DAY NINE: TiVo-EchoStar Trial – Final Day of Testimony (Tues Apr. 11)
The April 12 Marshall News Messenger account of the trial (upon which I am wholly reliant) largely presents a recap of some of earlier testimony. However, it does contain a few new testimony details.
Jim Barton returned to the stand to rebut allegations made by EchoStar’s witnesses claims that “trick play” technology elements existed in products prior to TiVo’s May 15, 2001 patent grant. Barton also refuted Ergen’s prior testimony: (i) that the only technology TiVo had to offer was a feature that tracked viewing habits of users; (ii) that these features invaded users privacy; and (iii) that TiVo wanted to sell that information to advertisers and split the proceeds with Echostar. [Dale's Note: This earlier Ergen testimony was not previously reported as far as I know]. Barton testified that this was not true, that as users of TiVo they did not want their privacy violated either, that TiVo’s method of aggregating data in no way personally identified individual users and that the the FTC gave TiVo a clean bill of health saying it obeyed the letter and spirit of all privacy laws. On cross-examination Echostar’s lawyer attempted to refute Barton’s claims that TiVo created a cost-effective DVR by pointing out TiVo’s boiler-plate language in its Jan 31, 2004 10-K where it said: “Consumers may not be willing to pay for our products and services since they are already paying monthly fees for cable and satellite connections.” [Dale's Note: What this gets Echostar I don't understand - this statement was nothing more than a typical boilerplate statement, the likes of which are made in every public company's SEC filings.]
TiVo also called Professor Jim Storer of Brandeise University as a patent ‘validity’ expert to counter Echostar’s ‘invalidity’ expert, Dr. Nathaniel Polish. The essence of Polish’s earlier testimony was that some 50 DVR-related “prior art” patents pre-existed TiVo’s patent, thereby nullifying TiVo’s patent claims. Storer testified that Tivo’s patent is “absolutely” valid: “This is pioneering technology … [s]ure, all these bits and pieces – that were very expensive – existed before, but I have seen no prior system that does all these steps …”. The prior patents dealt with “little pieces of technology … in incremental steps … [t]here’s a big difference between these and the gigantic leap of putting all of them together as is done in the Barton patent”.
Both sides rested their case Tuesday. Judge Folsom is using today (Wednesday) to rule on various issues and to prepare his charge to the jury. He advised the jury to bring a sack lunch on Thursday to start their deliberations.