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Dish Says TiVo Witness Gave Contradictory Testimony

Dish Network asked a federal appeals court Monday to rehear the TiVo patent-infringement case, alleging that a TiVo expert witness provided contradictory testimony.

The U.S. Court of Appeals for the Federal Circuit in January upheld a lower court’s ruling that Dish violated TiVo’s “Time Warp” software patent and affirmed the judgment against the direct-broadcast satellite operator for $94 million in damages. Dish said at the time that it planned to appeal the decision.

Dish, in a filing Monday, said one of TiVo’s expert witnesses contradicted himself and argued that the infringement verdict was not “supported by substantial evidence.”

EchoStar argued that a TiVo expert witness, Jerry Gibson, testified at one point that a Broadcom chip in Dish’s digital video recorder included software that extracted audio and video from a physical data source (a process he said pertained to the Time Warp patent).

At another point, however, Gibson identified the Dish DVR’s “Ioctl command” as the software that extracted audio and video – a command, according to Dish, that’s handled by a separate data-buffering memory chip, not the Broadcom chip.

“The two parts of Dr. Gibson's testimony the [appeals court] panel considered are thus in conflict,” Dish said in its petition.

In a statement, TiVo said: “This appeal was expected and we remain confident we will prevail in this appeal."

TiVo in 2004 sued EchoStar Communications -- which changed its name to Dish Network this year -- alleging it infringed the Time Warp patent, U.S. Patent No. 6,233,389, which lets users watch one TV program while recording another.

In August 2006, Judge David Folsom of the U.S. District Court for the Eastern District of Texas ruled in favor of TiVo.

Dish said the DVR software it currently provides to subscribers does not infringe TiVo’s Time Warp patent.