On April 11th, when their petition was denied, EchoStar issued a statement in which they said:
The decision, however, will have no effect on our current or future customers because EchoStarâ€™s engineers have developed and deployed â€˜next-generationâ€™ DVR software to our customersâ€™ DVRs. This improved software is fully operational, has been automatically downloaded to current customers, and does not infringe the Tivo patent at issue in the Federal Circuitâ€™s ruling.
â€œAll DISH Network customers can continue to use their DVRs without any interruption or changes to the award-winning DVR features and services provided by DISH Network.
It seems there was a missing asterisk on that statement. The boards at Investor Village have links to two notices sent out by Dish Network on April 18, 2008 and posted at DBSTalk. While Dish claims that a software update to several DVR models make them non-infringing (a claim TiVo has disputed in public comments, but that’ll be up to the courts to decide), it seems some models of Dish PVR are still infringing:
Pursuant to the Amended Final Judgment and Permanent Injunction, DISH Network and EchoStar are permanently enjoined from making, using, offering to sell, selling, or importing in the United States, the following products: DP-501, DP-508, DP-510, DP-522, DP-625, DP-721, DP-921 and DP-942 (the “Infringing Products”), either alone or in combination with any other product, and all other products that are only colorably different therefrom in the context of certain claims of TiVoâ€™s â€™389 patent (the “Infringed Claims”), whether individually or in combination with other products or as part of another product, and from otherwise infringing or inducing others to infringe the Infringed Claims. In addition, DISH Network and EchoStar were ordered to disable the DVR functionality in all but approximately 192,000 of the Infringing Products in the field within thirty days of the issuance of the injunction order.
The injunction had been stayed during the appeal, but the stay was lifted on April 18. Dish is claiming that this will not impact any DVRs in the field as fewer than the exempted 192,000 units are infringing, and the remainder of the models have been updated with the new software. Specifically:
This is a clarification of the “Notice of Tivo Injunction” that was sent this morning. DVR models 501, 508, 510, 522, 625, 622, Homezone 622, and 722, have all received the redesigned software and can continue to be sold, installed and activated. With respect to those models, no further action is necessary on your part at this time. However, the 721, 921, 942 and Homezone 1022 models did not receive the redesigned software. Because the injunction goes into effect today, any existing inventory of those models that has not yet been installed or activated for a customer cannot be installed or activated in the field. 721, 921, 942 and Homezone 1022 models that are already installed and activated are not subject to the injunction and can continue to be used by customers.
So, if Dish’s claims hold up, the injunction should have no impact on existing Dish PVR users. Only distributors who still have any stock of the older models are impacted as they’re now unable to activate those units under the terms of the injunction.
Of course, I don’t expect this to be the last we hear of this. Dish has already said they plan to appeal the case to the US Supreme Court, and TiVo has made public comments of disbelief regarding EchoStar’s claims of a software update making the products non-infringing, so TiVo could fight that claim in court to seek to apply the injunction to the rest of the Dish PVR models.
Picked up from EngadgetHD.
Disclaimer: I’m currently employed by Sling Media, which is owned by EchoStar. But I have nothing to do with Dish Network nor the DVR products. I’m just reporting on the statements as posted.