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While Davis Freeberg believes recent developments in the TiVo/Echostar patent infringement suit may indicate an imminent settlement, a ZNF secret agent has a different take. -DZ

The story so far
TiVo filed a patent infringement suit against Echostar covering most of Echostar’s DVRs. In April, a jury found that Echostar infringed TiVo’s patent on all the contested claims, that the patent was valid, and that the infringement was willful. The jury awarded TiVo about $73 million dollars in damages. Later the judge in the case increased the damages to about $88 million (for interest during the period of infringement and damages and interest from the time between the jury award and the final judgment). He also ordered an injunction, preventing Echostar from further use or sale of the infringing DVRs (i.e., Echostar had to turn off more than three million of their customer’s DVRs). Echostar appealed the verdict, and was given a stay of the injunction.

What just happened
Recently Echostar made a motion to the appeals court to extend the time, by 60 days, for them to file their so-called “Blue Brief” (i.e., the appellant’s primary brief to the court). The brief was due 10/23. It was an unusual request because appeals courts are notoriously unforgiving, and would likely reject such a request unless it was for a very good reason. Tivo responded to the motion, and Echostar replied to TiVo’s response.

Today, the motion was ruled moot (i.e., irrelevant), because the court issued this order:

ORDERED: Briefing schedule stayed. EchoStar to notify this court within 14 days of date of disposition of final postjudgment motion in dist ct.

What this means is that the entire appeal has been put on hold. Why? Because the court has determined that some aspect of the “final postjudgment motion” must be resolved before the case can proceed. (This issue was probably the reason that Echostar requested the delay, but the court, being no-nonsense, realized that 60 days was arbitrary, and simply said, “tell us when it has been resolved”.)

What is the issue?
The real question is what this “final postjudgment motion” is, and what does it contain that would put the appeal on hold? Not having the actual order from the court, we have to speculate. As I see it, there are two possibilities:

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Davis Freeberg believes recent developments in the TiVo/Echostar patent infringement suit may indicate an imminent settlement. -DZ

In the latest twist for the blogosphere’s favorite patent telenovela, the Federal Appeals court overseeing the current stage of TiVo’s patent case against Dish, has put EchoStar’s patent appeal on pause for the next 14 days, pending the settlement of the case. According to the Pacer court of appeals website, the following entry was recorded last night.

10/30/2006: ORDERED: Briefing schedule stayed. EchoStar to notify this court within 14 days of date of disposition of final postjudgment motion in dist ct. By: Motions Panel. Judge: Gajarsa
SERVICE: by Mail on 10/30/2006

In addition to this order item, there was also the following action posted on the site:

ACTION: Entry 27: Motion moot

While I don’t play a legal expert on TV or even pretend to understand the subtle legalese of the Pacer website, I did contact a friend of mine who is an attorney in Texas, and he said that the order likely meant that TiVo and Echostar are very close to a settlement, but that the details haven’t been completely finalized.

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