Whether you agree with the current patent system or not is irrelevant to this decision. I personally believe software patents should be limited to only half of the valid time compared to the conventional patents simply because how fast the new technologies may change.
But under the current system, E* did infringe on the TiVo's patent, and TiVo righfully should receive the payment.
And likewise, under the current system E* is allowed to design around the TiVo's patent. As long as the E* DVRs no longer infringe on the TiVo's patent anymore, they can continue be used as before. This is the law.
It is wrong for E* fans to argue the system was flawed and E* was a victim of the bad patent law, and it is also wrong for the TiVo's fans to insist the current system does not allow E* to work around the patent, both arguments are wrong.
I don't see any other way but for E* to wait for the lower court ruling on the contempt issue. Based on all the case law, E* is not in contempt because of the design around.
Put it this way, if TiVo could be so easily getting a patent on a DVR technology similar to many companies had done before them, then it should be just as easy for E* to come up with a different DVR technology that can do the same things yet not infringing on TiVo's patent.
It was stupid for E* to ignore TiVo's patent and used a similar DVR technology before, when they could have worked on their own DVR technology, it took a judgment of $74 million two years ago for E* to realize they needed to start to make their own.
Next the judge will decide the "extent of the design around", as he put it. Whether the E* design around was significant enough so it may not infringe on the same TiVo's patent. If the extent of the design around is only colorable, as the judge said on 9/4, E* is still in trouble, otherwise, E* will be fine. Therefore the anticipated ruling by the judge will be based on just that, the "extent of the design around", as the judge made it clear on 9/4, when he told the E* lead attorney, he could still find E* in contempt if the extent of the design around was only colorable, but only under such condition. The judge did not say he could find E* in contempt under any other conditions, only if the extent of the design around was not a good-faith one.
As much as all the TiVo fans want to read into what the judge had said on 9/4, one thing is clear, the only path the judge laid out to find E* in contempt, as he told the E* lawyer, was if the extent of the design around, in his view, is only colorable. Judge Folsom did not list a second reason to find E* in contempt, the above was the only reason he noted.
