DAY FIVE: TiVo-EchoStar Trial (Wed Apr. 5)
Echostar first made routine motions for dismissal (arguing Echostar’s use of non-infringing alternative technology) that were rejected by Judge Folsom. Echostar called its first witness, Dave Kummer, VP of Engineering and Technology. His testimony revolved around the development of EchoStar’s 7100 and 7200 set-top boxes that had a pause feature before PVRs existed. He testified that other features such as rewind, fast-forward and record were added to the 7200 model in December of 1999. He testified that when Barton approached Echostar in 2001 or 2002 about building a set-top box for Echostar, the company already had its own. After meeting with Barton, he says, Echostar determined that its customers did not need the extra features that TiVo was building for DirecTV. TiVo’s attorney Morgan Chu, in his remarks on cross-examination pointed out that “the key is the media switch … and there is a Barton media switch in every one of EchoStar’s products”. “We agree they built their own boxes, but we disagree that they own their own technology”.