It’s easy to understand why so many media and technology watchers are riveted by TiVo’s bitter patent infringement court fight with Dish Network. TiVo says it owns most of the processes that define the DVR — including the ability to watch one show while recording another. If TiVo can persuade the courts that the DVRs Dish provides to its satellite customers violate TiVo patents, then just about every cable and satellite company will have to pay TiVo to keep their own DVRs going. If TiVo loses the legal battle, then the company whose name is synonymous with the DVR probably will be kaput.
The U.S. Federal Court of Appeals could have delivered either side a knock-out blow on Wednesday in a ruling on Dish’s appeal of a lower court decision favoring TiVo. Instead the court gave both companies a reason to claim victory. TiVo prevailed in its argument that Dish’s older DVRs violated TiVo patents. That puts Dish on the hook to pay about $90 million to TiVo. Dish says that it has largely replaced the older DVRs with newer models that don’t violate TiVo’s patents — a claim that TiVo also disputes. The appeals justices left it to the lower courts to sort that out. And that gave Dish what it wants: the opportunity to drag the case out as long as possible in the hope that TiVo either loses, or runs out of cash. TiVo borrowed $150 million last month, mostly to keep going with its patent case against Dish — as well as similar clashes with Microsoft, AT&T, and Motorola. The patent that TiVo’s most eager to defend expires in 2018.
Wall Street seems to think that TiVo got the best of the deal on Wednesday. The DVR company’s shares closed at $10.84, up nearly 30%. Dish was down about 1% to $23.58. Yet Dish vows to bombard the courts with arguments in favor of keeping the new models going, and ask the U.S. Supreme Court to overturn the new appeals court ruling involving the older DVRs. Dish “could have a good case” at the high court, Wells Fargo analyst Marci Ryvicker says.