By Jason Rantanen
TiVo Inc. v. EchoStar Corp. (Fed. Cir. 2011) (en banc nonprecedential order) Download Tivo 2009-1374 5 10 11 adl order to aso_new
Before Rader, Newman, Mayer, Lourie, Bryson, Gajarsa, Linn, Dyk, Prost, Moore, O'Malley, and Reyna
The saga of TiVo v. EchoStar plays on. Shortly after the Federal Circuit issued its en banc opinion on April 20, 2011, discussed here, TiVo and EchoStar reached a widely publicized settlement. On May 2, the parties informed the CAFC of the settlement and asked the court to dismiss the appeal.
The court, again ruling en banc, declined to do so as it would effectively nullify the en banc opinion. Drawing upon the law of the Seventh, Ninth, and Eleventh Circuits, the CAFC concluded that "[i]f we were to grant the parties’ motion, the judgment would be that the appeal is dismissed. Although the parties do not ask us to vacate our decision, at this stage, days before issuance of a mandate, we determine that granting the motion to dismiss, which would result in a modification or vacatur of our en banc judgment, is neither required nor a proper use of the judicial system." Slip Op. at 2.
Unless and until: In noting that the parties are free to request that the district court dismiss the complaint and vacate its previously imposed sanctions, the CAFC commented that the district court would lack jurisdiction to take this action "unless and until we return the case to its docket." Slip Op. at 3. Presumably the CAFC does not intend to modify its en banc opinion, but the court's choice of words leaves open that possibility.