TiVo Has Statistical Edge in DVR Suit


The odds appear to be in TiVo's favor in its suit against EchoStar.

Digital video recorder (DVR) company TiVo is scheduled to begin making its patent-infringement case against EchoStar March 29 in Marshall, Texas.

According to patent attorney Brad Lyerla of Marshall, Gerstein & Borun, in Chicago, and former editor in chief of Intellectual Property Litigation, TiVo's advantage is not necessarily because its case is obviously better but because the statistics are in its favor. ""Plaintiffs," says Lyerla, "enjoy the advantage in patent jury trials."  And they enjoy it specifically in the Texas venue where the trial is being held.

"Recent statistics for the Eastern District of Texas," says Lyerla, "show that juries there find for plaintiffs in patent trials in about eight out of 10 trials.

"The challenge for Echostar," he says, "will be to find a way to overcome the jury's native sympathy for the underdog while at the same time teaching the jury what it will need to know in order to understand Echostar's unavoidably complicated defense."

TiVo claims that EchoStar – which makes its own brand of DVRs– is violating its patent, which it says covers basic functions like simultaneous record and playback.

An EchoStar spokesman said the company does not comment on pending litigation.