Amicus brief of Distinguished Professors of Law and Economics on Rehearing En Banc, TiVo Inc. v. EchoStar Corp., et al., Federal Circuit
“EchoStar’s appeal presents a stark choice on the proper method for dealing with a repeat patent infringer against whom the District Court has issued an initial injunction followed by a contempt decree, which between them have yet to provide TiVo with an ounce of effective relief against EchoStar’s unlawful behavior. EchoStar takes the position that the entire convoluted six-year history of this dispute should be ignored in passing on the validity of its purported present work- around of TiVo’s ‘389 patent. In so doing, its apparent objective is to win a war of attrition against TiVo. The first part of that strategy is to use its current modified DVR for as long as it can tie up TiVo through tactics of litigation delay that allow it to reap all the collateral gains from patent infringement. Once stopped with the first work-around, it may well repeat the same cycle of delay a second time.
For EchoStar, this approach it is a no-lose strategy. EchoStar wins big if it can persuade a court that its work-around comes close to, but does not cross, the infringement line. EchoStar also wins if it loses a new infringement suit so long as it needs only pay damages that amount to a small fraction of the economic gains it derives from following its unlawful strategy. Then it can start the cycle anew with a second work-around, and, if need be, a third. Unless prompt and decisive measures are taken, EchoStar will profit handsomely from its own wrongdoing…”