hearing about colorably different becasue it just doesnt matter.

[Greg Bimson]

agreed that he has not officially ruled anything, but the fact that he is looking for information to determine if dishs defense is correct shows that he doesn't agree up front with tivo- no?But it isn't only DISH/SATS defense, it is also TiVo's charge...

TiVo, both in the last response brief to the court regarding the contempt motion and the hearing on 4 September, asked Judge Folsom to find DISH/SATS in contempt for the modifications made to the adjudged receivers. In fact, there are two motions in front of Judge Folsom: contempt for violations of an injunction on its face and damages. So, infringement does need to be found, supposedly with colorable difference if the contempt standard in KSM is being used.

And think about this in reverse for a second. A decision is rendered. It can be appealed. If Judge Folsom released his decision regarding the "violation on its face" and also ordered this bench trial, then part of the decision would be heading up to the Court of Appeals while awaiting this trial regarding "ongoing infringement", which will probably also be appealed.

Yes, it does appear DISH/SATS does have a slight upper hand, in the fact that they always wanted the design-around evaluated. However, from the get-go, TiVo always wanted discovery on the design-around, and wouldn't receive it until they leveled the charge that the modifications were infringing and not more than colorably different. That was done in a response brief and the hearing, so it has now been rolled into this "violations on its face" and additional damages decision.

[MichaelK]

thanks for the explanation- makes sense.

[jfh3]

Greg - don't you think that although Dish got their evaluation of the workaround, it's not ideal for them since (a) this almost certainly means that the Delaware action will be dismissed and (b) they risk the judge finding that the hardware infringes under DOE, which means it really doesn't matter if the software is colorably different or not?

I was really surprised at the order though - if the judge was going to order additional discovery, why wasn't that done in September? Doesn't make sense that it took 3 months to ask for what both parties were ready for in September.

[HiDefGator]

Greg - don't you think that although Dish got their evaluation of the workaround, it's not ideal for them since (a) this almost certainly means that the Delaware action will be dismissed and (b) they risk the judge finding that the hardware infringes under DOE, which means it really doesn't matter if the software is colorably different or not?

I was really surprised at the order though - if the judge was going to order additional discovery, why wasn't that done in September? Doesn't make sense that it took 3 months to ask for what both parties were ready for in September.

depends on which hardwrae he finds to infringe under DOE. Remember there is old hardware and new hardware and they are different. he could find them all to infringe, or some, or none. If he only finds the really old boxes to infringe then no big deal for dish.

[Greg Bimson]

Greg - don't you think that although Dish got their evaluation of the workaround, it's not ideal for them since (a) this almost certainly means that the Delaware action will be dismissed and (b) they risk the judge finding that the hardware infringes under DOE, which means it really doesn't matter if the software is colorably different or not?You're right, it isn't ideal.

(a) The Delaware action might not be dismissed, although parts of it will be.

(b) In order for the hardware to be found infringing, it must perform the same patent claims that were found at trial in April, 2006. The difference is that DISH/SATS may have removed infringement by software download. Don't use the media switch, and you can't be found infringing on those patent claims.depends on which hardwrae he finds to infringe under DOE. Remember there is old hardware and new hardware and they are different. he could find them all to infringe, or some, or none. If he only finds the really old boxes to infringe then no big deal for dish.Not really. Judge Folsom is only trying to find "continuing infringement" on the same eight models that he tried two and a half years ago. The hardware has not changed; the software running on those receivers may have changed how the hardware operates. There will be no discussion of the newer receivers (the entire ViP series), unless TiVo can somehow convince Judge Folsom to allow adding a finding of infringement on those receivers.I was really surprised at the order though - if the judge was going to order additional discovery, why wasn't that done in September? Doesn't make sense that it took 3 months to ask for what both parties were ready for in September.Let's go back to the 30 May hearing. No party had to testify to the facts. It was discussing the courses of action. Both parties at that time stated that this was a legal issue, and a technical advisor wasn't needed.

TiVo a couple of weeks later finally filed their motion for contempt, for alleged violation of the disable order. That was the matter of law at hand; strictly a legal issue.

DISH/SATS defense was that because their modification no longer infringes, the disable order didn't apply to the devices they modified. They also claimed they did follow the order by disabling for a half-second prior to enabling the new software.

TiVo then countered with the fact the modifications still make the receivers infringe, and contempt could also be found for violations of the injunction order against the making, selling or using of infringing receivers. All the while, there was a separate motion filed by TiVo asking for additional damages from the time the last judgment was entered.

Then finally came 4 September, to argue about the motion for contempt and the motion for additional damages, without discovery on the modifications. There still wasn't a technical advisor present, as far as I know.

So, simple enough, on 4 September, DISH/SATS position was that the disable order cannot apply without a finding of infringement on the modifications. TiVo joined in on this fray, asking for an additional $52 million for sales of the modified receivers on top of the $168 million request for damages from the judgment date of 8 September, until the injunction start date of 21 April, 2008.

So both sides on 4 September asked for the modifications to be adjudged.

Let's pretend I am Judge Folsom for a minute (like I deserve to be a judge), with this fake possibility of what has been in his mind...

I ordered DISH/SATS to disable those receivers. I have the case law that says those should have been disabled. When I issue the order, I will grant TiVo's contempt motion.

TiVo is requesting damages. I can grant the first two categories at $168 million, as it is sound and within law. But I cannot grant the last $52 million and a finding of contempt because the modifications are still infringing, because I am not technical enough to understand the intracacies of the arguments put forth by TiVo and DISH/SATS. I need them to prove or disprove continuing infringement with a technical advisor present.

All of the above is simply my opinion, and it could be wrong.

[CuriousMark]

Greg,
Of the 8 adjudged units, some have older hardware than others. That is what HiDefGator is talking about below. Some of the oldest boxes have a Barton media switch and weak processor. These were not modified at all by Dish. Some of the old boxes have a faster processor and a disabled media switch (if I recall correctly), and some of the old boxes have Broadcom chips with faster processors and built in functional blocks that can be programmed to behave as a Barton Media switch.

The oldest boxes fit under the one hundred and some thousand exclusion, so if they are found to infringe via DOE, it is actually no change from the current situation. The newer classes of box in the adjudged 8 are the ones where things will get interesting. Those have the software mod that supposedly disables those features. That hardware is still there, if not being used, and was originally intended to be used as described in the '389 patent. So it will be very interesting to see the arguments about why they do or don't infringe via DOE.

depends on which hardware he finds to infringe under DOE. Remember there is old hardware and new hardware and they are different. he could find them all to infringe, or some, or none. If he only finds the really old boxes to infringe then no big deal for dish.

[Greg Bimson]

Of the 8 adjudged units, some have older hardware than others. That is what HiDefGator is talking about below. Some of the oldest boxes have a Barton media switch and weak processor. These were not modified at all by Dish. Some of the old boxes have a faster processor and a disabled media switch (if I recall correctly), and some of the old boxes have Broadcom chips with faster processors and built in functional blocks that can be programmed to behave as a Barton Media switch. From memory:

The 721, 921 and 942 are those that did not receive an update, and are therefore still infringing.

The 501 and 508 are units which did not have enough memory to accomdate a certain change in the software behavior.

The 510, 522 and 625 did have a behavioral change in the software.

I may have the 510 in the wrong group.

They all had the Barton Media Switch, or a slight variation of the chip, provided by Broadcom.

[Adam1115]

Any updates?

[CuriousMark]

A few things have happened since the last post in this thread. First, Dish tried to go over the judge's head and get the hearing called off because it addressed more than just their software changes. They felt that hardware infringement based on DOE was out of scope. The judge disagreed, but TiVo gave in and stipulated that looking only at the software changes was good enough and looking at hardware infringement via Design of Equivalents was a battle that could be fought on another day if necessary. The judge accepted and scaled down the hearing.

There have been a few more motions or filings since then with Dish saying TiVo was not forthcoming with discovery and asking that the hearing be delayed because TiVo was late with the information Dish wanted. The judge said no.

Then there was another sealed filing from Dish asking that the hearing scope be reduced even further or delayed. The judge came back and ordered TiVo to reply to Dish's motion and a few days ago TiVo did reply. Here is a quote of the beginning of TiVo's reply (with thanks to Mainer_Ayah for buying it off the web and posting it on his website).

I. INTRODUCTION<BR>
This is EchoStar’s third "emergency" motion in its ongoing effort to postpone resolving the issue of whether EchoStar is in contempt of the permanent injunction that this Court entered in 2006 (Docket No. 805), the express terms of which EchoStar has beenignoring since it was entered and defying since it went into effect, even though it was affirmed by the Federal Circuit without modification in January 2008.

The issues for the upcoming February hearing are narrow and involve a handful of modest (indeed, no more than colorable) changes to a defined set of products that implicate only a few claim limitations. This Court is already familiar with the patent, the validity of which is the law of the case and cannot be relitigated here. Thus, the hearing involves only technical issues of colorable differences and infringement, all of which are heavily interrelated. EchoStar's state of mind is not in issue.

Despite these facts, and despite the fact that EchoStar will have more than a full month to prepare for the hearing after it serves its expert report on January 13 (Docket No. 879.1) (stipulation), EchoStar claims that it wants more time still, and not just a short continuance, but a full four month delay. (Mot. at 5). In the alternative, EchoStar asks that the issues be "narrowed" so that colorable differences will be addressed first, and infringement in an entirely separate hearing. (Motion at 1). EchoStar's demands lack merit. A full month following EchoStar's service of its expert report is more than enough time for EchoStar to prepare for a hearing on these narrow technical issues, especially as the infringement issues on which EchoStar claims it needs more time are the very same issues it claims to have focused on for more than two years, as it supposedly made its software modifications to avoid infringement of TiVo's patent. A delay of the hearing until June 2009 cannot be justified and would cause TiVo ongoing injury. In addition, just one month ago, this Court rejected a virtually identical request to hold separate hearings on colorable differences and infringement. (Docket No. 869). In the wake of that ruling, EchoStar voluntarily withdrew a petition for writ of mandamus that it had filed with the Federal Circuit on the issue. (Docket No. 873). EchoStar offers no reason whatsoever for the Court to reconsider the decision not to hold two separate hearings on such related issues.

It appears clear that EchoStar does not want the issues for the hearing narrowed, but expanded to include matters irrelevant to contempt, including validity and EchoStar's state of mind. EchoStar's desire to litigate matters not relevant to contempt cannot justify adding four months of delay to the ongoing irreparable harm TiVo has already suffered. The hearing should go forward on February 17 and 18, as planned.

What could be motivating EchoStar's serial "emergencies" seeking to avoid litigation of the very issues that EchoStar contends must be decided? Has EchoStar no faith in its current alleged design around? Is it planning another software download to try to stay perpetually one step ahead of any enforcement of the injunction? Is it going to file yet
another writ petition or another lawsuit in another jurisdiction to seek to further undermine this Court's authority? The currently scheduled February hearing will take place almost three years after the jury verdict and almost a year after that verdict was upheld on appeal and the stay of the injunction was lifted. EchoStar has had more than enough time to prepare for this hearing. No further delay is justified.

[Adam1115]

Great summary Mark, thanks!!

[timckelley]

I love TiVo's reply.

[CuriousMark]

It looks like the judge decided not to reduce the scope of the hearing or delay it for four months. He did give Echostar and TiVo each an additional 2.5 hours to present their cases at the currently scheduled hearing.

[morac]

According to this article (http://www.multichannel.com/article/CA6629442.html), the USPTO is going to re-examine the time warp patent's validity again at the request of Echostar.

[timckelley]

There should be a law against how drawn out this whole process is.

[mindchaotica]

and the lesson we learn here kiddies, is don't go calling your dvr better then TiVo when your software is just like TiVo's, and then go and thumb your nose at TiVo.

[20TIL6]

and the lesson we learn here kiddies, is don't go calling your dvr better then TiVo when your software is just like TiVo's, and then go and thumb your nose at TiVo.

I don't think DISH has learned anything. They have yet to be forced to do anything. It was only until the SC refused to hear their case that they released the $100 million in damages awarded from the 2006 judgment.

But they have continued to thumb their nose at the Federal Court by not adhering to the injunction, secretly implementing a software update that only they and their counsel say does not infringe, and filing additional litigation in other jurisdictions.

If anything, DISH has taught everyone that if you are going to thumb your nose, do it with gusto and don't limit your snubbings to a single target. Snub with flair, snub aggressively, snub anyone or anything that gets in your way. Gaining and keeping market share is the key, so pay the lawyers and work the system. That's what DISH has taught us. Ethics Shmethics.

[CuriousMark]

You left out that they have taught us that patents can be pretty much ignored if you have deep enough pockets.

[Greg Bimson]

TiVo filed last week an emergency motion. That motion is sealed, yet the motion's subject is exactly known: TiVo wants part of DISH/SATS expert testimony stricken from the record.

CuriousMark posted this excerpt from TiVo's response to DISH/SATS emergency motion to postpone the hearing:It appears clear that EchoStar does not want the issues for the hearing narrowed, but expanded to include matters irrelevant to contempt, including validity and EchoStar's state of mind. EchoStar's desire to litigate matters not relevant to contempt cannot justify adding four months of delay to the ongoing irreparable harm TiVo has already suffered. The hearing should go forward on February 17 and 18, as planned. TiVo believes DISH/SATS expert testimony contains arguments about the validity of the patent, which was discussed and determined during the original trial. According to TiVo, validity is not a valid argument during this phase of the litigation.

[CuriousMark]

There was some motion in the case recently. Dish filed an expert report claiming the TiVo patent is invalid because they were using a different theory of infringement than was used at trial. TiVo fired off a motion about a week ago to suppress those arguments because patent validity cannot be challenged in a contempt procedure. Today the judge agreed with TiVo and had the 42 paragraph's of Dish's expert report that claimed invalidity stricken from the case.

This is a small scale tactical win for TiVo in the run up to the Feb. 17th hearing. Only the infringement or non-infringement will be discussed. Essentially, the judge did not let Dish try to change the subject.

[bkdtv]

How was the first day of the bench trial?

[nrc]

Sounds like it will be at least a couple of months after the hearing before a ruling: Dish Ruling Won’t Be Immediate, TiVo Judge Says (http://www.bloomberg.com/apps/news?pid=newsarchive&sid=agR09dwBlFnU)

[CuriousMark]

Based on the report I read it was mostly boring. The report said that Storer, TiVo's expert, presented his side well and that his testimony seemed to stand up to cross examination well. Next up was Dish's Dan Minnick who was reported to be a very likable witness. He will be cross examined by TiVo today. There are active threads at DBSTalk and Investor Village for those who want to follow in more detail.

[Curtis]

Interesting excerpts from hearing minutes:

"2 DAY OF HEARING, WEDNESDAY, 2/18/09
8:41 ICC with Chu and McElinny; ct/ both CEO’s in the courthouse, would it be helpful to chat with them; McElhinny/ agrees; Chu/ responds, CEO not here; ct/ if Mr. Barton can deliver msg well and fine; how can Judge Faulknor be of help; McElhinny/ 2 general counsel are here; Chu/ this is great; ct/ can meet at end of the day; discuss with them and if they feel it won’t be of help that is fine; 8:48 recess "

Later:

"4:49 Chu/ responds;
4:49 ct/ let’s take up some cross;
4:50 Chu/ cross of Thomas Rhyne;
5:00 McElhinny/ do you anticipate closing arguments tomorrow;
5:00 ct/ no;
5:00 recess;
5:06 ICC w/ Chu and McElhinny; ct/ do we have any realistic expectation of this being helpful; McElhinny/ responds; ct/ don’t mind taking a few minutes initially, want you two present; 2 general counsel and mr. Barton and Mr. Ergen; McElhinny/ would also like to include John Pickett; Chu/ responds; 5:10 recess; 5;15 ICC w/ Chu, Jim Barton (rep), Matt Zinn (gen. counsel), Stanton Dodge (gen. counsel), McElhinny, Pickett, Charles Ergen (rep); ct/ address’ pty; anything I can do to help the process, if anypossible way to bridge whatever bridge there is; Chu/ Judge Faulknor has been working very hard; Pickett/ we have talked and continue to have discussions; ct/ any suggestions on how we might go forward to resolve this; Zinn/ last discussion; ct/ should make serious efforts to resolve this before I enter a ruling; encouraging you to do so; Zinn/ would like to have a deal done; ct/ you should be meeting with Mr. Rogers; Ergen/ maybe; ct/ I think everybody has my message; 5:26 recess; "

[BlackBetty]

ct/ should make serious efforts to resolve this before I enter a ruling; encouraging you to do so; Zinn/ would like to have a deal done; ct/ you should be meeting with Mr. Rogers; Ergen/ maybe; ct/ I think everybody has my message; 5:26 recess; "


Great news. Deal should be done and announced soon. Hopefully TiVo sticks to their guns and gets everything they want. They should, it looks like they have the courts on their side. The gold plated revolver has been loaded and handed from the courts to TiVo....now to place that to Echostars temple.

[nrc]

Yeah, I don't see any way to read that other than the Judge warning Dish that they are headed for a world of hurt if they don't settle before a ruling.

[gordonm169]

Any Updates in the hearings. Its been almost 3 months with out any further motions.

[CuriousMark]

No word from the judge in Texas. His ruling could come any day now. Then again, he may be waiting to see if the Delaware judge transfers the other case that Dish filed to him first. Of course if the Delaware judge is waiting to see the Texas judge's ruling before transferring the case, we may have a judicial standoff and it could be a long time before either of them moves a muscle.

[timckelley]

we may have a judicial standoff and it could be a long time before either of them moves a muscle.

If judicial deadlock occurs, I wonder if the lawyers could ask them to undeadlock themselves.

[MichaelK]

No word from the judge in Texas. His ruling could come any day now. Then again, he may be waiting to see if the Delaware judge transfers the other case that Dish filed to him first. Of course if the Delaware judge is waiting to see the Texas judge's ruling before transferring the case, we may have a judicial standoff and it could be a long time before either of them moves a muscle.



serious question- since the 2 cases are somewhat related- they wouldn't talk to each other to see who's going to do what?

[CuriousMark]

serious question- since the 2 cases are somewhat related- they wouldn't talk to each other to see who's going to do what?

I would hope so, but have no real clue. This is purely speculation as to why it has taken both judges so long to say anything at all. Take it with the requisite grain of salt.

Someone posted elsewhere that the Texas Judge, Folsom, typically takes a little less time than this to render a judgment, so perhaps he is just dotting "i"s and crossing "t"s or perhaps he has just been busier than usual until now. Those guesses are just as likely, but not quite as much fun to speculate about.

[CuriousMark]

It appears that Delaware has transferred the Dish lawsuit to Texas. Now everything related to this case is in the hands of judge Folsom. If the Delaware lawsuit was a delaying tactic by Dish, it certainly seems to have been effective. It hung out there for nearly a full year before being transferred.

This report is based on a posting at another forum, but I believe the original poster to be credible.

[mindchaotica]

it's things like this that make me happy i don't have Dish. cause this is just going to get more messy.

[nrc]

It appears that Delaware has transferred the Dish lawsuit to Texas. Now everything related to this case is in the hands of judge Folsom. If the Delaware lawsuit was a delaying tactic by Dish, it certainly seems to have been effective. It hung out there for nearly a full year before being transferred.

This would actually be another win for TiVo. It hasn't caused delay, just cost both sides more money while they wait for Folsom's ruling.

It shouldn't impact the decision that Folsom has pending now. He can make a ruling on contempt based on the information he has now. He may also be able to also rule on continued infringmrny. If not more proceedings would be required anyway and the field is now clear for those.