Patent Law

Texas Jury Buys Tivo's Bull?

By Les Weinstein, Michael Young, John Leo Wagner, Eric van Ginkel, and Victoria Pynchon

IP Trial Strategy: Buying Tivo's Bull

Zusha Elinson
The Recorder
June 26, 2009

 

As the make-or-break patent trial between Tivo Inc. and EchoStar Corp. got under way in Marshall, Texas, Tivo's top brass had an idea: Let's buy a cow.

It was late March in 2006, and that meant it was time for Farm City Week in the home of America's most popular venue for patent litigation. Featuring the Harrison County Cattlemen's Ball and the 4-H Cake Show, the main event at Farm City Week is the livestock auction, where prize-winning steers, heifers, lambs, goats, broiler chickens and rabbits are sold by dedicated young farmers.

Samuel Baxter, perhaps the best-known lawyer in the Eastern District of Texas, was representing Tivo, along with Irell & Manella's Morgan Chu, the big-time, bow-tie-loving patent litigator. Baxter recalls now how execs at Tivo, an Alviso, Calif., company that makes set-top digital video recorders, told him, "Wouldn't it be great if we could go to the auction and buy a cow because the people have been so nice to us here."

The McKool Smith lawyer did that and more. Baxter bid on the Grand Champion Steer -- the most prized farm animal at the auction -- and bought it for what at the time was a record-breaking sum of around $10,000. The lucky steer-raiser was a high-school senior from Hallsville, who, like all the students selling animals, got to keep the money for herself to use for college. They named it Tivo.

Perhaps lacking sufficient grazing land in Alviso, Tivo offered to give its namesake back to his original owner, Baxter says, but she couldn't take their bull because she was headed off to college. "We turn 'em into steaks and burgers," he says.

Cynics might view it as a rich, out-of-town company trying to influence the jury pool in a small city of 25,000, where the grand champion is big news. But Baxter says it was just a symbolic gesture of kindness on the part of his client. "I thought it was great that the Tivo people were so nice and wanted to help out in the community like that," he says.

Two weeks later, on April 13, the Marshall jury found EchoStar (now known as DISH Network) guilty of infringing Tivo's "time warp" patent, used in technology that lets viewers record, fast-forward and rewind TV shows. And it awarded Tivo $74 million in damages.

Continue reading here.  I'm wondering what Anne Reed of Deliberations has to say about this.

Full post as published by IP ADR Blog on June 26, 2009 (boomark / email).