In the ongoing patent spat between DISH Network & EchoStar and TiVo there has been another exchange. First DISH Network issued this statement:

DISH Network Corporation (Nasdaq: DISH) and EchoStar Corporation (Nasdaq: SATS) issued the following statement regarding recent developments in the TiVo Inc. v. EchoStar Communications Corp. lawsuit:

“We are pleased that the Patent and Trademark Office (PTO) granted our Petition for Re-Examination of the software claims of TiVo’s ‘389 patent, which are the subject of TiVo’s current motion for contempt. The PTO found that there is a ’substantial new question’ of patentability as to the software claims in light of prior patents that appear to render TiVo’s ‘389 patent invalid as obvious.”

And TiVo responded with their own statement:

TiVo Inc. (Nasdaq: TIVO), the creator of and a leader in television products and services for digital video recorders (DVR), offered the following statement today regarding the decision by the United States Patent and Trademark Office to reexamine the software claims of TiVo’s Time Warp Patent:

“EchoStar filed its latest request for reexamination after TiVo asked the United States District Court to hold EchoStar in contempt of the Court’s injunction requiring EchoStar to disable its DVR functionality. An evidentiary hearing on the contempt issues is scheduled to be held on February 17 and 18, 2009.

“EchoStar’s latest tactic follows numerous failed attempts to invalidate TiVo’s groundbreaking Time Warp patent. In 2006, the District Court rejected all of EchoStar’s validity challenges after a full jury trial and the judgment of validity was affirmed by the Federal Circuit in 2008. The USPTO also conducted a prior reexamination of the Time Warp Patent at EchoStar’s request, which concluded on November 11, 2008, with the USPTO issuing a Reexamination Certificate confirming the validity of all of the claims of the Time Warp Patent without any change. EchoStar’s latest request for reexamination is based on a combination of two prior art references that were both already submitted to the USPTO in connection with the earlier reexamination. The USPTO grants most patent reexamination requests. Contrary to EchoStar’s statement, the USPTO made no substantive findings. We are confident that the USPTO will once again confirm the validity of all of the claims of the Time Warp patent.”

Round and round we go…

The EchoStar HD DuoDVR SlingLoaded ViP 922 won CNET’s “Best of CES” today, and two of G4’s judging panelists, Attack of the Show host Kevin Pereira and Wired’s Chris Hardwick, both picked EchoStar’s SlingLoaded 922 as their very favorite out of the entire 2009 CES. The EchoStar 922’s unique user interface and remote control were also selected as CES Innovations 2009 Design and Engineering Award honorees prior to the show.

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Welll, in just under 10 hours I should be on a plane to Las Vegas, NV for CES. The show properly is Thursday-Sunday, but there are press events Tuesday and Wednesday which I’ll be attending. During the show itself I’ll be splitting my time between working Sling Media’s booth and trying to visit other vendors as a blogger. As is usual for me, my first victim, er, target of the show will probably be TiVo. Since I’ll be working half the show my time for seeing the rest is cut in half, but I’ll try to do what I can.

Going into this CES I’m not sure what the big deal is going to be this year, if there is one. The economy is down and I haven’t really felt any particular buzz about any given area of the market. HDTVs get bigger while getting thinner and faster (refresh rates). We may see some interesting 3D technologies which will start to enter homes in the next few years. Palm is expected to announce Nova and new hardware, but I’m not excited. I was a die-hard Palm OS user for many years, since 1998, and still carry a Treo 680. But after five or more years of waiting for Palm OS 6 Cobalt Nova I just don’t feel that inspired. I’m already focused on Android as my next likely platform, and it would take a lot for Palm to sway me. Even if they produce an incredible OS, they have an uphill battle ahead to win over developers. I don’t think they have a real chance at this point to gain significant market share. And without that the developers won’t come – and the apps really make the platform.

Going forward I think the mobile market will effectively be, in no particular order, Windows Mobile Professional, BlackBerry, Symbian S60, iPhone, and Android. The original Palm OS is the walking dead, and I don’t see Nova/Palm OS II carving out enough market share to be viable. Symbian UIQ is effectively dead as SonyEricsson and Motorola have pulled out and the Symbian world is focused on the S60-based open source effort. Windows Mobile Standard (aka Smartphone) is rapidly dying as Professional-based touch screen devices move into the lower end of the market where Standard used to focus. I expect Android, which is basically just coming into the market, to post the biggest gains as more devices land. I think the LiMo/LIPS effort will falter and expect to see some of the vendors who have been working on it switch to Android. I think those five platforms will provide the bulk of the smartphone market, anything else will be a small niche.

We’ll probably see more tru2way devices on display from a number of vendors this year, but I don’t know that we’ll see anything revolutionary in that market. I’m hoping TiVo may be showing off their ‘Series4′ tru2way-enabled model, which they’re believed to have been working on for a while. And they may be showing their new DirecTV software, which I expect will be running on the HR20/21/22 DirecTV DVR Plus hardware. I’m not expecting anything else major, maybe some new content partnership announcements and perhaps plans to bring TiVo to more countries. (I’m surprised they haven’t re-launched in the UK yet with the DVB-T model actually.)

The past couple of years the Blu-ray vs. HD-DVD fight provided some interest. But that was effectively over with CES2008, and officially ended when Toshiba threw in the towel in February. There aren’t likely to be any big announcements in the Blu-ray world, aside from more content partnerships like LG adding CinemaNow and YouTube to Netflix on their players. Maybe someone will be showing off higher density disc or 3D content concepts.

I’m hoping to be surprised by something at the show, something just unexpected. If you know of something I should be on the look out for, do let me know. And if you’re going to CES drop by the Sling Media booth and say hello. I believe I’m on the afternoons of Thursday, Saturday, and Sunday, and on Friday morning. I’m also scheduled to present for Sling Media at CntrStg on Saturday. Frankly I’m nervous as hell about that. It has been years since I’ve done a presentation or talk at a tradeshow and never at anything as big as CES.

OK, off to finish packing.

On November 20th the U.S. District Court of Texas set a date of February 17, 2009 for a bench trial to determine if EchoStar’s software is still infringing on TiVo’s patents. But now, according to the San Jose Mercury News, Dish Network is angling for a jury trial on the issue.

If the U.S. Court of Appeals for the Federal Circuit in Washington decides that a jury trial is warranted, it would bring everything around to where it was a few years ago – a trial to determine if TiVo’s patents are being infringed. While the jury in the first trial sided with TiVo, and the verdict was upheld on appeal, Dish claims that their new software is no longer infringing. So if a new trial is granted it’d be the same case, redux.

I Am Not A Lawyer, but it seems odd to me. Can this be stretched out indefinitely just by issuing software updates and saying each one needs a new jury trial to determine if it is infringing? I think this show jumped the shark.

Disclaimer: I work for Sling Media, which is owned by EchoStar.

On Thursday the United States District Court of Texas set a date for a bench hearing to decide of EchoStar and DISH Network’s software workaround makes their DVRs non-infringing to TiVo’s patents, as well as if they’re in contempt of the court’s injunction and if more damages are owed to TiVo, on top of the $104.6 million already awarded. The bench trial will take place February 17, 2009.

After the announcement, EchoStar and DISH Network issued this statement:

“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.”

TiVo responded with a statement of their own:

“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.”

So more jousting on both sides. Now we stay tuned until February.

UPDATE: TiVo issued a revised statement today, note the difference:

“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 yesterday, 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 (which EchoStar admitted at the September 4, 2008 hearing are owed) 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.”

Disclaimer: I work for Sling Media, which is owned by EchoStar.

In a larger article in TWICE about the Community Broadcasters Association (CBA) joining with Dish Network to promote their digital-to-analog converter boxes was a little nugget I found interesting.

Dish Network is selling several converter boxes — the TR-40 CRA, DTVPal, DTVPal Plus and the DTVPal DVR (the latter available latter[sic] this month) — that will receive and convert digital TV signals to analog and pass through remaining low-power TV channels.

Information on the DTVPal DVR, introduced back at CES as the EchoStar TR-50, has been pretty scarce. It is an OTA-only DVR, basically a DTVPal (TR-40) converter box with added DVR features. So it’ll be interested to see those hit the market.

As for the main subject of the article, the CBA will be teaming with Dish Network to promote Dish’s lineup of converter boxes to TV viewers who will be impacted by the February 17, 2009 digital transition.

Disclaimer: I work for Sling Media, which is owned by EchoStar, who makes the boxes for Dish Network.

Following the Supreme Court’s decision Monday not to hear the case, DISH Network yesterday paid TiVo $104,600,472. That covers the initial $74 million damages award, plus interest and supplemental damages through September 8, 2006. TiVo is still pursuing additional damages and seeking to enforce the injunction against DISH in the District Court of Texas. TiVo issued the following statement:

“We are pleased to have received $104,600,472 from EchoStar on October 8, 2008, which includes the initial $74 million in damages awarded by the United States District Court for EchoStar’s willful patent infringement as well as supplemental damages covering the period through September 8, 2006 and interest. We remain confident that the District Court will enforce the injunction and award further damages from EchoStar’s continued infringement of our Time Warp patent.”

Judge Folsom in Texas had said he’d try to render his decision by October 1, but that it may come as late as November. As the decision has not yet been delivered, we may have a few more weeks before the final word. Then, of course, DISH there could be further appeals of his decision.

The US Supreme Court today declined to hear DISH Network’s appeal of TiVo’s patent victory, effectively upholding the ruling. DISH Network will now pay TiVo $104 million, the amount awarded by the jury in 2006 plus interest, which has been held in escrow during the appeals process.

TiVo issued the following statement:

“We are extremely pleased that the United States Supreme Court has denied EchoStar’s petition to review the United States Court of Appeals for the Federal Circuit unanimous ruling that upheld the District Court judgment of willful patent infringement, full award of damages, and a permanent injunction against EchoStar’s infringing DVR products. We look forward to the expeditious receipt of damages awarded by the District Court covering the period through September 8, 2006 and remain confident that the District Court will enforce the injunction and award further damages from EchoStar’s continued infringement of our Time Warp patent.”

DISH Network and EchoStar issued their own statement a short time later:

“As expected, the Supreme Court denied our petition for certiorari today.

The Supreme Court’s decision, however, does not impact our software design-around, which has been placed in DISH DVRs subject to the district court’s injunction, and our customers can continue using their DISH DVRs. We believe that the design-around does not infringe Tivo’s patent and that Tivo’s pending motion for contempt should be denied. We look forward to that ruling in the near future.

Because of the Supreme Court’s decision, we will pay Tivo approximately $104 million (the amount the jury awarded in 2006 plus interest). The money is in an escrow account and will be released to Tivo in the next few days.”

This is not the end however, the US District Court in Texas has yet to rule on additional damages as well as the injunction. TiVo claims that DISH Network continued to infringe after the initial award, and indeed continues to infringe, and therefore TiVo is entitled to additional damages. Further they claim that the DISH Network DVRs are subject to the injunction that is part of the initial ruling, upheld today, and therefore must be switched off.

DISH Network for their part claim that a software ‘design around’ they deployed following the ruling makes their DVRs no longer infringing, and hence means there should be no additional damages and, more importantly, that their DVRs are not subject to the injunction.

So depending on how Judge David Folsom decides in Texas this could be the end, or DISH Network could be facing additional payouts and potentially needing to disable millions of DVRs in the field. (Personally I don’t think it’ll come to that. If they’re ordered to switch them off I expect an 11th hour deal with TiVo to license the patents to keep them on.)

But today’s decision does seem to finally be the beginning of the end for this long legal saga.

Disclaimer: I’m employed by Sling Media, which is owned by EchoStar.

I’ve said it before, and I will probably say it again, all 1080p content is not the same. There is more to picture quality than lines of resolution or pixel count, bit rate is equally important, if not more so. With DirecTV, DISH Network, VUDU, and others touting their 1080p content they’re often comparing it to the gold standard in home video – Blu-ray Disc. As DISH Network did just the other day: “Blu-Ray Disc quality 1080p resolution”. And that doesn’t get into the audio, which doesn’t come close to the lossless audio available on many Blu-ray titles. Well, it looks like the Blu-ray Disc Association has finally had enough, according to David Mercer at StrategyAnalytics:

These claims have clearly struck a sensitive nerve within the Blu-ray community, which, given their strategy as outlined above, is perhaps not surprising. Today the BDA has given me the following statement:

“A number of companies have recently launched advertising campaigns claiming their products deliver high definition picture and sound “equal” to that delivered by Blu-ray Disc. These comparisons are irresponsible and are misleading to consumers. Up conversion and satellite broadcast cannot provide a true Blu-ray high definition experience, as neither is technically capable of producing the quality delivered by Blu-ray players and Blu-ray discs. To that end, the Blu-ray Disc Association is exploring these claims further and will take appropriate action, as necessary, to prevent consumers seeking the ultimate in high-definition home entertainment from being misled.”

I’m happy to see this. Blu-ray has struggled to educate consumers about higher quality home cinema, and now that it is started to gain recognition and traction in the market other vendors are trying to ride their coattails by tricking consumers into thinking they offer the same quality experience just because they’re also ‘1080p’.

Picked up from EngadgetHD.

DISH Network now offers all of the standard- and high-definition programming via MPEG-4 AVC in 21 markets: Cleveland, OH; Richmond, VA; Baltimore, MD; Columbia, SC; Tampa, FL; Green Bay, WI; Greensboro, NC; Providence, RI; Greenville, SC, Knoxville, TN; Raleigh, NC; Chicago, IL; Detroit, MI; Charlotte, NC; Dallas, TX; Nashville, TN; Minneapolis, MN; Philadelphia, PA; Washington, DC; New York, NY; and Hartford, CN. The all-AVC service will be rolled out to additional markets over time. DISH is the first pay-TV provider to offer all-AVC service.

The migration to MPEG-4 AVC away from MPEG-2 will allow DISH Network to add additional channels, especially HD content, as the new codec is more efficient and allows for more channels to be carried by the available satellite transponders.

Dish issued a press release, though I take issue with the phrase “Blu-Ray Disc quality 1080p resolution”. While it may be 1080p HD content, and Blu-ray is indeed 1080p, DISH sure as hell is not coming close to the bitrates delivered by Blu-ray (nor would I expect them to), so they can’t match the overall image quality. Not to mention the lossless audio available on many Blu-ray titles. Here’s the release:

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