The Work

June 25, 2009 5:57 PM

New IP Trial Strategy: $10,000 for That TiVo Bull!

Posted by Brian Baxter


TiVo's $73.9 million patent infringement victory over EchoStar Communications in April 2006 wasn't just a boon to TiVo's lawyers at Irell & Manella, but also to the bars, restaurants, and hotels of Marshall, Texas, which soaked up the influx of money tossed about town by lawyers in the case.

The American Lawyer's Nate Raymond covered it all in his April 2008 feature story on the patent bar in the Eastern District of Texas. One interesting anecdote we picked up from that article: Marshall's out-of-town lawyers tried to familiarize themselves with the area they were spending more time in by watching Hands on a Hard Body, the 1997 documentary with a cult following.

Now, thanks to this excellent story by The Recorder's Zusha Elinson, we learn of an interesting IP strategy also inspired by the city of Marshall. Top brass at TiVo decided the company's case would be helped by the purchase of a cow. That's right, a cow.

Eastern Texas has plenty of livestock. And Marshall hosts an annual Farm City Week, which in March 2006 came just on the eve of the Tivo v. EchoStar trial. TiVo's local counsel, Samuel Baxter of McKool Smith (no relation to this writer), told Elinson that TiVo executives wondered whether they could buy a cow at auction "because the people have been so nice to us here."

As Elinson writes, Baxter did that and more. At Farm City's main event, a livestock auction, the legendary Eastern District lawyer bid on a Grand Champion Steer and bought it for a record-breaking sum of $10,000. The steer was quickly christened TiVo. (According to the Recorder, the seller was a high school student from nearby Hallsville who kept the money for herself to use for college.)

Perhaps finding the pastures in Silicon Valley to be lacking, Elinson reports that TiVo execs offered to return their namesake steer to its original owner. She declined given the tight quarters of her college dorm room.

So where is TiVo the cow now? "We turn 'em into steaks and burgers," Baxter told Elinson. So it seems that TiVo, the bovine version, ended up in Baxter's belly.

Baxter doesn't think the bull-buying move was below the belt. "It didn't affect the outcome of the case," he said, noting that other companies with cases in the Eastern District have bought cows at auction. "Lawyers and facts win cases, and not much else." (Two weeks after the trial started, TiVo found itself on the winning end of the $74 million damages verdict against EchoStar.)

Others think that the tactic could backfire. "Buying a cow like that I think is bullshit," said Doug Green, a jury consultant in East Texas. "I think it's insulting--the idea that people are so simple that something like that will influence the case."

Nevertheless, TiVo isn't alone in embracing local culture. Elinson reports that South Korean electronics manufacturer Samsung, no stranger to IP cases in East Texas, now sponsors just about every major festival in Marshall.

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you should learn the difference between a bull and a steer and a cow. You obviously aint from ranch land.

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