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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE DISH NETWORK CORPORATION (F/K/A ECHOSTAR COMMUNICATIONS CORPORATION), ECHOSTAR DBS CORPORATION, ECHOSTAR TECHNOLOGIES LLC (F/K/A ECHOSTAR TECHNOLOGIES CORPORATION), ECHOSPHERE LLC, AND DISH NETWORK LLC (F/K/A ECHOSTAR SATELLITE LLC), Plaintiffs,
v

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TIVO INC., Defendant.

) ) ) ) ) ) ) ) ) ) ) ) ) ) )

C.A. No. 08-327-JJF

DECLARATION OF WILLIAM D. BOWEN IN SUPPORT OF TWO'S MOTION TO DISMISS I, William D. Bowen, declare: 1. I am an attorney at the law firm of Irell & Manella LLP, counsel of record for

TiVo Inc. ("TiVo") in this action. I am a member in good standing of the State Bar of California and have been admitted pro hac vice to practice before this Court in the above-captioned case. I have personal knowledge of the facts set forth in this Declaration and, if called as a witness, could and would testify competently to such facts under oath. 2. Attached as Exhibit A is a true and correct copy of the Final Judgment and

Permanent Injunction in TiVo Inc. v. EchoStar Communications Corp., No. 2-04-CV-l-DF (E.D. Tex.), entered August 17, 2006.

DECLARATION OF WILLIAM D. BOWEN IN SUPPORT OF TIVO'S MOTION TO DISMISS 1893875

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3.

Attached as Exhibit B is a true and correct copy of the Jury Verdict in TiVo Inc. v.

EchoStar Communications Corp., No. 2-04-CV-l-DF (E.D. Tex.), filed April 13, 2006. 4. Attached as Exhibit C is a true and correct copy of the Notice of Intent to Issue Ex

Parte Reexamination Certificate for U.S. Patent No. 6,233,389. 5. Attached as Exhibit D is a true and correct copy of the Federal Circuit's Mandate

in TiVo Inc. v. EchoStar Communications Corp., 516 F.3d 1290 (Fed. Cir. 2008), issued April 18,2008. 6. Attached as Exhibit E is a true and correct copy of the April 23, 2006 Order in

TiVo Inc. v. EchoStar Communications Corp., No. 2-04-CV-l-DF (E.D. Tex). 7. Attached as Exhibit F is a true and correct copy of the transcript of the May 30,

2008 Status Conference in TiVo Inc. v. EchoStar Communications Corp., No. 2-04-CV-l-DF (E.D. Tex.). 8. Attached as Exhibit G is a true and correct copy of excerpts from an article from

PC World on the top 50 "gadgets" of the last fifty years, www.pcworld.com/article/id,123950page,2/article.html, and by CNet on the top ten products of the past decade, www.cnet.com/1990-l 1136_l-6312246-l.html. 9. Attached as Exhibit H is a true and correct copy of the Complaint in EchoStar

Techs. Corp. v. TiVo Inc., No. 5-cv-00081-DF-CMC (E.D. Tex. filed April 29, 2005). 10. Attached as Exhibit I is a true and correct copy of the Findings of Fact and

Conclusions of Law from the June bench trial in TiVo Inc. v. EchoStar Communications Corp., No. 2-04-CV-l-DF (E.D. Tex.), signed August 17, 2006.

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11.

Attached as Exhibit J is a true and correct copy of a letter brief from Morgan Chu

to Hon. David Folsom dated May 16, 2008, in TiVo Inc. v. EchoStar Communications Corp., No. 2-04-CV-l-DF (E.D. Tex.). 12. Attached as Exhibit K is a true and correct copy of the June 5, 2008 Order in TiVo

Inc. v. EchoStar Communications Corp., No. 2-04-CV-l-DF (E.D. Tex). 13. Attached separately as Exhibit L is a true and correct copy of a redacted version

of The Echostar Defendants' Opposition to Tivo's Motion for EchoStar To Be Held in Contempt for Violation of This Court's Permanent Injunction in TiVo Inc. v. EchoStar Communications Corp., No. 2-04-CV-l-DF (E.D. Tex). The unredacted version was filed under seal subject to a protective order in the Texas Action on June 30, 2008. 14. Attached as Exhibit M is a true and correct copy of a letter brief from Harold J.

McElhinny to Hon. David Folsom dated May 23, 2008, in TiVo Inc. v. EchoStar Communications Corp., No. 2-04-CV-l-DF (E.D. Tex.). 15. Attached as Exhibit N is a true and correct copy of a transcript of TiVo's Fourth

Quarter 2008 Earnings Conference Call on March 5,2008 at 5:00 PM Eastern Time. 16. Attached as Exhibit O is a true and correct copy of a transcript of a Bear Steams

Media Conference held on March 11, 2008. 17. Attached as Exhibit P is a true and correct copy of a transcript of TiVo's First

Quarter 2009 Earnings Conference Call on May 28,2008 at 5:00 PM Eastern Time. 18. Attached as Exhibit Q is a true and correct copy of U.S. Patent Court Rules for

TiVo, Against EchoStar, Reuters (Jan. 31, 2008).

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DECLARATION OF WILLIAM D.BOWEN IN SUPPORT OF TIVO'S MOTION TO DISMISS

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19.

Attached as Exhibit R is a true and correct copy of Susan Decker & William

McQuillen, TiVo Wins Appeal in Fight Against Dish Over DVRs (Update4), Bloomberg (Jan. 31, 2008). 20. Attached as Exhibit S is a true and correct copy of TiVo - Patent Dispute, L.A.

Times (Feb. 1,2008). 21. Attached as Exhibit T is a true and correct copy of a letter sent to TiVo's

distributors April 18, 2008 in regards to the expiration of the stay pending appeal and effectiveness of the Amended Final Judgment and Permanent Injunction. 22. Attached as Exhibit U is a true and correct copy of a letter sent to TiVo's

distributors April 18,2008 in regards to the expiration of the stay pending appeal and effectiveness of the Amended Final Judgment and Permanent Injunction.

Executed on July 7, 2008, at Los Angeles, California. I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct.

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EXHIBIT A

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IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS MARSHALL DIVISION TIVO INC., Plaintiff, v. ECHOSTAR COMMUNICATIONS CORP., et al. Defendants. § § § § § § § § § §

2:04-CV-1-DF

FINAL JUDGMENT AND PERMANENT INJUNCTION Pursuant to Rule 58 of the Federal Rules of Civil Procedure and in accordance with the jury verdict delivered on April 13, 2006 and with the Court's contemporaneously filed orders, the Court thereby enters judgment for Plaintiff against Defendants for infringement of U.S. Patent No. 6,233,389 ("`389 patent"), claims 1, 5, 21, 23, 32, 36, 52, 31 and 61 ("the Infringed Claims") by Defendants' following DVR receivers (collectively the "Infringing Products"): DP-501; DP508; DP-510; DP-522; DP-625; DP-721; DP-921; and the DP-942. IT IS THEREFORE ORDERED THAT Plaintiff shall have and recover from Defendants, jointly and severally, the total sum of $73,991,964.00, together with prejudgment interest at the rate of prime, said prejudgment interest in the total sum of $5,367,544.001, together with supplemental damages in the amount of $10,317,108.00, together with post-judgment

The prejudgment interest and supplemental damages award herein do not cover the time period from August 1, 2006 to the date of entry of this Order. Consistent with the contemporaneously filed order addressing prejudgment interest and supplemental damages, the Court will award additional prejudgment interest and supplemental damages after receipt of additional information from Plaintiff's damages expert.

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interest on the entire sum calculated pursuant to 28 U.S.C. § 1961. The amounts awarded in this judgment shall bear interest from the date of judgment at the lawful federal rate. IT IS FURTHER ORDERED THAT Each Defendant, its officers, agents, servants, employees and attorneys, and those persons in active concert or participation with them who receive actual notice hereof, are hereby restrained and enjoined, pursuant to 35 U.S.C. § 283 and Fed. R. Civ. P. 65(d), from making, using, offering to sell or selling in the Untied States, the Infringing Products, either alone or in combination with any other product and all other products that are only colorably different therefrom in the context of the Infringed Claims, whether individually or in combination with other products or as a part of another product, and from otherwise infringing or inducing others to infringe the Infringed Claims of the `389 patent. Defendants are hereby FURTHER ORDERED to, within thirty (30) days of the issuance of this order, disable the DVR functionality (i.e., disable all storage to and playback from a hard disk drive of television data) in all but 192,708 units of the Infringing Products that have been placed with an end user or subscriber. The DVR functionality, i.e., disable all storage to and playback from a hard disk drive of television data) shall not be enabled in any new placements of the Infringing Products. Defendants shall forthwith provide written notice of this judgment, and the injunction ordered herein, to: their officers, directors, agents, servants, representatives, attorneys, employees, subsidiaries and affiliates, and those persons in active concert or participation with them, including any and all manufacturers, distributors, retailers, and service providers who have been involved in the making, using, selling, offering for sale or importing of any Infringing -2-

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Products; and to all other persons or entities involved in any way with the making, using, selling, offering for sale or importing of any Infringing Products. Defendants shall take whatever means are necessary or appropriate to ensure that this order is properly complied with. This injunction shall run until the expiration of the '389 patent. This Court retains jurisdiction over Defendants to enforce any and all aspects of this Judgment and Permanent Injunction. . The Court further retains jurisdiction to award Plaintiff amounts for supplemental

damages, interest, costs, attorneys fees and such other or further relief as may be just and proper. All relief not specifically granted herein in denied. All pending motions not previously ruled on are denied. This is a Final Judgment and is appealable. SIGNED this 17th day of August, 2006.

____________________________________ DAVID FOLSOM UNITED STATES DISTRICT JUDGE

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EXHIBIT E

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IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS MARSHALL DIVISION TIVO INC., Plaintiff, v. ECHOSTAR COMMUNICATIONS CORP., et al. Defendants. § § § § § § § § § § ORDER A mandate has been issued by the United States Court of Appeals for the Federal Circuit in the above captioned case. Dkt. No. 821. The Court hereby SETS this matter for status conference on May 30, 2008 at 10:00A.M. in TEXARKANA.

2:04-CV-1-DF

.

Plaintiff shall submit to the Court by letter, the topics of discussion for the status conference and the relief sought by May 16, 2008. Defendant shall by letter, respond and advise on any additional matters by May 23, 2008. IT IS SO ORDERED.

SIGNED this 23rd day of April, 2008.

____________________________________ DAVID FOLSOM UNITED STATES DISTRICT JUDGE

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EXHIBIT F

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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF TEXAS MARSHALL DIVISION TIVO, INC,
VS.

DOCKET NO. 2:04CV01 TEXARKANA, TEXAS MAY 30, 2008 9:53 A.M. STATUS CONFERENCE BEFORE THE HONORABLE DAVID FOLSOM, UNITED STATES DISTRICT JUDGE.

ECHOSTAR COMMUNICATIONS CORPORATION

8 9
10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

APPEARANCES: FOR PLAINTIFF; MR. ANDREI IANCU MR. MORGAN CHU IRELL & MANELLA 1800 AVENUE OF THE STARS SUITE 900 LOS ANGELES, CA. 90067 MR. SAMUEL F. BAXTER MCKOOL SMITH P.O. BOX O MARSHALL, TX. 75670 FOR DEFENDANT: MR. HAROLD J. MCELHINNY MR. JOSE L. PATINO MORRISON & FOERSTER 425 MARKET ST. - 34TM FLOOR SAN FRANCISCO, CA. 94105 MR. DAMON M. YOUNG MR. JOHN PICKETT YOUNG PICKETT & LEE P.O. BOX 1897 TEXARKANA, TX. 75504 COURT REPORTED; MS. LIBBY CRAWFORD, CSR OFFICIAL COURT REPORTER 500 STATE LINE AVENUE

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-21 TEXARKANA, TX. 75501 903.794.4067 EXT. 237

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10 11 12 13 14 15 16 17 18 19 20 21 22 23

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PROCEEDINGS RECORDED BY MANUAL STENOGRAPHY, TRANSCRIPT PRODUCED BY CAT SYSTEM.

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-3P R O C E E D I N G S TEXARKANA, TEXAS

MAY 30, 2008 (OPEN COURT) THE COURT: GOOD MORNING. PLEASE BE SEATED. WE ARE

HERE PURSUANT TO MY ORDER OF APRIL 23*° TRYING TO DETERMINE AFTER THE FEDERAL CIRCUIT OPINION WHAT REMAINS TO BE UNDONE. I HAVE READ YOUR CORRESPONDENCE. RECORD? 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 HONOR. MR. CHU: THERE WAS INITIALLY A DISAGREEMENT ON THE BILL OF COSTS. WE WERE ABOUT $120,000 APART. YESTERDAY, WE HONOR. THE COURT: GOOD. YOU HAVE AGREED. MR. CHU: YES, YOUR HONOR. MR. MCELHINNY: YES, YOUR HONOR. THE COURT: SO SAVE ME THE ARGUMENT TODAY. YOU KNOW, ARE THOSE BOTH A PART OF THE

IF THIS CASE HOLDS TRUE FROM PAST ENCOUNTERS, YOU CAN AGREE UPON NOTHING. MR. CHU: WELL, WE ACTUALLY HAVE SOME GOOD NEWS, YOUR

MR. MCELHINNY: WE HAVE AGREED ON SOMETHING, YOUR

PROPOSED THAT WE SPLIT IT, AND THE PROPOSAL WAS ACCEPTED. THE COURT: GOOD. MR. CHU: SO I ASSUME IT WILL BE PAID VERY SOON.

THE COURT: THE CHECK IS IN THE MAIL.

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MR. MCELHINNY: NOTHING ELSE, YOUR HONOR. AGREE ON ANYTHING ELSE, BUT WE GOT THAT ONE.

WE WON'T

THE COURT: WELL, YOU AGREED ON THE EASY ISSUE. ANYWAY, I HAVE READ -- I AM AWARE OF YOUR POSITION. I SIMPLY

WANT TO HEAR FROM YOU WHAT BY WAY OF DISCOVERY AND TIME FRAME FROM THE PLAINTIFF'S STANDPOINT, AND THEN WE WILL LET THE DEFENDANT RESPOND. DO YOU THINK YOU NEED SIXTY, NINETY DAYS,

WHATEVER, TO ACCOMPLISH WHAT YOU FEEL NEEDS TO BE DONE AT THIS POINT, HOW MUCH DISCOVERY, AND THEN WE WILL HAVE A RESPONSE ON 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 BEHALF OF ECHOSTAR. MR. CHU: THANK YOU VERY MUCH, YOUR HONOR. THE COURT: SO ESSENTIALLY WE ARE TALKING NOW TWO UNRESOLVED ISSUES, THE INJUNCTION ISSUE AND THEN DAMAGES THAT HAVE ACCRUED SINCE THE JUDGMENT. MR. CHU: YES, EXACTLY. AND, GOOD MORNING. SAM

BAXTER, MORGAN CHU AND ANDREI IANCU ON BEHALF OF PLAINTIFF TIVO. ON THE FIRST ISSUE, WHETHER THE INJUNCTION HAS BEEN WE BELIEVE THAT

VIOLATED, THERE ARE REALLY TWO PARTS TO IT.

WE COULD HAVE A HEARING AT THE EARLIEST POSSIBLE DATE CONVENIENT FOR THE COURT TO DETERMINE WHETHER ECHOSTAR OUGHT TO BE HELD IN CONTEMPT BECAUSE IT HAS VIOLATED THE INJUNCTION ON ITS FACE. THE INJUNCTION STATES PLAINLY --

THE COURT: WELL, LIKE I SAID, I DON'T WANT TO HEAR A BUNCH OF ARGUMENT. HOW LONG DO YOU THINK THAT NEEDS TO BE,

WHAT TIME PERIOD, AND WHAT DISCOVERY, IF ANY, IS NEEDED?

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-5MR. CHU: FOR THE QUESTION OF WHETHER THERE IS A VIOLATION ON ITS FACE, WE DON'T NEED ANY DISCOVERY BECAUSE THE ONLY THING PERTINENT IS THE INJUNCTION ITSELF, THE TERMS OF THE INJUNCTION, AND WHETHER THEY IN FACT VIOLATED IT OR NOT. DID THEY DISABLE THE DVR FUNCTIONALITY? THE SECOND PART OF THE INJUNCTION QUESTION IS THIS: IF THE COURT SOMEHOW DECIDED THAT THAT WAS NOT A VIOLATION OF THE INJUNCTION, THEN WE WOULD NEED SOME LIMITED DISCOVERY ABOUT THEIR POSITION ON WHY THEIR SUPPOSED DESIGN-AROUND DOES OR 10 11 12 13 DOESN'T WORK; AND WE COULD TAKE THAT DISCOVERY, AT THE SAME TIME, GOING TO THE SECOND ISSUE, WE WOULD BE TAKING DISCOVERY WITH RESPECT TO DAMAGES. WE SERVED UPON THEM A STATEMENT OF WHAT DISCOVERY WE WE WANT IT TO BE LIMITED DISCOVERY, AND WE ARE

14 WANTED. 15 16 17 18 19 20 21 22 23 24 25

REQUESTING THE COURT'S PERMISSION TO GO FORWARD WITH THAT DISCOVERY. WE ARE HOPEFUL THAT WE WILL BE ABLE TO WORK OUT

DIFFERENCES OF OPINION IN DISCOVERY ALONG THE WAY. IF WE ARE GOING DOWN THE DISCOVERY ROUTE, AND WE NEED TO AT LEAST FOR DAMAGES, EVEN IF IT'S NOT FOR THE INJUNCTION, WE WOULD THINK THAT ALL OF THAT OUGHT TO BE COMPLETED IN FORTYFIVE DAYS, IN THAT TIME PERIOD. THE COURT: BUT ARE YOU SAYING THAT NEED NOT BE TAKEN UP UNTIL I HAVE THE INITIAL HEARING AND A RULING ON THE INITIAL PHASE OF THE INJUNCTION? MR. CHU: YES, AND IN PARALLEL, DAMAGES' DISCOVERY

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-6COULD GO ON WHILE WE ARE AWAITING THE HEARING AND RULING ON THE INITIAL INJUNCTION CONTEMPT ISSUE. BASICALLY IT. THE COURT: IS YOUR MOTION IN PLACE THAT TEES UP THE FIRST ISSUE CONCERNING THE INJUNCTION? MR. CHU: NO. WE WERE AWAITING THIS HEARING, YOUR AND I THINK THAT'S

HONOR, AND, AS I SAID, THAT IS SOMETHING THAT WE COULD BE HERE IN TWO WEEKS. WE COULD HAVE AN ACCELERATED BRIEFING SCHEDULE, WHATEVER IS CONVENIENT. 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 TWO WEEKS. THE COURT: I ASSURE YOU MY SCHEDULE DOESN'T ALLOW PROBABLY MORE LIKE TWO OR THREE MONTHS.

MR. CHU: WHATEVER THE EARLIEST POSSIBLE DATE IS, YOUR HONOR. THE COURT: SO HOW LONG WOULD YOU NEED TO FILE THAT MOTION, A WEEK, TEN DAYS? MR. CHU: TEN DAYS, YOUR HONOR. THE COURT: VERY WELL. ON BEHALF OF ECHOSTAR. MR. MCELHINNY: GOOD MORNING, YOUR HONOR. HAROLD MCELHINNY, DAMON YOUNG, JOHN PICKETT AND MY PARTNER, JOE PATINO, WHO I THINK IS NEW TO THE COURT. WITHOUT REPEATING ANY OF THE ARGUMENT IN OUR LETTER, OUR POSITION IS THAT THIS CASE, FOR ALL PRACTICAL PURPOSES, IS CONCLUDED AND SHOULD BE CONCLUDED RELATIVELY QUICKLY. OBVIOUSLY, WE ARE NOT PARTICULARLY INTERESTED IN A ROLLING LET'S HEAR FROM MR. MCELHINNY

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SERIES OF CONTEMPT HEARINGS DETERMINING ON IF THEY LOSE THE FIRST ONE, THEN WE ROLL INTO THE SECOND. AND WE THINK THAT

THE FEDERAL CIRCUIT HAS MADE IT CLEAR THAT A PERSON WHO IN GOOD FAITH IS ATTEMPTING TO DESIGN AROUND A PATENT SHOULDN'T BE HELD TO A SERIES OF CONTEMPT HEARINGS, THAT THAT'S NOT THE APPROPRIATE WAY. SO OUR VIEW IS THAT JUST ON THE CONTEMPT PROCEEDING, OUR VIEW IS THAT CONTEMPT IS NOT THE WAY. WHATEVER MOTION THEY WANT. 10 11 12 13 14 15 THEM. OBVIOUSLY THEY CAN FILE

THE COURT IS NOT GOING TO PRECLUDE

BUT THE CASES ARE QUITE CLEAR THAT THE COURT AT A VERY

INITIAL STAGE MAKES A DETERMINATION ABOUT WHETHER CONTEMPT IS OR IS NOT THE CORRECT PROCEDURE, BECAUSE IF DISCOVERY IS GOING TO BE REQUIRED, IF THERE ARE AFFIDAVITS THAT ARE COMING IN, IF THERE ARE EXPERTS, IF THERE IS A GOOD FAITH ATTEMPT TO DESIGN AROUND, THEN CONTEMPT IS NOT THE CORRECT PROCEDURE TO GO

16 FORWARD. 17
18

THE COURT: WHAT DO YOU THINK THE CORRECT PROCEDURE
IS?

19 20 21 22 23 24 25

MR. MCELHINNY: THE CASES ARE QUITE CLEAR THAT THE CORRECT PROCEDURE IS THAT TIVO FILES A NEW SUIT ACCUSING THE NEXT PRODUCT OF INFRINGEMENT. THAT'S THE WAY THE QUESTIONS

ABOUT WHETHER PRODUCTS THAT HAVE NOT PREVIOUSLY BEEN BEFORE THE COURT ARE RESOLVED. SO ANSWERING DIRECTLY YOUR HONOR'S QUESTION, IF THEY INTEND TO PROCEED THROUGH CONTEMPT, WE THINK IT WOULD BE VERY

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HELPFUL FOR THEM TO FILE A MOTION.

I THINK WE MADE CLEAR THAT

WE ARE NOT REALLY CLEAR -- IT'S NOT CLEAR TO US WHAT THEIR SUMMARY CONTEMPT ARGUMENTS ARE. THAT WE ARE IN -- WELL -THE COURT: WELL, THEN OBVIOUSLY THE FILING OF A MOTION MIGHT CLARIFY THAT. MR. MCELHINNY: AND DECLARATIONS AND WHATEVER THEIR SHOWING IS FOR WHY CONTEMPT IS APPROPRIATE WOULD BE HELPFUL. IF WE ARE GOING TO GO DOWN THE CONTEMPT ROAD TO DETERMINE
10 11 12 13 14 15 16 17 18 19
20

THE FIRST ONE SEEMS TO BE

WHERE THE CONTEMPT IS, WE WOULD PREFER TO DO IT IN ONE, YOU KNOW, FELL SWOOP. I MEAN, IF THEY THINK THEY CAN GET CONTEMPT

ON THE DESIGN-AROUND RATHER THAN DOING, YOU KNOW, A FIRST HEARING TO DETERMINE WHETHER OR NOT THERE IS A, YOU KNOW, A PRIMA FACIE VIOLATION, THEN A SECOND HEARING, IF THE DISCOVERY IS GOING TO BE GOING ON IN THE SAME TIME AND IF THE COURT IS NOT GOING TO MOVE US IN FRONT OF EVERYTHING ELSE ON YOUR SCHEDULE, THEN IT MAKES SENSE TO ME TO HAVE THEM HAVE ONE CONTEMPT MOTION AND THEN THE COURT CAN DETERMINE -THE COURT: AND DO THE DISCOVERY ON THAT ISSUE AND DETERMINE THAT ISSUE IN ONE -MR. MCELHINNY: IF THAT'S THE WAY IT'S GOING TO GO, THEN THAT'S FINE. OUR, JUST SO THAT IT'S CLEAR FOR THE

21
22 23

RECORD, WE THINK - - W E THINK IT'S CERTAINLY IN OUR BEST INTEREST, BUT WE THINK IT'S THE WAY THE COURT SHOULD PROCEED IN TERMS OF ITS TIME, THAT THE COURT, BASED ON WHATEVER THEY

24
25

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-9DO FILE, BASED ON, YOU KNOW, WHAT IS NOW IN THE RECORD IN TERMS OF OUR LETTERS, THE OPINIONS OF COUNSEL, THE COURT CAN MAKE A VERY PRELIMINARY DETERMINATION THAT THE NATURE OF THE ISSUES THAT ARE GOING TO BE DISPUTED ARE NOT APPROPRIATE UNDER THE FEDERAL CIRCUIT GUIDELINES FOR A SUMMARY HEARING, AND THAT THEY SHOULD BE RESOLVED IN A MORE TRADITIONAL FASHION. THE COURT: WHAT ABOUT THE DAMAGE ISSUE? MR. MCELHINNY: THE DAMAGES ISSUE IS VERY INTERESTING. 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 AGAIN, THE MANDATE FROM THE COURT OF APPEALS

TELLS THIS COURT TO DETERMINE THE DAMAGES, IF ANY, WHILE THE INJUNCTION WAS STAYED. IF THE COURT WERE TO DETERMINE, AS

FRANKLY I THINK THE LIKELY OUTCOME IS GOING TO BE, THAT, YOU KNOW, THE RIGHT WAY TO DO THIS IS TO APPLY THE ROYALTY RATE THAT THE JURY HAD DETERMINED -THE COURT: AND, AGAIN, WE ARE NOT GOING TO RESOLVE THAT ISSUE TODAY. I HAVE READ THE MICROSOFT CASE, AND

OBVIOUSLY THE PARTIES ARE GOING TO BE IN DISAGREEMENT ABOUT THAT ISSUE. BUT WHAT ABOUT WHAT DISCOVERY, IF ANY, DO YOU

THINK IS APPROPRIATE, THAT NEEDS TO BE DONE, AND -MR. MCELHINNY: WELL, IF WE ARE GOING TO HAVE A MINITRIAL BEFORE YOUR HONOR ABOUT WHAT THE APPROPRIATE MEASURE OF DAMAGES IS, THEN WE WOULD LIKE TO TAKE, YOU KNOW, THE SAME, YOU KNOW, SORT OF THE SAME KINDS OF DISCOVERY BECAUSE WE WOULD LIKE TO GO INTO THE CHANGED CIRCUMSTANCES AND THE LICENSES THAT THEY HAVE ENTERED INTO, AND THE VALUE OF -- YOU KNOW, WE

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HAVE TO RETRY THE ROYALTY ISSUE. THE COURT: HAVE YOU GENTLEMEN HAD A CHANCE TO READ THE ORDER I ENTERED IN PAICE, AT LEAST THE SCHEDULING ORDER? YOU KNOW, MUCH THE SAME ISSUE, WHERE MR. BAXTER IS OBVIOUSLY INVOLVED IN THAT CASE, WHERE I WENT FORWARD IN A PROCESS WHERE A MOTION IS FILED WITH DECLARATIONS, AND A RESPONSE WITH DECLARATION, AND EACH PARTY IS GIVEN THE OPPORTUNITY, IF YOU DESIRE, TO DEPOSE THE PERSON WHO EXECUTED THE DECLARATION, AND LIMIT IT TO ABOUT THREE HOURS.
10 11 12 13 14 15 16 17 18 19
20

DO YOU THINK THAT SORT OF

ARRANGEMENT WOULD BE APPROPRIATE ON THIS ISSUE? MR. MCELHINNY: I AM FAMILIAR WITH THE ORDER, AND WE THINK THAT THAT WOULD BE EXACTLY APPROPRIATE FOR THIS, YOUR HONOR. THE COURT: MR. CHU? MR. CHU: YES, WE AGREE. APPROPRIATE. THE COURT: OKAY. THEN OBVIOUSLY WE HAVE A WE THINK IT WOULD BE

DISAGREEMENT. AND I AM GOING TO GIVE YOU A CHANCE TO RESPOND, MR. CHU, TO THE INJUNCTION. OBVIOUSLY, MR. MCELHINNY TAKES

THE POSITION WE DON'T NEED TO DO THIS IN TWO BITES, SO TO SPEAK. WHY DO YOU FEEL THAT YOU NEED TWO HEARINGS, SO TO

21
22 23 24 25

SPEAK, OR PERHAPS TWO HEARINGS? MR. CHU: I ACTUALLY THINK WE CAN RESOLVE THE CORE INJUNCTION ISSUE IN ONE HEARING. DVRS IN AN INSTALLED BASE. ECHOSTAR HAD ABOUT 4 MILLION THEY

THE ORDER SAID DISABLE THEM.

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-11 -

HAVEN'T BEEN DISABLED.

THAT'S THE ISSUE THAT WE ARE PROPOSING

FOR THIS MOTION WE COULD FILE IN TEN DAYS. THE COURT: THEN I THINK EVERYONE WOULD HAVE MORE GUIDANCE IF YOU COULD FILE YOUR MOTION WITHIN TEN DAYS. ANY

REASON WHY YOU WOULD NEED MORE THAN TWENTY-FIVE OR THIRTY PAGES IN THE BODY OF THE -MR. CHU: NO.

8

THE COURT: WE WILL LIMIT IT TO NO MORE THAN TWENTYFIVE PAGES. DO YOU WANT A BRIEF IN CONNECTION WITH THE

10
11

MOTION, SUPPORTING BRIEF?
MR. CHU: YES.

12 13 14 15 16 17 18 19 20 21 22 23 24 25

THE COURT: AND SAY NO MORE -- AGAIN, I WANT TO PUT SOME PRETTY STRICT LIMITS, NO MORE THAN TWENTY PAGES. MR. CHU: THAT'S FINE, YOUR HONOR. THE COURT: RESPONSE, HOW LONG, MR. MCELHINNY, YOUR NORMAL RESPONSE TIME? MR. MCELHINNY: WE WOULD LIKE THE NORMAL RESPONSE TIME, YOUR HONOR. THE COURT: VERY WELL, NORMAL RESPONSE TIME. THE

SAME LIMITS ON RESPONSE AND BRIEFING, AND THEN YOU MAY HAVE A REPLY NOT TO EXCEED TEN PAGES. THEN IF THERE IS A REQUEST FOR A SUR-REPLY, YOU WILL NEED LEAVE OF COURT. MR. CHU: VERY GOOD. THE COURT: NOW, WHY DON'T WE TALK ABOUT A POTENTIAL DATE TO HEAR THIS. OR PERHAPS I WOULD HAVE MORE GUIDANCE

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-12AFTER I SEE THE MOTION, BUT IT'S GOING TO BE MID-AUGUST TO SEPTEMBER PROBABLY BEFORE I CAN SET THIS, ESPECIALLY WITH THIS BRIEFING SCHEDULE. MR. CHU: I WOULD THEN PREFER TO, IF IT'S CONVENIENT FOR THE COURT, TO TRY AND SET A DATE NOW SO THAT WE HAVE ALL COUNSEL HERE AND WE KNOW WE HAVE A CERTAIN DATE SO THAT THERE WOULD NOT BE ANY FURTHER DELAY. THE COURT: WHAT DO WE HAVE LATER IN AUGUST? MR. CHU: I WANT TO ALERT YOUR HONOR THAT I KNOW THE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 15TM IS GOOD FOR ME, IF IT'S A FRIDAY. THE COURT: IT'S GOING TO HAVE TO BE AFTER THE 15TH. MR. CHU: THE 22ND IS GOOD. THE COURT: WELL, LET'S SEE WHAT I HAVE AND THEN -MR. CHU: YES, YOUR HONOR, OF COURSE. THE COURT: I THINK THAT'S THE WAY WE APPROACH IT. MR. CHU: YES, OF COURSE. DONE, YOUR HONOR, AND I APOLOGIZE. THE COURT: AT LEAST THAT'S MY NORMAL CUSTOM. A DATE THE WEEK OF AUGUST 25. YOU KNOW, AUGUST 26TM OR 7TM. GOOD WITH YOUR SCHEDULE? MR. CHU: BOTH DATES ARE GOOD. THE COURT: MR. MCELHINNY? MR. MCELHINNY: YOUR HONOR, I AM IN -- I AM FREE THOSE DAYS, BUT I AM IN AN ITC HEARING UP UNTIL THE FRIDAY CAN'T HAVE IT THE 28TH. MAYBE MAYBE, THAT'S THE WAY IT'S ALWAYS

DOES EVERYONE KNOW IF THAT IS

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BEFORE, AND IF I COULD HAVE ONE MORE WEEK THAT WOULD GIVE ME A CHANCE TO PREPARE. THE COURT: UNFORTUNATELY, THEN I JUMP INTO MY SEPTEMBER DOCKET, WHICH -MR. MCELHINNY: WELL, WE WILL TAKE WHAT'S GOOD FOR THE COURT, YOUR HONOR. 7 8 THE COURT: WELL, MRS. SCHROEDER TELLS ME THAT WE COULD SET IT THURSDAY, SEPTEMBER THE 4TM. HOW IS THAT?

MR. MCELHINNY: THAT WOULD BE VERY HELPFUL FOR ME, 10 11 12 13 14 15 16 17 18 WITNESSES. 19 20 21 22 23 24 25 SUFFICIENT. THE COURT: MR. MCELHINNY? MR. MCELHINNY: I AM SORRY, YOUR HONOR, I HAVE TWO ISSUES NOW, WHICH IS LEFT HANGING HERE IS THIS QUESTION ABOUT DISCOVERY THAT THEY ARE ASKING FOR ABOUT THE DESIGN-AROUND ITSELF IN ORDER TO -THE COURT: WELL, I THOUGHT WE WERE GOING TO APPROACH YOUR HONOR. MR. CHU: THAT'S FINE, YOUR HONOR. THE COURT: TEN O'CLOCK. TIME MIGHT BE NEEDED? ANY THOUGHTS ON HOW MUCH

I MEAN, I KNOW BOTH OF YOU ARE PROBABLY YOU ARE SO

GOING TO ENVISION A DIFFERENT WAY TO APPROACH THIS. PROBABLY THINKING WITNESSES. WHAT ARE YOUR THOUGHTS ON -MR. CHU: WE ACTUALLY THINK WE WILL NOT NEED

ECHOSTAR IS PROBABLY NOT.

WE THINK THAT A TOTAL OF THIRTY MINUTES WOULD BE

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IT WHERE ANYONE THAT SIGNS A DECLARATION, EXPERT WITNESS, THE OTHER PARTY IS ENTITLED TO -MR. MCELHINNY: FINE, YOUR HONOR. THE COURT: AND THEN WE NEED THE TOPIC OF WRITTEN DISCOVERY. I SEE YOU HAVE ALREADY SENT SOME INTERROGATORIES.

DO YOU ENVISION ANYMORE NEED OF INTERROGATORIES OR ANYTHING OF THAT -MR. CHU: SO TWO SEPARATE ISSUES, THE INJUNCTION HEARING WE WERE JUST TALKING ABOUT. 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 FIRST. MR. CHU: OKAY. SO FOR THE PURPOSES OF THIS ON THE DISCOVERY SIDE,

THE BASIC REQUEST FOR DISCOVERY RELATING TO DAMAGES WE HAVE LAID OUT. WE HAVEN'T -THE COURT: LET'S TALK ABOUT THE INJUNCTION HEARING

INJUNCTION, WHETHER THERE HAS BEEN A VIOLATION OF THE INJUNCTION ON ITS FACE, I DON'T THINK WE NEED FURTHER DISCOVERY FOR THAT PURPOSE. THERE COULD BE, IF, FOR EXAMPLE,

THEY RAISE CERTAIN ISSUES, BUT I CAN'T ANTICIPATE WHAT THEY MIGHT BE, THERE MIGHT BE A NEED. BUT RIGHT NOW I DON'T SEE

THAT WE WOULD NEED DISCOVERY FOR THAT QUESTION. MR. MCELHINNY: THAT SOLVES MY PROBLEM. THE COURT: THEN LET'S JUST SAY NO ADDITIONAL DISCOVERY UNLESS LEAVE OF COURT IS FIRST OBTAINED BY EITHER PARTY. MR. CHU: LET ME CONSULT, IF I MAY, YOUR HONOR, JUST

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-15TO BE CERTAIN. (BRIEF SIDE BAR, OFF THE RECORD, BETWEEN MR. CHU AND MR. IANCU) (OPEN COURT) MR. CHU: THERE IS AN ISSUE THAT'S SEPARATE FROM WHAT WE WERE JUST DISCUSSING. THEY HAVE STATED THAT THEY'VE INSTALLED NEW BOXES, OR CHANGED BOXES, OR SWAPPED OUT BOXES. SO WE ARE TALKING ABOUT SOMETHING DIFFERENT FROM THE INSTALLED BASE AND THE PARTICULAR MODEL NUMBERS AGAINST WHICH THE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 INJUNCTION WAS SPECIFICALLY ORDERED. AND THERE IS THE

QUESTION OF WHETHER THOSE ADDITIONAL BOXES ARE COLORABLY DIFFERENT AND WITHIN THE SCOPE OF THE INJUNCTION. AND OUR SUGGESTION WOULD BE THAT WE TAKE DISCOVERY RELATED TO THAT ON A PARALLEL TRACK IN TIME, BUT I DON'T ANTICIPATE THAT THAT WILL BE THE SUBJECT OF THE INJUNCTION HEARING WE ARE DISCUSSING RIGHT NOW, THAT WE COULD TAKE THAT DISCOVERY WHILE WE ARE TAKING THE DAMAGES' DISCOVERY. THE COURT: WELL, AND WHAT DO YOU THINK YOU NEED WITH THIS SUGGESTION ABOUT DEPOSING ANYONE THAT MIGHT SIGN A DECLARATION OR AN EXPERT REPORT? IS THAT SUFFICIENT? SO WE

MR. CHU: WELL, IT DEPENDS ON WHAT WE LEARN.

ARE TALKING ABOUT I WILL CALL THEM NEW BOXES AS THIS CATEGORY THAT IS DIFFERENT FROM THE -THE COURT: BUT YOU DON'T NEED ANY DISCOVERY IN THAT CONNECTION FOR THE HEARING THAT WE HAVE SET FOR THE 4TH OF

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MR. CHU: RIGHT.

THE ONE THAT'S FOCUSED ON WHETHER

THEY VIOLATE THE INJUNCTION ON ITS FACE. THE COURT: WELL, WHAT WOULD BE WRONG WITH THEM SIMPLY LEAVING IN PLACE NO DISCOVERY UNTIL YOU KNOW MORE ABOUT THAT SUBJECT AND YOU REQUEST LEAVE OF COURT? MR. CHU: THE REASON IS THIS, YOUR HONOR. WE DO

KNOW, BECAUSE THEY HAVE STATED IT, THAT THEY ARE CLAIMING THAT CERTAIN BOXES, FOR EXAMPLE, THAT HAVE BEEN INSTALLED SINCE THE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 END OF THE TRIAL ARE NOT INFRINGING FOR ONE REASON OR ANOTHER. AND WE HAVE A DISAGREEMENT ON WHETHER THEY ARE WITHIN THE SCOPE OF THE INJUNCTION OR NOT, AND THEREFORE AT SOME POINT IN TIME WE ARE GOING TO NEED DISCOVERY ON IT. AND RATHER THAN

HAVE THAT DELAYED IN TERMS OF BEGINNING THE DISCOVERY UNTIL SOME DATE IN SEPTEMBER, WE THINK WE OUGHT TO PROCEED WITH OBTAINING THAT LIMITED DISCOVERY NOW. THE COURT: MY QUESTION IS, IN WHAT FORM, HOW MUCH? MR. CHU: I THINK IT'S THE BASIC TECHNICAL DOCUMENTATION. I THINK IT WOULD ALSO BE PROBABLY A VERY SMALL

TWO DEPOSITIONS, MAYBE THREE, FOR PEOPLE TO EXPLAIN THE BASIC DOCUMENTATION THEIR GROUNDS FOR CLAIMING THAT IT'S OUTSIDE THE SCOPE OF THE INJUNCTION. THE COURT: IS THIS GOING TO BE ADDRESSED IN YOUR INITIAL MOTION SO WE HAVE MORE BACKGROUND IN THIS REGARD? MR. CHU: NO, YOUR HONOR, BECAUSE I AM SEPARATING THE

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- 17WE THINK WE CAN ADDRESS THAT IN A VERY SLIM,

PINPOINTED FASHION, AS OPPOSED TO THEIR NEW ARGUMENTS WITH THESE OTHER BOXES. THE COURT: MR. MCELHINNY, WHAT'S YOUR RESPONSE ON THIS TOPIC? MR. MCELHINNY: YOUR HONOR, THIS IS EXACTLY WHAT WE DON'T WANT. THIS IS WE WOULD LIKE TO FILE CONTEMPT MOTION

ONE, AND WHILE WE ARE DOING THAT, WE WOULD LIKE TO DO DISCOVERY, THAT THERE IS ABSOLUTELY NO LEGAL RIGHT FOR AT ALL, 10 11 12 13 14 15 16 17 18 19 20
21

TO SEE IF WE HAVE CONTEMPT MOTION TWO. COMPLETELY DIFFERENT. IN THE LETTERS. THE COURT.

THE FACTS ARE

I MEAN, THE ACCURATE FACTS ARE SET OUT

THEY ARE NOT SET OUT IN WHAT WAS JUST TOLD TO

WE ARE DEALING WITH REDESIGNED SOFTWARE WHICH, AS YOUR HONOR KNOWS, WAS DOWNLOADED TO THE BOXES, AND TIVO BEFORE, IN OUR LIFETIME, TIVO INTENDS TO CHALLENGE THAT SOFTWARE; AND WHAT THEY ARE TRYING TO DO IS START THAT CASE NOW BY TAKING DISCOVERY WITHOUT EVER FILING A MOTION ON IT OR DOING ANYTHING. THAT'S WHAT THIS SECOND MOTION IS ALL ABOUT. AND

OUR POSITION ON THAT IS THEY SHOULDN'T BE ABLE TO DO IT AT

ALL.
THE COURT: VERY WELL. I WILL LOOK AT THE PARTIES' NOW, SO

22 23 24 25

CORRESPONDENCE AND GIVE SOME GUIDANCE ON THAT ISSUE.

YOU ARE ESSENTIALLY NEEDING NO DISCOVERY ON THE INITIAL MOTION?

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MR. CHU: YES.

THE COURT: I AM ASSUMING YOU ARE IN AGREEMENT? MCELHINNY, YOU DON'T NEED ANY DISCOVERY?

MR.

MR. MCELHINNY: WHAT WE HAVE AGREED TO, YOUR HONOR, IF WE SEE THEIR MOTION AND THERE IS SOMETHING IN THERE THAT WE NEED DISCOVERY, WE WILL COME TO YOUR HONOR AND ASK FOR IT. THE COURT: YOU WILL FILE FOR LEAVE OF COURT, VERY WELL. DAMAGES -MR. MCELHINNY: WE HAVE AGREED TO THE -10 11
12

THE COURT:

-- THE SAME PROCESS? -- PAICE ORDER.

MR. MCELHINNY:
MR. CHU: YES.

13 14 15 16 17 18 19 20 21 22 23 24 25

THE COURT: WHAT TIME PERIOD ARE WE TALKING ABOUT IN THAT REGARD, OR WHEN THAT DISCOVERY IS TO BE DONE? MR. CHU: I WOULD THINK THAT WE OUGHT TO BE ABLE, COOPERATING, TO COMPLETE IT IN FORTY-FIVE DAYS OR SO. MR. MCELHINNY: WE ASSUMED THAT YOU WOULD GIVE US THE SAME TIME THAT YOU GAVE THE PARTIES IN PAICE, YOUR HONOR. THE COURT: VERY WELL. DO YOU THINK THE PARTIES CAN

LOOK AT THE PAICE ORDER, AT LEAST AS A ROADMAP, AND DO A DOCKET CONTROL ORDER ON BOTH OF THESE ISSUES, THE INJUNCTION, THE DAMAGES, AND THEN I WILL TAKE A LOOK AT THE OTHER ISSUE AND GIVE YOU GUIDANCE IN THAT REGARD? MR. MCELHINNY: WE CAN, YOUR HONOR. MR. CHU: WE WILL DO SO, YOUR HONOR.

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THE COURT: WITHIN FOURTEEN DAYS? MR. CHU: WE WILL DO THAT. MR. MCELHINNY: YES, YOUR HONOR. THE COURT: WHAT ELSE NEEDS ATTENTION NOW? 5 6 I DON'T

KNOW IF WE EVER GOT TO YOUR REPLY, RESPONSE, MR. MCELHINNY, ON THE INITIAL INJUNCTION HEARING THE 4TM OF SEPTEMBER THAT WAS SUGGESTED. THIRTY MINUTES A SIDE, IS THAT ENOUGH? DO YOU

WANT MORE TIME, LESS TIME? MR. MCELHINNY: WE WILL TAKE THIRTY MINUTES, AND IF 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THAT? MR. MCELHINNY: WHAT WE WILL DO IS ON THE SAME TIME WE NEED IT, WE WILL ASK FOR MORE, YOUR HONOR. THE COURT: VERY WELL, THIRTY MINUTES A SIDE. MR. CHU: THANK YOU, YOUR HONOR. THE COURT: WELL, I APPRECIATE EVERYONE'S -MR. MCELHINNY: WE DID RAISE ONE ADDITIONAL ISSUE. THE ISSUE WE RAISED IS THIS QUESTION OF HOW TO REPAIR BOXES THAT ARE LEGITIMATELY IN THE FIELD. AND SO WE HAVE, AS YOUR

HONOR KNOWS, WE WERE ALLOWED TO KEEP A THOUSAND, 1,900 BOXES. IN OUR TRADITIONAL REPAIR, IF SOMEBODY WANTS IT REPAIRED, WE SIMPLY EXCHANGE A BOX WITH THEM SO THEY DON'T HAVE TO WAIT FOR IT TO GET SENT, FIXED, AND SENT BACK. WE ASKED TIVO TO STIPULATE THAT WE COULD DO THAT, BUT THEY SAID NO. THE COURT: HOW DO WE WANT TO APPROACH RESOLVING

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PERIOD THAT THEY ARE DOING THEIR EXPEDITED MOTION, WE WILL FILE A MOTION FOR CLARIFICATION OF THE INJUNCTION ABOUT WHETHER OR NOT YOUR HONOR WILL LET US DO IT. HEARD ON THE SAME -THE COURT: SAME DATE? 6 7 MR. MCELHINNY: SAME DAY, YOUR HONOR. THE COURT: SEPTEMBER 4TH. MR. MCELHINNY: AND THERE WOULD BE NO DISCOVERY WITH IT. 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 IT'S THE SAME. THE COURT: MR. CHU? MR. CHU: ALMOST EVERYTHING IS FINE WITH US. THEIR WE WILL HAVE IT

PAPERS DON'T SPELL OUT WHAT IS REALLY HAPPENING, AND I THINK IF WE SEND THEM A LETTER SAYING WE WOULD LIKE TO KNOW SOME DETAILS AFTER WE SEE THEIR MOTION TO SPELL OUT EXACTLY WHAT IS HAPPENING, THAT MAY BE ALL THE ADDITIONAL INFORMATION WE NEED. THE COURT: VERY WELL. SO YOU WILL FILE THAT MOTION INJUNCTION

IN THE SAME PERIOD REQUESTED TO FILE THE INITIAL MOTION? MR. MCELHINNY: YES, YOUR HONOR. THE COURT: ANY OTHER MATTERS? MR. MCELHINNY: NOTHING, YOUR HONOR. MR. CHU: THANK YOU. THE COURT: VERY WELL.

I APPRECIATE EVERYONE -- OH,

THE COURT DID NOT HAVE A TECHNICAL ADVISOR INITIALLY. WHAT ARE THE PARTIES' THOUGHTS ON PERHAPS A TECHNICAL ADVISOR FOR THIS

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-21PHASE OF THE CASE? MR. CHU: I DON'T THINK ONE WILL BE NECESSARY. IS CERTAINLY THE CASE FOR THE SEPTEMBER 4TM HEARING. THE COURT: AND I MEANT PRIMARILY IN CONNECTION WITH THE INJUNCTION ISSUE. MR. CHU: RIGHT. QUESTION, YOUR HONOR. THE COURT: VERY WELL. MR. MCELHINNY: I AGREE WITH THAT FOR THE SEPTEMBER 10 11 4TH HEARING. THE COURT: VERY WELL. THEN IF THERE IS NOTHING I THINK IT7S STRICTLY A LEGAL THAT

12 MORE, WE WILL BE IN RECESS. 13
14

(ADJOURNED AT 10:15 A.M.)

15 16 17 18 19
20 21 22 23 24 25

REPORTER'S CERTIFICATION I CERTIFY THAT THE FOREGOING IS A CORRECT TRANSCRIPT FROM THE RECORD OF PROCEEDINGS IN THE ABOVE-ENTITLED MATTER. DATE: JUNE 2, 2008 /S/LIBBY CRAWFORD OFFICIAL COURT REPORTER

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EXHIBIT G

PC World - The 50 Greatest Gadgets of the Past 50 Years Case 1:08-cv-00327-JJF Document 14-8

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The 50 Greatest Gadgets of the Past 50 Years
Here's PC World's official (and entirely idiosyncratic) list of the top tech gadgets of the last half century. Dan Tynan, special to PC World, and PC World Staff
Saturday, December 24, 2005 01:00 AM PST We're living in the golden age of the gadget. Don't believe it? Check your pockets. Odds are you're carrying a portable music player, an electronic organizer, a keychain-size storage device, a digital camera, or a cell phone that combines some or all of these functions. And you'd probably be hard-pressed to live without them. At PC World, we'd be lost without these things. We don't merely test and write about digital gear, we live and breathe the stuff. In honor of this raging gizmo infatuation, we polled our editors and asked them to name the top 50 gadgets of the last 50 years. The rules? The devices had to be relatively small (no cars or big-screen TVs, for example), and we considered only those items whose digital descendants are covered in PC World (cameras, yes; blenders, no). We rated each gadget on its usefulness, design, degree of innovation, and influence on subsequent gadgets, as well as the ineffable quality we called the "cool factor." Then we tallied the results. After a lot of Web surfing, spreadsheet wrangling, and some near fistfights, we emerged with the following list. Some items in our Top 50 are innovative devices that appeared briefly and then were quickly consigned to museums and future appearances on eBay, but whose influence spread widely. Others are products we use every day--or wish we could. So join us as we visit with the ghosts of gadgets past and present. ##anchorhtmlcomment##

1. Sony Walkman TPSL2 (1979)

http://www.pcworld.com/printable/article/id,123950/printable.html

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Sony Walkman TPS-L2 (1979)

Portable music players are so cheap and ubiquitous today that it's hard to remember when they were luxury items, widely coveted and often stolen. But when the blue and silver Walkman debuted in 1979, no one had ever seen anything quite like it. The $200 player virtually invented the concept of "personal electronics." The first Walkman (also branded as the Stowaway, the Soundabout, and the Freestyle before the current name stuck) featured a cassette player and the world's first lightweight headphones. Apparently fearful that consumers would consider the Walkman too antisocial, Sony built the first units with two headphone jacks so you could share music with a friend. The company later dropped this feature. Now, more than 25 years and some 330 million units later, nobody wonders why you're walking down the street with headphones on. Learn more in Sony's history of the Walkman. PCW photo by Rick Rizner; Walkman courtesy of Melissa Perenson. The Top 50 Tech Gadgets Introduction to PC World's 50 Greatest Gadgets, Plus the #1 Gadget Greatest Gadgets #2-#10 Greatest Gadgets #11-#20 Greatest Gadgets #21-#30 Greatest Gadgets #31-#40 Greatest Gadgets #41-#50 The Complete List of PC World's 50 Greatest Gadgets PC World's 50 Greatest Gadgets, by Decade

Greatest Gadgets #2-#10

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2. Apple iPod (2001)

Apple iPod (2001)

If the Walkman is the aging king of portable media players, Apple's iPod is prince regent. It rules the realm of digital music like no other device: According to the NPD Group, more than eight out of ten portable players sold at retail by mid-2005 were iPods. Yet when the $399 iPod first appeared in October 2001, it was nothing special. It featured a 5GB hard drive and a mechanical scroll wheel, but worked only with Macs. A second model released the following July offered a 20GB hard drive, a pressure-sensitive touch wheel, and a Windows-compatible version. But the third-generation player, which appeared in April 2003, proved the charm: A 40GB drive, built-in compatibility with Windows and Mac, support for USB connections, and a host of other small improvements made it wildly popular, despite its relatively high price and poor battery life. Now the fifth-generation iPod threatens to do the same thing for a new breed of portable video players. The iPod is dead; long live the iPod. Read more in Dennis Lloyd's Brief History of the iPod. PCW photo by Rick Rizner; iPod courtesy of Michael Kubecka. ##anchorhtmlcomment##

3. (Tie) ReplayTV RTV2001 and TiVo HDR110 (1999)

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ReplayTV RTV2001 and TiVo HDR110 (1999)

The appearance of the first ReplayTV and TiVo models--the pioneering Gemini of digital video recording--in the number three spot on our list may be a measure of how much we all hate TV commercials. The concept is simple: Digitize the TV signal and stream it to an internal hard drive, so the user can pause, rewind, fastforward, or record programs at will. For the first time, users flummoxed by their VCRs (#29) could record an entire season of shows with a few clicks of the remote. And yes, it may be cheating to count these two products as one, but they appeared at virtually the same time, and each brought different yet important strengths to the DVR table. TiVo undoubtedly won the brand-recognition competition: When Janet Jackson suffered her infamous "wardrobe malfunction" at the 2004 Super Bowl, thousands of viewers "TiVo'd it"-over and over and over. ReplayTV, on the other hand, was more aggressive with commercial-skipping and networking features. In any event, the success of these products may be their undoing, as digital video recorders become a standard feature of cable and satellite set-top boxes. Eric W. Lund has more than you'd probably want to know about earlier models of both. PCW photo by Rick Rizner. ##anchorhtmlcomment##

4. PalmPilot 1000 (1996)

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Power of 10: The past, present, and future of digital living

Top 10 products
By Tom Merritt

Gadgets of every description have flowed through the doors of CNET for 10 years. Picking a list of the 10 best is an exercise in healthy but vocal arguments. Everyone has a different idea of what is meant by best. You can make great arguments for the Diamond Multimedia Rio 300, Mac OS X, the Sony PSP, and many more gadgets that aren't o our list. But the 10 we've included here had the most wide-ranging acceptance. Don't agree? Good. Tell us your top 10 in TalkBack.

iPod (2001)
No other product has had the incredible, loyal devotion that the iPod inspires. It's also one of only a handful of products to get a 9 rating from CNET. It revolutionized and popularized music players with its stylish design and is still considered the industry leader. Even if you devoutly believe other music players have better features now, you have to acknowledge that iPod is still the king.

TiVo (1999)

CNET community's

Top 10 products
"Regarding the Newton any my favourite..."
10-year IQ test CNET look back

by minilo (see profile) September 18, 2005

It took a long time for people to even get the concept of what TiVo was. It has finally moved beyond "pausing live TV" to an entertainment-center essential that inspired a myriad of competitors, none of which even come close to having as good an interface. Plus, it has Linux inside, which gives it extraspecial

Regarding the comment about the Newton in the entry for...
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"THE iPod!!!???"

by Sephiroth965 (see profile) September 17, 2005

I'll admit, the Ipod was a

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geek points.

Google (1996)
This was a late addition to the list because we almost overlooked it. Google has become so synonymous with search, you almost forget it has competitors. Google ended the need to use several search engines to get good results. The competition has slowly caught up, but Google is still the definitive search engine.

great product and helped MP3...
(read more)

"No DVD?????"

by MaxPete (see profile) September 16, 2005

I am disturbed that nothing related to DVD, either the...
(read more)

See all comments

Napster (1999)
Here's a product that wouldn't make the list in its current form, but the original version came close to deserving the phrase "changed the world." Everyone who used it in 1999 and 2000 loved it and became addicted. The Internet was filled with the sound of wailing and gnashing of teeth when the courts finally shut it down. There's no doubt it changed the music industry forever and jumpstarted a series of events that has yet to come to a conclusion six years later.

Firefox (2004)
Sure, Mozilla has been around for many years, but Firefox 1.0 brought the open-source browser into the mainstream. Some never thought Mozilla could make it as anything more than a geek badge of pride. The light, secure, and efficient Firefox is legitimately challenging Internet Explorer's stranglehold on Web browsing.

PalmPilot (1996)
Some say PDAs are dying. The reason for that accusation is that you can now find PDA functionality in almost every mobile device, such as phones and music players. When PalmPilots first came out in 1996, they changed the way everyone thought about personal organization. It seems natural to have an electronic calendar in the palm of your hand now, but that wasn't really true before 1996. No, we haven't forgotten the Newton, but that didn't really succeed, did it?

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Motorola Startac (1996)
Motorola's cool flip phone helped cell phones finish the transition from big bricks to style statements. The Startac wasn't the first flip phone, but it was the first one everybody was willing to die for, it looked so small and cool. In its time, the Startac set mobile phone fans talking the way the Razr did this past year.

Apple iMac (1998)
The thought of an Apple computer being meaningful was laughable before the iMac. Apple had fallen on hard times, and some predicted its death. Now some of those same pundits say the iMac saved it. Whatever you think, the iMac set Apple on the road to dominating through style and functionality rather than sheer features and power.

Sony Digital Mavica MVC-HD5 (1997)
Think back to 1996, and you probably won't remember anyone who had a digital camera. Only true geeks, professionals, or the rich used anything without film. These days, it's hard to find a person with a film camera. The Sony Mavica helped usher in the digital camera era by making the devices affordable and easy to use.

The Sims (2000)
This may be the most controversial of the picks; so many games have changed the gaming world in the past 10 years. Doom, Ultima, Grand Theft Auto, and others deserve mention. But the Sims captured everyone's imagination--gamer or nongamer. It crossed boundaries that few other games have, and it's still one of the top-selling games of all time.

All editors' top 10 lists 1995 tech Top 10 news Top 10 downloads Tech we miss Power of 10 features Editors' top 10 lists Dream gadgets

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10 years of video CNET look back

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Help Center | Newsletters | Corrections | What's New |

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Top Rated Cell Phones
Ratings/reviews for top Cell Phones Find low prices on unlocked phones www.retrevo.com

DVD --» lPod - Warning
You Must See This Before You Pay For Any DVD To lPod Converter... software-guide.org

Top 10 Gadgets
Find more sources/options for Top 10 Gadgets www.webcrawler.com

Top 18 Stocks for 2008
14 Experts Together for 1st Time! Insightful Analysis. Free Download. topstockgurus.com

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