It’s nice to be able to tell all those doubters out there that we told you so, but history and the constant examination of the original TiVo patent has proved to be correct here as TiVo proudly came out with a statement about being vindicated in the re-examination of its core Time Warp patent.
In a previous decision the USPTO said that the patent was not valid, and TiVo warned that this was exactly what happened last time the patent was examined, and that it was not a final decision, more a request for more data.
This decision TiVo now insists IS final, and we think that it might be. It does not get TiVo of the En Banc legal review of the findings in the original patent case against Dish Networks and EchoStar, which means that it has to prove its case all over again, to a new court ‘ but that mostly refers to the way in which payments were awarded once a contempt of court was decided.
In that review no-one is saying that TiVo doesn’t have extremely valuable intellectual property that was infringed and now they can’t because the USPTO has confirmed its original view, but they are saying that a US District Court needed to come up with a better way to decide if a software ‘re-write’ in a Dish DVR, was acceptable, rather than having the court find Dish guilty of contempt of court and simply doubling its fine. That case gets heard in November and if it goes against EchoStar it is likely to have to capitulate there and then. The worst thing the Court could do is say that the software re-write gets around TiVo’s patents, but we think that outcome is unlikely given the broadness of the wording of the patent.
TiVo made the point that this recent decision by the USPTO is final and cannot be appealed by EchoStar. It is looking more and more likely that EchoStar will be forced to reach a settlement with TiVo or risk having 4 million DVRs switched off. And that result will mean that AT&T and others will be forced to come to licensing terms with TiVo. TiVo shares sustained a 10% hike on the decision, but there is more to come if that November decision goes its way.