# TiVo vs. Echostar Court Case: Post Hearing Discussion



## Tom Robertson (Nov 15, 2005)

James has started the closed summary and filings thread, here is where we can discuss the TiVo vs. Echostar trials and tribbles. 

Please, post your thoughts about the trial(s), the situation, the filings, etc. If you find links of interest, post them here too. James will continue to add to his summary thread, linking to key posts of information.

As always, remember please be polite. DBStalkers want healthy discussion, not member bashing.

So no insults to other members... Of any kind. Violators will be eaten (banned from this thread.)  And/or their posts will be.

This might be your only warning (well, aside from the many warnings we've already done in other threads, PMs, the DBSTalk.com User Agreement, etc.)

If you see an offensive post, please share it with the moderators via the "Report Post Button",







. We'd rather clean up just one post than to have to clean up a public spat.

Thanks for your help and understanding,
Tom


----------



## Mainer_ayah (Jun 24, 2008)

Word I'm getting from the courtroom is that Echostar is getting hammered.

What are all of you hearing?


----------



## Tom Robertson (Nov 15, 2005)

Is there any form of live feed or recap? That's gotta be interesting.

Thanks,
Tom


----------



## Mainer_ayah (Jun 24, 2008)

Tom Robertson said:


> Is there any form of live feed or recap? That's gotta be interesting.
> 
> Thanks,
> Tom


Just what you can get on the phone during breaks from those that are there.
I'm sure a court reporter or two will publish an article tonight. There is a paper in Texarkana that usually has someone there.


----------



## jacmyoung (Sep 9, 2006)

I recall at the end of hearing day 9/4/08 some TiVo investors blogged from the courtroom that E* was hammered so badly by the judge...

What I learned was today, Charlie just made a killing on the Sirius Radio deal after paying $0.20 on the dollar of part of their matured loans a few months ago, and now get paid in full by the D* parent company.

I think Charlie is in the Texas town just to make sure his team does not waste his money on the local hotels and diners


----------



## Mainer_ayah (Jun 24, 2008)

jacmyoung said:


> I recall at the end of hearing day 9/4/08 some TiVo investors blogged from the courtroom that E* was hammered so badly by the judge...
> 
> What I learned was today, Charlie just made a killing on the Sirius Radio deal after paying $0.20 on the dollar of part of their matured loans a few months ago, and now get paid in full by the D* parent company.
> 
> I think Charlie is in the Texas town just to make sure his team does not waste his money on the local hotels and diners


First, what has any of that got to do with the topic? Second, FYI, Charlie wasn't in TX today, but he will be taking the stand tomorrow.


----------



## nobody99 (May 20, 2008)

jacmyoung said:


> What I learned was today, Charlie just made a killing on the Sirius Radio deal after paying $0.20 on the dollar of part of their matured loans a few months ago, and now get paid in full by the D* parent company.
> 
> I think Charlie is in the Texas town just to make sure his team does not waste his money on the local hotels and diners


Yeah, they will need that money soon to pay TiVo :lol: So, in effect, TiVo just made a killing on Sirius' debt.


----------



## Stuart Sweet (Jun 19, 2006)

:backtotop please folks. We do not want to issue infractions.


----------



## jacmyoung (Sep 9, 2006)

nobody99 said:


> ...TiVo just made a killing on Sirius' debt.


Any news release to that fact?


----------



## jacmyoung (Sep 9, 2006)

Mainer_ayah said:


> ...FYI, Charlie wasn't in TX today, but he will be taking the stand tomorrow.


So Charlie will be there tomorrow to make sure his team dose not waste his money on the hotels and diners


----------



## Tom Robertson (Nov 15, 2005)

We don't need to discuss Sirius XM in this thread. Thanks.


----------



## Tom Robertson (Nov 15, 2005)

> *Dish Ruling Won't Be Immediate, TiVo Judge Says* (Update1)
> 
> By William McQuillen
> 
> ...


Read the rest at Bloomberg: http://www.bloomberg.com/apps/news?pid=conewsstory&refer=conews&tkr=TIVO:US&sid=agR09dwBlFnU

Not that anyone really expected a quick ruling on this, but the request for extra written arguments did surprise me a bit.

Cheers,
Tom


----------



## jacmyoung (Sep 9, 2006)

Tom Robertson said:


> Read the rest at Bloomberg: http://www.bloomberg.com/apps/news?pid=conewsstory&refer=conews&tkr=TIVO:US&sid=agR09dwBlFnU
> 
> Not that anyone really expected a quick ruling on this, but the request for extra written arguments did surprise me a bit.
> 
> ...


I agree. The only thing I can think of is he wants to delay this thing as much as possible to see how the USPTO may or may not invalidate TiVo's patent in their re-examination.


----------



## CuriousMark (May 21, 2008)

I thought this part was funny.


> Dish agreed to pay $104 million after the U.S. Supreme Court in November rejected its appeal of the appeals court ruling. TiVo contends that Dish owes even more money because of continued infringement of its patent.


So dish "agreed" to pay the money the court ordered them to pay, but didn't "agree" to shut off the DVRs the court ordered them to shut off. It almost makes it sound like following court orders is optional.

Applying a different spin the article could just as easily have said that Dish was "forced" to pay $104 million, but did not owe any more money because those DVR units were updated with new software which Dish believes is no longer infringing on the TiVo patent.

The phrase caught my eye because it came across to me as if the author thought that following a court order is optional.

In any event, I am guessing that the extra filings will be needed because the pre-hearing filings he has in front of him are so divergent, and the judge realizes he won't be able to use either set. This thing has not gone quickly so far, so I don't see any reason for it to accelerate now.


----------



## CuriousMark (May 21, 2008)

jacmyoung said:


> I agree. The only thing I can think of is he wants to delay this thing as much as possible to see how the USPTO may or may not invalidate TiVo's patent in their re-examination.


You think he want to wait years? Didn't you yourself post that the courts rely on the rule of the case, independent of what goes on at USPTO until all of their patent review appeal processes are complete? Perhaps not, that would not support your current contention, but I know I saw it here, even if you weren't the one posting it.

No, it make more sense that the judge wants the two sides inputs after the hearing is done and some questions are more settled. Then he can take his time and come to a verdict that will stand up to the inevitable appeal that will follow no matter what he decides.


----------



## Mainer_ayah (Jun 24, 2008)

jacmyoung said:


> I agree. The only thing I can think of is he wants to delay this thing as much as possible to see how the USPTO may or may not invalidate TiVo's patent in their re-examination.


My people in the courtroom have no initial recollection of the points made in that report. They are currently reviewing their extemporaneously recorded, but extremely accurate notes to see if they can support or deny the information in that article.


----------



## nobody99 (May 20, 2008)

jacmyoung said:


> I agree. The only thing I can think of is he wants to delay this thing as much as possible to see how the USPTO may or may not invalidate TiVo's patent in their re-examination.


It's amazing. Countless times you have told us that certain actions by the judge would cause the case to be immediately appealable.

Now you are suggesting that the judge ignore well-established case law (the patent is presumed valid until due process is completed, including appeals of the re-exam), and also ignore his own order that the question of patent validity was not allowed.


----------



## jacmyoung (Sep 9, 2006)

Mainer_ayah said:


> My people in the courtroom have no initial recollection of the points made in that report. They are currently reviewing their extemporaneously recorded, but extremely accurate notes to see if they can support or deny the information in that article.


Please do that, a reporter can make as many mistakes as any one of us, at least on occasion


----------



## space86 (May 4, 2007)

Question if TiVo was to get the courts to shutdown all of Dish Network's
DVR's would not Dish lose a lot of customers to Directv?


----------



## jacmyoung (Sep 9, 2006)

As for the other point, what I said was a ruling on the patent validity by the court (or a jury) in a patent case is independent of the decision by the USPTO on the patent validity.

But whether the patent itself is valid by the USPTO will most certainly have impact on the court's contempt decision and remedies.

On 9/4/08 we learned even if E* was not in contempt, E* still would have owed TiVo at least $16M additional damages. But at that time the USPTO had yet decided to grant E*'s request to re-examine the TiVo's two patent claims at issue.

Now the USPTO will decide if the TiVo's two claims are valid or not, if the decision ends up in E*'s favor, a ruling by the judge now on the contempt issue (whether a contempt or not) will be awkward at best, and also the additional $16M damages should no longer apply, and the case would be better put on hold until TiVo goes through its own appeal and only if TiVo succeeds in reinstating the patent claims.

Of course the above is just my speculation, neither of you have to agree.


----------



## jacmyoung (Sep 9, 2006)

space86 said:


> Question if TiVo was to get the courts to shutdown all of Dish Network's
> DVR's would not Dish lose a lot of customers to Directv?


At issue are only the 8 named DVRs, which by my account are no longer installed. They are legacy DVRs.


----------



## Curtis52 (Oct 14, 2003)

A USPTO reexamination decision is signified by the issuance of a reexamination certificate by the director of the USPTO. That doesn't happen until all appeals (if any) are exhausted. Until that happens, US law requires that the patent be considered valid.

Blackberry case:


> Research In Motion on Wednesday lost two rounds in the long-running patent lawsuit that threatens to imperil the company's BlackBerry service in the United States.
> 
> U.S. District Judge James Spencer denied RIM's request to halt the proceedings until the U.S. Patent and Trademark Office re-examines whether the patents are valid. Spencer said judges are under no obligation to wait and suggested that the re-examination process could take up to 10 years, if appeals are counted.


----------



## nobody99 (May 20, 2008)

jacmyoung said:


> But whether the patent itself is valid by the USPTO will most certainly have impact on the court's contempt decision and remedies.
> 
> On 9/4/08 we learned even if E* was not in contempt, E* still would have owed TiVo at least $16M additional damages. But at that time the USPTO had yet decided to grant E*'s request to re-examine the TiVo's two patent claims at issue.
> 
> ...


Please, this is simple. It will be at least four years before the re-exam and appeals are completed. Until that time, the judge *must* presume the patent to be valid.

If DISH can delay this for four years, then yes, you have a point. But for all intents & purposes, the patent is valid for the remainder of this trial.

That, by the way, also assumes the negligible chance that the re-exam finds the patent invalid. Since it already survived one re-exam, I'm quite confident that the next re-exam will again find the patent valid.


----------



## dfd (Aug 29, 2008)

jacmyoung said:


> At issue are only the 8 named DVRs, which by my account are no longer installed. They are legacy DVRs.


If they are no longer installed what is all the fuss about?


----------



## Tom Robertson (Nov 15, 2005)

jacmyoung said:


> At issue are only the 8 named DVRs, which by my account are no longer installed. They are legacy DVRs.


I thought the patent also affected any units that were basically close enough to be the same as the named units. That a cosmetic change didn't count, essentially.

Or did I miss a ruling already in this case? (Very possible.)

Cheers,
Tom


----------



## peak_reception (Feb 10, 2008)

So what happened today? Will a transcript be released?


----------



## BNUMM (Dec 24, 2006)

jacmyoung said:


> At issue are only the 8 named DVRs, which by my account are no longer installed. They are legacy DVRs.


I have been on many service calls where the customer still has a 625 or 522 DVR.


----------



## James Long (Apr 17, 2003)

peak_reception said:


> So what happened today? Will a transcript be released?


We should get an outline of the conversation after the hearing is over. A full transcript can be purchased from the court reporter (or it will be posted to the court website in a few months). Transcripts are interesting but the only words that count will be in the judge's ruling (which will not be made tomorrow).

There was a list of exhibits posted today with some cryptic descriptions.
If you like reading the tea leaves it is posted in the "non-discussion" thread (and linked here).

Joint Stipulation and Order Regarding Hearing Exhibits (PDF)


----------



## jacmyoung (Sep 9, 2006)

Tom Robertson said:


> I thought the patent also affected any units that were basically close enough to be the same as the named units. That a cosmetic change didn't count, essentially.
> 
> Or did I miss a ruling already in this case? (Very possible.)
> 
> ...


The current hearing deals with only the 8 named DVRs, not any other more or less colorable variations of DVRs.


----------



## jacmyoung (Sep 9, 2006)

Curtis52 said:


> A USPTO reexamination decision is signified by the issuance of a reexamination certificate by the director of the USPTO. That doesn't happen until all appeals (if any) are exhausted. Until that happens, US law requires that the patent be considered valid.
> 
> Blackberry case:


Actually E* requested the same during the jury trial too and was denied. The Court will not wait for an expected USPTO decision far into the future.

In the current situation, if the USPTO makes its initial decision to invalidate the patent *before* the judge's ruling on contempt, while the patent legally will still be valid until and if TiVo fails all appeals, there is certainly a valid contention that the contempt proceeding be put on hold until the patent issue is cleared up.


----------



## jacmyoung (Sep 9, 2006)

BNUMM said:


> I have been on many service calls where the customer still has a 625 or 522 DVR.


So do I still have my 625, a legacy DVR because E* no longer manufactures any such models nor installs them to new accounts. Though I could be wrong on this.


----------



## James Long (Apr 17, 2003)

jacmyoung said:


> So do I still have my 625, a legacy DVR because E* no longer manufactures any such models nor installs them to new accounts. Though I could be wrong on this.


You are. 625s are still available.


----------



## Greg Bimson (May 5, 2003)

As of October 2008, the 625 was the lone remaining SD DVR still being sold.


----------



## nobody99 (May 20, 2008)

jacmyoung said:


> while the patent legally will still be valid until and if TiVo fails all appeals, there is certainly a valid contention that the contempt proceeding be put on hold until the patent issue is cleared up.


Until the re-exam is completed and any and all appeals exhaused, the patent is valid.

Try to think of it this way: the court pretends the re-exam is not occurring. In fact, it must by law ignore any pending re-exam and treat the patent as it would any other patent.

Putting the proceeding "on hold" would go against this entire pricinpal. To put it bluntly, you are simply wrong about this.


----------



## jacmyoung (Sep 9, 2006)

Tom Robertson said:


> Read the rest at Bloomberg: http://www.bloomberg.com/apps/news?pid=conewsstory&refer=conews&tkr=TIVO:US&sid=agR09dwBlFnU
> 
> Not that anyone really expected a quick ruling on this, but the request for extra written arguments did surprise me a bit.
> 
> ...


Finally was able to access the linked news piece, very interesting that TiVo's expert witness was saying the same thing TiVo has been saying, that he did not believe the changes made in the new design were relevant to the patent claims.

The problem is in the colorable difference analysis, the changes made are not compared to the patent claims at all, only compared between the old design and the new design, to determine if the differences are more than colorable.

Aslo Mr Chu (TiVo's lead consul) was quoted saying they would like the judge to have a proper order to shut down the DVRs. What did that mean? That the existing injunction is not good enough and they are seeking a new order?


----------



## jacmyoung (Sep 9, 2006)

James Long said:


> You are. 625s are still available.


At this point TiVo is mainly going after the 5XX DVRs anyway. The Broadcom DVRs (such as my 625) are not even very high on the list because of the removal of the "automatic flow control."


----------



## nobody99 (May 20, 2008)

jacmyoung said:


> Aslo Mr Chu (TiVo's lead consul) was quoted saying they would like the judge to have a proper order to shut down the DVRs. What did that mean? That the existing injunction is not good enough and they are seeking a new order?


Really? You think the existing order was "good enough?" Tell me, how many DVRs were shut down as a result of that order?

No, it apparently was not good enough. But then again, Judge Folsom for some reason thought that there was a law-abiding employee or two at DISH. He was clearly wrong in that regard.


----------



## jacmyoung (Sep 9, 2006)

nobody99 said:


> Until the re-exam is completed and any and all appeals exhaused, the patent is valid.
> 
> Try to think of it this way: the court pretends the re-exam is not occurring. In fact, it must by law ignore any pending re-exam and treat the patent as it would any other patent.
> 
> Putting the proceeding "on hold" would go against this entire pricinpal. To put it bluntly, you are simply wrong about this.


Just because the patent is technically valid does not mean a decision to invalidate the patent should be totally ignored.

The example above did not have the patent invalidated on re-examination or the decision was far into the future.

Of course I could be wrong, but no matter how wrong you may prove my speculations, please do not lose the sight, that is TiVo is still waiting to find out what more they can get out of this whole thing. If they can't, all your correct points mean very little.


----------



## jacmyoung (Sep 9, 2006)

nobody99 said:


> Really? You think the existing order was "good enough?" Tell me, how many DVRs were shut down as a result of that order?
> 
> No, it apparently was not good enough. But then again, Judge Folsom for some reason thought that there was a law-abiding employee or two at DISH. He was clearly wrong in that regard.


Don't ask me, ask Mr. Chu, I was reading what he said, it appeared he did not think the current order was appropriate enough, after all, if it were, and indeed E* were in violation of the order, wouldn't you think the judge would have put the stop to the DVRs already?

Oh one more thing, the report above also puts TiVo's winning chance at 65%, I recall a similar report had it at 75% during the 9/4 hearing

If the judge indeed indicated he would need another hearing, will the odds go down to 55% by then?


----------



## nobody99 (May 20, 2008)

jacmyoung said:


> Don't ask me, ask Mr. Chu, I was reading what he said, it appeared he did not think the current order was appropriate enough, after all, if it were, and indeed E* were in violation of the order, wouldn't you think the judge would have put the stop to the DVRs already?
> 
> Oh one more thing, the report above also puts TiVo's winning chance at 65%, I recall a similar report had it at 75% during the 9/4 hearing


I doubt Mr. Chu would take my call, so I can't ask him.

In the meantime, I can rhetorically answer questions where the answer is blatantly obvious to most.


----------



## jacmyoung (Sep 9, 2006)

nobody99 said:


> I doubt Mr. Chu would take my call, so I can't ask him.
> 
> In the meantime, I can rhetorically answer questions where the answer is blatantly obvious to most.


You don't have to, just read what he said and tell us what you can make out of it. Don't blame me for passing along his words


----------



## nobody99 (May 20, 2008)

jacmyoung said:


> You don't have to, just read what he said and tell us what you can make out of it. Don't blame me for passing along his words


Here's what you wrote



jacmyoung said:


> What did that mean? That the existing injunction is not good enough and they are seeking a new order?


I apologize. I thought you were asking a question and that this was a discussion forum. My mistake.


----------



## jacmyoung (Sep 9, 2006)

nobody99 said:


> Here's what you wrote
> 
> I apologize. I thought you were asking a question and that this was a discussion forum. My mistake.


Apology not necessary.

I still wonder what he meant. They wanted an appropriate order to disable the DVRs. Did he not think the current order appropriate? Is he seeking a new injunction?


----------



## James Long (Apr 17, 2003)

jacmyoung said:


> Just because the patent is technically valid does not mean a decision to invalidate the patent should be totally ignored.


The court specifically removed patent invalidity as a defense in this hearing. I'd say that takes the issue off the table.

For the purposes of this hearing the patent is valid.


----------



## jacmyoung (Sep 9, 2006)

James Long said:


> The court specifically removed patent invalidity as a defense in this hearing. I'd say that takes the issue off the table.
> 
> For the purposes of this hearing the patent is valid.


E* is not allowed to challenge the patent validity in this proceeding, that does not mean the USPTO may not invalidate the patent, and the law requires the parties involved in a patent case fully brief both the USPTO and the court on the decisions by each institution relevant to the case, not just for formality.


----------



## James Long (Apr 17, 2003)

jacmyoung said:


> E* is not allowed to challenge the patent validity in this proceeding, that does not mean the USPTO may not invalidate the patent, and the law requires the parties involved in a patent case fully brief both the USPTO and the court on the decisions by each institution relevant to the case, not just for formality.


This thread is for discussion of topics at the hearing. When the USPTO says more we'll start that topic up again.
There is no need to bring in speculation from closed threads.

:backtotop


----------



## jacmyoung (Sep 9, 2006)

Ok then, what about what Mr. Chu said? Anyone can offer any explanation? I recall at the 9/4 hearing a reporter quoted him as saying E* no longer used the TiVo's patented DVR technology, and many TiVo folks insisted he was mis-quoted, except that he never asked for a correction by the reporter.

Is the same thing happening this time?

And what about what the judge said?



> A federal judge indicated he won't rule immediately on whether Dish Network Corp.'s digital-video recording service still infringes a TiVo Inc. patent.


What about the software colorable difference issue? Maybe he would rule on that immediately? He did not say he would not or did he?

If he meant he could rule immediately on the software colorable difference, then it seems the decision is likely that of a more than colorable, because otherwise a contempt should be found and there would be very little need to wait for another hearing.



> ...He said a second hearing may be needed to determine whether to shut Dish's current service. The judge provided no time frame for a decision.


If by the second hearing he meant to determine if the DVRs still infringe, then it again seems to indicate he could very well find the software differences more than colorable now, only then will he need to have another hearing to do a further infringement analysis. And the decision on whether the DVRs should be shut off will be based on that later decision, meaning if an infringement, shut the DVRs off, if not, no action. And there is no time frame for such later hearing/decision.

Remember E* has maintained that the current infringement analysis is premature. Who knows maybe the judge is now buying that argument and seeing the need to separate the colorable difference analysis from the infringement analysis.


----------



## Greg Bimson (May 5, 2003)

jacmyoung said:


> Finally was able to access the linked news piece, very interesting that TiVo's expert witness was saying the same thing TiVo has been saying, that he did not believe the changes made in the new design were relevant to the patent claims.
> 
> The problem is in the colorable difference analysis, the changes made are not compared to the patent claims at all, only compared between the old design and the new design, to determine if the differences are more than colorable.


And I am trying to figure out why the "colorable difference analysis" is a "problem". That wasn't mentioned anywhere in the Bloomberg report.

As a matter of fact...


> James Storer, a Brandeis University professor who was testifying on behalf of TiVo, said he didn't "believe the changes were relevant to the claims."


Storer is saying that there isn't a colorable difference at all. So there isn't a problem with TiVo's belief..


jacmyoung said:


> Aslo Mr Chu (TiVo's lead consul) was quoted saying they would like the judge to have a proper order to shut down the DVRs. What did that mean? That the existing injunction is not good enough and they are seeking a new order?


When a contempt motion is granted, there is an order issued by the judge.

[Mod note: inappropriate comment removed] Of course if contempt is found there will be a new order issued by Judge Folsom. How else would the court mandate a contemnor follow a course of action? Judge Folsom would not find contempt, then simply say, "Please, DISH/SATS, follow my order".

This is not a thread for wild speculations. This is only about the status of infringement and colorable difference on eight models of DVR. Can we please keep this on topic?


----------



## jacmyoung (Sep 9, 2006)

Greg Bimson said:


> And I am trying to figure out why the "colorable difference analysis" is a "problem". That wasn't mentioned anywhere in the Bloomberg report.
> 
> As a matter of fact...Storer is saying that there isn't a colorable difference at all. So there isn't a problem with TiVo's belief...


But he said so because he believed the differences/changes are irrelevant to the patent claims. My point is colorable differences cannot be compared to the patent claims, only to the old design.

The patent claims are only relevant in the infringement analysis. And according to that report, the judge would not rule on the infringement issue, rather indicated he might need another hearing for that purpose, and there was no time frame given.



> When a contempt motion is granted, there is an order issued by the judge.


No a contempt ruling is a ruling based on an existing order, a contempt ruling itself is not an order.

[Mod note: redacted]


----------



## dfd (Aug 29, 2008)

jacmyoung said:


> No a contempt ruling is a ruling based on an existing order, a contempt ruling itself is not an order.


Huh? Please explain this to us non-lawyers.


----------



## jacmyoung (Sep 9, 2006)

dfd said:


> Huh? Please explain this to us non-lawyers.


A ruling on contempt usually takes one of two forms:

Either the judge cannot find a violation of the existing order, he would deny the contempt motion. The parties will be left to decide what they want to do next, either or both parties may appeal or give up.

Or he finds a violation of an existing order, therefore the contempt motion is granted, he would usually arrange another hearing or proceeding to allow parties to respond to his contempt ruling and argue for remedies, meanwhile either or both parties can appeal.


----------



## Curtis52 (Oct 14, 2003)

Contempt motion:


> ...TiVo respectfully requests that the Court issue an Order holding EchoStar in contempt of the Permanent Injunction and requiring EchoStar to comply by disabling the DVR functionality within seven calendar days in the DVR receivers specified in the injunction (i.e., DP-501, DP- 508, DP-510, DP-522, DP-625, DP-721, DP-921 and DP-942).


----------



## nobody99 (May 20, 2008)

jacmyoung said:


> But he said so because he believed the differences/changes are irrelevant to the patent claims. My point is colorable differences cannot be compared to the patent claims, only to the old design.


If DISH changed the order of the menu choices on the DVR, and they tried to say those changes are more than colorable from the previous version, would that matter?

I think that's the point they are trying to make. The changes that DISH is claiming to have made aren't even relevent to the patent, so it doesn't matter if they are different from what they were before.


----------



## jacmyoung (Sep 9, 2006)

nobody99 said:


> If DISH changed the order of the menu choices on the DVR, and they tried to say those changes are more than colorable from the previous version, would that matter?
> 
> I think that's the point they are trying to make. The changes that DISH is claiming to have made aren't even relevent to the patent, so it doesn't matter if they are different from what they were before.


The problem TiVo faces is, the very changes made, you know the "indexing table" and the "multiple buffers for flow control", were claimed by TiVo as the "core of its invention", and since "they have them, we have them", therefore TiVo convinced the jury that E* was infringing.

The point about the colorable differences is not how relevant they are to the patent claims, rather if the changes made to the old design have created the doubt if there is still an infringement.

So the question you need to ask is had there not been the evidence of the "indexing table" nor the "multiple buffers for flow control" back during the jury trial, would it be possible that the jury would not have found E* infringing?

If the answer is it might be possible, that they might not have found an infringement as a result, there exists the doubt, and when there is the doubt there cannot be a contempt.


----------



## jacmyoung (Sep 9, 2006)

Curtis52 said:


> Contempt motion:


Then Mr. Chu was talking about a new order, this time more appropriate in his view, to order the DVRs disabled in 7 days. Thank you for anwsering my question.

Notice in that report, if it is accurate, the judge said he would not issue that new order TiVo was seeking, not from this hearing.


----------



## nobody99 (May 20, 2008)

jacmyoung said:


> he would not issue that new order TiVo was seeking, not from this hearing.


If that's what you were originally thinking would happen, I can comfortably say that you were the only one.


----------



## Greg Bimson (May 5, 2003)

You might want to try this, from Judge Sleet's findings on 5 May 2008 regarding Fisher-Price v. Safety First.

This link is two documents: the memorandum, which explains the reasoning behind the ruling, and the order, which outlines the findings and defines the actions the parties are to follow.


jacmyoung said:


> ...the contempt motion is granted, he would usually arrange another hearing or proceeding to allow parties to respond to his contempt ruling and argue for remedies, meanwhile either or both parties can appeal.


Because the "contempt ruling" will contain an order.


----------



## jacmyoung (Sep 9, 2006)

Greg Bimson said:


> You might want to try this, from Judge Sleet's findings on 5 May 2008 regarding Fisher-Price v. Safety First.
> 
> This link is two documents: the memorandum, which explains the reasoning behind the ruling, and the order, which outlines the findings and defines the actions the parties are to follow.Because the "contempt ruling" will contain an order.


We have discussed that one didn't we? In that case the judge was trying to address multiple motions, both from the patentees and from the defendants, all in one ruling.

In this hearing there is only one item, to determine if E* is in contempt or not for not disabling the 8 named DVRs. The judge's hearing order contained no other items, it did not say whether he would order the shut off of the DVRs in 7 days even if there is a contempt.

TiVo has been asking for the pie in the sky since 5/30, they can ask all they want, but so far they have only been able to take in some of the hot air they have been blowing.

Correction, the judge's hearing order did not try to entertain TiVo's request to disable the DVRs in 7 days.


----------



## peak_reception (Feb 10, 2008)

James Long said:


> We should get an outline of the conversation after the hearing is over. A full transcript can be purchased from the court reporter (or it will be posted to the court website in a few months). Transcripts are interesting but the only words that count will be in the judge's ruling (which will not be made tomorrow).


 Judge Folsom's words will count heavily, yes, but so will the arguments made by counsel. This will undoubtedly be appealed and the CAFC panel will review everyone's words and actions.


----------



## jacmyoung (Sep 9, 2006)

peak_reception said:


> ...This will undoubtedly be appealed and the CAFC panel will review everyone's words and actions.


I would not go as far as to say for certain either or both parties will appeal. It all depends on what kind of decision judge will be making.

As an example if he says he could not find a violation therefore cannot grant the contempt motion, because the new software is more than colorably different compared to the old software, then ask TiVo to seek a new action, if they wish.

In that case there is little reason for E* to appeal, and as for TiVo they might decide to seek that new action, rather go through a lengthy appeal process with little chance for success.


----------



## peak_reception (Feb 10, 2008)

That could be. Point being, arguments matter in a court of law. I don't just want to hear Judge Folsom pontificate, important as that is. I want to hear the opposing arguments and make up my own mind. Any independent thinker would.


----------



## jacmyoung (Sep 9, 2006)

peak_reception said:


> That could be. Point being, arguments matter in a court of law. I don't just want to hear Judge Folsom pontificate, important as that is. I want to hear the opposing arguments and make up my own mind. Any independent thinker would.


I agree, and along the same line I have been saying don't just take whatever TiVo is saying or E* is saying and simply recite their words as proof for anything, think for yourself based on what the judge said, what the case law say.


----------



## Greg Bimson (May 5, 2003)

Regarding Fisher-Price v. Safety First:


jacmyoung said:


> We have discussed that one didn't we? In that case the judge was trying to address multiple motions, both from the patentees and from the defendants, all in one ruling.


Correct. And in this forum, there are two motions, both filed by TiVo, and will most likely be combined into one ruling.


jacmyoung said:


> In this hearing there is only one item, to determine if E* is in contempt or not for not disabling the 8 named DVRs. The judge's hearing order contained no other items, it did not say whether he would order the shut off of the DVRs in 7 days even if there is a contempt.


Because the hearing to determine the status of infringement and colorable difference is only a piece which determines the contempt motion.


jacmyoung said:


> TiVo has been asking for the pie in the sky since 5/30, they can ask all they want, but so far they have only been able to take in some of the hot air they have been blowing.


That's because the wheels of justice turn slowly. DISH/SATS better hope their argument is right, because the wheels of justice would become a meat grinder if it runs over them.


----------



## jacmyoung (Sep 9, 2006)

Greg Bimson said:


> Regarding Fisher-Price v. Safety First:Correct. And in this forum, there are two motions, both filed by TiVo, and will most likely be combined into one ruling.


Which two? I only read one in the judge's hearing order.



> Because the hearing to determine the status of infringement and colorable difference is only a piece which determines the contempt motion.


And that is the only thing this hearing is to address isn't it?



> That's because the wheels of justice turn slowly. DISH/SATS better hope their argument is right, because the wheels of justice would become a meat grinder if it runs over them.


Of course it is true for both sides. TiVo better hope they do more than just "on the face" or on the "parse", or the meat grinder of the market force will turn on them.


----------



## nobody99 (May 20, 2008)

jacmyoung said:


> think for yourself based on what the judge said


I think what you meant to say is

"think for yourself based on what a reporter said the judge said."

I think they call that "heresay" in court.


----------



## nobody99 (May 20, 2008)

jacmyoung said:


> Of course it is true for both sides. TiVo better hope they do more than just "on the face" or on the "parse", or the meat grinder of the market force will turn on them.


If DISH is wrong, and they are still infringing the patent, we're talking about probably $500 million in damages.

If TiVo is wrong, it is status quo. They go on with a hundred million in the bank, and no debt. For what it's worth, DISH is almost $6 billion in debt. Yes, that's Billion with a B.

Hardly the same for both sides.


----------



## Tom Robertson (Nov 15, 2005)

nobody99 said:


> I think what you meant to say is
> 
> "think for yourself based on what a reporter said the judge said."
> 
> I think they call that "heresay" in court.


Indeed, but we're not in court. 

Obviously without actually being there, all we get are second hand reports. Even the transcript leaves out the facial expressions and emotions that would be seen in court.

So semantics aside, what are the reporters saying?

Cheers,
Tom


----------



## jacmyoung (Sep 9, 2006)

Tom Robertson said:


> ...what are the reporters saying?
> 
> Cheers,
> Tom


You linked that report

Other than that piece, I have yet found another one, reporting from after the first day hearing that is.


----------



## jacmyoung (Sep 9, 2006)

nobody99 said:


> I think what you meant to say is
> 
> "think for yourself based on what a reporter said the judge said."...


Where did I say that?

I did ask Greg to read what the judge said in his own orders and find out what he is trying to address in this hearing.


----------



## jacmyoung (Sep 9, 2006)

nobody99 said:


> If DISH is wrong, and they are still infringing the patent, we're talking about probably $500 million in damages.
> 
> If TiVo is wrong, it is status quo. They go on with a hundred million in the bank, and no debt. For what it's worth, DISH is almost $6 billion in debt. Yes, that's Billion with a B.
> 
> Hardly the same for both sides.


Do you honestly believe if TiVo fails on the contempt motion it will be business as usual for them?


----------



## nobody99 (May 20, 2008)

jacmyoung said:


> Where did I say that?


Look up a few posts. It's on the same page.



> Notice in that report, if it is accurate, the judge said he would not issue that new order TiVo was seeking, not from this hearing.


----------



## nobody99 (May 20, 2008)

jacmyoung said:


> Other than that piece, I have yet found another one, reporting from after the first day hearing that is.


(redacted) have the benefit of a person on-site at the bench trial. The updates from that person have been intentionally withheld from numerous people. (redacted) It's almost unfair with all the good stuff we're hearing from the trial. But it will all come out in a few weeks, I'm sure.


----------



## jacmyoung (Sep 9, 2006)

nobody99 said:


> Look up a few posts. It's on the same page.


Did you notice the "if it is accurate"? Meaning I did not even put all the faith in that reporter.

But if it is accurate, then yes the judge was saying he might need another hearing to determine if the DVRs are still infringing, and then decide whether the DISH's service shoud be shut off.

Meaning the decision to shut off the DVRs or not would not be coming from this hearing.


----------



## nobody99 (May 20, 2008)

Here's a little tasty tidbit from the trial:

"Chu made mincemeat out of the Fitch Richardson guy."

Now don't you wish you had your own guy there? :lol:


----------



## Greg Bimson (May 5, 2003)

jacmyoung said:


> I did ask Greg to read what the judge said in his own orders and find out what he is trying to address in this hearing.


Again, there are two motions for Judge Folsom to address. The hearing regarding infringement will be used to address both the contempt motion and the damages motion, even though Judge Folsom's order only states the evaluation of the workaround on infringing receivers is being done as a key component in the contempt ruling.


----------



## jacmyoung (Sep 9, 2006)

(redacted quote)But since Tom had posted his link to the report, we are discussing it.

When your guy decides to no longer withhold his courtroom info we will be able to discuss it too.


----------



## jacmyoung (Sep 9, 2006)

nobody99 said:


> Here's a little tasty tidbit from the trial:
> 
> "Chu made mincemeat out of the Fitch Richardson guy."


Yeah he said that on 9/4/08 too



> Now don't you wish you had your own guy there? :lol:


You want my honest answer? No I don't


----------



## jacmyoung (Sep 9, 2006)

Greg Bimson said:


> Again, there are two motions for Judge Folsom to address. The hearing regarding infringement will be used to address both the contempt motion and the damages motion, even though Judge Folsom's order only states the evaluation of the workaround on infringing receivers is being done as a key component in the contempt ruling.


Of course your current statement is not incorrect, but the damages are not at issue in this particular hearing.

Besides I thought we were talking about whether the current hearing will entertain Mr. Chu's request for the new order, you know the one to ask the DVRs be shut off in 7 days.

I just do not see it on the hearing order.


----------



## Greg Bimson (May 5, 2003)

jacmyoung said:


> But if it is accurate, then yes the judge was saying he might need another hearing to determine if the DVRs are still infringing, and then decide whether the DISH's service shoud be shut off.





bloomberg.com said:


> U.S. District Judge David Folsom today said he wants lawyers to submit written arguments after completion of a two- day hearing that began this morning in Texarkana, Texas. He said a second hearing may be needed to determine whether to shut Dish's current service.


???

Bloomberg did not report the need for a second hearing to determine infringement. Where did that come from?


----------



## jacmyoung (Sep 9, 2006)

Greg Bimson said:


> ???
> 
> Bloomberg did not report the need for a second hearing to determine infringement. Where did that come from?


Because he has to first find infringement in that next hearing in order to shut off the service.

I know you disagree with such concept but that is fine, I am not here to convince you, just to state my own.


----------



## Greg Bimson (May 5, 2003)

jacmyoung said:


> Because he has to first find infringement in that next hearing in order to shut off the service.
> 
> I know you disagree with such concept but that is fine, I am not here to convince you, just to state my own.


Ahh, so the entire argument is a concept that there must be a second hearing to determine infringement.

Yet there is an order from the court that the status of infringement and colorable difference are being evaluated during yesterday's and today's hearings. And that order was even amended at DISH/SATS request, but it still has not changed that the hearing is to at least determine continuing infringement.


----------



## nobody99 (May 20, 2008)

jacmyoung said:


> Yeah he said that on 9/4/08 too


Please stay on topic. This is about the February 17-18 bench trial.


----------



## Tom Robertson (Nov 15, 2005)

Ok, I'm getting very confused, but mostly because I was away from these threads for awhile.

Does this trial include other models via colorable difference?
Does this trial only include colorable difference in only the 8 named models as in DISH made changes that are only colorable difference only to these models?
Where does that leave the other models?

And where is the pizza party to discuss this? I'm bring pepperoni and Chicago stuffed. 

Cheers,
Tom


----------



## Tom Robertson (Nov 15, 2005)

nobody99 said:


> Please stay on topic. This is about the February 17-18 bench trial.


Actually this thread is re-opened to larger discussions of the case. So often the discussions have to pull in data from the whole to discuss the current.

General note to everyone: Please don't repeat oneself in this thread from within this thread. And if links to other threads serve better than repeating oneself in this thread, please do that.

Thanks!
Tom


----------



## jacmyoung (Sep 9, 2006)

Greg Bimson said:


> Ahh, so the entire argument is a concept that there must be a second hearing to determine infringement.
> 
> Yet there is an order from the court that the status of infringement and colorable difference are being evaluated during yesterday's and today's hearings. And that order was even amended at DISH/SATS request, but it still has not changed that the hearing is to at least determine continuing infringement.


But that is old news, now we learned more in that report what the judge said after the first day hearing.


----------



## Curtis52 (Oct 14, 2003)

Tom Robertson said:


> Does this trial include other models via colorable difference?
> Does this trial only include colorable difference in only the 8 named models as in DISH made changes that are only colorable difference only to these models?
> Where does that leave the other models?


This hearing is just about the 8 named models. Bloomberg referred to a possible second hearing later on. I'm guessing that would be on the newer models.


----------



## jacmyoung (Sep 9, 2006)

Tom Robertson said:


> Ok, I'm getting very confused, but mostly because I was away from these threads for awhile.
> 
> Does this trial include other models via colorable difference?
> Does this trial only include colorable difference in only the 8 named models as in DISH made changes that are only colorable difference only to these models?
> ...


No this hearing (not a trial) is to address only the 8 named DVRs. And the judge initially called it a bench trial, but changed it to just a hearing.

The colorable difference only concerns the software installed in those 8 named DVRs, not the DVR hardware, the hardware are the same, not any colorable variations.

Any DVRs other than the 8 named models are not at issue right now. However, if E* is not in contempt, the other DVRs will not be an issue in this lawsuit, if E* is in contempt, TiVo can later seek another motion to include all the other DVRs.

And lawyers usually want things better than pizzas What kind of liquor will you bring?


----------



## jacmyoung (Sep 9, 2006)

Curtis52 said:


> This hearing is just about the 8 named models. Bloomberg referred to a possible second hearing later on. I'm guessing that would be on the newer models.


The judge does not initiate any expansion of the devices in the proceedings, the patentee must motion the court to include additional devices, and the defendants will of course object, and the judge will then decide if the motion may be granted or not, or modified.

For that reason, when the judge said he might need another hearing, my guess is he was talking about the same 8 named DVRs.


----------



## Greg Bimson (May 5, 2003)

Tom Robertson said:


> Ok, I'm getting very confused, but mostly because I was away from these threads for awhile.
> 
> Does this trial include other models via colorable difference?


This hearing is only regarding eight models: the 501, 508, 510, 522, 625, 721, 921 and 942. The presumption is that it must be all Echostar models that bear that name.


Tom Robertson said:


> Does this trial only include colorable difference in only the 8 named models as in DISH made changes that are only colorable difference only to these models?
> Where does that leave the other models?


The other models are left in limbo, for now. You can bet that TiVo is somewhat angling to get the newer models, starting with the ViP 622 and 722, involved in this. It shouldn't happen. Besides, TiVo is simply more interested in getting the shut down order iron clad to force DISH/SATS to the negotiating table, where the only negotiation would be a complete capitulation.


Tom Robertson said:


> And where is the pizza party to discuss this? I'm bring pepperoni and Chicago stuffed.


New York Style. Chicago is too heavy.


----------



## jacmyoung (Sep 9, 2006)

Greg Bimson said:


> ...You can bet that TiVo is somewhat angling to get the newer models, starting with the ViP 622 and 722, involved in this. It shouldn't happen...


Like you said it shouldn't happen, TiVo cannot be "angling" for the new DVRs, they have to file a motion to request that they be added, and if E* is not in contempt for the use of the 8 named DVRs, TiVo will lack merit for such motion to be granted to add any new DVRs.


----------



## Greg Bimson (May 5, 2003)

jacmyoung said:


> Like you said it shouldn't happen, TiVo cannot be "angling" for the new DVRs, they have to file a motion to request that they be added, and if E* is not in contempt for the use of the 8 named DVRs, TiVo will lack merit for such motion to be granted to add any new DVRs.


If DISH/SATS admits that the software in the 622/722 was changed to avoid infringement, and the 622/722 software is identical to the five named DVR's that were changed, then DISH/SATS will have impeached themselves, and Judge Folsom can also apply his new order to these newer devices. It is highly unlikely that will happen.


----------



## Curtis52 (Oct 14, 2003)

Judge Folsom seems to have addressed whether a separate hearing would be needed for the newer models when he referred (according to Bloomberg) to a possible second hearing..

Contempt motion:


> TiVo also plans to address separately, *if necessary*, EchoStar's new DVR products with model numbers that were not specified in the Permanent Injunction. TiVo believes these products are not colorably different from the Infringing Products and continue to infringe the Barton Patent, and therefore may constitute another ground for which EchoStar should be held in contempt.


----------



## Tom Robertson (Nov 15, 2005)

Greg Bimson said:


> If DISH/SATS admits that the software in the 622/722 was changed to avoid infringement, and the 622/722 software is identical to the five named DVR's that were changed, then DISH/SATS will have impeached themselves, and Judge Folsom can also apply his new order to these newer devices. It is highly unlikely that will happen.


Ok, I think I get that.

That said, and only if this trial is successful for TiVo, can TiVo use the colorable difference clause against the 622/722s? They wouldn't have to be identical software would they?

Thanks,
Tom


----------



## Greg Bimson (May 5, 2003)

Tom Robertson said:


> That said, and only if this trial is successful for TiVo, can TiVo use the colorable difference clause against the 622/722s? They wouldn't have to be identical software would they?


Sure. TiVo could have filed the moment the case made it back from the Court of Appeals. TiVo took "the easy way out", by simply going after those receivers that are supposed to be disabled. However, now with an infringement evaluation occurring, TiVo should have motioned the rest of DISH/SATS DVR's to be found in contempt. Instead, if no settlement is reached, it will have to be done much later in this process.


----------



## jacmyoung (Sep 9, 2006)

Greg Bimson said:


> ...TiVo should have motioned the rest of DISH/SATS DVR's to be found in contempt. Instead, if no settlement is reached, it will have to be done much later in this process.


Even if TiVo had tried that, the motion would not have likely been granted, one thing at a time.

TiVo must have many plans, they need to get at least one to work first.


----------



## Tom Robertson (Nov 15, 2005)

Thanks


----------



## James Long (Apr 17, 2003)

Tom Robertson said:


> That said, and only if this trial is successful for TiVo, can TiVo use the colorable difference clause against the 622/722s? They wouldn't have to be identical software would they?


TiVo would LOVE to get the ViP's declared no more than colorably different. Fortunately for DISH that isn't the focus of today's hearing nor the motion to find Echostar in contempt that led to today's hearing. The core issue is if DISH violated the injunction by not disabling the eight named DVRs. Going after colorably different products is something TiVo will have to do later.

Unfortunately (for TiVo) it seems Judge Folsom does not want to hold DISH in contempt for not shutting down the eight named DVRs as ordered unless those DVRs are no more than colorably different and do not actually infringe. That is the focus of yesterday and today ... comparing a 501/508/510/522/625/721/921/942 after the modification DISH claims to a 501/508/510/522/625/721/921/942 before said modifications - and if no more than colorably different deciding if the current 501/508/510/522/625/721/921/942 receiver infringes.

jacmyoung can tell you WHY the judge MUST find infringement to find contempt ... that information can be found in about 500 posts of the last 5000 on the subject in other threads.  All kidding aside, if the decision was entirely up to me DISH would have been held in contempt following the September hearing. They did not do what a court specifically ordered them to do. They did something else. And when challenged they claimed to have done specifically what they were ordered to do instead of taking the court offered "out" of following the spirit of the injunction. Fortunately for DISH it isn't up to me.


----------



## nobody99 (May 20, 2008)

James Long said:


> Unfortunately (for TiVo) it seems Judge Folsom does not want to hold DISH in contempt for not shutting down the eight named DVRs as ordered unless those DVRs are no more than colorably different and do not actually infringe.


And unfortunately for DISH, the Fish Richardson expert witness today testified that he didn't even look at source code when he provided an opinion that they no longer infringed.


----------



## James Long (Apr 17, 2003)

nobody99 said:
 

> And unfortunately for DISH, the Fish Richardson expert witness today testified that he didn't even look at source code when he provided an opinion that they no longer infringed.


The trial is of less interest to me than the outcome ... after all, it is only Judge Folsom's opinion that matters. As noted ... as "devastating" as the testimony was in September who would have guess there would be a February hearing?

Judge Folsom will eventually release a decision ... and someone will appeal it based on what Judge Folsom says in his ruling. We'll just have to wait for the outcome.

I choose patience.


----------



## Greg Bimson (May 5, 2003)

James Long said:


> Unfortunately (for TiVo) it seems Judge Folsom does not want to hold DISH in contempt for not shutting down the eight named DVRs as ordered unless those DVRs are no more than colorably different and do not actually infringe. That is the focus of yesterday and today ...


That is a bit of a stretch. This hearing is but one aspect of the motion for contempt, and it appears to be linked to the motion for damages.

Since there is supposition going on, for example, let's take TiVo's proposed order, where if DISH/SATS is in contempt they would be required to disable the DVR's within seven days of issuance of said order.

How can Judge Folsom grant prima facie contempt and issue an order to disable DVR's that may not infringe? I don't think it is possible.

A finding of infringement against devices already found to infringe would allow Judge Folsom to issue an order of contempt forcing DISH/SATS to disable the models found infringing. And that could easily why this hearing has been ordered.


James Long said:


> All kidding aside, if the decision was entirely up to me DISH would have been held in contempt in September. They did not do what a court specifically ordered them to do.


Yet because there are three issues before Judge Folsom ("prima facie" contempt, contempt for sales of products not more than colorably different i.e., newer software versions of the five models that had software changed, and of enhanced damages during the stay), and none of them have been resolved, maybe there will be only one ruling to come from the court. Therefore, maybe all issues must be resolved before a ruling and an order are issued.


----------



## James Long (Apr 17, 2003)

Greg Bimson said:


> How can Judge Folsom grant prima facie contempt and issue an order to disable DVR's that may not infringe? I don't think it is possible.


The same way that "Walker" (ad Dr King as part of that case) were required to pay a fine for being in contempt of a court order that required them to follow a law later ruled unconstitutional. The issue is not whether or not DISH is infringing, it is whether they have shown contempt for the lawful order of the court.

Or not ... as I said, if I were the judge DISH would already be guilty. 



> Yet because there are three issues before Judge Folsom ("prima facie" contempt, contempt for sales of products not more than colorably different i.e., newer software versions of the five models that had software changed, and of enhanced damages during the stay), and none of them have been resolved, maybe there will be only one ruling to come from the court. Therefore, maybe all issues must be resolved before a ruling and an order are issued.


All focused on the eight named models and DISH's apparent refusal to disable their DVR functionality.


----------



## Greg Bimson (May 5, 2003)

James Long said:


> The same way that "Walker" (ad Dr King as part of that case) were required to pay a fine for being in contempt of a court order that required them to follow a law later ruled unconstitutional.


But it is possible that Judge Folsom has decided most of the issue of contempt, including the above. However, Judge Folsom has yet to issue his decision, as he feels the need to understand if the modifications still make those five models of receivers infringe (and if they are merely colorably different than those that were adjudged). It could be, as I believe, as simple as making sure infringement is present before issuing another order to disable the receivers.


James Long said:


> The issue is not whether or not DISH is infringing, it is whether they have shown contempt for the lawful order of the court.


True. But without a finding of infringement upon the modifications, can Judge Folsom even order disabling modified DVR's simply because they've never been "disabled"?

In other words, could Judge Folsom issue a memo stating DISH/SATS is in contempt of the injunction, without giving an order?


----------



## James Long (Apr 17, 2003)

Greg Bimson said:


> It could be, as I believe, as simple as making sure infringement is present before issuing another order to disable the receivers.


I'm expecting contempt with a slap on the wrist if infringement has ceased or a larger penalty if infringement has not ceased (before getting into damages). If somehow DISH avoids contempt there will at least be some stern language directed their way (again).



> True. But without a finding of infringement upon the modifications, can Judge Folsom even order disabling modified DVR's simply because they've never been "disabled"?


I believe he can under Walker but he won't under common sense. It makes it a lot easier for Judge Folsom if there is continued infringement since there is no question that the letter and spirit of the injunction has not been followed if infringement continues. But in strict legalistic terms, as long as the DVR functionality as defined in the injunction (writing television data to a hard drive) is not disabled DISH is in contempt.



> In other words, could Judge Folsom issue a memo stating DISH/SATS is in contempt of the injunction, without giving an order?


Any finding will be an order ... either an order finding DISH in contempt as TiVo requested or an order denying TiVo's motion for contempt. I just hope one of those orders comes before an order for yet another hearing.

BOTH sides want resolution ... neither side wants to lose but TiVo needs the win so they can go after other potential infringers and DISH needs the win so they can spend less time in court. Continuous court action is not a good outcome.


----------



## jacmyoung (Sep 9, 2006)

nobody99 said:


> And unfortunately for DISH, the Fish Richardson expert witness today testified that he didn't even look at source code when he provided an opinion that they no longer infringed.


The lawyers know nothing about the source code, they rely on the E* engineers to provide them the watered down summary in the form of the charts and diagrams, then provide their legal opinions.

The question is whether TiVo's engineers had looked at the same source code and provided their lawyers a different sets of charts and diagrams to argue otherwise.

What we know is so far TiVo does not deny the changes, only that the changes are irrelevant to the patent claims. And I had said why such argument has nothing to do with the colorable difference analysis.


----------



## nobody99 (May 20, 2008)

jacmyoung said:


> The lawyers know nothing about the source code, they rely on the E* engineers to provide them the watered down summary in the form of the charts and diagrams, then provide their legal opinions.


Then the legal opinion is pointless. Software is source code.


----------



## Herdfan (Mar 18, 2006)

Greg Bimson said:


> However, Judge Folsom has yet to issue his decision, as he feels the need to understand if the modifications still make those five models of receivers infringe (and if they are merely colorably different than those that were adjudged). It could be, as I believe, as simple as making sure infringement is present before issuing another order to disable the receivers.


Why is this not a question of fact for a jury?


----------



## CuriousMark (May 21, 2008)

Herdfan said:


> Why is this not a question of fact for a jury?


Because the claim constructions are all in place. The only new facts needed were what was the old code, what is the new code and how do they differ. If things don't go Dish's way on this, I think they have a right to request it be retried with a jury. Maybe not though, the code is cut and dried, so I am not sure a jury would make much, or for that matter any, difference.


----------



## Greg Bimson (May 5, 2003)

Herdfan said:


> Why is this not a question of fact for a jury?





CuriousMark said:


> Because the claim constructions are all in place. The only new facts needed were what was the old code, what is the new code and how do they differ. If things don't go Dish's way on this, I think they have a right to request it be retried with a jury. Maybe not though, the code is cut and dried, so I am not sure a jury would make much, or for that matter any, difference.


Ahem...

This is a contempt proceeding. There isn't a need to have a jury trial. The jury has already given their verdict.

The fact the receivers have been adjudged is continually lost. Judge Folsom ordered the receivers modified so that they had their DVR functionality disabled. By DISH/SATS arguments, those receivers would no longer be subject to the injunction, but that is untrue.

Even Judge Folsom is determining "continuing infringement". The implication is that the receivers have already been ruled as a infringing devices. Just because they were modified does not mean they are "new devices". It isn't like the wheel needs to be re-invented, as there has been a trial and a verdict which are now the facts of the case.


----------



## jacmyoung (Sep 9, 2006)

Greg Bimson said:


> ...It could be, as I believe, as simple as making sure infringement is present before issuing another order to disable the receivers...


What if infringement is no longer present?


----------



## jacmyoung (Sep 9, 2006)

nobody99 said:


> Then the legal opinion is pointless. Software is source code.


Maybe TiVo should return the $104M back to E* because the old source code was never looked at by the lawyers, the jury and the judges back then What was the point? None of them would have understood any of the source code no matter how long they had stared at it.


----------



## Greg Bimson (May 5, 2003)

jacmyoung said:


> What if infringement is no longer present?


I'll take a shot at this scenario, as this _could_ happen...

First, infringement on the face (prima facie infringement) is granted.
*this assumes Walker v. Birmingham, where an order must be followed until the order is declared invalid or unconstitutional*

Second, damages during the stay could be exactly what TiVo requested, minus the last category, where receivers that ever only had the new modification cannot have damages.
*this assumes all receivers downloaded with the old software would have needed to be disabled*

Third, Judge Folsom's order would be only a slap on the wrist, as there would no longer be any devices that still infringe over the 193K threshold.

There could be additional damages because DISH/SATS would be found in contempt for a prima facie violation of the injunction, but that would be the end of the damages. That would be a blow to TiVo, as they want a licensing agreement.

Of course, both parties would then appeal, as DISH/SATS doesn't want to pay contempt damages, while TiVo will want infringement to be found on the workaround.


----------



## James Long (Apr 17, 2003)

*Dish Loss May Cost Hundreds of Millions Each Month, CEO Says*

Feb. 18 (Bloomberg) -- Dish Network Corp. may lose "several hundred million dollars" each month if a judge finds the company's digital-video recording service still infringes a TiVo Inc. patent and shuts it down, said Charles Ergen, the company's chief executive officer.

Dish had made enough changes to its product so it no longer infringes TiVo's technology, Ergen testified in federal court in Texarkana, Texas. The two-day hearing started yesterday and U.S. District Judge David Folsom hasn't said when he will rule.

...

"We took exceptional care," Ergen testified. "We knew whatever we did would be under a microscope."

TiVo claims Dish is still infringing its technology, while Dish countered in the hearing that TiVo is trying to expand the scope of its claims.

... MORE ...


----------



## jacmyoung (Sep 9, 2006)

Greg Bimson said:


> I'll take a shot at this scenario, as this _could_ happen...
> 
> First, infringement on the face (prima facie infringement) is granted...


Never heard of such thing.


----------



## jacmyoung (Sep 9, 2006)

James Long said:


> *Dish Loss May Cost Hundreds of Millions Each Month, CEO Says*
> 
> Feb. 18 (Bloomberg) -- Dish Network Corp. may lose "several hundred million dollars" each month if a judge finds the company's digital-video recording service still infringes a TiVo Inc. patent and shuts it down, said Charles Ergen, the company's chief executive officer.
> 
> ...


Whatever the component changes made are irrelevant to the patent claims, because the patent claims never mention any particular components, only abstract descriptions, the same old TiVo had said even before 9/4/08. By that standard, design around would never be possible no matter what.

Why the courts even bother?


----------



## Tom Robertson (Nov 15, 2005)

jacmyoung said:


> Never heard of such thing.


Meaning what? 

Are you thanking Greg for sharing? (I certainly appreciate the insights he gives.) Thanks, Greg!

Cheers,
Tom


----------



## Tom Robertson (Nov 15, 2005)

jacmyoung said:


> Whatever the component changes made are irrelevant to the patent claims, because the patent claims never mention any particular components, only abstract descriptions, the same old TiVo had said even before 9/4/08. By that standard, design around would never be possible no matter what.
> 
> Why the courts even bother?


If by components you mean hardware, the hardware hasn't changed and Dish isn't claiming it has.

If by components you mean software components, that is what Dish is saying has changed. The software modules and techniques that were infringing upon TiVo's technologies and techniques.

Cheers,
Tom


----------



## jacmyoung (Sep 9, 2006)

Tom Robertson said:


> Meaning what?
> 
> Are you thanking Greg for sharing? (I certainly appreciate the insights he gives.) Thanks, Greg!
> 
> ...


Meaning it was his own invention

Either it infringes, or it does not, there are no different steps of finding infringement by a device, such as finding infringement "on the face" first, then later finding infringement "on details" or "on substance."

The only things close to what Greg said are literal infringement and/or infringement by equivalents.


----------



## Tom Robertson (Nov 15, 2005)

jacmyoung said:


> Meaning it was his own invention
> 
> Either it infringes, or it does not, there are no different levels of infringement by a device, such as "on the face infringement" v. some other kind of infringement.


Even I know there is a process of "prima facia that applies in legal items. This is not a grade of the infringement, but how plainly it can be seen.

So it is not his own invention.


----------



## jacmyoung (Sep 9, 2006)

Tom Robertson said:


> Even I know there is a process of "prima facia that applies in legal items. This is not a grade of the infringement, but how plainly it can be seen.
> 
> So it is not his own invention.


There are prima facie copy right or trademark infringement but not patent infringement.

If patent infringement can be prima facie, there should not be such patent in the first place, too obvious to be granted a patent.

P.S. We had in the past discussed prima facie violation of the injunction, and even that is rarely used in patent cases (in fact we had never find one) simply because of the complexity of any valid patent, assume the USPTO did their job right when granting the patent.

TiVo tried prima facie (on the face) violation of the injunction and it did not work.


----------



## jacmyoung (Sep 9, 2006)

Tom Robertson said:


> If by components you mean hardware, the hardware hasn't changed and Dish isn't claiming it has.
> 
> If by components you mean software components, that is what Dish is saying has changed. The software modules and techniques that were infringing upon TiVo's technologies and techniques.
> 
> ...


What I meant was any real world changes have to be changes made to the particular products and their hardware/software components involved, such as the "index table" and the "multiple buffers" in the DVRs. One will not find such real world components ever mentioned in patent claims because patent claims only describe an invention process, not any layout of a product and its various parts, software or hardware.

Therefore it is impossible to make real world changes if according to TiVo whatever the changing parts have to be mentioned in the patent claims or else they are "irrelevant". Again patent claims makes no mentioning of any real product and its hardware/software components, only the invention process itself.

Put it this way, since the word "DVR" is never mentioned in the TiVo's patent claims, if TiVo's above logic prevails, E* can argue that no DVRs can ever infringe on the TiVo's patent because the patent does not mention the word "DVR", therefore a DVR has nothing to do with the TiVo's patent claims. It is obviously not true.


----------



## Tom Robertson (Nov 15, 2005)

jacmyoung said:


> What I meant was any real world changes have to be changes made to the particular products and their hardware/software components involved, such as the "index table" and the "multiple buffers" in the DVRs. One will not find such real world components ever mentioned in patent claims because patent claims only describe an invention process, not any layout of a product and its various parts, software or hardware.
> 
> Therefore it is impossible to make real world changes if according to TiVo whatever the changing parts have to be mentioned in the patent claims or else they are "irrelevant". Again patent claims makes no mentioning of any real product and its hardware/software components, only the invention process itself.


As I parse this post i come up with
1) real world changes must be made
2) real world components aren't mentioned in patents
3) therefore real world changes can't be made
Bonus corollary) if components aren't patented, how can anything infringe anything...

I'm confused....

What am I missing?

By the way, the patents I've reviewed are often very detailed as to hardware level bits, but they are mechanical patents not software. The one or two conceptual patents I've read seem to be detailed not at the exact "code" level, but very detailed at the "how it works" level, almost a pseudo code.

Cheers,
Tom


----------



## jacmyoung (Sep 9, 2006)

Tom Robertson said:


> As I parse this post i come up with
> 1) real world changes must be made
> 2) real world components aren't mentioned in patents
> 3) therefore real world changes can't be made
> ...


I agree what I said above is more relevant in software related inventions. I don't see you missing anything, all I am saying is TiVo's argument is flawed. TiVo insists changing software components such as the "index table" or the "multiple buffers" is "irrelevant" to the patent claims because they are never mentioned in the patent claims.

But what exactly do the TiVo patent claims mention one asks? How about a "source object", a "transform object", a "sink object" or a "physical data source"?

Can one actually find any specific components in a DVR that are actually called by the above names? If the answer is no, then how is anyone able to make any "relevant" changes in a DVR at all, if TiVo's logic prevails?


----------



## vankai (Jan 22, 2007)

Hi jacmyoung,

Can't one say that TiVo's logic has prevailed thus far?

and do you think that no one should have been able to patent any concepts of DVR functions?


regards
vankai


----------



## nobody99 (May 20, 2008)

> "We took exceptional care," Ergen testified. "We knew whatever we did would be under a microscope."


Yet, according to eyewitness reports, Ergen testified that they didn't have any way of documenting when the workaround hit each box.

Hardly exceptional care, and hardly the act someone would take knowing they were being watched as if under microscope. That certainly been the second priority of my workaround (the first being to try to avoid infringement).


----------



## jacmyoung (Sep 9, 2006)

vankai said:


> Hi jacmyoung,
> 
> Can't one say that TiVo's logic has prevailed thus far?


One can say that if E* is already found in contempt, or is it? TiVo used the same logic on 9/4/08 it did not get a contempt back then.



> and do you think that no one should have been able to patent any concepts of DVR functions?
> 
> regards
> vankai


Of course anyone can patent any concepts of DVR functions, TiVo admitted themselves during the jury trial that there were many valid patented DVR technologies and they did not have to infringe on one another. Only that E*'s old DVR technology was a copy of TiVo's.

Now E* changed the software to claim its new DVR technology no longer infringe.


----------



## HobbyTalk (Jul 14, 2007)

nobody99 said:


> Yet, according to eyewitness reports, Ergen testified that they didn't have any way of documenting when the workaround hit each box.
> 
> Hardly exceptional care, and hardly the act someone would take knowing they were being watched as if under microscope. That certainly been the second priority of my workaround (the first being to try to avoid infringement).


I would guess that would be true that they do not document when each receiver is actually upgraded. They may know when each receiver is scheduled to get the upgrade but don't track (or can't) when each receiver is actually upgraded. Some people may be on vacation and have the receiver turned off, some may unplug their receivers at night, some are not connected to a phone line so they can never know if it is upgraded, etc.


----------



## jacmyoung (Sep 9, 2006)

nobody99 said:


> Yet, according to eyewitness reports, Ergen testified that they didn't have any way of documenting when the workaround hit each box...


Let's say E* decided to recall all the 4 million DVRs back to one of their warehouses, had 100 tech units working 24/7 hitting those DVRs with the new software then sent them back to the customers ASAP.

Would that be good enough even though E* still could not document the exact time each box was hit?

When the satellte receivers are hit with a new software, they are hit in batches, one batch can have say a million of them automatically hit at certain night, then the next night another million will be automatically hit. There is no meaningful way to document exactly which box is hit at which time, but all one needs is to look at the software version to verify that they are indeed hit therefore modifications are indeed made.

The "under the microscope" notion is that they knew this time they had to make sure whatever the hit they made could no longer infringe on the TiVo's patent, that was what they really tried to be very sure of because the new software would be under the microscope, not the precise timing of each hit.


----------



## nobody99 (May 20, 2008)

HobbyTalk said:


> I would guess that would be true that they do not document when each receiver is actually upgraded. They may know when each receiver is scheduled to get the upgrade but don't track (or can't) when each receiver is actually upgraded. Some people may be on vacation and have the receiver turned off, some may unplug their receivers at night, some are not connected to a phone line so they can never know if it is upgraded, etc.


Well I guess that's my point. I wouldn't have claimed (under oath) that they were operating as if they were under a microscope...if the weren't operating that way. Regardless of whether or not its possible, Mr. Ergen seems to have been hiding the truth at best, and dishonest (and perjury) at worst.

And this may be a big problem for DISH if, by chance, they are not held in contempt. What date do you consider the uninfrining software installed?

There's an easy way to fix that: pay $3 (or some other number) per month up until the point where you have conclusive proof that the upgrade has occurred.

Most seemingly-impossible problems can be quickly remedied with the correct application of financial leverage.


----------



## nobody99 (May 20, 2008)

jacmyoung said:


> The "under the microscope" notion is that they knew this time they had to make sure whatever the hit they made could no longer infringe on the TiVo's patent, that was what they really tried to be very sure of because the new software would be under the microscope, not the precise timing of each hit.


Again, working under the best-case assumption that the new software no longer infringes...

So if they don't know _when_ the receiver was updated, how do they know it was updated at all?

If it wasn't updated, it still infringes with the original software.

So if they can't definitively say that the new software is downloaded, they can't say the box no longer infringes.


----------



## jacmyoung (Sep 9, 2006)

nobody99 said:


> ...And this may be a big problem for DISH if, by chance, they are not held in contempt. What date do you consider the uninfrining software installed?...


Very good point and I will even go one step further that E* might not be trying all they could to dig up such documentation of the timing of the hits so they could just give an estimate of say starting point of 10/06, end point of 05/07, and provide proof that by 05/07 all new hits were complete.

This way they can make the numbers in their favor by claiming most of those DVRs were hit close to 10/06, not close to 05/07, therefore the damages can be as little as possible.

The judge of course will have to decide how much E*'s proof he can accept and determine the damages accordingly. If he really thinks E* is playing the game, he could assume all modifications were done in 05/07, and order E* to pay damages on all the DVRs up to that time, even though many might have been modified before that.


----------



## nobody99 (May 20, 2008)

Or how about this simple solution that I came up with as a person who doesn't own a satellite company, and hasn't lost a patent infringement suit:

Get an 800-number with automatic voice response.
Install the new software
Upon first boot up of the software, put a message on the screen:

"Due to the ongoing litigation between TiVo and Dish Network, we have installed new software. You must confirm that this software has been installed on your receiver by calling 1-800-NONINFRINGE. You will be asked to type in your account number and a code. For your reference, your account number is 12345 and the code is 1512."

Viola. You now have the exact date at which these were installed.

within a week, you completely disable the receivers for anyone who did not call.


----------



## Greg Bimson (May 5, 2003)

It's what happens when there are multiple arguments ongoing. I jumble words. And I'm not the first to do so during any of these threads. 


> First, *violations* on the face (prima facie *contempt*) is granted.
> *this assumes Walker v. Birmingham, where an order must be followed until the order is declared invalid or unconstitutional*


----------



## James Long (Apr 17, 2003)

jacmyoung said:


> TiVo tried prima facie (on the face) violation of the injunction and it did not work.


The decision is still out on that. Don't jump the gun!


----------



## CuriousMark (May 21, 2008)

jacmyoung said:


> TiVo tried prima facie (on the face) violation of the injunction and it did not work.


So far.

edit: I see James beat me to it.


----------



## James Long (Apr 17, 2003)

nobody99 said:


> Yet, according to eyewitness reports, Ergen testified that they didn't have any way of documenting when the workaround hit each box.


They DO have the ability to document when each box or series of boxes were targeted for the "upgrade". We even have that tracking information posted on DBSTalk and other satellite forums (it can be read from the satellite streams in an unscrambled format).

But yes, people can refuse to accept upgrades - so there is no 100% guarantee that all receivers took the software. Even if DISH sent software to disable the DVR functionality there is no 100% guarantee that the software would be downloaded (unless they have put a switch into older software).


----------



## Tom Robertson (Nov 15, 2005)

James Long said:


> They DO have the ability to document when each box or series of boxes were targeted for the "upgrade". We even have that tracking information posted on DBSTalk and other satellite forums (it can be read from the satellite streams in an unscrambled format).
> 
> But yes, people can refuse to accept upgrades - so there is no 100% guarantee that all receivers took the software. Even if DISH sent software to disable the DVR functionality there is no 100% guarantee that the software would be downloaded (unless they have put a switch into older software).


Ouch!

Does this imply that Dish might be required to disable ALL reception on receivers that don't identify themselves as having been upgraded since they can't disable DVR features remotely?

Cheers,
Tom


----------



## nobody99 (May 20, 2008)

jacmyoung said:


> Oh one more thing, the report above also puts TiVo's winning chance at 65%, I recall a similar report had it at 75% during the 9/4 hearing


I'm sure you'll be pleased to hear that Tony Wible has increased his odds of TiVo winning back to 75%.


----------



## CuriousMark (May 21, 2008)

Tom Robertson said:


> Does this imply that Dish might be required to disable ALL reception on receivers that don't identify themselves as having been upgraded since they can't disable DVR features remotely?


There is probably some sort of middle ground that could be worked out. Say the dial in solution mentioned above or a requirement to connect to a phone-line or network so that the DVR could report in. Then the slackers would only have to be de-authorized. But still it would be a big effort.

I personally don't believe it would come to that. I think the moment a settlement becomes the least cost option, Dish would consider sitting down at the negotiating table.


----------



## jacmyoung (Sep 9, 2006)

James Long said:


> The decision is still out on that. Don't jump the gun!


It is my opinion they failed on that, no one has to agree

There has never one case I have read that an infringer was found in violation of an injunction on patent infringement *simply on the face*, with one exception, when the infringer admitted they violated the injunction.


----------



## jacmyoung (Sep 9, 2006)

Tom Robertson said:


> Ouch!
> 
> Does this imply that Dish might be required to disable ALL reception on receivers that don't identify themselves as having been upgraded since they can't disable DVR features remotely?
> 
> ...


I don't think the judge will go that far. There can't be many of those out there, if any.


----------



## jacmyoung (Sep 9, 2006)

nobody99 said:


> I'm sure you'll be pleased to hear that Tony Wible has increased his odds of TiVo winning back to 75%.


I feel bad for those continue to be sucked into investing in TiVo because those analysts have no idea how the patent law works


----------



## Tom Robertson (Nov 15, 2005)

jacmyoung said:


> I don't think the judge will go that far. There can't be many of those out there, if any.


If there are very few, it would be little to no harm for DISH to turn of only those few.

My intent was DISH would have to turn off only those individual receivers that haven't called home with "I'm updated."

And who knows how many there are?

Cheers,
Tom


----------



## James Long (Apr 17, 2003)

Tom Robertson said:


> James Long said:
> 
> 
> > But yes, people can refuse to accept upgrades - so there is no 100% guarantee that all receivers took the software. Even if DISH sent software to disable the DVR functionality there is no 100% guarantee that the software would be downloaded (unless they have put a switch into older software).
> ...


DISH hasn't lost yet! 

It depends on what TiVo accepts (or what Judge Folsom tells them to accept) as proof of compliance with the order to disable receivers. It is basically a recall leaving the products in place. In a normal recall the company makes their best effort to get the product off of the market but no company sends armed marshals with guns into every customer's homes to enforce a recall. They comply to the best of their ability.

If Judge Folsom accepts "change of software" to another DVR enabled software (as DISH claims to have done) as "disabling the DVR functionality" then TiVo will have to accept DISH's "change of software" efforts as compliance (or appeal the decision). The argument of how many non-converted DVRs are out there will come into play.

Personally I don't believe there are that many that could be missed. Most people allow automatic updates or eventually accept an update and it has been years since DISH sent the "non-infringing" software. While no one can guarantee 100% compliance I can't seen less than 99% compliance. Not updating the software is more of a problem than just letting it happen.

Obviously TiVo wants 100% compliance ... they wouldn't mind 200% compliance.  But they will have to accept what the court orders - and based on other recalls I would expect a "best effort" threshold more than 100%.


----------



## James Long (Apr 17, 2003)

nobody99 said:


> I'm sure you'll be pleased to hear that Tony Wible has increased his odds of TiVo winning back to 75%.


Wible wobbles!


----------



## Tom Robertson (Nov 15, 2005)

James Long said:


> Wible wobbles!


But does he fall over? 

And in my other post, I did say "might be required."


----------



## James Long (Apr 17, 2003)

Tom Robertson said:


> My intent was DISH would have to turn off only those individual receivers that haven't called home with "I'm updated."
> 
> And who knows how many there are?


While a phone line connection is "required" (as much as DirecTV requires it) DISH would be disconnecting a lot more valid upgraded receivers than non-upgraded receivers if they turned off ALL that had not called in.

The trick is to have code in the software BEFORE a customer allegedly prevented future software upgrades that would cause the software not to function after a certain date or unless an auth code was active on the satellite. I doubt DISH built such a kill switch into the eight named DVRs (although I believe they do have that functionality on the ViPs).

Killing all non connected DVRs of the eight models would be using a bazooka instead of a b b gun.


----------



## nobody99 (May 20, 2008)

James Long said:


> Killing all non connected DVRs of the eight models would be using a bazooka instead of a b b gun.


Let's not forget that way back at the original trial, DISH assured the judge that they could disable the DVR functions remotely. As a result, there was not a physical recall.

Try to keep it in perspective. A bazooka's not so bad when the alternative is a nuclear bomb.


----------



## 20TIL6 (Sep 3, 2008)

jacmyoung said:


> I feel bad for those continue to be sucked into investing in TiVo because those analysts have no idea how the patent law works


I could feel worse for certain other investors.

I can't post the URL because I have posted here less than 5 times, but you can check for yourself. TiVo is down 20% over the past year. DISH and SATS are both down 60% over the same period of time. I guess misunderstood patent law wins.


----------



## JyroBip (May 28, 2008)

The Aha! or Uh Oh! Moment:

…Long time lurker just now jumping into the discussion fray.

One would think that when DISH/Ergen decided to have his software engineers design a “workaround” to avoid infringement, the engineers would have been given whatever funds and resources required. Even if it meant it would cost millions of dollars in man hours to do so.

$750,000 dollars into DISH’s “herculean” effort something happened:

One of these scenarios took place:

1: DISH determined that the goal had been reached – the “Aha!” moment. The engineers had come up with new code that did not use any of Tivo’s patented processes and they could now reload all of the DISH DVRs with this new code. No need to spend any more money on software engineering.

2: DISH's engineers determined that reaching the goal of avoiding infringement would not be possible. They would not be not be able to write new code for their existing DVRs without using any of Tivo’s patented processes – the “Uh oh” moment. Thus they tweaked a few things, reloaded the tweaked software, and proclaimed that the tweaked software no longer infringed. No need to spend any more money on software engineering.



Thus:

Under Scenario 1 – the “Aha!” moment:

Have DISH's software engineers brought in as DISH witnesses to testify how they had arrived at the $750,000 AHA moment. They could explain the new Code and show how it worked to avoid infringement. Ergan must have been given a similar presentation by his Herculan team and he was convinced that the software no longer infringed. Judge Folsom would likely be convinced by the same presentation.


Under Scenario 2 – the “Uh Oh” moment:

Hire an “expert” attorney and give him a report from the software engineers describing how by tweaking the software, it was now different software. Don’t show the "expert" the software Code and do not let him know about the Uh Oh moment. Instead, explain in the report that because tweaked software is different than untweaked software it is therefore “colorably different”. Have the expert attorney testify that he has read the report and agrees with it.

My guess is that Judge Folsom and others were expecting Dish to present the Aha! moment.

Instead I think it is a big Uh Oh! for DISH.


----------



## jacmyoung (Sep 9, 2006)

20TIL6 said:


> I could feel worse for certain other investors.
> 
> I can't post the URL because I have posted here less than 5 times, but you can check for yourself. TiVo is down 20% over the past year. DISH and SATS are both down 60% over the same period of time. I guess misunderstood patent law wins.


There is a big difference, DISH's stocks had to do with DISH's own lack of performance in the DBS service itself, and TiVo's stocks are in large part based on the speculation from this lawsuit.

The outcome of this lawsuit will have a major impact on TiVo's stocks but not so much on the DISH stocks.


----------



## jacmyoung (Sep 9, 2006)

nobody99 said:


> ...Try to keep it in perspective. A bazooka's not so bad when the alternative is a nuclear bomb.


While many had been expecting a nuclear holocaust, may I suggest we also not rule out the possibility that when we open the doors that day, it turns out to be blue sky, breadth of fresh air, birds chirping, kids playing and people waving at one another


----------



## Tom Robertson (Nov 15, 2005)

Welcome to the discussion JyroBip! :welcome_s (Normally I would welcome you to the fourms, but you've been here longer than I would give that welcome.) 

Nice way to describe the situation. I like it. 

There might be an ancillary Uh Oh... "Our experts weren't as expert as we thought they were..." either with the engineering Aha or Uh oh.


----------



## jacmyoung (Sep 9, 2006)

JyroBip said:


> ...No need to spend any more money on software engineering...


Did you notice DISH was the only company that showcased a new HD DVR called the 922 at the CES last month, and got the best of the show award?

Did you find TiVo's booth that day? If you managed to find it that day, did you hear any noise coming out of there?

As far as all the other things, again please go back to revisit how TiVo did in that jury trial, TiVo's lawyers never read the software code, TiVo relied on their "expert attorney testifying" too, this is how lawsuits work, the lawyers do the talking.


----------



## Tom Robertson (Nov 15, 2005)

jacmyoung said:


> Did you notice DISH was the only company that showcased a new HD DVR called the 922 at the CES last month, and got the best of the show award?
> 
> Did you find TiVo's booth that day? If you managed to find it that day, did you hear any noise coming out of there?


I might mention that CES had many very notable no shows this year, given the economy but then I'd be taking this OT point further OT.

So I'll issue to myself a :backtotop


----------



## 20TIL6 (Sep 3, 2008)

jacmyoung said:


> There is a big difference, DISH's stocks had to do with DISH's own lack of performance in the DBS service itself, and TiVo's stocks are in large part based on the speculation from this lawsuit.
> 
> The outcome of this lawsuit will have a major impact on TiVo's stocks but not so much on the DISH stocks.


Right. So again, who are you feeling bad for?

Investment in DISH: Lack of execution and performance on an otherwise proven business plan. (DirecTV operates on a similar business plan) Experienced a 60% loss of value over the past year, and I'm not seeing any positive catalysts for them. They lose to TiVo, no big deal. But equally, they prevail against TiVo, no big deal.

Investment in TiVo: A weak business plan compared to competitors with clear distribution advantages and with execution that is providing break even at best, and losses for the most part. A 20% loss of value over the past year. One pivotal event that could drastically change both their financials and overall business plan. In other words, a make or break for them.

DISH has no catalyst. TiVo quite possibly does. I don't feel bad at all for those that speculate and assess the risk.


----------



## Tom Robertson (Nov 15, 2005)

While wider ranging discussion is ok, DBStalk does not get into stock discussions, we just aren't that kind of site.

So I'm going to ask you to leave the stock analysis alone.

Thanks for understanding,
Tom


----------



## JyroBip (May 28, 2008)

The quote is referring to the software redesign for the existing DVR's already in the field.
The ones listed in the injunction.


----------



## 20TIL6 (Sep 3, 2008)

Tom Robertson said:


> While wider ranging discussion is ok, DBStalk does not get into stock discussions, we just aren't that kind of site.
> 
> So I'm going to ask you to leave the stock analysis alone.
> 
> ...


Understood. I'm done.


----------



## Greg Bimson (May 5, 2003)

jacmyoung said:


> Did you notice DISH was the only company that showcased a new HD DVR called the 922 at the CES last month, and got the best of the show award?


Bringing this back on topic...

What if the 922 has the same base software as the 625 and 622/722? After all, that is what this contempt issue is becoming: how many DVR's are still using TiVo's patented technology?


----------



## Tom Robertson (Nov 15, 2005)

My bad, I meant to unstick this thread after you guys started posting... well I didn't mean to wait this long. 

Keep up the great work, thank you for your insights, thoughts, and help.

Tom


----------



## CuriousMark (May 21, 2008)

Tom Robertson said:


> There might be an ancillary Uh Oh... "Our experts weren't as expert as we thought they were..." either with the engineering Aha or Uh oh.


In which case they might prefer to tell the boss what he wants to hear, rather than what would get them fired.


----------



## HobbyTalk (Jul 14, 2007)

What I find most interesting is that there has been no news on the hearing.


----------



## James Long (Apr 17, 2003)

Opinion Omitted in quotes -


20TIL6 said:


> DISH: Experienced a 60% loss of value over the past year,


Compared to DirecTV and the market in general? 2008 was a pretty nasty year for many companies. Thanks for not trying to tie all of DISH's losses to the TiVo litigation (as some do).



> TiVo: A 20% loss of value over the past year.


Without the infusion of cash when DISH finally exhausted all appeals on the initial trial? That cash came at a really good time. Had DISH paid TiVo in 2007 2008 would have really been in the toilet. 

A lot of loss in value comes from building up value in the first place. I agree that TiVo has a lot more to win and lose here than DISH ... although not having the SD DVR would put DISH in a cash crunch physically replacing all of them with ViP receivers.

(No one expects DISH not to have ANY DVR service - right?)


----------



## jacmyoung (Sep 9, 2006)

Tom Robertson said:


> I might mention that CES had many very notable no shows this year, given the economy but then I'd be taking this OT point further OT.
> 
> So I'll issue to myself a :backtotop


It was a response to the notion that DISH just has no interest in any new software engineering and innovation and TiVo was the tech mover.

I pointed out the opposite.


----------



## James Long (Apr 17, 2003)

HobbyTalk said:


> What I find most interesting is that there has been no news on the hearing.


True. I have not linked articles that were less informed than we already are. It seems that only Bloomberg cared to cover the story this time. The other stories found could have been written back in October when the hearing was announced. "It continues ..."


----------



## jacmyoung (Sep 9, 2006)

HobbyTalk said:


> What I find most interesting is that there has been no news on the hearing.


The news so far as I read those reports is, the judge will not decide on the infringement any time soon, and may even ask for another hearing on this issue when it comes to that time.

And he said nothing about the colorable difference issue, at least not from the reports. That is the most interesting part.

Here is my take on this, again it is only my speculation and not try to force it on anyone.

I have no doubt in my mind that to find a contempt, infringement must first be found, this is the law.

Therefore when the judge said he was not so eager to find whether an infringement or not any time soon, he is also saying he did not see a clear violation/contempt. Otherwise logic tells me he would have at least tried to address the infringement issue sooner, because once it is decided there is only colorable difference, the Federal Circuit also says the next step is to determine whether there is indeed an infringement, and if so rule a contempt, no need to wait.


----------



## Ken_F (Jan 13, 2003)

HobbyTalk said:


> What I find most interesting is that there has been no news on the hearing.


There is second-hand "news" from the hearing. The problem is that the "news" is mostly limited to stock sites. This information may or may not be accurate, and even if it is accurate, it may be filtered to suit the agenda of the poster. The information may be represented with the goal of improving or depressing the value of a particular stock.

If you want to read a few, mostly second-hand reports, here are a few threads:

http://www.investorvillage.com/mbthread.asp?mb=3928&tid=6700851&showall=1
http://www.investorvillage.com/mbthread.asp?mb=3928&tid=6705366&showall=1
http://www.investorvillage.com/mbthread.asp?mb=3928&tid=6706754&showall=1
http://www.investorvillage.com/mbthread.asp?mb=3928&tid=6707690&showall=1
http://www.investorvillage.com/mbthread.asp?mb=3928&tid=6708857&showall=1
http://www.investorvillage.com/mbthread.asp?mb=3928&tid=6710540&showall=1

You do have a few people saying basically same thing, but on these stock sites, you can never be certain whether these are different sources, or whether there is one source posting under different names.

_Moderators: Feel free to delete the above links if the above disclaimer is insufficient._


----------



## HDRoberts (Dec 11, 2007)

Ken_F said:


> This information may or may not be accurate, and even if it is accurate, it may be filtered to suit the agenda of the poster. The information may be represented with the goal of improving or depressing the value of a particular stock.


You can say that again. When the poster uses "we" you know he is biased. Dude has a major man-crush on Tivo's lawyer.


----------



## Herdfan (Mar 18, 2006)

CuriousMark said:


> I think the moment a settlement becomes the least cost option, Dish would consider sitting down at the negotiating table.


Well, over $104M in and as CE stated, millions more per month at risk, the least cost option of settling was passed about 3 years ago.:eek2:


----------



## CuriousMark (May 21, 2008)

HDRoberts said:


> You can say that again. When the poster uses "we" you know he is biased. Dude has a major man-crush on Tivo's lawyer.


A Dish biased person who was there could also post so we have something to compare with. If not, then we will have to live with what we get and not insult someone willing to share their thoughts, even if biased.


----------



## jacmyoung (Sep 9, 2006)

Herdfan said:


> ...and as CE stated, millions more per month at risk, ...


That was just Charlie crying victim, he is good at this. He does not care about his pride, only to win, and people who do not take too much pride in themselves tend to get what they want more often than not


----------



## CuriousMark (May 21, 2008)

Herdfan said:


> Well, over $104M in and as CE stated, millions more per month at risk, the least cost option of settling was passed about 3 years ago.:eek2:


I can't argue with you there. TiVo and Dish could have been a great partnership. Maybe they can get past this and work together in the future.


----------



## jacmyoung (Sep 9, 2006)

CuriousMark said:


> I can't argue with you there. TiVo and Dish could have been a great partnership. Maybe they can get past this and work together in the future.


Seeing that E* has its own 922 soon and Sling, while D* has its own ReplayTV and MRV soon, I think the benefit of working with TiVo is no longer as appealing as before, which means there are less reasons to settle and work together.


----------



## Curtis52 (Oct 14, 2003)

From Tony Wible's article on the hearing:


> • Judge Folsom Reacts - Late in the day, the Honorable Judge Folsom stopped DISH's expert testimony and commented that DISH's expert had seemingly reversed his positioning on parsing from the previous trial testimony.


----------



## James Long (Apr 17, 2003)

[906] Sealed Patent Document - Offer of Proof Regarding Expert Testimony and Evidence Regarding the Effect of TiVo's New Applications of Claims 31 and 61 on the Validity of United States Patent No. 6,233,389. (Attachments: # (1) Exhibit A, # (2) Exhibit B, # (3) Exhibit C, # (4) Exhibit D PART 1, # (5) Exhibit D PART 2, # (6) Exhibit D PART 3, # (7) Exhibit E, # (8) Exhibit F, # (9) Exhibit G, # (10) Exhibit H PART 1, # (11) Exhibit H PART 2, # (12) Exhibit I)

[907] Minute Entry for proceedings held before Judge David Folsom: Motion Hearing held on 2/17/2009 re [832] MOTION FOR ECHOSTAR TO BE HELD IN CONTEMPT FOR VIOLATION OF THIS COURT'S PERMANENT INJUNCTION filed by TIVO Inc. (Court Reporter Libby Crawford.)

[908] Witness List - Motion Hrg Witness List. (mrm, )

906 is sealed ... other two documents attached!


----------



## James Long (Apr 17, 2003)

James Long said:


> [907] Minute Entry for proceedings held before Judge David Folsom: Motion Hearing held on 2/17/2009 re [832] MOTION FOR ECHOSTAR TO BE HELD IN CONTEMPT FOR VIOLATION OF THIS COURT'S PERMANENT INJUNCTION filed by TIVO Inc. (Court Reporter Libby Crawford.)


Now I've posted it, I'll have to read it. 
Cookie crumbs ... but official cookie crumbs.


----------



## Tom Robertson (Nov 15, 2005)

Thanks again, James!


----------



## Herdfan (Mar 18, 2006)

jacmyoung said:


> I think the benefit of working with TiVo is no longer as appealing as before, which means there are less reasons to settle and work together.


They don't have to "work" together, a nice check every month would suffice.


----------



## CuriousMark (May 21, 2008)

jacmyoung said:


> Seeing that E* has its own 922 soon and Sling, while D* has its own ReplayTV and MRV soon, I think the benefit of working with TiVo is no longer as appealing as before, which means there are less reasons to settle and work together.


TiVo has other IP that Dish would probably not want to "re-invent". I see that as being more appealing now, not less. But then your earlier posts about CES showed you are unaware of any of that. You could catch up by checking out the podcasts, just download them to your DVR using the remote.


----------



## jacmyoung (Sep 9, 2006)

CuriousMark said:


> TiVo has other IP that Dish would probably not want to "re-invent". I see that as being more appealing now, not less. But then your earlier posts about CES showed you are unaware of any of that. You could catch up by checking out the podcasts, just download them to your DVR using the remote.


I don't see the other IPs of any real interest for E*, D* did not seem to care either.

The only motivation for both of them and other cable companies is this lawsuit and its outcome.

I have said in the past I would like to see them cross-license, but now I think the likelihood of such is less.


----------



## Tom Robertson (Nov 15, 2005)

jacmyoung said:


> I don't see the other IPs of any real interest for E*, D* did not seem to care either.
> 
> The only motivation for both of them and other cable companies is this lawsuit and its outcome.
> 
> I have said in the past I would like to see them cross-license, but now I think the likelihood of such is less.


Wait!!!! 

DIRECTV most certainly has seen the potential for TiVo IP. They negotiated for that IP, paid for that IP, and have contracted for a whole new unit based entirely on TiVo IP (ok modified to DIRECTV infrastructure.) 

There have been several posts (by DBStalk members) interested in the Swivel Search technology for instance.

Cheers,
Tom


----------



## jacmyoung (Sep 9, 2006)

Curtis52 said:


> From Tony Wible's article on the hearing:


And for a very good reason.

During the last trial, E* was betting on the "parse" as the only thing to get them out of trouble, and said "parse" was the only thing that mattered and they did not parse.

But E* was wrong, "parse" was not the only thing in the patent claims, rather only one of the many limitations. And to uphold the verdict, the appeals court had to make sure all the other limitations, along with the parse, were met.

Now both parties are reversing, E* is saying parse alone is not enough, TiVo is saying but you said parse was enough back then. Except back then the court did not view parse as the only limitation, even though E* said it was.


----------



## jacmyoung (Sep 9, 2006)

Tom Robertson said:


> Wait!!!!
> 
> DIRECTV most certainly has seen the potential for TiVo IP. They negotiated for that IP, paid for that IP, and have contracted for a whole new unit based entirely on TiVo IP (ok modified to DIRECTV infrastructure.)
> 
> ...


But D* has been dropping DirecTiVo's like flies and replacing them with their own DVRs, and has yet mentioned one word of the new TiVo DVR since the initial press release.

Why I said it used to be that there was some interest, but now much less.


----------



## Tom Robertson (Nov 15, 2005)

jacmyoung said:


> But D* has been dropping DirecTiVo's like flies and replacing them with their own DVRs, and has yet mentioned one word of the new TiVo DVR since the initial press release.
> 
> Why I said it used to be that there was some interest, but now much less.


They still spent a lot of money for the IP. It seems way too premature to dismiss that so blithely.

It will take time to integrate the IP into the DIRECTV HR2x models and for TiVo and DIRECTV to mutally arrange the infrastructure changes to support the TiVo units.

Cheers,
Tom


----------



## nobody99 (May 20, 2008)

jacmyoung said:


> I don't see the other IPs of any real interest for E*, D* did not seem to care either.


Oh, what the heck, I'll play along (redacted).

I google searched "TiVo patent portfolio" and one of the search results that came up was TiVo's purchase of five patents held by IBM.



> The Alviso, Calif.-based company on Tuesday filed a report with the Securities and Exchange Commission disclosing its purchase of six U.S. patents from IBM on March 31. The patents relate to audience research and measurement, integration of television signals with Internet access, automatic rescheduling of recordings, content screening, enhanced program information search and electronic program guide interface enhancements. Expiration dates for the patents range from December 2015 to February 2020.


Off the top of my head, I can tell you one area that Dish DESPERATELY needs help, and that's the "automatic rescheduling of recordings."

You've said in the past that the OTA DTV Pal Plus DVR that DISH is selling without recurring fees would bury TiVo. I told you I would buy one, and I did a few months ago. It's a pretty servicable, decent VCR. But its scheduling is an absolute joke, and it makes it all but unusable and certainly unreliable.

Tell me, since you say "I don't see the other IPs of any real interest for E*" can you name for me the hundred or so patents that TiVo has, and the several hundred more pending?

(redacted)


----------



## jacmyoung (Sep 9, 2006)

Tom Robertson said:


> They still spent a lot of money for the IP. It seems way too premature to dismiss that so blithely.
> 
> It will take time to integrate the IP into the DIRECTV HR2x models and for TiVo and DIRECTV to mutally arrange the infrastructure changes to support the TiVo units.
> 
> ...


I don't think I tried to dismiss, rather said "less interest" in that direction.


----------



## jacmyoung (Sep 9, 2006)

nobody99 said:


> Oh, what the heck, I'll play along with this silly little game.
> 
> I google searched "TiVo patent portfolio" and one of the search results that came up was TiVo's purchase of five patents held by IBM.
> 
> ...


There is a good reason why your unit does a poor job of scheduling, because you are not paying a monthly fee.

Have you used the 612s and 722s? Have you seen how the 922 will do its scheduling?


----------



## Tom Robertson (Nov 15, 2005)

nobody99 said:


> ...
> Off the top of my head, I can tell you one area that Dish DESPERATELY needs help, and that's the "automatic rescheduling of recordings."
> 
> You've said in the past that the OTA DTV Pal Plus DVR that DISH is selling without recurring fees would bury TiVo. I told you I would buy one, and I did a few months ago. It's a pretty servicable, decent VCR. But its scheduling is an absolute joke, and it makes it all but unusable and certainly unreliable.
> ...


Yeah, I can see how scheduling, especially automatic rescheduling might be important in a DVR. 

Thanks for the find,
Tom


----------



## nobody99 (May 20, 2008)

jacmyoung said:


> There is a good reason why your unit does a poor job of scheduling, because you are not paying a monthly fee.
> 
> Have you used the 612s and 722s? Have you seen how the 922 will do its scheduling?


Classic case of the bait-and-switch. When you lose an argument, change the subject :lol:

No, I haven't used a 612 or 722 because I don't have DISH. I am curious to compare...and I honestly don't know, can you schedule those from a web browser like TiVo (m.tivo.com) or transfer between multiple DVRs in your house? Can you have it record first-run only shows? Are you familiar with Auto-recording wishlists?

I am quite confident that TiVo is better and more reliable at recording the things you ask it to record (and has more convenient options to request those recordings). It's good to hear that the 612 or 722 are not in the stone age like the DTV Pal Plus. And honestly, it's laughable if you thought this was any threat to TiVo it all. In fact, it might sell more TiVos because people would get a taste of DVRs and need to have one that actually worked


----------



## Ron Barry (Dec 10, 2002)

Ok guys... wondering off topic... Lets not turn this into a what DVR is better. That is definitely another thread.


----------



## CuriousMark (May 21, 2008)

jacmyoung said:


> I don't think I tried to dismiss, rather said "less interest" in that direction.


It read as dismissive to me. It is good to see you starting to backpedal though. yes, TiVo has a LOT to offer, many people miss that though, focusing solely on this litigation. Tom Rogers has turned this little company on a dime and it is nimbly moving in directions that cannot be ignored.


----------



## Tom Robertson (Nov 15, 2005)

CuriousMark,

It sure seems to this distant observer that both companies "likely" could do better together than apart.

That said, I do understand that "things happen" that can ruin what appears to be a good mutual relationship. (That is not meant as a pointed remark to any company or person; just things happen.) 

Cheers,
Tom


----------



## CuriousMark (May 21, 2008)

Tom Robertson said:


> That said, I do understand that "things happen" that can ruin what appears to be a good mutual relationship. (That is not meant as a pointed remark to any company or person; just things happen.)


Yes, and this lawsuit is definitely one hell of a big thing. It was rumored that a thing like that drove Sirius into the hands of Malone rather as opposed to dealing with Echostar. So I can imagine that similar kinds of things could keep a deal off the table. But that isn't the same as dismissing one side or the other as worthless.

Good discussion.


----------



## Steve (Aug 22, 2006)

CuriousMark said:


> It read as dismissive to me. It is good to see you starting to backpedal though. yes, TiVo has a LOT to offer, many people miss that though, focusing solely on this litigation. Tom Rogers has turned this little company on a dime and it is nimbly moving in directions that cannot be ignored.


I believe that DVR's are now a commodity and that the perceived value of the TiVo brand no longer holds enough consumer cachet to give TiVo any sort of a sustainable hardware/monthly subscriber fee business model. I think the final nail in that coffin was the loss of the DirecTV subscriber base.

Their only asset is their IP, and they don't need to sell hardware or monthly subscriptions to monetize that. I suspect Mr. Rogers' final accomplishment will be to convince a company like Comcast or DirecTV that acquiring TiVo and its patents would be a profitable move. Just my .02. /steve


----------



## jacmyoung (Sep 9, 2006)

To nobody99, the simple answer is yes, the 612 and 722 combined with the SlingGuide can do pretty much the same kind of DVR scheduling and more, and the 922 much more.

So it is definitely not a bait and switch, simple economics, what you pay (or don't pay) is what you get (or don't get).



CuriousMark said:


> Yes, and this lawsuit is definitely one hell of a big thing. It was rumored that a thing like that drove Sirius into the hands of Malone rather as opposed to dealing with Echostar. So I can imagine that similar kinds of things could keep a deal off the table. But that isn't the same as dismissing one side or the other as worthless.
> 
> Good discussion.


I was one of the few persons in the past always said despite my belief that E* would prevail, E* and TiVo were in fact the two most like-minded companies and working together would benefit both of them and I would like to see that happen if possible. And I was saying that while everyone else was all consumed by the war going on. So there was no backpedaling from me at all.

But facts are facts, E* had acquired Sling, D* had acquired ReplayTV. There is less interest in that direction and it shows and it does not even have to do with this lawsuit.

The lawsuit however cuts both ways, it also means other companies are more weary of TiVo and will go out of ways to try to protect themselves, for example D* buying ReplayTV and such, and the end results might not work in TiVo's interest.


----------



## jacmyoung (Sep 9, 2006)

Steve said:


> I believe that DVR's are now a commodity and that the perceived value of the TiVo brand no longer holds enough consumer cachet to give TiVo any sort of a sustainable hardware/monthly subscriber fee business model. I think the final nail in that coffin was the loss of the DirecTV subscriber base.
> 
> Their only asset is their IP, and they don't need to sell hardware or monthly subscriptions to monetize that. I suspect Mr. Rogers' final accomplishment will be to convince a company like Comcast or DirecTV that acquiring TiVo and its patents would be a profitable move. Just my .02. /steve


Now that is an assessment I can almost totally agree with, but with only one observation, why would D* acquire TiVo after they just spent a good amount of money acquiring ReplayTV?


----------



## Greg Bimson (May 5, 2003)

Steve said:


> I believe that DVR's are now a commodity and that the perceived value of the TiVo brand no longer holds enough consumer cachet to give TiVo any sort of a sustainable hardware/monthly subscriber fee business model.


If DVR's are a commodity, then why is it so important for DISH/SATS to be "Better Than TiVo"? Not that I disagree there is an attempt to commoditize the DVR market, but if the underlying technology is patented, think Blu-Ray. That HD disc format was is now the standard with everyone making and selling them, but Sony holds the patents and is making a killing.


Steve said:


> I think the final nail in that coffin was the loss of the DirecTV subscriber base.


I can only disagree with this completely.

TiVo's original business plan was to receive $12 a month from customers in recurring fees on subscriptions to DVR's they sold. TiVo was never receiving that kind of money from DirecTV. TiVo does not receive that kind of money from Comcast.

Those are the licensing deals.

And this lawsuit is all about the TiVo "brand" and IP portfolio. TiVo is protecting their business from unscrupulous manufacturers that blatantly rip-off their techology, and is hoping to strike some deals along the way to license their technology to other vendors.


----------



## Herdfan (Mar 18, 2006)

jacmyoung said:


> why would D* acquire TiVo after they just spent a good amount of money acquiring ReplayTV?


Because then Charlie would have to pay DirecTV royalties. :lol:


----------



## Greg Bimson (May 5, 2003)

jacmyoung said:


> why would D* acquire TiVo after they just spent a good amount of money acquiring ReplayTV?





Herdfan said:


> Because then Charlie would have to pay DirecTV royalties. :lol:


Well...

TiVo and ReplayTV probably held most of the patents relating to DVR techology over the past dozen years. DirecTV picked up the ReplayTV patents for about a third of what DISH/SATS has had to fork over to TiVo. Liberty Media CEO Malone at one time had a sizable investment in TiVo.

Years back, TiVo and ReplayTV sued and countersued each other, but simply dismissed their suits. It was basically a fight to determine "the standard".

If one company owned both IP portfolios, it would be like walking into a knife fight with a 357 loaded with hollow-points.


----------



## jacmyoung (Sep 9, 2006)

Greg Bimson said:


> ... think Blu-Ray. That HD disc format was is now the standard with everyone making and selling them, but Sony holds the patents and is making a killing.


Did you read the latest news that DVD sales are tanking and Bluray is going down with them?



> And this lawsuit is all about the TiVo "brand" and IP portfolio. TiVo is protecting their business from unscrupulous manufacturers that blatantly rip-off their techology, and is hoping to strike some deals along the way to license their technology to other vendors.


And it cuts both ways, too aggressive it can backfire, especially if you are unlucky and run into someone like Charlie


----------



## Steve (Aug 22, 2006)

Greg Bimson said:


> TiVo's original business plan was to receive $12 a month from customers in recurring fees on subscriptions to DVR's they sold. TiVo was never receiving that kind of money from DirecTV. TiVo does not receive that kind of money from Comcast.


In the first quarter of '07, TiVo's subscriber revenues were at an all-time high of $18 million/month. In their latest reported quarter, Q3 '08, their revenues were less than $16 million/month. If that loss is not directly attributable to DirecTV, then it shows that customers are less willing to pay for TiVo's unique monthly subscriber model, above and beyone what they're paying their programming providers. I suspect it's a combination of the two, with DirecTV accounting for more than half. /steve


----------



## jacmyoung (Sep 9, 2006)

Greg Bimson said:


> ... DirecTV picked up the ReplayTV patents for about a third of what DISH/SATS has had to fork over to TiVo. ...


Did D* pay only $24M to acquire ReplayTV? If so I agree it was heck of a deal.


----------



## Greg Bimson (May 5, 2003)

DISH/SATS paid TiVo $104 million. DirecTV acquired the ReplayTV patents from K&M for $36 million.


Steve said:


> In the first quarter of '07, TiVo's subscriber revenues were at an all-time high of $18 million/month. In their latest reported quarter, Q3 '08, their revenues were less than $16 million/month.


But that is the point. All those former royalty payments from DirecTV for those hundreds of thousands of subscribers with DirecTV TiVo-based DVR's had accounted for maybe 15 percent of the revenue to the company.

I've said it before, TiVo should have become a cable STB manufacturer. However, cablers like to own the entire experince, which is the reason why both DISH/SATS and DirecTV moved DVR manufacturing in house. Companies like a TiVo would be hard-pressed to even crack that market. Yet TiVo is still earning revenues and is holding in a practical break-even state. It was good that TiVo recognized five years ago that other manufacturers were using their technology, because the suit still isn't over, and it has caused TiVo to refocus efforts to find other new technology to differentiate their offering. And if TiVo can still end up with a fortune by beating the crap out of a business behemoth in court, so be it.


----------



## Ron Barry (Dec 10, 2002)

Greg Bimson said:


> And this lawsuit is all about the TiVo "brand" and IP portfolio. TiVo is protecting their business from unscrupulous manufacturers that blatantly rip-off their techology, and is hoping to strike some deals along the way to license their technology to other vendors.


Sorry but I have to disagree with this. What is becoming very coming in today's business climate.

1) Create a product. 
2) Build a Patent portfolio.
3) If your product can't survive in the marketplace, use your portfolio to try and build a revenue model out of it. Either by selling it or finding way to sue companies.

I believe Tivo is on Step 3... Dish is but the first stop and if Tivo are successful the next stop will be other companies. The whole software Patent industry is totally screwed up. Companies are paying Engineering big bonuses to create as many Patents as possible. Patents are being created as generally as possible to try and cover as much area as possible. Companies are building huge rediculous protfolis for both offensive and defensive purposes. Software companies are patenting things that have prior art and the Patent office is ill equipt to deal with the load and they don't have a strong enough understanding of the technology to make that call.

Don't get me wrong.. From what I know about Tivo they have a well thought out product but In my opinion Tivo is not protecting their IP, In my opinion since they are loosing in the marketplace they have switched to the Patent revenue model that other companies also have done. The one that quickly comes to mind is the company that bought a Patient that was around the JPEG technology then went after large companies that had JPEG technology in them.

Ofcourse I could be wrong on this and i am sure some will say I am. But given what I have scanned here and having a very highlevel understanding of the patent it is my opinion.


----------



## Steve (Aug 22, 2006)

Greg Bimson said:


> I've said it before, TiVo should have become a cable STB manufacturer.


No. IMHO, TiVo should have left the h/w alone, a la Microsoft, and licensed their OS to cableco's and satco's for 50¢/month per subscriber household.

What SAT/CABLECO wouldn't pay that? Or think it worth developing or licensing someone else's OS at those prices? And then TiVo could have been receiving $75-$100 million/month revenues, instead of $16 million.

It was a glorious missed opportunity, because it's not like the Microsoft model wasn't out there to copy. /steve


----------



## HobbyTalk (Jul 14, 2007)

Greg Bimson said:


> That HD disc format was is now the standard with everyone making and selling them, but Sony holds the patents and is making a killing.


17 different companies hold patents on essential Blu-ray disc processes. The top four intellectual property holders are Sony, Panasonic, Pioneer, and Warner. It is jointly controlled by the Blu-ray consortium.


----------



## HobbyTalk (Jul 14, 2007)

Steve said:


> No. IMHO, TiVo should have left the h/w alone, a la Microsoft, and licensed their OS to cableco's and satco's for 50¢/month per subscriber household.


I think you hit it on the head. In the early years they could have close to give it away to make these system the "standard". Then no matter what happens in the following years your standard would be what what everyone wanted and would be forced to pay your price. With TiVo now wanting over $2 per box (from what I have read they got from D*) companies are looking for any way not to pay it. TiVo's patents will expire in not that many years, where will they be then?


----------



## Ken_F (Jan 13, 2003)

HobbyTalk said:


> I think you hit it on the head. In the early years they could have close to give it away to make these system the "standard". Then no matter what happens in the following years your standard would be what what everyone wanted and would be forced to pay your price. With TiVo now wanting over $2 per box (from what I have read they got from D*) companies are looking for any way not to pay it. TiVo's patents will expire in not that many years, where will they be then?


TiVo received ~$0.90 to ~$1.10/mo per DirecTivo subscriber. The price varied depending on the number of DirecTiVos in use.

From what I recall, Comcast is paying 40-60 cents per customer that use the TiVo software on their Motorola DVRs. The Motorola DVRs do not use the same software as the standalone Series3 / TivoHD boxes; they use a Java version of the TiVo software that runs on top of the TV Navigator middleware, a precursor to OCAP. TiVo has blamed this middleware for many of the problems they've had in producing a reliable, responsive version of their software for Motorola boxes.


----------



## Curtis52 (Oct 14, 2003)

TiVo 9-08 SEC filing:


> The fees paid by DIRECTV are subject to monthly minimum payments that escalate during the term of the agreement starting in 2010 and those minimum payments are *substantially higher* than in the prior agreement.


----------



## HobbyTalk (Jul 14, 2007)

Yeah, not sure where I read but I thought it was something like $2.10 per box on the new D* agreement.


----------



## dgordo (Aug 29, 2004)

> TiVo, EchoStar lawsuit goes to judge for ruling after testimony
> By: Lynn LaRowe - Texarkana Gazette - Published: 02/20/2009
> 
> Testimony ended Thursday morning in a bench trial concerning TiVo and EchoStar's enduring dispute over digital video recorder software rights.
> ...


more here:
http://www.texarkanagazette.com/new...ivo-echostar-lawsuit-goes-to-judge-for--2.php


----------



## Greg Bimson (May 5, 2003)

Greg Bimson said:


> And this lawsuit is all about the TiVo "brand" and IP portfolio. TiVo is protecting their business from unscrupulous manufacturers that blatantly rip-off their techology, and is hoping to strike some deals along the way to license their technology to other vendors.





Ron Barry said:


> Sorry but I have to disagree with this. What is becoming very coming in today's business climate.
> 
> 1) Create a product.
> 2) Build a Patent portfolio.
> 3) If your product can't survive in the marketplace, use your portfolio to try and build a revenue model out of it. Either by selling it or finding way to sue companies.


Wait a minute.

TiVo built this thing they patented called a "Media Switch". Dish Network went into talks with TiVo about building a DVR for the Dish Network platform, even receiving a prototype version of the TiVo. Dish Network finally told TiVo there was not going to be a partnership or agreement, and within a year Dish Network manufactured DVR's which contained "this thing [TiVo] patented called a 'Media Switch'".

So, the reality of today's business climate is:

1) Go into talks about a partnership to provide services.
2) Dump the idea of going into a partnership.
3) Use the patented technology provided by another party to further business gains.
4) Get sued and lose the lawsuit regarding patent infringement.

Meanwhile, from the hearing, ignore the order to disable DVR's by claiming new, non-infringing technology, yet not hold one piece of proof that any DVR's actually run this non-infringing technology. All of this based upon an opinion from outside counsel to review the patent claims to find a way to design-around the patent, and when the design-around is developed and implemented, not have outside counsel evaluate the design-around. And of course, have your expert witness contradict himself by taking a position on "parsing" counter to what he argued just over two and a half-years earlier.

Makes perfect sense to me.


----------



## nobody99 (May 20, 2008)

Ron Barry said:


> Sorry but I have to disagree with this. What is becoming very coming in today's business climate.
> 
> 1) Create a product.
> 2) Build a Patent portfolio.
> ...


Ron, I can certainly understand that you are pulling for DISH and are probably pissed at TiVo because you are part of a community of users of theirs. But the facts are simple: Dish stole TiVo's technology, lost a court case, lost an appeal, and were ordered to shut off the very things that they stole - and they haven't done that.

Charlie Ergen is a thief. It's that simple. He has a long history of it (distants locals, for example).

I know, maybe TiVo should invent an Access Card that can automatically descramble DISH's signals and sell those.

Same thing.


----------



## Steve (Aug 22, 2006)

dgordo said:


> more here:
> http://www.texarkanagazette.com/new...ivo-echostar-lawsuit-goes-to-judge-for--2.php


It's $20 to subscribe to the web edition to read the rest of that article. /steve


----------



## Ron Barry (Dec 10, 2002)

nobody99 said:


> Ron, I can certainly understand that you are pulling for DISH and are probably pissed at TiVo because you are part of a community of users of theirs. But the facts are simple: Dish stole TiVo's technology, lost a court case, lost an appeal, and were ordered to shut off the very things that they stole - and they haven't done that.
> 
> Charlie Ergen is a thief. It's that simple. He has a long history of it (distants locals, for example).
> 
> ...


I would appreciated you not reading what I am pissed or not pissed about because actually I am not pissed at all. Just did not agree with Greg's breakdown. I also don't prescribe to the fact that just because a Jury finds guilty on a case as technical as this that it makes it so. (Sorry guys but I am not eating and breathing this case) . Of course it does in the eyes of the law at this point in time but personally I think the patient as a whole is in question due to prior art. I downloaded the Patient, read the abstract and boy sounds like all DVRs to me. I would be interested in any actually technical evidence ("Not Lawyer mombo jumbo, discussion of colorable difference, etc ") that actually shows the infringment. Does that exist in somewhat a digestable unbiased form? I know I might be back tracking a bit and personally I don't care about legal discussions. Guess at this point for me to make a determination by myself if Dish infringed I would have to see the technical evidence. Sorry given the technical nature of Software related patent laws I don't just accept a verdict on face value.

As for me being a Dish Subscriber.. Once again it has nothing to do with it.. I have no skin in the game. I am not a investor in Dish or Tivo. I am actually coming from this being a software developer that has worked with companies that have built up Patients for the purpose of protections from others and also have seen companies use Patients as an offensive business practice measure. It is in this experience I have seen the evils of Software development related patients can become. In my opinion Patients have gotten way out of hand and no longer are there to protect people's inventions but are often used for other purposes.

Sure Tivo can be doing this for the sole purpose of protecting their IP in their eyes and I would more willing to believe it if Tivo's business model had a strong future and their I have my doubts. So bottom line.. Someone have a link to the evidence of infringement that is not 2000+ plus pages of lawyer speak that the average person has zero choice of understanding.


----------



## Curtis0620 (Apr 22, 2002)

Ron Barry said:


> I would appreciated you not reading what I am pissed or not pissed about because actually I am not pissed at all. Just did not agree with Greg's breakdown. I also don't prescribe to the fact that just because a Jury finds guilty on a case as technical as this that it makes it so. (Sorry guys but I am not eating and breathing this case) . Of course it does in the eyes of the law at this point in time but personally I think the patient as a whole is in question due to prior art. *I downloaded the Patient, read the abstract and boy sounds like all DVRs to me.* I would be interested in any actually technical evidence ("Not Lawyer mombo jumbo, discussion of colorable difference, etc ") that actually shows the infringment. Does that exist in somewhat a digestable unbiased form? I know I might be back tracking a bit and personally I don't care about legal discussions. Guess at this point for me to make a determination by myself if Dish infringed I would have to see the technical evidence. Sorry given the technical nature of Software related patent laws I don't just accept a verdict on face value.
> 
> As for me being a Dish Subscriber.. Once again it has nothing to do with it.. I have no skin in the game. I am not a investor in Dish or Tivo. I am actually coming from this being a software developer that has worked with companies that have built up Patients for the purpose of protections from others and also have seen companies use Patients as an offensive business practice measure. It is in this experience I have seen the evils of Software development related patients can become. In my opinion Patients have gotten way out of hand and no longer are there to protect people's inventions but are often used for other purposes.
> 
> Sure Tivo can be doing this for the sole purpose of protecting their IP in their eyes and I would more willing to believe it if Tivo's business model had a strong future and their I have my doubts. So bottom line.. Someone have a link to the evidence of infringement that is not 2000+ plus pages of lawyer speak that the average person has zero choice of understanding.


So you agree that DISH is doomed.


----------



## Curtis52 (Oct 14, 2003)

Ron Barry said:


> I also don't prescribe to the fact that just because a Jury finds guilty on a case as technical as this that it makes it so. (Sorry guys but I am not eating and breathing this case) . Of course it does in the eyes of the law at this point in time but personally I think the patient as a whole is in question due to prior art.


The case is way past that point. The patent is valid. There has been a jury verdict. There have been appeals. That ship has sailed.


----------



## jacmyoung (Sep 9, 2006)

Curtis52 said:


> The case is way past that point. The patent is valid. There has been a jury verdict. There have been appeals. That ship has sailed.


The USPTO had just granted E*'s new request to reexamine the TiVo Claims 31 and 61 due to *substantial new evidence* of obviousness and prior art, and you said yourself the probability of invalidation in a reexamination is 59%.

Did you read the justification by the USPTO to grant the reexamination? Sounded just like what Ron said.


----------



## Greg Bimson (May 5, 2003)

Ron Barry said:


> I also don't prescribe to the fact that just because a Jury finds guilty on a case as technical as this that it makes it so.


Mr. Ergen, is that you? 

In all honesty, it takes a lot of nerve to complain about the problems with the patent system, while at the same time not worrying about the lack of ethics shown by the opposing party.


----------



## jacmyoung (Sep 9, 2006)

Greg Bimson said:


> DISH/SATS paid TiVo $104 million. DirecTV acquired the ReplayTV patents from K&M for $36 million...


Please Greg, the jury awarded TiVo $74M, years of interest added up to $104M finally paid at the end of last year

I thought the $36M was how much K&M paid for ReplayTV in a bankruptcy fire sale in 07, the D*'s deal in 08 was not disclosed.


----------



## jacmyoung (Sep 9, 2006)

Greg Bimson said:


> Mr. Ergen, is that you?
> 
> In all honesty, it takes a lot of nerve to complain about the problems with the patent system, while at the same time not worrying about the lack of ethics shown by the opposing party.


E* had paid for the "crime" it committed. Why the continued complaint from TiVo?

What I read here is more of TiVo complaining about E* not willing to pay more, not E* complaining about what E* had to pay last time.

Why should E* continue to pay TiVo if E* is no longer infringing?


----------



## Greg Bimson (May 5, 2003)

jacmyoung said:


> The USPTO had just granted E*'s new request to reexamine the TiVo Claims 31 and 61 due to *substantial new evidence* of obviousness and prior art, and you said yourself the probability of invalidation in a reexamination is 59%.
> 
> Did you read the justification by the USPTO to grant the reexamination? Sounded just like what Ron said.


Let's see. This suit has been tied up in court for five-plus years, and DISH/SATS finally received a re-exam request? Sounds like that point could have been made at the USPTO five years ago.

And invalidation of the patent's hardware claims didn't work even a year and a half ago, when the USPTO first rescinded then upheld the claims DISH/SATS was trying to have revoked. Let's see if DISH/SATS can get anything on TiVo this time, although it won't work for this contempt hearing, nor any of the appeals.


----------



## nobody99 (May 20, 2008)

jacmyoung said:


> The USPTO had just granted E*'s new request to reexamine the TiVo Claims 31 and 61 due to *substantial new evidence* of obviousness and prior art, and you said yourself the probability of invalidation in a reexamination is 59%.
> 
> Did you read the justification by the USPTO to grant the reexamination? Sounded just like what Ron said.


Oh, for Pete's sake will you stop with the implication that the USPTO sees anything?

They don't. DISH paid them to reexam it. They didn't even look at the evidence that was presented. That's how the USPTO works.

Incidentally, the average time for a re-exam and all appeals is five years. It has absolutely no bearing on this case whatsoever, and it never will.


----------



## jacmyoung (Sep 9, 2006)

Greg Bimson said:


> Let's see. This suit has been tied up in court for five-plus years, and DISH/SATS finally received a re-exam request? Sounds like that point could have been made at the USPTO five years ago.
> 
> And invalidation of the patent's hardware claims didn't work even a year and a half ago, when the USPTO first rescinded then upheld the claims DISH/SATS was trying to have revoked. Let's see if DISH/SATS can get anything on TiVo this time, although it won't work for this contempt hearing, nor any of the appeals.


The new evidence was never used in the last reexamination, that is why it is *new*.

How do you know if it would not work for this proceeding? It all depends on the timing. If the invalidation decision comes out before the assessment of additional damages (which by my reading of the judge's comment could be as much as a year from now), even though the patent will still be valid until TiVo exhausts its own appeals, the decision will certainly have a big impact on how the judge may assess any additional damages.

There is a reason why the law requires the parties involved in the patent case fully inform USPTO and the court of each other's decisions in the matter.

As an example, I know you loved to use the Blackberry case, when RIM agreed to pay $600M to avoid an injunction, under the stern warning of the judge, years later how much money had RIM actually paid? Not much, in part because there were on and off patent validation and invalidation going on. How is Blackberry doing now? And how is the other "winning" party doing?


----------



## Greg Bimson (May 5, 2003)

jacmyoung said:


> Please Greg, the jury awarded TiVo $74M, years of interest added up to $104M finally paid at the end of last year


The Amended Final Judgment and Injunction Order filed on 8 September 2006 was around $89M, which includes $74M in damages awarded by the jury, $5M in interest and another $10M in supplemental damages. It appears TiVo was given another $15M in interest because of Judge Folsom's order. And it wasn't the only order in that document...


jacmyoung said:


> E* had paid for the "crime" it committed. Why the continued complaint from TiVo?


Because of the failure to abide by the plain language of the same Amended Final Judgment and Injunction Order, to disable the DVR's that were adjudged as infringements.


jacmyoung said:


> What I read here is more of TiVo complaining about E* not willing to pay more, not E* complaining about what E* had to pay last time.
> 
> Why should E* continue to pay TiVo if E* is no longer infringing?


Because failure to follow a court order which appears to have been crafted to remedy and rectify wilfull infringement was not followed to the letter.


----------



## nobody99 (May 20, 2008)

jacmyoung, let's boil it down to its essence:

You stole a bike from Timmy, and Timmy takes you to court.

You lose, and the judge tells you to return the bike, and pay $5 for using it while it was stolen.

You appeal, and lose, and now have to pay $5 plus $1 in interest, and the appeals court tells you you still have to return the bike.

Three years later, you've paid the $6, but you still haven't returned the bike, but you've painted it a different color and told the court it's a different bike.

RETURN THE DAMN BIKE!!

Why is this so hard to understand?


----------



## James Long (Apr 17, 2003)

nobody99 said:


> You stole a bike from Timmy, and Timmy takes you to court.


IP isn't physical. It is closer related to stealing copyrighted material (duplicating tapes/DVDs/etc) than a physical theft that removes an object from another's posession. jacmyoung didn't steal Timmy's bike. Timmy held possession of his bike and could ride it rent it or sell it as he pleased.

What DISH was found guilty of doing was an infringement that caused TiVo to lose sales and profits. DISH did not prevent TiVo from using their patent to create DVRs or leasing their patent to others who wanted to create DVRs the way a physical theft would prevent Timmy from riding his bike.

How would DISH "return" the IP? They can stop using the patented process but there is no way to return something that isn't taken.


----------



## Ron Barry (Dec 10, 2002)

Curtis0620 said:


> So you agree that DISH is doomed.


Didn't say that..  With my limited exposure to the facts personally I think the Patient is invalid based on past art, but there is a lot of details in the patient that I would have to sift through before I would make a strong stance eitherway. Do I plan on doing that.. Nope.. Don't have the time or the desire.

Would like to get more educated in the details. I mean obviously Dish changed something as a result of the initial trial. Be interested in what exactly they changed and how close was it to the Patient before I go around calling people thieves. I mean if the patient is recording and watching at the same time my manipulating data streams in some fashion, my guess is there will be a line of people behind Dish with the choice to license or get sued.


----------



## Steve (Aug 22, 2006)

James Long said:


> IP isn't physical. It is closer related to stealing copyrighted material [...]


Ya. A better example might be a new Dish newspaper starts up and copies New York Times' stories, but changes 10% of the words.

The Times sues that they've lost readers as a result, and a jury agrees that the Dish paper is using NYT's IP, and must pay damages to The Times for lost newspaper sales, and cease and desist from doing it in the future.

Dish continues to publish a paper based on Times stories, but now changes 20% of the words, and claims that as a result, they no longer infringe.

/steve


----------



## Ron Barry (Dec 10, 2002)

Greg Bimson said:


> Mr. Ergen, is that you?
> 
> In all honesty, it takes a lot of nerve to complain about the problems with the patent system, while at the same time not worrying about the lack of ethics shown by the opposing party.


Greg.. You know the rules of this thread.. Don't go there.

There is always two side of the argument and the truth usually lies somewhere in the middle.

As for ethics vs. the patent system., well to me those are two things and I have not stated anything in regards to either companies ethics except in regards to Tivo's intention of using the patent system. That is my opinion and I don't consider it an ethics statement but more of a business practice comment and one I personally don't agree with by any company. The discussion of whether something like that is ethical is another discussion and in my opinion a very gray one and one I have not plans on ratholing into.


----------



## Ron Barry (Dec 10, 2002)

Curtis52 said:


> The case is way past that point. The patent is valid. There has been a jury verdict. There have been appeals. That ship has sailed.


Hmmm. well based on the link I saw dated January I doubt it is completely dead.. That is why I asked for links to actually technical type details as to the infringement so I can make up my own mind.. Anyone got one?


----------



## ICBM99 (Apr 4, 2007)

Steve said:


> Ya. A better example might be a new Dish newspaper starts up and copies New York Times' stories, but changes 10% of the words.
> 
> The Times sues that they've lost readers as a result, and a jury agrees that the Dish paper is using NYT's IP, and must pay damages to The Times for lost newspaper sales, and cease and desist from doing it in the future.
> 
> ...


So at what point does it truly no longer infringe?? 20%, 50%, 90%, 99.9999999%

And who's to say that Dish's newspaper didn't send out it's own reporter, and because they cover the same story the stories seem similar?

Thats why its been in court forever.


----------



## HDRoberts (Dec 11, 2007)

Steve said:


> Ya. A better example might be a new Dish newspaper starts up and copies New York Times' stories, but changes 10% of the words.
> 
> The Times sues that they've lost readers as a result, and a jury agrees that the Dish paper is using NYT's IP, and must pay damages to The Times for lost newspaper sales, and cease and desist from doing it in the future.
> 
> ...


Good analogy, wrong conclusion (in my opinion). Dish is now writing 100% of their own stories, but the NYT (Tivo) argues to doesn't matter since they are covering the same events. In fact, they act like they own a patent on the newspaper, period.


----------



## scooper (Apr 22, 2002)

Ron Barry said:


> Hmmm. well based on the link I saw dated January I doubt it is completely dead.. That is why I asked for links to actually technical type details as to the infringement so I can make up my own mind.. Anyone got one?


I don't have an actual link, but - 
for the May hearings last year, Dish did put in a "brief" describing their new method of DVR functions. It was something that James had found in the court filings. My own training in computer science said that it was in no way the same as covered in the '389 Tivo Patent, but the wanna be lawyers want to bend the patent process to cover a different process ( they're trying to use words that you and me wouldn't - or use different meanings for them that we wouldn't). Dish has even applied for their own patent on this process (I have no idea how far along that has gone).

So , I know that what you're asking for has been passed through here, but I don't know exactly where it is.


----------



## Greg Bimson (May 5, 2003)

Ron Barry said:


> That is my opinion and I don't consider it an ethics statement but more of a business practice comment and one I personally don't agree with by any company. The discussion of whether something like that is ethical is another discussion and in my opinion a very gray one and one I have not plans on ratholing into.


Fine. But that is exactly when I will use a hammer to drive the point that if anyone has a problem with the way a holder defends their patents, it rolls directly into an ethics question. That ethics question then involves the more important issue, namely defending convicted infringer who willfully infringed upon a patent and refused to follow a direct order.

Maybe TiVo simply cannot sell their units because DISH/SATS infringed upon the technology TiVo created to provide an integrated satellite DVR. Integrating someone else's technology without paying for it is not innovative but it is infringement.


Ron Barry said:


> Hmmm. well based on the link I saw dated January I doubt it is completely dead.. That is why I asked for links to actually technical type details as to the infringement so I can make up my own mind.. Anyone got one?


The technical details? A jury found DISH/SATS guilty of willful infringement. A jury did NOT give a verdict which stated each technical argument for which they felt DISH/SATS violated the patent.

Someone has a copy of the trial transcripts from April 2006, if that is what you are looking for. That would be where the technical details reside. I think it may have been Curtis52, but I am not sure.


----------



## Ron Barry (Dec 10, 2002)

Bummer I was hoping that there was something that showed where the infringement took place, where in the code this infringement took place, and the proof that Dish actually took and put in the technology. 

That would be interesting to see. Not interested in sifting through huge piles of lawyers discussing asking questions, showing pictures etc. Any info from the Jury members themselves after the verdict?


----------



## Ron Barry (Dec 10, 2002)

scooper said:


> I don't have an actual link, but -
> for the May hearings last year, Dish did put in a "brief" describing their new method of DVR functions. It was something that James had found in the court filings. My own training in computer science said that it was in no way the same as covered in the '389 Tivo Patent, but the wanna be lawyers want to bend the patent process to cover a different process ( they're trying to use words that you and me wouldn't - or use different meanings for them that we wouldn't). Dish has even applied for their own patent on this process (I have no idea how far along that has gone).
> 
> So , I know that what you're asking for has been passed through here, but I don't know exactly where it is.


Thanks scooper... I will sift around a bit over the weekend and see if I can find it.


----------



## nobody99 (May 20, 2008)

Ron Barry said:


> Be interested in what exactly they changed and how close was it to the Patient before I go around calling people thieves.


Ron, DISH already lost a case for stealing technology. They are convicted thieves.

DISH knew the rules when they "borrowed" one of the first TiVos years ago when the pretended to be talking to TiVo about a license. The knew the rules when they said "no thanks" to TiVo and then came out with their own DVR. They knew the rules when the lost the trial. The knew the rules when the lost the appeal.

And, if the on-the-scene reports are accurate, they sure as heck better know the rules of a finding of contempt.

You don't have to like TiVo, you don't have to think the patent is valid. Those are your opinions, and you are certainly welcome to them. But a jury of 12 people heard expert testimony from the actual people who wrote the code and made decision based on that information. The appeals court had similar access and cofirmed the jury's decision. Judge Folsom has heard directly from the brainiacs from both companies. If Judge Folsom rules contempt, it would be preposterous to presume you know -- or anyone else -- somehow knows better.

As they say, hate the game not the playa. If you don't like the law, elect some new officials who will change it. But these are the rules.


----------



## Steve (Aug 22, 2006)

HDRoberts said:


> Good analogy, wrong conclusion (in my opinion). Dish is now writing 100% of their own stories, but the NYT (Tivo) argues to doesn't matter since they are covering the same events. In fact, they act like they own a patent on the newspaper, period.


Ya. News is news, but if you describe it using the NYT's words, you're infringing. If you describe it in your own words, you're not.

The jury found Dish was using NYT's words. Now the judge must decide if that's still the case, or not. /steve


----------



## CuriousMark (May 21, 2008)

jacmyoung said:


> The new evidence was never used in the last reexamination, that is why it is *new*.


The *new* information was available to E* at the time of their last patent re-examination request, they just didn't know about it or care to use it at that time. The only thing new about it, is that it hasn't been used to justify a re-exam request before.

It smells like a publicity stunt to me. Or possibly a scorched earth tactic to back up E* if they lose in court. If that is what it is, it is like the losing kid taking his ball and going home so that no one else can play if he can't. I guess it could be considered a savvy business move, but probably only by dirty rotten scoundrels.


----------



## nobody99 (May 20, 2008)

CuriousMark said:


> The *new* information was available to E* at the time of their last patent re-examination request, they just didn't know about it or care to use it at that time. The only thing new about it, is that it hasn't been used to justify a re-exam request before.
> 
> It smells like a publicity stunt to me. Or possibly a scorched earth tactic to back up E* if they lose in court. If that is what it is, it is like the losing kid taking his ball and going home so that no one else can play if he can't. I guess it could be considered a savvy business move, but probably only by dirty rotten scoundrels.


By the way, they are asking for a re-exam with the _exact same two pieces of prior art_. This time they are saying that when used _together_ it is obvious. It didn't occur to them to say that last time.

Think about that for a second. Let it sink in and realize just how ludicrous it is.


----------



## CuriousMark (May 21, 2008)

Ron Barry said:


> Thanks scooper... I will sift around a bit over the weekend and see if I can find it.


What you want to read are the expert witness reports. They go into the engineering details without a lot of legalese. There were many places that were originally found infringing, but the short story is that patent claims 31 and 61 are the broadest and strongest and what the current fight centers on. These claims stood up at appeal and even could have gone to the supreme court, had the supremes elected to hear the case. This is why Dish's attempted workaround may not fly. They didn't change a lot, just a little here and there to try to avoid the claims. If they fail here, it will show that a major redesign would have been required to avoid the claims. Dish could have done a major redesign, but elected to try the tweaks. And here we are.


----------



## nobody99 (May 20, 2008)

Just so we have it in the thread, here's TiVo's press release about the re-exam with some juicy emphasis.



> EchoStar's latest tactic follows numerous failed attempts to invalidate TiVo's groundbreaking Time Warp patent. In 2006, the District Court rejected all of EchoStar's validity challenges after a full jury trial and the judgment of validity was affirmed by the Federal Circuit in 2008. The USPTO also conducted a prior reexamination of the Time Warp Patent at EchoStar's request, which concluded on November 11, 2008, with the USPTO issuing a Reexamination Certificate confirming the validity of all of the claims of the Time Warp Patent without any change. *EchoStar's latest request for reexamination is based on a combination of two prior art references that were both already submitted to the USPTO in connection with the earlier reexamination*. The USPTO grants most patent reexamination requests. Contrary to EchoStar's statement, the USPTO made no substantive findings. We are confident that the USPTO will once again confirm the validity of all of the claims of the Time Warp patent.


jacmyoung, can you tell me where that new evidence is again?

And I go back to the ultimate irony here. If those two pieces of art were already submitted, and DISH is trying to say that _combined _they are obvious, why wasn't it obvious during the initial re-exam?


----------



## dgordo (Aug 29, 2004)

Steve said:


> It's $20 to subscribe to the web edition to read the rest of that article. /steve


Strange, I can read the rest of the article. Maybe my company has a subscription?


----------



## Ron Barry (Dec 10, 2002)

CuriousMark said:


> What you want to read are the expert witness reports. They go into the engineering details without a lot of legalese. There were many places that were originally found infringing, but the short story is that patent claims 31 and 61 are the broadest and strongest and what the current fight centers on. These claims stood up at appeal and even could have gone to the supreme court, had the supremes elected to hear the case. This is why Dish's attempted workaround may not fly. They didn't change a lot, just a little here and there to try to avoid the claims. If they fail here, it will show that a major redesign would have been required to avoid the claims. Dish could have done a major redesign, but elected to try the tweaks. And here we are.


That is why I am interested in the details. Question is do these reports available and do they have details or just opinions. Also in terms of the changes... Is there details offered regarding the changes. I am sure one side considers them major and the other minor. Sorry but I personally would like to see them myself.


----------



## Greg Bimson (May 5, 2003)

scooper said:


> I don't have an actual link, but -
> for the May hearings last year, Dish did put in a "brief" describing their new method of DVR functions. It was something that James had found in the court filings. My own training in computer science said that it was in no way the same as covered in the '389 Tivo Patent, but the wanna be lawyers want to bend the patent process to cover a different process ( they're trying to use words that you and me wouldn't - or use different meanings for them that we wouldn't). Dish has even applied for their own patent on this process (I have no idea how far along that has gone).


Then what I believe you are looking for the outside counsel opinion, describing the changes that could be made to work around the patent. That would have been from the firm Fish and Richardson.

Remember, that document was paid for by DISH/SATS, to suggest what should be done to receivers to stop infringement. The design around was never evaluated by the same firm.


----------



## CuriousMark (May 21, 2008)

nobody99 said:


> By the way, they are asking for a re-exam with the exact same two pieces of prior art. This time they are saying that when used together it is obvious.


I have no idea why I forgot that detail, thanks for filling in the blank.


----------



## scooper (Apr 22, 2002)

Greg Bimson said:


> Then what I believe you are looking for the outside counsel opinion, describing the changes that could be made to work around the patent. That would have been from the firm Fish and Richardson.
> 
> Remember, that document was paid for by DISH/SATS, to suggest what should be done to receivers to stop infringement. The design around was never evaluated by the same firm.


You might be right about it being from Fish and Richardson. I know it struck me as a completely different way that Tivo said what proved infringement in the trial.

Ron - alot of the history you see on the threads are attributable to your Peter James quote....


----------



## TiVo (Feb 20, 2009)

Interesting thread. Subscribe.


----------



## CuriousMark (May 21, 2008)

Greg Bimson said:


> Remember, that document was paid for by DISH/SATS, to suggest what should be done to receivers to stop infringement. The design around was never evaluated by the same firm.


Actually I thought it was supposed to be an evaluation of the dish workaround plan, more than a suggestion how they should do the redesign, but I am not positive. In any event it is a fun read. I like the part where they say that parsing doesn't occur anymore because the PID filter now selects instead of parses. Great wordplay, fools the non-technical, but clearly baloney to anyone who knows what a PID filter is or does.


----------



## James Long (Apr 17, 2003)

nobody99 said:


> Ron Barry said:
> 
> 
> > Be interested in what exactly they changed and how close was it to the Patient before I go around calling people thieves.
> ...


That doesn't mean they are still "stealing" the technology.

Inflammatory language used to incite and perhaps troll for a response does not change the facts of the case. As of the MOMENT that the jury looked at DISH's product they infringed on the patent. There is no proof that they continue to infringe. That has yet to be decided. (I'm sure you have the opposite opinion.)

Name calling doesn't get us closer to the truth ... so please, discuss the case without the characterizations. Thanks!


----------



## Greg Bimson (May 5, 2003)

James Long said:


> Inflammatory language used to incite and perhaps troll for a response does not change the facts of the case. As of the MOMENT that the jury looked at DISH's product they infringed on the patent. There is no proof that they continue to infringe. That has yet to be decided. (I'm sure you have the opposite opinion.)


I'm sorry, but when there are some that just refuse to admit DISH/SATS infringed, or do not believe in either the patent system or the court of law, then the fact that a convicted infringer is trying to "game" a contempt order is open. The fact is those that "do not believe in either the patent system or the court of law," along with DISH/SATS being found guilty, they air their inflammatory opinion and it elicits a response, as that is instigatory and troll-like.


----------



## James Long (Apr 17, 2003)

It seems that at every step Judge Folsom has shown interest in DISH and TiVo settling the case. It doesn't seem that either side wants to settle - DISH firmly believes they no longer infringe and shouldn't pay for the rights, TiVo wants a victory that would prove their patent beyond doubt. Settlement is giving in.

What could be worse than giving in? Losing. Worst case for DISH would be an order to shut down the eight models of DVRs, a huge fine and TiVo going after the ViPs next. Worst case for TiVo would be a ruling that DISH no longer infringes and only owes damages up to the date they stopped infringing.

So what would be a bad case for both companies? What ruling could Judge Folsom come up with that neither DISH nor TiVo would really like? Here is a hint: Forced licensing under terms set by the court ... not "infringement free" like DISH wants and not as expensive as TiVo may want.

It is going to be a while until there is a verdict ... the transcript needs to be completed then Judge Folsom will set a timetable for both sides to file their own opinions on the matter (Findings of Fact and Conclusions of Law).


----------



## scooper (Apr 22, 2002)

CuriousMark said:


> Actually I thought it was supposed to be an evaluation of the dish workaround plan, more than a suggestion how they should do the redesign, but I am not positive. In any event it is a fun read. I like the part where they say that parsing doesn't occur anymore because the PID filter now selects instead of parses. Great wordplay, fools the non-technical, but clearly baloney to anyone who knows what a PID filter is or does.


Actually what makes the difference is WHERE do you consider DVR "parsing" to start. Some of us feel that the "parsing" done in PID filtering is not the intent of the '389 patent as originally submitted.

The way to illustrate the difference -

Take a "non-DVR" satellite receiver with a standalone Tivo. In this case, the satellite receiver is doing PID filtering, then passing audio and video to the S/A Tivo for "parsing".

In the satellite DVRs, these two functions are combined into one box.

Both solutions are getting the same net effect, but they have different routes of getting there.


----------



## jacmyoung (Sep 9, 2006)

nobody99 said:


> By the way, they are asking for a re-exam with the _exact same two pieces of prior art_. This time they are saying that when used _together_ it is obvious. It didn't occur to them to say that last time.
> 
> Think about that for a second. Let it sink in and realize just how ludicrous it is.


Except you did not realize one thing which of course TiVo never told you, last time the patent reexamination rules did not allow more than one prior patent to be considered in combination. Some time in 2008 the Congress passed a patent reform act which allowed a new way of using more than one prior patent in combination to demonstrate obviousness, and as a result E* saw the change and made another request, and the USPTO, based on the new law, granted the request citing substantial new evidence demonstrating obviousness.


----------



## jacmyoung (Sep 9, 2006)

Greg Bimson said:


> I'm sorry, but when there are some that just refuse to admit DISH/SATS infringed...


I am sorry, if USPTO does invalidate TiVo's patent, one will certainly be able to argue that E* was never an infringer. So it is not completely out of line by one saying he is still not convinced E* was an infringer. Though in reality, no one here is actually saying E* did not infringe at all, some just have doubts and not totally convinced, so your reaction is very much a straw man.


----------



## Curtis52 (Oct 14, 2003)

scooper said:


> Actually what makes the difference is WHERE do you consider DVR "parsing" to start. Some of us feel that the "parsing" done in PID filtering is not the intent of the '389 patent as originally submitted.


PID filter description from the STi5518 datasheet (used in 50X DVRs):


> The MPEG2 PES &MPEG1 system parser accepts PES streams in the same way that pure audio or video streams are accepted.
> For packetized elementary stream data which is demultiplexed from a transport stream (MPEG-2), the data stream consists of concatenated, incomplete packets of audio, and video PES. To handle this configuration, the STi5518 contains two separate parsers: one for the audio (audio PES parser in audio decoder) and one for the video (MPEG2 PES & MPEG1 system parser).
> As the audio or video data is input, it is demultiplexed by each parser and *the audio / video streams are placed in their respective buffers*.


From patent claim 31:


> parses video and audio data from said broadcast data, and temporarily stores said video and audio data;


Almost identical.


----------



## dgordo (Aug 29, 2004)

jacmyoung said:


> Except you did not realize one thing which of course TiVo never told you, last time the patent reexamination rules did not allow more than one prior patent to be considered in combination. Some time in 2008 the Congress passed a patent reform act which allowed a new way of using more than one prior patent in combination to demonstrate obviousness, and as a result E* saw the change and made another request, and the USPTO, based on the new law, granted the request citing substantial new evidence demonstrating obviousness.


Congress didnt pass any patent reform laws in 2008.


----------



## HobbyTalk (Jul 14, 2007)

Curtis52 said:


> PID filter description from the STi5518 datasheet (used in 50X DVRs):
> 
> From patent claim 31:
> 
> Almost identical.


PID filters have been around for many years. Looks like prior art to me?


----------



## Tom Robertson (Nov 15, 2005)

jacmyoung said:


> Except you did not realize one thing which of course TiVo never told you, last time the patent reexamination rules did not allow more than one prior patent to be considered in combination. Some time in 2008 the Congress passed a patent reform act which allowed a new way of using more than one prior patent in combination to demonstrate obviousness, and as a result E* saw the change and made another request, and the USPTO, based on the new law, granted the request citing substantial new evidence demonstrating obviousness.


Got a link?

Thanks,
Tom


----------



## Curtis52 (Oct 14, 2003)

HobbyTalk said:


> PID filters have been around for many years. Looks like prior art to me?


So have buffers. So have hard drives.
All the steps of the patent claim have to be performed to have an infringement. It's a process. It is not required that each and every part of each and every step be never before performed by man.


----------



## HobbyTalk (Jul 14, 2007)

Curtis52 said:


> So have buffers. So have hard drives.
> All the steps of the patent claim have to be performed to have an infringement. It's a process. It is not required that each and every part of each and every step be never before performed by man.


Thank you, you've made our point.


----------



## scooper (Apr 22, 2002)

Curtis52 said:


> PID filter description from the STi5518 datasheet (used in 50X DVRs):
> 
> From patent claim 31:
> 
> Almost identical.


GO to my example illustrating in my edited post.


----------



## Curtis52 (Oct 14, 2003)

scooper said:


> Take a "non-DVR" satellite receiver with a standalone Tivo. In this case, the satellite receiver is doing PID filtering, then passing audio and video to the S/A Tivo for "parsing".
> 
> In the satellite DVRs, these two functions are combined into one box.
> 
> Both solutions are getting the same net effect, but they have different routes of getting there.


Since neither box does all the steps in claim 31, neither box infringes that particular claim. If a competing company sold both boxes with the intention that they be combined in use then there would be a problem.


----------



## Greg Bimson (May 5, 2003)

I think some people need to read up on prior art. If prior art involves using existing technology with some innovations, the telephone patent would have never been granted, as the telephone used the same wires as the telegraph.

Prior art is based upon an entire claim being in the public domain, not just the PID parser.


----------



## scooper (Apr 22, 2002)

Curtis52 said:


> Since neither box does all the steps in claim 31, neither box infringes that particular claim. If a competing company sold both boxes with the intention that they be combined in use then there would be a problem.


Actually - the Standalone Tivo (TM) IS doing all the functions of both Claim 31 AND Claim 61 - In this case - the A/V output of the satellite receiver is going to A/D convertors and multiplexed into MPEG2 streams, being the "ONE" identified. If you are using a non-Tivo DVR box, it may or may NOT be following the '389 patent.


----------



## scooper (Apr 22, 2002)

Greg Bimson said:


> I think some people need to read up on prior art. If prior art involves using existing technology with some innovations, the telephone patent would have never been granted, as the telephone used the same wires as the telegraph.
> 
> Prior art is based upon an entire claim being in the public domain, not just the PID parser.


What made the telephone different than the telegraph - it wasn't the wires. It was the means to send and receive communications, and modulating /demodulating techniques on each end .


----------



## Curtis52 (Oct 14, 2003)

scooper said:


> Actually - the Standalone Tivo (TM) IS doing all the functions of both Claim 31 AND Claim 61 - In this case - the A/V output of the satellite receiver is going to A/D convertors and multiplexed into MPEG2 streams,


I know that but I assumed you were trying to construct an example where the receiver did the only PID filtering and the DVR did none. So I guess I don't understand the point you were trying to make.


----------



## scooper (Apr 22, 2002)

Curtis52 said:


> I know that but I assumed you were trying to construct an example where the receiver did the only PID filtering and the DVR did none. So I guess I don't understand the point you were trying to make.


By the '389 patent - the digital streams converted from the satellite receiver ARE getting a PID - it just happens to be the only one available (thus making it a trivial case, but nevertheless - it is a PID).

My point is showing you that just because the satellite tuner (the PID filter) is in the same box DOES NOT mean it is parsing for the DVR function.

Wordsmithing - yes - but no more than what some of you have done.


----------



## Curtis52 (Oct 14, 2003)

scooper said:


> What made the telephone different than the telegraph - it wasn't the wires. It was the means to send and receive communications, and modulating /demodulating techniques on each end .


But mentioning wires in the patent didn't make the patent invalid just because wires had been used before.


----------



## jacmyoung (Sep 9, 2006)

dgordo said:


> Congress didnt pass any patent reform laws in 2008.


You are correct, it was 2002. The law allowed previously used evidence to be used again to justify a new reexamination. I mixed it up with another article.

What happened was when initially E* cited both prior patents, the USPTO reviewed only one of them to conclude no obviousness and reinstated the TiVo's patent Claims 31 and 61.

Last year E* renewed its request citing obviousness by combining both prior patents, and the USPTO agreed and granted a new reexamination. The combination of multiple prior art has been allowed before.

One may argue but why didn't E* insisted then to have both prior patents combined in the initial reexamination? I don't know the answer. People make mistakes, overlook things perhaps?

But now E* had convinced the USPTO there is now substantial new evidence that may invalidate TiVo's patent, so we will see.

BTW, had the USPTO did their job right in the first place, through thorough researching prior art records, one can say it is possible TiVo would never have gotten the patent in the first place. Only now E* is doing their work for them.

My point? There are good reasons why sometimes people do not agree with what our government is telling us or question our court's authority. No need to get bent out of shape when people do that.

Tom, the above is cited from the latest USPTO decision granting E*'s new reexamination request.


----------



## jacmyoung (Sep 9, 2006)

Greg Bimson said:


> I think some people need to read up on prior art. If prior art involves using existing technology with some innovations, the telephone patent would have never been granted, as the telephone used the same wires as the telegraph.
> 
> Prior art is based upon an entire claim being in the public domain, not just the PID parser.


But you are trying to change the subject. The reason the USPTO granted E*'s reexamination request was because E* did their job right, finally, by combining the two prior patents, and explained in detail why each and every one of the TiVo's Claims 31 and 61 elements can be found in at least one of the two prior patent publications.

Yes, it is indeed based upon the argument that the *entire* TiVo's software claims had been published in the public domain prior to TiVo filing its patent application.


----------



## Curtis52 (Oct 14, 2003)

scooper said:


> My point is showing you that just because the satellite tuner (the PID filter) is in the same box DOES NOT mean it is parsing for the DVR function.


If Dish doesn't use the PID filtered audio and video for the other steps in the process then I guess they are off the hook. I don't know where else they would get the audio and video though.


----------



## scooper (Apr 22, 2002)

James Long said:


> It seems that at every step Judge Folsom has shown interest in DISH and TiVo settling the case. It doesn't seem that either side wants to settle - DISH firmly believes they no longer infringe and shouldn't pay for the rights, TiVo wants a victory that would prove their patent beyond doubt. Settlement is giving in.
> 
> What could be worse than giving in? Losing. Worst case for DISH would be an order to shut down the eight models of DVRs, a huge fine and TiVo going after the ViPs next. Worst case for TiVo would be a ruling that DISH no longer infringes and only owes damages up to the date they stopped infringing.
> 
> ...


Given what you said in this post - I think Tivo may consider this more of a "loss" than Echostar would.

What we have here is the unstoppable force meeting the immoveable object - it ain't pretty in any event.


----------



## nobody99 (May 20, 2008)

jacmyoung said:


> But D* has been dropping DirecTiVo's like flies and replacing them with their own DVRs, and has yet mentioned one word of the new TiVo DVR since the initial press release.


I'd like to bring this comment up - I missed the first time through. yes, they are replacing with their own DVRs, and probably 95% of previous TiVo owners HATE the new DVRs. They suck compared to TiVo. And when they announced MPEG-4 would not be supported on the HD-DirectTiVo (which I owned), I had enough.

For you to claim that this is some sort of "customer disappointment" thing is completely disingenuous and bordering on dishonest.

I was a ten-year subscriber to D* and had Center Ice and Sunday Ticket. I spent a lot of money with them. After they dropped TiVo, I cancelled my subscription on the _same day _the Series 3 hit my local Best Buy where I paid full retail price + tax. I am now a cable subscriber for the sole reason that D* dropped TiVo.

There are whole lot of other former subscribers that were in the same boat. DirecTV was purchased by Rupert Murdoch who replaced TiVo with his own company's inferior crap. I have no doubt that DirecTV lost a lot of their highest revenue-generating customers as a result of dropping TiVo.

Now that they are almost back, I'm not sure I'm ready to switch back. They are not pulling in all of the new features that TiVo has created since being dropped (multi-room viewing, etc).

I have no doubt that TiVo will be tremendously successful again once the new box is available, but I'm waiting to see how many new TiVo features D* allows.


----------



## TiVo (Feb 20, 2009)

jacmyoung said:


> But you are trying to change the subject. The reason the USPTO granted E*'s reexamination request was because E* did their job right, finally, by combining the two prior patents, and explained in detail why each and every one of the TiVo's Claims 31 and 61 elements can be found in at least one of the two prior patent publications.
> 
> Yes, it is indeed based upon the argument that the *entire* TiVo's software claims had been published in the public domain prior to TiVo filing its patent application.


I think the patent re-exam thing is nothing more then E* trying to delay and cause headache for TiVo. Prior to TiVo releasing a DVR I do not remember anybody else selling a DVR. Do you? As Greg B. points out nobody else put it all together before TiVo. May be ReplayTV was close to it, but TiVo beat them to the market also.

Oh yeah, new member here. Could not resist the subject as a long time TiVo owner and follower I got drawn to this. So hello, hear is to a great invention :goodjob:


----------



## scooper (Apr 22, 2002)

Curtis52 said:


> If Dish doesn't use the PID filtered audio and video for the other steps in the process then I guess they are off the hook. I don't know where else they would get the audio and video though.


I'm illustrating that PID filtering is NOT your parsing..

The parsing that is in the '389 patent is happening to the PID filtered A/V streams - this is where Tivo is putting their index marks in the file streams and building their jump tables.


----------



## Greg Bimson (May 5, 2003)

Greg Bimson said:


> I think some people need to read up on prior art. If prior art involves using existing technology with some innovations, the telephone patent would have never been granted, as the telephone used the same wires as the telegraph.
> 
> Prior art is based upon an entire claim being in the public domain, not just the PID parser.





jacmyoung said:


> But you are trying to change the subject.


I actually thought the subject was about infringement and colorable difference evaluations within a contempt hearing, but I digress...


jacmyoung said:


> The reason the USPTO granted E*'s reexamination request was because E* did their job right, finally, by combining the two prior patents, and explained in detail why each and every one of the TiVo's Claims 31 and 61 elements can be found in at least one of the two prior patent publications.
> 
> Yes, it is indeed based upon the argument that the entire TiVo's software claims had been published in the public domain prior to TiVo filing its patent application.


The re-exam request also has nothing to do with the contempt hearing.

By the way, I am unsure if there was a law passed, but I recall within the past couple of years SCOTUS mandated the combination of two distinct patents is not itself patentable. The USPTO is bound to follow that mandate.


----------



## Curtis52 (Oct 14, 2003)

scooper said:


> I'm illustrating that PID filtering is NOT your parsing..
> 
> The parsing that is in the '389 patent is happening to the PID filtered A/V streams - this is where Tivo is putting their index marks in the file streams and building their jump tables.


Perhaps you are thinking of a different claim. There is no index table mentioned in claim 31. If Dish was using an index table and TiVo tried to claim that an index table is mentioned in claim 31 they would scream like stuck pigs.

Beyond that, here is what Dish argued parsing meant in claim 31 (from 2005 court records):


> EchoStar argues "parses" means "separates," and "parses video and audio data from said broadcast data" means "analyzes the content of broadcast data and from it transmits two distinct components: one video component and one audio component."


I don't see anything about index tables. This is PID filtering. Look again at the STi5518 data sheet about PID filtering:


> As the audio or video data is input, it is demultiplexed by each parser and the audio / video streams are placed in their respective buffers.


Clearly, Dish is talking about PID filtering. I guess this explains why Judge Folsom told Dish at the hearing that it sounded like they had changed their minds as to what parsing meant:


> • Judge Folsom Reacts - Late in the day, the Honorable Judge Folsom stopped DISH's expert testimony and commented that DISH's expert had seemingly reversed his positioning on parsing from the previous trial testimony.


----------



## jacmyoung (Sep 9, 2006)

TiVo said:


> I think the patent re-exam thing is nothing more then E* trying to delay and cause headache for TiVo. Prior to TiVo releasing a DVR I do not remember anybody else selling a DVR. Do you? ...


Did you read Judge Folsom's ruling denying TiVo's request for treble and attorney fees? If so you should recall one of the reasons was because, according to the judge himself, E* was selling DVRs before TiVo


----------



## jacmyoung (Sep 9, 2006)

Curtis52 said:


> Perhaps you are thinking of a different claim. There is no index table mentioned in claim 31.


And yet the index table was cited by TiVo as the "core of the invention", and according to TiVo, because E* had it, and TiVo had it, therefore E* infringed Interesting you kept letting TiVo have it both ways.



> I guess this explains why Judge Folsom told Dish at the hearing that it sounded like they had changed their minds as to what parsing meant:


I am interested to read the actual full transcript to point out to you now many times the judge had stopped TiVo's witnesses


----------



## jacmyoung (Sep 9, 2006)

Greg Bimson said:


> ...By the way, I am unsure if there was a law passed, but I recall within the past couple of years SCOTUS mandated the combination of two distinct patents is not itself patentable. The USPTO is bound to follow that mandate.


Therefore they should invalidate TiVo's patent because TiVo's patent practically combines the two prior patents


----------



## James Long (Apr 17, 2003)

TiVo said:


> I think the patent re-exam thing is nothing more then E* trying to delay and cause headache for TiVo. Prior to TiVo releasing a DVR I do not remember anybody else selling a DVR. Do you? As Greg B. points out nobody else put it all together before TiVo. May be ReplayTV was close to it, but TiVo beat them to the market also.


Dish had a Microsoft(?) product IIRC (DISHPlayer 7100/7200) introduced in 1999. TiVo's suit covers the 501 and newer products introduced in 2001 through 2005.



> Oh yeah, new member here. Could not resist the subject as a long time TiVo owner and follower I got drawn to this. So hello, hear is to a great invention :goodjob:


:welcome_s


----------



## TiVo (Feb 20, 2009)

jacmyoung said:


> Did you read Judge Folsom's ruling denying TiVo's request for treble and attorney fees? If so you should recall one of the reasons was because, according to the judge himself, E* was selling DVRs before TiVo


I think you are mistaken, or referring to some other thing. TiVo launched the DVR first, followed by Replay. Then followed by Microsoft, (if you could call it a DVR).



> The two early consumer DVRs, ReplayTV and TiVo, were launched at the 1999 Consumer Electronics Show in Las Vegas. Microsoft also demonstrated a unit with DVR capability *but commercial availability of this software would have to wait until the end of 1999 for full DVR features in Dish Network's DISHplayer receivers*.


I cannot post the link (wtf?) but the above is from wikipedia "Digital_video_recorder"


----------



## Greg Bimson (May 5, 2003)

Curtis52 said:


> Perhaps you are thinking of a different claim. There is no index table mentioned in claim 31.





jacmyoung said:


> And yet the index table was cited by TiVo as the "core of the invention", and according to TiVo, because E* had it, and TiVo had it, therefore E* infringed Interesting you kept letting TiVo have it both ways.


Interesting indeed. Especially since you are quoting DISH/SATS position.

Just because something is the "core of the invention" doesn't necessarily mean that it is the entire invention. Notice how there is no "media switch" nor "index table" in the software claims.

Besides, while presenting "the core of the invenion", DISH/SATS expert *agreed* that PID filtering fulfilled the "parse" step of claims 31 and 61. It now appears the same expert attempted to contradict his own testimony during the hearing. It appears DISH/SATS is having a hard time keeping their story straight.


jacmyoung said:


> Therefore they should invalidate TiVo's patent because TiVo's patent practically combines the two prior patents


Says who, or are we simply accepting only DISH/SATS position, the word of a convicted infringer?


----------



## TiVo (Feb 20, 2009)

jacmyoung said:


> Therefore they should invalidate TiVo's patent because TiVo's patent practically combines the two prior patents


Can you elaborate on this? What patents are you talking about and why TiVo's patent combines them? Even so, what about combining modulation and electric transmission? Would you say if I come up with a 'useful' device that uses both prior art modulation and electric transmission I should not be granted a new patent? Well are you going to say obvious? Not so, it was not obvious to Microsoft, look at what happened to the DVR Microsoft come up with, it was dead before people found out about it. E* ditched it for the one TiVo invented, and now here we are.


----------



## TiVo (Feb 20, 2009)

James Long said:


> Dish had a Microsoft(?) product IIRC (DISHPlayer 7100/7200) introduced in 1999. TiVo's suit covers the 501 and newer products introduced in 2001 through 2005.
> 
> :welcome_s


Hey James thank you for the welcome.

And yeah I remember the Microsoft DVR, it was a complete dog. I could not get over how bad it was, considering the resources one would expect Microsoft to have.


----------



## nobody99 (May 20, 2008)

TiVo said:


> And yeah I remember the Microsoft DVR, it was a complete dog. I could not get over how bad it was, considering the resources one would expect Microsoft to have.


That's because they didn't have the benefit of stealing TiVo's patent :lol:


----------



## Ron Barry (Dec 10, 2002)

TiVo said:


> I cannot post the link (wtf?) but the above is from wikipedia "Digital_video_recorder"


You are at 5 posts now. You should be able to post a link now and Welcome to DBSTalk. Hope you enjoy the site.


----------



## James Long (Apr 17, 2003)

TiVo said:


> Can you elaborate on this? What patents are you talking about and why TiVo's patent combines them? Even so, what about combining modulation and electric transmission? Would you say if I come up with a 'useful' device that uses both prior art modulation and electric transmission I should not be granted a new patent? Well are you going to say obvious? Not so, it was not obvious to Microsoft, look at what happened to the DVR Microsoft come up with, it was dead before people found out about it. E* ditched it for the one TiVo invented, and now here we are.


Hmmmm ... I believe your bias is beginning to show, which is OK, but yet ...

DISH developed the 501 and 721 and other models that came after the 7100/7200s. Perhaps DISH picked up a couple of ideas from what they saw TiVo do, but TiVo did not build a DVR for DISH.

Combining prior art in a useful and unique way is something that should be rewarded. Combining prior art in an obvious manner should not be rewarded in the same manner. Improving on prior art is a core part of innovation. If people are not rewarded for doing something better then we're left with mediocre.

I believe that is what ticks off TiVo (the company) the most ... that C Net declared DISH DVRs "better than TiVo". It really is irrelevant to whether or not DISH is using TiVo technology, it just shows their sore point. Not only has DISH infringed on the patent but they built a better TiVo than TiVo. 

(But the ads do show that DISH competes against TiVo in the DVR marketplace ... even more so now DISH offers a standalone DVRPal that is not a satellite receiver.)


----------



## nobody99 (May 20, 2008)

James Long said:


> I believe that is what ticks off TiVo (the company) the most ... that C Net declared DISH DVRs "better than TiVo".


No, I don't think it bothers then that CNET declared them better. Let's face it, there's not a single person on the planet who thinks that company has any shred of independence or value any more. They sold out years ago, and no one respects anything they say.

What I think pisses TiVo off is that DISH used the money they have earned with TiVo's patent and spent that money advertising that they were better. It doesn't matter who said it originally.



James Long said:


> But the ads do show that DISH competes against TiVo in the DVR marketplace ... even more so now DISH offers a standalone DVRPal that is not a satellite receiver.


As I said earlier, I bought the standalone OTA DVRPal Plus. It doesn't compete with TiVo, it competes with a VCR. CNET should come out with a review "DTV Pal Plus is Better than a VCR!"

As I also said earlier, it may end up hurting DISH and helping TiVo. After using it for a few hours and realizing how crappy the interface and scheduling is, I'd certainly be wary of singing up with DISH. But I might give TiVo a try since it works with OTA HD.


----------



## James Long (Apr 17, 2003)

At the moment there are a lot of negative feelings about OTA ... even among the knowledgeable pros that know their gear. OTA digital reception is either good or it is gone. Marginal is not acceptable. Those who see a DVRPal may blame any shortcomings on the OTA signal and decide to get a satellite system.

You know TiVos and are devoted to them ... enough that you dumped a satellite provider you were otherwise happy with to keep using a TiVo design. Not everyone knows or cares about TiVo in the same way that you do. Especially those with no TiVo experience who just want the functions.


----------



## nobody99 (May 20, 2008)

James Long said:


> At the moment there are a lot of negative feelings about OTA ... even among the knowledgeable pros that know their gear. OTA digital reception is either good or it is gone. Marginal is not acceptable. Those who see a DVRPal may blame any shortcomings on the OTA signal and decide to get a satellite system.


I'm not talking about the DVRPal's OTA design. That works terrific. I'm talking about it's absolutely, ridiculously limited scheduling capabilities and how confusing it is to set up repeating recordings.



> You know TiVos and are devoted to them ... enough that you dumped a satellite provider you were otherwise happy with to keep using a TiVo design. Not everyone knows or cares about TiVo in the same way that you do. Especially those with no TiVo experience who just want the functions.


My real point was that I (and a lot of people like me) are the highest per-capita revenue generating subs DTV has. My guess is the highest-generating subs are generally the ones who had a HD-DirecTivo and switched. Jacmyoung's clear implication was that we didn't like our TiVo's and switched to DirecTV's DVR. That is an absolute and outright falsehood.


----------



## Steve (Aug 22, 2006)

TiVo said:


> And yeah I remember the Microsoft DVR, it was a complete dog. I could not get over how bad it was, considering the resources one would expect Microsoft to have.


Not sure if you're talking about Ultimate TV, but if you are, there are some on here who still feel it's the best DVR software they've ever come across. I purchased my first TiVo in '99, so I never used it, but I would have liked the opportunity to test it. /steve


----------



## jacmyoung (Sep 9, 2006)

TiVo said:


> I think you are mistaken, or referring to some other thing. TiVo launched the DVR first, followed by Replay. Then followed by Microsoft, (if you could call it a DVR).
> 
> I cannot post the link (wtf?) but the above is from wikipedia "Digital_video_recorder"


Please do not put words in my mouth, I did not refer to any of the above, rather what the judge said, when he denied TiVo's request for treble and attorney fees:



> That the pre-suit opinions were not reduced to writing, and done largely by in-house counsel and employees, weighs against Defendants' reasonable reliance. However, the totality of the circumstances, including the Read factors, must be taken into account when determining whether to enhance damages. *As Plaintiff admits, this is not a copying case.* 6/28/06 Hr. Tr. At 9:7-8; see also Dkt. No. 739 at 7. *Defendants worked to develop their own DVR device for a number of years even before Plaintiff's company had been formed. Id. at 6.* Defendants took several steps, both before and after this lawsuit was filed, to investigate the scope of the '389 patent and form a belief as to their liability. Although the jury rendered its unanimous decision after only a few hours of deliberation, this was a hard fought case. Both parties proffered volumes of evidence and lengthy witness testimony and a plaintiff's verdict was not assured. *The evidence does not show Defendants acted in bad faith, nor does the jury's willfulness finding amount to a finding of bad faith.*


----------



## jacmyoung (Sep 9, 2006)

nobody99 said:


> ...Jacmyoung's clear implication was that we didn't like our TiVo's and switched to DirecTV's DVR. That is an absolute and outright falsehood.


Again putting words in my mouth, where did I imply such?


----------



## Curtis52 (Oct 14, 2003)

TiVo said:


> I think you are mistaken, or referring to some other thing. TiVo launched the DVR first, followed by Replay. Then followed by Microsoft, (if you could call it a DVR).


Correct. He made it up.


----------



## jacmyoung (Sep 9, 2006)

Greg Bimson said:


> ...Just because something is the "core of the invention" doesn't necessarily mean that it is the entire invention. Notice how there is no "media switch" nor "index table" in the software claims.


You are missing my point. TiVo used the index table as their core evidence to convict E*, now TiVo says E* may not use such evidence to prove innocence. Can't have it both ways, especially when you consider in our legal system, the defendants usually have the benefit of the argument more so than the plaintiffs.



> Says who, or are we simply accepting only DISH/SATS position, the word of a convicted infringer?


No you said it yourself and it is in my quote in that post.


----------



## jacmyoung (Sep 9, 2006)

Curtis52 said:


> Correct. He made it up.


I assume you referred to Judge Folsom when you said "He"?


----------



## Steve (Aug 22, 2006)

TiVo said:


> I cannot post the link (wtf?) but the above is from wikipedia "Digital_video_recorder"


That fact may very well be correct, but in case you're not aware, anyone can modify a Wikipedia page with any unsubstantiated information at any time. Bottom line is if the information you are seeking is important (like medical info, e.g.), never take anything you read on Wikipedia as gospel. Always try to confirm it using a second, more reliable source. /steve


----------



## CuriousMark (May 21, 2008)

James Long said:


> It seems that at every step Judge Folsom has shown interest in DISH and TiVo settling the case. It doesn't seem that either side wants to settle - DISH firmly believes they no longer infringe and shouldn't pay for the rights, TiVo wants a victory that would prove their patent beyond doubt. Settlement is giving in.


I believe that a settlement would provide as much strength to TiVo's patent position as would a full on clean sweep win over Dish. So I think TiVo is much more willing to settle than Dish is at present. A settlement essentially proves the patent as well as a win does to my mind.


----------



## jacmyoung (Sep 9, 2006)

CuriousMark said:


> I believe that a settlement would provide as much strength to TiVo's patent position as would a full on clean sweep win over Dish. So I think TiVo is much more willing to settle than Dish is at present. A settlement essentially proves the patent as well as a win does to my mind.


I agree 100%. But when was the last time Charlie ever "settled" in a lawsuit?


----------



## CuriousMark (May 21, 2008)

scooper said:


> Actually what makes the difference is WHERE do you consider DVR "parsing" to start. Some of us feel that the "parsing" done in PID filtering is not the intent of the '389 patent as originally submitted.
> 
> The way to illustrate the difference -
> 
> ...


Scooper,
My point was that Fish and Richardson were playing word games there. I have understood and respect your point of view on this specific facet of that PID filtering discussion. My post wasn't intended to attack that. I was addressing the tortured word logic used to say that there was no physical data source anymore due to there being no parsing going on there, only selecting. You know as well as I do that parsing and selecting are identical operations in a PID filter. That is all I was going after. You are still welcome to assert that PID filtering should not be considered a DVR function.

Now to address your point above. In a stand alone DVR the signal coming in is an MPEG stream encoded from the analog input of the box. It is PID filtered to parse or select out the audio and video streams which are then analyzed to produce a jump table in a TiVo DVR or fed directly to the Hard drive in an imaginary standalone workaround DVR. So even the standalone DVR in your example has that same PID filter in it. That said, I don't think there is a way to come up with a better example to illustrate the point that you are trying to make.

Even if I grant your premise, when the data is read from the drive in the workaround it has to be analyzed to locate estimated GOP lengths. and it has to be scanned to find the start frame of a GOP during trick play. So the claim construction of "analyzed" is still met, just at a different point in the process, i.e. in a different order. The decision the judge will be making could simply hinge on whether or not he considers a different order more than merely colorably different. Jacmyoung has told us over and over that he believes it to be more than colorable, I believe differently. Only the courts opinion will really matter.

BTW, I enjoy discussing this with you.


----------



## CuriousMark (May 21, 2008)

James Long said:


> Combining prior art in a useful and unique way is something that should be rewarded. Combining prior art in an obvious manner should not be rewarded in the same manner. Improving on prior art is a core part of innovation. If people are not rewarded for doing something better then we're left with mediocre.


However, if the prior art you are using in your improvement is patented, you are required to license that patent. You can then add your useful and unique improvement and collect royalties for it. Most often when this happens the companies cross license so that both can license and benefit. That is not what happened here though.


----------



## Greg Bimson (May 5, 2003)

jacmyoung said:


> You are missing my point. TiVo used the index table as their core evidence to convict E*, now TiVo says E* may not use such evidence to prove innocence. Can't have it both ways, especially when you consider in our legal system, the defendants usually have the benefit of the argument more so than the plaintiffs.


And again, you are missing THE point. The "core evidence" you describe is only part of the evidence used to convict. Just removing part of the evidence still leaves evidence, quite a bit of evidence.


----------



## James Long (Apr 17, 2003)

nobody99 said:


> I'm not talking about the DVRPal's OTA design. That works terrific. I'm talking about it's absolutely, ridiculously limited scheduling capabilities and how confusing it is to set up repeating recordings.


Compared to what? I realize that your focus is on TiVo and you left DirecTV over not having a DirecTV HD TiVo ... but there are a lot of people who don't own TiVos. They never have and never will.

TiVo can't use the court system to force them to use the TiVo product.



> Jacmyoung's clear implication was that we didn't like our TiVo's and switched to DirecTV's DVR. That is an absolute and outright falsehood.


TiVo's HD DVRs have one serious, perhaps fatal, drawback. The lack of MPEG4 reception. When MPEG4 channels were introduced TiVo's HD DVRs became obsolete. Without the ability to pick up current HD programming from DirecTV those TiVo's are NOT AS GOOD as any receiver that can pick up the programming.

People can praise the interface all they want. If it doesn't get the channels customers who are not "TiVo or nothing" will prefer a receiver that WILL get the channels. They WILL switch to DirecTV DVRs (or to DISH DVRs on the DISH Network service).

Any customers who left DirecTV didn't like the product ... just like you didn't like the product. They just chose to keep the service and ditch the TiVo instead of keeping the TiVo and ditching the service.

It is a choice. We have forums full of people who made the switch to DirecTV DVRs.


----------



## James Long (Apr 17, 2003)

CuriousMark said:


> I believe that a settlement would provide as much strength to TiVo's patent position as would a full on clean sweep win over Dish. So I think TiVo is much more willing to settle than Dish is at present. A settlement essentially proves the patent as well as a win does to my mind.


It appears that TiVo is more interested in a settlement than DISH is. Mr Ergen has made it clear that he wants to clear his company name and get a ruling that his company's products no longer infringe.

If there is a settlement DISH will be paying TiVo forever ... even on products that do not infringe any TiVo patent (unless one believes there can be no DVR ever without TiVo). Paying for the products that actually use TiVo's code or process seems fair. Paying for independent products is not fair.


----------



## Curtis52 (Oct 14, 2003)

from the appeal decision:


> The patent explains that using logical segments in the PES buffer means that "the data associated with the logical segments need not be present in the buffer itself." '389 patent, col. 5, line 66, through col. 6, line 1. The use of the logical segments "has the effect of gathering components of the stream, whether they be in the video, audio or private data circular buffers, into a single linear buffer of stream data on the storage medium." Id., col. 6, ll. 2-7. Thus, the stream data can be efficiently managed without the need for the computer's central processing unit to copy the underlying data. Id., col. 6, ll. 7-15. In sum, TiVo is correct that the specification describes the process of indexing data. *Both the specification and the text of claims 1 and 32 make clear, however, that indexing occurs after, and in addition to, the separation of the incoming data into distinct video and audio buffers*.


Indexing (if it occurs, it isn't required) happens after the parsing mentioned in claim 31. The parsing in claim 31 is PID filtering:


> [1] providing a physical data source, wherein said physical data
> source accepts broadcast data from an input device, parses video and
> audio data from said broadcast data, and temporarily stores said video
> and audio data;


----------



## James Long (Apr 17, 2003)

CuriousMark said:


> In a stand alone DVR the signal coming in is an MPEG stream encoded from the analog input of the box. It is PID filtered to parse or select out the audio and video streams which are then analyzed to produce a jump table in a TiVo DVR or fed directly to the Hard drive in an imaginary standalone workaround DVR. So even the standalone DVR in your example has that same PID filter in it.


My question and belief comes from what the receiver does without a DVR. In a satellite receiver a data stream is received ... that data could contain three dozen "TV channels" - paired up as video and audio with a table instructing the receiver witch stream is which and what two streams to use. A PID filter pulls out the audio and video streams selected, among other streams that are used for receiver operation (auth stream, EPG, PAT, NIT, etc.) The audio PID is converted to an audio output and the video PID is converted to a video output.

All this is done in a satellite receiver regardless of if it is a DVR or not. It is core functionality of a satellite receiver. PID filtering is also core functionality of an ATSC digital TV receiver. Pulling the audio and video out of the received signal on satellite and ATSC TV is not DVR technology.

That is where I believe TiVo's patent should fail. Claiming PID filtering as part of the DVR process in all DVRs is overly broad. It should only apply to products where the PID filtering exists separate from non DVR functionality. Where PID filtering was ADDED in order to perform said DVR functionality. Not to products that rely on PID filtering regardless of DVR functionality and don't use PID filtering in the actual DVR functionality.

The current DVR functionality of the eight named receivers does not filter PIDs ... it just spools the data to a storage device in the way any data is stored. Nothing special ... no index to find a specific absolute time reference within a file just a big block of data.



CuriousMark said:


> However, if the prior art you are using in your improvement is patented, you are required to license that patent. You can then add your useful and unique improvement and collect royalties for it. Most often when this happens the companies cross license so that both can license and benefit. That is not what happened here though.


Roll back one step to what TiVo did ... and what ReplayTV and Microsoft did. They took prior art and came up with something new. DISH believes they have taken art prior to TiVo and also have come up with something new ... separate of TiVo's art. Patent pending.


----------



## James Long (Apr 17, 2003)

Curtis52 said:


> from the appeal decision:
> 
> 
> > *Both the specification and the text of claims 1 and 32 make clear, however, that indexing occurs after, and in addition to, the separation of the incoming data into distinct video and audio buffers*.
> ...


That is what DISH is apparently relying on. That their current "parsing" is separate from the indexing parsing that is done in the DVR Process. They have removed a step from the DVR Process.


----------



## jacmyoung (Sep 9, 2006)

Greg Bimson said:


> And again, you are missing THE point. The "core evidence" you describe is only part of the evidence used to convict. Just removing part of the evidence still leaves evidence, quite a bit of evidence.


And yet do you agree that if the *core evidence* is removed, at a minimum, it had created the *doubt* whether infringement still exists (not to say for sure there is no more infringement)? And if so, please understand that in a contempt motion, the infringer only needs to create such doubt to avoid a contempt.


----------



## scooper (Apr 22, 2002)

James Long said:


> My question and belief comes from what the receiver does without a DVR. In a satellite receiver a data stream is received ... that data could contain three dozen "TV channels" - paired up as video and audio with a table instructing the receiver witch stream is which and what two streams to use. A PID filter pulls out the audio and video streams selected, among other streams that are used for receiver operation (auth stream, EPG, PAT, NIT, etc.) The audio PID is converted to an audio output and the video PID is converted to a video output.
> 
> All this is done in a satellite receiver regardless of if it is a DVR or not. It is core functionality of a satellite receiver. PID filtering is also core functionality of an ATSC digital TV receiver. Pulling the audio and video out of the received signal on satellite and ATSC TV is not DVR technology.
> 
> That is where I believe TiVo's patent should fail. Claiming PID filtering as part of the DVR process in all DVRs is overly broad. It should only apply to products where the PID filtering exists separate from non DVR functionality. Where PID filtering was ADDED in order to perform said DVR functionality. Not to products that rely on PID filtering regardless of DVR functionality and don't use PID filtering in the actual DVR functionality.


Thank you James - THIS is the point I've been trying to hammer home. It finally got said in a manner that everyone should be able to understand.


----------



## Curtis52 (Oct 14, 2003)

scooper said:


> Thank you James - THIS is the point I've been trying to hammer home. It finally got said in a manner that everyone should be able to understand.


I guess Dish should have left out the input section from their patent too.


> 12. A method for receiving, storing, and presenting programming without indexing the programming prior to storage, the method comprising:a) receiving into an input buffer a Moving Pictures Experts Group (MPEG) stream from an input section, wherein the received MPEG stream comprises audio packets from a programming event;b) storing the received MPEG stream from the input buffer onto a storage device without, prior to storage, analyzing data in the audio packets to generate indexing information from the received MPEG stream;c) receiving a seek input;d) determining a data read size and a starting read position in the stored MPEG stream based on the seek input;e) loading a portion of the stored MPEG stream from the storage device, wherein:i) the size of the loaded portion is based on the data read size; andii) the position of the loaded portion is based on the starting read position;f) analyzing the loaded portion to determine if the loaded portion of the stored MPEG stream includes a complete audio frame; andg) if the loaded portion includes a complete audio frame, decoding the complete audio frame to provide an audio frame for presentation on a presentation device.


Dish knew full well that the parsing in claim 31 was PID filtering. They as much as said so at the Markman hearing:


> EchoStar argues "parses" means "separates," and "parses video and audio data
> from said broadcast data" means "analyzes the content of broadcast data and from it
> transmits two distinct components: one video component and one audio component."


If they didn't like it they could have complained to the USPTO or to the appeals court.

Requiring parsing is actually more restrictive on the patent than not saying anything about it. The more steps there are, the easier it is to skip a step and avoid infringment altogether.


----------



## James Long (Apr 17, 2003)

Curtis52 said:


> scooper said:
> 
> 
> > Thank you James - THIS is the point I've been trying to hammer home. It finally got said in a manner that everyone should be able to understand.
> ...


I don't get it. Are you saying that DISH can only have a DVR if no input is allowed? 



> Dish knew full well that the parsing in claim 31 was PID filtering. They as much as said so at the Markman hearing:
> 
> 
> > EchoStar argues "parses" means "separates," and "parses video and audio data
> ...


Or they can just cease using TiVo's patented process by not doing the PID filtering as part of the DVR process.

Time was spent at trial insisting that DISH infringed and parsed because they created an index table ... and that index table was core to the TiVo process. Now DISH has their own patent pending process where they DO NOT do that parsing and indexing. It is like holding a patent on a left door handle and saying people are infringing if they remove the left door handle on a product but leave the right door handle.


----------



## Greg Bimson (May 5, 2003)

James Long said:


> TiVo's HD DVRs have one serious, perhaps fatal, drawback. The lack of MPEG4 reception. When MPEG4 channels were introduced TiVo's HD DVRs became obsolete. Without the ability to pick up current HD programming from DirecTV...


How does one build a DirecTV receiver without having a contract with DirecTV?

After all, on 8 September 2008, DirecTV finally gave TiVo a contract for MPEG4 TiVo DVR's with DirecTV programming. TiVo couldn't exactly build one before then, although at one time they attempted to talk DirecTV into an MPEG4 HD DVR while DirecTV had their DVR production in-house.


James Long said:


> That is where I believe TiVo's patent should fail. Claiming PID filtering as part of the DVR process in all DVRs is overly broad.


Yet why did DISH/SATS expert Storer ADMIT that PID filtering met the step of the claim during the trial?


----------



## CuriousMark (May 21, 2008)

James Long said:


> That is where I believe TiVo's patent should fail. Claiming PID filtering as part of the DVR process in all DVRs is overly broad. It should only apply to products where the PID filtering exists separate from non DVR functionality. Where PID filtering was ADDED in order to perform said DVR functionality. Not to products that rely on PID filtering regardless of DVR functionality and don't use PID filtering in the actual DVR functionality.


PID filtering could be a step in separate patents for all those applications. It could be a step in a receiver patent, it could be a step in a TV patent and it could be a step in a DVR patent. Why should it be excluded as a step in a DVR patent if it doesn't have to be excluded as a step in the other (probably imaginary, but go with me here) patents? That hardly seems fair either. One thing is certain it is an essential step in all three applications, without it, none of them would work.


----------



## CuriousMark (May 21, 2008)

James Long said:


> The current DVR functionality of the eight named receivers does not filter PIDs ... it just spools the data to a storage device in the way any data is stored. Nothing special ... no index to find a specific absolute time reference within a file just a big block of data.


This is not true, they all filter PIDs, each and every one. The Fish and Richardson document plays a word game and calls the PID filtering "stream selection", but it is done by the same hardware, in exactly the same manner, and with exactly the same result as when it was called PID filtering at trial. The output of the PID filter buffers, in the workaround are just spooled to storage, that part is absolutely correct. One quibble, it is more a stream of a huge number of small blocks of data, rather that one big block of data, but you are essentially correct about this part.

The analysis to find specific absolute time references with the data stream is also done. It is done after retrieving the data from storage. It is done in a different manner, one that is less precise and requires the absolute point be found by a search algorithm, but it performs the same basic function. It performs it for the same basic purpose, and it produces almost as good a result, though it requires more processing power and is less robust to errors in the data stream. It is also obviously done in a different order, but it is done under control of the user in order to provide trick play. This part is the part that is different and one we can disagree about without getting into untrue statements.


----------



## CuriousMark (May 21, 2008)

James Long said:


> Roll back one step to what TiVo did ... and what ReplayTV and Microsoft did. They took prior art and came up with something new. DISH believes they have taken art prior to TiVo and also have come up with something new ... separate of TiVo's art. Patent pending.


If this had been a new design DVR software from Dish rather than a very minor tweak to the version found infringing, I would gladly agree with you. But the tweak is based on patented art, not prior art. I doubt you will agree, but give it some thought anyway, please.


----------



## Curtis52 (Oct 14, 2003)

CuriousMark said:


> The analysis to find specific absolute time references with the data stream is also done. It is done after retrieving the data from storage. It is done in a different manner, one that is less precise and requires the absolute point be found by a search algorithm, but it performs the same basic function. It performs it for the same basic purpose, and it produces almost as good a result, though it requires more processing power and is less robust to errors in the data stream. It is also obviously done in a different order, but it is done under control of the user in order to provide trick play.


Yes but a different order from what? There is no search algorithm listed as a step in claim 31 so it's irrelevant.


----------



## jacmyoung (Sep 9, 2006)

Curtis52 said:


> ...Dish knew full well that the parsing in claim 31 was PID filtering. They as much as said so at the Markman hearing:...


But E* was wrong. They tried to argue that "parse" meant "separate" and their PID filter did not separate A/V data therefore did not "parse", that was rejected by the appeals court. Which also meant PID filter was not that "physical data source", because the PID filter does not separate the A/V data.

The "physical data source" in the E* old design was identified by TiVo as the "MPEG processor." Because as TiVo argued the "MPEG Processor" separated the A/V data, temporarily stored the parsed A/V frame identification info in an index table for later extraction for the purpose of DVR trickplay. Just like how the TiVo DVRs did. And the court agreed with TiVo.

Now E* said their evidence demonstrated the MPEG Processor no longer parses the A/V data and build that index table, therefore the so called "physical data source" as identified by TiVo during the trial is now gone.

And TiVo says, but wait, you said before the PID filter parsed also, and too bad you said that, you are on the hook now. Never mind whatever E* said about the PID filter theory was rejected by the court in the first place.


----------



## James Long (Apr 17, 2003)

Greg Bimson said:


> How does one build a DirecTV receiver without having a contract with DirecTV?


You don't. If you're trying to assign blame between TiVo and DirecTV as to why there isn't a DirecTV TiVo for MPEG4 perhaps there is a thread in the DirecTV forum that would suit your needs?

The point remains that DirecTV TiVos had the fatal flaw of not being able to receive MPEG4 programming. Some DirecTV customers decided that keeping integrated DirecTV service was better and got a DirecTV DVR ... others gave up their DirecTV to keep a TiVo. Probably a lot more people stuck with DirecTV than TiVo when asked to choose, but I wouldn't expect them to be posting in this thread in a DISH forum.



> James Long said:
> 
> 
> > That is where I believe TiVo's patent should fail. Claiming PID filtering as part of the DVR process in all DVRs is overly broad.
> ...


The filtering they were referring to was not the core satellite receiver function of selecting a single channel out of a multi-channel MUX.



CuriousMark said:


> PID filtering could be a step in separate patents for all those applications. It could be a step in a receiver patent, it could be a step in a TV patent and it could be a step in a DVR patent. Why should it be excluded as a step in a DVR patent if it doesn't have to be excluded as a step in the other (probably imaginary, but go with me here) patents? That hardly seems fair either. One thing is certain it is an essential step in all three applications, without it, none of them would work.


If the PID filtering no longer exists in the DVR functionality of the receiver it should not be barred by a patent that RELIES on the existence of PID functionality.


----------



## Tom Robertson (Nov 15, 2005)

I don't see the point in inadequately discussing DIRECTV vs TiVo relationship here. That was a very complex situation of business relationships that seems to be coming full circle.

Lets talk DBS and not about members.

Thanks,
Tom


----------



## James Long (Apr 17, 2003)

CuriousMark said:


> James Long said:
> 
> 
> > Roll back one step to what TiVo did ... and what ReplayTV and Microsoft did. They took prior art and came up with something new. DISH believes they have taken art prior to TiVo and also have come up with something new ... separate of TiVo's art. Patent pending.
> ...


The trouble is that as TiVo was introducing their DVR product DISH introduced their own with the help of Microsoft. They were working on their "something better" DVR (the 501/721 etc) when they were in discussions with TiVo. Unfortunately in DISH's design there was something equivalent to what can be found in TiVo's patent. Not an exact copy or stolen code ... but something equivalent.

DISH took a step back and took the "something equivalent" out of their code. Due to the initial court ruling (which was in part reversed and remanded) they also bypassed the hardware claims that were initially found infringing.

This IS a new design DVR. Although it is up to the court to decide if the design is different enough and no longer infringes.


----------



## Curtis52 (Oct 14, 2003)

Dr. Rhyne testifying for Dish:

10 Q. Okay. So you'll agree that the EchoStar 
11 products do actually parse the MPEG stream? 
12 A. Yes. The Court said analyze, and *there are* 
13 *PID filters in those products that examine the MPEG* 
14 *transport stream and do a parsing*. 
15 Q. In fact, yesterday you identified, and I 
16 think again today, *the PID filtering that is responsible* 
17 *for the parsing?* 
18 A. *Yes*. That's what I think is the element 
19 within the either ST or Broadcom chips that perform that 
20 function. 
21 Q. But at least in the Broadcom chips, since 
22 we've talked about them so much yesterday, it is 
23 actually the source code detector module that does the 
24 parsing? 
25 A. I think you misspoke. I think you meant to 
1 say start code detector. You want to try it again? 
2 Well, I'll answer it. 
3 Q. I can, or if you have -- you can answer it. 
4 A. I'll answer it with that understanding. I 
5 don't believe it is. 
6 Q. Right. So let me try it again. 
7 A. Sure. 
8 Q. It is the start code detector module in the 
9 start -- in the Broadcom products that parse the system 
10 transport stream; isn't that true? 
11 A. Dr. Gibson believes that's true. I don't. I 
12 think it's just the basic parser. In a sense, it does 
13 some analysis, but *I believe that the appropriate part* 
14 *of the system to identify is the PID filter*.


----------



## scooper (Apr 22, 2002)

Greg Bimson said:


> Yet why did DISH/SATS expert Storer ADMIT that PID filtering met the step of the claim during the trial?


Because he got confused from the lawyers ?


----------



## CuriousMark (May 21, 2008)

James Long said:


> DISH took a step back and took the "something equivalent" out of their code. Due to the initial court ruling (which was in part reversed and remanded) they also bypassed the hardware claims that were initially found infringing.


Actually it appears they tried to take a portion of the "something equivalent" out of their code. They took out the minimum they felt at the time would be adequate to their needs. That is good business, it just may not have been enough to completely avoid infringement. If Fish and Richardson had done their homework better and not just told them what they wanted to hear, they might have gotten feedback that more may have been required. (pure speculation on my part, feel free to tear it a new one) We will never know if it went that way of course, but my point is simply that they did not take out all of the "something equivalent".


----------



## James Long (Apr 17, 2003)

I'm not going to tear you a new one ... but I will note that the announced INTENT of the workaround was to work around the code and hardware claims that the jury found DISH guilty of infringing. Accuastions on the internet that DISH didn't really intend to stop infringing and are lying or trying to deceive TiVo and the court should be taken with a grain of salt. The claims of the actual parties involved should be our guide. All else seems to be fan fiction.

Hopefully in a few weeks the Findings of Fact and Conclusions of Law will be filed unsealed so we can get more statements from the parties involved. If they are filed sealed (which is possible if there is confidential content) we'll just have to wait for the Judge's ruling.


----------



## jacmyoung (Sep 9, 2006)

Curtis52 said:


> Dr. Rhyne testifying for Dish:
> 
> 10 Q. Okay. So you'll agree that the EchoStar
> 11 products do actually parse the MPEG stream?
> ...


That was why I said E* made a mistake during the original trial, their strategy was to pin the PID filter as the parser, then tried to argue that since the PID filter did not separate the A/V data, and the "parse" in the TiVo's patent meant separation of the A/V data, therefore E* did not infringe.

TiVo was successful to get the court to agree that "parse" meant "analyzing", and E*'s MPEG Processor did the "parsing" *as described in the TiVo's patent limitations.*

Now the question is, can a PID filter also parse (never mind what E* admitted before) in the way as described in the TiVo's patent limitations? If so, then TiVo seems certainly trying to expand its DVR patent to cover all MPEG receivers, DVRs or non-DVRs, because they all use the same PID filter.

And I will even take one step back, by accepting the notion that TiVo might be trying to go after DVRs only, not non-DVRs. But still, all MPEG DVRs use PID filters, they include D* DVRs, Comcast DVRs, DVR cards for the PCs, DVRs by any other companies.

But TiVo had admitted during the trial that they were not going after all DVR technologies, not all DVR technologies infringed, only the E*'s old DVR design they were after, only those TiVo said infringed. TiVo is now expanding their own lawsuit scope which they had limited themselves during the trial.

Maybe TiVo should refund E* the money and start it all over, maybe indeed all DVRs in the world infringe. How about that? Get it right once and for all by suing all the DVR makers, not just E*. They can do that you know, to sue multiple makers.

Forgent tried that you know, right after E* lost its jury case with TiVo in 06, Forgent sued E*, D* and Time Warner for DVR infringement, in the same court in Texas. Two week before the jury trial, TM chickened out and settled with Forgent for $20M, and one day before the jury trial, D* chickened out and settled with Forgent for $8M.

But Charlie stuck to his guns, you know the same guns that just managed to lose his battle with TiVo a few months ago. But this time his old guns learned from the TiVo trial, used a different approach, and got the jury to throw the Forgent case out in the cold.

I am sure TM and D* were kicking themselves after the verdict, they could have stuck with Charlie and saved a lot of money. And one more thing, since then, TiVo has yet pried one more penny out of Charlie's dead fingers


----------



## dfd (Aug 29, 2008)

jacmyoung said:


> That was why I said E* made a mistake during the original trial, their strategy was to pin the PID filter as the parser, then tried to argue that since the PID filter did not separate the A/V data, and the "parse" in the TiVo's patent meant separation of the A/V data, therefore E* did not infringe.
> 
> TiVo was successful to get the court to agree that "parse" meant "analyzing", and E*'s MPEG Processor did the "parsing" *as described in the TiVo's patent limitations.*
> 
> ...


What evidence is there that Tivo is going after non-dvrs? Pleace cite a source for this (redacted).

The can go after any, all, or none of the companies/individuals that they feel infringe upon their IP. The officers of the company have a responsibility to protect the share holders. The strategy they use to protect their IP/share holder value needn't be fair to E*, any other perceived infringer, or what you feel is fair. The defense that every one else was doing it never worked with my mother and I'm pretty certain judges in TX won't allow it either.


----------



## CuriousMark (May 21, 2008)

James Long said:


> I'm not going to tear you a new one ... but I will note that the announced INTENT of the workaround was to work around the code and hardware claims that the jury found DISH guilty of infringing. Accuastions on the internet that DISH didn't really intend to stop infringing and are lying or trying to deceive TiVo and the court should be taken with a grain of salt. The claims of the actual parties involved should be our guide. All else seems to be fan fiction.


I am not trying to imply that Dish's effort was a sham, they did try to do a real workaround. I just believe based on the available information that it falls short. I also believe that they might have tried harder had they gotten better legal advice form Fish and Richardson.



> Hopefully in a few weeks the Findings of Fact and Conclusions of Law will be filed unsealed so we can get more statements from the parties involved. If they are filed sealed (which is possible if there is confidential content) we'll just have to wait for the Judge's ruling.


Yup.


----------



## david_jr (Dec 10, 2006)

jacmyoung said:


> Please do not put words in my mouth, I did not refer to any of the above, rather what the judge said, when he denied TiVo's request for treble and attorney fees:


Quote:
That the pre-suit opinions were not reduced to writing, and done largely by in-house counsel and employees, weighs against Defendants' reasonable reliance. However, the totality of the circumstances, including the Read factors, must be taken into account when determining whether to enhance damages. As Plaintiff admits, this is not a copying case. 6/28/06 Hr. Tr. At 9:7-8; see also Dkt. No. 739 at 7. Defendants worked to develop their own DVR device for a number of years even before Plaintiff's company had been formed. Id. at 6. Defendants took several steps, both before and after this lawsuit was filed, to investigate the scope of the '389 patent and form a belief as to their liability. *Although the jury rendered its unanimous decision after only a few hours of deliberation, this was a hard fought case. *Both parties proffered volumes of evidence and lengthy witness testimony and a plaintiff's verdict was not assured. The evidence does not show Defendants acted in bad faith, nor does the jury's willfulness finding amount to a finding of bad faith.

Sounds a little like the OJ jury.


----------



## jacmyoung (Sep 9, 2006)

dfd said:


> ...The defense that every one else was doing it never worked with my mother and I'm pretty certain judges in TX won't allow it either.


Only if that one thing everyone else is doing is not allowed.

PID filter is allowed in all MPEG receivers, DVRs or non-DVRs. If TiVo prevails that E* may no longer use the PID filters, E* will never be able to have its business at all, all their MEPG receivers must use the PID filter. Everyone else's MPEG receivers must all use the PID filter.

My mother told me not to try to stop others from doing things that were allowed. Be nice


----------



## Greg Bimson (May 5, 2003)

James Long said:


> You don't. If you're trying to assign blame between TiVo and DirecTV as to why there isn't a DirecTV TiVo for MPEG4 perhaps there is a thread in the DirecTV forum that would suit your needs?
> 
> The point remains that DirecTV TiVos had the fatal flaw of not being able to receive MPEG4 programming. Some DirecTV customers decided that keeping integrated DirecTV service was better and got a DirecTV DVR ... others gave up their DirecTV to keep a TiVo. Probably a lot more people stuck with DirecTV than TiVo when asked to choose, but I wouldn't expect them to be posting in this thread in a DISH forum.


Why can't the 921 receive MPEG4 programming?

DirecTV and TiVo released the HD DirecTiVo in early 2004. In very late 2004, DirecTV started thinking about using the Spaceway satellites for HD services. That means when the HD DirecTiVo was on the drawing board, the THOUGHT about using MPEG4 never crossed anyone's mind.

Lack of forethought has happened to both companies.

You asked about the fatal flaw that the HD DirecTiVo doesn't have an MPEG4 processor (off-topic), and I've answered it (also off-topic but needing closure).

And, again, the PID filtering was presented by DISH/SATS expert on the stand during the jury trial almost three years ago as meeting the "parse" step of the claim limitation. It was a fact of the case, and therefore helps to find infringement. If the heat in the kitchen is too hot, to understand why this cannot be challenged or why a differing opinion is pointless...


----------



## dfd (Aug 29, 2008)

jacmyoung said:


> Only if that one thing everyone else is doing is not allowed.
> 
> PID filter is allowed in all MPEG receivers, DVRs or non-DVRs. If TiVo prevails that E* may no longer use the PID filters, E* will never be able to have its business at all, all their MEPG receivers must use the PID filter. Everyone else's MPEG receivers must all use the PID filter.
> 
> My mother told me not to try to stop others from doing things that were allowed. Be nice


You still don't get it!

(Play nice)

It is a patented process.

Anyone may do any of the steps in the process alone without infringing the patented process.

Anyone can do some, but not ALL, of the steps without infringing the patented process.

Nobody can do ALL of the steps (without permission of course) without infringing the patented process.

Get it.

PID filtering by itself DNE infringement.

All steps in the process = INFRINGEMENT.


----------



## Greg Bimson (May 5, 2003)

jacmyoung said:


> Now the question is, can a PID filter also parse (never mind what E* admitted before) in the way as described in the TiVo's patent limitations?


Never mind that it happened before? (Play nice)


jacmyoung said:


> PID filter is allowed in all MPEG receivers, DVRs or non-DVRs. If TiVo prevails that E* may no longer use the PID filters, E* will never be able to have its business at all, all their MEPG receivers must use the PID filter. Everyone else's MPEG receivers must all use the PID filter.


Can we keep this on topic?

A REGULAR RECEIVER does not have a hard drive. Because there is no hard drive on the regular receiver, it does not meet the limitation step of storing data, so regular receivers can never infringe.

As to Forgent, can we please keep this on topic?


----------



## Tom Robertson (Nov 15, 2005)

Thanks for clearing that up. I didn't think PID filter was itself patented here, but a necessary part of TiVo's process--not the whole of the process.

Cheers,
Tom


----------



## nobody99 (May 20, 2008)

jacmyoung said:


> And one more thing, since then, TiVo has yet pried one more penny out of Charlie's dead fingers


I guess that $105 million was my imagination then, and I didn't realize that Charlie had passed away. My condolences.


----------



## Ron Barry (Dec 10, 2002)

Tom Robertson said:


> Thanks for clearing that up. I didn't think PID filter was itself patented here, but a necessary part of TiVo's process--not the whole of the process.
> 
> Cheers,
> Tom


So is PID filtering in the MPEG4 decoder? From reading the posts I could not figure it out or is it part of the external process. If it is part of the MPEG decoder then I am really surprised that this could be a key point of a patient given that it is a part sold by a 3rd party Mfg and included in numerious DVR devices. Is this clear or are there deferring opinions on this point?

Also if all steps are required for infringement then Dish was found to have done all steps right?


----------



## jacmyoung (Sep 9, 2006)

nobody99 said:


> I guess that $105 million was my imagination then, and I didn't realize that Charlie had passed away. My condolences.


I did not think I had to explain this but what the heck. Back in 06 the judge ordered E* to put about $90M in an escrow account until a few things to be sorted out so TiVo could get the money.

The impression you got that E* just paid the $104M (including interest) a few months ago was due to the fact E* managed to delay the date TiVo actually was able to see that money by nearly three years.


----------



## nobody99 (May 20, 2008)

jacmyoung said:


> I did not think I had to explain this but what the heck. Back in 06 the judge ordered E* to put about $90M in an escrow account until a few things to be sorted out so TiVo could get the money.
> 
> The impression you got that E* just paid the $104M (including interest) a few months ago was due to the fact E* managed to delay the date TiVo actually was able to see that money by nearly three years.


But Charlie is dead?


----------



## scooper (Apr 22, 2002)

nobody99 said:


> But Charlie is dead?


But is Tom Rogers dead ?


----------



## Curtis52 (Oct 14, 2003)

Ron Barry said:


> So is PID filtering in the MPEG4 decoder?


Yes


Ron Barry said:


> From reading the posts I could not figure it out or is it part of the external process. If it is part of the MPEG decoder then I am really surprised that this could be a key point of a patient given that it is a part sold by a 3rd party Mfg and included in numerious DVR devices. Is this clear or are there deferring opinions on this point?


A DVR will not work without an input signal. A PID filter provides intelligible audio and video sgnals. If listing the PID filter was in any way improper, Dish's high priced lawyers would have brought it up in the first patent office reexamination or during the trial or during the appeal or the current reexamination request. None of that happened. We need to get past it. Hard drives and buffers are 3rd party components too but DVRs use them and it's proper to use them in steps of a patented process.



Ron Barry said:


> Also if all steps are required for infringement then Dish was found to have done all steps right?


Yes. Dish infringed each and every step of claim 31 in the patent. Here it is:


> 31. A process for the simultaneous storage and play back of multimedia data, comprising the steps of:
> 
> providing a physical data source, wherein said physical data source accepts broadcast data from an input device, parses video and audio data from said broadcast data, and temporarily stores said video and audio data;
> 
> ...


----------



## scooper (Apr 22, 2002)

Curtis52 said:


> Yes. Dish infringed each and every step of claim 31 in the patent. Here it is:


A jury said they did in the original trial. It's an undecided question whether they still do or not.


----------



## jacmyoung (Sep 9, 2006)

dfd said:


> You still don't get it!
> 
> (Play nice)
> 
> ...


Let me try again, we have done this before but what the heck.

The first step in the TiVo's patent is the *core step*, all other steps are pretty much commonly used by all DVRs in the world.

The first step describes a physical data source that parses the incoming MPEG A/V data, separates them into A and V streams, extracts MPEG frame info, builds an index table out of such A/V frame info, then temporarily stores such index table in a buffer, so that later a source object can extract such index frame info to perform DVR trickplays.

Again all the rest of the steps are commonly used by DVRs. That is why during the trial TiVo made a point of the *index method* as their core invention, no one else invented that, and because E*'s DVRs used such method, E* infringed.

Now E* said they no longer uses that index method, but if TiVo prevails by saying the PID filter meets that first *core step* too, then pretty much all DVRs in the world would infringe, because they all use the PID filter and also all the other steps, all the other steps are common DVR functions.

Now let me explain again why PID filter cannot meet that first *core step*. While the PID filter does parse the incoming A/V data, it does not separate them, and it does not extract MPEG frame information, and therefore it cannot use the frame info to build an index table, therefore it cannot temporarily store such index table anywhere, therefore later the source object may not extract such index info to do DVR trickplay.

The purpose of the PID filter is not there to serve any DVR functions, it is an essential part of any MPEG receivers, DVR or non-DVR. The use of it cannot in anyway contribute to the infringement of a *DVR patent.*

Why? Because even by the lower standard of proving infringement, that is infringement by the equivalents, the law requires that one must prove that such element as the PID filter, must:

Perform substantially the same (DVR) functions, in substantially the same way (such as using the indexing method), and to achieve substantially the same results (i.e. for DVR trickplays).

The PID filter simply cannot serve such function, and it works in a way that is totally unrelated to DVR parsing method, and its existence never had anything to do with achieving any DVR trickplays.

As a result, PID cannot meet that first core step, period, no matter how TiVo tries to use a mistake E* made during the trial, or simply argue that the PID also parses. The *parse* must be done in the same way, perfoming the same function, to achieve the same results in order to infringe.


----------



## jacmyoung (Sep 9, 2006)

scooper said:


> But is Tom Rogers dead ?


I guess he could not see the  sign.


----------



## jacmyoung (Sep 9, 2006)

Greg Bimson said:


> Never mind that it happened before? (Play nice)Can we keep this on topic?
> 
> A REGULAR RECEIVER does not have a hard drive. Because there is no hard drive on the regular receiver, it does not meet the limitation step of storing data, so regular receivers can never infringe.
> 
> As to Forgent, can we please keep this on topic?


I was talking about all DVRs in the world. BTW, can we let the moderators do their job and not try to do it for them? Why is every time a point was made that one did not like to hear, one would try to accuse others of off the topic and try to shut it down?

Sometimes other facts are necessary to help establish a premise, or a pattern, to help understand why things happened the way they are today.


----------



## James Long (Apr 17, 2003)

Greg Bimson said:


> James Long said:
> 
> 
> > You don't. If you're trying to assign blame between TiVo and DirecTV as to why there isn't a DirecTV TiVo for MPEG4 perhaps there is a thread in the DirecTV forum that would suit your needs?
> ...


I thought it was closed, but agreeing with me that the HD TiVos not having MPEG4 is a fatal flaw is nice. And I agree that the 721/921/942 not doing MPEG4 also places them in the "fatal flaw" category.

The difference being that DISH immediately replaced the flawed non-MPEG4 models with the ViP series DVRs with similar interfaces and (IIRC) no missing features. DirecTV did not replace the DirecTV HD TiVo with another HD TiVo ... they went to a different design with a different interface and less features (no DLB!). That extended the fatal flaw beyond one receiver model to the entire product line of "TiVo HD DVRs". They are working with TiVo to fix that omission.



> And, again, the PID filtering was presented by DISH/SATS expert on the stand during the jury trial almost three years ago as meeting the "parse" step of the claim limitation. It was a fact of the case, and therefore helps to find infringement. If the heat in the kitchen is too hot, to understand why this cannot be challenged or why a differing opinion is pointless...


I'm not understanding where you're going with that. I'll leave it to DISH/SATS experts to explain it to Judge Folsom.


----------



## nobody99 (May 20, 2008)

James Long said:


> DirecTV did not replace the DirecTV HD TiVo with another HD TiVo ... they went to a different design with a different interface and less features (no DLB!). That extended the fatal flaw beyond one receiver model to the entire product line of "TiVo HD DVRs". They are working with TiVo to fix that omission.


James, you do know that in during that time DirecTV was sold to Rupert Murdoch who had his own DVR software as part of BSkyB, right? And that there was not a chance in hell that TiVo would be part of that. Malone and Murdoch worked out a deal for Malone to take over D*, ooh, what do you know, TiVo's back in.

I just want to make sure that you get your facts straight. Murdoch is the reason for the "TiVo gap" at D*. Let's not forget to include that very important fact, ok?


----------



## Tom Robertson (Nov 15, 2005)

nobody99 said:


> James, you do know that in during that time DirecTV was sold to Rupert Murdoch who had his own DVR software as part of BSkyB, right? And that there was not a chance in hell that TiVo would be part of that. Malone and Murdoch worked out a deal for Malone to take over D*, ooh, what do you know, TiVo's back in.
> 
> I just want to make sure that you get your facts straight. Murdoch is the reason for the "TiVo gap" at D*. Let's not forget to include that very important fact, ok?


Again, this aspect is way, way too complex to get into in this thread. Lets stick with TiVo and Echostar

Thanks,
Tom


----------



## jacmyoung (Sep 9, 2006)

James Long said:


> ...I'm not understanding where you're going with that. I'll leave it to DISH/SATS experts to explain it to Judge Folsom.


And E*'s lawyers had already tried to respond to that, but most certainly in the future filings and court transcripts we will see more of those, as long as they are not sealed.


----------



## Greg Bimson (May 5, 2003)

jacmyoung said:


> *The first step* describes a physical data source that parses the incoming MPEG A/V data, separates them into A and V streams, extracts MPEG frame info, builds an index table out of such A/V frame info, then temporarily stores such index table in a buffer, so that later a source object can extract such index frame info to perform DVR trickplays.





> 31. A process for the simultaneous storage and play back of multimedia data, comprising the steps of:
> 
> providing a physical data source, wherein said physical data source accepts broadcast data from an input device, parses video and audio data from said broadcast data, and temporarily stores said video and audio data;


I don't see where there is an index table in the first step of the patent claim.


jacmyount said:


> PID filter is allowed in all MPEG receivers, DVRs or non-DVRs. If TiVo prevails that E* may no longer use the PID filters, *E* will never be able to have its business at all, all their MEPG receivers must use the PID filter.* Everyone else's MPEG receivers must all use the PID filter.





Greg Bimson said:


> Can we keep this on topic?
> 
> A REGULAR RECEIVER does not have a hard drive. Because there is no hard drive on the regular receiver, it does not meet the limitation step of storing data, so regular receivers can never infringe.





jacmyoung said:


> I was talking about all DVRs in the world.


No, you were talking about all *receivers*.

[Mod Edit: While we welcome each others gentle reminders to stay on topic (and they must be gentle and polite), please let the moderators define what that actually is.  Thanks.]


----------



## jacmyoung (Sep 9, 2006)

Greg Bimson said:


> I don't see where there is an index table in the first step of the patent claim.


Then may I suggest TiVo refund E* the $104M? Because it was TiVo that used that "indexing method" as their "core evidence" to convince the jury E* infringed. As I said you cannot have it both ways.



> I do find it quite interesting that those supporting and arguing the DISH/SATS' angle must find issues other than infringement or colorable difference (the specific reason for this thread) to start discussing.


Similarly I found it interesting you cannot found anything else other than what TiVo said to make your argument. And whenever things do not go your way, such as when the judge wanted to determine if the software were colorably different, you called him "dead wrong", and when the USPTO granted E*'s request for reexamination, because according to the USPTO themselves, there are now substantial new evidence, you think the USPTO "erred". Because you only rely on what TiVo is telling you.

But realize that TiVo does not get to make the decision, the judge will, and the USPTO will.

Do you see me constantly quoting what E* is saying? No, because E* does not get to make the decision either.

Here is another quote from the judge's own instruction to the jury as how they might or might not find infringement:

"A claim limitation is present in an accused product under the doctrine of equivalents if the differences between the claim limitation and the allegedly equivalent structure or step are insubstantial. [1]One way to determine this is to look at whether or not *the accused structure or step* performs substantially the same function, in substantially the same way, to achieve substantially the same result as the claimed limitation. [2]Another way is to consider whether or not people of ordinary skill in the field of the invention believe that *the structure* of the accused product, or the performance of *a particular accused step* is interchangeable with the structure or step recited in the patent claim limitation."

First off, notice I highlighted some of the singular words such as "a construction" or "a step". This is important, because each and every one in the claim limitations must be tested.

Secondly, I will use the [2] (I had already explained [1]) to ask you this question:

If you ask "people of ordinary skill in the field of DVR technologies" whether he or she believes the PID filter can be some core method in any DVR inventions, what do you think the answer will be?

Remember the answer to this question has nothing to do with the specific descriptions of the claim limitations themselves, such as does it "parse" or does it not "parse", rather an opinion based on their real world experience, and it is that opinion, believe it or not, will detrermine whether that step is infringed or not.


----------



## nobody99 (May 20, 2008)

> And whenever things do not go your way, such as when the judge wanted to determine if the software were colorably different


Don't any assumptions about things going "your way" until all the facts are in. If the judge determines that the software is merely colorably different, then all receivers, new and old, will not only be subject to contempt, but they will again receive a shutdown order.

In fact, as Greg as pointed out, if receivers that are not part of the original list of eight receivers found infringing use the same software, these too will now be open to contempt.

That would hardly be going "your way" now, would it?


----------



## jacmyoung (Sep 9, 2006)

nobody99 said:


> Don't any assumptions about things going "your way" until all the facts are in. If the judge determines that the software is merely colorably different, then all receivers, new and old, will not only be subject to contempt, but they will again receive a shutdown order.
> 
> In fact, as Greg as pointed out, if receivers that are not part of the original list of eight receivers found infringing use the same software, these too will now be open to contempt.
> 
> That would hardly be going "your way" now, would it?


Please understand, it did not go his way in that issue not because the judge might find the software more than colorable, rather Greg did not like the fact the judge wanted to evaluate the software in the first place.

According to Greg, the new software was no part of the issue, the 8 named DVRs were found infringing, that was why he said the judge was "dead wrong" by wanting to determine if the new software is only colorably different or not.

How about letting Greg defend himself? You did not even understand what Greg was saying when he said the judge was "dead wrong."

Of course if the judge finds the new software only colorably different than the old software, E* should be in contempt and be in a lot of trouble. I had always said that so what was your point again?


----------



## Curtis52 (Oct 14, 2003)

> The canon that has arguably had the most significant impact on claim construction is the doctrine of claim differentiation. The claim differentiation doctrine in its broadest reading provides that no two claims in the same patent should be interpreted to cover the same thing.





> Claim differentiation: In United States patent law, under the doctrine of claim differentiation, *each claim is presumed to cover a different aspect of the invention* than in each other claim.


Indexing is covered by claims 6 and 7.


> 6. The process of claim 1, wherein said Media Switch calculates and logically associates a time stamp to said video and audio components.
> 
> 7. The process of claim 1, wherein said Media Switch extracts time stamp values from a digital TV stream and logically associates said time stamp values to said video and audio components.



Moreover, the appeals court has said that indexing happens after PID filtering and the separation of audio and video:


> Both the specification and the text of claims 1 and 32 make clear, however, that indexing occurs *after*, and in addition to, the separation of the incoming data into distinct video and audio buffers.


Clearly, the parsing in claim 31 is not indexing because it happens *before* the separation of audio and video into buffers and not after. The parsing on claim 31 is PID filtering. Dish's own expert said so at trial.


----------



## Greg Bimson (May 5, 2003)

jacmyoung said:


> Then may I suggest TiVo refund E* the $104M? Because it was TiVo that used that "indexing method" as their "core evidence" to convince the jury E* infringed. As I said you cannot have it both ways.


Of course the "indexing method" was some of the "core evidence" used by the jury to find willful infringement. Seven of the claims during the trial related to the "hardware claims", which are no longer in play. This is only about two claims, neither of which have an "index" in their claims.

And that "core evidence" has NOTHING to do with these two claims.


jacmyoung said:


> And whenever things do not go your way, such as when the judge wanted to determine if the software were colorably different, you called him "dead wrong"...


I have no dog in this hunt. So I don't necessarily care how this ends up, one way or the other, as it has no net effect upon me.

With that being said, I called Judge Folsom "dead wrong", because the two remaining claims upon which an infringement evaluation will be measured are for "a process" and "an apparatus". Therefore, when measuring "colorable difference", the software should not be the only piece evaluated. That is, unless those pieces unchanged, such as hardware and firmware that have not changed and were presented during the jury trial as meeting step and claim limitations are simply lumped into the "colorable difference" argument.

One example: DISH/SATS' expert agreed that PID filtering met the limitation on the "parse" step during the jury trial. Therefore, as that is a hardware function, there is no difference, colorable or not, to that step. It still meets the limitation. If software only was being evaluated, there is no "parser" in software.

After reading some of the hearing minutes, I believe that the argument regarding the "parse" step was presented, and about how it was done in hardware. It appears DISH/SATS expert tried to flip-flop; the DISH/SATS expert during the trial agreed PID filtering met the claim limitation during trial. In order to defeat the "parse" step, this DISH/SATS expert had to present opposite testimony in order to say the "parse" step is no longer being met.

Which means this wasn't only about the software.


jacmyoung said:


> ...and when the USPTO granted E*'s request for reexamination, because according to the USPTO themselves, there are now substantial new evidence, you think the USPTO "erred".


I am trying to find where the USPTO stated there was "substantial new evidence". I am also trying to find where I stated the USPTO "erred". Neither are relevant to the topic at hand, but I believe I will not find any evidence supporting either statement.


----------



## jacmyoung (Sep 9, 2006)

Curtis52 said:


> Indexing is covered by claims 6 and 7.
> 
> Moreover, the appeals court has said that indexing happens after PID filtering and the separation of audio and video:


Each claim should cover a different aspect of the invention, not a new invention. The core of the invention is just that, the indexing method, this much is clear.

Claims 31 and 61 are software claims, which is another aspect of the invention, as compared to the hardware claims aspect, but the core issue is the same, the indexing method.

If your accertion is correct, one should conclude the use of the PID filter is an aspect of the TiVo's invention, *parrallel and equal* to the indexing method invention. Are you sure about that? Who invented PID filter?



> Clearly, the parsing in claim 31 is not indexing because it happens *before* the separation of audio and video into buffers and not after. The parsing on claim 31 is PID filtering. Dish's own expert said so at trial.


That cannot be true for one simple reason, Step Two in the claims called on the "source object" to "extract" such parsed A/V data from such "physical data source" for the purpose of determining how the DVR trickplays should be accomplished. The PID filter simply cannot be such "physical data source" to help in that regard.

The bottom line? Read what the judge told the jury how they might find infringement, not what E* said, not what TiVo told you, and not what TiVo managed to get E* to admit in the past of something E* had no idea what they were talking about


----------



## Curtis52 (Oct 14, 2003)

Greg Bimson said:


> I am trying to find where the USPTO stated there was "substantial new evidence".


He made it up.


----------



## Ron Barry (Dec 10, 2002)

Actually I believe "He" is quoting Dish that made the statement below.



> "We are pleased that the Patent and Trademark Office (PTO) granted our Petition for Re-Examination of the software claims of TiVo's '389 patent, which are the subject of TiVo's current motion for contempt. The PTO found that there is a 'substantial new question' of patentability as to the software claims in light of prior patents that appear to render TiVo's '389 patent invalid as obvious."


Source
http://blogs.zdnet.com/BTL/?p=11475

Ofcourse one can twist it, discount it, etc.. And perhaps there is a contradictory post from the Tivo camp but this appears to be the source of this point. So I don't thing He made it up.


----------



## Curtis52 (Oct 14, 2003)

Ron Barry said:


> Actually I believe "He" is quoting Dish that made the statement below.
> 
> Source
> http://blogs.zdnet.com/BTL/?p=11475
> ...


I'm looking for the word "evidence". Nope, don't see it.


----------



## jacmyoung (Sep 9, 2006)

Ron Barry said:


> Actually I believe "He" is quoting Dish that made the statement below.
> 
> Source
> http://blogs.zdnet.com/BTL/?p=11475
> ...


I was actually quoting the USPTO. As I said I rarely quote E* nor TiVo, in the case I must quote E*, I always at the same time quote TiVo's response too.

If you read the USPTO's decision to grant E*'s reexamination request, the USPTO clearly stated substantial new questions (SNQ) now exist, else they would not have granted that request.


----------



## James Long (Apr 17, 2003)

Curtis52 said:


> Clearly, the parsing in claim 31 is not indexing because it happens *before* the separation of audio and video into buffers and not after. The parsing on claim 31 is PID filtering. Dish's own expert said so at trial.


Audio and Video are separated at the uplink center. They are received as separate digital streams within an MPEG2 or MPEG4 MUX that can contain dozens of channels. The normal function of a satellite receiver is to choose two of those streams, display the video one and play the audio one.

The separation of audio and video does not even occur withing the receiver, beyond choosing which of the dozen or more video and audio feeds to pull from the mux. What is done in the receiver is selection, not separation.


----------



## Greg Bimson (May 5, 2003)

And I am looking for the words from the PTO. Haven't seen any...


----------



## Ron Barry (Dec 10, 2002)

> I'm looking for the word "evidence". Nope, don't see it.


Well you did say he made it up Curtis and obviously based on the link provided it was not just pulled out of thin air. Might not be the evidence that the PTO is going off of but it is evidence as to someone making something up? Ofcourse Dish can be making it up or the blogger that wrote the article but that is another topic.

Got a link PTO link jacmyoung?


----------



## James Long (Apr 17, 2003)

Greg Bimson said:


> Which means this wasn't only about the software.


The software is the only thing that physically changed, although DISH claims their new software also bypasses the 'hardware' claims of the patent that DISH was found guilty of infringing (but were reversed and remanded).

It is an odd situation. One has software claims and hardware claims that are not all software and hardware. Since DISH didn't do a physical recall the focus must be on what did change - which is the software. Infringement is ALL about whether the new software causes the product to no longer infringe, or not.


----------



## Greg Bimson (May 5, 2003)

James Long said:


> The separation of audio and video does not even occur withing the receiver, beyond choosing which of the dozen or more video and audio feeds to pull from the mux.


When one is "choosing", an analysis is performed.

And DISH/SATS expert stated that "choosing which of the dozen or more video and audio feeds to pull from the mux" meets the step limitation, during the jury trial.


----------



## Greg Bimson (May 5, 2003)

James Long said:


> Infringement is ALL about whether the new software causes the product to no longer infringe, or not.


Yet the DISH/SATS team can only state they put the new software in the stream but cannot state that software was installed on ANY of the receivers. So there is NO CERTAINTY that ANY of the DVR's no longer infringe.

Without any closed-loop evidence that the DVR's are running the newer software, it certainly looks as if the Herculean Effort was just lip service, as there is no proof to back up the claim that the receivers are running the "Hercules" version of the software.


----------



## Curtis52 (Oct 14, 2003)

From the ST Micro STi5518 (used in the DVRs) data sheet:


> For packetized elementary stream data which is demultiplexed from a transport stream (MPEG-2), the data stream consists of concatenated, incomplete packets of audio, and video PES. To handle this configuration, the STi5518 contains two separate parsers: one for the audio (audio PES parser in audio decoder) and one for the video (MPEG2 PES & MPEG1 system parser).
> 
> As the audio or video data is input, it is demultiplexed by each parser and the audio / video streams are placed in their respective buffers.


This is the parsing mentioned in claim 31. The appeals court said that any indexing occurs after this step not before. Claim 31 mentions no further parsing or indexing. It just ain't there.


----------



## jacmyoung (Sep 9, 2006)

Greg Bimson said:


> When one is "choosing", an analysis is performed.
> 
> And DISH/SATS expert stated that "choosing which of the dozen or more video and audio feeds to pull from the mux" meets the step limitation, during the jury trial.


What is E* saying now? Are you saying the judge will just catch whatever E* said last time, right or wrong, regardless what the law says? Somehow many here believe if the citizens of this government make some stupid statements or mistakes, the government may use that against them to penalize them, throwing all the rules and the law aside?

What is this? China? Even China does not do that any more for the most part.


----------



## jacmyoung (Sep 9, 2006)

Greg Bimson said:


> Yet the DISH/SATS team can only state they put the new software in the stream but cannot state that software was installed on ANY of the receivers. So there is NO CERTAINTY that ANY of the DVR's no longer infringe.
> 
> Without any closed-loop evidence that the DVR's are running the newer software, it certainly looks as if the Herculean Effort was just lip service, as there is no proof to back up the claim that the receivers are non-infringing.


But TiVo does not dispute the notion that E* made all the changes E* said they made, so the above is pointless.


----------



## Greg Bimson (May 5, 2003)

jacmyoung said:


> What is E* saying now? Are you saying the judge will just catch whatever E* said last time, right or wrong, regardless what the law says? Somehow many here believe if the citizens of this government make some stupid statements or mistakes, the government may use that against them to penalize them, throwing all the rules and the law aside?


I don't know how to say this, and I fully expect this to be redacted...

If one is to use case law as the basis for what should happen, then one must expect that the pattern in law is that as the evidence is there, the information from other cases is used to continually improve upon the process.

If one cannot use what was presented before, then it is a sham to believe the courts can actually ever render a decision.

Therefore, if DISH/SATS agreed during the jury trial that PID filtering meets the "parse" step, and it is now part of the record, that somehow this "mistake" can be just glazed-over?


----------



## jacmyoung (Sep 9, 2006)

Ron Barry said:


> Well you did say he made it up Curtis and obviously based on the link provided it was not just pulled out of thin air. Might not be the evidence that the PTO is going off of but it is evidence as to someone making something up? Ofcourse Dish can be making it up or the blogger that wrote the article but that is another topic.
> 
> Got a link PTO link jacmyoung?


Can't give out the link but here is the quote from the USPTO's decision:



> Decision on Request
> 
> A substantial new question of patentability affecting claims 31 and 61 of United States Patent Number 6,233,389 is raised by the request for ex parte reexamination.
> 
> ...


----------



## jacmyoung (Sep 9, 2006)

Greg Bimson said:


> ... and I fully expect this to be redacted...


Why?

I consider that a valid question The only problem is the judge must decide whether the new design is still an infringement or not, and when he does that, he must follow the same rules he laid out for the jury, as I have posted earlier.

I have asked you to answer the question based on that instruction, you avoided so for good reasons. But the judge may not avoid those questions when making his decision.

Yes, he must consider all the facts and statements made in the past, but ultimately his decision must be based on the answers to those questions, not what he said, what she said.


----------



## James Long (Apr 17, 2003)

jacmyoung said:


> If you read the USPTO's decision to grant E*'s reexamination request, the USPTO clearly stated substantial new questions (SNQ) now exist, else they would not have granted that request.


Ahh, but is "substantial new questions" the same as "substantial new evidence"?

From the patent office: (emphasis added)
[Page 2]
A substantial new question of patentability affecting claims 31 and 61 of United States Patent Number 6,233,389 is raised by the request for _ex parte_ reexamination. The examiner considers a substantial new question of patentability has been raised by at least a combination of the following prior art references:
U.S. Patent 6,018,612 to Thomason et al. ("Thomason")
U.S. Patent 5,949,948 to Krause et al. ("Krause")

... The Thomason Patent was not before the Examiner at the time of the original allowance but was made of record during the previous reexamination proceeding. The Krause Patent was als not before the Examiner at the time of original allowance but was also made of record during the previous reexamination proceeding. Accordingly, both Thomason and Krause are old art. However, *neither Thomason or Krause were previously applied against the claims at issue.* Thomason and Krause are now being viewed in a new light since the combination of Thomason and Krause was never considered during either the original examination or the previous reexamination proceeding.

[Page 4]
During the previous reexamination proceeding, the requester proposed rejections based on the Krause Patent. These rejections *were not applied* by the examiner against claims 31 and 61. The Thomason Patent was of record, but never considered in combination with Krause with regard to claims 31 and 61.​(Of course this action is separate from the court case being discussed in this thread. TiVo has until March 7th to reply to USPTO on the patent challenge. Nothing new has come out of USPTO on the issue since early January.)


----------



## jacmyoung (Sep 9, 2006)

Curtis52 said:


> From the ST Micro STi5518 (used in the DVRs) data sheet:
> 
> This is the parsing mentioned in claim 31. The appeals court said that any indexing occurs after this step not before. Claim 31 mentions no further parsing or indexing. It just ain't there.


Again you continue to follow only TiVo's logic, not what the judge told the jury how they might find infringement or not.

Had TiVo's logic been sound, the "sword" would have fallen on E* long time ago you'd think? Because TiVo was saying the same thing before 9/4/08 too, what happened after the last hearing?

The "parsing" mentioned in claims 31 and 61 is the "analyzing, separation, I frame identification, index table building." Nothing to do with PID filtering. Again one must answer the question of:

What does the "parsing" serve as an function, in what way, and to achieve what results? Every answer to one of the three questions must have everything to do with the DVR trickplay functions because this is after all a DVR patent, not an MPEG STB patent.


----------



## jacmyoung (Sep 9, 2006)

James Long said:


> Ahh, but is "substantial new questions" the same as "substantial new questions"?
> ...


I guess so?


----------



## James Long (Apr 17, 2003)

Greg Bimson said:


> When one is "choosing", an analysis is performed.
> 
> And DISH/SATS expert stated that "choosing which of the dozen or more video and audio feeds to pull from the mux" meets the step limitation, during the jury trial.


I really doubt that they used MY WORDS in a trial years ago. 

We'll find out in a few weeks (I hope) what was actually said this week and what both parties believe what was said leads to under the law. Then a couple of months from now (at least) we'll get a verdict.

I believe any confusion over what parsing is has been cleared up in court.


Greg Bimson said:


> Yet the DISH/SATS team can only state they put the new software in the stream but cannot state that software was installed on ANY of the receivers. So there is NO CERTAINTY that ANY of the DVR's no longer infringe.


Nice exaggeration. Are you absolutely 100% sure from the chicken scratch minutes that the word "ANY" should be so emphasized?

DISH can't prove that ALL of their DVRs took the upgrades ... but to claim they can't claim ANY were upgraded is just crazy talk.


----------



## James Long (Apr 17, 2003)

jacmyoung said:


> James Long said:
> 
> 
> > Ahh, but is "substantial new questions" the same as "substantial new questions"?
> ...


Sorry, cut and paste went bad ... that was supposed to be:

Ahh, but is "substantial new questions" the same as "substantial new evidence"?

You were using the word evidence earlier. 
Hopefully the rest of the post was read.


----------



## jacmyoung (Sep 9, 2006)

James Long said:


> Sorry, cut and paste went bad ... that was supposed to be:
> 
> Ahh, but is "substantial new questions" the same as "substantial new evidence"?
> 
> ...


Good point, I guess Curtis52 wins another round by catching a wrong choice of word of mine

On the other hand, I don't think it is wrong to say there are substantial new evidence, as long as the evidence (combining two prior art) had not been applied before, it is new isn't it?


----------



## Greg Bimson (May 5, 2003)

Now glad to see some proof regarding what the PTO said about the reexam. Nice to see there isn't any new evidence, just questions of application...


jacmyoung said:


> The "parsing" mentioned in claims 31 and 61 is the "analyzing, separation, I frame identification, index table building."


Link, please.

I seem to believe, however, that the "parsing" described in Claims 31 and 61 were addressed by DISH/SATS expert Dr. Rhyne, and that PID filtering meets that step. At least that is how it appears from the *evidence* presented by Curtis52.


----------



## Greg Bimson (May 5, 2003)

James Long said:


> I believe any confusion over what parsing is has been cleared up in court.


Sure. PID filtering meets the parsing step of Claims 31 and 61. At least that is what DISH/SATS expert Dr. Rhyne stated over two and a half years ago.


----------



## Curtis52 (Oct 14, 2003)

Judge Folsom's words:


> Patent claims may exist in two forms, referred to as independent claims and dependent claims. An independent claim does not refer to any other claim of the patent. Thus, it is not necessary to look at any other claim to determine what an independent claim covers.


Claim 31 is an independent claim. It is not necessary to look at any other claim to determine what it covers.


----------



## James Long (Apr 17, 2003)

Greg Bimson said:


> Sure. PID filtering meets the parsing step of Claims 31 and 61. At least that is what DISH/SATS expert Dr. Rhyne stated over two and a half years ago.


Live in the past if you must, but we've just had a hearing within the past week where evidence and testimony was presented. If what happened last week has no value the court would not have asked the questions regarding whether the products continue to infringe and would have simply ruled DISH in contempt last year.


----------



## Curtis52 (Oct 14, 2003)

jacmyoung said:


> Good point, I guess Curtis52 wins another round by catching a wrong choice of word of mine


The point is that when one provides a quote, one doesn't need to choose words. There is no such restriction when someone makes something up.


----------



## Greg Bimson (May 5, 2003)

James Long said:


> Live in the past if you must, but we've just had a hearing within the past week where evidence and testimony was presented.


The court is testing whether or not infringement is present using claim constructions from over three years ago. That is the present, in court terminology...


James Long said:


> If what happened last week has no value the court would not have asked the questions regarding whether the products continue to infringe and would have simply ruled DISH in contempt last year.


The court needs to evaluate what has been changed (the lack of an index table), hasn't been changed (the hardware) and that which is claimed to no longer "parse".

The court needs to know the depth of the changes.


----------



## jacmyoung (Sep 9, 2006)

Curtis52 said:


> The point is that when one provides a quote, one doesn't need to choose words. There is no such restriction when someone makes something up.


Point well taken

Now let me ask you one other question.

You said the "parse" as described in the software claims 31 and 61 is in fact referring to the parse done by the PID filter, because even E* admitted that.

And we all know that to achieve the DVR functionalities, a lot of "parsing" needs to be done, because the MPEG A/V streams must be separated, and the frame and time markers of the audio and video streams must be extracted. Since such frame and time marker info are used to allow the DVR to determine where to look for a stored program, where to stop, where to skip forward/backward and how fast to do so.

And we also knwon that the PID filter does not anaylze any of the frame and time marker info, it only analyzes the raw incoming MPEG streams, and throws out the bad bits, and keeps the good bits flowing down the stream.

With that in mind, if you are correct that the software claims 31 and 61 are in fact describing the PID filter as the *only parsing* taking place, nothing else, do you honestly believe the DVR functionalities can be achieved by the TiVo's invention?

Let's remember that at this point, only the two TiVo hardware claims and two software claims are standing, and further more in this proceeding only the two software claims are at issue.

And let's also try not to point out what E* said, and what TiVo said, how about your own opinion? I am sure we are all capable of doing it.

If your honest answer is no, if only the PID is doing the parsing the software as described by the TiVo patent simply cannot achieve any DVR functionalities, then should we at least agree the "parse" as described in the software claims must mean something else? Like analyzing the A/V data, as they are passed down by the PID filter, then some thing identified as the true "physical data source" will try to identify the frame and time markers in the MPEG streams, for the purpose of DVR functionalities?

Now TiVo's DVR technology does that part before the recording to the hard drive, by building an index table to store such frame and time markers, and E*'s old software did the same using the MPEG proessor, as TiVo had pointed out, therefore E* infringed.

Currently the E* new design no longer does so before programs are reocrded to the hard drive, rather after, when the users issue the DVR commands, it uses a statistical estimation relying on a brute force provided by the today's more powerful CPUs.

They both are DVR technologies, only that they perform different functions, in different ways, though to achieve the same results. As such no infringement can be found.


----------



## jacmyoung (Sep 9, 2006)

Greg Bimson said:


> The court is testing whether or not infringement is present using claim constructions from over three years ago. That is the present, in court terminology...The court needs to evaluate what has been changed (the lack of an index table), hasn't been changed (the hardware) and that which is claimed to no longer "parse".
> 
> The court needs to know the depth of the changes.


I know I know, the court had already known E* was in contempt, as far back as 11 months ago, but hey what the heck, TiVo could survive right? No need to issue a contempt on E*, just let it roll, because the judge wants to know more, he is curious you know, this DVR thing intrigues him to no end


----------



## CuriousMark (May 21, 2008)

jacmyoung said:


> They both are DVR technologies, only that they perform different functions, in different ways, though to achieve the same results. As such no infringement can be found.


That is your opinion, please don't present it as fact.

In my opinion the perform the same function, the function of determining where to jump in the program stream during trick play.

In my opinion that do it in similar ways, examining the program stream and collecting data to use in finding the beginning of a GOP and providing an algorithm to use that data to find the beginning of the GOP. The details are slightly different in what data is collected and what algorithm is used. Only the court will tell us whether that difference is more than merely colorable.

Please preface you opinions as such so as to not confuse the reader.


----------



## jacmyoung (Sep 9, 2006)

CuriousMark said:


> ...In my opinion that do it in similar ways, ...


"Similar" is much short of "substantially the same" and not enough to prove infringement.


----------



## CuriousMark (May 21, 2008)

jacmyoung said:


> "Similar" is much short of "substantially the same" and not enough to prove infringement.


Again, you don't KNOW that, it is an opinion. Please quit posting opinions as facts. I think it is substantially the same, just a tweak.


----------



## James Long (Apr 17, 2003)

CuriousMark said:


> Please preface you opinions as such so as to not confuse the reader.


New thread rule:

All statements should be considered opinion. Even those presented in a way that may appear as fact. Perhaps people should be more careful to use "I believe" and other opinion tags, but just because someone states something don't assume they mean it as a fact.

Unless of course they say "This is a fact:" ... and I suggest such language not be used.


----------



## Tom Robertson (Nov 15, 2005)

James Long said:


> New thread rule:
> 
> All statements should be considered opinion. Even those presented in a way that may appear as fact. Perhaps people should be more careful to use "I believe" and other opinion tags, but just because someone states something don't assume they mean it as a fact.
> 
> Unless of course they say "This is a fact:" ... and I suggest such language not be used.


You mean anyone would treat anything on an internet forum as anything other than opinion? :lol:

Thanks for the reminder, James. If there ain't no primary source link in post or nearby, it's an opinion. (Even then, it very likely is an opinion about the facts from the link.) 

Cheers,
Tom


----------



## jacmyoung (Sep 9, 2006)

CuriousMark said:


> Again, you don't KNOW that, it is an opinion. Please quit posting opinions as facts. I think it is substantially the same, just a tweak.


Let me just understand this correctly:

One method states that a physical data source analyzes the in coming A/V data, separates them into A and V streams, identifies the I frame and other time markers and builds an index table out of the info, temporarily stores such info so later some source object may extract such info to help perform DVR trickplays, and this is done before the program is recorded onto the hard drive.

The other method states that no analysis is done to identify any I frame or time marker info before the program is recorded onto the hard drive, only after the program is recorded, and again only after the users begins to playback the program, some element will perform a statistical analysis using a so called brute force provided by the power of the CPU to estimate the location of the program for the purpose of various DVR trickplays.

And you consider the above two methods substantially the same?


----------



## jacmyoung (Sep 9, 2006)

And BTW from the link below:

http://www.fenwick.com/docstore/Publications/Litigation/Legal_FAQ_Patent_Litigation.pdf



> An increasing number of defendants are taking advantage
> of reexamination proceedings in the Patent and Trademark
> Office, where a party can, on either an ex parte or inter
> partes basis, ask that the patent office reconsider whether
> ...


Not saying Judge Folsom will stay the action, but he can, he has the discretion to do so.


----------



## nobody99 (May 20, 2008)

jacmyoung said:


> Not saying Judge Folsom will stay the action, but he can, he has the discretion to do so.


No, he doesn't. "Stay the action" means to stop the trial from proceeding. We've already had a trial. For that reason, the patent is valid in this case regardless of any re-exam until all appeals have been exhaused. Please try to understand this.

As I've said before, it will be years before this occurs - in the unlikely event that the re-exam invalidates TiVo's patent. This case will have long been over.


----------



## jacmyoung (Sep 9, 2006)

nobody99 said:


> No, he doesn't. "Stay the action" means to stop the trial from proceeding. ...


You know so how?



> A district court has discretion to *stay the action before it* where there is a reexamination proceeding ongoing.


The judge in his hearing order said *before him there was this contempt motion by TiVo* and this current hearing/action is in response to such contempt motion.

The above quote says Judge Folsom can stay the current action before him because there is indeed a reexamination proceeding ongoing with the USPTO, isn't it?


----------



## nobody99 (May 20, 2008)

jacmyoung said:


> You know so how?


Do a google search on "patent presumed valid" (in quotes). You'll find countless cases about it. I would have quoted, but there literally thousands of cases.



jacmyoung said:


> a pdf from some law firm said:
> 
> 
> > A district court has discretion to stay the action before it where there is a reexamination proceeding ongoing.
> ...


Let me see if I get this straight. When E* testifies in a way that is contrary to its own prior testimony, and Judge Folsom actually stops them and points it out to them, you dismiss it. But you find it perfectly acceptable to find a PDF written by a law firm as a defense in a new patent infringement suit and then present that as some sort of rule that a district judge must follow. Clearly you can see the hilarity in this premise, right?

Besides, you have taken the quote out of context. If you read your PDF, you'll find that they present reexamination as a defense against an infringement suit.

Sorry, you already lost that suit, and that appeal.

When contempt is found, will you finally admit you were wrong?


----------



## James Long (Apr 17, 2003)

nobody99 said:


> When E* testifies in away that is contrary to its own prior testimony, and Judge Folsom actually stops them and points it out to them, you dismiss it.


When the judge does not understand the testimony, especially in a highly technical case, it is good that he stops and makes sure he understands what is being said correctly.

Fortunately Judge Folsom's job is over for a couple of weeks. He gets to set a timetable once the transcript is available and relax for a while while TiVo and DISH figure out what the results of the hearing should be. THEN Judge Folsom has to get back to work ...


----------



## CuriousMark (May 21, 2008)

jacmyoung said:


> Let me just understand this correctly:
> 
> One method states that a physical data source analyzes the in coming A/V data, separates them into A and V streams, identifies the I frame and other time markers and builds an index table out of the info, temporarily stores such info so later some source object may extract such info to help perform DVR trickplays, and this is done before the program is recorded onto the hard drive.
> 
> ...


One method identifies the I frames and records their positions in a table befor storage. On playback the table is used during trick play to jump forward or back in the stream.

The other method Identifies the I frames and records statistics about their positions in a table on playback. Also during playback the table is used during trick play to guess how far to jump forward or back in the stream, then software scans forward to find the actual I frame before resuming playback. (the scan is the "brute force" to which you refer).

Yes, that sounds substantially the same to me, there is the extra step of the scan, but that is in addition to the parts that are still the same.

The other things you listed in your version are not relevant to the differences between the methods because they are the same for both method. I am only addressing the difference.


----------



## jacmyoung (Sep 9, 2006)

CuriousMark said:


> One method identifies the I frames and records their positions in a table befor storage. On playback the table is used during trick play to jump forward or back in the stream.
> 
> The other method Identifies the I frames and records statistics about their positions in a table on playback. Also during playback the table is used during trick play to guess how far to jump forward or back in the stream, then software scans forward to find the actual I frame before resuming playback. (the scan is the "brute force" to which you refer).
> 
> ...


We just have to agree to disagree.

But while you are at least on the right track in terms of proving infringement, I don't see TiVo doing the same though, maybe they are now after we see the full transcript soon, but so far I have yet seen any evidence they are doing it the way the court said how they should go about proving infringement.


----------



## jacmyoung (Sep 9, 2006)

James Long said:


> ...Fortunately Judge Folsom's job is over for a couple of weeks. He gets to set a timetable once the transcript is available and relax for a while while TiVo and DISH figure out what the results of the hearing should be. THEN Judge Folsom has to get back to work ...


Can you elaborate on that? Did the judge set another timeline for another action?


----------



## jacmyoung (Sep 9, 2006)

nobody99 said:


> Do a google search on "patent presumed valid" (in quotes). You'll find countless cases about it. I would have quoted, but there literally thousands of cases...


True, but the above quote from a reputable legal menu was saying if there is an ongoing reexamination by the USPTO the district court can stay the action before it, whatever that action may be, and wait for the outcome from that reexamination before deciding what to do next.

And let me use an example I posted earlier about the Blackberry case. When the judge threatened an injunction telling RIM they better settled with the patentee, RIM did do so, by settling to pay $600M. But in reality, RIM never paid much at all, they simply continued to press the USPTO to reexamine the patent, and things dragged on. And the winning patentee did not even feel they should go before the judge to complain, in part because their patent was under reexamination.


----------



## James Long (Apr 17, 2003)

jacmyoung said:


> Can you elaborate on that? Did the judge set another timeline for another action?


Only the one I've mentioned several times since it appeared in the minute entry posted on Thursday.


----------



## jacmyoung (Sep 9, 2006)

James Long said:


> Only the one I've mentioned several times since it appeared in the minute entry posted on Thursday.


I got it.

I suspect what happened was due to all the motions and responses from both parties, the FFCL was not completed in time by either party as required in the judge's hearing order, so before the full first-day hearing the judge arranged for both parties to get that last part done soon after the hearing.


----------



## James Long (Apr 17, 2003)

jacmyoung said:


> I got it.
> 
> I suspect what happened was due to all the motions and responses from both parties, the FFCL was not completed in time by either party as required in the judge's hearing order, so before the full first-day hearing the judge arranged for both parties to get that last part done soon after the hearing.


You suspect wrong.

The pre-hearing filings were made by both parties on February 10th in sealed documents. These are NEW documents to be filed AFTER transcripts are made available as noted in the Minute Entry.
DAY 1 - February 17th
9:12 ct/ will ask ptys to order transcript and then set schedule for filing of FFCL (Findings of Fact and Conclusions of Law), these arguments can be addressed by that document;

DAY 3 - February 19th
10:29 ct/ as soon as transcript is filed; I will enter a time table when FFCL are due; have I ruled on all exhibit issues;​


----------



## jacmyoung (Sep 9, 2006)

James Long said:


> You suspect wrong.
> 
> The pre-hearing filings were made by both parties on February 10th in sealed documents...


Do you have a title of the filing to prove the pre-hearing FFCL was complete? As far as I can recall the parties were so busy on the motions and responses and even the judge was drawn in busy making orders, that up until the date of the hearing parties only managed to agree on the witness list and some other matters.

None of us have seen the full transcript except a few TiVo supporters who was sitting in that courtroom making notes, but they have yet willing to share the full story. I wonder why the judge would order FFCL *right at the beginning of the heainrg*, if the pre-hearing FFCL was already complete?



James Long said:


> ...DAY 3 - February 19th
> 10:29 ct/ as soon as transcript is filed; I will enter a time table when FFCL are due; *have I ruled on all exhibit issues;*


That highlighted sentence seems to suggest the judge was trying to make sure all pre-hearing filings were to be taking care of, if not already.

I am more than willing to be called "wrong" if I am proven wrong


----------



## nobody99 (May 20, 2008)

jacmyoung said:


> I am more than willing to be called "wrong" if I am proven wrong



02/10/2009 899 SEALED PATENT DOCUMENT TiVo's Proposed Findings of Fact and Conclusions of Law Preceding February 2009 Evidentiary Hearing on Contempt of the Permanent Injunction. (Krechman, Brian) (*Entered: 02/10/2009*)
02/10/2009 900 Sealed Document EchoStar's Proposed Findings of Fact and Conclusions of Law. (Krevans, Rachel) (*Entered: 02/10/2009*)

You can apologize to the rest of us now.


----------



## jacmyoung (Sep 9, 2006)

nobody99 said:


> 02/10/2009 899 SEALED PATENT DOCUMENT TiVo's Proposed Findings of Fact and Conclusions of Law Preceding February 2009 Evidentiary Hearing on Contempt of the Permanent Injunction. (Krechman, Brian) (*Entered: 02/10/2009*)
> 02/10/2009 900 Sealed Document EchoStar's Proposed Findings of Fact and Conclusions of Law. (Krevans, Rachel) (*Entered: 02/10/2009*)
> 
> You can apologize to the rest of us now.


Not so fast, FFCL is not the same as PFFCL.

I will go back to verify if the judge's hearing order required prehearing FFCL or PFFCL.

After verification, yes the hearing order required prehearing PFFCL, therefore the FFCL required by the judge during the hearing appears a "final" FFCL.

BTW I would speak for myself not for everyone else.


----------



## nobody99 (May 20, 2008)

jacmyoung said:


> Not so fast, FFCL is not the same as PFFCL.


In simple English, please tell me the difference between the two.

Tell me how either TiVo or E* could possible file an _actual_ Finding of Facts and Conclusion of Law rather than a _proposed_ one.

This will be tasty.


----------



## James Long (Apr 17, 2003)

jacmyoung said:


> Do you have a title of the filing to prove the pre-hearing FFCL was complete?


It is your accusation that they were not complete ... leaving it up to YOU to prove your accusation. The facts (yes, facts) stand that within two minutes of the case starting the judge was instructing both sides to order a transcript and prepare a FFCL ... the can't get a transcript until after the hearing in progress and there is nothing else to get a transcript of. At the end of the hearing the same timeline was stated. The part you quoted in bold was in relation to something else (I probably should have trimmed it off of the line).



> None of us have seen the full transcript except a few TiVo supporters who was sitting in that courtroom making notes,


Reading the Minute Entry there were times where the courtroom was cleared - for example :
"11:05 room is cleared to cover schematic exhibit;"
Also the reporter you referred to left early on Wednesday, did not show on Thursday and was not part of in chambers conferences. While it was interesting to read his comments, I don't believe they were offered as a "full transcript" ... just impressions and comments. A full transcript is not yet available.



> I am more than willing to be called "wrong" if I am proven wrong


Prove yourself right.


----------



## jacmyoung (Sep 9, 2006)

James Long said:


> It is your accusation that they were not complete ...


Please, "suspect" does not reach the level of "accusation", besides I did not blame anyone did I?



> Prove yourself right.


Did you know the difference between the FFCL and PFFCL? If so why didn't you tell us?

I raised a legit question, why would the judge ask for an FFCL if parties had already provided the same FFCL?

Now we know what they did was PFFCL, and the judge asked for the final FFCL. My curiosity at least shed some light on how the PFFCL and FFCL are arranged in a hearing setting.

It is a beneficial knowledge we can all share, most of us non-lawyers probably was not aware of such, now we know.


----------



## nobody99 (May 20, 2008)

jacmyoung said:


> Now we know what they did was PFFCL, and the judge asked for the final FFCL. My curiosity at least shed some light on how the PFFCL and FFCL are arranged in a hearing setting.


I will ask again. Do you the difference between a PFFCL and a FFCL?


----------



## jacmyoung (Sep 9, 2006)

nobody99 said:


> I will ask again. Do you the difference between a PFFCL and a FFCL?


My guess? One is "proposed" and one is "final". Seemed pretty obvious to me unless any lawyers want to chip in.


----------



## nobody99 (May 20, 2008)

jacmyoung, maybe a different approach will help so the lightbulb will go off for you.

Answer this simple question: What will the court issue once it makes a decision about this contempt motion? What will it use as a basis for that issuance?

Can you explain to me how E* or TiVo can issue a FFCL that is _not_ a proposal?


----------



## nobody99 (May 20, 2008)

This might help too

Glossary



> Finding Of Fact: The court's determination of which side's version of the facts of a case are correct


Each side sumbits its own version. Gasp! Could that be the _proposed_ version?!?!


----------



## jacmyoung (Sep 9, 2006)

What each party had submitted prior to the hearing was each's own required "proposed" FFCL, and what the judge ordered on 02/17 or 02/19 for each party to do was to submit each's "final" FFCL.

Surely you can see the difference between a "proposed" and "final"? Just read your own link above, I did not say "proposed", your own doc said so.


----------



## nobody99 (May 20, 2008)

jacmyoung said:


> What each party had submitted prior to the hearing was each's own required "proposed" FFCL, and what the judge ordered on 02/17 or 02/19 for each party to do was to submit each's "final" FFCL.
> 
> Surely you can see the difference between a "proposed" and "final"? Just read your own link above, I did not say "proposed", your own doc said so.


This is what James said:



James Long said:


> The pre-hearing filings were made by both parties on February 10th in sealed documents...


Can you show me in that quote where it says anything about proposed otherwise?

You are the one that started talking about it. Here, for example,



jacmyoung said:


> I will go back to verify if the judge's hearing order required prehearing FFCL or PFFCL


Look, it's ok to be wrong. I do it all the time. You are completely confused by this. The _only_ FFCL that E* or TiVO can submit is a _proposed_ one. You keep bring up that it was either final or proposed - you are completely mixing up two totally separate thing. _*By definition*_, any FFCL that E* or TiVo submits is proposed. There is no other kind.

FFCL - Issued by the court as a final decision
PFFCL - Submitted to the court

Neither TiVo nor E* can issue a final decision. Do you get it now?


----------



## James Long (Apr 17, 2003)

Apparently there is a FFFCL that the court system doesn't know about? 
Stick with the filings and you're less likely to go wrong.

Regardless of the labels and misunderstandings of what has happened, the next step is as I stated ... filings by both sides based on transcripts that are yet to be produced and THEN a final decision by Judge Folsom. (Unless Judge Folsom decides to hold another hearing for some reason ... he does seem to do unexpected things. )


----------



## jacmyoung (Sep 9, 2006)

James Long said:


> Apparently there is a FFFCL that the court system doesn't know about?
> Stick with the filings and you're less likely to go wrong.
> 
> Regardless of the labels and misunderstandings of what has happened, the next step is as I stated ... filings by both sides based on transcripts that are yet to be produced and THEN a final decision by Judge Folsom. (Unless Judge Folsom decides to hold another hearing for some reason ... he does seem to do unexpected things. )


"FFFCL" now that is a good one.

Actually Judge Folsom was reported as saying he would not rule on the infringement issue immediately and might hold another hearing to further determine the infringement issue, so it will not be unexpected if it happens.

He did not say anything about the timing of the software colorable difference issue ruling, at least not from that report.


----------



## jacmyoung (Sep 9, 2006)

nobody99 said:


> ...The _only_ FFCL that E* or TiVO can submit is a _proposed_ one. You keep bring up that it was either final or proposed - you are completely mixing up two totally separate thing. _*By definition*_, any FFCL that E* or TiVo submits is proposed. There is no other kind.
> 
> FFCL - Issued by the court as a final decision
> PFFCL - Submitted to the court
> ...


Really, what do you think the FFCL below was that the judge ordered them to file?

"DAY 1 - February 17th
9:12 ct/ will ask ptys to order transcript and then set schedule for filing of FFCL (Findings of Fact and Conclusions of Law), these arguments can be addressed by that document;"

FFCL is not a final decision, rather a final filing by each party.

The final decision will be the judge's ruling.


----------



## Tom Robertson (Nov 15, 2005)

I can't pretend to know enough to understand if there are PFFCLs, FFFCLS, or JFFFCLS (Judge Folsom FFCLs...) 

Perhaps it's best to wait and see what filings occur in the next few weeks. 

Cheers,
Tom


----------



## nobody99 (May 20, 2008)

jacmyoung said:


> Really, what do you think the FFCL below was that the judge ordered them to file?


A proposed Finding of Fact and Conclusion of Law. Just like I've said all along. Just like James said it was filed on February 10.

And some day in the near future, the Judge will issue the real Finding Of Fact and Conclusion of Law based on what each side proposed.

Simple question - and please, just answer this simple question. Keep in mind that the stuff you quoted from the court is a shorthand transcript.

You know that E* and TiVo can only submit a _proposed _FFCL, right?


----------



## dgordo (Aug 29, 2004)

I cant believe this had turned into an argument over FFCL.

This is very simple.

Before a hearing parties submit their proposed findings of fact and conclusions of law. It is similar to a brief that parties would submit in an appellate court. It is what they believe is the relevant law and facts.

The judge reviews these submissions and issue his decision as to which of the facts and laws are the correct ones to be used.


----------



## nobody99 (May 20, 2008)

Thank you dgordo.


----------



## jacmyoung (Sep 9, 2006)

dgordo said:


> I cant believe this had turned into an argument over FFCL.
> 
> This is very simple.
> 
> ...


Then what was the FFCL Judge Folsom asked the parties to file below:

""DAY 1 - February 17th
9:12 ct/ will ask ptys to order transcript and then set schedule for filing of FFCL (Findings of Fact and Conclusions of Law), these arguments can be addressed by that document;"

I know we can wait for the full transcript to find out, but since dgordo is a lawyer maybe he can explain for us. Sounded like a precedural thing.


----------



## CuriousMark (May 21, 2008)

jacmyoung said:


> Then what was the FFCL Judge Folsom asked the parties to file below:
> 
> ""DAY 1 - February 17th
> 9:12 ct/ will ask ptys to order transcript and then set schedule for filing of FFCL (Findings of Fact and Conclusions of Law), these arguments can be addressed by that document;"
> ...


He was unhappy with the prehearing cut at those documents for some reason and wants both sides to do them over and include fixes for whatever it was that he found to be deficient. It seems pretty straightforward. Apparently whatever they were talking about before the judge at that time was missing from the PFFCLs submitted before the hearing.


----------



## nobody99 (May 20, 2008)

CuriousMark said:


> He was unhappy with the prehearing cut at those documents for some reason and wants both sides to do them over and include fixes for whatever it was that he found to be deficient. It seems pretty straightforward. Apparently whatever they were talking about before the judge at that time was missing from the PFFCLs submitted before the hearing.


And the new ones were still proposed FFCL's. And TiVo filed theirs on February 17.


----------



## CuriousMark (May 21, 2008)

nobody99 said:


> And the new ones were still proposed FFCL's. And TiVo filed theirs on February 17.


Which is very interesting. Why wouldn't TiVo want to wait for the transcript to come out as the judge suggested? They must be very confident that whatever they updated won't change based on the transcript. Maybe Dish has more to change to satisfy the judge, and they need the transcript to do so. Not that it matters much.

I am eager to see the transcript, I want to follow the tech discussions.


----------



## jacmyoung (Sep 9, 2006)

CuriousMark said:


> He was unhappy with the prehearing cut at those documents for some reason and wants both sides to do them over and include fixes for whatever it was that he found to be deficient. It seems pretty straightforward. Apparently whatever they were talking about before the judge at that time was missing from the PFFCLs submitted before the hearing.


After a bit of re-reading, I think I was at least partially correct in the initial speculation. Even though parties had filed their PFFCLs on 2/10, at the beginning of the hearing some new issues were raised by both parties. The judge asked them to wait for the full transcript of the hearing when available, then re-file their PFFCLs, and include any of those new issues in the documents. Only that he referred them to FFCL, without using the word "proposed".

When I just wrote the above I saw your post, I decided to include yours too, so we essentially agree.


----------



## jacmyoung (Sep 9, 2006)

nobody99 said:


> And the new ones were still proposed FFCL's. And TiVo filed theirs on February 17.


Got a title for that filing?

Whatever that 2/17 TiVo's filing was unlikely the same FFCL the judge asked TiVo to do on the same day.


----------



## jacmyoung (Sep 9, 2006)

CuriousMark said:


> Which is very interesting. Why wouldn't TiVo want to wait for the transcript to come out as the judge suggested? They must be very confident that whatever they updated won't change based on the transcript. ...


I would consider that a very unwise move if true.


----------



## nobody99 (May 20, 2008)

jacmyoung said:


> Got a title for that filing?
> 
> Whatever that 2/17 TiVo's filing was unlikely the same FFCL the judge asked TiVo to do on the same day.


Why yes, yes I do (thanks to certain people living near lobsters)



> SEALED PATENT DOCUMENT. TiVo's Proposed Findings of Fact and Conclusions of Law (as provided to the Court with table of contents and table of authorities) (Krechman, Brian) (Entered: 02/17/2009)





> I would consider that a very unwise move if true.


Questioning the legal decision of a guy who already won you $105 million is unwise. Hmm. Ok.

I'd say calling him unwise is a very unwise move :lol:


----------



## James Long (Apr 17, 2003)

nobody99 said:


> And the new ones were still proposed FFCL's. And TiVo filed theirs on February 17.


It should be rejected. The judge's SPECIFIC order was to order a transcript and when that transcript was available HE would set a timetable for the FFCLs.

If TiVo considers their Feb 17th FFCL to be the one the judge ordered they are acting in ignorance and arrogance. Perhaps they were updating the pre-hearing FFCL ... but they certainly were not filing the post-hearing FFCL before the hearing was completed.


----------



## nobody99 (May 20, 2008)

James Long said:


> If TiVo considers their Feb 17th FFCL to be the one the judge ordered they are acting in ignorance and arrogance. Perhaps they were updating the pre-hearing FFCL ... but they certainly were not filing the post-hearing FFCL before the hearing was completed.


You are probably right about updated the pre-hearing one, but until we see the full text transcript we won't know, and even then we still might no know.

But in any event, I doubt whatever they did was a "very unwise move."


----------



## Tom Robertson (Nov 15, 2005)

nobody99 said:


> ...
> But in any event, I doubt whatever they did was a "very unwise move."


Certainly seems a bit premature for us kibitzers to declare as an "unwise move" from this point of view.


----------



## James Long (Apr 17, 2003)

Tom Robertson said:


> Certainly seems a bit premature for us kibitzers to declare as an "unwise move" from this point of view.


I don't believe anyone here believes that TiVo's Feb 17th filing is the FFCL that they were asked to file after reviewing the transcript. So there is no "unwise move" to speak of. Whatever happened, it isn't what we'd consider unwise.

Illogical? Unneeded? Confusing? Perhaps. But not "unwise".


----------



## HiDefGator (Nov 20, 2005)

So I guess now Folsom has some time to kick back and watch some TV while everyone waits on the transcript, then he keeps waiting on the new PFFCL's. Only then will he actually have to make a decision? And then Folsom has to write it all down, and justify it with a bunch of case law, and have it reviewed twice. So, what about 2 months before we hear from him again?


----------



## jacmyoung (Sep 9, 2006)

nobody99 said:


> ...But in any event, I doubt whatever they did was a "very unwise move."


If what they did, as you initially suggested, was in response to the judge's 2/17 order for the post hearing filing, then not only was it unwise, but disrespect for the judge.

But as I speculated the TiVo's 2/17 FFCL filing had nothing to do with what the judge ordered on 2/17.


----------



## jacmyoung (Sep 9, 2006)

HiDefGator said:


> ...So, what about 2 months before we hear from him again?


It is possible about 2 months before the parties file their FFCLs, it all depends on what the judge will set that filing schedule.


----------



## James Long (Apr 17, 2003)

jacmyoung said:


> But as I speculated the TiVo's 2/17 FFCL filing had nothing to do with what the judge ordered on 2/17.


Or "as I continue to speculate" ...

Although I tend to agree that there will be more FFCLs filed after the transcripts.

2 months? I don't expect that. Perhaps two weeks to file the FFCLs after the transcript is available. Perhaps dgordo will help, but are replies to FFCLs permitted or does each side have to make their own case independently?


----------



## nobody99 (May 20, 2008)

jacmyoung said:


> If what they did, as you initially suggested, was in response to the judge's 2/17 order for the post hearing filing, then not only was it unwise, but disrespect for the judge.


Did I ever suggest that??


----------



## HiDefGator (Nov 20, 2005)

James Long said:


> Or "as I continue to speculate" ...
> 
> Although I tend to agree that there will be more FFCLs filed after the transcripts.
> 
> 2 months? I don't expect that. Perhaps two weeks to file the FFCLs after the transcript is available. Perhaps dgordo will help, but are replies to FFCLs permitted or does each side have to make their own case independently?


I thought I read somewhere that the transcript would take around 2 weeks to be released. Then 2 weeks for the PFFCL's to get filed. Another month for Folsom, that pretty much comes close to 2 months from now for a decision to come out.


----------



## jacmyoung (Sep 9, 2006)

James Long said:


> ...Perhaps dgordo will help, but are replies to FFCLs permitted or does each side have to make their own case independently?





dgordo said:


> ...This is very simple.
> 
> *Before a hearing* parties submit their proposed findings of fact and conclusions of law. It is similar to a brief that parties would submit in an appellate court. It is what they believe is the relevant law and facts.
> 
> The judge reviews these submissions and issue his decision as to which of the facts and laws are the correct ones to be used.


Sounded to me there should not be FFCL filings after the hearing, but maybe only if the judge orders them?


----------



## James Long (Apr 17, 2003)

HiDefGator said:


> ... that pretty much comes close to 2 months from now for a decision to come out.


Please check the post that I was replying to that suggested that it would be two months before the FFCLs were filed.

FYI: Two months before a decision would be quick, IMHO.


----------



## jacmyoung (Sep 9, 2006)

nobody99 said:


> Did I ever suggest that??


Yes you did. The "new ones" were referring to the ones the judge ordered on 2/17:



nobody99 said:


> And the new ones were still proposed FFCL's. And TiVo filed theirs on February 17.


And you got CuriousMark all confused:



CuriousMark said:


> Which is very interesting. Why wouldn't TiVo want to wait for the transcript to come out as the judge suggested? They must be very confident that whatever they updated won't change based on the transcript. Maybe Dish has more to change to satisfy the judge, and they need the transcript to do so. Not that it matters much.
> 
> I am eager to see the transcript, I want to follow the tech discussions.


----------



## jacmyoung (Sep 9, 2006)

James Long said:


> ...FYI: Two months before a decision would be quick, IMHO.


Consider how this whole thing has been, most certainly yes.


----------



## CuriousMark (May 21, 2008)

jacmyoung said:


> And you got CuriousMark all confused:


I am not confused any more, now that I know that the filing in question is not in response to the judges request.


----------



## nobody99 (May 20, 2008)

jacmyoung said:


> Yes you did. The "new ones" were referring to the ones the judge ordered on 2/17


I'm not even sure what you're suggesting I'm saying.

Let's look at that again:



nobody99 said:


> CuriousMark said:
> 
> 
> > He was unhappy with the *prehearing cut at those documents for some reason and wants both sides to do them over and include fixes for whatever it was that he found to be deficient.* It seems pretty straightforward. Apparently whatever they were talking about before the judge at that time was missing from the PFFCLs submitted before the hearing.
> ...


The new ones were the do-over. Sheesh, I can probably even guess what was wrong with them:



> 2/10/09 filing said:
> 
> 
> > SEALED PATENT DOCUMENT TiVo's Proposed Findings of Fact and Conclusions of Law Preceding February 2009 Evidentiary Hearing on Contempt of the Permanent Injunction. (Krechman, Brian) (Entered: 02/10/2009)
> ...


You think maybe it's the same one as February 10th, but includes a table of contents and table of authorities?

This is how it usually works as far as I know, and I don't see why it would be any different in this case:

Each side prepares a proposed FFCL.
Each side reads the others' FFCL.
Based on this, the modify and submit a final FFCL.


----------



## James Long (Apr 17, 2003)

> And the new ones were still proposed FFCL's. And TiVo filed theirs on February 17


The suggestion conveyed is that the ones filed February 17th were the new ones requested by the judge.
Did you mean to convey that suggestion or was that simply a mistake?

(The ones ordered Feb 17th and Feb 19th were post transcript.)


----------



## nobody99 (May 20, 2008)

James Long said:


> The suggestion conveyed is that the ones filed February 17th were the new ones requested by the judge.
> Did you mean to convey that suggestion or was that simply a mistake?
> 
> (The ones ordered Feb 17th and Feb 19th were post transcript.)


I'm not sure what they were, but they certainly weren't the final ones (which are modified after seeing DISH's FFCL).


----------



## jacmyoung (Sep 9, 2006)

CuriousMark said:


> I am not confused any more,...


That makes two of us, for once


----------



## jacmyoung (Sep 9, 2006)

nobody99 said:


> ...This is how it usually works as far as I know, and I don't see why it would be any different in this case:
> 
> Each side prepares a proposed FFCL.
> Each side reads the others' FFCL.
> Based on this, the modify and submit a final FFCL.


Do you realize you have just pretty much agreed with me after all?

I said the 2/10 filings were PFFCLs, and the judge ordered post-hearing FFCLs would be the final FFCLs. So what was all the hostility about?

Now to confuse things more, I no longer think there is really much difference between the PFFCLs and the "final" FFCLs. They may all be called PFFCLs or simply FFCLs. This case shows us that the FFCLs can be amended, not once but a few times, as long as the judge allows them or orders such supplimental filings, before or after the hearing. Though dgordo seemed to indicate FFCLs may only be filied *before the hearing*. I hope he can clarify this.

In the end, I suspect all the FFCL filings will be viewed as a whole by the judge when he tries to make his final ruling.


----------



## Budget_HT (Jun 4, 2003)

I am sensing that this whole scenario of the hearing followed by submissions of FFCL documents is similar to a legal process I was involved in years ago.

In my experiences, the issues were labor relations and/or union certifications and jurisdiction, and the binding decisions were provided by the NLRB staff. The process of gathering facts was a hearing before an NLRB hearing officer, whose job it was to ensure that facts and other testimony were captured accurately and legally on the record.

The transcript of that hearing was used by each attorney to file a brief, the contents of which had to be based solely on the record from the hearing. Statements and conclusions made in the briefs had to cite specific references to content of the hearing transcript.

My role was a technical subject-matter-expert advisor to our attorney. In pre-hearing preparation sessions, a strategy was developed and a listing of required facts and expert opinions was made. This list was bashed against the list of witnesses for the other side, with us determining who would most likely be able to provide needed information. Our attorney was expert at getting nuggets of necessary facts and opinions from witnesses for the other side, sprinkled within a mix of responses to unimportant "decoy" questions. This provided far greater credibility to the information than if it had come from "our side." He was most capable of capturing the info needed for his "case" in a non-sequential, random manner that in no way suggested his approach or his goals. Worst case, he was prepared to question me and a few others to gather any missing pieces for his case. Only once did I ever get to take the stand because he nearly always succeeded in getting the necessary info beforehand. 

I have to say that our attorney was one of the most intelligent and brilliant people I have ever met. He refused to belittle or bad-mouth anyone. He had more true integrity than most people I know. Besides being fully trained and qualified, he was gifted with an ability to achieve instant respect from those around him, whether friend or foe. And he earned and truly deserved that respect.

With that background, I realize that I have no basis for speculation or opinions worth anything in the TiVo/Echostar case. We are so far removed from the actual testimony, and so unable to interpret from that testimony just where each legal team is headed. I see this and prior threads as entertaining banter and debates over things that most likely do not matter in this case.

Like most evreyone else reading here, I am very interested in the outcome and justification that will be provided by the court. I don't pretend to know enought to try and second guess the plans and goals of any of the involved legal staff, including the judge himself.


----------



## nobody99 (May 20, 2008)

jacmyoung said:


> Do you realize you have just pretty much agreed with me after all?


No, I didn't.



jacmyoung said:


> Now to confuse things more, I no longer think there is really much difference between the PFFCLs and the "final" FFCLs. They may all be called PFFCLs or simply FFCLs.


Again, you are confusing the issue. A "final" FFCL, when submitted by either party, is stilled a _proposed _FFCL.

Let's drop it, ok?


----------



## dgordo (Aug 29, 2004)

James Long said:


> Perhaps dgordo will help, but are replies to FFCLs permitted or does each side have to make their own case independently?





jacmyoung said:


> Sounded to me there should not be FFCL filings after the hearing, but maybe only if the judge orders them?


Generally replies to FFCLs are not made, these replies are made in the hearings/ oral arguments, etc.

Normally they are not made after the hearing unless requested by the judge. It is hard to tell without seeing a transcript but my guess is that the FFCLs didn't address all the points Folsom wanted addressed so he asked for them to be redone.


----------



## jacmyoung (Sep 9, 2006)

dgordo said:


> Generally replies to FFCLs are not made, these replies are made in the hearings/ oral arguments, etc....so he asked for them to be redone.


Except in this case it appears TiVo replied to FFCLs on 2/17 through a filing without the judge's request to do so. Which may indicate that TiVo might have realized their weak initial FFCL position and wanted to make changes or additions, what do you think CuriousMark?

If the judge indeed asked them to have the FFCLs *redone*, that seems to imply all the earlier FFCLs would not be submittable, only the "final" FFCLs?


----------



## jacmyoung (Sep 9, 2006)

nobody99 said:


> ...Let's drop it, ok?


Only if you admit wrong

Just kidding, I will follow your advice this time.


----------



## nobody99 (May 20, 2008)

jacmyoung said:


> TiVo might have realized their weak initial FFCL position


Oh, so now you've read some tea leaves and somehow decided their first FFCL was weak and that they better fix it or else. Wow, I think that takes the cake for you jacmyoung in terms of crazy suggestions. :lol:


----------



## jacmyoung (Sep 9, 2006)

nobody99 said:


> Oh, so now you've read some tea leaves and somehow decided their first FFCL was weak and that they better fix it or else. Wow, I think that takes the cake for you jacmyoung in terms of crazy suggestions. :lol:


I did not ask for your opinion but from CuriousMark, but your point well taken.


----------



## Doug Brott (Jul 12, 2006)

Folks .. Let's lay off the personal attacks .. If you can't make your point without poking a stick at someone else .. then, well, you don't have a good point .. so don't make it.

Thank You.


----------



## CuriousMark (May 21, 2008)

jacmyoung said:


> Except in this case it appears TiVo replied to FFCLs on 2/17 through a filing without the judge's request to do so. Which may indicate that TiVo might have realized their weak initial FFCL position and wanted to make changes or additions, what do you think CuriousMark?


If you consider the minor omission of table of authorities to be weakness, but that is REALLY a stretch. It is clear it was an update to address an essentially secretarial issue and no indication of weakness whatsoever. My guess is that the actual content of the FFCL didn't change at all.


----------



## jacmyoung (Sep 9, 2006)

CuriousMark said:


> If you consider the minor omission of table of authorities to be weakness, but that is REALLY a stretch. It is clear it was an update to address an essentially secretarial issue and no indication of weakness whatsoever. My guess is that the actual content of the FFCL didn't change at all.


We may never find out exactly why TiVo had to refile, but according to dgordo, such practice is usually not allowed without the judge's permission, correct me if I am wrong dgordo.

But I hope you see my point, you used the exact same filing to make a "minor" assertion that it might have shown the weekness on E*'s part for not immediately doing the same with TiVo.


----------



## dgordo (Aug 29, 2004)

jacmyoung said:


> We may never find out exactly why TiVo had to refile, but according to dgordo, such practice is usually not allowed without the judge's permission, correct me if I am wrong dgordo.
> 
> But I hope you see my point, you used the exact same filing to make an "minor" accertion that it might have shown the weekness on E*'s part for not immediately doing the same with TiVo.


I never said they can not be modified, only that normally a party does not reply to the other parties FFCL, except in the hearing.


----------



## James Long (Apr 17, 2003)

[909] NOTICE by Echostar Satellite LLC, Echostar Communications Corporation, Echostar DBS Corporation, Dish Network Corporation, Echosphere Limited Liability Company (EchoStar's Notice of Submission of Courtesy Copies of its Exhibit List and Deposition Designations) (Attachments: # (1) Exhibit A-C)

Attached!


----------



## nobody99 (May 20, 2008)

James Long said:


> [909] NOTICE by Echostar Satellite LLC, Echostar Communications Corporation, Echostar DBS Corporation, Dish Network Corporation, Echosphere Limited Liability Company (EchoStar's Notice of Submission of Courtesy Copies of its Exhibit List and Deposition Designations) (Attachments: # (1) Exhibit A-C)
> 
> Attached!


Apparently they are using you as a defense:



> 10/26/2006 "DVR 522 - L4.11
> Software version," DBSTalk.com, Dish Network Satellite Receiver Forums, Standard Definition Receiver Support Forum (Bates Nos. ECHOT1000-101646 to 101664)


Maybe to "prove" when software was downloaded? Man, this is bad, bad news for DISH (no offense to dbstalk of course). LOL.


----------



## James Long (Apr 17, 2003)

The referenced thread http://www.dbstalk.com/showthread.php?t=68411

Others referenced here at DBSTalk:
2/5/2007 "P3.65 Buggy software release," DBSTalk.com, Dish Network Satellite Receiver Forums, Standard Definition Receiver Support Forum (Bates Nos. ECHOT1000-101528 to 101575)
1/15/2007 "501,508," DBSTalk.com, Dish Network Satellite Receiver Forums, Standard Definition Receiver Support Forum (Bates Nos. ECHOT1000-101576 to 101605)
2/2/2007 "Records 1 minute short," DBSTalk.com, Dish Network Satellite Receiver Forums, Standard Definition Receiver Support Forum (Bates Nos. ECHOT1000-101632 to 101640)

Yes, I guess someone noticed that the software changed.


----------



## scooper (Apr 22, 2002)

nobody99 said:


> Apparently they are using you as a defense:
> 
> Maybe to "prove" when software was downloaded? Man, this is bad, bad news for DISH (no offense to dbstalk of course). LOL.


As stated in the thread - you want to find problems quick ? - Give it to the end users - they will find bugs VERY quickly...


----------



## jacmyoung (Sep 9, 2006)

Good to see all the bug reports on both DBSTalk and the other site during the new software download period are used as evidence, one particular caught my eyes was a report of the trickplay "1 minute short."

I guess the so called "brute force statistic analysis" did have its growing pain



scooper said:


> As stated in the thread - you want to find problems quick ? - Give it to the end users - they will find bugs VERY quickly...


In that case, I suspect it was not just to find problems quick, but to replace the old design with the new quickly to reduce future liability, and the end users might have suffered a bit more than usual as a result


----------



## nobody99 (May 20, 2008)

jacmyoung said:


> In that case, I suspect it was not just to find problems quick, but to replace the old design with the new quickly to reduce future liability, and the end users might have suffered a bit more than usual as a result


I agree with all of that. But that doesn't make it a good source for evidence at a patent infrigement trial. In fact, if I were Judge Folsom, I'd probably be doing a double-take at this.

Judge: When did you download the new version?
DISH: April 1, 2006
Judge: And how an you prove this?
DISH: You can read it on the internets


----------



## James Long (Apr 17, 2003)

> 5015 - Source code excerpts cited in 1/13/2009 Expert Report of Dr. V. Thomas Rhyne (Highly Sensitive Confidential - Subject to Protective Order - Attorneys' Eyes Only)


Didn't someone post that Dr. Rhyne had not seen the source code?


----------



## nobody99 (May 20, 2008)

James Long said:


> Didn't someone post that Dr. Rhyne had not seen the source code?


Someone posted that he testified that he did not review it.

But it doesn't matter, does it. As jacmyoung has pointed out, it was silly to ever expect him to look at it


----------



## nobody99 (May 20, 2008)

Here's what was reported from the scene of the trial:



> Lawrence Aaronson, the jr. partner from Fish and Richardson. did most of the opinion work. get credentials. EE< then became attorney. worked at GE he wrote sattelite communication software. he went to Motorola as in house counsel in broad band. Good witness.
> 
> Mr. Chu gets up, he is on this guy like a shark... started asking about 1 buffer vs. ten buffers vs. one buffer with 10 sections/compartments. They guy suddenly became unqualified. my next thought and note is; "did they get tricked by e*?" JF is watching Chu intently, they entire court was watching. Lawrence never asked to see the source code, basically the written software to make this stuff work. even said in his deposition that it would best be left up to someone at e* or a code writer to analyze.. They, no one from e* or the lawfirm, cannot explain why nobody reviewed the source code, their work around. this was picked up as a sticking point by the direct tv guy as he told me that was the biggest thing he saw thus far.
> 
> Opinion is, as expressed by 4 different, unrelated observers. E* was telling their attorneys at fish what they needed to hear in order to write a good opinion letter. The attorneys never looked far enough to see if what they were being told was true. They were told about alledged changes, but really nothing was changed except the terminology.


----------



## James Long (Apr 17, 2003)

Ahhh ... different expert. Makes sense. Carry on!

Although the comment that nobody reviewed the code seems wrong if Dr. Rhyne had excerpts in his report.
Dr Rhyne's report was dated January 2009 so it wasn't the original one DISH relied on to leave their receivers active.


----------



## jacmyoung (Sep 9, 2006)

James Long said:


> Ahhh ... different expert. Makes sense. Carry on!
> 
> Although the comment that nobody reviewed the code seems wrong if Dr. Rhyne had excerpts in his report.
> Dr Rhyne's report was dated January 2009 so it wasn't the original one DISH relied on to leave their receivers active.


I thought the attorney did not review the source code. Dr. Rhyne is not an attorney rather an expert witness, isn't he?

It makes sense that the attorney only reviews what the engineers and experts had described what the source code revealed and then drawn legal opinion on it.

As a not too close example, a murder trial may include police testifying as witnesses that actually saw the alleged crime scene, and a 50-lbs ax used in the crime, a doctor may testify on behalf of the defendant on his medical conditions. The police's job is to verify that the crime was committed and the murder weapon, and doctor's job may be to explain why the defendant may not be capable of the crime for example if the medical review reveals he is not capable of lifting more than 25-lbs. In that case the doctor does not need to personally look at the ax and weigh it, he does not even have to refer to the ax at all, his has a different job, to offer an expert medical opinion.

Another interesting info I never mentioned before, TiVo had reported to the court how much it spent during the last jury hearing for all materials and witnesses, and the total was over $333K, that did not even include attorney charges, not to mention all the cost not part of that jury hearing.

A single hearing can cost so much without even adding the attorney bills. This is crazy. No wonder TiVo wanted E* to pay for those cost, unfortunately the judge did not give it to them.


----------



## jacmyoung (Sep 9, 2006)

> ...They, no one from e* or the lawfirm, cannot explain why nobody reviewed the source code, their work around. this was picked up as a sticking point by the direct tv guy as he told me that was the biggest thing he saw thus far.


It is always interesting to read that TiVo person's own impression sitting in the hearing. I can't help but wonder if he knew what he was talking about.

Nobody from E* reviewed the source code? And it was picked up by a DirecTV guy? What was he a DirecTV lawyer trying to help TiVo?

The exhibit list above contains many source code references, I am sure E* reviewed the source code before they decided to make them available for the court and TiVo to see. Wouldn't you think?

To even come up with such assertion is just beyond me.

BTW, why is he not revealing everything he heard in that courtroom yet? I thought he would do that in a week?


----------



## CuriousMark (May 21, 2008)

jacmyoung said:


> Nobody from E* reviewed the source code?


That is not at all what was said, you are jumping to a conclusion. What was said is that E* did NOT ask Fish and Richardson to review the source code after completing the changes to get confirmation that the change as implemented complied with Fish and Richardson's analysis of non-infringement.

That is all that was said, and the comment is that a D* observer, not necessarily a lawyer, found that omission significant. Whether it is truly significant or not will be up to the court. Trying to reach conclusions by misinterpreting what was said is a waste of everyone's time.


----------



## Greg Bimson (May 5, 2003)

jacmyoung said:


> The exhibit list above contains many source code references, I am sure E* reviewed the source code before they decided to make them available for the court and TiVo to see. Wouldn't you think?


I realize the original quote is what gives you heartache...


> They, no one from e* or the lawfirm, cannot explain why nobody reviewed the source code, their work around. this was picked up as a sticking point by the direct tv guy as he told me that was the biggest thing he saw thus far.


I read this as _legal counsel_ did not review the changes.

One must remember that _before_ the Amended Final Order and Permanent Injunction was entered, DISH/SATS procured a legal opinion from outside counsel Fish and Richardson. The document that resulted was mainly written by the aforementioned Lawrence Aaronson.

DISH/SATS then did their design-around.

But where was that design-around evaluated? Outside counsel never evaluated it against the letter from Fish and Richardson. DISH/SATS may have evaluated the design-around against that letter, but according to everything seen so far, it isn't known if that is the case.

However, what is more damning is DISH/SATS trying to use the forums as evidence that the design-around made to the receivers. For some reason, DISH/SATS believes they need to show the design-around actually hit the receivers, and there isn't an internal mechanism at DISH/SATS to prove it.

That is DISH/SATS counsel back on their heels, as "the internets" are not evidence.


----------



## James Long (Apr 17, 2003)

Greg Bimson said:


> However, what is more damning is DISH/SATS trying to use the forums as evidence that the design-around made to the receivers. For some reason, DISH/SATS believes they need to show the design-around actually hit the receivers, and there isn't an internal mechanism at DISH/SATS to prove it.


Customer comments on independent forums was not the ONLY evidence of a software change. DISH also supplied records of receivers targeted and call center records from the time of the change. They just used us as corroberation. "See, these guys saw a change ..."

There is plenty of internal evidence from DISH. Have you read the list?


----------



## nobody99 (May 20, 2008)

jacmyoung said:


> BTW, why is he not revealing everything he heard in that courtroom yet? I thought he would do that in a week?


Oh it's been revealed, you just have to know where to look.


----------



## nobody99 (May 20, 2008)

Greg Bimson said:


> > They, no one from e* or the lawfirm, cannot explain why nobody reviewed the source code, their work around. this was picked up as a sticking point by the direct tv guy as he told me that was the biggest thing he saw thus far.
> 
> 
> I read this as legal counsel did not review the changes.


Your reading is exactly correct. The Fish and Richardson guy Lawrence Aaronson did not see any source code, nor was it offered to him. He went on to write a legal opinion that the software did not infringe. That's what the DirecTV guy who was in attendance said was damning.

And jacmyoung, let's be clear about this. This guy was qualified to view the source code and give his impressions. He wrote satellite comm software for GE. You could literally say he was a rocket scientist.:lol:

Maybe this is dwelling on this point to much. As others have said, the only reason this matters is if the software still infringes, this could go towards willful infringement.


----------



## Greg Bimson (May 5, 2003)

James Long said:


> Customer comments on independent forums was not the ONLY evidence of a software change. DISH also supplied records of receivers targeted and call center records from the time of the change. They just used us as corroberation. "See, these guys saw a change ..."
> 
> There is plenty of internal evidence from DISH. Have you read the list?


The only "evidence" is that some people received a change, corroborated by some customers calling in and a web forum. That is hardly an internal list of customers that received the download.

Unless a customer gave DISH their software version and DISH tracked it, there was no internal tracking at DISH of each receiver adjudged infringing that received the new software.


----------



## nobody99 (May 20, 2008)

Greg Bimson said:


> Unless a customer gave DISH their software version and DISH tracked it, there was no internal tracking at DISH of each receiver adjudged infringing that received the new software.


And to revisit DISH's primary defense, KSM,



> The attempt to see how near one can come to an infringement and escape it involves great danger, and is not looked upon with favor by courts.


The fact that they don't know (and apparently didn't even try to capture) the exact date of the new software's download is striking.


----------



## HobbyTalk (Jul 14, 2007)

Most Dish users would agree that it is near impossible (in fact may be impossible) for a receiver in use not to have gotten the upgrade. If it is in use as there is no way for an end user to prevent an upgrade from happening. Even if a unit is unplugged from the wall, when it is restarted it will look for and upgrade when a new software version is available.


----------



## CuriousMark (May 21, 2008)

HobbyTalk said:


> Most Dish users would agree that it is near impossible (in fact may be impossible) for a receiver in use not to have gotten the upgrade. If it is in use as there is no way for an end user to prevent an upgrade from happening. Even if a unit is unplugged from the wall, when it is restarted it will look for and upgrade when a new software version is available.


I had rad that Dish owners had the capability to set a "do not upgrade" setting. Is that not true?


----------



## Ron Barry (Dec 10, 2002)

Depends on the model of the receiver. However, my understanding is that even if that is set Dish still has a way to force and update. Similar to Windows Auto update feature. User can opt out, but MS still has a way to say that all users even if they opt out still get the update. Dish has the same feature. 

Did they use this feature with this release. That I don't know.


----------



## CuriousMark (May 21, 2008)

Interesting. Thanks for educating.


----------



## nobody99 (May 20, 2008)

HobbyTalk said:


> Most Dish users would agree that it is near impossible (in fact may be impossible) for a receiver in use not to have gotten the upgrade. If it is in use as there is no way for an end user to prevent an upgrade from happening. Even if a unit is unplugged from the wall, when it is restarted it will look for and upgrade when a new software version is available.


But what if it got the upgrade yesterday? Dish would be liable for 2+ years of contempt. What if it got the first (allegedly non-infringing) download two years ago, and then got a different version last month?

Which version did DISH get a legal opinion about? The one that's on the DVRs now, or one that was on the DVRs six months ago?

For DISH not to have planned a way to answer these questions definitively seems really, really dumb.


----------



## jacmyoung (Sep 9, 2006)

The point people seemed to forget is, it is not whether the legal guy must review the source code himself in order to write an opinion. It is perfectly normal for a legal counsel to write his opinion based on the statement provided by his client, and the counsel will simply state in his opinion that such was based on the statement provided by the client.

Whether the statement provided is accurate or not of course is up for debate, but that has nothing to do with whether the counsel must see the source code for himself or not.

TiVo of course can prove that when the E* engineers gave the counsel the information, that information was inaccurate, flawed, or even false.

But TiVo does not say that, because TiVo themselves was given the same source code as early as 04/08, and their engineers had looked at the code themselves, according to Rogers.

What TiVo needs to do is to present the summary of their own review of the same source code, and point out that some, or none of the things described in that legal documents acutally happened, not whether the lawyer was intimately familiar with the actual source code itself.

Remember, TiVo has the burden of proof with clear and convincing evidence that the code is still an infringement, not whether the other side knows what they are talking about.

Had E* refused to provide the source code to TiVo, it would be different.

Or let me put it this way, E* does not even need to ask its legal counsel to provide any opinion at all, E* just needs to drop a bunch of source code at TiVo and let TiVo weed through the code and prove to the court that the code is still the same or merely colorably different than the old code.

My point is TiVo does not even try that, the only thing they can do is trying to point out all the other nonsense, such as the counsel did not look at the code, that E* violated the injunction "on the face", and E* "still parses", and E*'s $750K design around effort cannot be a good faith effort because it was too cheap (who cares, if a $100 effort succeeds in avoiding infringement, it will do), or E* did not inform the judge of the design around...

Look Judge Folsom, are you not pissed enough already because all the bad things E* did above?

But the judge needs to know if TiVo in fact did their job to prove infringement by clear and convincing evidence. If TiVo has not even made any meaningful effort to do so, then TiVo will have failed.

The judge cannot do the proving for TiVo, he cannot say well TiVo though you did not try to prove infringement, but I see something that points out that E* still infringe, so I think E* is in violation.

It does not work that way.


----------



## jacmyoung (Sep 9, 2006)

nobody99 said:


> But what if it got the upgrade yesterday? Dish would be liable for 2+ years of contempt. What if it got the first (allegedly non-infringing) download two years ago, and then got a different version last month?
> 
> Which version did DISH get a legal opinion about? The one that's on the DVRs now, or one that was on the DVRs six months ago?
> 
> For DISH not to have planned a way to answer these questions definitively seems really, really dumb.


Then prove it that E* only updated yesterday. E* presented their evidence the update was done two years ago, if TiVo does not believe that, TiVo needs to provide its own evidence to prove otherwise.

TiVo cannot just say hey who knows? Maybe E* did not do it, therefore they did not do it. This is not how things work.


----------



## scooper (Apr 22, 2002)

So you're going to put a clause in the user agreement that says "all receivers in the customer's house must be connected to the satellite dish at all times, even if they are not currently authorized for service" ? Good luck enforcing that one..

The best that Dish can do is to keep sending the update to all receivers of the affected models, so that that said receivers will receive the update when plugged into the power and satellite dish. And use their "thou shalt get this update whether you request it or not" power.


----------



## nobody99 (May 20, 2008)

jacmyoung said:


> The point people seemed to forget is, it is not whether the legal guy must review the source code himself in order to write an opinion.


I think you are completely missing the point as well. The sole reason for the Fish & Richardson opinion was to keep Judge Folsom from finding willful infringement in the event that he finds the software merely colorably different.

If he does find them in contempt, the tables are turned, and DISH needs to prove that it had truly did attempt a workaround. A number of past cases cite the need for legal opinion (though the legal opinion does not automatically preclude willfulness). TiVo is trying make the case that not only does infringement still exist, it's willful (and subject to treble damages).


----------



## Greg Bimson (May 5, 2003)

I'd copy your post, jacmyoung, but I believe that...


jacmyoung said:


> TiVo needs to do is to present the summary of their own review of the same source code, and point out that some, or none of the things described in that legal documents acutally happened...


...was done in the expert testimony filed prior to the hearing.

I also believe that...


jacmyoung said:


> Remember, TiVo has the burden of proof with clear and convincing evidence that the code is still an infringement...


...DISH/SATS own admission that they don't know the status of any given receiver that received the downloads completely corrupts their cause. All they know is based upon a few people calling in experincing problems and the tech notes from a discussion forum.


----------



## nobody99 (May 20, 2008)

jacmyoung said:


> Then prove it that E* only updated yesterday. E* presented their evidence the update was done two years ago, if TiVo does not believe that, TiVo needs to provide its own evidence to prove otherwise.


LOL. Really? That's what you're going with?? :lol::lol:

Need I remind you that those DVRs are convicted infringing machines. They are guilty until found innocent.

Judge Folsom: Dish, you will be held in contempt of court for any DVRs still running the infringing software.

DISH: They're all updated your honor.

Judge Folsom: Ok, where's the proof?

DISH: Uhm, well, we have some people over at dbstalk that mentioned they got the new version, and uh, well, that's about it.

Judge Folsom: You are ordered to pay $6 per month per adjudicated DVR until you can supply conclusive proof that said DVRs have non-infrining software loaded.


----------



## 20TIL6 (Sep 3, 2008)

nobody99 said:


> For DISH not to have planned a way to answer these questions definitively seems really, really dumb.


If one assumes DISH was absolutely confident that the work-around escaped infringement, then they would have these answers.

It's very logical. Everyone agrees that named units without the work-around would still infringe.

So....

If the work-around would be judged as no longer infringing, then the next question would absolutely be "How many named units have the work-around installed, and when did they get the new software?"

Surely DISH would put a lot more effort into gathering concrete data through some sort of real-time deployment meter. I don't think anecdotal user community postings and end-user driven call center activity even remotely compares to something system driven, something part of the deployment, something that could be audited.

But if the work-around is judged to still be infringing, then all that data gathering would be a waste of time.


----------



## jacmyoung (Sep 9, 2006)

nobody99 said:


> I think you are completely missing the point as well...


The point you are missing is whatever that opinion is not even relevant in determining whether TiVo has met its own burden of proof by clear and convincing evidence that the new code still infringes.

Forget about all the nonsense, go find out what has TiVo done so far to prove by clear and convincing evidence that the new design is still an infringement, and make sure you go back to read one of my posts in which I quoted Judge Folsom himself laying out exactly how to prove infringement.

Did TiVo even do that? No they did not.


----------



## Ron Barry (Dec 10, 2002)

nobody99 said:


> But what if it got the upgrade yesterday? Dish would be liable for 2+ years of contempt. What if it got the first (allegedly non-infringing) download two years ago, and then got a different version last month?
> 
> Which version did DISH get a legal opinion about? The one that's on the DVRs now, or one that was on the DVRs six months ago?
> 
> For DISH not to have planned a way to answer these questions definitively seems really, really dumb.


So the question is... What if Dish put the change in one release only to back it out later on. Though possible, highly unlikely unless you find that the fix breaks some fundamental functionality of the receiver and if that was to occur I am sure people would be yelling and screaming in the Dish Support forums here and that just in not the case. Of course I am not saying if it would happened or not since I am not a Dish Engineer. I just don't recall any of that type of activity in the forums that would suggest to me an engineering team would consider rolling back a change. Rolling back changes can be dangerous and are not taking lightly in my experience. As an example I know of two times in software updates where Dish rolled back a complete version. it is a rare event and I believe it is also rare event at the feature level.

Software in the Dish DVR world is constantly changing, but Dish Software like other DVR software tends to build on itself so what is on the receivers today is a superset of what was on the receiver 2 years ago. Sure things get refactored and it is within the realms possibilities that something that was changed could be rolled back, but given the situation surrounding the changes I doubt someone would roll back changes they believe to have worked around the infringement.

Ofcourse.. this is my opinion. I just don't see the scenario above playing out.


----------



## Greg Bimson (May 5, 2003)

The cart before the horse...


jacmyoung said:


> The point you are missing is whatever that opinion is not even relevant in determining whether TiVo has met its own burden of proof by clear and convincing evidence that the new code still infringes.


Is the new code installed on all adjudged receivers?

Uh, ahh, uh...

Where is the complete proof that all the adjudged receivers are actually running the modified code?

Uh, ahh, uh...

In order to argue the "new code", it must be proven that the new code is on ALL of the adjudged receivers. DISH/SATS has admitted they don't know. They have proffered as evidence some call logs from customers and a set of release notes posted on an online forum, and the fact they put the new code into the stream.

That is not evidence that all the products have been updated.

And I'll now go on record believing TiVo will be asking for a recall of all products evaluated, if a positive ruling on infringement is granted.


----------



## jacmyoung (Sep 9, 2006)

20TIL6 said:


> If one assumes DISH was absolutely confident that the work-around escaped infringement, then they would have these answers.
> 
> It's very logical. Everyone agrees that named units without the work-around would still infringe.
> 
> ...


I agree with you 100%, and I have said earlier there might be a good motive for E* not to collect very detailed software update information, because as an example, E* may want to say hey we started to roll out the new updates in 10/06, and got most of them done soon after that. But in reality, it is possible that most of the updates were not done until close to 05/07, the end of updates.

By trying to tell the court they did most of the update sooner than later, the additional damages will be less.

Of course if the munbers are too fuzzy, the judge may agree with TiVo that E* is trying to get away with paying all the damages they deserve. But the question is, are the update information reasonable enough to give a fair estimate of the time of the design around changes?

The judge will have to decide what is a reasonable estimate, and go from there. It happens all the time in such damage assessment, the defendants will try to minimize the damages, the plaintiffs will try to maximize them, the judge will make his decision what is reasonable.


----------



## nobody99 (May 20, 2008)

jacmyoung said:


> The point you are missing is whatever that opinion is not even relevant in determining whether TiVo has met its own burden of proof by clear and convincing evidence that the new code still infringes.
> 
> Forget about all the nonsense, go find out what has TiVo done so far to prove by clear and convincing evidence that the new design is still an infringement, and make sure you go back to read one of my posts in which I quoted Judge Folsom himself laying out exactly how to prove infringement.
> 
> Did TiVo even do that? No they did not.


jacmyoung, please try harder to follow along.

*If* DISH is found to infringe they are subject to possible treble damages for willful infringement.

That's the whole premise for having the Fish & Richard guy testify. He was there only if they are still found infringing.

*If* DISH is found to infringe and they have legal opinion that there new design did not infringe (even if it was found to infringe) they have a reasonably-good chance of escaping treble damages

*However* if DISH is found to infringe and TiVo can prove their legal opinion was a sham, TiVo may be entitled to treble damages.

That's it. The Fish & Richardson guy was there for one reason, to determine if TiVo gets single or triple damages if infringement is found.

Is that clear enough now?


----------



## jacmyoung (Sep 9, 2006)

Greg Bimson said:


> ...DISH/SATS has admitted they don't know. ...


The only thing they admitted they did not know for sure was the precise timing of the update on each batch of the DVRs.

There cannot be any doubt all the DVRs received updates, it is known to everyone software updates happen all the time, and the software version changes as a result.

If there might be a few that were unplugged and possibly still do not have the update, the judge will never use that against E*. It is simply unreasonable to insist the very last DVR must be updated, because there is no meaningful way to find out, therefore it will be unreasonable to insist E* to find out.


----------



## nobody99 (May 20, 2008)

jacmyoung said:


> I agree with you 100%, and I have said earlier there might be a good motive for E* not to collect very detailed software update information


I think you have completely missed his point.

Let's say it would cost $5,000,000 to collect this information.

Let's say you know are pretty sure that your workaround still infringes and you're going to ultimately get caught. If that happens, the $5,000,000 was a complete waste of money.

Would you still spend the $5,000,000?

The point is that the decision to not spend that $5,000,000 could be read as an indicator that even DISH still thinks they infringe.


----------



## nobody99 (May 20, 2008)

jacmyoung said:


> It is simply unreasonable to insist the very last DVR must be updated, because there is no meaningful way to find out, therefore it will be unreasonable to insist E* to find out.


Equally as unreasonable, as, say, ignoring a permanent injunction to remove DVR features?


----------



## jacmyoung (Sep 9, 2006)

nobody99 said:


> jacmyoung, please try harder to follow along.
> 
> *If* DISH is found to infringe they are subject to possible treble damages for willful infringement.
> 
> ...


But the question is, did TiVo even try to prove infringement? Did I not ask you this question? If TiVo does not even try to prove infrinement, what is the point of arguing what F&R is doing in the first place?

If TiVo does not try to prove infringement then there cannot be a finding of infringement, end of story.

First thing first shall we? First prove the new design is still an infringement, then use F&R letter to argue that the design around was a sham.

Go tell TiVo to try to prove infringement, they might still have a chance, they can still file that "final" FFCL in two weeks.


----------



## Ron Barry (Dec 10, 2002)

Greg Bimson said:


> The cart before the horse...Is the new code installed on all adjudged receivers?
> 
> Uh, ahh, uh...
> 
> ...


My guess here is that since the delivery mechanism of the software is one way (Sat to receiver) and most likely the communication mechanism between the receiver and Dish (Ethernet/dialup) does not provide an audit trail that will be hard to provide at this point line by line. Even if you could you still have receivers out there that don't have a dialup connection or Ethernet at all times. It is a limitation of the technology.

The one thing I can see them being able to state is that the process of software deliver is such that it is designed that it can force a software update and all receivers that are receiving the signal will receive the update even if they opt out.

I would be suprised if there was an audit trail back from the receivers and even it there was it would not represent all receivers since anybody can unplug there dialup or ethernet connection.

So as far as this argument goes. It comes down to if the software update process and evidence of such an update being received is sufficient enough proof that the receivers fix was put in place and deployed to all receivers. Guess that is for a court to figure out and since I am not a lawyer I have no clue if that would fly.

In my opinion, given the technology limitations, it is reasonable approach and about as good as any. Even if you recalled all boxes and replaced the software you still would have Human error involved that could have the same possibility of a box not getting updated and working back into the system.


----------



## jacmyoung (Sep 9, 2006)

nobody99 said:


> I think you have completely missed his point.
> 
> Let's say it would cost $5,000,000 to collect this information.
> 
> ...


Where did you get that idea that E* decided not to spend $5M to find out who had updated? All E* was saying was it was impossible to find out the precise timing of each update, that is a fact, many people who are familiar with the DBS business had already explained to you why it is impossible to pinpoint the precise timing of each DVR update.

I am sure TiVo knows that too, if TiVo disputes E*'s claim, all TiVo needs to do is to present their own TiVo DVR update log to show it to the judge how easy it is to find out the precise timing of each TiVo DVR's software update, and since E* does so similarly, so they lied.

Is TiVo doing that? We shall see.

One more thing, if indeed it would take $5M in order for E* to find out the precise timing of each DVR update, insisting E* to spend that kind of money will most certainly be unreasonable, the judge would not insist E* to spend that money just to count the last DVR, he will just accept a reasonable estimate, maybe a little more in TiVo's favor, but it has to be reasonable.


----------



## nobody99 (May 20, 2008)

jacmyoung said:


> But the question is, did TiVo even try to prove infringement? Did I not ask you this question? If TiVo does not even try to prove infrinement, what is the point of arguing what F&R is doing in the first place?


You do know, don't you, what the whole point of this hearing was, right?

From the original order



> The Court will hold an additional hearing on this matter in the form of a Bench Trial on February 17-18, 2009_ to determine whether EchoStar's...receivers continue to infringe _...U.S. Patent No. 6,233,389, either literally or under the doctrine of equivalents.


Neither of us were there, but I'm pretty sure that Morgan Chu is smart enough to realize what he was there for.


----------



## jacmyoung (Sep 9, 2006)

nobody99 said:


> Equally as unreasonable, as, say, ignoring a permanent injunction to remove DVR features?


BTW whether E* "ignored" the injunction or not has yet been determined so please stay on the subject at hand.


----------



## nobody99 (May 20, 2008)

jacmyoung said:


> All E* was saying was it was impossible to find out the precise timing of each update, _that is a fact_, many people who are familiar with the DBS business had already explained to you why it is impossible to pinpoint the precise timing of each DVR update.


There you go again, confusing opinion with fact.

Impossible? My dear friend, I already outlined a very simple way to make it easy. The new software puts up a screen that says "call this number and punch in this code" before it works. The receiver would not work (and it would not record any shows thus obeying the injunction) until the caller punched in the number.

On the other end is a database that reads the number, knows which receiver it is tied to, and now it knows the exact date and time of the update which it logs to a database.

Impossible? Hardly. And since I have been a database programmer for more than 25 years, I think I can say with absolute certainty that this very idea (and likely something even better) would have occurred to people at DISH. They _chose_ not to do it.


----------



## jacmyoung (Sep 9, 2006)

nobody99 said:


> You do know, don't you, what the whole point of this hearing was, right?
> 
> From the original order
> 
> Neither of us were there, but I'm pretty sure that Morgan Chu is smart enough to realize what he was there for.


Oh yeah, you were pretty sure Mr. Chu knew what he was doing on 5/30/08, because if I recall correctly you said you would come back on 6/2/08 to gloat.

And I am pretty sure you thought Mr. Chu knew what he was doing on 9/04/08, what happened after that?

It is not how much are you sure of what they can do, rather what they actually are doing and find out for yourselve if they did what they need to do.


----------



## nobody99 (May 20, 2008)

jacmyoung said:


> Oh yeah, you were pretty sure Mr. Chu knew what he was doing on 5/30/08, because if I recall correctly you said you would come back on 6/2/08 to gloat.


I'm confused, Morgan Chu is a bad attorney because I couldn't come back here to gloat? :lol::lol::lol::lol::lol::lol::lol::lol::lol::lol:

Oh Dear God that's funny.


----------



## jacmyoung (Sep 9, 2006)

nobody99 said:


> There you go again, confusing opinion with fact.
> 
> Impossible? My dear friend, I already outlined a very simple way to make it easy. The new software puts up a screen that says "call this number and punch in this code" before it works. The receiver would not work (and it would not record any shows thus obeying the injunction) until the caller punched in the number.
> 
> ...


Judge has never asked E* to do that, so it is unreasonable to say now E* must do that to be acceptable. Even TiVo is not asking E* to do that so please again keep your own plan to yourself, and talk about what is acutally happening.

Remember if the court requires a specific procedure, it has to make it very clear to the parties, without any ambiguity, else parties will have to decide what they believe is the good faith effort, and the judge will decide what is to be considered reasonable.


----------



## jacmyoung (Sep 9, 2006)

nobody99 said:


> I'm confused, Morgan Chu is a bad attorney because I couldn't come back here to gloat? :lol::lol::lol::lol::lol::lol::lol::lol::lol::lol:
> 
> Oh Dear God that's funny.


Anyone else found it funny?


----------



## Ron Barry (Dec 10, 2002)

Ok guys... This is starting to get personal. Please state your opinions and disagreements in a non-personal manner. Personal attacks will not be tolerated in this thread and we are starting to drift that way.


----------



## Ron Barry (Dec 10, 2002)

nobody99 said:


> There you go again, confusing opinion with fact.
> 
> Impossible? My dear friend, I already outlined a very simple way to make it easy. The new software puts up a screen that says "call this number and punch in this code" before it works. The receiver would not work (and it would not record any shows thus obeying the injunction) until the caller punched in the number.
> 
> ...


Definitely one way of doing it, though it has a high customer pain aspect to it. Yes Dish could put in a mechanism to assure this at a cost. But is is necessary? In my opinion they have a tried and true process that is designed for the sole purpose of the ability to force updates on their receivers when needed. Why build a system in that annoys your customers. I hope reasonableness comes into play here, because any process that involves customer interaction has a customer satisfaction impact to it and I personally given users can disconnect the means to do callback from the receiver I don't see anyway one can put a system in place that does not involve user intervention and therefore cause unnecessary consumer pain given there is a solid process in place designed to achieve what is required.


----------



## dgordo (Aug 29, 2004)

Ron Barry said:


> Definitely one way of doing it, though it has a high customer pain aspect to it. Yes Dish could put in a mechanism to assure this at a cost. But is is necessary? In my opinion they have a tried and true process that is designed for the sole purpose of the ability to force updates on their receivers when needed. Why build a system in that annoys your customers. I hope reasonableness comes into play here, because any process that involves customer interaction has a customer satisfaction impact to it and I personally given users can disconnect the means to do callback from the receiver I don't see anyway one can put a system in place that does not involve user intervention and therefore cause unnecessary consumer pain given there is a solid process in place designed to achieve what is required.


Normally I would agree with you but this software download was special. They knew that it was more than just an update to fix a minor issue. If the end user had to be hassled to call in once to avoid court issues, its a small price to pay


----------



## James Long (Apr 17, 2003)

Greg Bimson said:


> Unless a customer gave DISH their software version and DISH tracked it, there was no internal tracking at DISH of each receiver adjudged infringing that received the new software.


Are you claiming that DISH did not ask customers their software version numbers at all during the help calls after the new software was downloaded?

DISH presented the evidence they had - and people who actually get to see that evidence get to make the final decisions. For that I am glad.


nobody99 said:


> The fact that they don't know (and apparently didn't even try to capture) the exact date of the new software's download is striking.


An intresting accusation. It is a shame (for TiVo) that it isn't true. See the evidence list.


----------



## James Long (Apr 17, 2003)

CuriousMark said:


> I had read that Dish owners had the capability to set a "do not upgrade" setting. Is that not true?


They have removed that from the most recent versions of receivers ... When enabled it nags the customer every time they turn on the receiver to take the upgrade. When upgrades are automatic or forced they start immediately when streamed as long as the receiver is off. (Or the next time the receiver is turned off.)

The most current version of the software is always streaming and targeting every new receiver as well as older receivers. When new software is initially released to the public a small set of customers get it first ... if no major problems are reported the set of customers increases until the software becomes an "everyone gets this" default.

THIS is where the version numbers are tracked ... people call in complaining about the 30 second jump not being 30 seconds any more or any other problem and the problem report is taken.


----------



## Greg Bimson (May 5, 2003)

James Long said:


> Are you claiming that DISH did not ask customers their software version numbers at all during the help calls after the new software was downloaded?


I did finally look over the exhibit list.

I didn't see a control document for "receivers that have the new software", but I may have missed it.

The point being, it did need to be a closed-loop process. And it was not. It smacks of bad record-keeping.


----------



## James Long (Apr 17, 2003)

dgordo said:


> Normally I would agree with you but this software download was special. They knew that it was more than just an update to fix a minor issue. If the end user had to be hassled to call in once to avoid court issues, its a small price to pay


Hindsight is always 20/20. I believe they collected enough data to assure that the software release was put out. Unless one is accusing DISH of outright lying (not a cue for anyone to do so) accept that what has been presented as true:
1) An opinion was sought as to what needed to be revoved to avoid infringement.
2) Software was created that was believed not to infringe
3) Said software was sent to recievers
4) Customers reported receiving said software (via complaints)
5) Said software and later generations became the only software in the distribution chain.
(Read the exhibit list for the timeline.)

It seems that some want DISH to be held to a higher standard than any other infringement case ever. What normally happens in an infringement case? A recall?

Who can say that after a recall ALL infringing products have been returned or are otherwise out of service? Is there ever a 100% accounting?

The defendant makes their best effort to comply. If the plaintiff accepts the effort great ... otherwise the court is involved to decide if the efforts were enough. We're pretty much at that stage in this case.

It is just a different type of recall.


----------



## Steve (Aug 22, 2006)

I'm by no means lazy, but it's a little difficult to follow this thread. Is it too soon for someone to sum up in a sentence or two where things stand at this point in time? Any indication yet of which company might prevail? TIA.  /steve


----------



## nobody99 (May 20, 2008)

jacmyoung said:


> Judge has never asked E* to do that, so it is unreasonable to say now E* must do that to be acceptable.


Since the judge _did_ ask E* to do something (shut off DVR functions) and they chose not to follow the judge's orders, it reasonably follows that their decision to not follow the judge's orders should be accompanied by very well-documented evidence.

What we can be 100% sure of, legally, is that it would have been acceptable to shut off the DVRs like they were ordered to do.


----------



## nobody99 (May 20, 2008)

Steve said:


> I'm by no means lazy, but it's a little difficult to follow this thread. Is it too soon for someone to sum up in a sentence or two where things stand at this point in time? Any indication yet of which company might prevail? TIA.  /steve


More than two years ago, DISH was ordered to turn off DVR functions on their DVRs. They still haven't followed that order. A few days ago, the two parties met for a contempt hearing for disobeying that order.


----------



## nobody99 (May 20, 2008)

James Long said:


> Hindsight is always 20/20. I believe they collected enough data to assure that the software release was put out.


Let's say they owe $6 per DVR per month for when the alleged workaround was not installed on the box (it is willful infringement if they did not shut off DVR functions and ignored the injunction, so treble $2 / month)

What date do you use for each box?


----------



## James Long (Apr 17, 2003)

Steve said:


> I'm by no means lazy, but it's a little difficult to follow this thread. Is it too soon for someone to sum up in a sentence or two where things stand at this point in time? Any indication yet of which company might prevail? TIA.  /steve


We're waiting for a decision from the court, which is not coming very soon (a couple months).

We'll announce major events and any changes when they happen.


----------



## CuriousMark (May 21, 2008)

Steve said:


> Any indication yet of which company might prevail? TIA.  /steve


Pick your side. Root for your favorite team. Partisans each see their own side/team as more likely to win at the moment. One thing we all seem to agree on is that it may not be over any time soon. Even the results of the most recent hearing are likely to be appealed through a process that can add at least another year to things.


----------



## bobcamp1 (Nov 8, 2007)

Greg Bimson said:


> The cart before the horse...Is the new code installed on all adjudged receivers?
> 
> Uh, ahh, uh...
> 
> ...


That's impossible. Does E* have to go back in time to everyone's house and check that the version number was correct to guarantee the update was processed properly?

In these situations, usually you just have to prove that the software was placed on the "critical download" list on a certain date, then show evidence that it did indeed roll out as scheduled by sampling several receivers not in E*'s direct control (i.e. those with an end-user). In the past, we've used customer returns as proof. You don't have to prove every single receiver properly processed the update, especially since the system was originally designed to accept a field-downloadable software update. You do have to account for the fact that the roll-out takes time.

Besides, if the receiver didn't take the new code, it's not going to take the "disable DVR function" code anyway and it will remain infringing forever.


----------



## HobbyTalk (Jul 14, 2007)

nobody99 said:


> LOL. Really? That's what you're going with?? :lol::lol:
> 
> Need I remind you that those DVRs are convicted infringing machines. They are guilty until found innocent.
> 
> ...


Generally no one piece of evidence is absolute proof that anything happened. Just because Dish said it it happened does not make it so. But many pieces of supporting evidence (such as discussions on forums, CSR reports, etc.) can further support such statements and proof.


----------



## dgordo (Aug 29, 2004)

James Long said:


> Hindsight is always 20/20. I believe they collected enough data to assure that the software release was put out. Unless one is accusing DISH of outright lying (not a cue for anyone to do so) accept that what has been presented as true:
> 1) An opinion was sought as to what needed to be revoved to avoid infringement.
> 2) Software was created that was believed not to infringe
> 3) Said software was sent to recievers
> ...


Certainly there is a hindsight bias in my opinion, and I'm not saying DISH didn't do enough, or should be held to a higher standard, only that I believe that its better to be safe than sorry. I bet if DISH were to lose on this issue, next time they would go the extra mile. Live and learn.


----------



## Curtis52 (Oct 14, 2003)

bobcamp1 said:


> In these situations, usually you just have to prove that the software was placed on the "critical download" list on a certain date, then show evidence that it did indeed roll out as scheduled by sampling several receivers not in E*'s direct control (i.e. those with an end-user).


It sounds like you must have links to several cases where that procedure proved satisfactory. Can you provide one of the links?


----------



## nobody99 (May 20, 2008)

dgordo said:


> Certainly there is a hindsight bias in my opinion, and I'm not saying DISH didn't do enough, or should be held to a higher standard, only that I believe that its better to be safe than sorry. I bet if DISH were to lose on this issue, next time they would go the extra mile. Live and learn.


You have echoed my sentiments exactly, only much more eloquently


----------



## James Long (Apr 17, 2003)

nobody99 said:


> Let's say they owe $6 per DVR per month for when the alleged workaround was not installed on the box (it is willful infringement if they did not shut off DVR functions and ignored the injunction, so treble $2 / month)
> 
> What date do you use for each box?


One month after targeting. or be nice and give TiVo a second month. I would not expect many to be nagged longer than that without accepting the download.

The people avoiding downloads are most likely those involved if forums ... hearing the panic of those who took a download would encourage them not to upgrade. But when the panic subsides even the most cautious says "ok".


----------



## James Long (Apr 17, 2003)

dgordo said:


> Certainly there is a hindsight bias in my opinion, and I'm not saying DISH didn't do enough, or should be held to a higher standard, only that I believe that its better to be safe than sorry. I bet if DISH were to lose on this issue, next time they would go the extra mile. Live and learn.


If the software is ruled non-infringing and the only issue is the date it was installed (with the court not accepting the best guess of "we sent it out on this date" even with a month or two padding) I'm sure DISH will do what is needed to confirm the software is on the receivers. Random sampling of customers by a third party call center? A new software version that calls in status to make sure that "today's" software is there (with calls out to those without their DVRs connected to phone lines).

All IF the court does not accept DISH's "reasonable efforts". And if there is no infringement. If the new software infringes when it was replaced is moot.


----------



## Steve (Aug 22, 2006)

nobody99 said:


> More than two years ago, DISH was ordered to turn off DVR functions on their DVRs. They still haven't followed that order. A few days ago, the two parties met for a contempt hearing for disobeying that order.


Well that much I knew. 



James Long said:


> We're waiting for a decision from the court, which is not coming very soon (a couple months).
> 
> We'll announce major events and any changes when they happen.





CuriousMark said:


> Pick your side. Root for your favorite team. Partisans each see their own side/team as more likely to win at the moment. One thing we all seem to agree on is that it may not be over any time soon. Even the results of the most recent hearing are likely to be appealed through a process that can add at least another year to things.


Thanks. gents. Guess we'll have to wait and see.

I have no particular dog in this fight. Just interested in the outcome from an intellectual property standpoint, and of course to see what ramifications a negative outcome may have for the losing side.

/steve


----------



## dgordo (Aug 29, 2004)

James Long said:


> If the software is ruled non-infringing and the only issue is the date it was installed (with the court not accepting the best guess of "we sent it out on this date" even with a month or two padding) I'm sure DISH will do what is needed to confirm the software is on the receivers. Random sampling of customers by a third party call center? A new software version that calls in status to make sure that "today's" software is there (with calls out to those without their DVRs connected to phone lines).
> 
> All IF the court does not accept DISH's "reasonable efforts". And if there is no infringement. If the new software infringes when it was replaced is moot.


Obviously


----------



## Ron Barry (Dec 10, 2002)

James Long said:


> One month after targeting. or be nice and give TiVo a second month. I would not expect many to be nagged longer than that without accepting the download.
> 
> The people avoiding downloads are most likely those involved if forums ... hearing the panic of those who took a download would encourage them not to upgrade. But when the panic subsides even the most cautious says "ok".


And if the process can force downloads without user acceptance then the user opting out does not come into play and the roll out should be pretty much on the time line that Dish set.


----------



## Curtis52 (Oct 14, 2003)

Ron Barry said:


> And if the process can force downloads without user acceptance then the user opting out does not come into play and the roll out should be pretty much on the time line that Dish set.


Surely anyone getting a forced update would have complained on dbstalk.


----------



## scooper (Apr 22, 2002)

Not really - internet forums are generally used by those with a lot of interest or are really complaining / blowing off steam. Most people (probably 90%+) don't even know about the DBS forums. OTOH - EVERYONE knows about the customer support numbers


----------



## jacmyoung (Sep 9, 2006)

nobody99 said:


> Since the judge _did_ ask E* to do something (shut off DVR functions) and they chose not to follow the judge's orders, ...


This is why TiVo got nowhere in the last two meetings, and is how you often make your argument, it is called straw man argument.

Because your premise is not true, the judge has yet to determine if E* indeed followed his order or not. You assumed E* did not follow his order, but that premise does not exist yet, so your argument following such false premise is flawed.

The law says, if E* made a good faith effort and succeeded in *possibly voiding* infringement (yes, E* does not even have to prove non-infringement), E* should be considered in compliance of the order and not in contempt.

So the issue here really is whether E* had done enough to establish that E* may currently no longer infringe. If so, E* had followed the order, but if TiVo can prove with clear and convincing evidence that E* still infringes, E* had violated the order.


----------



## Ron Barry (Dec 10, 2002)

Curtis52 said:


> Surely anyone getting a forced update would have complained on dbstalk.


It is possible that they did not send it as a forced update and rolled it out in normal fashion.. Phased... with the final roll out forced and therefore we would not see any evidence of it or little evidence. It is possible that they just phased it and everyone having the feature eventually get tired of the screen asking if they want to download the update and would say yes.

If I had to make a guess.. Given that it most likely was not a one line wonder that it would have been done in a phased fashion to minimize impact to the customer base. That is the usually mode of operation on a Dish release.

For the record.. I did not say that the release we are talking about was forced. It is but one possibility. In either case as has been stated previously.. The process is designed by nature to move the customer to the latest and greatest by its nature. And don't call me Surely..


----------



## scooper (Apr 22, 2002)

Ron Barry said:


> It is possible that they did not send it as a forced update and rolled it out in normal fashion.. Phased... with the final roll out forced and therefore we would not see any evidence of it or little evidence. It is possible that they just phased it and everyone having the feature eventually get tired of the screen asking if they want to download the update and would say yes.
> 
> If I had to make a guess.. Given that it most likely was not a one line wonder that it would have been done in a phased fashion to minimize impact to the customer base. That is the usually mode of operation on a Dish release.
> 
> For the record.. I did not say that the release we are talking about was forced. It is but one possibility. In either case as has been stated previously.. The process is designed by nature to move the customer to the latest and greatest by its nature. And don't call me Surely..


My guess is that it would be both phased and FORCED. Forced due to the nature, and phased due to minimizing pain on the customer base. Certainly forced towards the end of the upgrade.


----------



## jacmyoung (Sep 9, 2006)

Curtis52 said:


> It sounds like you must have links to several cases where that procedure proved satisfactory. Can you provide one of the links?


The PriceFisher case Greg cited was a perfect example.

In that case the infringer failed to make reasonable effort to remove all the infringing products already on the store shelves, and continued to sell them, and was found in contempt for selling most of those products.

However, some of the products they failed to remove, they told the court in those products there were a new part included in them, and that new part once used on the products by the users would avoid infringement, and therefore the infringer argued they should not be in contempt for not removing those products.

The patantee said who cares? The judge's order demanded all the products removed from the shelves, and additionally the infringer did not even make any good effort to separate the products with and without that non-infringing part in them, so all the products were sold without knowing which ones were non-infringing ones.

The judge said, while it was true that the infringer failed to inform the stores to separate those products, and in fact agreed with the patentee that the infringer's record keeping was "less than ideal", nevertheless, the patentee failed to prove with clear and convincing evidence that the infringer was in contempt for continued selling the products with that new part in them.

In the end the damages were based on what could be surely identified as the sales records on the products that did not have that new part in them that the infringer sold after the injunction was in effect.

And they were off the hook for not removing, and continuing to sell those products that they claimed to have that new part in them.

Using that as an example, E* is saying they have removed the infringing software in all of the DVRs and provided ample evidence, even if TiVo may argue that E*'s record keeping was less than ideal, the fact of matter is, in a contempt proceeding, TiVo must prove with clear and convincing evidence, E* only has the burden of providing information, even if the information may be less than ideal, if TiVo cannot prove with certainty, the court cannot punish E* for whatever TiVo has failed to prove with certainty.


----------



## nobody99 (May 20, 2008)

jacmyoung said:


> This is why TiVo got nowhere in the last two meetings, and is how you often make your argument, it is called straw man argument.


Will you please, please, please try to follow along?

Here's the permanent injunction:



> 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.


Do you agree that after 30 days E* would be disobeying this order if any boxes still had the original infringing software?

Because that's the point.


----------



## nobody99 (May 20, 2008)

jacmyoung said:


> PriceFisher


LOL


----------



## scooper (Apr 22, 2002)

nobody99 said:


> Do you agree that after 30 days E* would be disobeying this order if any boxes still had the original infringing software?
> 
> Because that's the point.


No - if they had already started deploying the new software (even if there were still boxes in the field with the old infringing software) by the time the stays were finished. If E* had not started the new S/W deployment by 30 days after the stays were all terminated - then technically yes.


----------



## nobody99 (May 20, 2008)

jacmyoung said:


> The PriceFisher case Greg cited was a perfect example.


You mean the one where they said this:



> Fisher-Price contends that Safety 1st violated the Injunction by continuing to sell infringing models of the 2-n-1 Bouncenette and the Magic Motion after August 28, 2003. With respect to Magic Motion sales, Safety 1st has admitted to selling at least 442 units of the Magic Motion after the Injunction was entered. Safety 1st attempts to minimize its contemptuous conduct by portraying it as inadvertent or insignificant. The fact remains, however, that Safety 1st violated a valid court order. Thus, the court finds that Safety is in contempt of the Injunction with respect to Magic Motion sales.


Do you think that 442 DVR's didn't get the update?

Yikes.


----------



## nobody99 (May 20, 2008)

scooper said:


> No - if they had already started deploying the new software (even if there were still boxes in the field with the old infringing software) by the time the stays were finished.


But did they _finish_? If not, they did not obey the court order.


----------



## Greg Bimson (May 5, 2003)

jacmyoung said:


> The law says, if E* made a good faith effort and succeeded in possibly voiding infringement (yes, E* does not even have to prove non-infringement), E* should be considered in compliance of the order and not in contempt.


Really? Can I have one case? Please? One case where a device adjudged as an infringement can simply have functionality changed to remove the adjudged device from the scope of the injunction? Just one case?


jacmyoung said:


> Using that as an example, E* is saying they have removed the infringing software in all of the DVRs and provided ample evidence, even if TiVo may argue that E*'s record keeping was less than ideal, the fact of matter is, in a contempt proceeding, TiVo must prove with clear and convincing evidence, E* only has the burden of providing information, even if the information may be less than ideal, if TiVo cannot prove with certainty, the court cannot punish E* for whatever TiVo has failed to prove with certainty.


What "infringing software"? I recall that eight DVR's were found to infringe. There was never software found to infringe.


----------



## James Long (Apr 17, 2003)

nobody99 said:


> Here's the permanent injunction:
> 
> 
> > 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.
> ...


The order was stayed ... it did not take effect until 2008. Are you claiming that the 2006/early 2007 software downloads were still being rejected by customers after the injunction took effect? The infringing products had all been instructed to download the software to modify them YEARS before the injunction took effect.


----------



## Tom Robertson (Nov 15, 2005)

James Long said:


> The order was stayed ... it did not take effect until 2008. Are you claiming that the 2006/early 2007 software downloads were still being rejected by customers after the injunction took effect?


Good point, I had forgotten the stay(s). (Wasn't there more than one?)

Cheers,
Tom


----------



## Greg Bimson (May 5, 2003)

jacmyoung said:


> The judge said, while it was true that the infringer failed to inform the stores to separate those products, and in fact agreed with the patentee that the infringer's record keeping was "less than ideal", nevertheless, the patentee failed to prove with clear and convincing evidence that the infringer was in contempt for continued selling the products with that new part in them.


HOWEVER...

In Fisher-Price, the "less than ideal recordkeeping" involved changing a harness on the seat, which of course makes the product a new manufacture and unadjudged regarding infringement.

Here, the "less than ideal recordkeeping" involved in this case is regarding adjudged infringing receivers. Not smart at all.


----------



## James Long (Apr 17, 2003)

Greg Bimson said:


> HOWEVER...
> 
> In Fisher-Price, the "less than ideal recordkeeping" involved changing a harness on the seat, which of course makes the product a new manufacture and unadjudged regarding infringement.
> 
> Here, the "less than ideal recordkeeping" involved in this case is regarding adjudged infringing receivers. Not smart at all.


In Fisher-Price, what was found to be infringing ... the product seat or the patented harness?

The patented harness was removed and replaced with a different harness. This caused the seat to be ... no longer infringing? IIRC, yes.

The recordkeeping was poor but the product was modified so it did not infringe. They just had trouble proving it.

DISH has modified their receiver product. They have made an effort to get that modification in place across all placed receivers that infringed. Assuming the modification is enough to avoid infringement, it all comes down to accepting that the products were changed to the best of DISH's ability.

It is a lot easier for someone to not swap out the harness on a seat than for customers to refuse software updates for more than a year (now nearly two).


----------



## Greg Bimson (May 5, 2003)

James Long said:


> In Fisher-Price, what was found to be infringing ... the product seat or the patented harness?


I think it was the combination, but mainly had to do with the harness.


James Long said:


> The recordkeeping was poor but the product was modified so it did not infringe. They just had trouble proving it.


Okay. The reality was that the new manufacture was a modification over the old, infringing manufacture. Therefore, the "new manufacture" was never adjudged.


James Long said:


> DISH has modified their receiver product. They have made an effort to get that modification in place across all placed receivers that infringed. Assuming the modification is enough to avoid infringement, it all comes down to accepting that the products were changed to the best of DISH's ability.


In this case, there was a download attempted by DISH/SATS to modify the receivers that were adjudged as infringements.

There is no loop closure. They cannot say how many receivers still have not been modified. There is no control at all.

However, I will admit it is most likely that 99 percent of the DVR's have the newer software. If I were in TiVo's position, I'd ask for the proof.

Let's not forget, most of these receivers are the ones adjudged to infringe. If the software was placed in the stream but never circles back to tell DISH the update has been completed, it can be simply assumed that the receivers do not have the modified software, _as there is no proof the adjudged receivers have been changed_.

Just because you, I and most people on this board know that it is most likely that the DVR's have modified software doesn't mean there is actual proof.


----------



## jacmyoung (Sep 9, 2006)

Greg Bimson said:


> Really? Can I have one case? Please? One case where a device adjudged as an infringement can simply have functionality changed to remove the adjudged device from the scope of the injunction? Just one case?


Two cases, remember which ones?



> What "infringing software"? I recall that eight DVR's were found to infringe. There was never software found to infringe.


The software that the judge said he is going to determine if it is only colorably different than the old software, remember?


----------



## jacmyoung (Sep 9, 2006)

Greg Bimson said:


> HOWEVER...


There is no "however", the point here is the argument of "less than ideal record keeping" has little bearing on the contempt decision, the patentee must prove by clear and convincing evidence that the products still infringe before the court will consider any remedies.


----------



## jacmyoung (Sep 9, 2006)

nobody99 said:


> You mean the one where they said this:
> 
> Do you think that 442 DVR's didn't get the update?
> 
> Yikes.


No the other part:



> With respect to Bouncenette sales, Fisher-Price asserts that Safety 1st has failed to show
> that its post-Injunction Bouncenette sales were not in violation of the Injunction. Safety 1st
> counters that, while it sold Bouncenettes after the Injunction's entry bearing the proscribed base
> model numbers, all of those Bouncenettes had a new, non-infringing harness design that Fisher-
> ...


----------



## jacmyoung (Sep 9, 2006)

Greg Bimson said:


> ...Just because you, I and most people on this board know that it is most likely that the DVR's have modified software doesn't mean there is actual proof.


Again, in a contempt proceeding, the defendant needs not to prove non-infringement, only to offer evidence to create the doubt whether the infringement still exists, it is the patentee who must prove by clear and convincing evidence infringement still is.

Just look at the quote above. Safty 1st did not even have to prove anything, they only claimed some of the products had a non-infringing harness part, that was good enough, even though Safty 1st's record keeping was "careless" and "less-than-ideal".

The court could not find Safty 1st in contempt for selling those products because Fisher-Price did not try to prove the products with that new harness still infringed.

Again, please do not come back with another "however", the specific circumstances in those cases are irrelevant, the point and point only:

Prove on-going infringement by clear and convincing evidence, or else the court will not entertain the idea of a contempt.


----------



## nobody99 (May 20, 2008)

jacmyoung said:


> Again, in a contempt proceeding, the defendant needs not to prove non-infringement, only to offer evidence to create the doubt whether the infringement still exists, it is the patentee who must prove by clear and convincing evidence infringement still is.


Again, you claim precedence where none exists. KSM (the case you are referencing) was _clearly_ about a newly-manufactured product and it even references this fact throughout the case. Read the language from KSM about how it references "the adjudicated device and other devices only colorably different therefrom" or words to that effect. It doesn't allow the actual adjudicated device to be modified.

We are in unchartered territory here. There has not been a single case where the actual adjudicated item was allowed (or disallowed, for that matter) to be changed _without notification to or permission from the court_.

I have said it before and I'll say it again. Whatever Judge Folsom decides with regard to the adjudicated receivers will set a precedent. I suspect that in the future, a field-modifiable will require court-approved permission to escape contempt.

So please, stop trying to claim that KSM applies. It doesn't, and eventually you'll be forced to admit it (though I doubt you will even then).


----------



## jacmyoung (Sep 9, 2006)

nobody99 said:


> ...We are in unchartered territory here...


I know you and Greg, and TiVo continue to use such argument, but there is only one problem:

The judge will have to *first determine* if the new software is only colorably different than the old software or not, this is clearly in his order, you simply cannot ignore that.

And if he finds more than colorable difference, he cannot find contempt, that is the law.


----------



## scooper (Apr 22, 2002)

jacmyoung said:


> I know you and Greg, and TiVo continue to use such argument, but there is only one problem:
> 
> The judge will have to *first determine* if the new software is only colorably different than the old software or not, this is clearly in his order, you simply cannot ignore that.
> 
> And if he finds more than colorable difference, he cannot find contempt, that is the law.


Are there any other PATENTS / caselaw on SOFTWARE ?


----------



## Greg Bimson (May 5, 2003)

jacmyoung said:


> The judge will have to *first determine* if the new software is only colorably different than the old software or not, this is clearly in his order, you simply cannot ignore that.


That is not clearly in his order.


jacmyoung said:


> Prove on-going infringement by clear and convincing evidence, or else the court will not entertain the idea of a contempt.


Again, as there is no "proof" the receivers have been modified, then what is there to prove?

The knife cuts deep...


----------



## Greg Bimson (May 5, 2003)

scooper said:


> Are there any other PATENTS / caselaw on SOFTWARE ?


I am thinking of the 8 September 2008 hearing. In the transcript, there was a lawyer for TiVo discussing an ongoing case regarding a software patent. I think it was Mathworks, or some company like that...

They changed their software to one that infringed upon a patent, then to avoid infringement, they changed the software back to a version that was prior art.

That is more cut-and-dried than this case, where the original device was found to infringe, and a software download has been claimed to modify those receivers.


----------



## James Long (Apr 17, 2003)

nobody99 said:


> There has not been a single case where the actual adjudicated item was allowed (or disallowed, for that matter) to be changed _without notification to or permission from the court_.


Isn't that Fisher-Price? An adjudicated product on the shelves of stores that the infringer changed the harnesses on? The adjudicated product (a seat with a harness) being turned into a modified product (a seat with a different harness)? No special marking applied which made it hard to track which products were modified and which were not?

It sounds very similar. Did Fisher-Price have permission to change harnesses on shipped products?


----------



## jacmyoung (Sep 9, 2006)

scooper said:


> Are there any other PATENTS / caselaw on SOFTWARE ?


I did not look further.

There was however a Microsoft case (I forgot which one exactly) where MS was found to infringe, and the court denied the patentee's injunction request, and one of the reasons cited by the court was very telling:

If an injunction was imposed, Microsoft would have been forced to update its software to all the MS Windows users in the U.S., and it would be too much of interruption to the consumers.

Which of course implied MS could have used a software update to remove the infringing element in the OS to avoid a contempt, except in the view of the court, even that would be too harsh, the court simply ordered MS to pay about $230M to get over with the case.


----------



## James Long (Apr 17, 2003)

Greg Bimson said:


> Again, as there is no "proof" the receivers have been modified, then what is there to prove?
> 
> The knife cuts deep...


I'll ask again (since it seems to be missed). In a normal recall case is there ever any proof that 100% of the infringing product is actually taken out of service?

The knife cuts both ways. You yourself said that you believed the judge did not want to issue an injunction against a product that no longer infringed. That is why they just had a hearing to determine the status of infringement. An entirely pointless hearing if there is no redemption for the adjudicated placed receivers.

If there is nothing DISH can do to make the adjudicated infringing receivers non-infringing why is the court wasting it's time? There MUST be a path to victory for DISH or the court would not bother.

It seems that too much time is spent saying "there is no way TiVo can lose" ... and likewise some say "there is no way DISH can lose". I believe our time would be better spent if people ditched these hard line attitudes and admitted for a moment that the side they believe in could lose - without it being a gross miscarriage of justice (as I'm sure some who support the eventual losing side will call it).

Try to see both sides.


----------



## Curtis52 (Oct 14, 2003)

scooper said:


> Are there any other PATENTS / caselaw on SOFTWARE ?


Installed software is considered a physical, manufactured item. There's nothing really unique about the way the law treats it.


----------



## jacmyoung (Sep 9, 2006)

James Long said:


> ...Did Fisher-Price have permission to change harnesses on shipped products?


Safty 1st was the infringer, and permission was never an issue. The injunction ordered Safty 1st to remove all the named products off the shelves. Only after the fact, at the time of the contempt proceeding did Safty 1st come forward with the claim that some of those products had a new hardness in them.

And this is very important too, Safty 1st only claimed some of the products had a new hardness part, they did not even have good records to prove it, but regardless, Fisher-Price had to prove by clear and convincing evidence that those products with the claimed new hardness still infringed, but they failed to do so.


----------



## scooper (Apr 22, 2002)

Curtis52 said:


> Installed software is considered a physical, manufactured item. There's nothing really unique about the way the law treats it.


So if Safety 1st can get out of their infringment by replacing one part with a "non-infringing" part, why doesn't it work that E* can replace an "infringing" part with one that is not "infringing" ?

The only thing that's really different is the way Dish went about changing the parts - they simply downloaded them to the receivers... in a much larger quantity probably.


----------



## James Long (Apr 17, 2003)

jacmyoung said:


> Safty 1st was the infringer, and permission was never an issue. The injunction ordered Safty 1st to remove all the named products off the shelves. Only after the fact, at the time of the contempt proceeding did Safty 1st come forward with the claim that some of those products had a new hardness in them.
> 
> And this is very important too, Safty 1st only claimed some of the products had a new hardness part, they did not even have good records to prove it, but regardless, Fisher-Price had to prove by clear and convincing evidence that those products with the claimed new hardness still infringed, but they failed to do so.


Oh so similar (sorry about getting the parties mixed up).

So Safety First modified adjudicated products without permission or notification and kept poor records. The modified products were not found infringing. IIRC: Safety First was found in contempt by the district court but we read about it at the appeals level where it was overturned.

There were some products proven to be sold unmodified that Safety First got in trouble for ... but the non infringing products were fine.

I wonder if TiVo was able to prove that any products actually went unmodified or if they are relying on the "prove they were modified" offense? (Other than the 721, 921 and 942 which DISH has decided to count as the 192k receivers they are allowed to keep unmodified and DISH is no longer placing even on like for like repairs.)

The key is (of course) to find the products as they currently exist non-infringing. Otherwise all this is moot. But there does seem to be a path toward redemption ... even if it will require a trip to an appeals court.


----------



## Curtis52 (Oct 14, 2003)

scooper said:


> So if Safety 1st can get out of their infringment by replacing one part with a "non-infringing" part, why doesn't it work that E* can replace an "infringing" part with one that is not "infringing" ?


They can. If they did it, they are off the hook and they've rendered the injunction moot.


----------



## Greg Bimson (May 5, 2003)

James Long said:


> I'll ask again (since it seems to be missed). In a normal recall case is there ever any proof that 100% of the infringing product is actually taken out of service?


Well, in a recall, if the terms weren't adhered to, then the patentee would file a motion for contempt. That is Fisher-Price, in a nutshell.

That is fairly cut-and-dried.


James Long said:


> The knife cuts both ways. You yourself said that you believed the judge did not want to issue an injunction against a product that no longer infringed. That is why they just had a hearing to determine the status of infringement. An entirely pointless hearing if there is no redemption for the adjudicated placed receivers.


Well, the bombshell is that there is no "proof" the receivers actually no longer infringe. That came straight from DISH/SATS expert (either technical or their hired gun).

The redemption for DISH/SATS would have been accomplished in two ways:
1) make sure the work-around doesn't infringe (and that is the current evaluation)
2) make sure each receiver adjudged as an infringement received the download AND reported back to the mothership.

This isn't "fuzzy math" time. The order was to disable all "Infringing Products". If there is no proof when each receiver ended up running the modification, then there is no sense in even discussing it.

There is no control.


James Long said:


> I believe our time would be better spent if people ditched these hard line attitudes and admitted for a moment that the side they believe in could lose - without it being a gross miscarriage of justice (as I'm sure some who support the eventual losing side will call it).


Oh, I don't disagree. However, when an infringer has decided to ignore a simple order and play games to try and achieve a positive ruling through some kind of loophole, then I cannot necessarily believe there would not be a gross miscarriage of justice. See this...


Curtis52 said:


> Installed software is considered a physical, manufactured item. There's nothing really unique about the way the law treats it.


Okay. When was this non-infringing software installed?

People arguing the DISH/SATS side have been arguing the KSM "loophole" for some time.

Now they refuse to look at "proof" of installed software.

Judge Folsom ordered a hearing to determine the "continuing infringement" of the same eight models of DVR that he originally adjudged two and a half years ago. There is not much in the way of "proof" that the modifications were installed.


----------



## HobbyTalk (Jul 14, 2007)

Greg Bimson said:


> There is not much in the way of "proof" that the modifications were installed.


Link to that information please (not just some sealed document titles that no one here knows the contents of)? Or is this just your humble opinion?


----------



## nobody99 (May 20, 2008)

jacmyoung said:


> I know you and Greg, and TiVo continue to use such argument, but there is only one problem:
> 
> The judge will have to *first determine* if the new software is only colorably different than the old software or not, this is clearly in his order, you simply cannot ignore that.
> 
> And if he finds more than colorable difference, he cannot find contempt, that is the law.


let me start off by saying that I think it's time this thread is locked. It's getting ridiculous with the re-hashing of the same old crap. Jacmyoung, please ignore the rest of this post, it's not for you - it's for everyone else since your mind is clearly made up.

Logic dicates that when one's premise is flawed, any conclusions drawn are also flawed. Since jacmyoung has concluded KSM is key to this case, we should look at that. And lo and behold, let's see what the judges say before they even get started:



ksm said:


> In view of these and other considerations to be discussed, where the patent owner seeks to enforce an injunction against an enjoined infringer by reason of a manufacture which was not the subject of the original litigation


Well, boy howdy, as far as I know, the DVRs in everyone's homes weren't suddenly remanufacted. And, just so we're clear..



ksm said:


> The decree usually carries a prohibition against further infringement--not as to any and every possible infringement, but *as to the particular device found to be infringement and as to all other devices which are merely "colorable" changes of the infringing one*


Remind me again, were the original 4+ million DVRs found to infringe?

And here's why I think Judge Folsom will set a new precedent with this case with respect to field-modifiable devices:



ksm said:


> that contempt proceedings, civil or criminal, are available only with respect to devices previously admitted or adjudged to infringe, and to other devices which are no more than colorably different therefrom and which clearly are infringements of the patent. This limitation is seen as properly balancing the interests of the respective parties. An enjoined party is entitled to design around the claims of a patent without the threat of contempt proceedings with respect to every modified device although he bears the risk that the enjoining court may find changes to be too insubstantial to avoid contempt.


I believe that the court will further the idea of "properly balancing the interests of the respective parties." There are four million DVRs which are in a gray area of already-produced, explicitly-adjudicated devices. These are more than KSM's "newly manufactured" devices, but less than a lock which _can't_ be changed. So the court should allow them to be updated, but only after court has reviewed and approved the changes are they off the hook.

One thing that I know for sure, this thread has become a total waste of time.


----------



## Curtis52 (Oct 14, 2003)

Greg Bimson said:


> This isn't "fuzzy math" time. The order was to disable all "Infringing Products". If there is no proof when each receiver ended up running the modification, then there is no sense in even discussing it.


I think that is something for the damages phase if the new software doesn't infringe. TiVo will have a tough time proving that "X" number of DVRs never got the upgrade. As the plaintiff, they would seem to have the burden of proof. The judge will have to earn his pay.


----------



## Tom Robertson (Nov 15, 2005)

nobody99 said:


> let me start off by saying that I think it's time this thread is locked. It's getting ridiculous with the re-hashing of the same old crap. ...
> One thing that I know for sure, this thread has become a total waste of time.


Suggestion noted (and appreciated) , but I think I'll try to keep this open. 

At some point, it will either die on its own from lack of participation or be reinvigorated by real, solid news. 

Along the way, someone new to all this might post a question and one our helpful souls will answer. (Ok, and likely trigger a re-hash of many these discussions.) 

So keep your eye open for more info. We'll appreciate it.

Thanks,
Tom


----------



## nobody99 (May 20, 2008)

Curtis52 said:


> I think that is something for the damages phase if the new software doesn't infringe. TiVo will have a tough time proving that "X" number of DVRs never got the upgrade. As the plaintiff, they would seem to have the burden of proof. The judge will have to earn his pay.


And this is just more benefit to the precedent I think Judge Folsom will set. of A patent holder won an infringement suit, has a permanent injunction issue, and wins an appeal and now he has the burden of proof that the injunction is being obeyed? Really?

Rather, how about when DISH is ready to deploy the new software, Judge Folsom reviews it and TiVo is allowed to raise objections(if any). Assuming Folsom approves the new software, he also has to approve a method of installing and verification and set parameters for what he considers a successful outcome.

The bottom line is that DISH shouldn't get to act as its own judge and jury and that's exactly what's happened so far.


----------



## scooper (Apr 22, 2002)

nobody99 said:


> The bottom line is that DISH shouldn't get to act as its own judge and jury and that's exactly what's happened so far.


The BOTTOM LINE is that it should get treated like any other piece of patent caselaw -

Which means -

Unless E* has DEMONSTRATED a repeated pattern of making a change they say is more than colorable, but is shown NOT to be (i.e. shown to be merely colorable) - they are ALLOWED to make such changes in good faith WITHOUT asking permission from the court. If you have such a pattern - THEN court permission may be put in as a requirement before it can be implemented. This is only their first such attempt. See you after 3 or 4 iterations of this...


----------



## James Long (Apr 17, 2003)

nobody99 said:


> let me start off by saying that I think it's time this thread is locked.


Participation is voluntary.



> Well, boy howdy, as far as I know, the DVRs in everyone's homes weren't suddenly remanufacted.


I've joked about "Jedi mind tricks" ("these are not the products that infringed these are new products") in previous threads but in this case what DISH has done may be enough.

Modifying an adjudicated infringing product does not require remanufacture. It can be as simple as replacing a harness (Fisher-Price) or changing some software (Footprint 2.0). Infringers can even use the same name for a modified product that they used for an infringing product (the boat cleaning product, IIRC). Modifications of products is allowed.

And while we can find district court level findings of contempt in those cases we find help at the appeals level, where the higher court is ALLOWING an infringer to cease infringing by modifying their product.



> I believe that the court will further the idea of "properly balancing the interests of the respective parties." There are four million DVRs which are in a gray area of already-produced, explicitly-adjudicated devices. These are more than KSM's "newly manufactured" devices, but less than a lock which _can't_ be changed. So the court should allow them to be updated, but only after court has reviewed and approved the changes are they off the hook.


That could happen reasonably soon.

The eight named DVRs remain "on the hook" until Judge Folsom says otherwise. But that doesn't mean DISH can't make modifications without prior court approval. That only happens in extreme cases where a defendant has abused the process by making repetitive changes that did not end infringement.

This is DISH's *FIRST* attempt at modifying their product to cease infringement - yet you seem to want to treat it like it is the 10th time the court has had to consider modifications. The precident seems to give the defendant/infringer the chance to modify their product and not simply be forced out of business on the first offense.

Despite dire predictions of doom if the DVRs were not disabled TiVo hasn't failed. If one believes some investment sites TiVo is doing better than DISH. What is the harm in giving DISH a chance to modify their product? What could TiVo afraid of ... that a "TiVo free" DVR actually works?


----------



## jacmyoung (Sep 9, 2006)

James Long said:


> ... The modified products were not found infringing. ...


The modified products were not not found infringing only that the patentee failed to prove they still infringed. They could well be still infringing, but it would be up to the patentee to prove it, since they failed to prove it, because just like the position TiVo is taking now, Price-Fisher did not think they needed to prove anything, look the judge ordered you to remove them, you did not, case closed.

Not so fast.

Now the law does allow, after the patentees fail in proving infringement in a contempt proceeding, to again try to prove that the modified products still infringe, but they will have to do so in a new action, independent of the contempt proceeding, to again prove it.

And Judge Folsom actually hinted such new action. If that report is correct, Judge Folsom said he would not immediately rule on the infringement issue, and he might need another hearing to further determine the infringement issue.

What that means it, and of course this is all speculation on my part:

The law says, the patentee in a contempt proceeding must first prove the difference is only colorable, if so, they must again at the same time prove infringement by clear and convincing evidence, and only then there can be a contempt.

Judge Folsom arranged such opportunities for TiVo, he ordered first the colorable difference analysis, then the infringement analysis in the same hearing, just in case TiVo could succeed in doing both.

But the report seems to point out that, he did not believe TiVo had proven that the difference was only colorable, becasue logic says if TiVo did so, the judge would not put off the infringement analysis and hinted another hearing needed, TiVo should be allowed to continue to prove infringement by clear and convincing evidence in the same setting in order to close the case and find E* in contempt.

But that may not be the case, at least not if you read between the lines from what the judge had hinted. At a minimum, I do not expect a contempt charge from this hearing, because the judge said he would not rule on infringement soon, and he might need another hearing to do so. If he does not rule on infringement, he will not rule that E* is in contempt, because infringement must first be found before he can cite E* a contempt.


----------



## Greg Bimson (May 5, 2003)

Greg Bimson said:


> There is not much in the way of "proof" that the modifications were installed.





> Link to that information please (not just some sealed document titles that no one here knows the contents of)? Or is this just your humble opinion?


Funny thing about proof...


> The Court will hold an additional evidentiary hearing on this matter on February 17-18, 2009 to determine (1) whether the software downloaded to EchoStar's DP-501, DP-508, DP-510, DP-522, DP-625, DP-721, DP-921, and DP-942 is no more than colorably different from the adjudged software; and (2) whether these receivers continue to infringe claims 31 and 61 of U.S. Patent No. 6,233,389, either literally or under the doctrine of equivalents.


The court is trying to determine if the eight DVR's "continue to infringe claims 31 and 61" of the Time Warp patent. If you can show me where DISH/SATS has presented the information about the installation of new software for each receiver, then you may have a point.

If you want "the link", go look over on Investor Village. The guy that went to the hearing said DISH/SATS cannot admit if or when each receiver installed the downloaded software.

If a report from a guy covering the hearing isn't good enough as "proof", then I would apply that theory to the "proof" DISH/SATS has served to the court that each receiver was installed with new software.


----------



## Curtis52 (Oct 14, 2003)

"New manufacture" means new process and does not mean newly built by an assembly line on a particular day.

link


> "These defects they claim to have overcome and remedied; and state that they had found that lead, and some of its alloys, when just set, or short of fluidity, and under heat and great pressure, in a close vessel, would reunite, after a separation of its parts, as completely as if it had not been separated, or, in other words, that, under these circumstances, it could be welded."
> 
> "That on this discovery and in reference to and in connection with it, *they made a change in the machinery* of Burr by which they succeeded in making perfect pipes, and were enabled to use a bridge at the end of the cylinder and short core, and thus surmount the difficulty of the Burr machine."
> 
> ...


----------



## jacmyoung (Sep 9, 2006)

Greg Bimson said:


> ...If you want "the link", go look over on Investor Village. The guy that went to the hearing said DISH/SATS cannot admit if or when each receiver installed the downloaded software...


How about we wait for the full transcript rather just take the words from that TiVo investor?

Is it not clear to you he only said a few things out of the whole *three-day hearing* and only those that he believed appeared in TiVo's favor?

And have you noticed if you add all he said together, they probably only amounted to about 5 minutes of verbal exchange?

Aren't you at least curious what they were saying during the rest of the maybe 600 minutes?


----------



## Greg Bimson (May 5, 2003)

From Curtis52:


> "There can be no doubt that if this combination is new and produces a new and useful result, it is the proper subject of a patent. The result is a new manufacture."


That sounds like questioning the validity of a patent, not questioning infringement.


----------



## nobody99 (May 20, 2008)

jacmyoung said:


> How about we wait for the full transcript rather just take the words from that TiVo investor?


Oh, that is hilarious! Will you follow your own advice? Please?



jacmyoung earlier on the same page said:


> But the report seems to point out that, he did not believe TiVo had proven that the difference was only colorable


----------



## Curtis52 (Oct 14, 2003)

"They also state that they do not claim any of the parts -- the cylinder, core, die, or bridge, but that they claim the combination when used to form pipes of metal, under heat and pressure, in the way they have described."

Similarly, TiVo is not claiming the PID filter is something they have patented.


----------



## Greg Bimson (May 5, 2003)

jacmyoung said:


> How about we wait for the full transcript rather just take the words from that TiVo investor?
> 
> Is it not clear to you he only said a few things out of the whole three-day hearing and only those that he believed appeared in TiVo's favor?


I don't know. I'd think it somewhat important that DISH/SATS admitted they couldn't prove which receivers actually installed the modified software. So we get into arguments about the person reporting and their agenda.

Yet then we get arguments here where there is no basis in facts and wild speculation, and we are told it is "case law".


----------



## nobody99 (May 20, 2008)

James Long said:


> Participation is voluntary.


I was suggesting locking the thread to protect people from reading my posts, actually . I suppose reading is voluntary too.



James Long said:


> Modifying an adjudicated infringing product does not require remanufacture. It can be as simple as replacing a harness (Fisher-Price)


But it results in a new sale. Are you suggesting that Safety 1st actually went into the homes of previously-sold products and installed a new harness?

I don't know if it's allowed or not, but what I am sure of is that KSM does not address it. Jacmyoung continues to believe it does. This is the crux of the issue.



James Long said:


> or changing some software (Footprint 2.0).


Allowed in the injunction ("as configured")



James Long said:


> The eight named DVRs remain "on the hook" until Judge Folsom says otherwise. But that doesn't mean DISH can't make modifications without prior court approval. That only happens in extreme cases where a defendant has abused the process by making repetitive changes that did not end infringement.


But here is where I think you are wrong. The permanent injunction was very clear in its instructions (disable DVR functions), and DISH should have asked the appeals court to change the language if it disagreed. Again, they don't get to act as their own judge and jury. As Greg has pointed out there is a process. TiVo is entitled to its due process as well.


----------



## nobody99 (May 20, 2008)

Here's an interesting citation from the Fisher-Price v Safety 1st case. It's related to damages, but nevertheless it seems remarkably pertinent to our case for a different reason



Jean Alexander Cosmetics v L'Oreal said:


> The Second Restatement of Judgments articulates the general rule of issue preclusion as follows: "When an issue of fact or law is actually litigated and determined by a valid and final judgment, and the determination is essential to the judgment, the determination is conclusive in a subsequent action between the parties, whether on the same or a different claim."


If the eight-named DVRs have been litigated, and a final judgement of infringement has been made, then that determination seems to be conclusive on subsequent actions (i.e., contempt). It would follow that the only way that DISH could "free" those DVRs from contempt would be a court order dissolving the injunction.

For what it's worth, I am only speaking about the four million DVRs in homes at the time of the finding of infringement, not of new sales.

I am not a lawyer, so clearly I'm offering this as an completely uninformed opinion and I will not suggest (as others have) that Judge Folsom must therefore follow this case law. Nevertheless, this seems pretty clear to me.


----------



## david_jr (Dec 10, 2006)

Greg Bimson said:


> I don't know. I'd think it somewhat important that *DISH/SATS admitted they couldn't prove *which receivers actually installed the modified software.
> 
> Yet then we get arguments here where there is no basis in facts and wild speculation, and we are told it is "case law".


I don't think this is accurate. DISH offered proof that the downloads were made. You may not think it is good enough proof. It may not be. Let's not forget this is a civil case where one doesn't meet the burden of proof "beyond a reasonable doubt." They must only show a preponderance of the evidence that something took place. That is like a 51% threshold, basically more likely than not. I think most people would agree that it is more likely than not that they sent the downloads.



nobody99 said:


> Well, boy howdy, as far as I know, the DVRs in everyone's homes weren't suddenly remanufacted. And, just so we're clear..
> 
> Remind me again, were the original 4+ million DVRs found to infringe?


IIRC the hardware verdict was set aside. I believe it is the software in those devices that is then the "adjudicated devices". They claim the software was remanufactured. Seems a simple matter of whether the judge "buys" their offered proof or not. Unless of course he says the new software still infringes, which in that case it won't matter I guess.


----------



## nobody99 (May 20, 2008)

Curtis52 said:


> "New manufacture" means new process and does not mean newly built by an assembly line on a particular day.
> 
> link


You are really going to use a case from 1852? Really, that's the only reference you can find? You want to reconsider? I stopped reading after I saw the date. As I recall, I was lambasted a year or so ago for reference a case from the late 1800s and someone pointed out to me that patent law has changed significantly since then.

How about something from the last century or two?


----------



## nobody99 (May 20, 2008)

david_jr said:


> That is like a 51% threshold, basically more likely than not. I think most people would agree that it is more likely than not that they sent the downloads.


I think (amd being a total non-lawyer I am only 51% sure ) that you only have to prove 51% in the case, but you have to follow a valid court order 100% of the time. My point (and I think Greg's) was that they could have (and should have) been more careful given the stakes. It seems remarkably reckless to not try to show the judge a bit more effort.



david_jr said:


> IIRC the hardware verdict was set aside. I believe it is the software in those devices that is then the "adjudicated devices". They claim the software was remanufactured. Seems a simple matter of whether the judge "buys" their offered proof or not.


But the appeals court allowed the injunction unmodified. DISH really should have argued this point. But since they didn't, they don't get to now. The injunction says nothing about "software" or "hardware"



david_jr said:


> Unless of course he says the new software still infringes, which in that case it won't matter I guess.


On that point we all agree


----------



## Greg Bimson (May 5, 2003)

david_jr said:


> IIRC the hardware verdict was set aside. I believe it is the software in those devices that is then the "adjudicated devices".


Again, the same mistake made from a while ago...

Claim 31 is a process; Claim 61 is an apparatus. Both claims have hardware in them. The embodiment of that product was found to infringe the two claims.

It just so happens that these two claims have been defined as the "Software Claims". But it certianly isn't only about software.


david_jr said:


> They claim the software was remanufactured. Seems a simple matter of whether the judge "buys" their offered proof or not.


Yep. There is a claim, but when called on it by TiVo, DISH/SATS (paraphrasing) had to admit people could elect not to install the new software, and that they did not know for sure how many of the receivers actually have the modifications installed.


david_jr said:


> I think most people would agree that it is more likely than not that they sent the downloads.


The problem according to TiVo is not that the downloads were sent, but that the "chain of evidence" is that there is no proof the downloads were installed.


----------



## scooper (Apr 22, 2002)

Greg Bimson said:


> There is a claim, but when called on it by TiVo, DISH/SATS (paraphrasing) had to admit people could elect not to install the new software, and that they did not know for sure how many of the receivers actually have the modifications installed.The problem according to TiVo is not that the downloads were sent, but that the "chain of evidence" is that there is no proof the downloads were installed.


So what do you consider sufficient proof that the new software is installed on all the in service affected DVRs ? Nevermind the ones that are not currently in service (I personally have a 625 in service, and a 510 that is not even plugged in).

All affected DVRs get a signal to dial in ? Can't happen all in one night, can be managed.

Lock the remaining DVRs so that the subscribers have to call in with serial number / version number before they are reauthorized ? High customer impact for what the customer considers a non-issue.


----------



## nobody99 (May 20, 2008)

scooper said:


> Lock the remaining DVRs so that the subscribers have to call in with serial number / version number before they are reauthorized ?


I would think that would have gone a long way in illustrating proper care to Judge Folsom, yes.



> High customer impact for what the customer considers a non-issue.


And what kind of "customer impact" would a physical recall have caused? Because that's what it was heading for until DISH told Judge Folsom that they could shut down just the DVR functionality, and Judge Folsom believe them. Silly judge!

If you can't do the time, don't do the crime.



> Windsurfing Int'l, Inc. v. AMF, Inc., 782 F.2d 995, 1003 n.12 (Fed. Cir. 1986) "One who elects to build a business on a product found to infringe cannot be heard to complain if an injunction against continuing infringement destroys the business so elected."


----------



## HobbyTalk (Jul 14, 2007)

nobody99 said:


> Rather, how about when DISH is ready to deploy the new software, Judge Folsom reviews it and TiVo is allowed to raise objections(if any). Assuming Folsom approves the new software, he also has to approve a method of installing and verification and set parameters for what he considers a successful outcome.
> 
> The bottom line is that DISH shouldn't get to act as its own judge and jury and that's exactly what's happened so far.


That horse has already left the stable. Folsom knew that the software could be changed remotely but never asked for any changes to be pre-approved. Dish did nothing outside the law on the upgrade, only used available remedies to advance their position. Some may not agree what they did was right or ethical, but none the less it was something that was allowed.

The question is, IF the to upgraded software is found not to infringe, what proof will be necessary to satisfy Folsom that all of (or the majority of) the receivers have been upgraded..... none of us here know that and to act otherwise is pure speculation.

Heck, people here have been fooled before. Some thought that once an item has been found to infringe, it will ALWAYS infringe and can never be otherwise. Some have thought that if an injunction order is not followed to the letter, it HAS to be contempt.... that has not been the case so far. If nothing else, this case had shown there is no black and white.


----------



## nobody99 (May 20, 2008)

HobbyTalk said:


> Folsom knew that the software could be changed remotely but never asked for any changes to be pre-approved. Dish did nothing outside the law on the upgrade, only used available remedies to advance their position. Some may not agree what they did was right or ethical,


Folsom knew the software could be changed remotely and asked for one thing: to disable the DVR functions. He didn't ask to "disable the DVR functions, or, at your option, download new non-infringing software" which is what you are suggesting.



> but none the less it was something that was allowed.


Says who? I beg of you, please help me to understand what I am missing. Show me on the injunction where the existing four million DVRs in customers hands at the time of the ruling could _under any circumstance _still have DVR functions today?



> The question is, IF the to upgraded software is found not to infringe, what proof will be necessary to satisfy Folsom that all of (or the majority of) the receivers have been upgraded..... none of us here know that and to act otherwise is pure speculation.


IF the upgraded software is found not to infringe, my guess would be that he holds them in contempt up until his ruling. They don't get the benefit of going back in time. That's a best-case for DISH imho. Another possibility is that he finds the software non-infringing, but says DISH does must still shut down the already-adjudged DVRs. Worst case, of course, is that they still infringe.



> Heck, people here have been fooled before. Some thought that once an item has been found to infringe, it will ALWAYS infringe and can never be otherwise. Some have thought that if an injunction order is not followed to the letter, it HAS to be contempt.... that has not been the case so far. If nothing else, this case had shown there is no black and white.


But in virtually every circumstance the law has said that you can design around a patent for the express purpose of creating a new product, not for modifying one already sold. There is no other case like it, and that's why I keep saying that we'll see a precedent.

I think the precedent should be something along the lines that Dish can change its software to its heart's content, but until the court says "ok, we like that software" they are in contempt, and any failure to shut down DVR functionality results in contempt fines payable to TiVo.


----------



## Curtis52 (Oct 14, 2003)

The term "new manufacture" is the basis of patent law. It means new process.

"In 1624 as part of the skirmishing between Parliament and the Crown leading up to the English Civil War, the English Parliament passed the statute of monopolies. This had the effect of limiting the power of the Crown to the grant of monopolies to making such grants only to inventions for limited periods (14 years - the duration of two training periods for craft apprentices) and most importantly only for "*manners of new manufacture*" that were introduced into the realm by the recipient of the monopoly."

"The English Statute of Monopolies of 1623 provided an exception to its general condemnation of monopolies by providing the "true and first inventor" of a *new manufacture* up to fourteen years of exclusivity as long as "they be not contrary to the law nor mischievous to the state by raising prices of commodities at home, or hurt of trade, or generally inconvenient."


----------



## CuriousMark (May 21, 2008)

Is doing a new manufacture during a stay common in patent law? Is the fact that Dish did the design around and download while the injunction was stayed similar to what others have done before? Is allowing a design around of units already in customers hands during a stay fair to both parties of the law suit? 

I am wondering ff the appeals court erred by staying the injunction fully and allowing a design around to be prepared and deployed during the stay period. Does that practice support the patent system as intended?

These questions don't seem to be included in the current argument, and I think they might be relevant. Anyone have any light they can shed on this aspect of things?


----------



## Curtis52 (Oct 14, 2003)

CuriousMark said:


> Is doing a new manufacture during a stay common in patent law? Is the fact that Dish did the design around and download while the injunction was stayed similar to what others have done before? Is allowing a design around of units already in customers hands during a stay fair to both parties of the law suit?
> 
> I am wondering ff the appeals court erred by staying the injunction fully and allowing a design around to be prepared and deployed during the stay period. Does that practice support the patent system as intended?
> 
> These questions don't seem to be included in the current argument, and I think they might be relevant. Anyone have any light they can shed on this aspect of things?


Even if there had been no stay, a design around would have been allowed. Design arounds are always allowed and encouraged (except of course in the case of a specific prohibition in the case of miscreants).


----------



## nobody99 (May 20, 2008)

A lot here to digest, but I think very interesting.

W.L. Gore v. C.R. Bard

This deal with a consent decree rather than a fully-litigated issue, they would seem to be treated the same way.



> The Supreme Court has "long recognized that '[p]ublic policy dictates that there be an end of litigation; that those who have contested an issue shall be bound by the result of the contest, and that matters once tried shall be considered forever settled as between the parties.' ...In United States v. United Shoe Machinery Corp....the Court explained that although a decree may be changed in appropriate circumstances, "it may not be changed in the interests of the defendants if the purposes of the litigation as incorporated in the decree ... have not been fully achieved". Id. at 248, 88 S.Ct. at 1499. That a contract voluntarily made turns out to be less or more favorable to one of the parties is insufficient ground for judicial intervention.


Simply stated, DISH is bound by the determination that the 4+ million recievers adjudicated to infringe are forever adjudicated. It doesn't matter if they downloaded new software, and it doesn't matter if they don't infringe. What matters is that they are forever adjudicated.



> The court may modify an injunction when it is "satisfied that what it has been doing has been turned into an instrument of wrong." United States v. Swift & Co... The Supreme Court has recognized that the policies of res judicata are not totally inviolate when the judgment includes an injunction of prospective effect, and must be balanced against the need, in "sound judicial discretion", to modify a continuing injunction when circumstances have sufficiently changed... Lest the finality of judgments and the policy of ending litigation be unduly impeached, such modification requires not only that circumstances have changed, but that unexpected hardship and inequity have resulted.


These completely illustrate my point that DISH can't unilaterally change the meaning of the injunction (disable DVR functions on the adjudicated receivers). It must be done through the court. While the 4+ million receivers are forever adjudicated, what DISH should have done (and still is going to have to do IMO) is move to change the injunction because they no longer infringe.

Again, I go back to KSM. The concept of "colorable changes" only applies to devices that were not originally adjudicated (for example, a DVR that was manufactured with the new software).

I am more certain after reading this case that Judge Folsom will rule contempt on the four million adjudicated DVRs regardless the software on it. He will chastise DISH for not having moved to have the injunction modified, and a big fine will result.


----------



## nobody99 (May 20, 2008)

Curtis52 said:


> Design arounds are always allowed and encouraged (except of course in the case of a specific prohibition in the case of miscreants).


Do they have ice-cream cake parties to kick of the "encouragement"

All joking aside, of course they encourage design-arounds. But it's for the next sale, not the one that already occurred.


----------



## CuriousMark (May 21, 2008)

Curtis52 said:


> Even if there had been no stay, a design around would have been allowed. Design arounds are always allowed and encouraged (except of course in the case of a specific prohibition in the case of miscreants).


Of course, but in more traditional cases, the design around would have been hard to crowbar into the middle of a recall. It would have been easier to do in the middle of a stayed recall. I am curious what was done in situations like that.


----------



## HobbyTalk (Jul 14, 2007)

nobody99 said:


> Says who? I beg of you, please help me to understand what I am missing. Show me on the injunction where the existing four million DVRs in customers hands at the time of the ruling could _under any circumstance _still have DVR functions today?


See Curtis52's reply above and many others to address your points. No use to keep repeating things that have been said 100s of times before.


----------



## nobody99 (May 20, 2008)

HobbyTalk said:


> See Curtis52's reply above and many others to address your points. No use to keep repeating things that have been said 100s of times before.


I have seen them. KSM? Doesn't do it. KSM allows a device that is more than colorably different from the adjudicated device to escape contempt. It does not address that happens when the injunction is ignored for the _actual _adjudicated device.

If you have something else, I'm all ears.


----------



## Ron Barry (Dec 10, 2002)

Some Interesting reading... 

I did a Google on "software patent workaround" and found a lot of interesting reading regarding software, workarounds and the patent process. I am sure everyone has read a lot of this posts, but for people that have not I thought I would through it out.


----------



## Greg Bimson (May 5, 2003)

HobbyTalk said:


> See Curtis52's reply above and many others to address your points. No use to keep repeating things that have been said 100s of times before.


Sure there is...

The injunction ordered DISH/SATS to disable the DVR functionality in the adjudged receivers for the life of the Time Warp patent.

The mistake being made is the belief that sending a download to the DVR's somehow changes their adjudged status of infringement.

The "new manufacture" disabling said DVR's would have not have made those DVR's exempt from the injunction. So why does anyone believe any software download exempts those DVR's from the injunction?


Ron Barry said:


> I did a Google on "software patent workaround" and found a lot of interesting reading regarding software, workarounds and the patent process. I am sure everyone has read a lot of this posts, but for people that have not I thought I would through it out.


Sure. But this isn't a software patent. The two remaining claims are a process and an apparatus, not software.


----------



## grooves12 (Oct 27, 2005)

And in the case of DVR software... it is not a one-time SALE. It is a service... every month you pay a new fee for that service. You don't pay your service is over.

It could be looked at that when Dish changed their software... every monthly payment after that point was a new sale. Every other case being referenced here is a case where someone make a purchase of a tangible product. IMO, you can't apply those cases directly to one that applies to a recurring service because the way a customer uses them and the way the provider sells them is incredibly different.


----------



## HobbyTalk (Jul 14, 2007)

nobody99 said:


> I have seen them. KSM? Doesn't do it. KSM allows a device that is more than colorably different from the adjudicated device to escape contempt. It does not address that happens when the injunction is ignored for the _actual _adjudicated device.
> 
> If you have something else, I'm all ears.


The arguments have been hashed out many times before. Wither you have not read them or choose to ignore them is your choice. I have no desire to type or read the same thing over and over again. Do you have anything really new?


----------



## HobbyTalk (Jul 14, 2007)

grooves12 said:


> And in the case of DVR software... it is not a one-time SALE. It is a service... every month you pay a new fee for that service. You don't pay your service is over.
> 
> It could be looked at that when Dish changed their software... every monthly payment after that point was a new sale. Every other case being referenced here is a case where someone make a purchase of a tangible product. IMO, you can't apply those cases directly to one that applies to a recurring service because the way a customer uses them and the way the provider sells them is incredibly different.


Now that is an interesting concept that I don't think has been brought up before.  That is true, the end user does not own the software, only has a license to use the software.


----------



## Ron Barry (Dec 10, 2002)

Greg Bimson said:


> Sure. But this isn't a software patent. The two remaining claims are a process and an apparatus, not software.


Definitely not a lawyer by any means so logic might no make sense here. But 
given that the process is implemented both in software and hardware the software principles as related to process and discussed software workarounds and software as related to the patent process I think would be of some interest.

Of course it was a suggestion and after doing a little reading I happen to find interesting and personally see a similarities given the large software component here. Yeck I see a lot more similarities in these searches than a baby car seat.


----------



## nobody99 (May 20, 2008)

HobbyTalk said:


> Do you have anything really new?


Yes, and I posted several of them today. Remind me again, what was your contribution today?


----------



## Ron Barry (Dec 10, 2002)

grooves12 said:


> And in the case of DVR software... it is not a one-time SALE. It is a service... every month you pay a new fee for that service. You don't pay your service is over.
> 
> It could be looked at that when Dish changed their software... every monthly payment after that point was a new sale. Every other case being referenced here is a case where someone make a purchase of a tangible product. IMO, you can't apply those cases directly to one that applies to a recurring service because the way a customer uses them and the way the provider sells them is incredibly different.


Interesting point.. Heck.. there is even a DVR fee associated with it that is paying for the extra functionality and therefore is what some call SAS (Software as a Service). You don't own the software you pay for it in a service oriented structure.

Definitely an interesting point.. One I wonder if it will come into play.


----------



## nobody99 (May 20, 2008)

Ron Barry said:


> Interesting point.. Heck.. there is even a DVR fee associated with it that is paying for the extra functionality and therefore is what some call SAS (Software as a Service). You don't own the software you pay for it in a service oriented structure.
> 
> Definitely an interesting point.. One I wonder if it will come into play.


I'm not sure why there's always been a hangup with software versus hardware. It appears that the appeals court segregated the two for their own purposes.  They left the injunction as-is. Nowhere does the injunction reference "software" or "hardware" -- it references only eight models of DVR. And it is the only thing that matters.


----------



## Ron Barry (Dec 10, 2002)

nobody99 said:


> I'm not sure why there's always been a hangup with software versus hardware. It appears that the appeals court segregated the two for their own purposes. They left the injunction as-is. Nowhere does the injunction reference "software" or "hardware" -- it references only eight models of DVR. And it is the only thing that matters.


Well given that part of this discussion is around the workaround as it applies to continued infringement and given that part of the process is in software, wouldn't one care about the software component as well as the hardware component because both of those together make up the process or am I totally not understanding what is being discussed. If so I will go back and read a few pages back but from what I have read I don't see it has a hang up but has part of what people are discussing.


----------



## scooper (Apr 22, 2002)

Ron Barry said:


> Well given that part of this discussion is around the workaround as it applies to continued infringement and given that part of the process is in software, wouldn't one care about the software component as well as the hardware component because both of those together make up the process or am I totally not understanding what is being discussed. If so I will go back and read a few pages back but from what I have read I don't see it has a hang up but has part of what people are discussing.


Yes - that particular point has been brought up as well.


----------



## HobbyTalk (Jul 14, 2007)

nobody99 said:


> I'm not sure why there's always been a hangup with software versus hardware. It appears that the appeals court segregated the two for their own purposes. They left the injunction as-is. Nowhere does the injunction reference "software" or "hardware" -- it references only eight models of DVR. And it is the only thing that matters.


And the service for the hardware is also subscription based. The end user can not use either the hardware or the software without paying a monthly fee. Although on some of these older models it may be true that recording can be played back without a subscription.... some others would have to comment on that.


----------



## nobody99 (May 20, 2008)

Carborundum v Molten Metal said:


> Before the damages phase of the trial, the court entered a permanent injunction pursuant to the jury's verdict....The injunction prevented MMEI from selling any pumps or replacement parts for those pumps used in infringing systems...In response to concerns that MMEI's customers would be unable to immediately convert their systems to noninfringing systems, the court modified the injunction to allow MMEI to sell replacement parts during a two-week grace period until May 4, 1994.


First, notice that the injunction prevented selling replacement parts (which don't infringe). Furthermore, the injunction was modified _by the court_ to allow time for the conversion to noninfringing systems.

Sound familiar?



Carborundum v Molten Metal said:


> Moreover, the district court's decision not to modify the injunction is further supported by MMEI's failure to object to the scope of the permanent injunction before the damages phase of the trial. Although MMEI requested a two-week grace period to sell repair parts prior to converting its customers to noninfringing systems, it did not otherwise challenge the scope of the injunction before the damages phase of the trial. Any objection by MMEI to the court's injunction prohibiting the sale of parts should have been raised before the damages phase of the trial.


All of the points that everyone has raised - KSM, etc., should have been raised by DISH either at the trial or on appeal. Those issues weren't raised, and they need to now live with it. There's a very simple reason for this: in the proper forum (court), TiVo gets to respond to DISH's motion to change the injunction.



Carborundum v Molten Metal said:


> We recognize that this result places some hardship on Metaullics' customers, who may have to replace a pump purchased from MMEI with either a noninfringing pump or a pump sold by Metaullics...These consequences are the inevitable fallout resulting from a holding of patent infringement


So yes, it's inconvenient for customers. If your customers can't do the time, don't do the crime.


----------



## jacmyoung (Sep 9, 2006)

E* does not seek to change the injunction, E* said the injunction is correct and they obeyed the injunction. So far TiVo has failed to convince the judge E* had violated the injunction, despite the seemingly obvious violation by TiVo’s interpretation.

Your argument was used by TiVo initially, and TiVo no longer spends much time on it because it did not work. The argument was E* violated the injunction on the face by not disabling the DVR functionalities.

That argument did not work.

The current hearing has nothing to do with trying to determine whether E* had disabled the DVR functionalities or not, rather whether the new software is only colorably different or not, and whether the 8 named DVRs still infringe or not. And the judge’s decision on these two issues will determine if he would grant TiVo’s contempt motion or not, because that is what his hearing order said, that the two above decisions will be the response to the TiVo’s contempt motion before the court. Not if E* had disabled the DVR functions, not if E* has very very good proof that the download happened, not how the download should have happened correctly.

By his own hearing order, he has already told us, the new software had happened, else he would not have tried to determine if the new software is colorably different, and the DVRs, though once adjudicated to have infringed, can in fact become non-infringing again, else he would not have tried to determine if the "same" DVRs still infringe or not.

Therefore continue to argue that E* did not disable the DVR functionalities, and/or once the DVRs were adjudicated to infringe, they will forever infringe, software does not matter, is basically saying Judge Folsom has no idea what he is doing.


----------



## Curtis52 (Oct 14, 2003)

United States Code

"(c) Whoever offers to sell or sells within the United States or imports into the United States a *component* of a patented machine, manufacture, combination or composition, or a material or apparatus for use in practicing a patented process, constituting a material part of the invention, knowing the same to be especially made or especially adapted for use in an infringement of such patent, and not a staple article or commodity of commerce suitable for substantial noninfringing use, shall be liable as a contributory infringer. "


----------



## jacmyoung (Sep 9, 2006)

Curtis52 said:


> United States Code
> 
> "(c) Whoever offers to sell or sells within the United States or imports into the United States a *component* of a patented machine, manufacture, combination or composition, or a material or apparatus for use in practicing a patented process, constituting a material part of the invention, knowing the same to be especially made or especially adapted for use in an infringement of such patent, and not a staple article or commodity of commerce suitable for substantial noninfringing use, shall be liable as a contributory infringer. "


There is no "patented machine" at issue in this case at all.


----------



## nobody99 (May 20, 2008)

jacmyoung said:


> E* does not seek to change the injunction, E* said the injunction is correct and they obeyed the injunction.


Source?



jacmyoung said:


> So far TiVo has failed to convince the judge E* had violated the injunction, despite the seemingly obvious violation by TiVo's interpretation.


As far as I know, we don't have a ruling yet. So we don't know if TiVo's failed to convince the judge or not.



jacmyoung said:


> Your argument was used by TiVo initially, and TiVo no longer spends much time on it because it did not work. The argument was E* violated the injunction on the face by not disabling the DVR functionalities.


As far as I know, we don't have a ruling yet. So we don't know if TiVo's failed to convince the judge or not.



jacmyoung said:


> The current hearing has nothing to do with trying to determine whether E* had disabled the DVR functionalities or not


One of the moderators can correct me if I'm wrong, but I was told earlier in this thread that this about the case as a whole, not just this hearing. This hearing a small part of the motion for contempt.



jacmyoung said:


> By his own hearing order, he has already told us, the new software had happened, else he would not have tried to determine if the new software is colorably different, and the DVRs, though once adjudicated to have infringed, can in fact become non-infringing again, else he would not have tried to determine if the "same" DVRs still infringe or not.


There are two issues:
DVRs already manufactured prior to the original finding of infringement
DVRs manufactured after the finding of infringingement

In order to find contempt on the second part, KSM requires that the court determine if the changes were merely colorable. That's why this hearing is going on.



jacmyoung said:


> Therefore continue to argue that E* did not disable the DVR functionalities, and/or once the DVRs were adjudicated to infringe, they will forever infringe, software does not matter, is basically saying Judge Folsom has no idea what he is doing.


Can you provide for me a link that Judge Folsom has ruled that E* has obeyed the injunction with regard to the DVRs adjudged to infringe? He has not yet made that ruling.

Incidentally, I never once said that "they will forever infringe" I said they will "forever be adjudicated." That's a huge difference. DISH needs to put a motion to the judge that says "these 4 million DVRs are now running non-infringing sofware. Please modify the injunction to remove them."

I have posted numerous examples of this today.

Until that happens, they have not obeyed the injunction.


----------



## jacmyoung (Sep 9, 2006)

Very simple, the judge's hearing order said:



> Before the Court is TiVo's Motion to Hold EchoStar In Contempt For Violation Of This Court's Permanent Injunction. Dkt. No. 832.
> 
> The Court will hold an additional evidentiary hearing on this matter on February 17-18,
> 2009 to determine (1) whether the software downloaded to EchoStar's DP-501, DP-508, DP-510, DP-522, DP-625, DP-721, DP-921, and DP-942 is no more than colorably different from the adjudged software; and (2) whether these receivers continue to infringe claims 31 and 61 of U.S. Patent No. 6,233,389, either literally or under the doctrine of equivalents.


The outcome of the above two decisions will determine if the judge may grant TiVo's contempt motion or not. No other purpose is stated in the hearing order.

Otherwise, the order would have said:



> Before the Court is TiVo's Motion to Hold EchoStar In Contempt For Violation Of This Court's Permanent Injunction. Dkt. No. 832.
> 
> The Court will hold an additional evidentiary hearing on this matter on February 17-18,
> 2009 to determine *(1) whether E* by continuing to use the DVR functionalities is a violation of the order; (2) Whether E* had tried the best to make sure all its DVRs actually downloaded the new software; and (3) whether these DVRs may become no longer infringing, after once being adjudicated to infringe.*


----------



## nobody99 (May 20, 2008)

jacmyoung said:


> Very simple, the judge's hearing order said:
> 
> The outcome of the above two decisions will determine if the judge may grant TiVo's contempt motion or not. No other purpose is stated in the hearing order.
> 
> Otherwise, the order would have said:


jacmyoung, here's a simple question. If the judge finds the existing boxes no longer infringe, can he find contempt through today?


----------



## jacmyoung (Sep 9, 2006)

nobody99 said:


> jacmyoung, here's a simple question. If the judge finds the existing boxes no longer infringe, can he find contempt through today?


No.

Which is why he needed to find it out, else he would have already made the ruling a long time ago, because it was obvious E* was still using those DVRs.


----------



## James Long (Apr 17, 2003)

nobody99 said:


> James Long said:
> 
> 
> > Modifying an adjudicated infringing product does not require remanufacture. It can be as simple as replacing a harness (Fisher-Price)
> ...


No ... only that changing that harness was enough of a modification. The entire seat did not have to be destroyed and replaced - only the offending part.



> I don't know if it's allowed or not, but what I am sure of is that KSM does not address it. Jacmyoung continues to believe it does. This is the crux of the issue.


The law does not start and end with KSM. There are other authorities.



> James Long said:
> 
> 
> > or changing some software (Footprint 2.0).
> ...


Offered as an example of modifying an adjudicated infringing product to remove infringement. It can be as easy as changing a configuration.



> James Long said:
> 
> 
> > The eight named DVRs remain "on the hook" until Judge Folsom says otherwise. But that doesn't mean DISH can't make modifications without prior court approval. That only happens in extreme cases where a defendant has abused the process by making repetitive changes that did not end infringement.
> ...


If the injunction was so clear why are we still waiting for an answer to contempt? It seems that you want to add additional hurdles that are not part of patent law in order for DISH to cease infringing.

The point of patent law is to protect patents from infringement ... the goal of Judge Folsom is to end the infringement. That goal can be met many ways.


nobody99 said:


> jacmyoung said:
> 
> 
> > E* does not seek to change the injunction, E* said the injunction is correct and they obeyed the injunction.
> ...


Court filings for the September hearing.


----------



## James Long (Apr 17, 2003)

nobody99 said:


> Carborundum v Molten Metal said:
> 
> 
> > Before the damages phase of the trial, the court entered a permanent injunction pursuant to the jury's verdict....The injunction prevented MMEI from selling any pumps or replacement parts for those pumps used in infringing systems...In response to concerns that MMEI's customers would be unable to immediately convert their systems to noninfringing systems, the court modified the injunction to allow MMEI to sell replacement parts during a two-week grace period until May 4, 1994.
> ...


The intent was to remove the infringing systems from use ... without the ban on replacement parts said infringing products would have been allowed to continue to infringe. The infringing system was such that if not maintained with replacement parts it will cease working. Banning replacement parts, even parts that were not in themselves infringing, was a way of ending infringement of the systems over a shorter time table.


----------



## scooper (Apr 22, 2002)

nobody99 said:


> jacmyoung, here's a simple question. If the judge finds the existing boxes no longer infringe, can he find contempt through today?


Simple answer - no.


----------



## HobbyTalk (Jul 14, 2007)

nobody99 said:


> First, notice that the injunction prevented selling replacement parts (which don't infringe). Furthermore, the injunction was modified _by the court_ to allow time for the conversion to noninfringing systems.
> 
> Sound familiar?


Please show where in E*'s injunction where this is prohibited.


----------



## nobody99 (May 20, 2008)

HobbyTalk said:


> Please show where in E*'s injunction where this is prohibited.


The injunction:



Judge Folsom said:


> 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.
> 
> This injunction shall run until the expiration of the '389 patent.


Here's my example



nobody99 quoting the court said:


> In response to concerns that MMEI's customers would be unable to immediately convert their systems to noninfringing systems, the court modified the injunction to allow MMEI to sell replacement parts


don't have to change a lot of words to get this



nobody99's suggestion that dish should have requested said:


> In response to concerns that DISH's customers would be unable to record television shows, the court modified the injunction to allow DISH to install non-infring software on the DVRs


What I think a lot of you are missing is when you say "the have to do this" or "an injunction must do that" is the time for "having to" is passed. That was at the trial or the appeal.

If the injunction said



what dish should have asked for said:


> 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) or replace the DVR functions with non-infringing versions in all but 192,708 units of the Infringing Products that have been placed with an end user or subscriber.


we wouldn't be having this conversation.

But what difference does it make what I say? Has anyone changed their mind since the trial started?

When Judge Folsom finds DISH in contempt for not following the injunction, I'm sure you all will find someway to spin that into something you expected.


----------



## jacmyoung (Sep 9, 2006)

I think at this point, the only reoccurring issue was that of the old one, that TiVo's argument that E* failed to follow the order when E* failed to disable the DVR functionalities.

E* had its own explanation BTW, it was in the 06/08 filing. E*'s view is, yes they did follow the order to disable the DVR functionalities. When new software is downloaded to a DVR, for a few minutes, the DVR is disabled, therefore the infringing DVR functionalities are disabled. When the new software is fully installed and functional, the DVR then has a new set of non-infringing DVR functionalities, while on the face the old and the new sets of functions look almost identical, the big difference is one was infringing, one is not.

And as the courts have always insisted, the only act an injunction may prohibit is the act of infringement, it is more than reasonable to argue that when the judge ordered to have the DVR functionalities disabled, he meant to disable the infringing DVR functionalities, not the DVR functionalities that may not infringe, because the law simply does not allow him to prohibit the use of non-infringing DVR functionalities.

The point is, TiVo had their interpretation, E* had their own, and so far TiVo's has failed to convince the judge that E* had violated the order. Now the judge clearly is trying to find out if E*'s current DVR software is more than colorably different to the old software, this much is certain, and also according to that report he said he would not rule on the DVR infringement issue soon, probably not from this hearing.

This much is also certain, without a decision on infringement, there cannot be a decision to find contempt. Because *"Infringement is the sin qua non of violation of injunction on infringement." *

"Sin qua non" means "without which, it simply cannot be." Without finding of infringement, there simply cannot be finding of violation of an injunction on infringement, no matter what the injunction says.


----------



## James Long (Apr 17, 2003)

It is interesting how the hard line defenders of TiVo's position have sunk their heels in and refuse to accept that that there is ANY other way for DISH to cease infringing other than to turn off the eight named DVRs.

This case would already be in appeals if Judge Folsom concurred with that opinion.


----------



## jacmyoung (Sep 9, 2006)

James Long said:


> ...This case would already be in appeals if Judge Folsom concurred with that opinion.


What Judge Folsom has done in the recent past is also contributing to the TiVo folks' continued belief that E* already violated the order.

Judge Folsom had time after time denied most of E*'s motions and objections, even though if one look carefully, he actually was modifying his orders to come to some agreement with E*. But he has done all he could to put pressure on E* without crossing the line of abusing the court's discretion, and he has done so very skillfully. The guy is a veteran in this game of blinking, but Charlie is also a veteran.

It is clear from the hearing that he wanted parties to settle, and he knew E*, not TiVo, had refused to settle so far.

As you pointed out, Charlie seemed to want to clear his name, can't blame him for trying to do that. The good thing is he actually has the resources to do so. Most people would have already settled.


----------



## nobody99 (May 20, 2008)

Wake me up when you guys have an idea that's different from last year.


----------



## CuriousMark (May 21, 2008)

James Long said:


> It is interesting how the hard line defenders of TiVo's position have sunk their heels in and refuse to accept that that there is ANY other way for DISH to cease infringing other than to turn off the eight named DVRs.
> 
> This case would already be in appeals if Judge Folsom concurred with that opinion.


I think you are now putting words in people's mouths. The hardliners are saying the method dish chose was not enough to cease infringement, not that there is no possible way to cease infringement. Admittedly claims 31 and 61 are very broad, and they cover a lot of ground, but not all the possible ground. Dish tried a few tweaks to existing software changing only a couple of things. They believed those things were enough and got a yes-man legal opinion to help them convince themselves of it. Those tweaks may be enough, or they may not. A major change, one that eliminated a few more steps, or changed those steps significantly would have been safer, but that may not have made good business sense. That kind of effort might have been truly herculean. That kind of effort would likely convince just about anyone that they didn't infringe. They didn't put forth that kind of effort, based on what little we have seen so far.


----------



## Ron Barry (Dec 10, 2002)

CuriousMark... Have you seen the changes? I personally have not seen a link to them and it is something I would be curious to see. I have seen post referring to them as small changes or tweaks, but I have never seen anything describing what exactly was the changes or the actual changes themselves. Can someone point me to them?


----------



## HobbyTalk (Jul 14, 2007)

nobody99 said:


> The injunction:
> 
> Originally Posted by Judge Folsom
> 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.
> ...


I am still looking for the place in the injunction where it states that no software can be downloaded to the named receivers.


----------



## HobbyTalk (Jul 14, 2007)

CuriousMark said:


> I think you are now putting words in people's mouths. The hardliners are saying the method dish chose was not enough to cease infringement, not that there is no possible way to cease infringement.


I think the TiVo hardliners are saying that the injunction was not followed to the letter (turn off DVR functions) so there can be NO other outcome then Dish is forced to turn them off no matter what Dish has done.


----------



## HobbyTalk (Jul 14, 2007)

Ron Barry said:


> CuriousMark... Have you seen the changes? I personally have not seen a link to them and it is something I would be curious to see. I have seen post referring to them as small changes or tweaks, but I have never seen anything describing what exactly was the changes or the actual changes themselves. Can someone point me to them?


I would guess most are basing that on the recent patent filing Dish did on their method. There is a link somewhere for that filing. It is doubtful that anyone here has seen the actual changes since those filings have been secured.


----------



## jacmyoung (Sep 9, 2006)

While the source code will never be public, the changes are most certainly stated by E*.

For the 5XX DVRs, one of the changes made was to remove the index table generation prior to programming storage to the hard drive, meaning the 5XX DVRs no longer use the "index method".

Of course TiVo insists such change does not matter, because the "index method" is never mentioned in the Claims 31 and 61. But TiVo's such argument misses the point when it comes to colorable difference analysis, because in the colorable difference analysis, the changes are not compared to the patent claims limitations, rather compared to the old design, and to determine if the difference is more than colorable or not.

The reason I said before why I think the difference is more than colorable, is that during the jury trial, TiVo used the "indexing method" to convict E*, TiVo said the "index method" was the "core of TiVo's invention", and since E* had that index table in their accused DVRs, TiVo also had that "index table" in their DVR prototype TiVo gave to E*, E* copied TiVo and infringed.

Notice so far on both points the patent claim limitations are not addressed. None of the above evidence are compared to the patent language itself, because we are only trying to determine "colorable differences", between the old design and the new design, and between the E* DVRs and the TiVo DVRs for that matter.

But if the "core method in the TiVo's invention" is now removed, not used anymore, E* argues that the difference of course is more than colorable.

The rest of the DVRs are the "Broadcom DVRs" such as the 625s. In addition to the above difference, in these DVRs the "self-regulating" buffers are also changed so "self-regulation" no longer exists. That is why TiVo is not even making much effort to go after the Broadcom DVRs anymore.

Now it is not to say that TiVo may not begin to compare the new design against the Claims 31 and 61 limitations, they can, but only during the infringement analysis. Unfortunately if TiVo fails to prove mere colorable difference, the work must end, E* is not in contempt, TiVo does not get the chance to go further to do that infringement analysis, not in a contempt proceeding.

And again I have used that report to point out that distinct possibility, when the judge said he would not decide on the infringement issue any time soon, and that decision might need another hearing, i.e. a new action, to resolve. The implication is he did not think TiVo had proven mere colorably difference, as a result, he could not go to the next step to determine the infringement issue. This action must end. If TiVo wants to go further, TiVo needs to bring on a new action.


----------



## Curtis52 (Oct 14, 2003)

"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, selling, or importing 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."


----------



## jacmyoung (Sep 9, 2006)

Curtis52 said:


> "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, selling, or importing 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."


It is not to say colorable difference analysis may not compare the difference *in the context of the infringed patent claims*, rather the comparison must be made between the old design and the new design, not *compared to the patent claims*, when determining if the difference is more than colorable.

Of course the "indexing method" is within the context of the patent claims, else how could TiVo use it as their "core evidence"? The "indexing method" is the *core* of TiVo's such DVR invention.

The precise point of "in the context" is that the comparison does not literally seek the exact words in the patent claims, rather the meaning and circumstances surrounding such words.

Words can be taken out of the context you know, that is why sometimes we do not literally pick on each word, rather seek correct meaning and circumtances of such words taken whole.


----------



## Greg Bimson (May 5, 2003)

HobbyTalk said:


> I think the TiVo hardliners are saying that the injunction was not followed to the letter (turn off DVR functions) so there can be NO other outcome then Dish is forced to turn them off no matter what Dish has done.


I am saying contempt will be granted because DISH/SATS did not follow the injunction to the letter.

However, I will agree with jacmyoung on this point:

A court can only order a product disabled or recalled if it is found infringing. Therefore, if there is a question whether or not a product which has been allegedly modified, avoiding infringement, then an infringement analysis must be performed. If found infringing, then that product will be subject to another order. If not found infringing, it cannot be ordered disabled.

Granting contempt does not mean the judge will order product disabled. The only reason to find infringement status is to determine whether or not the DVR's should remain enabled (or not).


----------



## jacmyoung (Sep 9, 2006)

But granting contempt means the court does agree E* had "violated the order" by not disabling the DVRs, then how can it be that the judge will not order the DVR disabled?


----------



## Greg Bimson (May 5, 2003)

jacmyoung said:


> Of course the "indexing method" is within the context of the patent claims, else how could TiVo use it as their "core evidence"? The "indexing method" is the core of TiVo's such DVR invention.


Because the "indexing method" is core to the hardware claims that were reversed and remanded.

You do realize there were four independent claims that the jury found DISH/SATS guilty of infringement? You also realize that two of those claims related to the "Media Switch" and indexing, and those have been reversed.

And it isn't like the Media Switch and indexing was the only evidence presented to find DISH/SATS guilty of infringement. There was plenty more evidence, otherwise Claims 31 and 61 would not have stood.


----------



## Curtis52 (Oct 14, 2003)

Greg Bimson said:


> Because the "indexing method" is core to the hardware claims that were reversed and remanded.


Apparently, the appeals court didn't have a problem with reversing and remanding the alleged "core" claims with the indexing method and still find that Dish infringed claims 31 and 61.


----------



## Greg Bimson (May 5, 2003)

jacmyoung said:


> But granting contempt means the court does agree E* had "violated the order" by not disabling the DVRs, then how can it be that the judge will not order the DVR disabled?


Tables turning...

Judge Folsom cannot order a product disabled if it does not infringe. It might infringe, it might not.


jacmyoung said:


> ...the only act an injunction may prohibit is the act of infringement...


And by ordering product disabled (again), Judge Folsom must make sure the product infringes (still).


----------



## Curtis52 (Oct 14, 2003)

jacmyoung said:


> Of course the "indexing method" is within the context of the patent claims, else how could TiVo use it as their "core evidence"? The "indexing method" is the *core* of TiVo's such DVR invention.


The injunction doesn't say "in the context of the patent claims*". *It says "in the context of the *Infringed* Claims". The infringed claims were claims 31 and 61.

Claims 31 and 61 are independent claims. Any other claim is out of context of those claims.

Judge Folsom's words:


> Patent claims may exist in two forms, referred to as independent claims and dependent claims. An independent claim does not refer to any other claim of the patent. Thus, it is not necessary to look at any other claim to determine what an independent claim covers.


----------



## CuriousMark (May 21, 2008)

Ron Barry said:


> CuriousMark... Have you seen the changes? I personally have not seen a link to them and it is something I would be curious to see. I have seen post referring to them as small changes or tweaks, but I have never seen anything describing what exactly was the changes or the actual changes themselves. Can someone point me to them?


I make that judgment based on the Fish and Richardson document and the Dish Patent application. They list specific things that were changed with respect to the TiVo patent. The Fish and Richardson document dresses those changes up quite a bit with heavy wordsmithing, but once you get past the fluff to what is actually changed, it isn't all that much. For example F&R devotes several paragraphs to the fact that indexing is not done on the output of the PID filters. It wastes words implying and hinting that the PID filter, a hardware device, was replaced by a selector. It then goes on to imply that doing that eliminates the hardware input stage. Very pretty and sounds like a lot changed, but in fact it was only the one little thing of not generating a table to support trickplay at that time. The document plays those same word games throughout, and once you get past them, the real changes turn out to really be there, but there are not all that many of them and they are not big enough to require a significant software architecture change. That is why I call them tweaks. You are certainly welcome to disagree with that assessment.


----------



## CuriousMark (May 21, 2008)

HobbyTalk said:


> I think the TiVo hardliners are saying that the injunction was not followed to the letter (turn off DVR functions) so there can be NO other outcome then Dish is forced to turn them off no matter what Dish has done.


Yes, I will accept that. That is a discussion I am staying out of because I don't feel qualified to take a position on it. It appears the judge felt the need to follow KSM and evaluate colorability and infringement so there isn't a lot of meat left to that argument. Once the judge completes his analysis, I suppose that position could come back in a weakened form. We will see.


----------



## CuriousMark (May 21, 2008)

jacmyoung said:


> For the 5XX DVRs, one of the changes made was to remove the index table generation prior to programming storage to the hard drive, meaning the 5XX DVRs no longer use the "index method".
> 
> Of course TiVo insists such change does not matter, because the "index method" is never mentioned in the Claims 31 and 61. But TiVo's such argument misses the point when it comes to colorable difference analysis, because in the colorable difference analysis, the changes are not compared to the patent claims limitations, rather compared to the old design, and to determine if the difference is more than colorable or not.


Yes, but dish does use a statistical method, and it generates a table and is used to do trick play in much the same, though less robust, way as the index method. So even if it is not listed in the claims, it is a small change. You believe it is more than colorable, I believe less. It is the same analysis. find the locations of the starts of GOPs in the program stream, only different information is stored in the table. So even following your requirement, reasonable people can still find it only merely colorable.



> But if the "core method in the TiVo's invention" is now removed, not used anymore, E* argues that the difference of course is more than colorable.


That is my point, it isn't removed at all. It is simply moved to playback and changed slightly to deal with having been moved. It is still the core method in Dish's version too. Without it there would be NO TRICK PLAY. So to say it is REMOVED is being disingenuous in the extreme.



> The rest of the DVRs are the "Broadcom DVRs" such as the 625s. In addition to the above difference, in these DVRs the "self-regulating" buffers are also changed so "self-regulation" no longer exists. That is why TiVo is not even making much effort to go after the Broadcom DVRs anymore.


TiVo appears to have spent significant time in the hearing going after that claimed change. From what I have read, the new buffers "self-regulate", they just do so using a different programming technique. This is another area where reasonable people can disagree about whether or not this change is merely or more than a colorably different. Oh, and simply dereferencing a pointer, does not count as making a buffer go away.


----------



## scooper (Apr 22, 2002)

CuriousMark said:


> Yes, but dish does use a statistical method, and it generates a table and is used to do trick play in much the same, though less robust, way as the index method. So even if it is not listed in the claims, it is a small change. You believe it is more than colorable, I believe less. It is the same analysis. find the locations of the starts of GOPs in the program stream, only different information is stored in the table. So even following your requirement, reasonable people can still find it only merely colorable.
> 
> That is my point, it isn't removed at all. It is simply moved to playback and changed slightly to deal with having been moved. It is still the core method in Dish's version too. Without it there would be NO TRICK PLAY. So to say it is REMOVED is being disingenuous in the extreme.
> 
> TiVo appears to have spent significant time in the hearing going after that claimed change. From what I have read, the new buffers "self-regulate", they just do so using a different programming technique. This is another area where reasonable people can disagree about whether or not is merely or more than a colorable change. Oh, and simply dereferencing a pointer, does not count as making a buffer go away.


Not really - the new Echostar method is only doing counts of frame types for each output stream - no jumptable involved. When a "jump" is required (for example, skip forward 30 seconds), the CPU must calculate the number of bytes in the file to skip to (based on the history so far), then they go look for the first I-frame. A bit different than Tivo's jumptable, where it was all precalculated before storage.


----------



## Ron Barry (Dec 10, 2002)

CuriousMark said:


> I make that judgment based on the Fish and Richardson document and the Dish Patent application. They list specific things that were changed with respect to the TiVo patent. The Fish and Richardson document dresses those changes up quite a bit with heavy wordsmithing, but once you get past the fluff to what is actually changed, it isn't all that much. For example F&R devotes several paragraphs to the fact that indexing is not done on the output of the PID filters. It wastes words implying and hinting that the PID filter, a hardware device, was replaced by a selector. It then goes on to imply that doing that eliminates the hardware input stage. Very pretty and sounds like a lot changed, but in fact it was only the one little thing of not generating a table to support trickplay at that time. The document plays those same word games throughout, and once you get past them, the real changes turn out to really be there, but there are not all that many of them and they are not big enough to require a significant software architecture change. That is why I call them tweaks. You are certainly welcome to disagree with that assessment.


Thanks for the assessment.. Was not sure where it was coming from. I will have to try and find the write up that you reference. I guess based on Scooper and your comment. At this point.. My opinion based on the posts above.. If part of the Tivo Patent indicates a Jumptable as part of the invention and it is felt that it is key part of the patent then in my opinion the change removes the infringement.

But I would have to read what you read CuriousMark to make a full assessment in my eyes. Sometimes the smallest of changes make a significant impact or significantly change how software works. Also if it is flowered up as you are indicating and given the legal docs I have read (Yikes) that makes it double hard to get a really good feel for what the changes actually accomplished.


----------



## Curtis52 (Oct 14, 2003)

Ron Barry said:


> If part of the Tivo Patent indicates a Jumptable as part of the invention and it is felt that it is key part of the patent then in my opinion the change removes the infringement.


There is no mention of a jump table or indexing in the infringed claims. It was mentioned in the claims that the appeals court reversed and remanded. It is completely irrelevant to the infringed claims.


> The canon that has arguably had the most significant impact on claim construction is the doctrine of claim differentiation. The claim differentiation doctrine in its broadest reading provides that no two claims in the same patent should be interpreted to cover the same thing.


----------



## CuriousMark (May 21, 2008)

Ron Barry said:


> If part of the Tivo Patent indicates a Jumptable as part of the invention and it is felt that it is key part of the patent then in my opinion the change removes the infringement.


Curtis is correct that this part is not at issue, though Dish wishes it were. I find it interesting. The TiVo software stores a jump table at record time. The Dish software constructs a best guess jump length in bytes table at playback time. When a jump is needed the TiVo goes directly to the beginning of the appropriate GOP, the Dish jumps the byte offset and scans for the beginning of the GOP. They both do the same analysis on the stream to build their tables, the tables are used for the same purpose, at the same time, under the same user control and produce the same results, playback starts at the new location. Reasonable people can come down on either side of that as being more than merely colorable or not. While I find it interesting, it may not figure at all in the judge's decision.


----------



## HobbyTalk (Jul 14, 2007)

Greg Bimson said:


> I am saying contempt will be granted because DISH/SATS did not follow the injunction to the letter.
> 
> However, I will agree with jacmyoung on this point:
> 
> ...


Thanks for making that clear and understandable is a single statement  I now understand better where you are coming from... and I don't totally disagree with you, I just have no opinion one way or the other. Either outcome (contempt/not in contempt) would not surprise me in the least.


----------



## HobbyTalk (Jul 14, 2007)

Greg Bimson said:


> Tables turning...
> 
> Judge Folsom cannot order a product disabled if it does not infringe. It might infringe, it might not.And by ordering product disabled (again), Judge Folsom must make sure the product infringes (still).


Hehe... funny, the little light bulb just went on  I can see a method to these court proceedings madness.

OK, I have this question. If the products are found to no longer infringe but Dish is found to have been in contempt, what could the award/damages be? Since $100M+ was already paid for past infringement, what could the additional be?


----------



## jacmyoung (Sep 9, 2006)

Curtis52 said:


> Apparently, the appeals court didn't have a problem with reversing and remanding the alleged "core" claims with the indexing method and still find that Dish infringed claims 31 and 61.


Except the reason for the reversal of the hardware claims had nothing to do with the "core indexing method", rather a single word "a" in a later step in the hardware claims which was not "literally met". And because only the literal infringement doctrine was used in the hardware claims determination, it was reversed.



> The claim differentiation doctrine in its broadest reading provides that no two claims in the same patent should be interpreted to cover *the same thing*.


That is not to say each claim in the patent must cover its own invention, in fact the single patent, which may contain numerous claims, must describe only *one invention*, just that each claim must cover a different aspect of such invention, not the same duplicate aspect.

The hardware claims cover the hardware aspect of the invention, the software claims cover the software aspect of the invention, and some other claims may cover some other aspect of the invention.

But the "core invention" in this patent is the same and the one only, the "indexing method". Else TiVo would have listed "core methods/inventions" not "core method/invention."


----------



## jacmyoung (Sep 9, 2006)

Curtis52 said:


> The injunction doesn't say "in the context of the patent claims*". *It says "in the context of the *Infringed* Claims". The infringed claims were claims 31 and 61...


I think you just took my words out of the context right there

Of course "the patent claims" I said above meant Claims 31 and 61, there are no other claims at issue.

"In the context of claims 31 and 61" means you cannot simply say the word "index" is not in this two claims therefore the "indexing method", the "core invention", is irrelevant to the claims 31 and 61, because the "core method" is most certainly relevant "in the context of the patent claims" when you consider the meaning and circumstances of the invention as a whole, not pick and choose a specific word whereby taking it out of the context, then argue that it is irrelevant "in the context of" the claims 31 and 61. Because all the claims in this patent, they all serve to describe the core invention method called the "indexing method".

Otherwise, you must first convince the judge now claims 31 and 61 themselves alone, constitue an "invention" on their own, and this new invention has nothing to do with the indexing method/invention, rather some other method/invention we do not know about.

Do you think the judge would take that argument seriously?


----------



## jacmyoung (Sep 9, 2006)

scooper said:


> Not really - the new Echostar method is only doing counts of frame types for each output stream - no jumptable involved. When a "jump" is required (for example, skip forward 30 seconds), the CPU must calculate the number of bytes in the file to skip to (based on the history so far), then they go look for the first I-frame. A bit different than Tivo's jumptable, where it was all precalculated before storage.


Not only that, even if E*'s new design still ends up building some kind of index table, as long as it does not do so in substantially the same way, it does not infringe.

The question is, can you say one builds that table before the program is even recorded onto the hard drive, and the other builds no such table before recording or there after, unless if the user starts to issue trickplay keys, only then some kind of statistical analysis will begin, and as a result, maybe, just maybe, some similar frame info is collected somewhere that may ressemble an index table.

Can one call the above two different methods substantially the same?

And CuriousMark is very good in his analysis BTW, he is actually doing the infringement analysis the correct way, and he is much closer to victory than TiVo is now. TiVo did not even try it. As I said early, TiVo needs to learn from CuriousMark how to go about proving infirngement

But of course TiVo's engineers/lawyers are not clueless, they do not go that route probably becasue they know it is very unlikely they can convince the judge the two above methods are substantially the same, so they are trying some other methods, which are not the correct methods used by the judge himself.


----------



## Greg Bimson (May 5, 2003)

jacmyoung said:


> The hardware claims cover the hardware aspect of the invention, the software claims cover the software aspect of the invention, and some other claims may cover some other aspect of the invention.


Wholly incorrect. The "hardware claims" cover the index table; the software claims cover a box (hardware).


jacmyoung said:


> But the "core invention" in this patent is the same and the one only, the "indexing method". Else TiVo would have listed "core methods/inventions" not "core method/invention."


There is no "indexing method" in Claims 31 and 61. Your "core invention" argument is irrelevant.

All that needs to be done to find infringement is to meet the limitations on every step of each element of a claim. That can be done without an index table, except it appears DISH/SATS still uses one.


HobbyTalk said:


> OK, I have this question. If the products are found to no longer infringe but Dish is found to have been in contempt, what could the award/damages be? Since $100M+ was already paid for past infringement, what could the additional be?


TiVo is asking for about $165 million for additional damages up to 18 April 2008. I figure contempt could be around $200 million, but who knows?


----------



## Curtis52 (Oct 14, 2003)

If other claims besides claims 31 and 61 were in any way relevant to finding colorable differences, Judge Folsom would have left out the word "infringing" and just said "claims". Instead, this is what he wrote:


> "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. "


It doesn't mean the same thing written either way. There are two entirely different meanings depending on which way it is written. We know the way it was written. I can't believe it is even being argued. Other claims are out of context.


----------



## Curtis52 (Oct 14, 2003)

jacmyoung said:


> in the colorable difference analysis, the changes are not compared to the patent claims limitations, rather compared to the old design, and to determine if the difference is more than colorable or not.


At least _this_ assertion has been abandoned (albeit without an admission of error).


----------



## jacmyoung (Sep 9, 2006)

Curtis52 said:


> At least _this_ assertion has been abandoned (albeit without an admission of error).


Where did you get that idea it was abandoned?

Why would there be two sets of analyses in the first place, if they all must compare to the exact same set of patent claim limitations?

The whole idea of colorable difference analysis is so that parties need not go through the lengthy process required to do an infringement analysis. Because an infringement analysis is very complex, and a contempt proceeding is designed to bypass such hurdle, so that the winning patentees are not forced to go through such process each time the infringers claim design around.

And because a contempt proceeding is swift and without the kind of due process afforded to the defendants, the plaintiffs are under a much higher burden of proof, that is the plaintiffs must prove there is no doubt what's so ever that infringement still exists, and yet the defendants only need to establish the doubt to avoid a contempt.


----------



## jacmyoung (Sep 9, 2006)

I just noticed this, the quote Curtis52 used above does not even have to do with the 8 named DVRs:



> 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


In other words, the above part of the injunction addresses any *"other products"*, not the 8 named DVRs. So it is too soon to even use that quote to address anything this current heairng is trying to address anyway.

Now if the 8 named DVRs are again found to infringe, therefore are still "Infringing Products", then any "other products" such as the 622s and 722s, if found to be only colorable different than the 8 named "Infringing Products", *in the context of the Infringed Claims*, then E* can be in contempt for selling the 622s and 722s.


----------



## Curtis52 (Oct 14, 2003)

jacmyoung said:


> I just noticed this, the quote Curtis52 used above does not even have to do with the 8 named DVRs:
> 
> In other words, the above part of the injunction addresses any *"other products"*, not the 8 named DVRs. So it is too soon to even use that quote to address anything this current heairng is trying to address anyway.


The DVRs deployed at the time of the verdict that have modified software are *either* the "Infringing Products" *or* they are "other products". Dish contends they are "other products".


> TiVo now takes the untenable position that EchoStar violated the injunction because, after disabling the DVR functionality in its Infringing Products, EchoStar immediately supplied those units with new software that provides DVR functionality without infringing TiVo's patent. TiVo's argument is inconsistent with the plain language of the injunction, has been soundly rejected in the case law, is contrary to TiVo's own arguments to this Court in support of the Injunction in 2006, and turns on its head the fundamental purpose of injunctive relief in patent cases, namely, to prevent a competitor from continuing to sell products that infringe plaintiff's patent.
> 
> *By its plain terms, the Injunction, including the "disable DVR functionality" clause, can only cover "Infringing Products," not the non-infringing technology EchoStar has now deployed. *


----------



## jacmyoung (Sep 9, 2006)

Curtis52 said:


> The DVRs deployed at the time of the verdict that have modified software are *either* the "Infringing Products" *or* they are "other products". Dish contends they are "other products".


Or modified products.

Modified products are not the other products, they are still that 8 named products. That part of the injunction was clearly addressing other DVR models, not the 8 named DVRs.

E* never said the modified products are now the other products:



> By its plain terms, the Injunction, including the "disable DVR functionality" clause, can only cover "Infringing Products," *not the non-infringing technology* EchoStar has now deployed.


----------



## Greg Bimson (May 5, 2003)

I just wanted to be post # 666 on this thread. 


jacmyoung said:


> E* never said the modified products are now the other products:
> 
> 
> > By its plain terms, the Injunction, including the "disable DVR functionality" clause, can only cover "Infringing Products," not the non-infringing technology EchoStar has now deployed.


That is because DISH/SATS defined "Infringing Products" as product which contains infringing technology.

The court defined "Infringing Products" as the eight models they adjudged as infringements.

Only one of those two definitions will be sustained.

By the way, DISH/SATS basically stated by making modifications, they are no longer Infringing Products, so therefore they would have to be the other products. Of course, that is only if Judge Folsom agrees they are no longer "Infringing Products".


----------



## jacmyoung (Sep 9, 2006)

Greg Bimson said:


> ...Only one of those two definitions will be sustained...


Of course you have every right to take that position.

E*'s position maybe different, because the judge so far only wants to know if the same 8 named DVRs still infringe or not. E* does not in any way try to say now our same 8 named DVRs are some kind of "other products" because a new software was downloaded to them, just that the same 8 named DVRs are now with the non-infringing technology after such new software modification therefore they are no longer "Infringing Products."

If TiVo wants to insist the download had made the same 8 named DVRs "other DVRs", be my guest, but TiVo will have to give up all their previous argument for not disabling the DVR functionalities on the same DVRs, wouldn't they? They are now "other DVRs", and the injunction never ordered E* to disable the DVR functionalities on any "other DVRs."


----------



## jacmyoung (Sep 9, 2006)

Greg Bimson said:


> Wholly incorrect. The "hardware claims" cover the index table; the software claims cover a box (hardware)...


And along the same line of thinking, if the "software claims" (claims 31 and 61 in question here) cover only "the box", not the software, and since the colorable difference analysis only deals with the new E* software, not "the box", then such colorable difference analysis may not have anything to do with claims 31 and 61.

Therefore when E* says their new software no longer uses the "indexing method", TiVo may not argue that but the change is irrelevant because claims 31 and 61 never mentioned the word "index". Because claims 31 and 61 themselves have nothing to do with the software used in the DVRs in the first place.

If your assertion is correct that is.


----------



## dfd (Aug 29, 2008)

jacmyoung said:


> And along the same line of thinking, if the "software claims" (claims 31 and 61 in question here) cover only "the box", not the software, and since the colorable difference analysis only deals with the new E* software, not "the box", then such colorable difference analysis may not have anything to do with claims 31 and 61.
> 
> Therefore when E* says their new software no longer uses the "indexing method", TiVo may not argue that but the change is irrelevant because claims 31 and 61 never mentioned the word "index". Because claims 31 and 61 themselves have nothing to do with the software used in the DVRs in the first place.
> 
> If your assertion is correct that is.


Did I fall in to the rabbit hole?

This hearing is to determine contempt and if there is ongoing infringement correct?

If there is 'ongoing' infringement it stands to reason that at some point in time the defendant was found to infringe right?

And since the defendant in fact was found to infringe claims 31 and 61 then this hearing is linked to what those claims are correct?

I don't understand in your looking glass world so please explain how any of what you are saying has to do with the two claims that E* was found to infringe.

In my mind the two sides arguments need to boil down to:

Tivo - they still do all of the steps in claim 31 (process) OR they still have the same apparatus in claim 61.

E* - we don't do ALL of the steps in 31 AND we have a different apparatus than claim 61.

Any argument that E* makes regarding anything but claims 31 or 61 do nothing to help them prove they don't infringe those claims.


----------



## scooper (Apr 22, 2002)

First there has to be the colorable difference analysis. If it passes there, THEN an infringement analysis would be performed against the patent claims.


----------



## jacmyoung (Sep 9, 2006)

dfd said:


> Did I fall in to the rabbit hole?


You did at least half way, and I will explain below.



> This hearing is to determine contempt and if there is ongoing infringement correct?


Only to detemine if there was a contempt/violation.



> If there is 'ongoing' infringement it stands to reason that at some point in time the defendant was found to infringe right?


If there is on-going infringement, there is violation/contempt. There is no need to reason that at some point in time E* was found to infringe, they were in fact found to infringe "at some point in time."



> And since the defendant in fact were found to infringe claims 31 and 61 then this hearing is linked to what those claims are correct?


Not in the first colorable difference analysis.



> I don't understand in your looking glass world so please explain how any of what you are saying has to do with the two claims that E* was found to infringe.


Unfortunately looking "through my glass" I could not see what your question really meant.



> In my mind the two sides arguments need to boil down to:
> 
> Tivo - they still do all of the steps in claim 31 (process) OR they still have the same apparatus in claim 61.


Correct! All the steps in claims 31 and 61 must still be met to prove on-going infringement.



> E* - we don't do ALL of the steps in 31 AND we have a different apparatus than claim 61.


No, we don't do at least one of all the steps of claims 31 and 61, that will be enough to prove non-infringement.



> Any argument that E* makes regarding anything but claims 31 or 61 do nothing to help them prove they don't infringe those claims.


True, but as Scooper already said, the first test will be the colorable difference test, in this test, E* does not need to prove they don't infringe those claims, only to establish the doubt whether they still infringe or not. If E* succeeds in establishing such doubt, E* will not be in contempt and this contempt proceeding must end, even if in a later time E*'s new design might still again be found an infringement.


----------



## dfd (Aug 29, 2008)

jacmyoung said:


> No, we don't do at least one of all the steps of claims 31 and 61, that will be enough to prove non-infringement.


This must be wrong.

They were found to infringe two different claims.

To not be infringing they MUST NOT infringe either claim.

If you are found guilty of carrying a gun illegally and robbing a bank then later get the robbery charge dismissed you are still on the hook for carrying a gun illegally.


----------



## Greg Bimson (May 5, 2003)

dfd said:


> This hearing is to determine contempt and if there is ongoing infringement correct?





jacmyoung said:


> Only to detemine if there was a contempt/violation.


I don't believe Judge Folsom ever gave a reason why ongoing infringement needed to be found, other than it was needed to settle the motion. Judge Folsom never said it was needed to link the granting or denial of contempt, but simply that an evaluation was needed.


----------



## dfd (Aug 29, 2008)

scooper said:


> I don't think so, at least not in legal.


TFF


----------



## scooper (Apr 22, 2002)

dfd said:


> TFF


What does that mean ?


----------



## jacmyoung (Sep 9, 2006)

Sterling said:


> You said we
> 
> Jacmyoung, do you work for E* ??
> 
> .


He used "we", so I copied Did dfd work for E*?


----------



## jacmyoung (Sep 9, 2006)

Greg Bimson said:


> I don't believe Judge Folsom ever gave a reason why ongoing infringement needed to be found, other than it was needed to settle the motion. Judge Folsom never said it was needed to link the granting or denial of contempt, but simply that an evaluation was needed.


But Judge Folsom was reported as saying now he would not make a decision on the infringement issue soon, and he might need another hearing to decide the infringement issue.

I took that to imply he would not try to find infringement from the 2/17/09 hearing, which may mean the only thing he would do would to determine the software colorable difference issue. And since to find a contempt, TiVo must first prove only colorable difference, then only after that TiVo must at the same time, prove with clear and convincing evidence that the new design still infringes on the patent claims.

As a result, it is likely Judge Folsom had already thought TiVo had failed to prove only colorable difference, else he would not have said TiVo might need another hearing (new action) to again prove infringement, TiVo should be allowed to go ahead to prove infringement if TiVo had already succeeded in proving only colorable difference.


----------



## Greg Bimson (May 5, 2003)

Once again, jumping the gun...


jacmyoung said:


> But Judge Folsom was reported as saying now he would not make a decision on the infringement issue soon, and he might need another hearing to decide the infringement issue.





> *From the Bloomberg.com article:*
> U.S. District Judge David Folsom today said he wants lawyers to submit written arguments after completion of a two- day hearing that began this morning in Texarkana, Texas. *He said a second hearing may be needed to determine whether to shut Dish's current service.* The judge provided no time frame for a decision.


Doesn't appear the second hearing will be associated with finding infringement.

So it appears the rest of the post is moot, as pure speculation without basis in fact (reported fact, but still fact). Otherwise, the article would have stated that Judge Folsom would have had to hold a second hearing to determine infringement, not to determine "to shut DISH's current service".

I am guessing that Judge Folsom would hold a second hearing to determine what should be in the order he would issue, should he grant contempt.


----------



## dfd (Aug 29, 2008)

scooper said:


> What does that mean ?


too funny


----------



## Curtis52 (Oct 14, 2003)

Greg Bimson said:


> I don't believe Judge Folsom ever gave a reason why ongoing infringement needed to be found, other than it was needed to settle the motion. Judge Folsom never said it was needed to link the granting or denial of contempt, but simply that an evaluation was needed.


Because he can't just say they are not more than colorably different and stop there. He has to drop the other shoe and say that because they are not more than colorably different, they still infringe. It's a necessary formality.


----------



## jacmyoung (Sep 9, 2006)

Greg Bimson said:


> Once again, jumping the gun...Doesn't appear the second hearing will be associated with finding infringement.
> 
> So it appears the rest of the post is moot, as pure speculation without basis in fact (reported fact, but still fact). Otherwise, the article would have stated that Judge Folsom would have had to hold a second hearing to determine infringement, not to determine "to shut DISH's current service".
> 
> I am guessing that Judge Folsom would hold a second hearing to determine what should be in the order he would issue, should he grant contempt.


Because you missed an earlier reference in the same article when the judge said he would not rule on the infringement issue immediately. Without a finging of infringement, he cannot rule a contempt.

This is my take. I used to think the Judge has abused his discretion by ordering an infringement analysis in this contempt hearing, because case law I cited indicated so by the Federal Circuit.

However I now realize that what is improper will be if after a more than colorable difference finding, the judge continues on to decide whether there is an infringement. It is fine for him to order any kind of analysis he wishes, as long as in making his ruling, he follows the standards.

And the report above seems to indicate just that, he would not continue to determine the infringement issue, therefore he will not have abused his discretion, that is if he finds more than colorable difference.

If he finds only colorable difference, then he would in fact have to then find infringement in the same shot, in order to find a contempt.


----------



## Greg Bimson (May 5, 2003)

jacmyoung said:


> Because you missed an earlier reference in the same article when the judge said he would not rule on the infringement issue immediately. Without a finging of infringement, he cannot rule a contempt.


First sentence is absolutely true. Second sentence is not.

Judge Folsom only asked for an evaluation of continuing infringement and colorable difference as relating to the motion for contempt. Judge Folsom never stated, "Without a finging of infringement, he cannot rule a contempt."


----------



## nobody99 (May 20, 2008)

jacmyoung said:


> If he finds only colorable difference, then he would in fact have to then find infringement in the same shot, in order to find a contempt.


You do realize that merely colorable changes necessarily, by definition, mean that it still infringes, which by definition means contempt (for all DVRs, named or unnamed).

But the changes _could _be more than colorable but _still _infringe, in which case the 4+ million DVRs already ordered shut down would still need to be shut down and would still be in contempt. I'm not sure what it would mean for new models that use the same software, though. My guess is that it would mean new trial but a temporary restraining order would be issued to shut the DVR functions down on them down as well.


----------



## jacmyoung (Sep 9, 2006)

Greg Bimson said:


> First sentence is absolutely true. Second sentence is not...


The most I would say is, the first sentence is true, but I do not agree with the second sentence

Whether the second sentence is true or not will depend on the judge's ruling. I think it is true because his boss had said so over and over, without a finding of infringement, there cannot be a finding of violation of an injucntion on infringement.

You do not have to agree, but I would not say it is not true, we just don't know for sure what the judge will say yet.


----------



## jacmyoung (Sep 9, 2006)

nobody99 said:


> You do realize that merely colorable changes necessarily, by definition, mean that it still infringes, which by definition means contempt (for all DVRs, named or unnamed)...


There was never such definition made by the courts unless you can find one.

If the difference is merely colorable, by definition the infringer did not make a good faith effort to avoid infringment, and in such case, the patentee may use the infringement analysis in the contempt proceeding to further prove that an infringement is true, as long as the patentee proves it by clear and convincing evidence.

Only after that, there can be a contempt finding.


----------



## Wheaton (Feb 12, 2003)

While rereading the Barton Patent Abstract , it appears a little clearer to me how the Tivo process works functionally. Where and when "parsing" takes place, how component streams are buffered, that "Events are recorded that indicate the type of component that has been found, where it is located, and when it occurred."

My questions is. Can this straight forward description of the Barton patent be used to help determine how colorably different the E* process is from Tivo's patent?

http://patft.uspto.gov/netacgi/nph-...&l=50&d=PALL&RefSrch=yes&Query=PN/6233389#top


----------



## Greg Bimson (May 5, 2003)

jacmyoung said:


> Because you missed an earlier reference in the same article when the judge said he would not rule on the infringement issue immediately. Without a finging of infringement, he cannot rule a contempt.





Greg Bimson said:


> First sentence is absolutely true. Second sentence is not.
> 
> Judge Folsom only asked for an evaluation of continuing infringement and colorable difference as relating to the motion for contempt. Judge Folsom never stated, "Without a finging of infringement, he cannot rule a contempt."





jacmyoung said:


> The most I would say is, the first sentence is true, but I do not agree with the second sentence
> 
> Whether the second sentence is true or not will depend on the judge's ruling. I think it is true because his boss had said so over and over, without a finding of infringement, there cannot be a finding of violation of an injucntion on infringement.
> 
> You do not have to agree, but I would not say it is not true, we just don't know for sure what the judge will say yet.


Now that whole train of thought is basically true.

But then there is no reason to state with absolute certainty that, "Without a finging of infringement, he cannot rule a contempt." We don't know that. After all, I believe this is the first time a hearing has been held to find "continuing infringement" on devices already adjudged to infringe.


----------



## Greg Bimson (May 5, 2003)

Wheaton said:


> My questions is. Can this straight forward description of the Barton patent be used to help determine how colorably different the E* process is from Tivo's patent?


No.

Infringement is only about the claims of the patent, not the abstract.


----------



## Sterling (Feb 18, 2009)

jacmyoung said:


> If the difference is merely colorable, by definition the infringer did not make a good faith effort to avoid infringment


Does good faith matter ? After all Big C of E* already said they worked hard.

Shouldn't your sentence read ?

If the difference is merely colorable, by definition the infringer did not make _effective or significant changes necessary_ to avoid infringment.
.


----------



## nobody99 (May 20, 2008)

jacmyoung said:


> nobody99 said:
> 
> 
> > You do realize that merely colorable changes necessarily, by definition, mean that it still infringes, which by definition means contempt (for all DVRs, named or unnamed).
> ...


Wrong. But I think what you meant to say was "I haven't been able to find a definition of colorable difference, can you?" Saying "never" as you did originally implies that you are conveying a fact where none exists.



> A difference more than colorable is one that gives rise to some fair ground for doubt that the modified product is within the scope of the injunction. American Foundry & Mfg. Co. v. Josam Mfg. Co., 79 F.2d 116, 118-19


By definition, a change that is merely colorable gives no doubt that the modified product is within the scope of the injunction.

Logic 101.


----------



## jacmyoung (Sep 9, 2006)

Sterling said:


> You did not answer the question.
> Jacmyoung, Do you work for E* or a company representing E* ?


Most people will not ask such question because a company's employee or representive may not comment in the public about issues of an active litigation this company is involved in, or else...



> Does good faith matter ?


Yes of course.



> After all Big C of E* already said they worked hard.


Did TiVo prove E* did not work hard? That is the question the judge has to answer.



> Shouldn't your sentence read ?
> 
> If the difference is merely colorable, by definition the infringer did not make _effective or significant changes necessary_ to avoid infringment.
> .


You can certainly read it that way.


----------



## jacmyoung (Sep 9, 2006)

nobody99 said:


> ...By definition, a change that is merely colorable gives no doubt that the modified product is within the scope of the injunction.
> 
> Logic 101.


Not so. More than colorable gives rise to fair ground the doubt, mere colorable therefore does not give rise to fair ground the doubt.

There can still be doubt, only that such doubt is no longer on a fair ground. It there is no doubt, there will be no need to again prove with clear and convincing evidence the infringement still exists.


----------



## jacmyoung (Sep 9, 2006)

Greg Bimson said:


> ...After all, I believe this is the first time a hearing has been held to find "continuing infringement" on devices already adjudged to infringe.


You continue to ignore the two cases, the Footprint 2.0 network sever and that egg processing plant cases.


----------



## nobody99 (May 20, 2008)

jacmyoung said:


> There can still be doubt, only that such doubt is no longer on a fair ground.


What the H-E-Double-Hockeysticks does _that_ mean?


----------



## jacmyoung (Sep 9, 2006)

http://www.cafc.uscourts.gov/opinions/07-1019.pdf



> [Similarly to what E* had argued once earlier] Apotex asserts that the district court abused its discretion in proceeding via a contempt proceeding because any determination of infringement in this case would require "scientific testing, expert opinions, and a host of credibility determinations" that would preclude a contempt proceeding. Appellant Br. at 45. It is true that we have counseled against contempt proceedings of a summary nature where "'expert and other testimony subject to cross-examination would be helpful or necessary.'" Arbek Mfg., Inc. v. Moazzam, 55 F.3d 1567, 1570 (Fed. Cir. 1995) (quoting KSM Fastening Sys., Inc. v. H.A. Jones Co., Inc., 776 F.2d 1522, 1531 (Fed. Cir. 1985)). *However, we have said so in the context of a former infringer "who has made a good-faith effort to modify a previously adjudged or admitted infringing device [no regard to if it is "new", "old" or "already sold"] to remain in the marketplace."* Arbek Mfg., 55 F.3d at 1570. The district court found that "Apotex's choice of Nu-Pharm to file the ANDA was a subterfuge intended to give Apotex a crack at another district judge" 2007-1019. [Meaning the infringer clearly did so in bad faith.]
> 
> *Notwithstanding the above*, [meaning even though the infringer above had already been found in bad faith, which is not the case here] we have held that before entering a judgment of contempt of an injunction in a patent infringement case, *a district court must address two separate questions*. First, the district court must address whether a contempt hearing is an appropriate forum for adjudging whether an allegedly redesigned product is infringing. KSM Fastening Sys., 776 F.2d at 1532; Additive Controls, 154 F.3d at 1349-50. In doing so, the district court must compare the accused product with the original infringing product. If there is "more than a colorable difference" between the accused product and the adjudged infringing product [regardless if the product is "new", "modified", "already in service"] such that "substantial open issues with respect to infringement to be tried" exist, contempt proceedings are not appropriate. KSM Fastening, 776 F.2d at 1532. [Meaning if the difference is more than colorable, infringement analysis is not appropriate to continue in the contempt proceeding.]
> 
> Second, if contempt proceedings are appropriate, [meaning if the difference is found merely colorable,] *the district court must address whether the accused product infringes the claims of the asserted patent.* Additive Controls, 154 F.3d at 1349. To show infringement, the patentee "must prove by clear and convincing evidence that 'the modified device [again regardless if it may be considered "new", "old", "already sold", as long as it is "modified"] falls within the admitted or adjudicated scope of the claims.'" Arbek Mfg., 55 F.3d at 1569 (quoting KSM Fastening, 776 F.2d at 1530).


Just so to make it clear, the "accused devices" in this proceeding are the 8 named DVRs with the new software, and the "original infringing products" are the 8 named DVRs with the old software. The device had been modified through software updates, E* had provided volumes and volumes of evidence to demonstrate such modification.


----------



## jacmyoung (Sep 9, 2006)

nobody99 said:


> What the H-E-Double-Hockeysticks does _that_ mean?


If you cannot understand it, then read the above quoted parts and you will understand.


----------



## nobody99 (May 20, 2008)

jacmyoung said:


> If you cannot understand it, then read the above quoted parts and you will understand.


Let me make it dead simple for you. What does it mean when you say "doubt is no longer on a fair ground?"

Does it mean that there is unfair ground? That there was cheating involved, or maybe theft and skullduggery? Perhaps some treason on the high seas?

Or did you mean to say "fairground" at that the doubt is no longer near ferris wheels, bumper cars and games of skill?

Since jacmyoung won't explain what he means, and I am obviously dense, can someone else please explain what it means that doubt is no longer on a fair ground?


----------



## nobody99 (May 20, 2008)

As I have repeated said, when your premise is flawed, your conclusions are naturally flawed as well.

Since your entire premise rests on the concept that KSM says previously-adjudicated devices can be modified, we'll just quote (again) the preface to KSM



> In view of these and other considerations to be discussed, where the patent owner seeks to enforce an injunction against an enjoined infringer by reason of a manufacture which was not the subject of the original litigation


So everything you say after "KSM" is a flawed premise, and there's no need to even discuss it.


----------



## jacmyoung (Sep 9, 2006)

nobody99 said:


> Let me make it dead simple for you. What does it mean when you say "doubt is no longer on a fair ground?"
> 
> Does it mean that there is unfair ground? That there was cheating involved,


You might say that, if the new software is found to be only colorably different than the old software, I would say the effort was in bad faith, but I have no problem if you call it cheating.


----------



## jacmyoung (Sep 9, 2006)

nobody99 said:


> As I have repeated said, when your premise is flawed, your conclusions are naturally flawed as well.
> 
> Since your entire premise rests on the concept that KSM says previously-adjudicated devices can be modified, we'll just quote (again) the preface to KSM
> 
> So everything you say after "KSM" is a flawed premise, and there's no need to even discuss it.


KSM is not the only thing, if you noticed the above case was not KSM, in fact I have not quoted KSM for a very long time

There are many other cases quoted in the above case, most of them are post-KSM.


----------



## Greg Bimson (May 5, 2003)

jacmyoung said:


> Just so to make it clear, the "accused devices" in this proceeding are the 8 named DVRs with the new software, and the "original infringing products" are the 8 named DVRs with the old software. The device had been modified through software updates, E* had provided volumes and volumes of evidence to demonstrate such modification.


DISH/SATS did not provide volumes and volumes of evidence to prove that adjudged receivers have new software. DISH/SATS can only state they placed the modification in the stream, but that people could opt-out of accepting the download.

Make separate distinctions, here.


Greg Bimson said:


> ...After all, I believe this is the first time a hearing has been held to find "continuing infringement" on devices already adjudged to infringe.





jacmyoung said:


> You continue to ignore the two cases, the Footprint 2.0 network sever and that egg processing plant cases.


Neither of which has been referenced by DISH/SATS in their filings, to date, and neither of which appears to have been an enjoined product. The process was enjoined, so the infringers changed the process, which was easily allowable. Neither case appears to have ordered products disabled, just the infringing process. If that were allowable in this case, none of us would even be arguing.


----------



## 20TIL6 (Sep 3, 2008)

I'd like to know if jacmyoung works for DISH. Has he clearly said either:

I am employed by EchoStar (DISH).

I am not employed by EchoStar (DISH).


----------



## nobody99 (May 20, 2008)

Sterling said:


> No, you have not answered the question. Am I am not alone in wanting to know the answer.
> 
> Did not ask you to post what you do. Just what you are not.
> By not answering you must have something to hide.
> ...


I would also like to know. And, as I have disclosed before, I am a TiVo user (and have been since the first 14-hour TiVo) and own TiVo stock (wich I have onwed for many years).


----------



## HobbyTalk (Jul 14, 2007)

Greg Bimson said:


> DISH/SATS did not provide volumes and volumes of evidence to prove that adjudged receivers have new software. DISH/SATS can only state they placed the modification in the stream, but that people could opt-out of accepting the download.


You do not know that for sure. If it was a forced download, end users CAN NOT opt out of that download. Please keep to the facts as you know them. Thanks


----------



## Greg Bimson (May 5, 2003)

HobbyTalk said:


> If it was a forced download, end users CAN NOT opt out of that download. Please keep to the facts as you know them.


From Investor Village TiVo board:


> mr. e* and others did say they had trouble with the downloads and it didn't happen overnight, so some boxes infringed for a long time. *I will note that e* people have said, they have no way of "knowing" or "proving" what boxes got the updated software. they say all did, but can't provide any data.*


Don't you think that is a problem? They provided no "data" to the courts, just internal emails regarding problems with the software download, and software release notes from both DBSTalk and SatelliteGuys.

Please. Just take our word. We no longer infringe. Please, take our word, we downloaded new software to all the boxes. And because your words said to "disable Infringing Products", we changed the software to no longer infringe, and therefore do not have to disable anything. Just take our word.

Proof. Evidence.

Lacking.


----------



## Ron Barry (Dec 10, 2002)

People, we have issued this more than once. Stop with the personal attacks. If someone wants to offer up disclosure feel free. If someone does not, that is their choice and people can feel free to read what they want into it but all accusations of who someone is or where they work is off topic and subject to removal and if people continue down that road further action will be taken.

For the people that seem to be new to this thread.. Apologize for the harsh wording. I suggest if you are unclear as to the rules of this thread read Tom's first post.

I have removed a few posts that I feel were personal and therefore is off-topic. Lets keep on topic


----------



## HobbyTalk (Jul 14, 2007)

Greg Bimson said:


> From Investor Village TiVo board:Don't you think that is a problem? They provided no "data" to the courts, just internal emails regarding problems with the software download, and software release notes from both DBSTalk and SatelliteGuys.


You said


> but that people could opt-out of accepting the download.


This is false. There may or may not have been some problems with some getting the download. but users can not "opt out" of a forced download. You are using "forum posts" to try and prove your point, and it is forum posts the E* is using as one supporting point that you suggest should be ignored?


----------



## James Long (Apr 17, 2003)

Greg Bimson said:


> Please. Just take our word. We no longer infringe. Please, take our word, we downloaded new software to all the boxes. And because your words said to "disable Infringing Products", we changed the software to no longer infringe, and therefore do not have to disable anything. Just take our word.
> 
> Proof. Evidence.
> 
> Lacking.


"To the true believer, no proof is necessary. To the non believer, no proof is sufficient."

Is there ANYTHING DISH can do to convince you they have ceased infringing?


----------



## Greg Bimson (May 5, 2003)

HobbyTalk said:


> There may or may not have been some problems with some getting the download. but users can not "opt out" of a forced download.


The assumption here is that there is evidence the download was forced. Got a link?


HobbyTalk said:


> You are using "forum posts" to try and prove your point, and it is forum posts the E* is using as one supporting point that you suggest should be ignored?


The post I quoted is from one person which ATTENDED the hearings on 17/18 February 2009. Big difference, as he is reporting what he heard, first person.


jacmyoung said:


> Is there ANYTHING DISH can do to convince you they have ceased infringing?


Not really. There has been obfuscation and confusion at every step since the Court of Appeals upheld both the guilty verdict against Claims 31 and 61 of the Time Warp patent and the injunction to disable the adjudged infringing DVR's.

When one pulls the sheets back, there isn't much of a difference between the DVR's found infringing and the work-around, except for the removal of one index table and the substitution of a new one in the "algorithm" to analyze the stored broadcast to determine trick play functionality.


----------



## jacmyoung (Sep 9, 2006)

Greg Bimson said:


> DISH/SATS did not provide volumes and volumes of evidence to prove that adjudged receivers have new software.


E* provided a very long list of evidence in their exhibits filing posted by James. I counted at least 10 to 15 documents as evidence of new software download, I bet some of them can go on and on for hundreds of pages because a software download log may contain hundreds evens thousands of DVR IDs.



> DISH/SATS can only state they placed the modification in the stream, but that people could opt-out of accepting the download.


Can you provide a quote or a link to such statement? Besides, even if some people could opt out of the download, the question is what is a resaonable effort. For example, when the judge ordered E* to disable the DVR functionalites, I assume you agree he did not order the DVRs to be destroyed, and they may still be used as non-DVRs? Now what do you think will be a reasonable way to verify if the DVRs are all turned into non-DVRs? If a few of the DVR users learned some way to prevent the download, or even managed to hack the DVRs so they cannot be turned into non-DVRs, would the jduge hold E* in contempt for not getting the very last one disabled?

In your mind what is a reasonable approach?



> Make separate distinctions, here.Neither of which has been referenced by DISH/SATS in their filings, to date,


There is no need for E* to have to cite everything if it is a known standard that an adjudicated device can be modified to avoid infringement. TiVo on the other hand must prove somehow some special kind of devices may not be modified to avoid infringement. Did you find any?



> ...and neither of which appears to have been an enjoined product. The process was enjoined, so the infringers changed the process, which was easily allowable. Neither case appears to have ordered products disabled, just the infringing process. If that were allowable in this case, none of us would even be arguing.


The point is an adjudicated device (such as the Footprint 2.0 net servers) was modified in the field while still in use to avoid infringement, the circumstances behind each case aren't the issue here. If you insist each prior case must be entirely identical to this case in order to be applied here, it is impossible and therefore unreasonable. You wouldn't be able to find any ruling where there is any citing of case law at all, because no two cases can be identical.

KSM had established a standard for all cases to follow, but KSM was established nearly 25 years ago, at the time "software patent" was still in its infancy, and KSM of course was not dealing with any software issues.

Since then a lot had happened, the issue of whether software could even be patented was hotly debated, and the Court ruled that yes software could be patented because software could be treated equally as a manufactured device, product, process, just like hardware products.

If you want to know more about the issue of software as real device, treated just like a conventional hardware device, you do not have to look further, just ask Curtis52, he will quote you many such references.

There is a reason why Judge Folsom wants to know if the new software is only colorably different than the old software or not. The E*'s DVR software is considered a product, a device, treated equally as any other products, devices, processes, methods, or as the Court sometime said, *"the thing"* that is at issue, whether that "thing" still infringe or not, that is all that matters.


----------



## jacmyoung (Sep 9, 2006)

Greg Bimson said:


> ...Not really. There has been obfuscation and confusion at every step since the Court of Appeals upheld both the guilty verdict against Claims 31 and 61 of the Time Warp patent and the injunction to disable the adjudged infringing DVR's.
> 
> When one pulls the sheets back, there isn't much of a difference between the DVR's found infringing and the work-around, except for the removal of one index table and the substitution of a new one in the "algorithm" to analyze the stored broadcast to determine trick play functionality.


I don't remember asking that question, but since it is your belief the difference is only colorable, then that is perfectly fine. We will find out.

Then why are you arguing the other issues such as whether all DVRs had been updated? Why should that matter to you if as you believe the update is still an infringement?


----------



## Ron Barry (Dec 10, 2002)

Greg Bimson said:


> The assumption here is that there is evidence the download was forced. Got a link?


Link to what? it being forced? I am not aware of one but even if it was not forced Dish eventually gets everyone on the same version of software. It is their process period. Opt out people eventually are pulled into the current version. Can they prove when each receiver was updated.. Opinions have been made a few pages back. My opinion is that they can't and I think the process is designed in such a way they can can state with some reasonable certainty that it did happen even with people opting out.



Greg Bimson said:


> The post I quoted is from one person which ATTENDED the hearings on 17/18 February 2009.


Yes I have read a few of these type post and though the person is attending the event like the one here he has his objectives, his bias, is motivation, etc. My personal opinion about these type of posts it is like listing to the Lakers game in Bostan on a Bostan network vs. watching Lakers local. Be amazing how different the games are announced and what is seen and the take of each announcer. Same Game.. Yes I am sure this person was there, but given the number of linked posts of this person I have scanned due to being linked here, my opinion is that his take is definitely tilted heavily one way so to me I have my doubts on how accurate a depiction is has don't give them a lot of weight.



Greg Bimson said:


> When one pulls the sheets back, there isn't much of a difference between the DVR's found infringing and the work-around, except for the removal of one index table and the substitution of a new one in the "algorithm" to analyze the stored broadcast to determine trick play functionality.


Like has been said... Time will tell if which way the courts feel. Looks like there are people in both sides of this camp.


----------



## Greg Bimson (May 5, 2003)

jacmyoung said:


> The point is an adjudicated device (such as the Footprint 2.0 net servers) was modified in the field while still in use to avoid infringement, the circumstances behind each case aren't the issue here. If you insist each prior case must be entirely identical to this case in order to be applied here, it is impossible and therefore unreasonable. You wouldn't be able to find any ruling where there is any citing of case law at all, because no two cases can be identical.


The point being that it was not the SERVERS enjoined, but the Footprint 2.0 SERVICE which was enjoined, but only enjoined as configured. Change the configuration, and the service can no longer be enjoined.


----------



## Greg Bimson (May 5, 2003)

Greg Bimson said:


> The assumption here is that there is evidence the download was forced.


[Mod note: personal attack of Mr. Bimson has been removed]

Because until there is evidence, even when according to what I linked DISH/SATS even stated they have no idea when the download was installed, that means there actually needs to be something called "proof". If it is called "process", then the process needs to be the proof. And it must be presented.

Again...


HobbyTalk said:


> There may or may not have been some problems with some getting the download. but users can not "opt out" of a forced download.


What is the "proof" that the modified software was a forced download?


----------



## Greg Bimson (May 5, 2003)

For those that have the need to keep score...

There is no proof that there was a forced download of modified software. There is no proof that it is installed. There is proof that DISH/SATS did modify their software and place it in the download stream. Some people definitely received the software, but they are unidentifiable.

Does that mean the orignally adjudged infringing receivers are still running as adjudged? Where is the "proof"?

I'll take all links of "proof" you want to post. But you will then see how much of a daunting task this is.


----------



## Tom Robertson (Nov 15, 2005)

*Moderator Warning*

A very simple test one can use to check their posts. Anytime I see the word "you" in a post, I immediately look for potential insults, attacks, or anything else inappropriate.

So simply don't talk about each other. Talk about the case. Don't use the word "you".

Thank you (that form is permitted, by the way) for participating. Please keep it to the information.

Thanks,
Tom


----------



## nobody99 (May 20, 2008)

James Long said:


> Is there ANYTHING DISH can do to convince you they have ceased infringing?


This single sentence illustrates the differences between our viewpoints.

The problem is that DISH doesn't need to convince Greg Bimson that they have ceased infringing. They need to convince a court which has a standing injunction telling them to do something that they haven't done.

Right, wrong, or indifferent, DISH should have shown more care in documenting the upgrade if for no other reason as to impressive the court.


----------



## jacmyoung (Sep 9, 2006)

I want to ask this question again.

If one believes E* was in violation for not disabling the DVR functionalities, and also believes E* still infringes.

Then why would one try so hard to question the software update record? Why does it matter? Why would it change anything even if E* does have a record to prove the very last DVR had the new software update, as long as E* did not disable the DVRs and E*'s DVRs still infringe?


----------



## James Long (Apr 17, 2003)

nobody99 said:


> James Long said:
> 
> 
> > Is there ANYTHING DISH can do to convince you they have ceased infringing?
> ...


You're right ... nothing we say here matters. The opinion of James Long and EVERY OTHER POSTER IN THIS THREAD is equal in not mattering in the grand scheme of things. It is up to DISH to convince the court that they have ceased infringing.

But since NONE of us are speaking for the court or to it we have ended up with a discussion amongst ourselves as to the merits of the case. The outcome of TiVo vs EchoStar will not be affected by proof offered in this thread but I believe it is fair to ask of those able to answer in this forum what proof they would accept.

At this point it seems that no proof would be accepted, falling in line with the quote that was part of the post you quoted. If no proof is acceptable then there is no reason to spend time offering any proof here.



> Right, wrong, or indifferent, DISH should have shown more care in documenting the upgrade if for no other reason as to impressive the court.


That is a valid opinion ... however it is not a requirement and the precedence shows that even with poor record keeping a field modified product can be found to be non-infringing. There IS the possibility that Judge Folsom will accept that DISH modified their products - and if that modification changes the product to be non-infringing that they have followed "the spirit of the injunction" ... a concept Judge Folsom himself raised.

The evidence offered in TiVo vs EchoStar (the real case, not the Internet discussion) is mostly sealed confidential attorney eyes only documents than NONE of us have seen (and anyone who has seen them would be under a non-disclosure agreement). It is interesting to see how many people "know" the content of sealed confidential documents. 

We also have some hearsay reports from a person who admittedly was not present for the entire trial in open court and would have been barred from the courtroom during certain segments of testimony (as noted in the Minutes). I personally find it odd that when a contradiction is found between official court documents and the hearsay some choose to believe the hearsay ... but I digress.

When the court speaks, I'll listen.


----------



## Sterling (Feb 18, 2009)

jacmyoung said:


> I want to ask this question again.
> 
> If one believes E* was in violation for not disabling the DVR functionalities, and also believes E* still infringes.
> 
> Then why would one try so hard to question the software update record? Why does it matter? Why would it change anything even if E* does have a record to prove the very last DVR had the new software update, as long as E* did not disable the DVRs and E*'s DVRs still infringe?


You are right.

E* still infringes. 
E* has not disabled the illegal devices. 
And no court has said otherwise.

You are right.


----------



## James Long (Apr 17, 2003)

Sterling said:


> You are right.
> 
> E* still infringes.
> E* has not disabled the illegal devices.
> ...


Three opinions (one stated twice) and one fact. 

The court would not have spent the better part of the last year (since May) dealing with the issue if there was not a question that those two statements regarding E* might have changed.


----------



## Sterling (Feb 18, 2009)

James Long said:


> Three opinions (one stated twice) and one fact.


Funny...

Regardless, If the courts actually devoted more than a few hours when it got around to it then this case it would have been over long ago. Sad actually.


----------



## jacmyoung (Sep 9, 2006)

James Long said:


> Three opinions (one stated twice) and one fact.
> 
> The court would not have spent the better part of the last year (since May) dealing with the issue if there was not a question that those two statements regarding E* might have changed.


Not to mention that wasn't the answer to my question at all.

How about I answer that question first and others can feel free to disagree.

The reason TiVo had devoted some time to try to point out E* might not have clear record to prove exactly when their DVRs had stopped using the old software, between 10/06 and 05/07, is that there is a good possibility that the judge would agree with E* that the new design might no longer infringe.

In such case, TiVo would want to point out that most of those DVRs were probably updated close to 05/07, rather 10/06, therefore had continued to use the old software for longer time than E* would like to claim, and therefore had continued to infringe longer than E* would like to claim.

And as such TiVo can get most damages out of E* for that period of time when most of the DVRs still used the old software, and therefore continued to infringe.


----------



## jacmyoung (Sep 9, 2006)

Sterling said:


> Funny...
> 
> Regardless, If the courts actually devoted more than a few hours when it got around to it then this case it would have been over long ago. Sad actually.


So it is sad the court had basically screwed it up? If so can we really be sure the court will not screw it up again?


----------



## scooper (Apr 22, 2002)

Sterling said:


> Funny...
> 
> Regardless, If the courts actually devoted more than a few hours when it got around to it then this case it would have been over long ago. Sad actually.


I'm sure if Tivo feels the wrong decision was reached for the wrong reasons, that they will file an appeal. They may file one anyway if they feel it was the wrong decision.


----------



## nobody99 (May 20, 2008)

jacmyoung said:


> I want to ask this question again.
> 
> If one believes E* was in violation for not disabling the DVR functionalities, and also believes E* still infringes.
> 
> Then why would one try so hard to question the software update record? Why does it matter? Why would it change anything even if E* does have a record to prove the very last DVR had the new software update, as long as E* did not disable the DVRs and E*'s DVRs still infringe?


Jacmyoung, I offer you this information strictly as my opinion, and I'm really not going to debate things again for the millionth time. I am just expressing my viewpoint.

I have no idea if they still infringe, and I personally think it is preposterous for us to even try to figure that out.

So in a best-case scenario for DISH (they don't infringe, I say it's 50-50% chance), I'm interested in the outcome for TiVo's financial future. I completely agree with the idea that KSM would mean TiVo needs to bring a new suit against DISH if they are more than colorably different.

So that leaves us with the four million DVRs that were expressly adjudicated. Here's a case where KSM certainly does not apply:



> In view of these and other considerations to be discussed, where the patent owner seeks to enforce an injunction against an enjoined infringer by reason of a manufacture which was not the subject of the original litigation


In my view, DISH has missed numerous opportunities to have the injunction modified to specifically allow a workaround to be downloaded to the already-adjudicated receivers. Failing that, they should have gone to the court and told the court that a workaround had been downloaded and it no longer infringed. But it did neither of these things. In my view DISH acted, frankly, recklessly.

So let's assume that in a second best-case scenario for DISH, Judge Folsom says that he won't hold them in contempt (an outcome I feel is highly unlikely...I give this a 10% chance). Even in this case, DISH will be liable for infringement through the date on which the new software was installed.

Again, DISH should have had a bullet-proof method of capturing this information. It should be able to go into court with a minute-by-minute accounting of when each upgrade occurred. Not because they have some legal obligation to do so, but because it would have been a prudent thing to do. Combine it with the fact that they referenced messages boards (redacted), it sounds like it's just amateur-hour operation.

When Judge Folsom calculates damages, how does he determine when infringement ended? James Long has suggested "add a month or two" but then you are talking an extra $20 - 50 million. Would you be so cavalier with your company's money that $20 million was not worth trying to save?

There has also been speculation that DISH knows full well that it still infringes, and it's just going to wait this out until the bitter end. If you know you infringe, why bother capturing all this information. If you are saving $5 million a month in DVR licensing fees, and you settle five minutes before the decision, you've now saved $120 million over two years as this has dragged on.

Folsom's chamber meeting with each side's legal team, Ergen, and Rogers sure made it sound like he wants the two sides to settle, but it also sounds like DISH will be hurt more by a decision than TiVo.


----------



## Sterling (Feb 18, 2009)

nobody99 said:


> Again, DISH should have had a bullet-proof method of capturing this information. It should be able to go into court with a minute-by-minute accounting of when each upgrade occurred. Not because they have some legal obligation to do so, but because it would have been a prudent thing to do. Combine it with the fact that they referenced messages boards (where, incidentally, posts and text seem to be routinely deleted), it sounds like it's just amateur-hour operation.
> 
> When Judge Folsom calculates damages, how does he determine when infringement ended? James Long has suggested "add a month or two" but then you are talking an extra $20 - 50 million. Would you be so cavalier with your company's money that $20 million was not worth trying to save?
> .


Absolutely correct...

This is not rocket science. Store a date/time stamp. (File create date for example) Retrieve the date/time stamp. If E* has the power to turn off customers when they don't pay then they have the power to retrieve the information. Even if the retrieval has to become something as non-technical as calling the customer by phone or making the customer call in to an 800 number.

Instead of Agreeing with Nobody99's quote above this is offered as a rebutal.



James Long said:


> Are you so sure that better records could be kept without seeing the records that were kept? Evidence that was attorney eyes only?


That not an effective argument. Just spreading FUD.


----------



## nobody99 (May 20, 2008)

[Moderator note: responses to a deleted post were redacted.]

Do you know the terms under which TiVo's attorney was willing to settle? $3 a box maybe? I'd be anxious in settling too on those terms.


----------



## jacmyoung (Sep 9, 2006)

nobody99 said:


> ...When Judge Folsom calculates damages, how does he determine when infringement ended? James Long has suggested "add a month or two" but then you are talking an extra $20 - 50 million. Would you be so cavalier with your company's money that $20 million was not worth trying to save?...


I offered my answer to the question above, and asked if others may try to disagree.

You responded in disagreement, but in my view only the above quote had some to do with your disagreement with my answer, the rest are not related to the answer to my question.

Let me respond to your above quote then:

If Charlie is willing to risk paying $20M more, what are you going to do about it? It's his money. He risked paying $104M in the past, did he settle?


----------



## jacmyoung (Sep 9, 2006)

nobody99 said:


> ...Do you know the terms under which TiVo's attorney was willing to settle? $3 a box maybe? I'd be anxious in settling too on those terms.


Again, if Charlie is not anxious to settle under any condition, only wants to clear his name first, can you blame him?

He has been called an infringer, a thief, a lier, that his engineers were clueless, only knew how to copy, his so called new design was not possible, no way and no how. And his lawyers were useless, only knew how to lose his case, oh really?

And this much was at least implied by TiVo in the very public eye.

But he has so far managed to do at least three things that may clear his name:

1) His new design may no longer infringe, therefore he is not in violation.
2) TiVo's very patent may be invalidated due to obviousness by prior art.
3) He had filed a suit in the DE court to ask the court to find his new design non-infringing. That case is still pending, presumably to wait for the outcome of this case.

There is a long way to go even from here on.

What would you do in such situation, do you not want to clear your name too, especially if you have more than enough resources to do so?


----------



## Herdfan (Mar 18, 2006)

Is there any way that E* can be found in contempt (because they did not follow the court order as written) and also be found to no longer infringe?

If so, what remedies would the judge have to deal with this?


----------



## scooper (Apr 22, 2002)

Herdfan said:


> Is there any way that E* can be found in contempt (because they did not follow the court order as written) and also be found to no longer infringe?


No infringement = no contempt



 Herdfan said:


> If so, what remedies would the judge have to deal with this?


----------



## jacmyoung (Sep 9, 2006)

And let me go a little further to say that IMHO, it shows Charlie's personality.

He seems a person not only have faith in himself, but have faith in his men/women, especially after those men had initially "screwed it up" for him.

After the initial loss to TiVo, he continued to use the same lawyers to win the next Forgent case. Now his engineers had developed their own new DVR technology, the same engineers that might have copied TiVo's work before.

Now his men/women also get a chance to clear their names for themselves, all because Charlie is willing to stick with them.

Is anyone not able to see at least the slightest positive light in this?


----------



## nobody99 (May 20, 2008)

jacmyoung said:


> If Charlie is willing to risk paying $20M more, what are you going to do about it? It's his money.


Oh, I would guess that there are probably tens of thousands of shareholders who would disagree that it's "his money."


----------



## jacmyoung (Sep 9, 2006)

nobody99 said:


> Oh, I would guess that there are probably tens of thousands of shareholders who would disagree that it's "his money."


He and his partner own what 80%+ stake in the companies? Yes it is his money to win and lose.


----------



## nobody99 (May 20, 2008)

jacmyoung said:


> He has been called an infringer,


Actually, he's a proven infringer.



jacmyoung said:


> a thief,


An infringer is a thief, so yes, he's a proven thief.



jacmyoung said:


> a lier,


Not sure where that comes from. Has he been called a liar on message boards? Sure. But I hope you are not suggesting that he took this suit all the way to the end (risking a lot of the company's money) because a handful of people called him a liar on a few message boards.



jacmyoung said:


> that his engineers were clueless,


I don't remember anyone ever once alleging that his engineers were "clueless." Working for a conceited boss, yes. Clueless, probably not.



jacmyoung said:


> And his lawyers were useless, only knew how to lose his case, oh really?


Not sure where you saw that either.



jacmyoung said:


> And this much was at least implied by TiVo in the very public eye.


So you are saying that *TiVo *intentionally implied that DISH's engineers were clueless and its lawyers useless? Wow, that's an amazin stretch of the imagination.



jacmyoung said:


> But he has so far managed to do at least three things that may clear his name:


I will remind you again that the goal is not to clear his name. He has a fiduciary responsibility to his shareholders, not to his name.



> What would you do in such situation, do you not want to clear your name too, especially if you have more than enough resources to do so?


Clearing my name wouldn't have even entered the equation. My responsibility to shareholders and customers would have been my first and only concerns.


----------



## jacmyoung (Sep 9, 2006)

nobody99 said:


> ...I will remind you again that the goal is not to clear his name. He has a fiduciary responsibility to his shareholders, not to his name...


(redacted)

If he was not trying to clear his name, why do you think he would file a lawsuit in the DE court to ask the court to declare his new design not infringing? A main reason as the filing stated why it was filed was because TiVo continued to claim in the public that the new design was still an infringement, without TiVo even had a chance to review the source code.

[Moderator example] Dose that not appear [strike]to you[/strike] that he wanted to clear his name?

So what if he believes clearing his name and the names of his people is more important than making some money for his shareholders? [Moderator note: redacted]


----------



## nobody99 (May 20, 2008)

Your last post:



jacmyoung said:


> E* wants to clear its name


An earlier post



jacmyoung said:


> Charlie is not anxious to settle under any condition, only wants to clear his name first


[Moderator example] Surely [strike]you can see[/strike] the difference is clear.


----------



## Tom Robertson (Nov 15, 2005)

[Moderator Note]
This thread is closed for maintenance for a day. Please come back tomorrow with a refreshed point of view, sunnier outlook, and we'll have cleaned the pond for you.

I am very serious about the use of "You" and other implied commentary about others.

If you have any questions, please PM me. I'm happy to explain what I can.

Thank you for understanding,
Tom

One other note
If an offending post stays for more than a few minutes does not give one leave to respond. While we are watching this thread closely, we don't read every post the moment it hits. As a volunteer staff, we too have lives and other threads to enjoy. So do not respond in public.


----------



## Tom Robertson (Nov 15, 2005)

Good morning! Welcome back.

Big news yesterday with the TiVo conference call, did the case get covered?

Cheers,
Tom


----------



## jacmyoung (Sep 9, 2006)

Tom Robertson said:


> Good morning! Welcome back.
> 
> Big news yesterday with the TiVo conference call, did the case get covered?
> 
> ...


Rogers of TiVo remains confident that E* violated the injunction and BTW, the new design still infringes on its patent.

Charlie of E* sounded "sad" (according to folks who listened to the call) but said he believes the new design will succeed, and said he will wait for the judge's ruling to decide the next step.

When I had E* service I did watch a few of his "Charlie Chats" and I do not recall he ever sounded happy


----------



## Steve (Aug 22, 2006)

Tom Robertson said:


> Good morning! Welcome back.
> 
> Big news yesterday with the TiVo conference call, did the case get covered?


From their comments yesterday, it sounds like TiVo has already, at least conceptually, added more E* $$$ to their '10 bottom line. /steve


----------



## Greg Bimson (May 5, 2003)

jacmyoung said:


> If he was not trying to clear his name, why do you think he would file a lawsuit in the DE court to ask the court to declare his new design not infringing?


DISH/SATS was trying to play the legal game by their rules. If Delaware accepted the case, it was likely that DISH/SATS could get a second bite at the apple, by having receivers adjudged as infringements retried in another court. No wonder the action in that court was stayed.

Actually, has anyone heard about the Delaware case? I heard a rumor it was dismissed, but it was only a rumor.


----------



## jacmyoung (Sep 9, 2006)

Greg Bimson said:


> DISH/SATS was trying to play the legal game by their rules. If Delaware accepted the case, it was likely that DISH/SATS could get a second bite at the apple, by having receivers adjudged as infringements retried in another court. No wonder the action in that court was stayed.
> 
> Actually, has anyone heard about the Delaware case? I heard a rumor it was dismissed, but it was only a rumor.


No it is not dismissed, only stayed, but why? If there is no merit in E*'s complaint, why didn't the DE court dismiss it?

If the judge rules on the contempt issue without a ruling on the new design infringement issue (which he was reported as saying), then the DE court will have the juristiction over the issue of the new design infringement. If TiVo wants to further litigate it, they will have to go before the DE court.

There will be no "getting a second bite at the apple" if Judge Folsom decides not to take that bite.


----------



## Greg Bimson (May 5, 2003)

jacmyoung said:


> If there is no merit in E*'s complaint, why didn't the DE court dismiss it?


Because the merit is in defending the ViP series, those which were not adjudged.


jacmyoung said:


> If the judge rules on the contempt issue without a ruling on the new design infringement issue (which he was reported as saying)...


Link, please?


----------



## James Long (Apr 17, 2003)

FYI: The last activity in the Delaware case (1:08-cv-00327-JJF Dish Network Corporation et al v. TiVo Inc.) is pretty much nothing.

There was a "Rule 16 Scheduling Conference" set for September 11th that was cancelled on August 29th, a day after TiVo requested that the oral arguments on their motion to dismiss also be heard on September 11th.

A redacted version of a sealed exhibit filed Aug 25th was posted on Sept 2nd and DISH added two more lawyers on October 16th but nothing is happening there. Updates as events warrant.

(The new USPTO filing also saw some more paper in February, but no decision or anything else of lasting interest.)


----------



## jacmyoung (Sep 9, 2006)

Greg Bimson said:


> Because the merit is in defending the ViP series, those which were not adjudged.


E* asked the DE court to issue a declaratory ruling that the new E* design is non-infringing, VIPs were never even mentioned, nor should E* limit this to any particular DVRs.



> Link, please?


I have done so more than once already.


----------



## jacmyoung (Sep 9, 2006)

James Long said:


> FYI: The last activity in the Delaware case (1:08-cv-00327-JJF Dish Network Corporation et al v. TiVo Inc.) is pretty much nothing.
> 
> There was a "Rule 16 Scheduling Conference" set for September 11th that was cancelled on August 29th, a day after TiVo requested that the oral arguments on their motion to dismiss also be heard on September 11th.
> 
> ...


You are right, it was not even stayed, only put on the shelf for now.


----------



## Tom Robertson (Nov 15, 2005)

jacmyoung said:


> I have done so more than once already.


True, yet doing so again helps those who are just now coming to the thread. Happily we get new members all the time. 

Thanks,
Tom


----------



## Greg Bimson (May 5, 2003)

jacmyoung said:


> If the judge rules on the contempt issue without a ruling on the new design infringement issue (which he was reported as saying)...


It was never reported anywhere that Judge Folsom may issue a ruling without a finding on the infringement status.


----------



## jacmyoung (Sep 9, 2006)

Tom Robertson said:


> True, yet doing so again helps those who are just now coming to the thread. Happily we get new members all the time.
> 
> Thanks,
> Tom


Ture but not for Greg, because he linked that report for us himself


----------



## jacmyoung (Sep 9, 2006)

Kidding aside: http://www.bloomberg.com/apps/news?pid=conewsstory&refer=conews&tkr=TIVO:US&sid=agR09dwBlFnU



> Feb. 17 (Bloomberg) -- A federal judge indicated he won't rule immediately on whether Dish Network Corp.'s digital-video recording service still infringes a TiVo Inc. patent.


Meaning he would not make a decision on the infringement issue out of this hearing.



> He said a second hearing may be needed to determine whether to shut Dish's current service. The judge provided no time frame for a decision.


Whether to shut off DISH's current service is the same as saying to determine whether the current service still infringes on the patent, and he said to do so another hearing may be needed.


----------



## Greg Bimson (May 5, 2003)

> *From Bloomberg:*
> He said a second hearing may be needed to determine whether to shut Dish's current service. The judge provided no time frame for a decision.





jacmyoung said:


> Whether to shut off DISH's current service is the same as saying to determine whether the current service still infringes on the patent, and he said to do so another hearing may be needed.


The linked article did not say "a second hearing may be needed to determine whether to find infringement".

Therefore, it was NOT "reported" that Judge Folsom may need a second hearing to find infringement.


----------



## jacmyoung (Sep 9, 2006)

Greg Bimson said:


> The linked article did not say "a second hearing may be needed to determine whether to find infringement".
> 
> Therefore, it was NOT "reported" that Judge Folsom may need a second hearing to find infringement.


But if to shut off the service is to confirm an infringement first, isn't it the same as saying a second hearing may be needed to find infringement, if found, to shut off the service?


----------



## Greg Bimson (May 5, 2003)

jacmyoung said:


> But if to shut off the service is to confirm an infringement first, isn't it the same as saying a second hearing may be needed to find infringement, if found, to shut off the service?


This doesn't make sense, so I'll simply say no.


----------



## jacmyoung (Sep 9, 2006)

Greg Bimson said:


> This doesn't make sense, so I'll simply say no.


Did it make sense that the judge wanted to find out if the new software is only colorably different than the old software or not? I even recall you said the judge was "dead wrong" for trying to find that out.

Did it make sense for the judge to say he would not rule immediately whether the DVRs still infringes on the TiVo's patent? After all he ordered two things to be done in this hearing, one to determine the software colorable difference issue, one to determine if the DVRs still infringe on the TiVo's patent. What did he mean when he said now he would not rule on the second order?

What about "the DVR functionalities?" After all the *first* issue before us is to determine whether E* had violated the injunction for not disabling "the DVR functionalities," is it not?

What are "the DVR functionalities" really? Are they hardware or software, or somewhere in between? Or may be they are more of some software functions than hardware?

Confused yet? And guess what, any confusion (i.e. ambiguity) must benefit the defendants, not the plaintiffs.


----------



## Curtis52 (Oct 14, 2003)

Reuters report yesterday:

"The company has been locked in a patent infringement dispute with satellite TV provider EchoStar Corp (SATS.O) that dates back to 2004. A court ruled in TiVo's favor in 2006 and the company was paid $104 million in damages by Dish Network Corp (DISH.O) and EchoStar.

But *EchoStar continues to distribute TiVo DVRs* as a Texas court considers whether EchoStar's new DVR software further infringes TiVo's patent."

link


----------



## dfd (Aug 29, 2008)

Curtis52 said:


> Reuters report yesterday:
> 
> "The company has been locked in a patent infringement dispute with satellite TV provider EchoStar Corp (SATS.O) that dates back to 2004. A court ruled in TiVo's favor in 2006 and the company was paid $104 million in damages by Dish Network Corp (DISH.O) and EchoStar.
> 
> ...


Just goes to show how DUMB the average reporter is.


----------



## Curtis52 (Oct 14, 2003)

dfd said:


> Just goes to show how DUMB the average reporter is.


What? Reporters sometimes get things mixed up? LOL


----------



## scooper (Apr 22, 2002)

Curtis52 said:


> What? Reporters sometimes get things mixed up? LOL


What I'd like to know is how often they get them correct ?


----------



## jacmyoung (Sep 9, 2006)

scooper said:


> What I'd like to know is how often they get them correct ?


I would rather listen to a "dumb kid" to tell me what had happened even though he might not know what was really going on, than listen to a very smart man who is himself involved right in the middle of the dispute


----------



## Greg Bimson (May 5, 2003)

jacmyoung said:


> Did it make sense that the judge wanted to find out if the new software is only colorably different than the old software or not? I even recall you said the judge was "dead wrong" for trying to find that out.


Because the software was never adjudged by itself.


jacmyoung said:


> Did it make sense for the judge to say he would not rule immediately whether the DVRs still infringes on the TiVo's patent? After all he ordered two things to be done in this hearing, one to determine the software colorable difference issue, one to determine if the DVRs still infringe on the TiVo's patent. What did he mean when he said now he would not rule on the second order?


What second order?


jacmyoung said:


> What about "the DVR functionalities?" After all the first issue before us is to determine whether E* had violated the injunction for not disabling "the DVR functionalities," is it not?


No. The contempt motion is to determine if DISH/SATS complied with the injunction by disabling the DVR functions of receivers adjudged infringing.


jacmyoung said:


> What are "the DVR functionalities" really? Are they hardware or software, or somewhere in between? Or may be they are more of some software functions than hardware?


From the order...

"disable all storage to and playback from a hard disk drive of television data"

It is the only definition of DVR functionality.


jacmyoung said:


> Confused yet? And guess what, any confusion (i.e. ambiguity) must benefit the defendants, not the plaintiffs.


Not confused at all by spin.


----------



## jacmyoung (Sep 9, 2006)

Greg Bimson said:


> Because the software was never adjudged by itself.


So the judge is no longer "dead wrong?"



> What second order?


I should have said the second item in the hearing order.



> ...It is the only definition of DVR functionality...


But is it software issue or hardware issue?



> Not confused at all by spin.


And yet in a contempt proceeding, it is such "spin" that the defendants will use to drive through the "doubt", the "ambiguity", to benefit from them. Wonder why there has been no contempt ruling after nearly a year, even though TiVo was so clear that the injunction was violated?


----------



## Greg Bimson (May 5, 2003)

jacmyoung said:


> And yet in a contempt proceeding, it is such "spin" that the defendants will use to drive through the "doubt", the "ambiguity", to benefit from them. Wonder why there has been no contempt ruling after nearly a year, even though TiVo was so clear that the injunction was violated?


Because Judge Folsom needed to determine the status of infringement and colorable difference before he rules. At least that was what the latest order stated.


----------



## jacmyoung (Sep 9, 2006)

Greg Bimson said:


> Because Judge Folsom needed to determine the status of infringement and colorable difference before he rules. At least that was what the latest order stated.


What if he only makes a ruling on the colorable difference, but not on the infringement? The report certainly seemed to point to that possibility.

What will likely happen then? Contempt or not?


----------



## Greg Bimson (May 5, 2003)

jacmyoung said:


> What if he only makes a ruling on the colorable difference, but not on the infringement? The report certainly seemed to point to that possibility.
> 
> What will likely happen then?


The Bloomberg article never seemed to point to that possibility.


----------



## Curtis52 (Oct 14, 2003)

> Feb. 17 (Bloomberg) -- A federal judge indicated he won't rule immediately on whether Dish Network Corp.'s digital-video recording service still infringes a TiVo Inc. patent.
> U.S. District Judge David Folsom today said he wants lawyers to submit written arguments after completion of a two- day hearing that began this morning in Texarkana, Texas.


The prophecy has been fulfilled. There was no ruling on Feb. 19.


----------



## jacmyoung (Sep 9, 2006)

Greg Bimson said:


> The Bloomberg article never seemed to point to that possibility.


I was asking for your opinion. If the judge only rules on the colorable issue, not the infringement issue, what that may mean to you, a contempt or no contempt? Or something else?

What about Curtis52?


----------



## Greg Bimson (May 5, 2003)

jacmyoung said:


> I was asking for your opinion. If the judge only rules on the colorable issue, not the infringement issue, what that may mean to you, a contempt or no contempt? Or something else?


It is my opinion that Judge Folsom will NOT issue a ruling solely upon the colorable difference issue.


----------



## Curtis52 (Oct 14, 2003)

I'm guessing that Judge Folsom will again want to include the amount of damages in any new Final Judgment and Permanent Injunction. There will need to be a hearing on whether TiVo still passes the four factor test required by eBay Inc. v. MercExchange to justify an injunction and on the amount of damages to be awarded.


----------



## jacmyoung (Sep 9, 2006)

Greg Bimson said:


> It is my opinion that Judge Folsom will NOT issue a ruling solely upon the colorable difference issue.


If he finds the difference more than colorable, he may not make a ruling of no contempt?


----------



## jacmyoung (Sep 9, 2006)

Curtis52 said:


> I'm guessing that Judge Folsom will again want to include the amount of damages in any new Final Judgment and Permanent Injunction. There will need to be a hearing on whether TiVo still passes the four factor test required by eBay Inc. v. MercExchange to justify an injunction and on the amount of damages to be awarded.


If I understand you correctly, your guess is he would find no contempt? Because if there is a contempt, there is no need to issue another "Final Judgment" nor another "Permenent Injucntion."


----------



## Greg Bimson (May 5, 2003)

jacmyoung said:


> If I understand you correctly, your guess is he would find no contempt? Because if there is a contempt, there is no need to issue another "Final Judgment" nor another "Permenent Injucntion."


If contempt is granted, Judge Folsom will then issue another order. It would be along the lines of another judgment, and possibly another injunction.


jacmyoung said:


> If he finds the difference more than colorable, he may not make a ruling of no contempt?


I believe it speaks volumes that Judge Folsom's original order was to only address infringement, although he later stated in writing that it was always his intention to address the colorable difference issue. So the answer to that question is "I don't know".


----------



## Curtis52 (Oct 14, 2003)

I wonder what "gross profits" means.

Oh, here it is: "In accounting, gross profit or sales profit is the difference between revenue and the cost of making a product or providing a service, before deducting overhead, payroll, taxation, and interest payments."



> Worcester, Massachusetts - April 1, 2005 - Late yesterday in Boston, United States District Court Judge Nathaniel M. Gorton found STX LLC of Baltimore, Maryland, in contempt of court for violation of a permanent injunction Judge Gorton issued last year in a suit successfully brought by Brine, Inc. of Milford, Massachusetts for infringement of a lacrosse stick patent. *Judge Gorton ordered STX to pay Brine the gross profits from sales of an infringing lacrosse stick, as well as costs and attorneys fees relating to the contempt issue. *Mirick O'Connell, a Massachusetts law firm, prosecuted the case. The legal team included Brian Dingman, Esq. and John Mirick, Esq.
> 
> On January 21, 2004, Judge Gorton issued a final judgment of over $2 million in the patent infringement suit brought by Brine against STX. In November 2003, a federal jury in Worcester returned a verdict of willful patent infringement and damages for lost profits of $1.9 million in the same suit.
> 
> ...


----------



## jacmyoung (Sep 9, 2006)

Greg Bimson said:


> If contempt is granted, Judge Folsom will then issue another order. It would be along the lines of another judgment, and possibly another injunction.


I had not read an example of a contempt against an injunction was found, then the court would issue another injunction.



> I believe it speaks volumes that Judge Folsom's original order was to only address infringement, although he later stated in writing that it was always his intention to address the colorable difference issue. So the answer to that question is "I don't know".


Can you provide a link where he said he had always wanted to address the colorable difference issue?


----------



## Greg Bimson (May 5, 2003)

From Mainer's site:


> It is plainly within this Court's discretion to hear evidence regarding this threshold issue at the same time it hears evidence on the continuing infringement of the accused products. See Landis v. N. Am. Co., 299 U.S. 248, 254 (1936) (noting "the power inherent in every court to control the disposition of the causes on its docket with economy of time and effort for itself, for counsel, and for litigants"). Such was always this Court's intention.


----------



## jacmyoung (Sep 9, 2006)

Greg Bimson said:


> From Mainer's site:


I think it is too much reading into the above to say the judge meant he had always wanted to address the colorable difference (threshold) issue.

It could easily be interpreted as the court had always believed it was plainly within its own discretion to hear all kinds of evidence as it wished without being accused of having abused its discretion.

To me, it is rather clear, though I admit I cannot read the judge's mind, but when initially the judge only ordered that "bench trial" to determine only the DVR infringement issue, he did not think about the need to do any colorable difference analysis, else he would have ordered such analysis.

Had E* not objected to such arrangement, we would have been sitting around here talking only whether the DVRs are still an infringement or not.

Instead, today, we are speculating the possibility that the judge may only address the *software* colorable difference issue, not the *hardware* infringement issue.

To me that is simply too much a departure from the initial plan to say the judge had always wanted it this way.


----------



## Greg Bimson (May 5, 2003)

jacmyoung said:


> I think it is too much reading into the above to say the judge meant he had always wanted to address the colorable difference (threshold) issue.


Sentence construction time...

The last sentence in the paragraph:


> Such was always this Court's intention.


Intention to what? Can't be anything in but what is in the paragraph, preceding the sentence.


> It is plainly within this Court's discretion to hear evidence regarding this threshold issue at the same time it hears evidence on the continuing infringement of the accused products.


It was always Judge Folsom's intention to evaluate continuing infringement and the threshold for colorable difference.

Yet adhering to the "colorable difference threshold" wasn't in the original order.


----------



## jacmyoung (Sep 9, 2006)

Greg Bimson said:


> ...Yet adhering to the "colorable difference threshold" wasn't in the original order.


It wasn't because it wasn't in the original order.

Judges are human, they overlook things, they make mistakes, that is why the parties are given the right to object to a motion, an order, and to appeal a ruling.

Judges often change their decisions when they see merit in the objections without admitting wrong. It is well within the judges' discretion not to admit wrong when they modify their otherwise not so correct orders.


----------



## Greg Bimson (May 5, 2003)

jacmyoung said:


> Judges often change their decisions when they see merit in the objections without admitting wrong. It is well within the judges' discretion not to admit wrong when they modify their otherwise not so correct orders.


The statement, paraphrasing, was that it was always his intention to find the colorable difference threshold, although it wasn't originally ordered.

So the omission of an admission that Judge Folsom may have erred can be overlooked. That is a direct challenge to the statement, "Such was always this Court's intention."

The only way Judge Folsom may have made a mistake in his original order would mean that the statement "Such was always this Court's intention" is a LIE. I am not used to seeing a sitting judge called a liar.


----------



## jacmyoung (Sep 9, 2006)

Greg Bimson said:


> ...The only way Judge Folsom may have made a mistake in his original order would mean that the statement "Such was always this Court's intention" is a LIE. I am not used to seeing a sitting judge called a liar.


No one is calling him a liar so that is a strawman argument. The judge of course can overlook some thing even though it was always his intention not to overlook that thing.

This is what I will say: "the only way Judge Folsom will have abused his discretion would be that in his final ruling he does not rule on the colorable difference issue."

In that case E* can, just like all the other defendants, appeal and have a ruling of contempt (if that is indeed the case) overturned.

In a contempt proceeding however, the court does not have to rule on the infringement issue, if the difference is more than colorable, the contempt proceeding must end.


----------



## Greg Bimson (May 5, 2003)

jacmyoung said:


> This is what I will say: "the only way Judge Folsom will have abused his discretion would be that in his final ruling he does not rule on the colorable difference issue."


Judge Folsom has to rule on the colorable difference issue. TiVo has accused devices sold with only the modified software as infringements. Think of the current DP-625, as it is still being sold, but only with the newer software.

However, TiVo has also accused the devices originally found infringing as continuing to infringe. Colorable difference might not come into play on the devices adjudged to infringe, as _KSM_ only deals with accusing a device never presented before the court, as the last hearing was all about the devices in question "continuing to infringe".


----------



## Curtis52 (Oct 14, 2003)

Greg Bimson said:


> Colorable difference might not come into play on the devices adjudged to infringe, as _KSM_ only deals with accusing a device never presented before the court, as the last hearing was all about the devices in question "continuing to infringe".


The purpose of the colorable differences test is to determine whether the device in question has ever been presented before the court.


----------



## jacmyoung (Sep 9, 2006)

Greg Bimson said:


> Judge Folsom has to rule on the colorable difference issue. TiVo has accused devices sold with only the modified software as infringements. Think of the current DP-625, as it is still being sold, but only with the newer software.
> 
> However, TiVo has also accused the devices originally found infringing as continuing to infringe. Colorable difference might not come into play on the devices adjudged to infringe, as _KSM_ only deals with accusing a device never presented before the court, as the last hearing was all about the devices in question "continuing to infringe".


Again we are back to argue whether it is the "device" and what the "device" means.

KSM established a standard in the context of the "devices" it was dealing with, about 25 years ago. Since then "software" had been ruled to be equally a "device" that is "manufactured" just like a "product", a "device", a "process", a "thing."

Again if you want proof, ask Curtis52, he has a lot of citations on this issue.

Now the Injunction of course says many things, but the only thing at issue at this time is about the 8 named DVRs, nothing else.

And the only thing evolves around these 8 named DVRs is whether "the DVR functionalities" had been disabled, and if not, whether E*'s solution constitutes a violation of such order to disable.

Now since "the DVR functionalities" are the only issue in the current hearing, the quesiton is, do you call this issue a software issue, or hardware issue?

If it is reasonable to say that this issue is a software issue, then this issue is really a question of whether such "software device", which was ordered to be disabled, was really indeed disabled.

E* basically says they did disable that "software device", and replaced it with a new "software device", and since the two "devices" are more than colorably different, they are not in violation.


----------



## Curtis0620 (Apr 22, 2002)

jacmyoung said:


> E* basically says they did disable that "software device", and replaced it with a new "software device", *and since the two "devices" are more than colorably different, they are not in violation*.


Here is where you are stating opinion as fact. It is only your's and DISH's opinion. TiVo and others think otherwise.


----------



## scooper (Apr 22, 2002)

Curtis52 said:


> The purpose of the colorable differences test is to determine whether the device in question has ever been presented before the court.


And in this case - that would be the "new" E* DVR software. IMO.


----------



## jacmyoung (Sep 9, 2006)

Curtis0620 said:


> Here is where you are stating opinion as fact. It is only your's and DISH's opinion. TiVo and others think otherwise.


Of course it is my opinion, didn't James say unless stated as a fact, it should be assumed an opinion?

But TiVo's opinion is the same as Greg's, that the software does not matter, only the DVRs. So who cares if E* downloaded the new software?

Unfortunately that opinon is not going to work if the judge has determined yes, he does care about the software, in fact if that report is correct, software might be the only thing he would care about from this hearing.


----------



## Ron Barry (Dec 10, 2002)

Curtis0620 said:


> Here is where you are stating opinion as fact. It is only your's and DISH's opinion. TiVo and others think otherwise.





jacmyoung said:


> Of course it is my opinion, didn't James say unless stated as a fact, it should be assumed an opinion?
> 
> But TiVo's opinion is the same as Greg's, that the software does not matter, only the DVRs. So who cares if E* downloaded the new software?
> 
> Unfortunately that opinon is not going to work if the judge has determined yes, he does care about the software, in fact if that report is correct, software might be the only thing he would care about from this hearing.


If I am reading this correctly, the jacstating Dish's opinion and possible his. You are stating yours and Tivos. As for others, well everyone on here has one and it most likely falls into one of the two possible camps and perhaps even more camps.

It does not look to me like the jacmyoung was stating fact. I believe it was posted above that all posts here should be considered to be opinions that may or may not be based on factually information and it should be considered as one person's opinion based on the information available to he or she. Of course there are facts out there in form of court documents etc, but still those are left to poster's interpretation of those facts and their believes.

The general rule of thumb for this thread is.. Everything is an opinion unless stated as a fact. If stated as a fact, by all means it should be questioned if believed not to be factual, but most posts here are opinion based and should be general read this way.


----------



## jacmyoung (Sep 9, 2006)

Ron Barry said:


> ... If stated as a fact, by all means it should be questioned if believed not to be factual, ...


And *in fact* I did make a factual statement in my last post, Curtis52 is more than welcome to dispute that statement if necessary:



> ...*in fact* if that report is correct, software might be the only thing he would care about from this hearing.


----------



## Greg Bimson (May 5, 2003)

jacmyoung said:


> ...in fact if that report is correct, software might be the only thing he would care about from this hearing.


No.

The hearing was to determine both the threshold for colorable difference and *continuing infringement*.


----------



## jacmyoung (Sep 9, 2006)

Greg Bimson said:


> No.
> 
> The hearing was to determine both the threshold for colorable difference and *continuing infringement*.


Then you are not reading that report saying what the judge had said on 2/17.

I try to go by what *the latest* the judge is saying. He seemed to imply he would not rule on the infringement issue from this hearing.


----------



## Greg Bimson (May 5, 2003)

jacmyoung said:


> Then you are not reading that report saying what the judge had said on 2/17.
> 
> I try to go by what *the latest* the judge is saying. He seemed to imply he would not rule on the infringement issue from this hearing.


Judge Folsom stated he may need another hearing to determine whether to shut the DVR service down. Therefore, the only implication is the subject of that hearing (if needed) would be the penalty for the granted contempt motion (if granted).

There is no report, article or transcript that states Judge Folsom would not rule on infringement, which was exactly one of two subjects of the February hearing.


----------



## dfd (Aug 29, 2008)

jacmyoung said:


> And *in fact* I did make a factual statement in my last post, Curtis52 is more than welcome to dispute that statement if necessary:


'If' and 'might' are rarely used in factual statements.


----------



## jacmyoung (Sep 9, 2006)

dfd said:


> 'If' and 'might' are rarely used in factual statements.


"If in fact" is a common term used, unless you do not consider it a factual statement, then don't dispute it on factual ground.


----------



## jacmyoung (Sep 9, 2006)

Greg Bimson said:


> Judge Folsom stated he may need another hearing to determine whether to shut the DVR service down. Therefore, the only implication is the subject of that hearing (if needed) would be the penalty for the granted contempt motion (if granted).
> 
> There is no report, article or transcript that states Judge Folsom would not rule on infringement, which was exactly one of two subjects of the February hearing.


Again you continue to miss that other reference when the judge said he would not immediately rule whether the DVRs still infringe or not.

Usually when a judge says he will not rule immediately on something, he is saying he will not make a ruling on that issue from the current proceeding or hearing. Maybe in another hearing, but probably not from this one.


----------



## dfd (Aug 29, 2008)

jacmyoung said:


> "If in fact" is a common term used, unless you do not consider it a factual statement, then don't dispute it on factual ground.


"If in fact" is a *phrase* used when there is doubt as to whether something is actually a fact.

When we disagree with the definition of what "if" is it is no wonder we disagree about the definition of "the" in the original injunction.

Reminds me of a guy that once said, "That depends upon what your definition of the word 'is' is."


----------



## jacmyoung (Sep 9, 2006)

dfd said:


> "If in fact" is a *phrase* used when there is doubt as to whether something is actually a fact.
> 
> When we disagree with the definition of what "if" is it is no wonder we disagree about the definition of "the" in the original injunction.
> 
> Reminds me of a guy that once said, "That depends upon what your definition of the word 'is' is."


In my view, "if in fact the judge said so", then it would not be a matter of opinion rather a fact he said so, with a condition of course if it is true, but that condition is not an opinion either.

You can either agree with that fact, or dispute that fact that it may not be factual, but it will not be a matter of opinion whether he said it or not. What I may speculate or conclude from such fact may be an opinion.

When we distpute the word "the" in the injunction, we are not disputing any factual information, there is no dispute that it is a fact the word "the" is in there, only that what we may define that word may be based on one's interpretation or opinion.

And of course, if there is difference of interpretation or opinion, if both of them have merit, the benefit goes to the defendant.

Notice in this last statement, it is a factual statement that ambiguity benefits the defendant, if, both interpretations/opinions equally have their merit, then that factual statement applies that E* should benefit from the dispute.


----------



## Greg Bimson (May 5, 2003)

jacmyoung said:


> Again you continue to miss that other reference when the judge said he would not immediately rule whether the DVRs still infringe or not.





> U.S. District Judge David Folsom today said he wants lawyers to submit written arguments after completion of a two- day hearing that began this morning in Texarkana, Texas.


Written arguments about a two-day hearing which had two subjects. Yep, Judge Folsom won't rule immediately, as he wants "closing arguments" about the subjects at hand.


jacmyoung said:


> Usually when a judge says he will not rule immediately on something, he is saying he will not make a ruling on that issue from the current proceeding or hearing. Maybe in another hearing, but probably not from this one.


Yep. The issues in this proceeding are colorable difference and infringement. And by asking for written arguments regarding the current proceeding or hearing, it will delay a ruling on those subjects.

I guess colorable difference wasn't even a subject of the 17-18 February hearing since it wasn't addressed in the Bloomberg article.


----------



## jacmyoung (Sep 9, 2006)

Greg Bimson said:


> Written arguments about a two-day hearing which had two subjects. Yep, Judge Folsom won't rule immediately, as he wants "closing arguments" about the subjects at hand.Yep. The issues in this proceeding are colorable difference and infringement. And by asking for written arguments regarding the current proceeding or hearing, it will delay a ruling on those subjects.
> 
> I guess colorable difference wasn't even a subject of the 17-18 February hearing since it wasn't addressed in the Bloomberg article.


Of course you have your interpretation that is different from mine.

This much is I hope factual, that when the judge ordered the lawyers to provide the "final FFCLs" at the beginning of the heairng, it was because the FFCLs they submitted were not complete. That order had nothing to do with the statement that the judge would not rule on infringement immediately. He wasn't wating for the final FFCL before he would rule on infringement.

Why I say that? Because he ordered the lawyers to file the final FFCLs right at the beginning of the hearing, before anything else, so it is my speculation such order had nothing to do with his later comment that he would not rule on the infringement.

Of course the reporters are sometimes "dumb" as some one put it. They may have thought the two were related.

As far as how to interpret it when the judge did not comment on the colorable difference issue, yes you may say that is an indication he may not address the colorable issue, but my opinion is he meant he would not address the infringement issue, and he did not say he would not address the colorable issue.

Therefore I say he will address the colorable issue, because the law requires him to do so. In a contempt proceeding, the court must *first* address such "threashold question" before anything else.

A lot of the above are of course opinions and speculations, but I try to base my opinions on the factual statement and law.

You do not have to agree with me, you may offer your own, but I'd like to see the basis on which your opinon or speculation is.


----------



## dfd (Aug 29, 2008)

jacmyoung said:


> And of course, if there is difference of interpretation or opinion, if both of them have merit, the benefit goes to the defendant.


I wouldn't want to pin my argument to a judge on, "Your Honor, I didn't understand what the word 'the' meant."

BTW - It did not work out well for the guy that tried to parse the word 'is' - impeachment and loss of his law license I believe.


----------



## Greg Bimson (May 5, 2003)

jacmyoung said:


> This much is I hope factual, that when the judge ordered the lawyers to provide the "final FFCLs" at the beginning of the heairng, it was because the FFCLs they submitted were not complete. That order had nothing to do with the statement that the judge would not rule on infringement immediately. He wasn't wating for the final FFCL before he would rule on infringement.


Hope? Only the judge will issue a "final FFCL".


jacmyoung said:


> Of course the reporters are sometimes "dumb" as some one put it. They may have thought the two were related.


Yet there is opinion formed from the basis of said reporter.

My opinion is that Judge Folsom did not address the "colorable difference" issue during the 17-19 February hearing because the reporter did not mention "colorable difference" at all in the article he wrote. It appeared to the reporter that the only reason the hearings were held was to determine infringement.

I know that to be untrue. And Judge Folsom will address "colorable difference", because there are devices sold since the trial that were modified. TiVo has asked that the devices sold with modified software be found in contempt. Judge Folsom can only make that ruling if colorable difference is evaluated. It may have been five minutes of the three-day hearing, as colorable difference is a rather easy threshold, which infringement is a much deeper analysis.


----------



## jacmyoung (Sep 9, 2006)

dfd said:


> I wouldn't want to pin my argument to a judge on, "Your Honor, I didn't understand what the word 'the' meant."...


Again a strawman arguement. E* does not say your honor we did not understand your words, they said we understood very well, and we followed your words.

TiVo says no, your honor your words meant something different, and based on our interpretation E* violated your words.

The judge will decide whose interpretation has more merit, and if he decides both have merit, *in fact*, even if the defendants has only some merit, and the plaintiff has the most merit, the law says the defendants still gets the benefit of the court, because a court order cannot have any ambiguity, any ambiguity will benefit the defendants.


----------



## jacmyoung (Sep 9, 2006)

Greg Bimson said:


> Hope? Only the judge will issue a "final FFCL".


He already did.



> Yet there is opinion formed from the basis of said reporter.


An opinion, though does not rise to the level of a factual statement, must still have some basis, else no one will give much credit to such opinion.



> My opinion is that Judge Folsom did not address the "colorable difference" issue during the 17-19 February hearing because the reporter did not mention "colorable difference" at all in the article he wrote. It appeared to the reporter that the only reason the hearings were held was to determine infringement...
> 
> I know that to be untrue.


Now if you are saying because the reporter had no clue, therefore you will refuse to take that report into account, that is a valid approach, but I think to be fair, you should also not take into the account what that TiVo investor said about what was said in that three-day hearing, when he only reported to you about a total of 5 minutes of words said in that three days that appeared to make TiVo look good and E* look bad.


----------



## CuriousMark (May 21, 2008)

jacmyoung said:


> He already did.


No, the transcript is not even out yet. The final finding will not be issued until sometime after TiVo and E* evaluate the transcript and submit their respective versions to the judge for his perusal.


----------



## nobody99 (May 20, 2008)

jacmyoung said:


> Greg Bimson said:
> 
> 
> > Only the judge will issue a "final FFCL".
> ...


No, he has not.

The FFCL will be issued simultaneously with the decision on contempt. The FFCL is the supporting document to the decision.

Judge Folsom is going to read each sides' proposed FFCL. He's going to pick the stuff that he likes out of each, form an opinion with respect to contempt, and then have his staff write a final FFCL based on all of that.

As far as the pre-hearing FFCL, a user on the investorvillage board suggested that it was unusual for a judge to ask for a version before a hearing, but I don't think there was any doubt at any point that he'd also want one after the hearing. Each side needs an opportunity to address the points the other brought up in the hearing.


----------



## Greg Bimson (May 5, 2003)

Greg Bimson said:


> Hope? Only the judge will issue a "final FFCL".





jacmyoung said:


> He already did.


So the ruling is out already?


jacmyoung said:


> Now if you are saying because the reporter had no clue, therefore you will refuse to take that report into account, that is a valid approach, but I think to be fair, you should also not take into the account what that TiVo investor said about what was said in that three-day hearing, when he only reported to you about a total of 5 minutes of words said in that three days that appeared to make TiVo look good and E* look bad.


I'll take the article into consideration. If I only take the article into consideration, then "colorable difference" wasn't even evaluated. Yet I know that the colorable difference evaluation was a fact, simply because that was one subject which Judge Folsom is trying to evaluate.

I'll also take into consideration that according to the TiVo Invester Village reporter Mike, that DISH/SATS cannot prove which receivers installed a modification at any given time, that the Fish and Richardson opinion letter was not an opinion about an existing modified product, that DISH/SATS simply changed terminology (but not the acutal infringement) when creating their modification, and that DISH/SATS tried to impeach their own testimony regarding the "parse" step. I'll be very happy to see the hearing transcript to corroborate Mike's (and your) beliefs.


----------



## jacmyoung (Sep 9, 2006)

He had already said after the full transcript are ready for both parties to review, he will set the filing date for both parties to submit their final FFCLs.

He will not issue a ruling at the same time the parties file the final FFCLs. His ruling will be based in most part on the final FFCLs filed by both parties.

So yes he already did say he would order them to file the final FFCLs, the only question is when.

It appears Greg you are equating the final FFCLs he ordered the parties to file, to his final ruling.

Now it is true that article did not mention the colorable difference issue at all, but I would not make a conclusion that somehow it means colorable difference issue was not talked about in the hearing, and additionally, as you speculated that the colorable difference issue might be only 5 minutes of the three-day hearing. I would be very surprised if they did not devote a big chunk of time on this issue, but we will have to wait for the full transcript to find out.

The basis for my above speculation is again the law, the law requires that the "threshold question" be first addressed in a contempt proceeding, and if the answer is that of a more than colorable difference, it should be the end of the contempt proceeding. Therefore colorable difference issue is usually the main subject of a contempt proceeding, not a side issue.


----------



## jacmyoung (Sep 9, 2006)

Greg Bimson said:


> ...I'll also take into consideration that according to the TiVo Invester Village reporter Mike, that DISH/SATS cannot prove which receivers installed a modification at any given time, that the Fish and Richardson opinion letter was not an opinion about an existing modified product, that DISH/SATS simply changed terminology (but not the acutal infringement) when creating their modification, and that DISH/SATS tried to impeach their own testimony regarding the "parse" step. I'll be very happy to see the hearing transcript to corroborate Mike's (and your) beliefs.


How interesting that you have speculated, based on Mike's info, that the three-day hearing was mainly focused on the infringement issue and how the above two subjects were debated as they appeared from Mike the only two issues were really talked about.

But if you simply read Mike's info which he was willing to release to you, that was only about a total of 5 minutes of the conversation. What happened to the other 500 to 600 minutes?

Now that report probably also covered about 5 to 6 minutes of the judge's words. I give more weight to what a reporter had tried to reoprt what the judge was saying, not what E* or TiVo was saying, nor what Mike had interpreted as what the judge's facial experssion meant.


----------



## Greg Bimson (May 5, 2003)

Yet Mike's report covered more than the Bloomberg article...


----------



## Greg Bimson (May 5, 2003)

jacmyoung said:


> The basis for my above speculation is again the law, the law requires that the "threshold question" be first addressed in a contempt proceeding, and if the answer is that of a more than colorable difference, it should be the end of the contempt proceeding. Therefore colorable difference issue is usually the main subject of a contempt proceeding, not a side issue.


Yet colorable difference wasn't even mentioned in the Bloomberg article...


----------



## jacmyoung (Sep 9, 2006)

Greg Bimson said:


> Yet colorable difference wasn't even mentioned in the Bloomberg article...


Yet Mike never covered the rest of the 500 minutes, I am interested to see why and what did they actually say during that time and what the judge's expression was that caused Mike not to report those many minutes

As far as the report, yes it never mentioned the colorable difference issue, because it was only covering what the key things the judge said, and it turned out maybe the judge simply did not say he would not rule on the colorable difference issue, only that he said he would not rule on the infringement issue.

He has to rule on something I think. If the infringement issue will not be ruled on, what else is there to be ruled on?


----------



## CuriousMark (May 21, 2008)

jacmyoung said:


> Yet Mike never covered the rest of the 500 minutes, I am interested to see why and what did they actually say during that time and what the judge's expression was that caused Mike not to report those many minutes


Anyone who read the reports knows that this is an incendiary statement. He reported that he did not follow or have interest in the technical details of the expert witness' testimonies. That has nothing to do with judges expression or whether those testimonies were a positive or negative for either position. Implying that lack of reporting equals negative things are being withheld is just an attempt to throw gasoline on the subject to see if a fire can be started.

The transcript will come out and put this kind of nonsense to bed. Let's hope it arrives soon, I am finding the nonsense tiresome.


----------



## scooper (Apr 22, 2002)

CuriousMark said:


> The transcript will come out and put this kind of nonsense to bed. Let's hope it arrives soon, I am finding the nonsense tiresome.


+1


----------



## nobody99 (May 20, 2008)

jacmyoung said:


> Greg Bimson said:
> 
> 
> > Only the judge will issue a "final FFCL".
> ...





jacmyoung said:


> It appears Greg you are equating the final FFCLs he ordered the parties to file, to his final ruling.


I read your original response to Greg as saying that the Judge already issued a final FFCL.

Greg's use of quotes enclosing final FFCL" indicates to me that he is just using your term, not his.

I don't think there was any question that Greg understands exactly the process, and he fully understands who submits what.

One must realize that the court is the only party that can issue a FFCL that is actually "real." Anything submitted by DISH or TiVo is merely a proposal that each side wants the judge to adopt.


----------



## Greg Bimson (May 5, 2003)

jacmyoung said:


> As far as the report, yes it never mentioned the colorable difference issue, because it was only covering what the key things the judge said, and it turned out maybe the judge simply did not say he would not rule on the colorable difference issue, only that he said he would not rule on the infringement issue.


Judge Folsom said he would not rule on the infringement issue? I wonder where that report exists?


CuriousMark said:


> Implying that lack of reporting equals negative things are being withheld is just an attempt to throw gasoline on the subject to see if a fire can be started.
> 
> The transcript will come out and put this kind of nonsense to bed. Let's hope it arrives soon, I am finding the nonsense tiresome.





scooper said:


> +1


Exactly.

There is no report in existance where Judge Folsom said he would not rule on the infringement issue. There exists many reports that do not include any information on "colorable difference".


nobody99 said:


> One must realize that the court is the only party that can issue a FFCL that is actually "real." Anything submitted by DISH or TiVo is merely a proposal that each side wants the judge to adopt.


Exactly.


----------



## jacmyoung (Sep 9, 2006)

The judge said he would not rule immediately whether the DVRs still infringe on the TiVo’s patent, that is not implied, it is in that report.

What is implied is when you said, that report did not mention the colorable difference issue, therefore the issue was not addressed in the hearing.


----------



## nobody99 (May 20, 2008)

jacmyoung said:


> The judge said he would not rule immediately whether the DVRs still infringe on the TiVo's patent, that is not implied, it is in that report.


I am not aware of anyone who expected him to rule "immediately" so I'm not sure why this point is being made.


----------



## jacmyoung (Sep 9, 2006)

nobody99 said:


> I am not aware of anyone who expected him to rule "immediately" so I'm not sure why this point is being made.


When a judge says during a hearing that he will not rule immediately on an issue, he usually means he will not rule on that particular issue from the current proceeding, and will wait for another proceeding to further review such issue.

In a few months, he will issue his ruling, and whatever that ruling is will be considered an immediate ruling as part of the current hearing because that ruling follows this hearing immediately, not some other additional hearing.


----------



## Greg Bimson (May 5, 2003)

jacmyoung said:


> When a judge says during a hearing that he will not rule immediately on an issue, he usually means he will not rule on that particular issue from the current proceeding, and will wait for another proceeding to further review such issue.


I'm incredulous. Got a link?


----------



## nobody99 (May 20, 2008)

jacmyoung said:


> In a few months, he will issue his ruling, and whatever that ruling is will be considered an immediate ruling


My logic circuits seems to be failing because...



jacmyoung said:


> The judge said he would *not* rule immediately


Those two statements are in direct contradiction with each other.


----------



## Curtis52 (Oct 14, 2003)

When Judge Folsom said he won't rule immediately, he was speaking along the lines of "immediate vicinity". Usually when a judge says something like that he means he will provide the ruling from a nearby donut shop.

One wonders what a judge says when he wants people to know that he won't provide a ruling immediately after the hearing because he wants the parties to provide proposed FFCLs updated with references to the transcript for him to read before ruling and writing his own FFCL.


----------



## jacmyoung (Sep 9, 2006)

Curtis52 said:


> ...One wonders what a judge says when he wants people to know that he won't provide a ruling immediately after the hearing because he wants the parties to provide proposed FFCLs updated with references to the transcript for him to read before ruling and writing his own FFCL.


I have already said why the two are not related, even though that report seemed to have linked them.

Because Judge Folsom ordered the final FFCLs from both parties at the very beginning of the hearing due to some apparent issues such as incomplete FFCLs filed by both.

But a judge's comment whether a ruling on an issue will be made "immediately" usually comes at the end of the hearing or when he had the chance to hear all the arguments during the hearing regarding such issue.

And if after hearing the arguments he believes additional inquiries are needed for that particular issue, or which ever party that brought up the issue may not have presented a convincing argument, or the issue has become less clear after the arguments, that is when he usually says I will not rule on that issue immediately, not based on the current inquiry.

An example:

http://www.redorbit.com/news/general/137471/judge_wont_issue_decision_on_schiavo_yet/index.html



> U.S. District Judge James Whittemore did not immediately make a ruling after the two-hour hearing, and he gave no indication on when he might act on the request...the judge told Gibbs that he was not completely sold on the argument. "I think you'd be hard-pressed to convince me that you have a substantial likelihood" of the parents' lawsuit succeeding, said Whittemore...


I will try to avoid the politics in the above case, only to explain why sometimes a judge says he/she will not make an immediate ruling on an issue. And we know in the end the issue did not end in the parents' favor.

Another example:

http://www.usatoday.com/life/people/2005-03-11-leno-jackson_x.htm



> On other issues, the judge listened to arguments over the prosecution's request to explore Jackson's finances but he did not immediately rule&#8230;The judge said he had expected a request for such an action and wanted both sides to confer about it before he approves it.


In the above case, the judge did not want to immediately rule on the finance issues, rather indicated parties should request a new action so he could hear more for further approval. Sounded familiar to what Judge Folsom was reported as saying.

Of course in some cases when a judge says he/she will not rule immediately, he/she literrally means no ruling will be made right at the end of the hearing, rather the judge will need some time to think about it before making the ruling. But in this case, no one expected him to make a ruling right at the end of the hearing in the first place.

As a result, I am not saying your interpretation has no merit, only that I believe it is likely he meant he would not rule on the infringement issue from this hearing. This is further supported by his next comment in the report, that he said he might need another hearing to determine if the E* DVR service should be turned off or not.

To decide if the DVR service should be turned off or not, is the same as saying to decide if the DVR service still infringes or not. If still infringing, should turn off, if not, don't have to turn off.


----------



## nobody99 (May 20, 2008)

jacmyoung said:


> rather indicated parties should request a new action so he could hear more


I must have missed that part. When was it that Judge Folsom asked TiVo for a new action?


----------



## Greg Bimson (May 5, 2003)

jacmyoung said:


> To decide if the DVR service should be turned off or not, is the same as saying to decide if the DVR service still infringes or not. If still infringing, should turn off, if not, don't have to turn off.


They are nowhere near the same.

DISH/SATS was found guilty of infringement in April 2006. DISH/SATS was then ordered in a final judgment and injunction order to pay TiVo for that infringement and to disable the Infringing Products. The finding of guilt was based on the charge; the judgment and order was the remedy.

They are two completely different issues.

If the Infringing Products continue to infringe, there first must be a ruling that those devices infringe, then there will later be an order that is the remedy for infringement and contempt.


----------



## Greg Bimson (May 5, 2003)

As a matter of fact, if TiVo and DISH/SATS are to provide Proposed FFCL's for the Judge regarding this hearing, the FFCL's that the parties provide should only address infringement and colorable difference. Once the ruling is given in the form of the FFCL by Judge Folsom, then the only ruling that should come out is based on infringement and colorable difference.

Contempt (and any possible remedies) would be ruled upon after the infringement and colorable difference issue.


----------



## jacmyoung (Sep 9, 2006)

The point, and the only point here is:

When a judge says he is *not going to rule immediately on an issue*, it is usually because the party that had brought up such issue had failed to convince him to act on their request, and the end results had usually not been in the moving perties' favor.

What TiVo had asked the judge to do was to find E* in contempt and order E* to shut off its DVR service in 7 days, and the judge said he would not rule immediately on whether the DVRs are still infringing or not, and he might need another hearing *(a new action)* to determine if the DVR service should be shut off or not.

Two more examples, again let's avoid the politics of the cases, only focus on the implication of a "no immidiate ruling" aspect:

http://rawstory.com/news/afp/Judge_says_no_immediate_ruling_on_G_12222007.html



> A US judge has declined to issue an immediate ruling on demands by inmates at Guantanamo Bay for an inquiry into the CIA's destruction of videotapes showing harsh interrogations of terror suspects...The judge appeared to back the government's view, at one point asking a defense lawyer, David Remes, "Why should the court not permit the Department of Justice to do just that [to do their own investigation first]?"...


http://www.reuters.com/article/domesticNews/idUSN2624981220070926



> A Minnesota judge said on Wednesday that he would make no immediate decision on U.S. Sen. Larry Craig's bid to take back the guilty plea he made after a sex-sting arrest, and the Idaho Republican left it unclear whether he would resign next week as he said he would...Craig had said he would resign from the Senate on Sunday but might reconsider if he could take back the plea and try to clear his name...


[Mod edit: political commentary redacted.]


----------



## Curtis52 (Oct 14, 2003)

> A Minnesota judge said on Wednesday that he would make *no immediate decision* on U.S. Sen. Larry Craig's bid to take back the guilty plea he made after a sex-sting arrest, and the Idaho Republican left it unclear whether he would resign next week as he said he would...Craig had said he would resign from the Senate on Sunday but might reconsider if he could take back the plea and try to clear his name...


The judge ruled on the case ten days later. Not bad but certainly not immediate. Judges rarely rule from the bench in complex cases.

link


----------



## Curtis52 (Oct 14, 2003)

> A US judge has *declined to issue an immediate ruling* on demands by inmates at Guantanamo Bay for an inquiry into the CIA's destruction of videotapes showing harsh interrogations of terror suspects...The judge appeared to back the government's view, at one point asking a defense lawyer, David Remes, "Why should the court not permit the Department of Justice to do just that [to do their own investigation first]?"...


The judge provided his ruling two weeks later. Not bad but certainly not immediate. Judges rarely rule from the bench in complex cases.

link


----------



## jacmyoung (Sep 9, 2006)

And what was the outcome?

Are you not at least somewhat convinced that when a judge says he will not rule immediately on a moving party's request, it is not a good sign for the moving party?

In the above two cases, the moving parties literally asked the judges to rule "immediately" due to time sensitive nature of the issues.

TiVo in this case has been asking pretty much the same thing, your honor please find E* in contempt and order to shut their DVR service in 7 days. And it has been going on for almost a year now. When TiVo heard that the judge would not rule on it immediately, what should their lawyers tell Rogers what that meant?

Not to mention in this case the judge also said he might need another hearing (a new action) to further determine whether to shut E*'s DVR service off or not.


----------



## Curtis52 (Oct 14, 2003)

> Originally Posted by *jacmyoung*
> _When a judge says during a hearing that he will not rule immediately on an issue, he usually means he will not rule on that particular issue from the current proceeding, and will wait for another proceeding to further review such issue._





Greg Bimson said:


> I'm incredulous. Got a link?


Indeed. The two cases cited show the opposite. Surely it wasn't made up. Maybe it was "opinion".


----------



## jacmyoung (Sep 9, 2006)

Curtis52 said:


> Indeed. The two cases cited show the opposite. Surely it wasn't made up. Maybe it was "opinion".


Of course you conveniently forgot the judge in this case also said he would probably need another hearing to further determine the infringement issue.

But granted if you may succeed in picking my words and say: Hey, got you there! Lier lier pants on fire.

I don't care, as long as E* is not in contempt, that is all I care for. the TiVo folks can have all the fun pointing out some failed words I used.

Everyone has his own ways to find satisfaction in life


----------



## Greg Bimson (May 5, 2003)

jacmyoung said:


> Of course you conveniently forgot the judge in this case also said he would probably need another hearing to further determine the infringement issue.


Judge Folsom said that? Where?

I am trying to wrap my brain around why Judge Folsom would originally order a hearing on continuing infringement, and now will have to order another one.

And I certainly cannot find where Judge Folsom ever said he'd need to order another hearing on continuing infringement.


----------



## CuriousMark (May 21, 2008)

jacmyoung said:


> ... the judge in this case also said he would probably need another hearing


True



> to further determine the infringement issue.


False

He did not say what any further hearings if needed, would be about. The false fragment above is pure speculation at best. Other speculations are that the judge may have to revisit the monetary penalties and perhaps even the injunction based on the results of the current hearing.

That certainly makes the most sense.


----------



## nobody99 (May 20, 2008)

jacmyoung said:


> Are you not at least somewhat convinced that when a judge says he will not rule immediately on a moving party's request, it is not a good sign for the moving party?


So we should all ignore Judge Folsom's comment at the last hearing that they "should make serious effort to resolve this before I enter a ruling" and telling Ergen specifically that he should be "meeting with Mr. Rogers"

So rather than drawing the logical conclusion that Judge Folsom is attempting to get DISH to settle (which would certainly explain the day), we are supposed to instead use the outcome of a case (which has nothing to do with patent infringement) where a man tried to have a homosexual encounter with a stranger.

Makes absolutely perfect sense to me.

One can't make this stuff up.


----------



## jacmyoung (Sep 9, 2006)

CuriousMark said:


> ...That certainly makes the most sense.


At one time it made the most sense to say E* clearly violated the order for the continued use of the DVR functionalities.

At one time it made all the sense that a bench trial to find DVR infringement would be nice.

At one point it made no sense the software should even be a part of the discussion.

At one point both parties were arguing how much the additional damages should be.

And yet at this point, there is on agenda to discuss the damages.

What makes the most sense to some may not make much sense to the other.

What made a lot of sense in the past may no longer make any sense.


----------



## jacmyoung (Sep 9, 2006)

nobody99 said:


> So we should all ignore Judge Folsom's comment at the last hearing that they "should make serious effort to resolve this before I enter a ruling" and telling Ergen specifically that he should be "meeting with Mr. Rogers" ...


Judge Folsom has been saying this for the last three years, did Charlie settle?

And what was that Charlie said in his latest conference call? He would wait for the judge's ruling before considering his next step.


----------



## Greg Bimson (May 5, 2003)

jacmyoung said:


> At one time it made the most sense to say E* clearly violated the order for the continued use of the DVR functionalities.


And the ruling on that (and any ruling) is still pending.


jacmyoung said:


> At one time it made all the sense that a bench trial to find DVR infringement would be nice.


And that was one topic of the 17-19 February hearing.


jacmyoung said:


> At one point it made no sense the software should even be a part of the discussion.


It was always going to be, at some point, as TiVo has accused DISH/SATS of continuing sales of product that was not originally adjudged. The _KSM_ standard would have to be used.


jacmyoung said:


> At one point both parties were arguing how much the additional damages should be.
> 
> And yet at this point, there is on agenda to discuss the damages.


There may or may not be a hearing for additional damages. Both parties have filed briefs with the court to have a ruling on damages. If Judge Folsom needs a hearing, then he will order one. If not, the ruling on additional damages will be released. And additional damages have nothing to do with contempt, unless the modified DVR's sold after those models were found infringing are found as continuing to infringe.


jacmyoung said:


> What makes the most sense to some may not make much sense to the other.
> 
> What made a lot of sense in the past may no longer make any sense.


There are specific issues that must be addressed before another issue, such as finding infringement on the devices modified then sold, before addressing the motion for additional damages.


----------



## jacmyoung (Sep 9, 2006)

Greg Bimson said:


> And the ruling on that (and any ruling) is still pending.


True, but do you still insist not disabling the DVR functions itself, alone, is a violation?



> And that was one topic of the 17-19 February hearing.


No it was not, there was never a bench trial.



> It was always going to be, at some point, as TiVo has accused DISH/SATS of continuing sales of product that was not originally adjudged. The _KSM_ standard would have to be used.


I take that as you finally agree software can be considered a "device"?



> There may or may not be a hearing for additional damages. Both parties have filed briefs with the court to have a ruling on damages. If Judge Folsom needs a hearing, then he will order one. If not, the ruling on additional damages will be released. And additional damages have nothing to do with contempt, unless the modified DVR's sold after those models were found infringing are found as continuing to infringe.


There are two motions before Judge Folsom, one is TiVo's motion to find E* in contempt, the other is TiVo's motion to seek additional damages.

This current hearing deals with only the first motion, not the second.



> There are specific issues that must be addressed before another issue, such as finding infringement on the devices modified then sold, before addressing the motion for additional damages.


After the ruling from this hearing is final, TiVo may ask the judge to address the next motion.


----------



## Greg Bimson (May 5, 2003)

jacmyoung said:


> True, but do you still insist not disabling the DVR functions itself, alone, is a violation?


Why not? It certainly could be a violation in and of itself. The order said to disable, and when the order became valid, nothing was disabled.


Greg Bimson said:


> And that was one topic of the 17-19 February hearing.
> 
> 
> jacmyoung said:
> ...


I said it was a hearing, no need for a trial.


jacmyoung said:


> I take that as you finally agree software can be considered a "device"?


Sure, but not in this case.


jacmyoung said:


> There are two motions before Judge Folsom, one is TiVo's motion to find E* in contempt, the other is TiVo's motion to seek additional damages.
> 
> This current hearing deals with only the first motion, not the second.


Correct, to a point. A finding that the modifications continue to infringe affects the damages motion.


Greg Bimson said:


> After the ruling from this hearing is final, TiVo may ask the judge to address the next motion.


Which would be to move the court to find the ViP series as merely colorably different and infringing.


----------



## nobody99 (May 20, 2008)

jacmyoung said:


> nobody99 said:
> 
> 
> > So we should all ignore Judge Folsom's comment at the last hearing that they "should make serious effort to resolve this before I enter a ruling" and telling Ergen specifically that he should be "meeting with Mr. Rogers"
> ...


LOL. The appeals decision was a little over a year ago. So apparently Judge Folsom was asking them to settle for two years before the appeal? :lol:

Since you haven't provided a single shred of evidence that Judge Folsom has been asking DISH to settle, and since clearly the timeline presented is not possible without time travel, I will consider the opinion given completely without merit.

Incidentally, I am laying 50-50 odds that time travel will be presented as a valid counterargument.

(This is my proposed Findgs of Post and Concusions Of Logic)


----------



## jacmyoung (Sep 9, 2006)

nobody99 said:


> LOL. The appeals decision was a little over a year ago. So apparently Judge Folsom was asking them to settle for two years before the appeal? :lol:


Yes. Go back and read the 2006 trial transcripts before you start laughing.


----------



## jacmyoung (Sep 9, 2006)

Let me put it simply, what does not make sense is the notion that the judge's next ruling will touch on the damages. No it will not, because a court order must be concise, specific and without ambiguity.

The judge cannot order a hearing to discuss two issues, then somehow devote a part of his ruling on the damages issues when the order does not in anyway spell out such intent.


----------



## nobody99 (May 20, 2008)

jacmyoung said:


> Let me put it simply, what does not make sense is the notion that the judge's next ruling will touch on the damages.


I don't think _anyone _expects the judge's "next ruling" to have anything to do with damages.

After the upcoming ruling on contempt (the "next ruling") and a new injunction (or modification of the existing injunction), Judge Folsom will almost certainly schedule another hearing to determine damages.


----------



## jacmyoung (Sep 9, 2006)

nobody99 said:


> I don't think _anyone _expects the judge's "next ruling" to have anything to do with damages.
> 
> After the upcoming ruling on contempt (the "next ruling") and a new injunction (or modification of the existing injunction), Judge Folsom will almost certainly schedule another hearing to determine damages.


Good at least we agree on something. However on what basis are you saying he will order a new injunction or modify the current injunction?


----------



## Greg Bimson (May 5, 2003)

jacmyoung said:


> Good at least we agree on something. However on what basis are you saying he will order a new injunction or modify the current injunction?


IF the eight DVR models continue to infringe, a new injunction order will be needed. Once a contempt motion is granted, an injunctive order is usually also rendered shortly thereafter.

The damages can wait. However, Judge Folsom has released ZERO decisions at this point. For court economy, both the motion regarding additional damages and the motion for contempt were on the docket and proceeding simultaneously. With or without a finding of infringement, the damages motion would be very close to settled, as that evidence has been sitting in front of Judge Folsom in the form of briefs.


nobody99 said:


> After the upcoming ruling on contempt (the "next ruling") and a new injunction (or modification of the existing injunction), Judge Folsom will almost certainly schedule another hearing to determine damages.


There would be the pending motion for additional damages, and if found infringing and in contempt, an additional hearing would be ordered for contempt damages.


----------



## jacmyoung (Sep 9, 2006)

Greg Bimson said:


> IF the eight DVR models continue to infringe, a new injunction order will be needed. Once a contempt motion is granted, an injunctive order is usually also rendered shortly thereafter.


Again I ask for basis for such speculation.

First off, for a new injunction or modification of an existing injunction to even take place, parties must first ask for such. I have yet found any evidence either E* or TiVo has been making such request.

Secondly, even if one or both parties seek such order, the judge does not issue a new injunction or modify an injunction on his own, parties will have the opportunities to file their briefs and arguments for or against any specifics in the new injunction or in the modifications.

Do you have any indication that either party had asked for a new injunction or asked for modification of the current injunction?



> The damages can wait. However, Judge Folsom has released ZERO decisions at this point. For court economy, both the motion regarding additional damages and the motion for contempt were on the docket and proceeding simultaneously.


Not true, the current hearing order contains no damage issues.



> With or without a finding of infringement, the damages motion would be very close to settled,


Damages cannot be determined without a decision on infringement, because only the infringing DVRs can be assessed damages, not the non-infringing DVRs.



> and if found infringing and in contempt, an additional hearing would be ordered for contempt damages.


And if not found in contempt, what then?


----------



## Greg Bimson (May 5, 2003)

Getting late...


jacmyoung said:


> Again I ask for basis for such speculation.
> 
> First off, for a new injunction or modification of an existing injunction to even take place, parties must first ask for such. I have yet found any evidence either E* or TiVo has been making such request.


Didn't TiVo originally submit a proposed order to have the DVR's ruled infringing be disabled within seven days of the ruling?

Take a look at the Fisher-Price v. Safety 1st FFCL and order. That is why if infringement is found there will be another hearing: to determine the remedy for contempt, including a modified injunction order and damages during the period for contempt.


----------



## jacmyoung (Sep 9, 2006)

Greg Bimson said:


> Getting late...Didn't TiVo originally submit a proposed order to have the DVR's ruled infringing be disabled within seven days of the ruling?
> 
> Take a look at the Fisher-Price v. Safety 1st FFCL and order. That is why if infringement is found there will be another hearing: to determine the remedy for contempt, including a modified injunction order and damages during the period for contempt.


A judge's order to come into to compliance with a permanent injunction is not the same as issuing a new injunction or modifying a current injunction.

A permanent injucntion is rarely modified, and if a new injunction is justified, the old one must be lifted. Having two injunctions for the same purpose will create ambiguity and confusion. In the cases the above happened, it was because all parties agreed a new injunction, or a modification was necessary. Here no one thinks so, in fact both parties argue the current injunction is right on the money.

TiVo asking the judge to order the DVRs to be shut off in 7 days is the same as asking the judge to enforce the current injunction order, not a request to modify or creat a new injunction.

And based on that report, the judge said he may need another hearing to address such request. Which implies that coming out of this hearing, he was not convinced the DVRs should be shut off.


----------



## Greg Bimson (May 5, 2003)

jacmyoung said:


> A judge's order to come into to compliance with a permanent injunction is not the same as issuing a new injunction or modifying a current injunction.
> 
> A permanent injucntion is rarely modified, and if a new injunction is justified, the old one must be lifted. Having two injunctions for the same purpose will create ambiguity and confusion. In the cases the above happened, it was because all parties agreed a new injunction, or a modification was necessary. Here no one thinks so, in fact both parties argue the current injunction is right on the money.


The only way Judge Folsom can order DVR's disabled is if they infringe. The only way Judge Folsom can order DVR's disabled that had not been found as infringements before is if they are merely colorably different that those adjudged. That is _KSM_. Those DVR's would require a new injunction. So if a new injunction is to be issued, then the old one will probably fall by the wayside.

And now that DISH/SATS in the hearing stated they do not have proof regarding either when each DVR installed new software or if it even was installed, the new order could be setup for a recall of the DVR's.


jacmyoung said:


> And based on that report, the judge said he may need another hearing to address such request. Which implies that coming out of this hearing, he was not convinced the DVRs should be shut off.


So of course Judge Folsom was not convinced the DVR's should be disabled. That was the entire reason for this hearing.


----------



## nobody99 (May 20, 2008)

Occam's razor Wikipedia Entry said:


> The principle states that the explanation of any phenomenon should make as few assumptions as possible, eliminating those that make no difference in the observable predictions of the explanatory hypothesis or theory.


In a nutshell, "the simplest solution is more often correct."

So here are the choices presented recently:

1) Compare our patent infringement case with a case of anonymous homosexual solicitation in a bathroom.

2) Suggest that Judge Folsom's purported actions from three years ago (before the jury verdict no less) have meaning at a motion for contempt today.

3) Read the direct transcript of Judge Folsom from the most-recent hearing. In it, he emphatically suggests directly to the CEO of DISH that settlement discussions proceed with TiVo before he enters his decision, and even states that he thinks the parties get "the message."

Occam's razor is crystal clear here.

I think it is very instructive to view any proposed theories about the outcome against Occam's razor.


----------



## jacmyoung (Sep 9, 2006)

Greg Bimson said:


> The only way Judge Folsom can order DVR's disabled is if they infringe. The only way Judge Folsom can order DVR's disabled that had not been found as infringements before is if they are merely colorably different that those adjudged. That is _KSM_. Those DVR's would require a new injunction.


No they don't, this injunction already covers both DVRs you mentioned above, if you don't believe me, just read the injunction itself again.



> So of course Judge Folsom was not convinced the DVR's should be disabled. That was the entire reason for this hearing.


But if the judge said so at the end of this hearing, what does that mean to you?


----------



## Greg Bimson (May 5, 2003)

Greg Bimson said:


> The only way Judge Folsom can order DVR's disabled is if they infringe. The only way Judge Folsom can order DVR's disabled that had not been found as infringements before is if they are merely colorably different that those adjudged. That is KSM. Those DVR's would require a new injunction.





jacmyoung said:


> No they don't, this injunction already covers both DVRs you mentioned above, if you don't believe me, just read the injunction itself again.


The disable order of the injunction only covers the adjudged devices. As DISH/SATS still sells the 625, the order to disable covers the modified 625's and any modified devices? Wow.


----------



## jacmyoung (Sep 9, 2006)

Greg Bimson said:


> The disable order of the injunction only covers the adjudged devices. As DISH/SATS still sells the 625, the order to disable covers the modified 625's and any modified devices? Wow.


"Wow"?

The injucntion prohibits the sale, *use*... of all other DVRs that are only colorable variation of the Infringing Products (i.e. the 8 named DVRs). It goes further than just to disable the DVR functions, it prohibits the mere use of those DVRs.

If, and only if, the 8 named DVRs are again find to be "Infringing Products."

Again, a "Permanent Injunction" always seeks to cover any and all situations in the future whenever infringement of the said patent claims are again found. There is rarely the need to issue new injunctions, especially if the parties do not request to have a new injunction.

The court only reacts to parties' requests (motions), it does not initiate changes.


----------



## Greg Bimson (May 5, 2003)

Tell me how the DP625 sold on 16 April 2008 would have the disable order applied to it:


jacmyoung said:


> If, and only if, the 8 named DVRs are again find to be "Infringing Products."


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.​From the top of the Amended Final Judgment and Injunction Order, the definition of "Infringing Products":


> 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 willful 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; DP-508; DP-510; DP-522; DP-625; DP-721; DP-921; and the DP-942.


Then if Judge Folsom decides the receivers continue to infringe, the definition of "Infringing Products" will need to be changed. And that requires a modification of the definition, thus requiring either a modification of the injunction or a creation of a new injunction.

After all, this order was signed on 8 September 2006. It cannot possibly apply to the receivers sold with modifications since the injunction went into effect, unless the definition of "Infringing Products" is modified.


----------



## jacmyoung (Sep 9, 2006)

Greg Bimson said:


> ...The DVR functionality, ... shall not be enabled in any new placements of the Infringing Products...


That covers it.

As I have said, a permanent injunction seeks to anticipate all future prohibition with regard to all the infringer's adjudicated infringing devices, and any mere colorable variation of the adjudicated infringing devices, to prevent further infringement on the said patent claims.

That is why a permanent injunction rarely needs modified or replaced with a new one.


----------



## nobody99 (May 20, 2008)

jacmyoung said:


> > ...The DVR functionality, ... shall not be enabled in any new placements of the Infringing Products...
> 
> 
> That covers it.


It really doesn't cover it. The Infringing Products, as a matter of law, are the eight-named devices (whether they infringe or not).



jacmyoung said:


> That is why a permanent injunction rarely needs modified or replaced with a new one.


Actually, the reason they rarely need to be modified is that the are rarely ignored as DISH has done with this one. The reason they are rarely ignored is the consequences are very severe. And I have no doubt that DISH will not learn its lesson as they have frequently disregarded the law in the past.


----------



## Greg Bimson (May 5, 2003)

nobody99 said:


> It really doesn't cover it. The Infringing Products, as a matter of law, are the eight-named devices (whether they infringe or not).


Exactly. They are the four million-plus receivers adjudged as infringements. When DISH/SATS sold receivers that only had the newer software, those are not adjudged. Once Judge Folsom releases his findings, if he finds the models still infringe, what would Judge Folsom say that would redefine "Infringing Products" so that it is covered with the existing injunction?


----------



## nobody99 (May 20, 2008)

Legal Usage in Drafting Corporate Documents said:


> *Integrated Definitions*
> 
> Each defined term must somewhere in a contract be tethered to its definition. To do this, you can use either "autonomous" or "integrated" definitions.
> 
> ...


This should clear it up once and for all. Let's use the old-school phrase on the injunction:



Injunction said:


> the Court thereby enters judgment for Plaintiff against Defendants for willful infringement of U.S. Patent No. 6,233,389 (hereinafter referred to as the "'389 patent"), claims 1, 5, 21, 23, 32, 36, 52, 31 and 61 (hereinafter referred to as "the Infringed Claims") by Defendants' following DVR receivers (hereinafter referred collectively as the "Infringing Products"): DP- 501; DP-508; DP-510; DP-522; DP-625; DP-721; DP-921; and the DP-942.


The term "Infringing Products" is defined by the document as a short-hand reference to eight-named DVRs. Anywhere else in the document where the term "Infringing Products" appears, you can simply substitute the list of eight models. Infringement has nothing to do with it.


----------



## jacmyoung (Sep 9, 2006)

Greg Bimson said:


> Exactly. They are the four million-plus receivers adjudged as infringements. When DISH/SATS sold receivers that only had the newer software, those are not adjudged. Once Judge Folsom releases his findings, if he finds the models still infringe, what would Judge Folsom say that would redefine "Infringing Products" so that it is covered with the existing injunction?


He needs to say nothing more, all 625s will have to be disabled, newly placed or already placed at the time of the writting of the injunction, his injunction says so, the DVR functions are not allowed on *"any new placements of the Infringing Products."*

If you want to insist that any time the judge rules on an on-going infringement, he should modify or replace the existing injunction, at a minimum provide a link or cite a case law, rather just throw out that idea.


----------



## nobody99 (May 20, 2008)

jacmyoung said:


> He needs to say nothing more, all 625s will have to be disabled, newly placed or already placed at the time of the writting of the injunction, his injunction says so, the DVR functions are not allowed on *"any new placements of the Infringing Products."*
> 
> If you want to insist that any time the judge rules on an on-going infringement, he should modify or replace the existing injunction, at a minimum provide a link or cite a case law, rather just throw out that idea.


And what would happen if DISH sold the exact same hardware but renamed it to 625b?


----------



## jacmyoung (Sep 9, 2006)

nobody99 said:


> And what would happen if DISH sold the exact same hardware but renamed it to 625b?


That will be the "other products" that are only colorable variation of the "Infringing Products" and if you just read that injunction a little further, it covers those "other products" too.


----------



## Curtis52 (Oct 14, 2003)

Greg Bimson said:


> Tell me how the DP625 sold on 16 April 2008 would have the disable order applied to it:


The existing disable order would have no effect of course. If there is not more than a colorable difference then there would need to be remedies. There would be damages assessed but the judge wouldn't stop there. Since the existing disable order would not apply, if the judge wants them disabled in addition to damages, he would have to issue an injunction with a disable order that would cover them. Otherwise, Dish would have no reason to disable them.


----------



## Greg Bimson (May 5, 2003)

jacmyoung said:


> That will be the "other products" that are only colorable variation of the "Infringing Products" and if you just read that injunction a little further, it covers those "other products" too.


Yes, but for sake of brevity, those "other products" are not covered by the order to disable.


----------



## jacmyoung (Sep 9, 2006)

Greg Bimson said:


> Yes, but for sake of brevity, those "other products" are not covered by the order to disable.


But they are covered by the injunction not to sell or use them, which is more restrictive than the mere disabling of the DVR functions.

If we ever get to that point, then an order to turn them all off will do, in order to come into compliance of the existing injunction, still no need to issue a new injunction.

But regardless, even if a new injunction is necessary, the "winning party" in this contempt proceeding will have to make such request, the court does not initiate such process, not in a civil case.

But we are far from that, the current proceeding only serves two items:

1) Whether the new software is only colorably different, if so,

2) Whether the 8 named DVRs still infringe on the patent claims.

If both answers are yes, the judge will allow parties to appeal that ruling, and if the ruling is upheld on appeal and returned to the judge, the judge will then again arrange the next meeting for both parties to argue what will be the appropriate next step.

This ruling will not touch on anything other than the 8 named DVRs, and will not touch on the damages, because the order does not say that, and therefore the parties, especially the defendants do not have the opportunities to argue on such issues.

The 9/4/08 hearing, as Curtis52 correctly pointed out, was a total waste of time. Ok, not totally, the information gained from it can be used in the future.

But the current proceeding will only cover the issues that are contained in the order.


----------



## nobody99 (May 20, 2008)

jacmyoung said:


> then an order to turn them all off will do, in order to come into compliance of the existing injunction, still no need to issue a new injunction.


LOL. Oh, you mean something like this?



dictionary.com said:


> Injunction: a judicial process or order requiring the person or persons to whom it is directed to do a particular act or to refrain from doing a particular act.


So what exactly is form of the "order to turn them all off"


----------



## James Long (Apr 17, 2003)

[910] NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Proceedings held on 2-17-09, Plaintiff's Motion for Contempt Hearing, 243 pages, before Judge David Folsom. Court Reporter/Transcriber: Libby Crawford, CSR,,Telephone number: 903.xxx.xxxx Ext. xxx.

[911] Sealed Transcript.

[912] NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Proceedings held on 2-18-09, Plaintiff's Motion for Contempt Hearing, 245 pages before Judge David Folsom. Court Reporter/Transcriber: Libby Crawford, CSR,Telephone number: 903.xxx.xxxx Ext. xxx.

[913] Sealed Transcript. Sealed testimony - 2-18-09 Plaintiff's Motion for Contempt Hearing, 4 pages

[914] NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Proceedings held on 2-19-09, Plaintiff's Motion for Contempt, 56 pages before Judge David Folsom. Court Reporter/Transcriber: Libby Crawford, CSR,Telephone number: 903.xxx.xxxx Ext. xxx.

_Note attached to 910, 912 and 914:_
NOTICE RE REDACTION OF TRANSCRIPTS: The parties have seven (7) business days to file with the Court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript will be made remotely electronically available to the public without redaction after 90 calendar days. The policy is located on our website at www.txed.uscourts.gov

Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER.. Redaction Request due 3/30/2009. Redacted Transcript Deadline set for 4/9/2009. Release of Transcript Restriction set for 6/8/2009.

(Court phone number redacted by moderator.)


----------



## Greg Bimson (May 5, 2003)

jacmyoung said:


> But they are covered by the injunction not to sell or use them, which is more restrictive than the mere disabling of the DVR functions.
> 
> If we ever get to that point, then an order to turn them all off will do, in order to come into compliance of the existing injunction, still no need to issue a new injunction.
> 
> But regardless, even if a new injunction is necessary, the "winning party" in this contempt proceeding will have to make such request, the court does not initiate such process, not in a civil case.


No, disabling DVR's found infringing is more restrictive than the standard cease and desist infringing sales and manufacture, as it hits directly at the customer base.

An "order to come into compliance" would not apply to the DP-625 sold yesterday. It is not part of the order to disable.

TiVo, when trying to pin simple prima facie contempt violations of an injunction on DISH/SATS simply suggested and sent a proposed order to Judge Folsom that DISH/SATS comply with the current injunction within seven days. Now that this test for infringement and colorable difference is being applied to both the adjudged receivers and the modified receivers since the judgment, TiVo will probabaly request another injunction. That would probably happen during the next hearing.


----------



## jacmyoung (Sep 9, 2006)

James Long said:


> [910] NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Proceedings held on 2-17-09, Plaintiff's Motion for Contempt Hearing, 243 pages, before Judge David Folsom. Court Reporter/Transcriber: Libby Crawford, CSR,,Telephone number: 903.xxx.xxxx Ext. xxx.
> 
> [911] Sealed Transcript.
> 
> ...


Do they charge by weight? If so that can cost quite a bit


----------



## Greg Bimson (May 5, 2003)

It will cost per page at Pacer, when it becomes available there in about four months. Someone is bandying about $500 for this transcript (available now).


----------



## James Long (Apr 17, 2003)

jacmyoung said:


> Do they charge by weight? If so that can cost quite a bit


If we wait until June (if no redactions) it will cost $7.20, thanks to the 30 page cap on price of a single document.
544 pages is too much to digest ... I'll wait for the judge.


----------



## jacmyoung (Sep 9, 2006)

James Long said:


> If we wait until June (if no redactions) it will cost $7.20, thanks to the 30 page cap on price of a single document.
> 544 pages is too much to digest ... I'll wait for the judge.


Good idea.

Reading from the last night Charlie Chat transcripts, one of them contained the "Better than TiVo" term as a registered trademark.

I know Charlie has been saying this all the time, and TiVo also raised this issue from time to time in the court.

But that was the first time I saw E* elevated it to registered trademark status. Does not look to me he is ready to settle

Did a quick google search and found what appears to be the latest E* "2009 receiver portfolio":

http://www.embarq.com/embarq/refDocs/user_guides/entertainment/DISH_Receiver_Portfolio.pdf

That registered trademark is in there.


----------



## nobody99 (May 20, 2008)

jacmyoung said:


> Good idea.
> 
> Reading from the last night Charlie Chat transcripts, one of them contained the "Better than TiVo" term as a registered trademark.
> http://www.embarq.com/embarq/refDocs/user_guides/entertainment/DISH_Receiver_Portfolio.pdf
> ...


Is that the only document that you can find where it's registered. Damn. I would be willing to bet that TiVo's lawyers would be _very_ interested in that. I can't imagine it's legal to use a (R) symbol when you don't actually have the registration.

Hint: you can search USPTO for registrations, and sorry, "better than TiVo" ain't there.

Could you please provide a link to the transcript where DISH says they have it registered?


----------



## Curtis52 (Oct 14, 2003)

Dish is using the "®" to acknowledge TiVo's copyright because they don't want TiVo to haul them into court again.

link


----------



## nobody99 (May 20, 2008)

Curtis52 said:


> Dish is using the "®" to acknowledge TiVo's copyright because they don't want TiVo to haul them into court again.
> 
> link


I feel like such a dork - that makes total sense. Occam's razor again


----------



## Greg Bimson (May 5, 2003)

Curtis52 said:


> Dish is using the "®" to acknowledge TiVo's copyright because they don't want TiVo to haul them into court again.


That would be the other type of infringement: trademark infringement.


----------



## nobody99 (May 20, 2008)

Greg Bimson said:


> That would be the other type of infringement: trademark infringement.


Yeah, jacmyoung's post made it pretty clear that he thought DISH had trademarked the phrase "Better than TiVo"

What can I say, I took the bait and fell for it, hook, line, and sinker.


----------



## CuriousMark (May 21, 2008)

nobody99 said:


> What can I say, I took the bait and fell for it, hook, line, and sinker.


As a fish, when you see a boat trolling overhead, don't take the bait!


----------



## jacmyoung (Sep 9, 2006)

http://www.snapstream.com/Press/PR-2002-09-16.asp



> The company's personal video recording (PVR) software, Beyond TV™ was called "dazzlingly cool" by the Los Angeles Times, referred to as "an idea whose time has come" by the Associated Press and declared "better than TiVo" by Maximum PC. Interested parties can find more information about SnapStream Media and its products at www.snapstream.com.


Apparently the phrase "better than TiVo" had been used before. I think E* was basically quoting Cnet.com's review from the 2008 CES, and had been using this term ever since.

I think Curtis52 was correct to point out the "R" refers to "TiVo" as a registered trademark, however it probably was not added on by E*, rather by Cnet.com, and E* was just quoting it.

Seems to me E* is not in the mood to settle.

There are those who love to stay in the water to catch as many fish as possible until the boat sinks, there are those who pay attention to where the fish and water flow so they can figure out how to get to shore


----------



## Curtis52 (Oct 14, 2003)

> CIVIL ACTION NO. 2:04-CV-01 (DF)
> 
> O R D E R
> 
> The Court has been notified that the transcript for the bench trial, which was held on February17-19, 2009, has been made available. In accordance with the Court's notice during the bench trial, the Court hereby orders each side to submit its proposed Findings of Fact and Conclusions of Law no later than 5:00 PM on Tuesday, March 31, 2009.


Note the "proposed".


----------



## dfd (Aug 29, 2008)

Curtis52 said:


> Note the "proposed".


You are being too literal. Surely there is more than one way somebody could interpret the word "proposed".


----------



## nobody99 (May 20, 2008)

jacmyoung said:


> There are those who love to stay in the water to catch as many fish as possible until the boat sinks, there are those who pay attention to where the fish and water flow so they can figure out how to get to shore


Some of the fish are debt free with lots of fish food in the bank, unlike the boat owners are losing customers faster than ever and have a huge pile of debt that will need to be refinanced. I think the boat name was "S.S. Titanic"


----------



## dgordo (Aug 29, 2004)

Curtis52 said:


> Note the "proposed".


semantics


----------



## jacmyoung (Sep 9, 2006)

nobody99 said:


> Some of the fish are debt free with lots of fish food in the bank, unlike the boat owners are losing customers faster than ever and have a huge pile of debt that will need to be refinanced. I think the boat name was "S.S. Titanic"


Obviously you did not understand the "fish" CuriousMark was talking about or forgot the "fish" you were speaking of yourself

As far as debt, DISH has no major due dates until 2011.

Look, I know TiVo wants to settle, they said so during the hearing, but as far as Charlie's response to the same question, when the judge seemed to try to urge him to do so right in his face, well in my view his answer, giving the circumstances, was a flat out "NO"


----------



## jacmyoung (Sep 9, 2006)

So by 3/31, I guess we might see a ruling about a month later?

I guess we can confirm now the "Proposed FFCLs" the parties filed before the hearing were incomplete and the judge just wants them to finalize them.


----------



## nobody99 (May 20, 2008)

jacmyoung said:


> Look, I know TiVo wants to settle, they said so during the hearing, but as far as Charlie's response to the same question, when the judge seemed to try to urge him to do so right in his face, well in my view his answer, giving the circumstances, was a flat out "NO"


I doubt that TiVo wants to settle as much as it appears to you. I believe the expression I'm looking for here is "TiVo is kissing the Judge's ass."

If I am faced with a judge who is saying he wants a settlement, I'm not going poke the bear by saying "flat out NO."

I am just guessing here, but I would assume judges probably don't take too kindly to that sort of attitude.


----------



## Curtis52 (Oct 14, 2003)

I have the transcript. Others probably have it too. I can't provide the whole thing but I'm looking for interesting parts to cut and paste.


----------



## Curtis52 (Oct 14, 2003)

p 95 
jocularity...

9 THE COURT: EXCUSE ME. 
10 A THAT’S OKAY. I KNOW THE FEELING WELL. I’M FROM BOSTON, 
11 SO YOU GET THE WINTERTIME.

22 MR. IANCU: YOUR HONOR, SHOULD WE TAKE A BREAK? 
23 THE COURT: I DON’T THINK IT’S GOING TO HELP. 
24 MR. IANCU: OKAY. 
25 THE COURT: WE’LL TRY TO PLOW FORWARD. I APOLOGIZE, 

p 96

1 BUT UNFORTUNATELY I DON’T HAVE A SUBSTITUTE JUDGE. 
2 MR. IANCU: I’LL VOLUNTEER. 
3 A YOU STOLE MY LINE.


----------



## jacmyoung (Sep 9, 2006)

nobody99 said:


> I doubt that TiVo wants to settle as much as it appears to you. I believe the expression I'm looking for here is "TiVo is kissing the Judge's ass."
> 
> If I am faced with a judge who is saying he wants a settlement, I'm not going poke the bear by saying "flat out NO."
> 
> I am just guessing here, but I would assume judges probably don't take too kindly to that sort of attitude.


Then IMHO you have misjudged the judges

BTW, Charlie said: "Maybe." I turned it into a flat out no


----------



## jacmyoung (Sep 9, 2006)

Curtis52 said:


> p 95
> jocularity...
> 
> 9 THE COURT: EXCUSE ME.
> ...


And this is why I agreed with James we should just wait for the ruling Most what said during that three days were probably useless.


----------



## nobody99 (May 20, 2008)

jacmyoung said:


> And this is why I agreed with James we should just wait for the ruling


By "agree" did you mean "only if everyone else waits for the ruling" or are you just going against your own advice? :lol:


----------



## Curtis52 (Oct 14, 2003)

p 502

Chu questioning Rhyne (Dish):

Q THANK YOU. NOW, THE COURT'S CLAIM CONSTRUCTION IN 2005 
WE HAVE SEEN IN A WRITTEN FORM, CORRECT? 
A YES. 
Q AND YOU DO RECALL THAT THAT CLAIM CONSTRUCTION WITH 
RESPECT TO PARSE WAS NOT APPEALED TO THE FEDERAL CIRCUIT, 
CORRECT? 
A I DON'T RECALL THAT. I HAVE HEARD THAT. 
Q AND THERE HAS BEEN NO CHANGE TO THE COURT'S CLAIM 
CONSTRUCTION FROM 2005 UNTIL TODAY, 2009, IS THAT CORRECT? 
A THAT'S MY UNDERSTANDING. 
Q THANK YOU. ALL ECHOSTAR PRODUCTS PARSE THE MPEG STREAM. 
CAN YOU FAIRLY ANSWER THAT YES OR NO? 
MR. BARQUIST: YOUR HONOR, I OBJECT TO THAT QUESTION 
AS VAGUE AS TO TIME. 
THE COURT: WHAT TIME FRAME ARE YOU REFERRING TO? 
Q (MR. CHU) WELL, LET'S ASK A BROADER QUESTION, DR. RHYNE. 
IS IT FAIR, FIRST OF ALL, THAT THE TERM PARSE HASN'T CHANGED 
AT ALL? 
A IT'S JUST AN ENGLISH WORD. I DON'T KNOW -- I GUESS I 
DON'T UNDERSTAND YOUR QUESTION. 
Q AND THERE WERE PID FILTERS IN THE ECHOSTAR PRODUCTS 
DURING THE JURY TRIAL, CORRECT? 
A YES. 
Q AND WITHOUT MY TRYING TO DESCRIBE THE EXACT FUNCTION, 
THEY PERFORMED ONE OR MORE FUNCTIONS, CORRECT? 
A BASICALLY ONE FUNCTION. 
Q AND THERE ARE PID FILTERS IN ALL THE ECHOSTAR PRODUCTS AT 
ISSUE TODAY, CORRECT? 
A YES. YES. 
Q AND THEY STILL PERFORM THAT FUNCTION, CORRECT? 
A THAT SAME FUNCTION THAT THEY PERFORMED BEFORE. SOME OF 
THEM DO IT A LITTLE BIT DIFFERENTLY, BUT THEY ARE STILL 
PERFORMING THE SAME BASIC FUNCTION. 
Q HARDWARE IS THE SAME THERE, RIGHT? 
A THE HARDWARE, MORE OR LESS, EXCEPT FOR THE DISABLED PARTS 
IN THE BROADCOM. 
Q YOU WOULD AGREE THAT AT THE TIME OF THE JURY TRIAL ALL 
ECHOSTAR PRODUCTS PARSED THE MPEG STREAM? 
A THOSE PRODUCTS DID. 
Q UNDER THE COURT'S CLAIM CONSTRUCTION? 
A YES. 
Q AND YOU WOULD AGREE AT THAT TIME THAT THE PID FILTERING 
WAS RESPONSIBLE FOR THE PARSING? 
A THAT WAS MY OPINION BEFORE THE JURY. 
Q UNDER THE COURT'S CLAIM CONSTRUCTION? 
A YES. 
Q AND THE ONLY DIFFERENCE BETWEEN YOUR OPINION THEN AND NOW 
IS THE RESULT OF THE JURY VERDICT, AS YOU JUST REFERRED TO? 
A THAT'S CORRECT, THE JURY VERDICT -- 
Q THANK YOU. 
A -- CHANGED MY OPINION. 
Q DO YOU RECALL READING ANY SPECIAL VERDICT, SPECIAL 
INTERROGATORIES, BASICALLY SOME QUESTIONS PUT TO THE JURY 
ABOUT HOW IN THEIR MINDS THEY WERE INTERPRETING AND APPLYING 
THE WORD PARSING TO THE MPEG STREAM? 
A I HAVE NO RECOLLECTION OF THAT.


----------



## Greg Bimson (May 5, 2003)

With respect to parsing, the emperor has no clothes, as I've been saying all along.


----------



## scooper (Apr 22, 2002)

IMO Mr Chu just shot himself in the foot by going after PID filtering, Since that is a common piece to ALL DBS / satellite receivers, DVRs or not.


----------



## dfd (Aug 29, 2008)

scooper said:


> IMO Mr Chu just shot himself in the foot by going after PID filtering, Since that is a common piece to ALL DBS / satellite receivers, DVRs or not.


And hard drives are in all DVRs.... So what? The patent is for a process.


----------



## jacmyoung (Sep 9, 2006)

So basically he admitted he made a terrible mistake, that his testimony during the jury trial might have helped TiVo to secure that guilty verdict.

Now he says he was wrong, his opinion is now different, that the PID parse cannot meet that claim construction.

The judge will have to consider if he is correct now or not, not whether he was correct then, the judge must make his decision without respect to what had happened during the previous trial. Want to know why? Because an injunction is constructed *without reference to the prior trial and proceedings.*


----------



## Greg Bimson (May 5, 2003)

scooper said:


> IMO Mr Chu just shot himself in the foot by going after PID filtering, Since that is a common piece to ALL DBS / satellite receivers, DVRs or not.


Yet in 2006, DISH/SATS expert testified that PID filtering met the parse step of the claims during the trial. Now in order to accept that no analysis is done in either the process or the apparatus (right), DISH/SATS has to impeach the facts to which they've already admitted meet the step.

The patent's claims call for a process and an apparatus that parse (analyze), yet I am supposed to believe that DISH/SATS new non-infringing process and DVR's no longer analyze?

One may think it was foolish that Mr. Chu went after Dr. Rhyne. It is Dr. Rhyne that looks nothing more than a two-bit hustler, as the only reason he believes anything changed is that the jury verdict changed is opinion, but did not change that PID filtering met the step of the claim.


----------



## jacmyoung (Sep 9, 2006)

Rule 65(d) regarding injunctions:



> (d) Contents and Scope of Every Injunction and Restraining Order.
> (1) Contents.
> 
> Every order granting an injunction and every restraining order must:
> ...


Anything that is related to whether the injunction is followed or violated, must be based on the current references before the judge, not in any reference to the [original] complaints [trial] or documents [whatever said back then].


----------



## Greg Bimson (May 5, 2003)

jacmyoung said:


> The judge will have to consider if he is correct now or not, not whether he was correct then, the judge must make his decision without respect to what had happened during the previous trial. Want to know why? Because an injunction is constructed *without reference to the prior trial and proceedings.*


This is insane..

Colorable difference? Infringement is adjudged between those found infringing and the modification, and there is no difference between the analysis done back in 2006 and the analysis done now.

Remember this hearing is about infringement and colorable difference, not an injunction.


----------



## jacmyoung (Sep 9, 2006)

Greg Bimson said:


> This is insane..
> 
> Colorable difference? Infringement is adjudged between those found infringing and the modification, and there is no difference between the analysis done back in 2006 and the analysis done now.
> 
> Remember this hearing is about infringement and colorable difference, not an injunction.


Of course it is also "insane" to argue that one has followed the order which says one shall disable the DVR functions, when one did not disable the DVR functions.

This hearing is about whether the Permanent Injunction has been violated or not. The Statute specifically prohibits an injunction from referring to the previous trial and any other documents at all, only to address the issues in the injunction.

Therefore in determining if the injunction has been violated or not, the decision must be based on what is said and done now that is related to what is said in the injunction , not based on what was done and said before the injunction took effect.

The E*'s expert now testifies that, the PID "parsing" does not meet the claim construction, therefore the judge will have to decide if he would agree with his current testimony or not. Of course the judge must also consider what TiVo is saying about the PID "parsing" now, not what TiVo said back then either.

And he will have to decide who he must agree with, without referring to anything said back then.


----------



## Curtis52 (Oct 14, 2003)

Chu questioning Dr. Rhyne p 511:

I AM GOING TO ASK YOU A QUESTION ABOUT INDEXING. 
A YES. 
Q AND I THINK YOU ARE FULLY IN AGREEMENT THAT THE WORD 
INDEXING DOESN'T APPEAR IN CLAIM 31 AND 61, CORRECT? 
A YES. 
Q AND YOU ARE NOW IN AGREEMENT THAT IT'S NOT PART OF THE 
COURT'S CLAIM CONSTRUCTION, CORRECT? 
A OF WHICH? 
Q OF PARSING? 
A BUT NOT OF PARSING, NO, IT'S NOT. OR THAT LONGER PHRASE, 
THAT PARSING AUDIO AND VIDEO. 
Q SIR, I THINK YOU'VE ANSWERED. 
A OKAY, FINE. 
Q YOU WERE ACTUALLY BEING A LITTLE HELPFUL FOR OUR SIDE, I 
THINK, BUT I JUST WANT IT TO SPEED ALONG. 
A I AM ALWAYS TRYING TO BE HELPFUL.


----------



## Greg Bimson (May 5, 2003)

jacmyoung said:


> This hearing is about whether the Permanent Injunction has been violated or not. The Statute specifically prohibits an injunction from referring to the previous trial and any other documents at all, only to address the issues in the injunction.


No, this hearing was only to address two issues: infringement and colorable difference. The injunction is a separate document without a referring document.

But the evaluation of both infringement and colorable difference relates exactly to the claim construction (from the jury trial) and the difference between the adjudged devices (also from the jury trial) and the modified devices. Don't act like because this is a contempt motion in front of Judge Folsom that nothing can be used before. The evidence used to convict for infringement is the law of the case.


----------



## Curtis52 (Oct 14, 2003)

A large part (half?) of the hearing was about what happened at the trial and the appeal.


----------



## Curtis52 (Oct 14, 2003)

Iancu questioning Dr. Storer (TiVo) p 533:

Q SWITCHING GEARS TO THE OTHER CHANGE JUST BRIEFLY, THE INDEXING CHANGE, WE HAVE HEARD A LOT OF TESTIMONY FROM ECHOSTAR'S WITNESSES ABOUT THE INDEXING CHANGE THEY HAVE DONE. YOU WERE HERE FOR THAT, RIGHT? 
A OF COURSE, YEAH. 
Q DID YOU HEAR DR. RHYNE OPINE THAT THIS PATENT, MR. BARTON'S PATENT, IS ALL ONE INVENTION? 
A I DID. 
Q DO YOU HAVE AN UNDERSTANDING THAT THE SOFTWARE CLAIMS THAT ARE AT ISSUE HERE TODAY, 31 AND 61, ARE INDEPENDENT CLAIMS, INDEPENDENT, SEPARATE FROM CLAIMS 1 AND 32? 
A OF COURSE, I HAVE A NUMBER OF MY OWN PATENTS, AND VERY FAMILIAR WITH THE NOTION OF AN INDEPENDENT CLAIM. 
Q AND LET ME GO TO A DIFFERENT TOPIC, THEN. 
MR. IANCU: LET'S PUT UP CURRENT STORER SLIDE, OR REBUTTAL STORER SLIDE 19. 
Q (BY MR. IANCU) DR. STORER -- 
MR. IANCU: YOU CAN CLICK THROUGH THEM ALL. 
Q (BY MR. IANCU) DR. STORER, WITHIN THE CONTEXT OF CLAIMS 31 AND 61, ARE THERE ANY DIFFERENCES IN TECHNOLOGY BETWEEN PRODUCTS NOW AND THE WAY THOSE PRODUCTS WERE AT TRIAL OVERALL WITH RESPECT TO BOTH CHANGES ECHOSTAR IS ALLEGING TO HAVE MADE? 
A NO. I THINK THAT'S -- YOU'VE SEEN THAT THROUGHOUT MY TESTIMONY, NO. 
Q AND WE HAVE SLIDE 19 UP. CAN YOU PLEASE EXPLAIN WHAT YOU HAVE IN MIND WHEN YOU SAY THAT THERE ARE NO CHANGES, BECAUSE, IN FACT, WE HAVE SEEN WITNESSES FROM ECHOSTAR'S SIDE DESCRIBING A NUMBER OF CHANGES OVER THE PAST FEW DAYS? 
A WELL, OKAY. I DON'T WANT TO SOUND LIKE A BROKEN RECORD, BUT I HAVE SAID MANY TIMES IT'S IMPORTANT TO ACTUALLY LOOK AT THE PRODUCT, WHAT WE ARE TALKING ABOUT HERE, THE SOFTWARE, TO ACTUALLY LOOK AT IT; AND IT'S IMPORTANT WHAT IT DOES, NOT WHAT YOU CALL IT. AND I THINK I HAVE MENTIONED ALL OF THESE THINGS OVER THE COURSE OF THE TESTIMONY BEFORE. AND THERE SEEMS TO BE A THEME OF A NAME THAT'S NOT REFLECTIVE OF WHAT'S ACTUALLY HAPPENING. SO, I DON'T KNOW IF I CAN JUST RUN THROUGH THEM QUICKLY HERE, BUT INDEXLESS, RIGHT? OF COURSE, WE SEE THEY DO CONSTRUCT INDICES. WE HAVE 
SEEN THEIR OWN ENGINEERS SAYING, WAIT A MINUTE, THERE IS A MISTAKE. WE DO HAVE AN INDEX. BRUTE FORCE, THE WHOLE IDEA OF THEIR STATISTICS WAS SO THEY COULD NOT DO BRUTE FORCE, SO THEY COULD BE SKIPPING FORWARD AND NOT HAVING TO LOOK AT ALL THAT DATA, AND WE HAD THEIR OWN ENGINEERS EVEN IN THE DESIGN PROCESS SAYING BRUTE 
FORCE WON'T WORK, AND YET IT'S CALLED BRUTE FORCE. THEY TRY TO SAY THERE'S NO PARSING. THEY MADE CHANGES IN THE TITLES FROM PARSING AND TAKING PARSING OUT OF THE TITLE, AND YET WHEN YOU ACTUALLY LOOK WHAT THEIR OWN PEOPLE SAY, WE NEED TO PARSE THE DATA; AND, OF COURSE, WE SAW WHERE WE LOOKED AT THE CODE AND THE WORD PARSE IS IN VARIABLE NAMES, AND ALL THAT SORT OF THING. 
NO-SYNC. THERE WAS A BIG DEAL MADE ABOUT THERE WAS NO COMMUNICATION BETWEEN DIFFERENT LEVELS OF THE CODE, AND THIS NO-SYNC STRUCTURE IS A CRITICAL STRUCTURE THAT'S MAINTAINED IN THE DRIVER CODE. THE DRIVER CODE THAT MR. MINNICK SAID HE 
DIDN'T LOOK AT, HE SAYS HIS ENGINEERS DIDN'T LOOK AT IT, DR. RHYNE SAID EXPLICITLY IN HIS DEPOSITION HE HADN'T LOOKED AT IT, BUT THE NO-SYNC STRUCTURE IS WHERE THIS COMMUNICATION TAKES PLACE BETWEEN THE LEVELS OF THE CODE. SO, IT'S CALLED NO-SYNC, BUT ACTUALLY IT'S THE SYNC, THE COMMUNICATION STRUCTURE. 
SINGLE BUFFER, OF COURSE WE HAVE SEEN THERE ARE TEN BUFFERS. I THINK BY NOW THAT'S PRETTY CLEAR. WE HAVE SEEN ALL -- ALL OF I THINK THE PEOPLE WHO HAVE COME UP HERE, EVEN IF THEY ORIGINALLY SAID THERE WASN'T, SAY THERE IS TEN. 
LINEAR BUFFER, THIS SEEMS TO BE A NEW NAME THAT CAME UP AT THE VERY END. WE KNOW THAT THE ENGINEERS CALL IT A RING BUFFER. THEY CLEARLY USE IT SYNONYMOUSLY WITH CIRCULAR BUFFER. IN FACT, YOU SEE THEM USE THE WORD CIRCULAR AS WELL INTERMIXED IN THE CODE AND IN THE MEMORANDA. 
SO, THERE SEEMS TO BE A THEME OF NAMING. I AM NOT CONCERNED WITH NAMING. I AM CONCERNED WITH WHAT IT ACTUALLY DOES WHEN YOU ACTUALLY LOOK AT THE CODE. 
Q THANK YOU, DR. STORER.


----------



## Curtis52 (Oct 14, 2003)

p 536

CROSS EXAMINATION 
BY MS. KREVANS: 
Q DR. STORER, I JUST WANT TO FOLLOW-UP ON ONE THING THAT MR. IANCU ASKED YOU ABOUT. HE ASKED ABOUT WHETHER YOU AGREED WITH DR. RHYNE THAT THE BARTON PATENT SPELLED OUT ONE INVENTION. AND YOU SAID, NO, YOU DIDN'T AGREE WITH THAT. 
A EXCUSE ME? 
Q YOU SAID YOU DID NOT AGREE WITH THAT? 
A I DIDN'T SAY THAT. 
Q YOU THINK IT'S ONE INVENTION? 
A I'VE SAID A NUMBER OF TIMES THAT THIS PATENT DESCRIBES ACTUALLY THE BASIS OF A MODERN DVR, AND IT HAS A -- 
Q ONE INVENTION OR TWO, DR. STORER? 
A AND IT HAS A NUMBER -- TWO KEY ASPECTS TO IT, WITH INDEPENDENT CLAIMS. 
Q DR. STORER, COULD YOU TRY TO JUST LISTEN TO THE QUESTION AND ANSWER IT. ONE INVENTION OR TWO IN THE BARTON PATENT? 
A ONE OVERALL INVENTION, WITH DIFFERENT ASPECTS CLAIMED WITH DIFFERENT INDEPENDENT CLAIMS. 
Q TRUE OR FALSE, DR. STORER, THE HARDWARE DESCRIBED IN THE BARTON PATENT AND THE SOFTWARE DESCRIBED IN THE BARTON PATENT RELATE TO THE SAME INVENTION? 
A CERTAINLY THEY RELATE TO THE SAME INVENTION, SURE. 
Q SO, TRUE? 
A IT'S CERTAINLY TRUE THEY RELATE TO THE SAME INVENTION. 
Q OKAY. YOU READ MR. BARTON'S RECENT DEPOSITION IN THIS CASE, DR. STORER? 
A I BELIEVE SO. 
Q YOU UNDERSTAND THAT MR. BARTON TESTIFIED AT HIS RECENT DEPOSITION THAT COLUMNS 5 AND 6 OF THE PATENT AND FIGURES 4, 5 AND 6, WHICH ARE ABOUT THE MEDIA SWITCH, ILLUSTRATE WHAT THE PHYSICAL DATA SOURCE OF CLAIMS 31 AND 61 DOES? 
A I DON'T RECALL THAT SPECIFIC -- SPECIFIC TESTIMONY. 
Q OKAY. WHY DON'T WE LOOK AT IT. 
A SURE. 
MS. KREVANS: COULD WE SEE MR. BARTON'S JANUARY 22ND, 2009 DEPOSITION, STARTING AT PAGE 121, LINE 12, GOING THROUGH PAGE 123, LINE 4? DO WE HAVE A COPY THAT WE COULD GIVE THE 
WITNESS? 
A OH, THANK YOU. ALTHOUGH THIS IS -- YOU ARE GIVING ME 
THIS, BUT THIS IS WHAT WE ARE LOOKING AT UP THERE, RIGHT? 
Q RIGHT. JUST BECAUSE IT'S A COUPLE OF PAGES LONG, DR. 
STORER, I THOUGHT IF YOU WANTED TO LOOK AT IT ON PAPER THAT 
WOULD BE EASIER FOR YOU. 
A NO, THAT'S FINE. NO, ACTUALLY I HAVE THE MONITOR HERE IS 
FINE. 
MS. KREVANS: JANUARY 22, 2009. 
Q (BY MS. KREVANS) OKAY. DO YOU SEE ON PAGE 121, AT LINE 12, MR. BARTON IS ASKED: IF YOU LOOK AT THE BEGINNING OF CLAIM 31 AFTER THE COLON WHERE IT SAYS PROVIDING A PHYSICAL DATA SOURCE, WHEREIN SAID PHYSICAL DATA SOURCE ACCEPTS BROADCAST DATA FROM AN INPUT DEVICE, PARSES VIDEO AND AUDIO DATA FROM 
SAID BROADCAST DATA AND TEMPORARILY STORES SAID VIDEO AND AUDIO DATA, DO YOU SEE THAT? 
MR. BARTON ANSWERS: I SEE THAT TEXT. 
ARE YOU WITH ME? 
A AND I SEE IT, TOO, YES. 
Q OKAY. MR. BARTON IS ASKED: AND DO YOU HAVE AN UNDERSTANDING, ASIDE FROM THE EMBODIMENTS DESCRIBED IN THE SPECIFICATION, OF WHETHER THE CLAIM LANGUAGE REQUIRES THAT THE PHYSICAL DATA SOURCE PARSE VIDEO AND AUDIO DATA FROM SAID BROADCAST DATA AND TEMPORARILY STORES VIDEO AND AUDIO DATA? 
AND IF WE COULD GO DOWN, MR. BARTON ANSWERS: AS I SAID, THE EXAMPLE EMBODIMENT IN THE SPECIFICATION OF THE PATENT IS THE BEST PLACE TO TALK ABOUT WHAT THE PHYSICAL DATA SOURCE IS DOING.

QUESTION: WHERE DO YOU THINK THE SPECIFICATION DOES THAT? 
ANSWER: THE SPECIFICATION DOES THAT IN A NUMBER OF PLACES, IF WE GO BACK TO FIGURES, FIGURES 5 AND 6 IN THE PATENT, WHICH ARE DESCRIBED STARTING AT COLUMN 5, LINE 33. 
QUESTION: FOR EXAMPLE, COLUMN 5, LINE 20, WHERE IT SAYS THE EVENT BUFFER IS FILLED BY THE PARSER WITH EVENTS. EACH EVENT IN THE EVENT BUFFER HAS AN OFFSET EVENT TYPE AND TIME STAMP FIELD. THE PARSER APPLIES THE TYPE AND OFFSET OF EACH EVENT AS IT'S PLACED IN THE BUFFER. AND THEN THERE IS A COLLOQUY AMONG THE LAWYERS. THE WITNESS SAYS: I HAD SAID THE FIGURE AND THEN POINTED BACK TO THE TEXT. I ACTUALLY SHOULD HAVE POINTED TO FIGURE 4 FIRST WHICH DESCRIBES HOW DATA COMES INTO THE SYSTEM AND IS PLACED IN TEMPORARY STORAGE. AND THEN IT GOES ON, AND YOU SEE AT THE BOTTOM AT -- 
MS. KREVANS: IF YOU COULD SCROLL DOWN A LITTLE BIT MORE, PLEASE. I AM SORRY, GO BACK UP A SECOND, ONE MORE, KEEP GOING, THE PREVIOUS PAGE. THE BOTTOM OF LINE 123. COULD YOU GO TO THE BOTTOM OF PAGE 123, MICHAEL? 
Q (BY MS. KREVANS) DO YOU SEE THE QUESTION, LINE 20? AND HE WAS ASKED -- 
MS. KREVANS: SORRY, LINE 20, MICHAEL. 
Q (BY MS. KREVANS) AND THE PARSER ALSO FILLS THE EVENT BUFFER WITH EVENTS? AND MR. BARTON ANSWERS: AS THE PARTICULAR PARSER DESCRIBED HERE IN THE FIGURES RUNS, IT IDENTIFIES THINGS LIKE FRAME STARTS,OTHER INFORMATION ABOUT THE MPEG STREAM, AND GENERATES AN EVENT WHICH DESCRIBES WHERE IN THESE OTHER BUFFERS IN MAIN MEMORY THE PARTICULAR COMPONENT, THE FRAME START, WHATEVER, OF THE STREAM COMING IN IS SITTING IN MEMORY. THAT WAS MR. BARTON'S TESTIMONY ABOUT THE PHYSICAL DATA SOURCE OF CLAIMS 31 AND 61,CORRECT? 
A WELL, NO, YOU LEFT OUT -- AND NOW I DO REMEMBER THIS. HE ALSO HAD ADDITIONAL CLARIFICATION ABOUT THIS PASSAGE AT THE END. 
Q DR. STORER -- 
A SO IT WASN'T HIS -- 
Q DR. STORER, WHAT I JUST -- 
A -- COMPLETE TESTIMONY. 
Q DR. STORER, PLEASE -- 
THE COURT: DOCTOR, IF YOU WILL LISTEN TO THE QUESTION AND RESPOND. 
THE WITNESS: OKAY. 
Q (BY MS. KREVANS) THE QUESTION WAS, WHAT I JUST READ WAS TESTIMONY THAT MR. BARTON GAVE ABOUT THE PHYSICAL DATA SOURCE OF CLAIMS 31 AND 61 OF THE '389 PATENT, CORRECT? 
A THIS WAS TESTIMONY WHICH WAS LATER ALSO AMENDED. 
Q THIS WAS TESTIMONY THAT MR. BARTON GAVE UNDER OATH AT HIS DEPOSITION ON JANUARY 22ND, 2009, CORRECT? 
A THAT IS CORRECT, AS I MENTIONED EARLIER. 
MS. KREVANS: THANK YOU, YOUR HONOR. 
MR. IANCU: JUST BRIEFLY, YOUR HONOR. 
THE COURT: NOW FOR THE REST OF THE DEPOSITION.

*REDIRECT EXAMINATION 
BY MR. IANCU:* 
Q TURN TO PAGE 1, PLEASE. 
THE COURT: WE ARE NOT GOING BACK TO PAGE 1. 
MR. IANCU: WELL, WE HAVE 'TIL NOON, DON'T WE? 
A JUST TO BE SAFE, I WILL CLOSE THE COVER. 
Q DR. STORER, ON THAT LAST POINT, IS THE MEDIA SWITCH AN EXAMPLE OF THE PHYSICAL DATA SOURCE? 
A ABSOLUTELY. 
Q DO YOU RECALL MR. BARTON DESCRIBING THROUGH THE REST OF HIS DEPOSITION, WITHOUT HAVING TO SIT HERE AND READ INTO THE RECORD ALL OF THE FEW HUNDRED PAGES, DO YOU RECALL HIM DESCRIBING OTHER EMBODIMENTS OF THE PHYSICAL DATA SOURCE? 
A ABSOLUTELY. AND HE, OF COURSE, WAS PROUD OF HIS INVENTION AND WAS DESCRIBING THE WHOLE THING, LOTS OF -- LOTS OF FOCUS ON THE MEDIA SWITCH IN CLAIM 1 AND THROUGHOUT THE DEPOSITION. 
Q AND DO YOU RECALL HIM DESCRIBING AN ENCODER AS AN EMBODIMENT OF THE PHYSICAL DATA SOURCE IN CLAIMS 31 AND 61? 
A YES. 
Q AND DO YOU REMEMBER HIM DESCRIBING THE PID FILTER AS AN EMBODIMENT DISCLOSED IN THE PATENT FOR THE SOFTWARE CLAIMS 31 AND 61? 
A YES. 
Q THANK YOU, DOCTOR.


----------



## Curtis52 (Oct 14, 2003)

This is the only mention of another hearing:

p 20

THE COURT: WHAT RELIEF -- IF I SHOULD AGREE WITH YOUR CONCLUSIONS, WHAT RELIEF ARE YOU REQUESTING ON BEHALF OF YOUR CLIENT? 
MR. CHU: THIS HEARING, YOUR HONOR, WILL OF COURSE ADDRESS WHETHER THEY ARE IN CONTEMPT, AND RELIEF WILL BE ANOTHER PROCEEDING. OBVIOUSLY, WE WOULD WANT AN APPROPRIATE ORDER SO THAT THEY WOULD DISABLE THE DVRS AND THAT THE COURT'S ORIGINAL INJUNCTION WOULD BE ENFORCED. THAT WOULD BE A MINIMUM. WE THINK THAT MONETARY RECOVERIES WOULD ALSO BE APPROPRIATE. THERE MAY BE OTHER RECOVERIES APPROPRIATE AS WELL, BUT WE THINK THAT BOTH SIDES SHOULD HAVE A FULL OPPORTUNITY TO DEVELOP THE RECORD BEFORE YOUR HONOR. 
THE COURT: THANK YOU. OPENING ON BEHALF OF ECHOSTAR.


----------



## jacmyoung (Sep 9, 2006)

Let me just point out two things, as I have said, and what the E* lawyer had tried to get the TiVo's witness to admit but he seemed very reluctant to admit it, that is all of these patent claims describe *one invention*, not two.

Additionally, what are described in the "hardware claims" are closely related to what are described in the "software claims."

The "physical data source" described in the "hardware claims" is the same "physical data source" described in the "software claims."

And in the "hardware claims" such "physical data sources" could not possibly exist without it separating the A/V data, parses the data, and built an index table, and then stores such index table "temporarily" in one or several buffers, and then later a "source object" will "extract" such index table for DVR trickplays.

Since there is only one invention, the essential part of that "physical data source" in the "hardware claims", the building of that index table as part of the "parse", must be relevant to the same "physical data source" in the "software claims" even though the word "index" does not appear in the "software claims."

One other thing TiVo was saying was, E* engineers admitted they could not make it work without some form of indexing. That may be true, but again TiVo does not make any distinction when that indexing may be performed.

To meet the claims limitations, that indexing must be performed *before* the A/V streams are recorded to the harddrive, then temporarily stored in the buffer, only then can that "source object" "extract" such info for DVR trickplays.

If the indexing is done seme time much later, such as when after the A/V streams are already recorded onto the harddrive, and then only after the user begin to issue DVR trickplay commands, will such indexing be built and be used, then no, such method of indexing is not the same as described in the patent claims.

Because they do not follow the same logical order. Without the index table first being built and temporarily stored, before the A/V sterams are recorded to the hard drive, the source object simply cannot extract it for DVR trickplays, that is the limitation of the TiVo invention.

The E* invention is not subject to such limitation, it does not parse then build that indexing then store it temporarily, before the A/V streams are recorded onto the hard drive. There is no such step in the E* new design, and this step is TiVo's "core invention" and E*'s new design does not rely on such step, it simply does not have such step.


----------



## Greg Bimson (May 5, 2003)

So Judge Folsom never mentioned another hearing? Wow.

So Morgan Chu asked for another hearing related to remedies? Wow.

Much supposition goes flying out the window.


----------



## jacmyoung (Sep 9, 2006)

Curtis52 said:


> This is the only mention of another hearing:
> 
> p 20
> 
> ...


Even though you have omitted the part preceding this quote, by just reading the response Mr. Chu made to the judge, it is clear the judge was saying this hearing should only address whether E* is in contempt or not, and if so whether the DVRs should be disabled.

This hearing does not address the other "relief", i.e. the damage part.


----------



## jacmyoung (Sep 9, 2006)

Greg Bimson said:


> So Judge Folsom never mentioned another hearing? Wow.
> 
> So Morgan Chu asked for another hearing related to remedies? Wow.
> 
> Much supposition goes flying out the window.


I wouldn't be so quick to jump into any conclusion, Curtis52 has been somewhat selective in my view though I must say he did much better than what the TiVo investor Mike did.


----------



## Greg Bimson (May 5, 2003)

jacmyoung said:


> To meet the claims limitations, that indexing must be performed before the A/V streams are recorded to the harddrive, then temporarily stored in the buffer, only then can that "source object" "extract" such info for DVR trickplays.





jacmyoung said:


> Since there is only one invention, the essential part of that "physical data source" in the "hardware claims", the building of that index table as part of the "parse", must be relevant to the same "physical data source" in the "software claims" even though the word "index" does not appear in the "software claims."


Which is it? Indexing is not in patent claims 31 and 61, or indexing is required? Which is it?

The invention is a DVR. Let's see if anyone can design around it so as not to infringe upon the patent.


----------



## jacmyoung (Sep 9, 2006)

Greg Bimson said:


> Which is it? Indexing is not in patent claims 31 and 61, or indexing is required? Which is it?


Indexing is a necessary part of meeting the definition of the "physical data source", therefore is relevant to the invention and relevant to the software claims, because the software claims describe the same "physical data source" not another different "physical data source."



> The invention is a DVR. Let's see if anyone can design around it so as not to infringe upon the patent.


Try that in front of Judge Folsom and I think he will laugh at that notion. I am glad at least TiVo is not saying that.


----------



## Greg Bimson (May 5, 2003)

jacmyoung said:


> Indexing is a necessary part of meeting the definition of the "physical data source", therefore is relevant to the invention and relevant to the software claims, because the software claims describe the same "physical data source" not another different "physical data source."





> 31 - A process for the simultaneous storage and play back of multimedia data, comprising the steps of:
> 
> providing a physical data source, wherein said physical data source accepts broadcast data from an input device, parses video and audio data from said broadcast data, and temporarily stores said video and audio data;


The physical data source accepts broadcast data. It has nothing to do with "an index". Nowhere in claims 31 and 61 does an index appear, nor can it be inferred an index is required.


Greg Bimson said:


> The invention is a DVR. Let's see if anyone can design around it so as not to infringe upon the patent.





jacmyoung said:


> Try that in front of Judge Folsom and I think he will laugh at that notion. I am glad at least TiVo is not saying that.


Ahh. But TiVo has a patent on a DVR process. One does not need to compare the adjudged receivers to the TiVo product to test for infringement. That is why patent trials adjudge infringement against patent claims.

It is becoming apparent that DISH/SATS is attempting to design-around by changing the order of a few pieces and renaming processes in order to say they no longer infringe. That isn't colorably different.


----------



## Curtis52 (Oct 14, 2003)

p63 Dr. Storer (TiVo)
DIRECT EXAMINATION CONTINUES 
BY MR. IANCU: 
Q ALL RIGHT. IF WE COULD PUT BACK UP SLIDE 26, PLEASE. ALL RIGHT. SO, DR. STORER, THIS WAS SLIDE 17 FROM TRIAL THAT YOU DESCRIBED. LET ME ASK YOU NEXT IF ECHOSTAR STILL HAS AN INDEX TABLE? 
A YES, THEY DO. 
Q AND LET'S TAKE A LOOK AT EXHIBIT 3176 WHICH APPEARS IN PART ON THE NEXT SLIDE. CAN YOU PLEASE DESCRIBE WHAT YOU SEE THERE? 
A SO THIS IS ONE OF MANY, MANY MEMOS AND EMAILS FROM ENGINEERS AND BETWEEN ENGINEERS I LOOKED AT. THERE ARE 11,000 PAGES OF DOCUMENTS PRODUCED AT ONE POINT, MANY OF WHICH WERE THINGS LIKE THIS. AND HERE THERE IS AN EXCHANGE ABOUT INDEX, QUOTE, FILE REMOVAL WHERE THE ENGINEER IS SAYING THIS SECTION 
OF THE DOCUMENT CONTAINS MANY INACCURACIES. AND IT GOES ON TO SAY, WE STILL HAVE AN INDEX FILE, AND THEN DESCRIBES THE DIFFERENCES BETWEEN THE NEW INDEX FILE AND THE OLD ONE. 
Q WAS MR. CARLSON HERE REFERRING TO AN INDEX THAT APPEARS IN BOTH PRODUCTS, 50X AND BROADCOM? 
A IT IS TRUE THAT AN INDEX DOES APPEAR IN BOTH 50X AND BROADCOM, THAT'S CORRECT. 
Q NOW, MR. CARLSON HERE REFERS TO WHAT'S CALLED A WTT FILE. WHAT DO YOU UNDERSTAND THAT TO BE? 
A OKAY. SO THE WTT FILE IS THE NAME FOR THE INDEX. IT'S IN THE BROADCOM PRODUCTS, IF YOU WILL. AS I JUST MENTIONED, THERE IS ALSO A SIMILAR NAME IN THE 50X PRODUCTS AS WELL. 
Q IS THE -- IS THIS INDEX THAT MR. CARLSON IS REFERRING TO USED FOR TRICKPLAY? 
A SO THIS INDEX ACTUALLY IS USED TO MAINTAIN -- I DON'T KNOW, PEOPLE, ANYONE WHO IS FAMILIAR WITH THE DVR KNOWS ABOUT THE BAR AT THE BOTTOM THAT SHOWS YOU YOUR PROGRESS AND SO ON WHEN YOU ARE DOING THE TRICKPLAY, AND THIS INDEX IS USED TO MAINTAIN THAT BAR. 
Q ARE THE DIFFERENCES IN THE INDEXES, THE ONE MR. CARLSON IS REFERRING TO AND THE ONE IN THE PRODUCTS AT TRIAL, RELEVANT TO THE CLAIMS IN ANY WAY? 
A NO. OF COURSE, AS WE'VE TALKED ABOUT, CLAIMS 31 AND 61 DON'T EVEN CONTAIN THE WORD INDEXING OR HAVE INDEXING IN THEM. AND EVEN IF SOMEHOW ONE WANTED TO INCLUDE SOME NOTION OF INDEXING, IT'S HARD TO UNDERSTAND HOW SOME DETAILS OF THE DIFFERENCES COULD POSSIBLY BE IN THE CLAIM. BUT -- 
Q NOW, LET'S TAKE A LOOK AT EXHIBIT 3278 AND PAGE 10 OF THAT IN PARTICULAR WHICH AN EXCERPT APPEARS ON THE NEXT SLIDE. DO YOU UNDERSTAND THAT ECHOSTAR SAYS IT NOW USES A STATISTICAL ANALYSIS FOR TRICKPLAY? 
A YES. SO IN ADDITION TO THE INDEX THAT I JUST MENTIONED THAT'S USED TO MAINTAIN THAT BAR, THERE ARE ALSO STATISTICS MAINTAINED THAT ARE USED TO -- FOR THE TRICKPLAY AS WELL. 
Q DOES THE USE OF STATISTICS FOR TRICKPLAY MAKE THE ECHOSTAR PRODUCTS DIFFERENT FROM THE WAY THEY WERE AT TRIAL IN ANY WAY MEANINGFUL TO CLAIMS 31 AND 61? A SO AGAIN, OF COURSE NOT, RIGHT? INDEXING ISN'T EVEN IN CLAIM 31. AND SO THE ANSWER IS, YES, OF COURSE NOT, THEY DON'T. 
Q GOING TO THE NEXT SLIDE, SO DOES ECHOSTAR'S INDEXING CHANGE MAKE THE CURRENT PRODUCTS MORE THAN COLORABLY DIFFERENT FROM THE PRODUCTS AT TRIAL? 
A AGAIN, OF COURSE NOT. INDEXING ISN'T EVEN PART OF CLAIMS 31 AND 61. AND EVEN IF SOMEHOW IT WAS REQUIRED IN SOME VAGUE WAY, WE JUST MENTIONED THEY STILL -- STILL HAVE IT. 
Q OKAY. WE ARE -- STAY ON SLIDE 29, PLEASE. SO -- SO WE JUST SPOKE ABOUT INDEXING AND COLORABLE DIFFERENCES. WE ARE GOING TO COME BACK TO THE BUFFERING CHANGE, BUT FIRST WE SHOULD ADDRESS THE IMPACT ON INFRINGEMENT, IF ANY, CAUSED BY THE INDEXING CHANGE. SO NOW WE CAN GO TO SLIDE 30. DOES 
ECHOSTAR STILL MEET THE PARSING LIMITATION IN CLAIMS 31 AND 61? 
A ABSOLUTELY.


----------



## jacmyoung (Sep 9, 2006)

Interesting, so far it seemed this hearing was only about TiVo's lawyer asking TiVo's witness questions


----------



## nobody99 (May 20, 2008)

jacmyoung said:


> Interesting, so far it seemed this hearing was only about TiVo's lawyer asking TiVo's witness questions


There's 546 pages. Curtis has only picked out a few. There's plenty more juicy stuff to come.


----------



## nobody99 (May 20, 2008)

Speaking about the internal memos and documentation, it appears that DISH did a bulk search-and-replace and looked for the word "parse" and replaced it with "brute force"



pg 81 said:


> A SO HERE YOU HAVE TWO VERSIONS OF A DESIGN DOCUMENT
> RELATING TO THIS ISSUE OF INDEXING, AND THEY ARE DATED SHORTLY
> AFTER THE TRIAL ABOUT A MONTH APART, JUNE -- ON THE LEFT YOU
> HAVE ONE DATED JUNE 13TH, 2006, AND ON THE RIGHT YOU HAVE ONE
> ...


----------



## nobody99 (May 20, 2008)

jacmyoung said:


> Indexing is a necessary part of meeting the definition of the "physical data source", therefore is relevant to the invention and relevant to the software claims, because the software claims describe the same "physical data source" not another different "physical data source."


Hmmm...this seems to address your concern.



pg 85 said:


> DO ECHOSTAR'S PRODUCTS WITH THE CURRENT SOFTWARE
> LITERALLY HAVE A PHYSICAL DATA SOURCE THAT ANALYZES THE VIDEO
> AND AUDIO FROM THE BROADCAST DATA AS REQUIRED BY CLAIMS 31 AND
> 61?
> ...


----------



## jacmyoung (Sep 9, 2006)

nobody99 said:


> Hmmm...this seems to address your concern.


Please, TiVo is saying because the PID parses the incoming data, it is now that infamous "physical data source". But does the PID filter build that index? He said even if the PID filter does not build that index, it still does the same thing.

Really? What does the PID do then? And after the PID does it, where does it "temporarily store" whatever it does? And if it does not do it, then it cannot "temporarily store" it, can it? Then how is that "source object" able to "extract" whatever it is to do any DVR trickplays? Without all these, can TiVo honestly expect the judge to agree that it is substantially the same?

Now TiVo is saying but the word "index" is not in claims 31 and 61, therefore the change of "indexing method" is irrelevant, therefore the difference is only colorable.

But then they go on trying to "prove infringement by clear and convincing evidence" (as the law requires them to) and guess how they do it?

Yes, finding from a pile of email in which one of them says the E* new software still eventually has some index to do DVR trickplays, so you see, they still use an index somehow, so they still infringe.

Hello? Didn't TiVo just say from a minute ago that "indexing" was irrelevant to the claims? So how could they use it to prove infringement? What is it? Please make up their mind. The truth is, TiVo knows "indexing" is relevant, not only it is relevant, it is the "core of the invention", they needed it to prove infringement back then, and need it now.

And where is that so called "claim chart" TiVo was talking about Curtis52? That should be easy to spot.

When E* complained about TiVo not providing enough disclosures, TiVo said but they were busy reading E*'s disclosures and preparing a "claim chart", you know the one commonly used to prove infringement, which TiVo did in the previous trial.

Where is it? TiVo needed such chart to prove infringement by preponderous of evidence back then, now TiVo is carrying a heavier burden of proof by clear and convincing evidence, and they forgot to produce that chart?

So far I am only going by the quotes which are very selective, intended to only show TiVo's point of view, not E*'s point of view, and I have already pointed out how TiVo had failed their test.


----------



## Greg Bimson (May 5, 2003)

> SO I MEAN EVEN IF YOU TRIED TO MAKE THEIR ASSUMPTION THAT
> SOMEHOW YOU NEED TO HAVE INDEXING AS PART OF CLAIM 31, IT'S
> HARD TO IMAGINE HOW. YOU STILL HAVE -- YOU CAN STILL SATISFY
> THE STANDARD THREE-PART TEST, SUBSTANTIALLY THE SAME FUNCTION,SUBSTANTIALLY THE SAME WAY, AND SUBSTANTIALLY THE SAME RESULT.


The infringing DVR's had an index file, created on the fly, so the media switch can run along with the trick plays.

It is immaterial to claims 31 and 61.


----------



## Greg Bimson (May 5, 2003)

jacmyoung said:


> Really? What does the PID do then? And after the PID does it, where does it "temporarily store" whatever it does? And if it does not do it, then it cannot "temporarily store" it, can it? Then how is that "source object" able to "extract" whatever it is to do any DVR trickplays? Without all these, can TiVo honestly expect the judge to agree that it is substantially the same?


Asked and answered a thousand times over...

The PID filter parses the broadcast data, separates it into audio and video, and holds it into a temporary buffer before writing to disk.

I've yet to see an argument regarding source object, so I will defer on argument there, other than to state if there is no source object, there would be no DVR functionality.


----------



## Greg Bimson (May 5, 2003)

jacmyoung said:


> Hello? Didn't TiVo just say from a minute ago that "indexing" was irrelevant to the claims? So how could they use it to prove infringement? What is it? Please make up their mind. The truth is, TiVo knows "indexing" is relevant, not only it is relevant, it is the "core of the invention", they needed it to prove infringement back then, and need it now.


The truth...

DISH/SATS' position is that because the index table is missing that the "core of the invention" is now gone. However, the index table was only used to prove infringement against the hardware claims, not the software claims.

DISH/SATS' position is a strawman, so big bad TiVo huffed and puffed (and blew the house in) to say even if indexing was somehow important to the two remaining claims, the new process still does substantially what it used to do.


----------



## Curtis52 (Oct 14, 2003)

p 96 Iancu (TiVo) - Dr. Storer (TiVo)

A SO AT THIS POINT IN TIME THE DATA IN BUFFERS SIX, SEVEN, EIGHT, NINE, AND TEN HAS YET TO BE COPIED TO THE HARD DRIVE. AND NOW WE'VE CIRCLED AROUND, IF YOU WILL, AND THE DATA FROM THE SATELLITE IS GOING INTO ONE. AND THE POINT HERE IS THIS WILL ALSO HAPPEN WITH THE READING. THE 
READING WILL EVENTUALLY GO DOWN THE LINE. IN FACT, WE CAN DRAW THAT. LET'S SUPPOSING NOW WE HAVE GONE ON FOR A WHILE AND WE'VE ACTUALLY COPIED ALL OF THESE BUFFERS TO THE HARD DRIVE, AND NOW WE ARE ACTUALLY COPYING THIS ONE TO THE HARD DRIVE. AND MAYBE IN THE MEANTIME THE RIGHT POINTER HAS GONE FORWARD AND NOW IT'S FILLED THIS DATA, IT'S FILLED THIS BUFFER WITH DATA. THIS ONE, OF COURSE, NOW IS BEING REUSED BECAUSE IT WAS READ QUITE A WHILE AGO. 
Q YOU MEAN BUFFER NUMBER ONE IS BEING REUSED? 
A BUFFER NUMBER ONE HAS BEEN FILLED AND NOW WE ARE REUSING, I'M SORRY, BUFFER NUMBER TWO. 
Q AND DOES THIS PROCESS KEEP GOING TO THE RIGHT IN A CIRCLE? 
A SO THAT'S WHAT'S HAPPENING NOW. SO WHAT'S HAPPENING IS THE WRITING IS ALWAYS MOVING TO THE RIGHT IN A CIRCLE AND THE READING IS ALWAYS MOVING TO THE RIGHT IN A CIRCLE, BUT THE READING IS CHASING THE WRITE ENDLESSLY HERE, RIGHT? THE READING AND THE WRITE ARE ALL BOTH GOING IN A CIRCLE. EVERY 
TIME THE READING GETS TO THE RIGHT END, BOUNCES BACK TO THE LEFT. EVERY TIME THE WRITING GETS TO THE RIGHT END, BOUNCES BACK TO THE LEFT TO NUMBER ONE. AND THEY JUST CONSTANTLY FOLLOW EACH OTHER WHERE THAT DISTANCE BETWEEN THEM, HOW MUCH DATA HAS BEEN WRITTEN, COME DOWN FROM THE SATELLITE AND PLACED IN ONE OF THE BUFFERS BUT HAS YET TO GO TO THE HARD DRIVE, THAT DISTANCE CAN VARY. AND THAT CAN HELP ADAPT TO THE LOCAL CHANGES AND THE AMOUNT OF DATA COMING DOWN AND THE AVAILABILITY OF THE HARD DRIVE AND THINGS LIKE THAT. 
Q DR. STORER, SO IS THIS ARRANGEMENT OFTEN CALLED A CIRCULAR BUFFER ARRANGEMENT? 
A EXACTLY. AND THE CIRCULAR JUST COMES FROM THE FACT THAT YOU ARE CONSTANTLY GOING AROUND IN THIS, IF YOU WILL, IN THIS DIAGRAM IN THIS CLOCKWISE FASHION. 
Q IS THIS BUFFER ARRANGEMENT FUNCTIONALLY THE SAME NOW AS IT WAS AT TRIAL IN THE BROADCOM PRODUCTS? 
A THAT'S CORRECT. SO AS I MENTIONED BEFORE, BOTH NOW AND AT TRIAL THERE ARE TEN OF THESE THAT PARTICIPATED IN THIS CIRCULAR ARRANGEMENT, EACH OF THEM ABOUT SIZE 140,000 BYTES. 
Q SO DOES ECHOSTAR HAVE SOFTWARE THAT MANAGES THESE BUFFERS AND THE READS AND THE WRITES IN THE CIRCLE? 
A THAT'S CORRECT. SO WHEN YOU -- WHEN YOU ACTUALLY LOOK AT THE SOFTWARE YOU SEE THE CODE THAT ACTUALLY MANAGES THIS. AND THIS IS -- THIS WHOLE PROCESS AGAIN OF GETTING DATA FROM THE 
SATELLITE TO THE HARD DRIVE VIA WRITING, DEPOSITING DATA INTO AND TAKING DATA OUT OF ONE OF THESE BUFFERS IN THIS CIRCULAR ARRANGEMENT. 
Q IN THE ECHOSTAR CODE, WHAT ARE THESE READ AND WRITE POINTERS CALLED, GENERALLY SPEAKING, GENERAL TERMINOLOGY? 
A SO, OKAY, SO THESE ARE -- THESE ACTUAL TEN POSITIONS IN MEMORY ARE ACTUALLY DESCRIBED BY THINGS CALLED DESCRIPTORS. AND DESCRIPTORS, THERE'S TEN OF THEM IN BOTH PRODUCTS, AND DESCRIPTORS BASICALLY TELL THE COMPUTER, THE COMPUTING DEVICE EXACTLY WHERE THIS MEMORY IS AND THINGS ABOUT IT. AND DESCRIPTOR COUNTS ARE WHAT ARE USED AS A WAY OF KEEPING TRACK OF, OH, I AM READING HERE, I AM WRITING THERE, THERE IS THIS MUCH SPACE IN BETWEEN, AND THAT SORT OF THING. SO, IN BOTH PRODUCTS THERE IS TEN DESCRIPTORS, AND IN BOTH PRODUCTS THERE ARE DESCRIPTOR COUNTS. I'LL PUT THIS -- THANKS. 
(WITNESS RETURNING TO SEAT) 
Q DR. STORER, DID YOU PREPARE AN ANIMATION THAT REVIEWS WHAT YOU JUST DESCRIBED? 
A YEAH, BASICALLY THIS WHOLE -- THIS WHOLE EASEL NOW HOPEFULLY SETS US UP TO HAVE A -- TO WATCH THE ANIMATION AND GET SOMETHING FROM IT. SO IF WE COULD GO AHEAD AND RUN IT TO, SO TO SPEAK. NO. 
Q THE PREVIOUS ONE. 
A THE PREVIOUS ONE. THIS IS ALSO A GOOD ONE, BUT MAYBE IF WE COULD JUST RUN THIS ONE FIRST AND THEN I'LL GO THROUGH THE WATER ANALOGY. SO THIS, THIS IS SHOWING HOW -- LET'S STOP FOR A SEC -- GREAT. SO IT'S SHOWED -- JUST NOW YOU SAW THE READING OF, THE COPYING OF DATA FROM A BUFFER TO THE HARD DRIVE PROGRESS FORWARD TO THE RIGHT. AND LET'S RUN THE ANIMATION SOME MORE. 
Q BEFORE YOU GO ON, DR. STORER -- 
A OKAY. 
Q -- THE ARROW AT THE TOP OF THE R THAT SAYS READ -- 
A RIGHT. 
Q -- IS THAT THE COPYING THAT YOU JUST MENTIONED FROM THE BUFFER TO THE HARD DRIVE? 
A EXACTLY. SO DATA IS FLOWING OUT OF -- AT THIS POINT IN TIME WHERE WE STOP THE ANIMATION, DATA IS BEING COPIED VIA THE R POINTER FROM FOUR INTO THE HARD DRIVE. 
Q AND THE W AT THE ARROW AT THE BOTTOM IS WHERE THE DATA IS PLACED INTO THE BUFFER FROM THE PHYSICAL DATA SOURCE? 
A SO AT THIS POINT WHERE WE STOP THE ANIMATION, DATA IS COMING IN FROM THE SATELLITE INDICATED BY THE W AND BEING PLACED INTO, IN THIS CASE, BUFFER NUMBER EIGHT. 
Q OKAY. 
A SO NOW GO AHEAD AND RUN IT SOME MORE. YOU KNOW, THE ANTICIPATION IS KILLING US, SO LET'S JUST DO IT. ALL RIGHT. AND NOW WE SEE HOW IN FACT, THIS IS WHAT I WAS TALKING ABOUT UP THERE, THE THINGS, THEY ARE CHASING EACH OTHER, RIGHT? AND EVERY TIME ONE OF THEM GETS TO NUMBER TEN, IT GOES BACK TO 
POSITION ONE. 
Q DR. STORER, DID YOU ALSO PREPARE AN ANIMATION, PERHAPS WITH AN ANALOGY, THAT DESCRIBES THIS CONCEPT? 
A SO, YES, I DID. IF YOU GO TO THE NEXT SLIDE, AND JUST IF WE CAN FLIP FORWARD WITHOUT RUNNING IT YET. OKAY, I GUESS WE ARE GOING TO RUN IT. BUT I WAS GOING TO EXPLAIN THAT OFTEN PEOPLE USE WATER ANALOGIES, AND WE SAW WATER ANALOGIES AT THE FIRST TRIAL. AND IF YOU JUST THINK OF THESE CUPS AS BEING NUMBERED ONE THROUGH TEN, RIGHT, THAT'S EXACTLY WHAT WE SAW ON THE EASEL AND EXACTLY WHAT WE SAW ON THE PREVIOUS ANIMATION. DATA HERE IS WATER, RIGHT. WE ARE USING WATER AS THE ANALOGY FOR DATA, AND WE ARE USING LITTLE CUPS AS THE ANALOGY FOR THE BUFFERS. SO THIS WOULD BE TEN OF THEM, EACH ABOUT 140,000 BYTES. AND WE ARE USING THE BUCKET AS AN ANALOGY FOR THE HARD DRIVE. AND BASICALLY DATA COMES IN AND KEEPS FILLING THE CUPS SEQUENTIALLY, BUT IT'S ALWAYS GOING RIGHT TO LEFT, OR IN THIS CASE IT'S GOING TO BE COUNTER CLOCKWISE. DATA IS ALWAYS BEING FILLED COUNTER CLOCKWISE, AND THE CUPS ARE ALWAYS BEING EMPTIED COUNTER CLOCKWISE. RUN IT ONE MORE TIME JUST FOR THE SAKE OF IT, RIGHT, WE'VE GOT THE NICE GRAPHIC. AND REALLY THIS IS JUST TRYING TO GIVE SORT OF A NICE PICTURE USING THE COMMON WATER ANALOGY OF THIS CIRCULAR ARRANGEMENT WE SAW ON THE EASEL AND IN THE PREVIOUS ANIMATION AS WELL. 
Q AND DO YOU SEE FLOW CONTROL AT THE TOP IN THE CIRCULAR CUP ARRANGEMENT IN THIS ANALOGY? 
A SO A GREAT THING TO POINT OUT HERE, AND THIS I COULD HAVE 
-- 
MS. KREVANS: YOUR HONOR, THIS IS BEYOND THE SCOPE OF WHAT HE DISCLOSED IN THE EXPERT'S REPORT. 
MR. IANCU: YOUR HONOR, THIS IS JUST AN ANALOGY SUMMARIZING THE OPINION. 
MS. KREVANS: HE ASKED HIM IF HE SAW FLOW CONTROL IN THIS ANIMATION. 
THE COURT: I WILL OVERRULE IT. 
A YEAH, I COULD HAVE ALSO DONE THIS UP AT THE EASEL, BUT ONE THING YOU REALIZE, AND MAYBE THE ANALOGY IS NICE FOR THIS. YOU SEE THAT MECHANICAL PIPE SPINNING, YOU KNOW, GOING AROUND, 
RIGHT, IT NEVER GOES BACKWARDS. AND THAT'S -- AND SAME THING WITH THE PIPE ON THE BOTTOM THAT'S DRAINING, IT NEVER GOES BACKWARDS EITHER. THEY ALL, THEY BOTH GO COUNTER CLOCKWISE, RIGHT. AND THAT'S EXACTLY ANALOGOUS TO THE LEFT TO RIGHT THING WE SHOW HERE ON THE EASEL. YOU NEVER -- IT NEVER IS THE CASE THAT WHEN YOU'RE FILLING A BUFFER YOU WOULD BACK UP AND FILL THE BUFFER JUST -- THAT YOU JUST FILLED. YOU ALWAYS MOVE ON TO THE RIGHT. YOU NEVER TRY TO GO BACKWARDS AND DUMP MORE WATER IN THIS ANALOGY INTO THE CUP YOU JUST FILLED. 
MS. KREVANS: YOUR HONOR, I'D LIKE TO RENEW MY OBJECTION. I WAS NOT MAKING MYSELF CLEAR. IT WAS NOT TO THE FACT THAT HE WAS TALKING ABOUT AN ANIMATION THAT WAS NOT IN HIS REPORT. HIS OPINION ABOUT CIRCULAR BUFFERS SOMEHOW BEING FLOW CONTROL IS NOT IN DR. STORER'S REPORT, WHETHER HE IS 
TALKING ABOUT IT WITH OR WITHOUT THE ANIMATION. 
THE COURT: WHAT'S YOUR RESPONSE? 
MR. IANCU: FIRST OF ALL, I DISAGREE WITH THE CHARACTERIZATION OF HIS OPINION BY MS. KREVANS. THE REPORT IS FULL ABOUT -- 
THE COURT: I TELL YOU WHAT, WE ARE GOING TO TAKE OUR NOON RECESS AND WHEN YOU START BACK UP YOU CAN LET THE GOOD DOCTOR SHOW WHERE HE HAS ADDRESSED THIS ISSUE IN HIS REPORT. 
MR. IANCU: WE ARE ACTUALLY DONE WITH THIS ANIMATION -- 
THE COURT: WELL -- 
MR. IANCU: -- AND WE ARE GOING TO MOVE ON. 
THE COURT: -- WE ARE GOING TO TAKE OUR NOON RECESS, NEVERTHELESS. WE WILL BE IN RECESS UNTIL, OH, 1:20. 
(RECESS AT 11:55 A.M., UNTIL 1:20 P.M., OPEN COURT) 
THE COURT: PLEASE BE SEATED. YOU MAY CONTINUE. 
DIRECT EXAMINATION CONTINUES 
BY MR. IANCU: 
Q GO AHEAD AND PUT UP SLIDE 12 FROM ECHOSTAR'S OPENING. DR. STORER, FIRST OF ALL, WELCOME BACK. WERE YOU IN THE COURTROOM WHEN ECHOSTAR'S COUNSEL SHOWED THIS SLIDE, WHICH IS SLIDE 12, IN THEIR OPENING THIS MORNING? 
A YES, I WAS. 
Q DR. STORER, IS THIS SLIDE AN ACCURATE REPRESENTATION OF TIVO'S POSITION WITH RESPECT TO AUTOMATIC FLOW CONTROL CURRENTLY? 
A NO, NOT AT ALL. REMEMBER, WE TALKED ABOUT THIS WHOLE -- THE GOAL AT HAND OF COURSE IS TO GET THE DATA FROM THE SATELLITE DOWN TO THE HARD DRIVE. AND THERE IS A LOT THAT'S INVOLVED WITH FLOW CONTROL. WE HAVE ALREADY TALKED ABOUT THIS WHOLE MAINTENANCE OF THIS CIRCULAR ARRANGEMENT WE DISCUSSED EARLIER ON. THERE IS ALSO OTHER THINGS WE HAVEN'T TALKED ABOUT INCLUDING MONITORING OF AN EXCEPTIONAL OVERFLOW CONDITION, WHICH I WILL GET TO SHORTLY. AND THIS, IN ONE OF THE THINGS WE SAW, ONE OF THE DETAILS WE SAW EARLIER ON WAS THE NOTION THAT WHEN YOU FILL A BUFFER, RIGHT, AS SOON AS THAT BUFFER IS FULL, YOU GO ON AND START FILLING THE NEXT BUFFER. AND YOU DON'T EVER TRY TO BACK UP AND PUT MORE WATER INTO A FULL BUFFER. 
THE COURT: YES? 
MS. KREVANS: YOUR HONOR, BEFORE THE LUNCH BREAK YOU DIRECTED COUNSEL TO TRY TO FIND A PLACE IN THE REPORT WHERE THERE WAS A DISCLOSURE OF ANY FLOW CONTROL OPINIONS ABOUT CIRCULAR BUFFERS. I UNDERSTOOD THAT WAS GOING TO HAPPEN BEFORE ANY ADDITIONAL TESTIMONY ABOUT THOSE BUFFERS WAS 
ELICITED, AND THAT HAS NOT HAPPENED. 
THE COURT: CAN YOUR EXPERT POINT TO HIS REPORT? 
MR. IANCU: SURE. 
MR. IANCU: DR. STORER'S REPORT FROM DECEMBER 2008, PARAGRAPH 156 WITHIN THE AUTOMATIC FLOW CONTROL LIMITATION SAYS, FOR EXAMPLE, EVEN IF THIS LIMITATION REQUIRED USING TWO BUFFERS INSTEAD OF ONE, USING ONE CIRCULAR BUFFER IS AT LEAST EQUIVALENT TO THIS LIMITATION. PARAGRAPH 154 TALKS ABOUT ECHOSTAR, SORRY, THAT ECHOSTAR HAS TEN LOGICALLY SEPARATE BUFFERS ARRANGED IN A CIRCULAR FORMATION. LATER IN THAT PARAGRAPH, ALSO 154: EVEN IF WE CHARACTERIZE THE TEN BUFFERS AS A SINGLE CIRCULAR BUFFER, AND GOES ON. THESE ARE JUST SOME EXAMPLES. FURTHERMORE, THIS ISSUE WAS FULLY BEFORE ECHOSTAR DURING THE DEPOSITION. THERE WAS EXTENSIVE QUESTIONING ON THIS ISSUE OF MR. STORER -- DR. STORER. JUST ONE EXAMPLE, VOLUME ONE OF HIS DEPOSITION, PAGE 186, QUESTION: WHAT'S YOUR UNDERSTANDING OF THE RELATIONSHIP, IF ANY, BETWEEN THE CODE THAT READS OUT OF THE SET OF CIRCULAR BUFFERS AND THE CODE THAT CONTROLS THE DMA AND SO FORTH? PART OF THAT ANSWER AT PAGE 186 SAYS, 
QUOTE: YOU OBVIOUSLY MOVE AROUND IN A CIRCLE. YOU CAN'T GO LEFT. NO WAY. YOU ARE GOING TO WRITE TO THE GUY YOU JUST WROTE TO, CLOSE QUOTE, WHICH IS ALMOST VERBATIM WHAT DR. STORER JUST SAID TODAY AND JUST AS HIS PREVIOUS ANSWER. I COULD GO ON. 
MS. KREVANS: AND, YOUR HONOR, THAT OPINION WHICH DR. STORER CAME OUT WITH AT HIS DEPOSITION FOR THE FIRST TIME WAS NOT IN HIS REPORT AND IT'S NOT IN ANY OF THE PARAGRAPHS HERE EITHER. 
THE COURT: WELL, YOU KNOW, MY ATTITUDE HAS ALWAYS BEEN IF YOU ARE GIVEN FAIR NOTICE IN THE REPORT AND THE DEPOSITION, I AM GOING TO ALLOW THE TESTIMONY. NOW, YOU KNOW, THIS IS LIKE GOING BACK TO APRIL OF 2006, ALL THESE SAME ARGUMENTS. I HAVEN'T SEEN THE REPORT, OBVIOUSLY HAVEN'T SEEN THE DEPOSITION. I AM GOING TO NOTE YOUR OBJECTION, OVERRULE IT. IT APPEARS WE ARE GOING TO HAVE TO HAVE COPIES OF THE REPORTS FOR AT LEAST THE LIMITED PURPOSE OF WORKING THROUGH SOME OF THESE ISSUES JUST LIKE IN THE TRIAL THAT, I MIGHT ADD, POST-TRIAL NO ONE EVER RAISED AS AN ISSUE. I AM NOT GOING TO SIT HERE AND STOP THIS HEARING TO READ THE REPORT. SO I WILL NOTE YOUR OBJECTION, AND LIKEWISE, COUNSEL, IF IT'S NOT COVERED BY THE REPORT, I AM NOT GOING TO CONSIDER IT IN YOUR FINDINGS OF FACT, CONCLUSIONS OF LAW. SO LET'S GO, AND WE WILL ADDRESS THIS HOUSEKEEPING-WISE AT THE CONCLUSION OF THE HEARING. BUT YOU ARE WELCOME TO RAISE YOUR OBJECTION, BUT I AM NOT GOING TO TAKE THE TIME TO READ HIS EXPERT REPORT AND HIS DEPOSITION TO TRY TO WORK THROUGH 
THIS ISSUE. 
Q (BY MR. IANCU) DR. STORER, BACK TO ECHOSTAR'S SLIDE 12 FROM THE OPENING THIS MORNING, DO YOU HAVE AN UNDERSTANDING OF WHY ONE PITCHER LABELED BUFFER IS SHOWING THERE? 
A SO, YES, THIS IS -- THIS IS ONE BUFFER, RIGHT. AND IT SHOWS, IN THIS PARTICULAR GRAPHIC WAS TALKING ABOUT FILLING A BUFFER AND EMPTYING A BUFFER. AND THAT'S EXACTLY WHAT WE HAVE 
BEEN TALKING ABOUT, THE NOTION OF FILLING AND EMPTYING BUFFERS. THERE ARE TEN OF THEM IN THE CURRENT, AS THE PRODUCT AS IT IS NOW. THERE WERE TEN OF THEM BEFORE. AND YOU NEVER HAD THIS IDEA THAT WHEN YOU -- AFTER YOU FILL A BUFFER YOU ALWAYS GO ON AND START FILLING THE NEXT BUFFER. YOU DON'T GO AHEAD AND KEEP FILLING IT ONCE IT'S FULL. YOU MOVE ON TO THE NEXT BUFFER. SO THIS IS, YOU KNOW, THIS IS ONE ASPECT THAT WE ACTUALLY WENT THROUGH IN QUITE A BIT OF DETAIL HERE WITH THE 
EASEL AND ALSO THE GRAPHIC THAT'S PART OF THIS BIGGER SYSTEM OF FLOW CONTROL. SO, NO, I DON'T AGREE WITH THIS CHARACTERIZATION AT ALL.


----------



## Curtis52 (Oct 14, 2003)

p 106 Iancu (TiVo) - Dr. Storer (TiVo)

Q ALL RIGHT. LET'S GO BACK TO DR. STORER'S SLIDES, AND WE CAN BEGIN AT SLIDE 71. SO LET'S LOOK AT THE AUTOMATIC FLOW CONTROL LIMITATION ITSELF, 31(F) AND SEE HOW ALL THIS RELATES TO THE ACTUAL CLAIM LIMITATION. FIRST, WHAT WAS THE COURT'S CONSTRUCTION OF THE TERM AUTOMATIC FLOW CONTROL? 
A SO IF YOU GO ON TO THE NEXT SLIDE, HOPEFULLY WE'LL HAVE A BLOWUP OF THAT WHERE AUTOMATIC FLOW CONTROL WAS CONSTRUED AS SELF-REGULATED. 
Q NOW, DO YOU UNDERSTAND THAT ECHOSTAR SAYS IT MADE A CHANGE TO THE BUFFERING SCHEME YOU DESCRIBED BEFORE LUNCH THAT AFFECTS THIS LIMITATION? 
A I DO UNDERSTAND THAT, YES. 
Q SO BEFORE LUNCH YOU EXPLAINED HOW THE PRODUCTS WORK. HOW DID THE BROADCOM PRODUCTS WORK AT TRIAL? 
A SO IF WE CAN GO ON TO THE NEXT SLIDE. 
Q YOU ARE ON SLIDE 73 NOW. 
A SLIDE 73. 
Q THAT'S THE SLIDE NUMBER. IT'S -- IT'S -- 
A YEAH, BUT I DON'T ACTUALLY SEE THE NUMBER ON HERE, BUT I THINK THE ONE BEFORE WAS 74 SO IT WILL PROBABLY WORK OUT. 
Q SEVENTY-TWO. 
A OKAY. I'LL LET YOU HANDLE THE SLIDE NUMBERS THEN, AND LET ME MOVE ON TO THE FIGURE. SO HERE WE HAVE THE SAME FIGURE. BEFORE WE SEE THE SAME SET OF TEN BUFFERS UP THERE. AGAIN, IN BOTH THE PRODUCTS AT TRIAL AND THE PRODUCTS NOW ABOUT 140,000 BYTES EACH, AND IDENTICAL SIZE BUFFERS. AND ALL 
OF THE STUFF WE TALKED ABOUT BEFORE, THE CIRCLING AROUND, THE FILLING, THE READ POINTER, THE WRITE POINTER, IN THOSE TEN, NO DIFFERENCE. THE ONLY DIFFERENCE AT TRIAL WAS THERE WAS AN ADDITIONAL 
COPY BUFFER WHICH ALWAYS HELD AN IDENTICAL COPY OF ONE OF THE TEN. AND EVERY TIME YOU WENT TO WRITE TO THE HARD DRIVE, YOU WOULD WRITE TO THE COPY, THEN IMMEDIATELY WRITE TO THE HARD 
DRIVE. AND THIS WAS SORT OF A PROGRAMMING CONVENIENCE. IT ALLOWED PROGRAMMERS TO DIVORCE THEMSELVES FROM THE DRIVER CODE, IF YOU WILL, SO YOU COULD HAVE A NICE CLEAN INTERFACE AND HAVE THIS COPY AS A CONVENIENCE. SO THE COPY BUFFER, SAME SIZE AS THE TEN, AS ANY ONE OF THE TEN. THERE'S TEN OF SIZE 140K IN THIS CIRCULAR ARRANGEMENT. IN ADDITION, THERE IS THIS EXTRA 140K COPY BUFFER. AND WHENEVER YOU WANT TO WRITE TO THE HARD DRIVE, THE COPY BUFFER WILL MAKE AN EXACT DUPLICATE OF THE APPROPRIATE 
ONE OF THE TEN, AND THAT GOES TO THE HARD DRIVE. SO THAT'S -- THAT'S -- THAT'S IT. THAT'S THE ONE, IF YOU WANT TO CALL IT A DIFFERENCE, BETWEEN THE SOFTWARE AS IT IS NOW AND THE SOFTWARE AS IT WAS AT TRIAL. 
Q DOES THIS COPY BUFFER HAVE ANYTHING TO DO WITH THE CLAIMS? 
A SO, NO -- RIGHT, I MEAN, THE CLAIMS DON'T EVEN TALK ABOUT A NUMBER, YOU KNOW, A SPECIFIC NUMBER OF BUFFERS OR SOME REALLY LOW-LEVEL PROGRAMMING DETAIL THAT YOU ARE FOR A CONVENIENCE GOING TO MAKE A DUPLICATE AND THEN WRITE IT, INSTEAD OF JUST WRITING IT, SO, NO. 
Q YOU SAID THAT IT PROVIDED A PROGRAMMING CONVENIENCE, AN INTERFACE FOR ENGINEERS. IT'S AN INTERFACE BETWEEN WHAT AND WHAT, WHAT COMPANIES, FOR EXAMPLE? 
A WELL, SO WHEN PEOPLE TALK ABOUT DRIVER CODE, THIS IS CODE THAT'S GENERALLY FROM BROADCOM AND IT TENDS TO BE SORT OF VERY SPECIFIC TO THE ACTUAL HARDWARE AT HAND. YOU WOULD HAVE DIFFERENT DRIVER CODE FOR DIFFERENT CHIPS, FOR EXAMPLE. AND THEN YOU ALSO TALK ABOUT USER CODE, CODE THAT WOULD BE MAINLY WRITTEN BY ENGINEERS AT ECHOSTAR. AND YOU OF COURSE CAN, YOU KNOW, PROGRAMMERS CAN INTERMIX AND MAKE CHANGES IN BOTH, BUT IT'S CONVENIENT TO SORT OF LET ONE SET OF PROGRAMMERS WORK OVER HERE, ONE SET WORK OVER HERE, AND THE COPY BUFFER WAS A CONVENIENCE TO AID THAT LARGE PROGRAMMING PROJECT. 
Q HOW DID TIVO EXPLAIN THIS CONCEPT OF AUTOMATIC FLOW CONTROL AT TRIAL? DO YOU HAVE ANY EXAMPLES? 
A SO AGAIN, THIS IS MERELY EXEMPLARY. IT'S A FAIRLY SHORT QUOTE. LET ME JUST READ IT. SO IT SAYS, THIS IS MR. GIBSON SPEAKING AT TRIAL: THE IDEA IS THAT WHILE YOU ARE READING FROM A BUFFER YOU ARE NOT TRYING TO WRITE ON TOP OF THE DATA IN THE BUFFER. SO YOU HAVE TO MAKE SURE THAT WHEN YOU ARE WRITING, YOU ARE NOT WRITING ON TOP OF THE DATA YOU NEED. 
Q HOW DOES THIS COMPARE TO WHAT YOU DESCRIBED AT THE EASEL? 
A SO IT'S SORT OF EXACTLY WHAT WE HAVE BEEN TALKING ABOUT. YOU -- YOU NOW HAVE COMPLETED FILLING ONE BUFFER AND NOW YOU MOVE OVER AND YOU GO TO THE NEXT EMPTY SPACE. YOU DON'T TRY TO BACK UP AND WRITE ON TOP OF SOMETHING YOU JUST WROTE. SO EXACTLY WHAT WE'VE BEEN TALKING ABOUT FOR THIS ASPECT OF THE, 
AND THIS IMPORTANT ASPECT OF THE WHOLE FLOW CONTROL MECHANISM. 
Q DID TIVO REFERENCE THIS COPY BUFFER AT TRIAL? 
A CERTAINLY. 
Q SO LET'S TAKE A LOOK AT SLIDE 75 WHICH IS -- CONTAINS A COPY OF DR. GIBSON'S DIRECT SLIDE 121 FROM TRIAL. CAN YOU PLEASE EXPLAIN WHAT'S SHOWN THERE? 
A SO, IT'S SHOWING WHAT WE WERE JUST TALKING ABOUT. IT'S SHOWING TWO ENLARGEMENTS FROM A PIECE OF CODE. ONE WHICH IS LABELED HERE THE SOURCE OBJECT FILLING A BUFFER, AND ONE WHICH IS LABELED WRITE TO THE HARD DRIVE. SO YOU SEE TWO PIECES OF CODE IN THESE ENLARGED BOXES. 
Q WHAT IS THIS MEMCPY, M-E-M-C-P-Y, OPERATION SHOWING ON THE SLIDE? 
A SURE. SO M-E-M-C-P-Y IS SHORT FOR MEMORY COPY. 
Q WAS THIS AN EXAMPLE OF AUTOMATIC FLOW CONTROL AT TRIAL? 
A THAT'S RIGHT. THIS WAS SHOWN AS AN EXAMPLE AT TRIAL. 
Q AND IN PARTICULAR, WHAT BUFFER WAS BEING FILLED IN THIS EXAMPLE? 
A SO THIS IS, THIS MEMCPY IS ACTUALLY TALKING ABOUT THAT COPY BUFFER WE JUST WERE DISCUSSING. 
Q DOES IT MAKE A DIFFERENCE THAT THE EXAMPLE GIVEN AT TRIAL WAS ABOUT FILLING THE COPY BUFFER AS OPPOSED TO ONE OF THE TEN BUFFERS YOU SHOWED AT THE EASEL? 
A NOT AT ALL. THIS IS SHOWING VERY CLEARLY THAT PROCESS OF FILLING ONE OF THE BUFFERS. IT'S EXEMPLARY, OF COURSE. AND OF COURSE REMEMBER THIS COPY BUFFER IS ALWAYS AN IDENTICAL DUPLICATE OF ONE OF THOSE TEN. 
Q DID YOU FIND THE SAME FORM OF AUTOMATIC FLOW CONTROL IN THE CURRENT CODE? 
A YES. 
Q ANY EXAMPLES SIMILAR TO THIS IN THE CURRENT CODE? 
A YES. AND SO IF WE GO ON TO THE NEXT SLIDE, AGAIN HERE A LITTLE HARDER TO READ, BUT IT'S BLOWN UP AGAIN. AGAIN, TWO PIECES OF ANALOGOUS CODE THAT HAVE BEEN ENLARGED HERE FOR YOU. THE FIRST ONE AGAIN LABELED SOURCE OBJECT FILLS A BUFFER, AND THE SECOND ONE BELOW WHICH IS LABELED WRITE TO HARD DISK. 
Q AND YOU ARE NOW READING FROM, LOOKING AT SLIDE 76 WHICH HAS EXCERPTS FROM TRIAL EXHIBIT 3164, RIGHT? 
A YES, THIS ONE HAS THE NUMBER ON IT, 76. 
Q HOW DOES THIS COMPARE TO WHAT WAS SHOWN AT TRIAL AS EXAMPLES OF FLOW CONTROL? 
A WELL, YOU KNOW, VERY ANALOGOUS. IF YOU GO TO THE NEXT SLIDE, JUST PUT THE TWO SIDE BY SIDE. AND, YOU KNOW, IT GETS EXTREMELY ANALOGOUS. YOU SEE REALLY A DIRECT CORRESPONDENCE. 
Q SO, DR. STORER, DID ECHOSTAR REDUCE THE NUMBER OF BUFFERS TO ONE? 
A NO. 
Q DID THE ELIMINATION OF THE COPY BUFFER MAKE THE CURRENT BROADCOM PRODUCTS MORE THAN COLORABLY DIFFERENT FROM THE PRODUCTS AT TRIAL? 
A NO, NOT AT ALL. 
Q LET'S GO TO THE NEXT SLIDE AND MAYBE YOU CAN EXPLAIN WHY NOT. 
A SO THIS IS, YOU KNOW, IT'S ALWAYS NICE TO SORT OF FINISH WITH A BIG PICTURE. YOU REMEMBER THE BIG PICTURE IS WE ARE TRYING TO GET DATA FROM THE SATELLITE TO THE HARD DRIVE. AND IN BOTH THE OLD AND THE NEW, OR BOTH AT TRIAL AND CURRENTLY, THERE IS A CIRCULAR ARRANGEMENT OF TEN BUFFERS OF ABOUT THE SAME, ALL EQUAL SIZE AND IN BOTH CASES OF ABOUT THE SAME SIZE OF 140K. AND ALL THAT'S DIFFERENT IS THERE'S THIS -- ALL THE ONLY DIFFERENCE, IF YOU WANT TO CALL IT ANY DIFFERENCE AT ALL, WAS, OKAY, THERE IS THIS NOTION THAT THERE WAS A LITTLE COPY BUFFER THAT ALWAYS WAS AN IDENTICAL COPY OF ONE OF THE TEN. AND THE ONLY DIFFERENCE, YOU KNOW, BETWEEN THEN AND NOW AND WHAT WE ARE TALKING ABOUT IS THAT COPY BUFFER HAS BEEN ELIMINATED. WE STILL HAVE THE CYCLE OF TEN. WE STILL HAVE THE WHOLE ARRANGEMENT THAT WE HAVE BEEN TALKING ABOUT. 
Q SO GO TO THE NEXT SLIDE, SLIDE 79. DID THIS ADDITIONAL COPY BUFFER MAKE ANY DIFFERENCE, COLORABLE OR OTHERWISE, TO FLOW CONTROL OR THE OPERATION OF THE BROADCOM PRODUCTS? 
A NOT AT ALL. 
Q BY THE WAY, THIS -- THIS HAS TO DO ONLY WITH RESPECT TO THE BROADCOM PRODUCTS, RIGHT, AND NOT THE 50X? 
A OF COURSE, YES. WE'VE DISCUSSED THIS BEFORE. INDEXING 
WAS FOR BOTH, BUT THIS IS ONLY A BROADCOM CHIP ISSUE.


----------



## jacmyoung (Sep 9, 2006)

The above quote is basically TiVo trying to pin a very generic hard drive buffering operation and try to equate it to the so called "automatic flow control."

First off, a generic hard drive operation cannot be a part of the "core invention", if so it would never have been patented. As the E* lawyer pointed out, such hard drive generic buffer was never used in the previous trial to prove "automatic flow control", nor in the DR.'s latest depositions. But the judge did not have time to read the depositions to confirm that objection so he said let's move on, I would simply note your objection, and if later when I had time to read the depositions you were right then I would strike out the current TiVo's testimony.

Now it is obvious even TiVo recognizes that the "multiple buffers" that did the "automatic flow control" in the old design are now gone, the only thing they can do is to point out some other kind of "circle of buffer" that is the generic part of a hard drive write and read functions.

Just the same way TiVo did to the "physical data source", now they recognizes that the "MPEG Processor" no longer acts as the "physical data source" since it no longer analyzes the data and builds that index table, TiVo is trying to pin the PID filter as that "physical data source."

Trying to say a generaic PID filter, and a generic hard drive operation, as the cores of the DVR invention, and becasue the DVRs still use them, they still infringe.

Of course the DVR still use them, all DVRs must use them, as long as it decodes MPEG streams, as long as it still record programming to the hard drive.

But how convincing can TiVo be to say that is my invention? Did they forget many DVRs before their invention did the same? And there are many prior DVR inventions did the same? Because no DVRs could have ever not having these two generic operations, i.e., a PID filter and a hard drive.


----------



## Greg Bimson (May 5, 2003)

jacmyoung said:


> The above quote is basically TiVo trying to pin a very generic hard drive buffering operation and try to equate it to the so called "automatic flow control."


That isn't what I am reading...


> So this is, you know, it's always nice to sort of finish with a big picture. You remember the big picture is we are trying to get data from the satellite to the hard drive. And in both the old and the new, or both at trial and currently, there is a circular arrangement of ten buffers of about the same, all equal size and in both cases of about the same size of 140k. And all that's different is there's this -- all the only difference, if you want to call it any difference at all, was, okay, there is this notion that there was a little copy buffer that always was an identical copy of one of the ten. And the only difference, you know, between then and now and what we are talking about is that copy buffer has been eliminated. We still have the cycle of ten. We still have the whole arrangement that we have been talking about.


That which was found to be "automatically flow controlled" during the April 2006 trial has barely been touched. Dr. Storer still believes the "automatically flow controlled" step is being met by exactly the same process that was met during the trial.


----------



## Greg Bimson (May 5, 2003)

jacmyoung said:


> But how convincing can TiVo be to say that is my invention? Did they forget many DVRs before their invention did the same? And there are many prior DVR inventions did the same? Because no DVRs could have ever not having these two generic operations, i.e., a PID filter and a hard drive.


How many companies has TiVo sued had a trial for DVR patent infringement? Just because there may be other DVR's available does not mean they do NOT infringe. Let's not obfuscate the issue by comparing to another companies DVR, as no one else has been sued (yet).


----------



## nobody99 (May 20, 2008)

Wow, this is interesting. I happened to be reading through the claims construction document and found a footnote that says this



claims construction of 8/18/05 said:


> In support of its proffered construction, EchoStar argues that the capitalization of terms ...indicates that the terms were specially defined...and therefore must be given a special meaning instead of their plain meaning.


In the patent, they were not specifically defined.

But, hmm, I seem to recall another document where a term was capitalized _and _defined



permanent injuntion said:


> Court thereby enters judgment for Plaintiff against Defendants for willful infringement of U.S. Patent No. 6,233,389 ("'389 patent"),...by Defendants' following DVR receivers _(collectively the "Infringing Products")_: DP-501; DP-508; DP-510; DP-522; DP-625; DP-721; DP-921; and the DP-942.
> 
> 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.


So what does "Infringing Product" mean again? I think one particular forum member here actually said that "Infringing Products" must be read as its "plain meaning." I would dare say that Echostar knows exactly what "Infringing Products" means (and has known all along).

Oops.


----------



## jacmyoung (Sep 9, 2006)

I can't wait for Curtis52 to start to quote E* lawyers' Q/A sessions

While we wait, just to explain how usually "colorable difference" argument is successfully made.

The best way to prove mere colorable difference is to demonstrate that the difference has nothing to do with the invention itself.

For example, if E* mailed new labels to all the DVR users, asked them to cover the old DVR model labels with the new ones, which said: DP501NEW, DP510NEW, DP625NEW...then it is easy to prove the difference is only colorable, because the difference is not related to the invention itself.

In that regard, TiVo does try, they say "index" is not mentioned in the claims 31, 61, therefore the removal of the "index" is not related to the claims. But the problem is, when the E* lawyer asked was there one invention or two? For example one is related to the "index", the other is not, TiVo's witness did not want to answer that quesiton, for good reason, because the "index" is not only related to the invention, it is as TiVo called it, the "core of the invention."

Then of course TiVo contradicted itself, when they tried to prove infringement, they pointed out one thing, that the E* engineer in one of his email mentioned the new design still had an "index". Well good find, except TiVo may not use it to prove infringement, because TiVo just said a minute ago "index" was not relevant to the claims. Or look it at another way, TiVo now does believe the "index" is relevant to the invention and infringement.

If the patentee cannot use the above first argument to prove mere colorable difference, then they must try the next one, that is, even though the infringer has removed some invention-related evidence, the infringer nevertheless created some new evidence that are basically the same as the old ones to replace them, therefore the difference is only colorable.

The problem is TiVo could not identify any *new* evidence that were to *replace* the old ones. E*'s new design did not create any new elements to replace those core elements they just removed.

As a result, the only things TiVo could do were to find some existing elements, the elements that was never used to prove infringement, and try to say but those other ones are the same anyway.

Such strategy often fails because if those "other ones" were there all this time and were in fact proper evidence, they should have been used during the trial too, the fact they were not used back then speaks the *doubt* as whether they are proper evidence to prove infringement.

As I will say it again, it is that doubt that will allow the infringer to avoid a contempt. It is not that TiVo may not use those elements that were there all that time, TiVo can try to use them, but TiVo must do so in a new trial, because the court had never properly heard such evidence, and the defendants did not have their due process right exercised to defend themselves against such accusations that should have been there in the first place.

Part of such due process right is the right to a jury trial, to hear such accusations and defend against such accusations in front of their own fellow citizens, not just in front of a judge.


----------



## nobody99 (May 20, 2008)

jacmyoung said:


> I can't wait for Curtis52 to start to quote E* lawyers' Q/A sessions
> 
> While we wait, just to explain how usually "colorable difference" argument is successfully made.


One very instructive piece from the opening argument with regard to colorable difference: the only thing that matters is was the particular claim in question changed. Nothing else matters. It doesn't matter if a different part (unrelated to the claim) was changed:



transcript said:


> THESE ARE THE SUBJECTS THAT I WILL BRIEFLY COVER: CHANGE MUST BE ON A CLAIM ELEMENT. THAT MAKES SENSE. AND HERE IS A BASIC AUTHORITY, ADDITIVE CONTROLS. WHEN THERE ARE NO SUBSTANTIAL OPEN QUESTIONS OF -- THERE ARE NO SUBSTANTIAL OPEN QUESTIONS OF INFRINGEMENT IF THERE ARE NO QUESTIONS ON THE ELEMENTS OF THE PERTINENT CLAIM.
> 
> AND THEN WE ARE GOING TO LOOK AT ECHOSTAR'S ALLEGED CHANGES AND HOW THEY ARE NOT ON THE CLAIM ELEMENTS. THE FIRST ONE IS PARSES. CLAIM 31 AND CLAIM 61 ARE BASICALLY THE SAME IN THIS. THERE IS THE CLAIM TERM PARSES. THIS IS THE COURT'S CLAIM CONSTRUCTION. PARSE MEANS ANALYZES. AND THIS IS DR. RHYNE, ECHOSTAR'S EXPERT. HE IS BASICALLY SAYING THAT THOSE CLAIMS AT ISSUE, THE TWO CLAIMS AT ISSUE, REQUIRE AN INDEX OR INDEXING, A TERM NOT IN THE CLAIM, NOT IN THE COURT'S CLAIM CONSTRUCTION, NOT APPEALED.





jacmyoung said:


> In that regard, TiVo does try, they say "index" is not mentioned in the claims
> 31, 61, therefore the removal of the "index" is not related to the claims. But the problem is, when the E* lawyer asked was there one invention or two? For example one is related to the "index", the other is not, TiVo's witness did not want to answer that quesiton, for good reason, because the "index" is not only related to the invention, it is as TiVo called it, the "core of the invention."


Oh, I think Judge Folsom expressed some interest:



> THE COURT: WELL, WAS THIS INDEXING ISSUE, WAS THAT A THEORY OF CLAIM CONSTRUCTION PUT FORTH BY ECHOSTAR IN THE INITIAL CONSTRUCTION, OR HAS THIS ARISEN AT THIS STAGE OF THE PROCEEDINGS?
> 
> MR. CHU: IT WAS NEVER PUT FORWARD WITH RESPECT TO THE SOFTWARE CLAIMS.
> 
> ...


----------



## Greg Bimson (May 5, 2003)

jacmyoung said:


> In that regard, TiVo does try, they say "index" is not mentioned in the claims 31, 61, therefore the removal of the "index" is not related to the claims. But the problem is, when the E* lawyer asked was there one invention or two? For example one is related to the "index", the other is not, TiVo's witness did not want to answer that quesiton, for good reason, because the "index" is not only related to the invention, it is as TiVo called it, the "core of the invention."


The "index" is only central to the Hardware Claims, not the Software Claims. So arguing about the index is moot, and even TiVo said that.

But in case DISH/SATS still wants to argue, they still have an index. It may not be exactly the same index as before, and if an index has to be addressed in claims 31 and 61, DISH/SATS still has one.


----------



## jacmyoung (Sep 9, 2006)

nobody99 said:


> ...Oh, I think Judge Folsom expressed some interest:


First off, keep that in mind we are only reading what TiVo folks want us to hear so far.

Now the reason the judge asked that question is, if E* did not use that defense before, then it is a new defense, and will be treated as that, a new defense. The question is whether such new defense establishes the doubt or not, that is what the judge will have to decide.

If the defense had already been raised before and rebutted by the court, then no, raising it again by E* is not helpful.


----------



## nobody99 (May 20, 2008)

jacmyoung said:


> First off, keep that in mind we are only reading what TiVo folks want us to hear so far.


Just so I'm clear: I just quoted directly from the transcript where the judge _specifically _asks if indexing is covered by the claim, and _specifically _asks if its in the software claim. This being directly related to the seemingly never-ending claim that indexing is the whole core of the invention.

And that simple quote is now being discounted as only "what TiVo folks want us to hear?"

Wow.

Oh, by the way, there was also this interesting tidbit that Echostar claimed was untrue.



> 2+2 = 4


----------



## jacmyoung (Sep 9, 2006)

nobody99 said:


> Just so I'm clear: I just quoted directly from the transcript where the judge _specifically _asks if indexing is covered by the claim, and _specifically _asks if its in the software claim. This being directly related to the seemingly never-ending claim that indexing is the whole core of the invention.
> 
> And that simple quote is now being discounted as only "what TiVo folks want us to hear?"
> 
> ...


No he asked was such index argument "put forward with respect to the software claims?" Meaning had anyone ever raised such argument before.

It is true if such argument had never been used before, the judge might discount it, but he cannot ignore it, he must still look at it.

The same can be said about the arguments TiVo just "put forward", that was never put forward before, such as the hard drive buffer operations can be considered as part of the core invention called "automatic flow control."

And of course that infamous "PID filter", which was never "put forward" as the "physical data source." Even though TiVo did manage to get E*'s witness to admit that the PID did parse therefore the parse met the "parse" definition in the claims, still that PID filter was never "put forward" as that "physical data source", instead the "MPEG processor" was identified as that "physical data source."

Now TiVo has "put forward" two new arguments, one is that the PID is now the "physical data source" and the other, a "generic hard drive read and write buffer circle" is that core invention called "automatic flow control."

If E* may not "put forward" any new argument, then TiVo may not "put forward" any of theirs.

As for the comment that so far we only managed to hear what TiVo folks want us to hear, I will take that back as soon as the TiVo folks start to quote E* lawyer's arguments, Q/A sessions, and the judge's responses to E* lawyers


----------



## Greg Bimson (May 5, 2003)

jacmyoung said:


> And of course that infamous "PID filter", which was never "put forward" as the "physical data source." Even though TiVo did manage to get E*'s witness to admit that the PID did parse therefore the parse met the "parse" definition in the claims, still that PID filter was never "put forward" as that "physical data source", instead the "MPEG processor" was identified as that "physical data source."


The PID filter was *always* put forward as part of the physical data source. It has been posted here time and time again.


jacmyoung said:


> Now TiVo has "put forward" two new arguments, one is that the PID is now the "physical data source" and the other, a "generic hard drive read and write buffer circle" is that core invention called "automatic flow control."


Neither of these are new arguments. The PID filter has always been considered the part of the physical data source which parses data; the "automatic flow control" has always been construed as the read-write buffer, for the ability of the software to self-regulate reading and writing.


----------



## Curtis52 (Oct 14, 2003)

p 74 Iancu (TiVo) Storer (TiVo)

Q WERE YOU IN THE COURTROOM WHEN DR. GIBSON TESTIFIED ON THE PHYSICAL DATA SOURCE LIMITATION? 
A YES, I WAS. 
Q AND WHAT DID HE HAVE TO SAY ABOUT THAT? 
A SO IF WE GO TO THE NEXT SLIDE, SO AGAIN NOW WE SEE THE CLAIM ON TOP, THIS PHYSICAL DATA SOURCE, AND HE IS NOW ASKED ABOUT THE PHYSICAL DATA SOURCE, AND SAID: AND WHAT SPECIFIC CIRCUITRY WITHIN THAT BROADCOM CHIP? AND HE POINTS, OKAY, HE SAYS: WHERE THERE'S PID FILTERING. 
Q AGAIN, THIS MORNING MS. KREVANS SHOWED A SLIDE THAT SHE INDICATED TO THE COURT WAS SHOWN BY DR. GIBSON DURING THIS PORTION OF THE TESTIMONY. DO YOU RECALL THAT? 
A I DO. 
Q DO YOU HAVE A RECOLLECTION WHETHER IN FACT SLIDE 92 FROM THE GIBSON TESTIMONY, FROM THE GIBSON SLIDES AT TRIAL WAS ACTUALLY SHOWN IN COURT TO THE JURY? 
A SO MY RECOLLECTION IS IT WAS NOT VIEWED BY THE COURT OR THE JURY. WE SEE THAT FROM THE TRANSCRIPT TESTIMONY AS WELL, I BELIEVE. BOTH THE ST -- ST REFERS TO THE 50X SERIES, THAT CHIP THAT'S IN THERE -- OR THE BROADCOM CHIPS REFER TO THE 522/625 SERIES IN THIS CASE. 
Q AND YOU -- YOU ARE ON SLIDE 40, AND FOR THE RECORD, THAT SHOWS A PORTION OF THE TRANSCRIPT FROM APRIL 7, 2006, PAGE 110, LINE 10-20. 
A THAT'S CORRECT. 
Q WERE YOU -- APOLOGIES. WHAT DID DR. POLISH, ANOTHER ONE OF ECHOSTAR'S EXPERTS, HAVE TO SAY ABOUT PID FILTERING AND PARSING AT TRIAL? 
A SIMILAR THING, HE AGREES AS WELL. 
Q OKAY. AND WHAT DID DR. POLISH SAY ABOUT PID FILTERING AND PARSING IN HIS DEPOSITION? BEFORE WE GO THERE, HOLD ON FOR A SECOND. WITH RESPECT TO TRIAL AND DR. POLISH, WE ARE ON SLIDE 41. THE EXCERPT WAS AT PAGE 37, LINES 24 THROUGH PAGE 38, LINE 8, APRIL 10, 2006 TRANSCRIPT. 
A THAT'S CORRECT. 
Q NOW, GOING TO SLIDE 42, WHAT DID DR. POLISH SAY AT DEPOSITION ABOUT PID FILTERING AND PARSING WITH RESPECT TO CLAIMS 31 AND 61 AT ISSUE HERE TODAY? 
A SO AGAIN HE IS CONSISTENT WITH THIS NOTION THAT PID FILTERING IS PARSING. AND AT DEPOSITION HE SPECIFICALLY SAYS IN THE CONTEXT OF CLAIMS 31 AND 61, AND YOU SEE THAT HERE. THIS IS JUST A PORTION OF QUESTION AND ANSWER FROM THAT DEPOSITION. 
Q AND DR. POLISH WAS ECHOSTAR'S EXPERT, CORRECT? 
A THAT'S RIGHT. HE WAS ONE OF THE THREE EXPERTS FOR ECHOSTAR AT THE TRIAL. 
Q AND YOU ARE READING FROM THE POLISH DEPOSITION, VOLUME 2 AT PAGE 310, LINES 5-9. 
A THAT'S CORRECT. 
Q WERE YOU IN THE COURTROOM WHEN DR. GIBSON TESTIFIED ON THE PHYSICAL DATA SOURCE LIMITATION? 
A YES, I WAS. 
Q AND WHAT DID HE HAVE TO SAY ABOUT THAT? 
A SO IF WE GO TO THE NEXT SLIDE, SO AGAIN NOW WE SEE THE CLAIM ON TOP, THIS PHYSICAL DATA SOURCE, AND HE IS NOW ASKED ABOUT THE PHYSICAL DATA SOURCE, AND SAID: AND WHAT SPECIFIC CIRCUITRY WITHIN THAT BROADCOM CHIP? AND HE POINTS, OKAY, HE SAYS: WHERE THERE'S PID FILTERING. 
Q AGAIN, THIS MORNING MS. KREVANS SHOWED A SLIDE THAT SHE INDICATED TO THE COURT WAS SHOWN BY DR. GIBSON DURING THIS PORTION OF THE TESTIMONY. DO YOU RECALL THAT? 
A I DO. 
Q DO YOU HAVE A RECOLLECTION WHETHER IN FACT SLIDE 92 FROM THE GIBSON TESTIMONY, FROM THE GIBSON SLIDES AT TRIAL WAS ACTUALLY SHOWN IN COURT TO THE JURY? 
A SO MY RECOLLECTION IS IT WAS NOT VIEWED BY THE COURT OR THE JURY. WE SEE THAT FROM THE TRANSCRIPT TESTIMONY AS WELL, I BELIEVE. 
Q SO LET'S TAKE A QUICK LOOK AT THAT TRANSCRIPT, MARCH 31, 2006 A.M. PORTION, AND LET'S GO TO PAGE 31. OKAY. AND LET'S SCOOT DOWN A LITTLE BIT. LET'S MAKE LINE 18 THE TOP OF THE PAGE. OKAY. AT LINE 18, PAGE 31 YOU CAN -- THE QUESTION WAS: ALL RIGHT. DO THE ECHOSTAR PRODUCTS HAVE THIS PHYSICAL DATA 
SOURCE? ANSWER BY DR. GIBSON: YES, THEY DO. SHOWN? YEAH. IT'S SHOWN ON THE NEXT SLIDE 92. AND COMMENT FROM ME, 
MR. IANCU: LET'S TAKE DOWN -- LET'S TAKE THAT SLIDE DOWN FOR A SECOND. 
MR. IANCU: KEEP GOING DOWN IN THE TRANSCRIPT, PLEASE. LET'S GO BACK TO PAGE 31. SORRY, JUST I WANTED TO GO DOWN A LITTLE BIT ALL THE WAY TO THE BOTTOM. OKAY. APOLOGIES. 
Q (BY MR. IANCU) QUESTION AT LINE 24 OF PAGE 31: OKAY. THIS IS ANOTHER REPRESENTATION OF THE BROADCOM CHIP. WE ARE GOING TO BE ON THE SLIDE JUST FOR 30 SECONDS, I BELIEVE. SOME COLLOQUY ABOUT DR. GIBSON'S ALLERGIES. AND THEN QUESTION AT LINE 6: IN ANY EVENT, THOUGH, WITHOUT SHOWING THE 
SLIDE 92 ON THE SCREEN, CAN YOU PLEASE DESCRIBE WHAT THE PHYSICAL DATA SOURCE REQUIRES? AND THEN THERE IS AN ANSWER EXPLAINING THAT. DOES THAT REFRESH YOUR RECOLLECTION, DR. STORER, AS TO WHETHER THE SLIDE WAS ACTUALLY SHOWN? 
A SO THIS IS WHAT I WAS REFERRING TO. I THINK IT'S KIND OF JUST WHAT WE HAD TODAY, THAT BASICALLY DO YOU WANT TO HAVE EVERYONE LEAVE THE ROOM FOR THIS ONE SLIDE, AND I THINK THE CHOICE WAS, WELL, LET'S JUST TAKE IT DOWN AND SEE IF WE CAN DO THE TESTIMONY WITHOUT IT AND NOT HAVE TO BOTHER EVERYONE 
COMING AND GOING. 
Q AND IF WE GO BACK TO OUR SLIDES THAT WE SHOWED, SLIDE 43, WITHOUT THE SLIDE SHOWN, WHAT WERE DR. GIBSON'S WORDS? 
A SO -- 
Q LET ME ASK A DIFFERENT QUESTION. 
A OKAY. 
Q WITHOUT THE SLIDE, DID DR. GIBSON ACTUALLY IDENTIFY PID FILTERING WITH RESPECT TO THE PHYSICAL DATA SOURCE? 
A SO THAT'S CORRECT, YES. 
Q OKAY. GOING TO THE NEXT SLIDE, NOW WITHIN THAT TESTIMONY DR. GIBSON ALSO MENTIONS A START CODE DETECTOR AMONG OTHER THINGS, SUCH AS DMA AND DIRECT MEMORY ACCESS AND SO FORTH. 
WHAT DOES THAT TESTIMONY TELL YOU? 
A MERELY THAT, HE DID MENTION SOME OTHER ITEMS AS WELL THAT RELATED TO HIS TESTIMONY AS A WHOLE. 
Q NOW, WHAT DID DR. GIBSON SAY ABOUT PID FILTERING IN HIS EXPERT REPORTS? 
A SO AGAIN I THINK WE -- YOU CAN GO TO THE NEXT SLIDE AND -- 
MR. IANCU: OKAY. TAKE THAT DOWN FOR A SECOND. IS THAT A PROBLEM? THAT'S AN ST CHIP. 
MS. KREVANS: THAT ONE'S OKAY. 
MR. IANCU: THAT ONE'S OKAY. OKAY. WE CAN PUT IT BACK UP. 
Q (BY MR. IANCU) OKAY. WITH RESPECT TO THE 50X BOX, WHAT DOES HE SAY? 
A SO HERE IS A FIGURE HE PRESENTED, AND IT GETS A LITTLE HARD TO READ, BUT DO I HAVE A -- DO WE HAVE AN ENLARGEMENT AT ALL? OR YOU DON'T HAVE AN ENLARGEMENT, IT'S OKAY. SO IT'S A LITTLE HARD TO READ, BUT AGAIN YOU SEE PID FILTER. A LITTLE HARD TO READ THE TEXT, AND SPECIFICALLY HIGHLIGHTS THAT. 
Q WE JUST ENLARGED IT. 
A OKAY. 
Q AND SO HE IDENTIFIES IN HIS EXPERT REPORT THE PID FILTER AS PART OF THE PHYSICAL DATA SOURCE, CORRECT? 
A THAT'S CORRECT. 
Q WHAT DID DR. JOHNSON, ECHOSTAR'S EXPERT ON SOFTWARE, HAVE TO SAY ABOUT PID FILTERING AND THE PHYSICAL DATA SOURCE AT TRIAL? 
A SO AGAIN CONSISTENT WITH ALL THE OTHER EXPERTS, SHE IS ASKED ABOUT THE PHYSICAL DATA SOURCE AND YOU SEE IN HER ANSWER SHE IS POINTING -- SHE IS DISCUSSING THE UPPER LEFT PORTION OF HER DIAGRAM WHICH IF YOU -- AGAIN A LITTLE HARD TO READ, BUT IF YOU ENLARGE IT IS A PID FILTER. 
Q SO GOING TO THE NEXT SLIDE, IS IT THAT ALL TECHNICAL EXPERTS SAID AT -- SORRY. IS IT THAT ALL TECHNICAL EXPERTS SAID AT TRIAL THAT PID FILTERING SATISFIES PHYSICAL DATA SOURCE AND/OR PARSING? 
A CORRECT. 
Q AND WE ARE JUST NOW ON SLIDE 47, AND LET'S GO TO THE NEXT SLIDE. DID ECHOSTAR'S PID FILTERS CHANGE SINCE TRIAL? 
A SO AS WE MENTIONED EARLIER, WE SAW THAT THE PID FILTERS ARE ACTUALLY LOCATED ON THE CHIP IN THE HARDWARE THAT'S IN THE FIELD THAT HASN'T CHANGED, AND THE PID FILTERS HAVE NOT CHANGED SINCE TRIAL.


----------



## Greg Bimson (May 5, 2003)

So let me get this straight. There were three expert witness for DISH/SATS during the trial, and ALL THREE said the PID filtering was part of the physical data source AND that it met the step limitation.

Yet somehow, one expert changed his testimony for this hearing. Perhaps it was because he is being paid by DISH/SATS? Was he lying then, or is he lying now? I wonder if Judge Folsom would wonder why only one expert came forward to recant his prior testimony?


----------



## deaincaelo (Feb 5, 2009)

i just wanted to point out that the Tivo process is the same as a vcr, betamax player, or 7100 (all prior art). 

tuner > reader > storage device > output. 

can't work around it, unless you invent a storage device that works psycically.


----------



## jacmyoung (Sep 9, 2006)

The above quote is again the same we have heard over and over from TiVo, but with one thing, back then during the trial, the TiVo lawyer managed to get the E's witnesses to admit that the PID filter was *a part of* the "physical data source" becasue the PID filter analyzed the incoming data.

And that was it, because they admitted the PID did "parse" and that alone did meet the term "parse" in the first limitations of claims 31 and 61.

Again I am only going by what TiVo is saying, not any E*'s responses in this hearing.

Now remember, to be that "physical data source" it is not enough just to be a "part of that", but the whole, and what E* admitted back then was, since the PID filter did parse, and since the parsed data were then again separated into A/V streams, and then an index table was built and "temporarily stored" and then later "extracted" by that "source object" for DVR trickplays, E* met the first two of the claims 31 and 61 limitations.

But what was that part that did the separation and building that index table and temporarily stored that table and allowed the "source object" to later "extract" that "index table?" Yes that "MPEG processor", another part of the Broadcom chips. Together, that "physical data source" was identified.

E* now says, the part of the Broadcom chips now no longer separate the A/V streams, no longer builds the index table, therefore no longer stores such index and therefore the "source object" no longer "extract" such info for DVR trickplays.

In short, the E* new design no longer "parses as described in the patent claims", as E* put it.

As a result, E*'s witness says, now, the PID filter is no longer a part of that "physical data source". The opinion has changed, because the method of parsing has changed.

Regardless what was said back then, what matters is what is happening now. The judge will have to decide if after the MPEG processor no longer separates the streams, no longer builds the index table, and no longer temporarily stores such index, and therefore the "source object" can no longer "extract" such info from the said "physical data source", can the PID filter still be defined, alone, as that "physical data source" simply because it still "parses"?

"Parse" alone does not meet the first and second limitations of the claims 31 and 61, there have to be "temporarily store" and "extract" to take place too, and that "source object" must "extract" from that same "physical data source" for DVR trickplay too for infringement to exist.


----------



## Greg Bimson (May 5, 2003)

jacmyoung said:


> E* now says, the part of the Broadcom chips now no longer separate the A/V streams, no longer builds the index table, therefore no longer stores such index and therefore the "source object" no longer "extract" such info for DVR trickplays.


The files are saved in MPEG2 format, which by definition separates the A/V streams. There is an index table built, to "guess" how long it would take to perform a trick play. There is a source object, otherwise programming would never be saved.


----------



## Tom Robertson (Nov 15, 2005)

Greg Bimson said:


> The files are saved in MPEG2 format, which by definition separates the A/V streams. There is an index table built, to "guess" how long it would take to perform a trick play. There is a source object, otherwise programming would never be saved.


Question: Are the files saved in MPEG2 or in their original encoding which could be MPEG2 or MPEG4?

Thanks,
Tom


----------



## Greg Bimson (May 5, 2003)

> just wanted to point out that the Tivo process is the same as a vcr, betamax player, or 7100 (all prior art).


I just wanted to point out that the telephone process is the same as the telegraph process, so all patents should be invalidated for prior art. There should never be a patent, and innovation should be stifled.


----------



## Greg Bimson (May 5, 2003)

Tom Robertson said:


> Question: Are the files saved in MPEG2 or in their original encoding which could be MPEG2 or MPEG4?


Well, in the case of the eight named models, MPEG2, as none of those models process MPEG4.

MPEG2, MPEG4, it doesn't matter. As I recall, the MPEG standard has separation of the A/V streams.


----------



## Tom Robertson (Nov 15, 2005)

Greg Bimson said:


> Well, in the case of the eight named models, MPEG2, as none of those models process MPEG4.
> 
> MPEG2, MPEG4, it doesn't matter. As I recall, the MPEG standard has separation of the A/V streams.


!rolling Good points. 

Yes, I'm pretty sure the MPEG4 framework is just an extension of the MPEG2.

Thanks,
Tom


----------



## jacmyoung (Sep 9, 2006)

Tom Robertson said:


> !rolling Good points.
> 
> Yes, I'm pretty sure the MPEG4 framework is just an extension of the MPEG2.
> 
> ...


Of course neither "separation" nor "MPEG format" is the issue here, rather how the "parse" is described in the TiVo's patent claims.

If one simply reads the first two limitations of the claims 31 and 61, it is clear "parse" is only one of several constructions. "Parse" alone cannot meet the two limitations, there has to be that "physical data source", and the said "physical data source" must "parse" the incoming data streams, then "temporarily store" such parsed data (in previous TiVo's argument that was that "index table") and then, that "source object" must "extract" the "parsed data" (e.g. that "index table") for no other purpose than DVR trickplays.

The question is, can the PID filter parse the data and is such parsed data temporarily stored first, then later be extracted by that "source object" for DVR trickplay, and DVR trickplay only? Of course not, we all know the PID filter is never put in any of the MPEG receivers for the purpose of doing DVR trickplays.

The PID filters exsit in all MPEG receivers, to sort out the bad bits, and keep the good bits flowing down stream so the MPEG decoders can process the good info for display on TVs. No purpose of DVR trickplays at all.


----------



## scooper (Apr 22, 2002)

Greg Bimson said:


> Well, in the case of the eight named models, MPEG2, as none of those models process MPEG4.
> 
> MPEG2, MPEG4, it doesn't matter. As I recall, the MPEG standard has separation of the A/V streams.


I think it would be more correct to state that the streams are interleaved within the file, with time index marks to ensure that video and sound are in sync. But yours is essentially correct.


----------



## nobody99 (May 20, 2008)

jacmyoung said:


> TiVo lawyer managed to get the E's witnesses to admit that the PID filter was a part of the "physical data source" becasue the PID filter analyzed the incoming data.


Let me revisit Occam's razor. Here we have two choices:

1) the PID filter is not a physical data source but TiVo's attorneys "managed" to trick three different people into "admitting" that it was, but only one of them was able to see through this TiVo trickery last month.

or

2) The PID filter actually is a physical data source that analyzes data, and three witnesses testified truthfully while under oath.

The simplest solution is usually right. Which do you think is the simplest solution?


----------



## jacmyoung (Sep 9, 2006)

nobody99 said:


> ...2) The PID filter actually is a physical data source that analyzes data, and three witnesses testified truthfully while under oath.
> 
> The simplest solution is usually right. Which do you think is the simplest solution?


No, what I have learned for the first time from TiVo's own words in this transcript is, E* admitted that the PID was "part of the" physical data source, not "the" physical data source. Something TiVo tried to mention as little as possible

And of course, if the simplest solution is usually right, E* would have been in violation a year ago, wouldn't they? After all, did they disable the DVR functions? NO! Case closed.


----------



## scooper (Apr 22, 2002)

jacmyoung said:


> Of course neither "separation" nor "MPEG format" is the issue here, rather how the "parse" is described in the TiVo's patent claims.
> 
> If one simply reads the first two limitations of the claims 31 and 61, it is clear "parse" is only one of several constructions. "Parse" alone cannot meet the two limitations, there has to be that "physical data source", and the said "physical data source" must "parse" the incoming data streams, then "temporarily store" such parsed data (in previous TiVo's argument that was that "index table") and then, that "source object" must "extract" the "parsed data" (e.g. that "index table") for no other purpose than DVR trickplays.
> 
> ...


Again Jac - it is more correct to state that the PID filters are selecting the desired audio / video streams (the good bits) while discarding the undesired streams (the bad bits) to pass on for recording / display. I would agree that there is no way they can be the "source" of the DVR trickplay.


----------



## jacmyoung (Sep 9, 2006)

scooper said:


> I think it would be more correct to state that the streams are interleaved within the file, with time index marks to ensure that video and sound are in sync. But yours is essentially correct.


The point of A/V separation E* argued in their appeal was actually embraced by the appeals court, which had contributed in part to the overturning of the hardware claims verdict.

But as I said, it is not the real issue here. Separation or not, that PID filter, as you just pointed out, cannot alone possibly be that "physical data source" because it has nothing to do with DVR trickplay.


----------



## deaincaelo (Feb 5, 2009)

Greg Bimson said:


> I just wanted to point out that the telephone process is the same as the telegraph process, so all patents should be invalidated for prior art. There should never be a patent, and innovation should be stifled.


hardly, the telephone has several distinctions from the telegraph- a mouth peace, a speaker, so on. a telegraph doesn't do several functions that a telephone does. in fact, its a very dissimilar device excluding the infrastructure.

a betamax player has no differences as a device then claim 31's new meaning- it fulfills every step of the claim.


----------



## Greg Bimson (May 5, 2003)

deaincaelo said:


> a betamax player has no differences as a device then claim 31's new meaning- it fulfills every step of the claim.


1) there is no "new meaning" for claim 31

2) I didn't know you could actually pause and rewind what you were recording, and have live TV still record. Does a Betamax also cook popcorn and bake a cake?


----------



## jacmyoung (Sep 9, 2006)

deaincaelo said:


> hardly, the telephone has several distinctions from the telegraph- a mouth peace, a speaker, so on. a telegraph doesn't do several functions that a telephone does. in fact, its a very dissimilar device excluding the infrastructure...


A mouth piece or an ear piece and a speaker are only colorable differences. If the person using the telephone does not talk in normal fashion, rather must use voice code similar to the telegraph code, they are only colorably different.

IMHO, a better analogy is, there is hardly any difference between telephone and telegraph, in terms of how the information is transmitted (in the traditional way of course) and used. They both use a transmitter, a wire and a receiver, they both send and receive messages across short or long distances using the same radio wave carried by hard wiring. And yet they are each standalone patented technology.

How so? While they both perform substantially the same function, and achieve substantially the same result, they do so not relying on substantially the same method. One relies on verbal communication, the other on codes.

Here we have two DVR technologies, they both rely on performing substantially the same DVR functions, and achieve substantially the same result, but do so not in substantially the same method.

It is this new method the court must determine if it is more than colorably different compared to the old method. In doing such comparison, the new E* method will be compared to the old E* method, not to be compared to TiVo's method, nor to be compared to the TiVo's patent claims. This is what is called a "colorable difference analysis."

In the previous posts, we have mostly been arguing on the infringement analysis. In reality, the court must first do the colorable difference analysis, and ask, whether by removing the "index table" and the "automatic flow control", the two items TiVo had said were the "core of the invention" during the trial, did that make the differences between the old E* software, and the new E* software, more than colorable?

Notice the answer to this question does not even touch on the patent limitation debate we have been doing so far.

And if the answer to the above question is that of more than colorable difference, E* is not in violation/contempt, and the contempt motion must be denied and the proceeding must end, it cannot even go further, and all the infringement argument we have been doing will be a waste of time.


----------



## Curtis52 (Oct 14, 2003)

p 408 Barquist (Dish) - Rhyne (Dish)


Q SO TURNING TO THE TWO ISSUES THAT YOU HAVE IDENTIFIED, COLORABLE DIFFERENCES AND INFRINGEMENT, TELL US FIRST OF ALL WHAT THE DIFFERENCE BETWEEN THOSE TWO ISSUES IS AS YOU UNDERSTAND IT. 
A WELL, AGAIN, I'M NOT THE LAWYER HERE, BUT AS I UNDERSTAND IT, THE COLORABLE DIFFERENCE ISSUE HAS TO DO WITH HOW THE ORIGINAL DEVICE HAS BEEN MODIFIED VIS-A-VIS THE DESIGN-AROUND DEVICE, AND IN PARTICULAR ADDRESSING THOSE CHANGES WITH RESPECT TO THE WAY IN WHICH THE CONSTRUED CLAIMS WERE ASSERTED BY TIVO SUCCESSFULLY AT THE FIRST TRIAL. 
MR. CHU: OBJECTION, YOUR HONOR. IT'S A MISSTATEMENT OF THE LAW. 
THE COURT: WELL, HE SAID THAT'S HIS UNDERSTANDING. I MEAN, YOU ARE LEFT TO ARGUE WHETHER THAT'S CORRECT OR NOT, BUT HE SAID THAT'S HIS UNDERSTANDING. 
MR. CHU: I'LL JUST FOR THE RECORD PRESERVE A RUNNING OBJECTION ON HIS VIEW OF CLAIM CONSTRUCTION. 
THE COURT: VERY WELL. YOU ARE WELCOME TO CROSS EXAMINE HIM ON THAT AND ADDRESS THAT IN FINDINGS OF FACT AND CONCLUSIONS OF LAW. 
MR. CHU: THANK YOU VERY MUCH. 
THE COURT: VERY WELL. 
Q (BY MR. BARQUIST) SO, DR. RHYNE, THE COLORABLE DIFFERENCES LOOKS AT THE -- COMPARES THE OLD DEVICE AND THE NEW DEVICE. 
A THAT'S CORRECT. 
Q IS THAT ESSENTIALLY IT? 
A THAT'S -- THAT'S MY UNDERSTANDING. 
Q AND -- 
A AND MR. CHU MAY POINT OUT THAT THAT'S INCORRECT, BUT THAT'S -- THAT'S AN ISSUE AS TO HOW WERE THE DEVICES CHANGED FROM THE INFRINGING DEVICES THAT WERE FOUND AT TRIAL AND HOW DO THEY WORK NOW. 
Q AND THE SECOND ISSUE, THE INFRINGEMENT ISSUE, THAT INVOLVES COMPARING WHAT TO WHAT? 
A IN THAT ROLE I HAVE COMPARED THE NEW DEVICES, WITHOUT REGARD TO THE WAY THEY WERE BEFORE, TO THE CLAIMS 31 AND 61, AS THOSE LIMITATIONS OF THAT -- THOSE PAIR OF CLAIMS HAVE BEEN CONSTRUED BY THE COURT. AND AGAIN, I THINK I'VE BEEN INFORMED BY THE MANNER IN WHICH THE -- THE LIMITATIONS OF THOSE CLAIMS WERE ASSERTED SUCCESSFULLY BY TIVO AT TRIAL. 
Q AND RECOGNIZING THAT YOU ARE NOT A LAWYER AND NOT GIVING LEGAL TESTIMONY, WHAT IS YOUR UNDERSTANDING OF THE COLORABLE DIFFERENCES STANDARD? 
A IT'S A NEW TERM TO ME. IT'S MY UNDERSTANDING, THOUGH, THAT IT WOULD BE A BAD THING, IT WOULD BE COLORABLE, I GUESS IS THE RIGHT WAY TO PUT IT -- IF -- IF THE ONLY CHANGES THAT HAD BEEN MADE BY MR. MINNICK AND HIS TEAM WERE KIND OF COSMETIC CHANGES, IF THEY MAYBE -- MY DEBATE COACH USED TO SAY 
THERE WERE DIFFERENCES BETWEEN REASONS THAT SOUND GOOD AND GOOD SOUND REASONS. IF THEY MADE SOME CHANGES THAT LOOK GOOD BUT WHEN YOU OPENED THE HOOD AND LOOKED UNDERNEATH TO SEE WHAT REALLY HAD HAPPENED, THAT WITH RESPECT TO THE INFRINGING ISSUES THAT WERE FOUND AT TRIAL IN COMPARISON PARTICULARLY TO THE CONSTRUED CLAIMS, THEY LOOKED LIKE THEY HAD DONE SOMETHING, BUT REALLY THEY HADN'T MADE ANY FUNDAMENTAL CHANGES ALONG THOSE LINES. 
Q SO HOW DID YOU GO ABOUT ANALYZING WHETHER THE DIFFERENCES IN THE NEW DEVICES WERE MEANINGFUL WITH RESPECT TO THE PATENT AND WITH RESPECT TO CLAIMS 31 AND 61 IN PARTICULAR? 
A I STARTED WITH THE CLAIM, THE TWO CLAIMS. THEY REALLY -- THE LIMITATIONS ARE THE SAME WORD FOR WORD IS MY UNDERSTANDING, EXCEPT FOR THE EARLIER PART OF CLAIMS 31 AND 61. I WENT BACK AND REREAD THE LANGUAGE OF THE CLAIMS. I LOOKED AT THE COURT'S CONSTRUCTION, PARTICULARLY OF A PHRASE THAT IN THE CLAIM READS AS PARSES ANALOG, EXCUSE ME, PARSES VIDEO AND AUDIO DATA FROM SAID BROADCAST DATA, OR SOMETHING LIKE THAT. AND I'LL NOT JUST BE VAGUE ABOUT IT, I HAVE IT HERE IN FRONT OF ME IF YOU'LL GIVE ME A MOMENT. PARSES VIDEO AND AUDIO DATA FROM SAID BROADCAST DATA, I GUESS I GOT THAT RIGHT. THEN I TURNED TO THE SPECIFICATION OF THE PATENT AND REREAD IT TO SEE WHAT THE PATENT ITSELF, I THINK THE PHRASE IS READING THE CLAIM IN LIGHT OF THE SPECIFICATION, SAID ABOUT THIS ISSUE OF PARSING AND WHAT WAS THE CLAIMED PHYSICAL DATA SOURCE. THEN I, OF COURSE, LOOKED AT THE COURT'S CONSTRUCTION. AS I SAID EARLIER, THE COURT SPECIFICALLY CONSTRUED THE ENTIRETY OF THE PHRASE PARSES VIDEO AND AUDIO DATA FROM SAID BROADCAST DATA TO BE ANALYZES VIDEO AND AUDIO DATA FROM THE BROADCAST DATA. I TOOK THAT INTO MY UNDERSTANDING. 
AND THEN I LOOKED AT THE ASSERTIONS THAT HAD BEEN MADE AS CLARIFYING OPERATIONS BY TIVO AND THEIR EXPERTS AND OTHER WITNESSES AT TRIAL TO SEE HOW THAT FURTHER INFORMED ME AS TO WHAT THE APPROPRIATE WAY TO LOOK AT THOSE WERE, TO UNDERSTAND WHAT HAD BEEN SUCCESSFUL IN THE EYES OF THE JURY IN THE FIRST 
TRIAL. AND THAT'S WHAT I DID. I ALSO LOOKED AT THE FLOW CONTROL REQUIREMENT, WHICH READS AS WHEREIN SAID SOURCE OBJECT IS AUTOMATICALLY FLOW CONTROLLED BY SAID TRANSFORM OBJECT IN BOTH OF THE CLAIMS, AND I TOOK INTO ACCOUNT AGAIN THE SPECIFICATION AND WHAT IT TELLS ME ABOUT THAT. AND THE COURT'S DECISION THAT THE TERM AUTOMATICALLY FLOW CONTROLLED MEANT SELF-REGULATED, AND AGAIN LOOKED AT HOW THAT HAD BEEN FOUND TO BE MET IN THE ORIGINAL DEVICES, AND COMPARED, GIVEN THOSE BACKDROPS, HOW THE NEW DEVICES THAT ECHOSTAR HAD PRODUCED OPERATED.


----------



## Curtis52 (Oct 14, 2003)

p 515 Barquist (Dish) - Rhyne (Dish)

Q SO, IF INDEXING WAS ASSOCIATED WITH THE SEPARATING REQUIREMENT, WHAT REQUIREMENT OF THE MEDIA SWITCH AS CONSTRUED BY THE COURT WAS ASSOCIATED WITH THE PARSING REQUIREMENT? 
A IN THE SUCCESSFUL ARGUMENTS MADE BY TIVO AT TRIAL, IT WAS THE DETECTION OF START CODES BY LOOKING AT THE VIDEO DATA AS IT PASSED UNDER WHAT MR. BARTON REFERRED TO HIS LITTLE EYE, AND THAT WAS THE MEDIA SWITCH. 
Q AND IN THE MODIFIED ECHOSTAR PRODUCTS, THE NEW ECHOSTAR PRODUCTS, DO THEY DO THAT START CODE DETENTION? 
A NO, THEY DO NOT, NOT ON THE RECORD SIDE BEFORE THE DATA IS SENT TO A BUFFER AND SUBSEQUENTLY SENT TO THE HARD DISK DRIVE. 
MR. BARQUIST: AND IF WE COULD LOOK AT SLIDE 51 IN THE SAME EXHIBIT, PLEASE. 
Q (BY MR. BARQUIST) AGAIN, THIS IS ONE OF DR. GIBSON'S SLIDES FROM THE FIRST TRIAL IN WHICH HE READ THE MEDIA SWITCH ELEMENT ONTO THE PARSING AND SEPARATING PART OF THE CLAIM ELEMENT, IS THAT RIGHT? 
A YES. 
Q AND WHAT DID DR. GIBSON SAY PARSING INVOLVED IN THIS? 
A THIS IS A COMMENT THAT IS MADE AT THE BEGINNING OF A PART OF THE ECHOSTAR SOFTWARE AS IT WAS BEFORE TRIAL AND DURING TRIAL, AND HE HIGHLIGHTED THE FACT THAT THIS PARTICULAR FUNCTION, NAMED FRAME PARSE, HAD A DESCRIPTION WRITTEN BY THE ECHOSTAR PROGRAMMER THAT SAID PARSE THE VIDEO DATA TO LOOK FOR START CODES, AND HE SPECIFICALLY HIGHLIGHTED AND EXPLAINED TO THE JURY THIS SLIDE AS EMPHASIZING THAT PARSING WAS LOOKING FOR START CODES. 
Q AND IS LOOKING FOR START CODES THE INDEX? 
A NO. IT'S WHAT YOU USE TO BUILD THE INDEX. 
Q SO IT'S A TWO-STEP PROCESS? 
A YES. 
Q NOW, MR. CHU ASKED YOU ABOUT THE COURT'S CLAIM CONSTRUCTION ORDER AND SUGGESTED THAT YOU ARE CHANGING THE 
COURT'S CLAIM CONSTRUCTION, AND YOU SAID YOU COULDN'T ANSWER THAT QUESTION YES OR NO. DO YOU RECALL THAT? 
A THE WAY HE HAD PHRASED IT, AND I DON'T REMEMBER EXACTLY HOW HE PHRASED IT, BUT I AM NOT MAKING ANY ATTEMPT TO CHANGE THE COURT'S ORDER. THE ONLY THING THAT I THINK SOMETIMES HAS BEEN A LITTLE CONFUSING IS THAT THE COURT SEPARATELY IN THE FIRST PART OF PAGE 22 OF THE ORDER CONSTRUED PARSES TO MEAN ANALYZES, BUT THEN AT THE BOTTOM OF THAT PAGE THE COURT FULLY CONSTRUED THE PHRASE PARSES THE VIDEO AND AUDIO FROM SAID BROADCAST DATA TO MEAN ANALYZES THE VIDEO AND AUDIO DATA FROM THE BROADCAST DATA. SO I THINK RELATIVE TO CLAIMS 31 AND 61 IS THE FACT THAT THE COURT CONSTRUED THE WORD PARSES TO MEAN ANALYZED ALONE IS NOT ENOUGH TO CONSIDER. AND I HAVE CONSIDERED THE ENTIRETY OF THAT PHRASE IN FORMING MY OPINIONS ON BOTH COLORABLE DIFFERENCE AND ON INFRINGEMENT. 
Q AND SO KEEPING IN MIND THE COURT'S CLAIM CONSTRUCTION OF THAT ENTIRE CLAIM ELEMENT, PARSES AUDIO AND VIDEO DATA FROM THE BROADCAST DATA, WHY, IN VIEW OF THAT CONSTRUCTION, IS IT YOUR OPINION THAT THE NEW ECHOSTAR PRODUCTS DON'T MEET THAT LIMITATION? 
A I CAN STATE IT VERY SIMPLY. THE ONLY PLACE THAT THE VIDEO OR AUDIO DATA WOULD BE FOUND IS IN THE PAYLOADS OF THE TRANSPORT STREAM PACKETS AS THEY PROCEED THROUGH THE FRONT END OF THAT DEVICE AND ULTIMATELY SHOW UP ON DISK. AND IN THE MODIFIED PRODUCTS, DURING THAT FRONT END PROCESS, THERE IS NEVER ANY ANALYSIS OF THE VIDEO AND AUDIO DATA BEING PERFORMED BY OPENING THE PAYLOAD PORTION OF THE TRANSPORT STREAM PACKETS. THE ONLY THING THAT IS NOW DONE IS THE USE OF A PID FILTER, AS WAS DONE BEFORE, TO LOOK AT THE HEADER AND FIND THE PACKET IDENTIFIER 13 BIT CODE. THAT'S ALL THAT'S DONE. AND THE MODIFIED SYSTEMS ON THE FRONT END LEADING TO THE DISK, THE PAYLOAD IS NEVER EXAMINED. 
Q AND IT'S THE PAYLOAD WHERE THE VIDEO AND AUDIO DATA RESIDE, CORRECT? 
A THAT'S CORRECT. 
Q AND NOT IN THE HEADER? 
A NONE OF THAT DATA IS IN THE HEADER.


----------



## CuriousMark (May 21, 2008)

Note that he doesn't mention that the payloads are opened on playback and the start codes are parsed from the stream at that time in order to build the statistics table and do trick play. He sounds like that function has gone away completely, when it was really moved to the "new code" that was created for playback trick play. Of course I don't blame him for leaving out the parts that don't help the case during direct questioning. He is earning his pay here very well.


----------



## scooper (Apr 22, 2002)

CuriousMark said:


> Note that he doesn't mention that the payloads are opened on playback and the start codes are parsed from the stream at that time in order to build the statistics table and do trick play. He sounds like that function has gone away completely, when it was really moved to the "new code" that was created for playback trick play. Of course I don't blame him for leaving out the parts that don't help the case during direct questioning. He is earning his pay here very well.


It's not his job to do Tivo's counsel's job for them (or their expert witnesses' job, as the case may be). Of course - that may well have been covered and we just haven't seen that yet.


----------



## CuriousMark (May 21, 2008)

scooper said:


> It's not his job to do Tivo's counsel's job for them (or their expert witnesses' job, as the case may be). Of course - that may well have been covered and we just haven't seen that yet.


No question that you are right there, and I tried to say just that. Actually I don't think the TiVo expert pointed that particular fact out as well as I would have expected. He seemed to get bogged down in something to do with the progress bar, which doesn't seem directly relevant to this in my opinion. I just want to highlight it for the reader here. Hopefully we will find something in the transcript that does it better.

I guess the point I am trying to make is that this expert's testimony has the smell of "spin" to it, in my estimation. Then again, it is supposed to, it is after all the best argument Dish can muster to convince the judge.


----------



## CuriousMark (May 21, 2008)

Curtis52 said:


> p 408 Barquist (Dish) - Rhyne (Dish)
> 
> 
> Q SO HOW DID YOU GO ABOUT ANALYZING WHETHER THE DIFFERENCES IN THE NEW DEVICES WERE MEANINGFUL WITH RESPECT TO THE PATENT AND WITH RESPECT TO CLAIMS 31 AND 61 IN PARTICULAR?
> ...


In bold is where Dish is bringing in hardware claims to augment the software claims currently being discussed. For the patent attorneys out there, is this normal? Will the court do this in their final finding of fact? Are the claims stand alone language or should they be placed in a larger context that allows arguments to be brought in like this?

Just curious.


----------



## Curtis52 (Oct 14, 2003)

CuriousMark said:


> In bold is where Dish is bringing in hardware claims to augment the software claims currently being discussed. For the patent attorneys out there, is this normal? Will the court do this in their final finding of fact? Are the claims stand alone language or should they be placed in a larger context that allows arguments to be brought in like this?


Well, here's some stuff from wikipedia.


> ...in U.S. patent practice at least, inventors may "act as their own lexicographer" in a patent application. That means that an inventor may give a common word or phrase a meaning that is very specific and different from the normal definition of said word or phrase. Thus a claim must be interpreted in light of the definitions provided in the "specification" of a patent. The "specification" of a patent is a written description of how to make and use the invention.





> Claim differentiation: In United States patent law, under the doctrine of claim differentiation, each claim is presumed to cover a different aspect of the invention than in each other claim. This doctrine may be relied upon to help maintain broad claim scope in the case where a claim standing alone might be construed as having either a broad or a narrow interpretation.





> In United States patent law, the patent specification must be complete enough so that a person of "ordinary skill in the art" of the invention can make and use the invention without "undue experimentation". There is no precise definition of "undue experimentation" in U.S. patent law. The standard is determined based on the art of the invention.


It looks like stuff in the specification can be used to flesh out how the invention works. I don't see anything there though that helps their case.



> With respect to FIG. 8, the program logic within the CPU has three conceptual components: sources 801, transforms 802, and sinks 803. The sources 801 produce buffers of data. Transforms 802 process buffers of data and sinks 803 consume buffers of data. A transform is responsible for allocating and queuing the buffers of data on which it will operate. Buffers are allocated as if "empty" to sources of data, which give them back "full". The buffers are then queued and given to sinks as "full", and the sink will return the buffer "empty".
> 
> A source 801 accepts data from encoders, e.g., a digital satellite receiver. It acquires buffers for this data from the downstream transform, packages the data into a buffer, then pushes the buffer down the pipeline as described above. The source object 801 does not know anything about the rest of the system. The sink 803 consumes buffers, taking a buffer from the upstream transform, sending the data to the decoder, and then releasing the buffer for reuse.
> 
> There are two types of transforms 802 used: spatial and temporal. Spatial transforms are transforms that perform, for example, an image convolution or compression/decompression on the buffered data that is passing through. Temporal transforms are used when there is no time relation that is expressible between buffers going in and buffers coming out of a system. Such a transform writes the buffer to a file 804 on the storage medium. The buffer is pulled out at a later time, sent down the pipeline, and properly sequenced within the stream.


----------



## deaincaelo (Feb 5, 2009)

Greg Bimson said:


> 1) there is no "new meaning" for claim 31
> 
> 2) I didn't know you could actually pause and rewind what you were recording, and have live TV still record. Does a Betamax also cook popcorn and bake a cake?


1.) the satilite tuner is the source object, ergo parse now means analize. analize now means tune.

2.) i dont see the words "pause" or "rewind" in claim 31. functionality is not addressed in the claim and irrelevent. all it requires is a source object, a transform object, a storage device, a control object, and a decoder. i'm certain you could build an infringing non-dvr.


----------



## Curtis52 (Oct 14, 2003)

deaincaelo said:


> 1.) the satilite tuner is the source object, ergo parse now means analize. analize now means tune.


The law of the case is the claims construction by the court which says:


> in accordance with its ordinary meaning, the Court construes "source object" as "a collection of data and operations that (1) extracts video and audio data from a physical data source, (2) obtains a buffer [memory where data can be temporarily stored for transfer] from a transform object, (3) converts video data into data streams, and (4) fills the buffer [memory where data can be temporarily stored for transfer] with the streams."


That definition was never appealed.


----------



## CuriousMark (May 21, 2008)

Curtis52 said:


> Well, here's some stuff from wikipedia.
> 
> It looks like stuff in the specification can be used to flesh out how the invention works. I don't see anything there though that helps their case.


Thank you very much, that is enlightening. I agree that I don't see anything that specifically defines a source object as one that must perform the creation of an index as Dish's expert is saying.


----------



## jacmyoung (Sep 9, 2006)

CuriousMark said:


> In bold is where Dish is bringing in hardware claims to augment the software claims currently being discussed. For the patent attorneys out there, is this normal? Will the court do this in their final finding of fact? Are the claims stand alone language or should they be placed in a larger context that allows arguments to be brought in like this?
> 
> Just curious.


No need to be curious, because they were going by what "the TiVo experts did successfully during the jury trial," and following that exact path.

This is exactly the same concept I said, if TiVo had successfully argued during the trial that E* infringed on the patent because E*'s DVRs used the two things (the index table and the self-regulating buffers) that were the "core of the invention", then that is what E* must follow to say, now they are gone, the question is, had these two items not been there during the jury trial, could that have caused the jury to issue a non-infringement verdict, instead of the infringement verdict?

If the answer is a "maybe" (notice the answer does not even have to be a "yes."), there is the doubt. And it is that doubt E* wants to establish.

TiVo's attempt is to turn their back to what they had "successfully done" during the jury trial, and pointing out some other concepts, such as the word "index" is not in claims 31 and 61, but E* only needs to focus on using the same "successful approach" TiVo used in that jury trial, to establish the doubt.

Because during that jury trial, it was TiVo which successfully tied together the "index table" with that "parse", the "multiple buffers" with "self-regulating".


----------



## nobody99 (May 20, 2008)

jacmyoung said:


> E*'s DVRs used the two things (the index table and the self-regulating buffers) that were the "core of the invention"


Of course this position has long since been invalidated as completely incorrect.

In the original trial, TiVo used the very existence of the index table as proof that parsing occurred.

You can't have an index table without parsing (original trial) but _you can _have parsing without an index table (contempt hearing)

You are treating the index table as the _actual _invention rather than one particular side effect of the invention.

A particularly over-simplified analogy: Suppose I have a patented cookie cutter that creates a cookie with a particular shape. The very existence of the cookie proves that I have the cookie cutter.

However, the cookie _itself _is not the infringement of the patent, only proof that infringement occurred.


----------



## Curtis52 (Oct 14, 2003)

"If one or more things set forth in a claim is not present in the practice being reviewed, there is no infringement of that claim. On the other hand, if each thing which is set out in even one claim of the patent is present in the accused structure or process, then there is direct and literal infringement."

link

"Every requirement of each claim must be considered to see if each thing set out in the claim also appears in the accused device. If one or more things set forth in a claim is not present in the practice being reviewed, there is not literal infringement of that claim. On the other hand, if each thing which is set out in even one claim of the patent is present in the accused structure or process, then there is direct and literal infringement."

link

"Only one claim of the patent needs to be infringed in order to have infringement of the entire patent. In analyzing each claim, each element of the claim must be contained in the infringing device in order to show literal patent infringement. If even one element of the claim is missing from the allegedly infringing device, there is no literal infringement."

link


----------



## jacmyoung (Sep 9, 2006)

Again both of you, just like TiVo, continue to use the patent claims to aruge infringement.

The problem is the first thing is not the infringement, rather colorable difference, and in such first analysis, patent claims are not addressed.

The only question is whether the changes made, or the differences, had them been available during the original trial, could they have caused the jury to find E* not infringing.

Again all E* needs to do is to establish that, yes, it could happen, not that yes, the jury would have found E* not infringing, only that the possibility would have existed that they might not found E* infringing. That will be enough to establish the doubt.

And in a contempt proceeding, it is that doubt that matters.

Now if after removing the two things that were said by TiVo as the "core of the invention" back then, the court still believes that the jury back then would have *undoubtedly* found E* infringing, only then the court must determine if the current DVRs still infringe. To do so, TiVo then must prove by clear and convincing evidence that the current DVRs are still an infringement on the patent claims, and only at this stage the patent claims will be addressed.

But the contempt proceeding will never get to the above stage if the court agrees with E* that there exists that doubt.


----------



## nobody99 (May 20, 2008)

jacmyoung said:


> And in a contempt proceeding, it is that doubt that matters.





injunction said:


> 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


The injunction requires DISH to disable storage to and playback from a hard disk drive, *there is no doubt of that.*

The eight-named DVRs still record television data to disk. *There is no doubt of that.*



claim construction said:


> EchoStar argues that the capitalization of terms ...indicates that the terms were specially defined...and therefore must be given a special meaning instead of their plain meaning.


EchoStar knows that "Infringing Products" means the eight-named models that were placed with customers. *There is no doubt of that.*

So, please, explain, where is the doubt?


----------



## scooper (Apr 22, 2002)

nobody99 said:


> So, please, explain, where is the doubt?


Editing out -

Better - you're looking in the wrong areas for doubt. You must examine the new E* software and compare it to the OLD E* software for the colorable difference analysis.

If that fails, then it is infringing. If it PASSES the colorable difference test - THEN Tivo must show by clear and convincing evidence (in a new court action) that the change is also infringing.

SO it is possible we can have some different endings -
not Colorably different (by default - all here are still infringing)
colorably different but still infringing 
colorably different and not infringing

in any case - more than colorably different leads to another court action to determine if it is still infringing. Only this time - there is much less of the patent claims to look for infringement on.


----------



## nobody99 (May 20, 2008)

scooper said:


> So, please, explain, where is the infringement ?


Sorry, I thought you had heard about it. There was a trial that ended in 2006 that ended with a finding of infringement. After that trial, there was an appeal, which also ended in infringement in 2008.

So I guess could say the infringement was in 2006 and upheld in 2008.


----------



## Curtis52 (Oct 14, 2003)

p 14 Chu opening



> THESE ARE THE SUBJECTS THAT I WILL BRIEFLY COVER: CHANGE MUST BE ON A CLAIM ELEMENT. THAT MAKES SENSE. AND HERE IS A BASIC AUTHORITY, ADDITIVE CONTROLS. WHEN THERE ARE NO SUBSTANTIAL OPEN QUESTIONS OF -- THERE ARE NO SUBSTANTIAL OPEN QUESTIONS OF INFRINGEMENT IF THERE ARE NO QUESTIONS ON THE ELEMENTS OF THE PERTINENT CLAIM.
> AND THEN WE ARE GOING TO LOOK AT ECHOSTAR'S ALLEGED CHANGES AND HOW THEY ARE NOT ON THE CLAIM ELEMENTS. THE FIRST ONE IS PARSES. CLAIM 31 AND CLAIM 61 ARE BASICALLY THE SAME IN THIS. THERE IS THE CLAIM TERM PARSES. THIS IS THE COURT'S CLAIM CONSTRUCTION. PARSE MEANS ANALYZES. AND THIS IS DR. RHYNE, ECHOSTAR'S EXPERT. HE IS BASICALLY SAYING THAT THOSE CLAIMS AT ISSUE, THE TWO CLAIMS AT ISSUE, REQUIRE AN INDEX OR INDEXING, A TERM NOT IN THE CLAIM, NOT IN THE COURT'S CLAIM CONSTRUCTION, NOT APPEALED.
> HERE IS WHAT ECHOSTAR IS TRYING TO DO. THEY ARE TAKING THE CLAIM TERM AND THEY ARE TRYING TO REWRITE IT. THE TIME TO DO THAT WAS BEFORE YOUR HONOR AT CLAIM CONSTRUCTION OR BEFORE THE FEDERAL CIRCUIT. THE PRIOR FINDINGS AND CLAIM CONSTRUCTION ARE, OF COURSE, LAW OF THE CASE. THIS IS NOT
> LIKE A PLAYGROUND GAME AMONG TEENAGERS WHERE SOMEONE CAN CALL A DO-OVER.
> ...


----------



## Greg Bimson (May 5, 2003)

jacmyoung said:


> The problem is the first thing is not the infringement, rather colorable difference, and in such first analysis, patent claims are not addressed.


Yes, patent claims are addressed. It is the very first item addressed within the colorable difference evaluation. Colorable difference evaluations compare the adjudged product to the new product _with respect to the claims_. If every step of the claim is still being met the same way it was before, then there is no colorable difference.

If changes are made to make the case black, there is no colorable difference in how the box works. Also, if an index table is removed, there is no colorable difference _as there is no index table in Claims 31 and 61 (henceforth refered as the "Software Claims")._


> Claim differentiation: In United States patent law, under the doctrine of claim differentiation, each claim is presumed to cover a different aspect of the invention than in each other claim.


So the index file is covered under the Hardware Claims (primarily claims 1 and 32) but not the Software Claims (claims 31 and 61, which were upheld). Therefore, the index table is not even a question in this proceeding, since it is not required by the Software Claims.


----------



## jacmyoung (Sep 9, 2006)

Let me use a perfect example in this very case.

When E* appealed the jury verdicts, with respect to the hardware claims verdict, TiVo anticipated the possibility that the jury's verdict of infringement of the hardware claims based on literal doctrine might face some trouble, TiVo argued that even if so, the jury would have *undoubtedly* found infringement of the hardware claims by the equivalents.

Why? Because the standard of equivalents is much lower, if one finds literal infringement, logic tells us one should easily find infringement by the equivalents.

The appeals court response, after they did overturn the verdict of literal infringement? Not so. Even though there might be *little doubt* the jury could have easily decided hardware claims infringement by the equivalents, because they did easily find literal infringement, since the jury was never given the opportunity to decide on the equivalents, the court could not agree with TiVo that infringement of the hardware claims by the equivalents would be *a 100% sure thing*.

As a result the hardware claims verdict was overturned.

If we keep the above train of thoughts in mind, and look at what the court should do now.

During the trial, TiVo successfully tied together the "parse" to the "building of the index table", meaning the two are related, not just related, they are pretty much saying the same thing. TiVo also successfully tied together the "multiple buffers" to the "automatic flow control". Not only that, TiVo successfully argued that the "indexing" and the "multiple buffers" were the "core of the invention", because E* had them, TiVo had them, therefore E* infringed.

The above TiVo argument was the key to win the jury's agreement that E* infringed, never mind the details. Now E* says, alright, if you say those two "core evidence" were the evidence to prove that we had infringed, let's remove them. And there is no dispute E*'s new software had removed both.

The question is, had the two "core evidence" not been there in the first place, could the jury have possibly had a different verdict? If logic tells us yes, possibly (not that they would 100%, just the possibility existed), then the doubt now exists whether the same jury will again find the new design infringing.

Now if we go back to the appeals decision, when even there was *little doubt*, they still decided in E*'s favor in terms of the hardware verdict, if now a *fair ground to the doubt* exists, what is the likelihood of the court to favor TiVo this time, when it did not favor TiVo in that decision back then when little doubt existed?

And when we try to answer the question above, please also note that TiVo is now carrying a heavier burden of proof in this contempt proceeding, compared to what TiVo had to convince the jury and the court during the trial.

The key here is how TiVo managed to convince the jury, by relating "parse" to the building of the "index table." Now TiVo is saying but you can't connect "parse" to that "index table" anymore. We will just have to find out how that argument may fly.


----------



## jacmyoung (Sep 9, 2006)

Greg Bimson said:


> ...If every step of the claim is still being met the same way it was before, then there is no colorable difference...


No, if true there is infringement.

The same cannot be said of colorable difference. Colorable difference is not determined based on the meeting of every step of the claims.

Colorable difference is based on comparing the new software to the old software, and notice those differences, and ask, do these differences give fair ground to the doubt whether infringement still exists? If the answer is yes, it is over.

Even if later TiVo may again prove that every step of the claims is still met, therefore infringement still exists. But as soon as the doubt is established, TiVo's infringement argument will be a waste of time in this contempt proceeding.

TiVo can of course try such argument in a new proceeding, just not in this contempt proceeding.


----------



## dfd (Aug 29, 2008)

jacmyoung said:


> Let me use a perfect example in this very case.
> 
> When E* appealed the jury verdicts, with respect to the hardware claims verdict, TiVo anticipated the possibility that the jury's verdict of infringement of the hardware claims based on literal doctrine might face some trouble, TiVo argued that even if so, the jury would have *undoubtedly* found infringement of the hardware claims by the equivalents.
> 
> ...


Flawed logic.

First of all, this is about the software claims NOT the hardware claims.

'Parse' was defined as analyze - fact.

I'll go along with what you said about the index table argument for a bit here... Once analyzed then E* could build an index table. Is that proof that they analyze?

'Parse' is in the software claim, index table is not.

False argument by E*, their counsel, and apologists.


----------



## jacmyoung (Sep 9, 2006)

dfd said:


> Flawed logic.
> 
> First of all, this is about the software claims NOT the hardware claims.


The first test is not about the claims, rather differences between the old and new software, and whether the differences are relevant to the invention itself.



> 'Parse' was defined as analyze - fact...


Yet colorable difference analysis has nothing to do with any definition in the claim limitations. Only during the infringement analysis are such definitions examined.

Go back to read some of the case law I have cited, when the appeals court overturned the contempt ruling because the district court failed to first conduct any colorable difference analysis, the appeals court had to explain to the lower court how to do the colorable difference analysis.

And if one read them, one will realize colorable difference comparison does not touch on specific terms in the claims limitations, only the differences between the accused and the adjudicated, to detemine whether such differences raise any doubt.

TiVo cannot face their own argument during the trial when they claimed the "index table" was the "core of the invention". By definition, it means without such "core" the invention simply may not exit.


----------



## Greg Bimson (May 5, 2003)

jacmyoung said:


> During the trial, TiVo successfully tied together the "parse" to the "building of the index table", meaning the two are related, not just related, they are pretty much saying the same thing. TiVo also successfully tied together the "multiple buffers" to the "automatic flow control". Not only that, TiVo successfully argued that the "indexing" and the "multiple buffers" were the "core of the invention", because E* had them, TiVo had them, therefore E* infringed.


Obfuscation.

During the trial, TiVo asked the three DISH/SATS experts if PID filtering met the "parse audio and video from broadcast data". All three said yes. And that satisfied the step limitation in claims 31 and 61.

DISH/SATS still uses the same 10 buffers in a circle that they did before. So there is self-regulation, which meets the "automatic flow control" step limitation.

The "core of the invention" argument is moot. And if that is the "core of the legal defense" from DISH/SATS, the "core of the issue" is that DISH/SATS will be found in contempt, as there is no fair ground of doubt that the modifications did not remove any of the elements found to infringe the claim.


jacmyoung said:


> Colorable difference is based on comparing the new software to the old software, and notice those differences, and ask, do these differences give fair ground to the doubt whether infringement still exists? If the answer is yes, it is over.


Then what would the differences be compared to in order to understand if infringement still exists?

The claims (and elements) in the patent.

If DISH/SATS simply changed the case color to black, the case has nothing to do with infringement. The old software must be compared to the new software, and then against the claims to determine colorable difference.


----------



## Curtis52 (Oct 14, 2003)

It's like Dish had a car with a flat tire and instead of changing the tire they changed the oil instead.

The really ironic thing is that if Dish had lost the hardware claims appeal, the changes they have made would come a lot closer to meeting the colorable differences test.


----------



## CuriousMark (May 21, 2008)

jacmyoung said:


> During the trial, TiVo successfully tied together the "parse" to the "building of the index table", meaning the two are related, not just related, they are pretty much saying the same thing. TiVo also successfully tied together the "multiple buffers" to the "automatic flow control". Not only that, TiVo successfully argued that the "indexing" and the "multiple buffers" were the "core of the invention", because E* had them, TiVo had them, therefore E* infringed.
> 
> The above TiVo argument was the key to win the jury's agreement that E* infringed, never mind the details. Now E* says, alright, if you say those two "core evidence" were the evidence to prove that we had infringed, let's remove them. *And there is no dispute E*'s new software had removed both.*
> 
> The question is, had the two "core evidence" not been there in the first place, could the jury have possibly had a different verdict? If logic tells us yes, possibly (not that they would 100%, just the possibility existed), then the doubt now exists whether the same jury will again find the new design infringing.


Not true. TiVo did dispute that it was removed. Their expert witness in one of the posts above said that even if by some way you could include indexing in claim 31, that E* still does it, they do it at playback time. They still open the payload and find the start frame locations in order to build the index file used to maintain the progress bar and to create the statistics used to do trick play. The code to do that was reported to be nearly identical to the code you say was *removed* in the bold quote above. So, even if we take every other part of the above argument at face value, although some of those parts are also questionable, it is not right to claim that this was removed. At best it was moved. Under DOE, it is a clear infringement. Whether or not it passes the colorability test is less clear to me.


----------



## Greg Bimson (May 5, 2003)

jacmyoung said:


> During the trial, TiVo successfully tied together the "parse" to the "building of the index table"...


Not entirely true.

TiVo also succeeded it having the PID filter claimed as meeting the parse limitation by all five expert witnesses, in addition to tying the "parse" to the "index table", which of course had to be done to meet the step limitations of the Hardware Claims.

There is absolutely nothing wrong with having two different versions of parse being defined within the patent claims. That is what claim differentiation is all about.


----------



## jacmyoung (Sep 9, 2006)

Curtis52 said:


> It's like Dish had a car with a flat tire and instead of changing the tire they changed the oil instead.


No, it is like E* had a car with TiVo engine in it, they changed the engine. Can anyone tell me what does the word "core" mean?



> The really ironic thing is that if Dish had lost the hardware claims appeal, the changes they have made would come a lot closer to meeting the colorable differences test.


That is the point, if by winning E* can lose, then something is obviously wrong.

TiVo of course was correct that the "index" is the core of the invention, without which TiVo's invention simply does not exist.

TiVo now is saying that "index table" is irrelevant to the claims 31 and 61, if true, then one can argue the "index table" is irrelevant to this invention, and it is the invention that E* was infringing.

So what will it be like without that index table in TiVo? If one simply use a non-DVR MPEG receiver for example, it uses the PID filter and many other things to display TV programming.

Now slap a hard drive in it and allow the hard drive to record the progarmming. But provide no such "index table" at all, can a person of ordinary skill in the DVR field say that receiver will be able to do all the DVR trickplays?

If the answer is no, then there is no such TiVo's "time warp" invention to speak of isn't it? If there is no invention to begin with, then E* could not possibly infringe on an invention that did not exist.


----------



## jacmyoung (Sep 9, 2006)

Greg Bimson said:


> Not entirely true.
> 
> TiVo also succeeded it having the PID filter claimed as meeting the parse limitation by all five expert witnesses, ...


As meeting part of the "physical data source" definition.

Now E* is saying no, the process has changed, we no longer view the PID filter as part of the patent claims definition.

Now is TiVo ready to say the same, that the "index table" is no longer the "core of the invention"? More than that, is TiVo ready to say the "index table" is irrelevant to its invention, that without that "index table" the invention will still work?

E* is ready to change its opinion based on the changes made in the software, can TiVo afford to change its opinion to match E*'s argument?


----------



## Curtis52 (Oct 14, 2003)

p 458 Barquist (Dish) - Rhyne (Dish)

Q NOW YOU, DR. RHYNE, TOOK THE POSITION AT TRIAL THAT IN THE ECHOSTAR DVRS AT THAT TIME, PID FILTERING WAS PARSING. DO YOU RECALL THAT? 
A YES. 
Q AND WHAT WAS TIVO'S REACTION WHEN YOU GAVE THAT TESTIMONY? 
A MR. IANCU, IN CROSS EXAMINATION, DISAGREED WITH ME. 
Q NOW, DID THE JURY ACCEPT YOUR POSITION ABOUT THE PID FILTERS IN THE ORIGINAL PRODUCTS? 
A NO. 
Q HOW DO YOU KNOW THAT? 
A IF THEY HAD ACCEPTED MY POSITION WHICH WAS THAT A PID FILTER ALONE COULD SATISFY THE PARSING LIMITATION OF CLAIMS 31 AND 61, THEN I BELIEVE THEY WOULD HAVE FOUND AT LEAST INVALIDITY BASED ON -- 
MR. CHU: YOUR HONOR, THIS IS REALLY THREE LAYERS OF SPECULATION ABOUT WHAT THE JURY WAS THINKING, AND THAT IF THIS HAPPENED THEN THEY WOULD HAVE FOUND INVALIDITY. 
THE COURT: I UNDERSTAND, BUT THEY SEEM TO WANT TO GO DOWN THIS PATH, SO I GUESS WE ARE GOING TO TAKE ALL THIS TIME DOING SO. 
MR. CHU: OKAY. 
THE COURT: SO I AM GOING TO OVERRULE IT. 
MR. CHU: CAN I HAVE A RUNNING OBJECTION TO ALL OF THIS? 
THE COURT: YES. I MEAN, OBVIOUSLY ALL WE KNOW IS WHAT THE JURY VERDICT WAS. WE DON'T KNOW EXACTLY THE THOUGHT PROCESS OF THE JURY. 
MR. BARQUIST: OF COURSE, YOUR HONOR. 
MR. CHU: SO I DO HAVE A RUNNING OBJECTION -- 
THE COURT: YES, YOU HAVE A RUNNING OBJECTION. 
MR. CHU: -- ON IRRELEVANCE AND FOUNDATION, AND OTHER GROUNDS AND SPECULATION? 
THE COURT: YOU MAY CONTINUE. 
Q (BY MR. BARQUIST) HOW DO YOU KNOW WHETHER THE JURY ACCEPTED YOUR POSITION ABOUT PID FILTERING AS EXPRESSED AT THE TRIAL? 
A WELL, THERE WERE TWO OPPOSITE POSITIONS PRESENTED TO THEM. MY POSITION WHICH WAS THAT PID FILTERING COULD MEET THE PARSING LIMITATION, AND DR. GIBSON'S POSITION WHICH WAS THAT PID FILTERING WAS USED IN ANOTHER PART OF THE INVENTION UNRELATED TO THE PART OF THE INVENTION THAT DID PARSING. SO THERE WERE COMPETING OPPORTUNITIES FOR THE JURY TO FIND INFRINGEMENT. AND THEY FOUND INFRINGEMENT BASED CLEARLY ON 
WHAT WAS PRESENTED TO THEM AS TO THE PID FILTERING DOING CONVERSION AND TUNING, AND NOT BEING USED TO DO PARSING. 
Q IN VIEW OF ALL THE WORK THAT YOU'VE DONE SINCE THE TRIAL AND IN EXAMINING THE NEW ECHOSTAR DESIGNS, HAS YOUR OPINION ABOUT PID FILTERING AND PARSING CHANGED? 
A YES. 

The obvious flaw is that parsing can be cited in more than one claim and can be a different kind of parsing in each place. It's the old "either/or" logical fallacy also known as "false dilemma".

It's ridiculous to conclude that in something as complex as a DVR there is only one type of analysis going on.

It's also ridiculous to claim be able to read minds.


----------



## Greg Bimson (May 5, 2003)

jacmyoung said:


> Now E* is saying no, the process has changed, we no longer view the PID filter as part of the patent claims definition.


But DISH/SATS doesn't get to make that determination.


jacmyoung said:


> Now is TiVo ready to say the same, that the "index table" is no longer the "core of the invention"? More than that, is TiVo ready to say the "index table" is irrelevant to its invention, that without that "index table" the invention will still work?


No, but it is irrelevant to infringement of claims 31 and 61. And there is no proof that the modifications no longer have an index table.


----------



## Greg Bimson (May 5, 2003)

Curtis52 said:


> The obvious flaw is that parsing can be cited in more than one claim and can be a different kind of parsing in each place. It's the old "either/or" logical fallacy also known as "false dilemma".
> 
> It's ridiculous to conclude that in something as complex as a DVR there is only one type of analysis going on.
> 
> It's also ridiculous to claim be able to read minds.


What is even more ridiculous is Dr. Rhyne testifying that Dr. Gibson did not agree that PID filtering met the parse step. Every expert made that determination.


----------



## CuriousMark (May 21, 2008)

jacmyoung said:


> No, it is like E* had a car with TiVo engine in it, they changed the engine. Can anyone tell me what does the word "core" mean?


Yes, Claim 1 is the "core" claim. It is there that the core of the invention is being discussed. It is a hardware claim. The hardware is still there, the hardware was unchanged. Dish's changes can still infringe on these non-core claims even without infringing on the core claim. PID filtering still counts in these claims, even if it does not count in claim 1, which is not being contested.

By the way, dropping the contesting of the hardware hardware claims was something DISH asked for. The judge had wanted to cover them in this hearing, but TiVo agreed to drop them in order to keep Dish from delaying this hearing while Dish appealed their inclusion.


----------



## Curtis52 (Oct 14, 2003)

The appeals court removed the so called "core of the invention" claim yet let the infringement ruling and injunction stand. I defer to their wisdom. They knew about the claims preclusion doctrine and knew that there is infringement if even a single claim is infringed ("core" or not).


----------



## jacmyoung (Sep 9, 2006)

Curtis52 said:


> The appeals court removed the so called "core of the invention" claim yet let the infringement ruling and injunction stand. I defer to their wisdom. They knew about the claims preclusion doctrine and knew that there is infringement if even a single claim is infringed ("core" or not).


Show me where the appeals court "removed the so called 'core of invention' "? Are you saying the hardware claims are the "core of the invention"? That was not what TiVo was saying, let's not put words in TiVo's mouth.

The "core of the invention" is how TiVo's DVR technology "parses" in order to achieve DVR trickplays, to do so an "index table" method is used, and this is the core of the invention, using that "index table" as an essential part of the "parsing".

What the appeals court removed was part of the patent claims that were about 50% of the remaining description of that invention, and let only the other half of the description of the invention stand.

What TiVo now is saying whatever remains as the only description of this invention, has nothing to do with the "index table" parsing method, which of course as I said above, for this argument to be valid, TiVo must also admit that no indexing is necessary, only by combining the PID filter and a hard drive, somehow somewhere magically DVR trickplays will occur.

One can of course believe it is possible, but then again, the court will try to answer this question, what will a person of ordinary skill in the field of the DVR technology tell the court, after reading the above scenario, whether such invention could possibly be a valid one?

If the answer is not, how about returning E* that $104M?

Now can you do us a big favor Curtis52, it is not that difficult to just post E*'s opening statement, is it?


----------



## jacmyoung (Sep 9, 2006)

Curtis52 said:


> p 458 Barquist (Dish) - Rhyne (Dish)
> 
> Q NOW YOU, DR. RHYNE, TOOK THE POSITION AT TRIAL THAT IN THE ECHOSTAR DVRS AT THAT TIME, PID FILTERING WAS PARSING. DO YOU RECALL THAT?
> A YES.
> ...


Whatever that "parse" may mean, in whatever the claim it may appear, as long as it is logical to think that the term "parse" may have something to do with the "core of the invention", i.e. that "index table", that will be enough in a colorable difference analysis.

Again, it is the doubt, the possibility that is at issue, not whether to confirm if infringement still exists.


----------



## Curtis52 (Oct 14, 2003)

Appeals court:

"TiVo is correct that the specification describes the process of indexing data. Both the specification and the text of claims 1 and 32 make clear, however, that indexing occurs after, and in addition to, the separation of the incoming data into distinct video and audio buffers. "

If the indexing happens after the PID filtering and subsequent storing of data into buffers then PID filtering isn't indexing.


----------



## scooper (Apr 22, 2002)

Curtis52 said:


> Appeals court:
> 
> "TiVo is correct that the specification describes the process of indexing data. Both the specification and the text of claims 1 and 32 make clear, however, that indexing occurs after, and in addition to, the separation of the incoming data into distinct video and audio buffers. "
> 
> If the indexing happens after the PID filtering and subsequent storing of data into buffers then PID filtering isn't indexing.


Which means that PID filtering is NOT parsing.


----------



## Greg Bimson (May 5, 2003)

jacmyoung said:


> Whatever that "parse" may mean, in whatever the claim it may appear, as long as it is logical to think that the term "parse" may have something to do with the "core of the invention", i.e. that "index table", that will be enough in a colorable difference analysis.


Since when is "core of the invention" a defense? The issue here is colorable difference between the adjudged infringing DVR's and the modified DVR's, *with respect to claims 31 and 61*. The "core of the invention" has nothing to do with it.

Barton testified the Media Switch was the "core of the invention". However, that was in the hardware claims. The software claims are different, and infringement was found against those claims.


----------



## Greg Bimson (May 5, 2003)

scooper said:


> Which means that PID filtering is NOT parsing.


But only on claims 1 and 32. PID filtering meets the step limitation on claims 31 and 61, according to ALL FIVE expert witnesses.


----------



## Curtis52 (Oct 14, 2003)

Greg Bimson said:


> But only on claims 1 and 32. PID filtering meets the step limitation on claims 31 and 61, according to ALL FIVE expert witnesses.


Which reinforces that the parsing in the software claims is not the same parsing that is in the hardware claims. The system works. All is right with the world.


----------



## scooper (Apr 22, 2002)

Greg Bimson said:


> But only on claims 1 and 32. PID filtering meets the step limitation on claims 31 and 61, according to ALL FIVE expert witnesses.


Explain how it can't meet it for one or two claims, but it DOES meet for one or two different claims. TO me - if it doesn't meet the requirements for ALL claims, then it can't meet them for ANY claims.


----------



## Greg Bimson (May 5, 2003)

scooper said:


> Explain how it can't meet it for one or two claims, but it DOES meet for one or two different claims. TO me - if it doesn't meet the requirements for ALL claims, then it can't meet them for ANY claims.


Because of claim differentiation.

Just because something may parse in one claim does not mean it must parse exactly the same in another. It is why the claims stand alone.


----------



## scooper (Apr 22, 2002)

Greg Bimson said:


> Because of claim differentiation.
> 
> Just because something may parse in one claim does not mean it must parse exactly the same in another. It is why the claims stand alone.


Sorry - according to you - "Parsing is parsing". Want to try again ?

If there is ANYTHING about the law - it has to be consistent. If it isn't, then you get disagreements and essentially chaos - rendering it moot. This patent has to be consistent within itself. You can't pick and choose meanings.


----------



## Greg Bimson (May 5, 2003)

Because the "index file" is the analysis/parse step in the Hardware Claims. Meanwhile, during the jury trial, all FIVE experts agreed that PID filtering met the analysis/parse step in the SOFTWARE Claims.

Different parsing, but still parsing.


----------



## deaincaelo (Feb 5, 2009)

at this point its the both or either debate

tivo says, and always said, that both the pid filter and the broadcom chip parse.

echstar said, and always said, either the PID filter or the broadcom chip parse. they originally said it was the PID filter and NOT the broadcom chip. 

the jury said the Broadcom chip parses, but didnt declare the pid filter as the parser.

therefore, OF COURSE echostar says the PID filter doesnt parse now. they still believe that the different devices are, well, different.

if A or B and B= true then not A. 

i'ld also like to touch on the 4 million adjucated DVRs. as long as echostar is allowed to scrap them for parts, and they are identical physically and with software to the newly manufactured dvrs they should be treated the same.


----------



## Greg Bimson (May 5, 2003)

deaincaelo said:


> the jury said the Broadcom chip parses, but didnt declare the pid filter as the parser.


No, the jury said nothing of the sort. The jury simply found literal infringement of the Hardware Claims (reversed and remanded by the Court of Appeals) and infringement under the doctrine of equivalents against the Software Claims. That's all.

I'm still trying to figure out why anyone would like to argue that ALL FIVE EXPERT WITNESSES testified that the PID filter did the parsing for the Software Claims. In the end, it will be Judge Folsom that makes the decision regarding colorable difference and infringement. However, the only argument to avoid infringement OR colorable difference must depend upon a DISH/SATS expert that had to recant his jury testimony.


----------



## Curtis52 (Oct 14, 2003)

The PID parser is inside the Broadcom chip in the Broadcom DVRs and inside the ST Microelectronics chip in the 50X DVRs.


----------



## Curtis52 (Oct 14, 2003)

deaincaelo said:


> the jury said the Broadcom chip parses, but didnt declare the pid filter as the parser.


There were no such options on the jury verdict form.


----------



## dfd (Aug 29, 2008)

Curtis52 said:


> There were no such options on the jury verdict form.


Are you sure?

Wasn't the E* expert testifying about all things that the jury did?

Either they put that in the 'official jury report' or E*'s supporters have ESP.


----------



## jacmyoung (Sep 9, 2006)

Let's again review claims 31 and 61:



> A process for the simultaneous storage and play back of multimedia data, comprising the steps of:
> 
> [1] providing a physical data source, wherein said physical data source accepts broadcast data from an input device, *parses* video and audio data from said broadcast data, and *temporarily stores said video and audio data*;
> 
> ...


Now what is that "said video and audio data" to be temporarily stored and extracted?

According to TiVo, the old E* design did the following:

The PID and the MPEG processor together met the definition of the "physical data source" because the PID parsed the incoming data, the MPEG processor also parsed and identified the time markers in the data coming from the PID filter. The MEPG processor then built an index table out of such parsed data that contained the time markers. And that index table was temporarily stored in a buffer, and later used for DVR trickplays. BTW, it was undisputed the above was all done before the TV signal was recorded onto the hard drive. Now one can see why that "index table" was relevant, because it was identified as that "said video and audio data" that was first parsed, then stored, and later extracted.

E * now says, the new software no longer identifies any time markers, and no longer builds any index table out of such parsed data. The data as parsed by PID goes straight to the hard drive for storage... And this difference of process is more than colorable.

TiVo says, but the above claims limitations do not mention "index", so index table is irrelevant to claims 31 and 61, the change is irrelevant to them.

And TiVo also argues, that since the PID filter still parses, therefore the PID filter now meets the above step, all of it.

Really? I read the above steps over and over, I swear there are more than just the word "parse" in them. Am I not capable of reading it right?

According to the above steps, that "physical data source" also "temporarily stores the said audio video data", am I correct or not?

And during the jury trial, TiVo said the "index table" was the "said audio video data" that was "temporarily stored" and later used ("extracted") to perform DVR trickplay.

If TiVo is right that the "index table" is irrelevant, then what is relevant? There has to be something that can resemble that "said audio and video data" that must be "temporarily stored" by that "physical data source", isn't it?

So please tell us what that "said audio video data" is now? Because in the TiVo's invention, such item is the "core", used to perform DVR trickplay.

TiVo cannot just say the "index table" is irrelevant, if so, please tell us what replaced it so it can now again be temporarily stored, and later extracted/used for DVR trickplay, and doing so before the programming is recorded onto the hard drive BTW.

Did TiVo try to do that? Of course not, because TiVo knows that PID filter stores no such data meant to perform DVR trickplay. All TiVo can do is to try to pin the guilt on those E* witnesses who back then admitted that the PID filter was "part of the physical data source" and since the PID filter did parse, it met the "parse" definition. But as I have pointed out, "parse" is not the only construction in that step.

*"Parse" alone cannot meet the above step.*


----------



## Greg Bimson (May 5, 2003)

jacmyoung said:


> Really? I read the above steps over and over, I swear there are more than just the word "parse" in them. Am I not capable of reading it right?





> A process for the simultaneous storage and play back of multimedia data, comprising the steps of:
> 
> [1] providing a physical data source, wherein said physical data source accepts broadcast data from an input device, *parses* video and audio data from said broadcast data, and *temporarily stores said video and audio data*;
> 
> [2] providing a source object, wherein said source object *extracts video and audio data from said physical data source*;


When did DISH/SATS make this argument? DISH/SATS has only ever stated the DVR's no longer "parse" and that the DVR's no longer have "automatic flow control". I have never seen an argument from DISH/SATS that they no longer have a "source object".


----------



## Curtis52 (Oct 14, 2003)

p 512 Chu (TiVo) - Rhyne (Dish)

SIR, WITH RESPECT TO THE 50X BOXES, THE ONLY ARGUMENT YOU PUT FORWARD AS TO WHY THERE ARE MORE THAN COLORABLE DIFFERENCES AND WHY THEY DO NOT INFRINGE RELATES TO YOUR INTERPRETATION OF THE PARSING LIMITATION WHERE YOU SAID INDEXING AND START CODES WERE REMOVED, IS THAT FAIR? 
A AS LONG AS YOU SAY BOTH INDEXING AND START CODE, THAT'S A FAIR STATEMENT. 
Q THANK YOU. 
MR. CHU: NO FURTHER QUESTIONS.


----------



## jacmyoung (Sep 9, 2006)

Curtis52 said:


> p 512 Chu (TiVo) - Rhyne (Dish)
> 
> SIR, WITH RESPECT TO THE 50X BOXES, THE ONLY ARGUMENT YOU PUT FORWARD AS TO WHY THERE ARE MORE THAN COLORABLE DIFFERENCES AND WHY THEY DO NOT INFRINGE RELATES TO YOUR INTERPRETATION OF THE PARSING LIMITATION WHERE YOU SAID INDEXING AND START CODES WERE REMOVED, IS THAT FAIR?
> A AS LONG AS YOU SAY BOTH INDEXING AND START CODE, THAT'S A FAIR STATEMENT.
> ...


Precisely! The whole point of indexing was to have a place to store the time markers ("start codes") temporarily so such info may be later "extracted" to perform DVR trickplay.

I am curious why Mr. Chu had no further question at that point? Did he feel very comfortable that the words "indexing" and "start codes" were not present in claims 31 and 61?

Did he forget the "indexing" and the "start codes" both refer to "the said video and audio data"?


----------



## jacmyoung (Sep 9, 2006)

Greg Bimson said:


> When did DISH/SATS make this argument? DISH/SATS has only ever stated the DVR's no longer "parse" and that the DVR's no longer have "automatic flow control". I have never seen an argument from DISH/SATS that they no longer have a "source object".


Which is why I have at one time gently asked Curtis52 he could be troubled to post a few E*'s Q/A sessions and the E*'s opening statement


----------



## jacmyoung (Sep 9, 2006)

Curtis52 said:


> Anyone that doesn't understand what a PID filter does can look at Fig. 3 of the patent and the associated text.
> 
> These are the items in the patent that Judge Folsom specifically referred to in the claim construction of the word "parses" in the software claims.


The above patent says: "...for accurate playback of the signal," of course it does, for live signal playback. Nothing in that above PID patent was referring to any DVR playback or DVR trickplay, why, it pre-dates any DVR patent. When the PID came out, it was long before the DVR concept ever existed.

But you just asked a very good question.

If the above patent has anything to do with DVR trickplay, then that PID patent may be used as a part of "prior art" to invalidate TiVo's patent, because the PID patent surely pre-dated TiVo's patent.

I found it funny TiVo actually had the ball to show a "prior art" and tried to prove that "prior art" was the exact same thing as what TiVo's claims 31 and 61 have described, then pointed to the court that such was the "only thing" TiVo needed to prove infringement.

When a "prior art" alone meets the definition of a later "art" such as TiVo's patent, the "prior art" should make the "later art" obvious and invalid.

Ok, after re-reading Curtis52, I don't think TiVo was referring to the PID patent, rather Curtis52 was I did not think TiVo would dare to do that.


----------



## Curtis52 (Oct 14, 2003)

jacmyoung said:


> The above patent says: "...for accurate playback of the signal," of course it does, for live signal playback. Nothing in that above PID patent was referring to any DVR playback or DVR trickplay, why, it pre-dates any DVR patent. When the PID came out, it was long before the DVR concept ever existed.
> 
> But you just asked a very good question.
> 
> ...


Ummm... It's TiVo's DVR patent I was quoting.


----------



## scooper (Apr 22, 2002)

Curtis52 said:


> Ummm... It's TiVo's DVR patent I was quoting.


Does it really matter ? Tivo doesn't hold the patent on PID filters, and they were in use long before the DVR concept was a gleam in anybody's eyes. To point to a PID filter and use that as the justification as "they still infringe" is silly, at best.


----------



## scooper (Apr 22, 2002)

Curtis52 said:


> They did it before. They still do it. There's no change. There's nothing silly about that.


Are you trying to expand Tivo's '389 patent to cover all DBS receivers as well ?

I repeat - to use PID filter as the justification for infringement is silly at best. Tivo is grasping at straws with that one.

And if the judge agrees with Tivo's assertion - he should be impeached and thrown out of office as well for gross incompetence.


----------



## Curtis52 (Oct 14, 2003)

What expansion? Fig. 3 and the text describe a PID filter. 

There's buffers and hard drives in TiVo's patent too. Funny, I don't see anyone finding that somehow out of place. The items in patents are common everyday things. It's the combinations that are patented. This has been explained a dozen times.

Patents are required to be detailed enough that someone familiar with the art can build one without undue experimentation. It's a requirement.


----------



## scooper (Apr 22, 2002)

Curtis52 said:


> It's the combinations that are patented.


I believe you should also include "and the order that operations are performed in" to the "It's the combinations.." phrase, then I could agree with it.


----------



## Greg Bimson (May 5, 2003)

scooper said:


> I believe you should also include "and the order that operations are performed in" to the "It's the combinations.." phrase, then I could agree with it.


Yet unless the patent claims specify an ordered operation, it doesn't matter when the element is performed.

And it is impossible for the patent claims to be expanded to all DBS receivers, as they simply don't have a "source object", "transform object" and the other one.


----------



## scooper (Apr 22, 2002)

Given the way the '389 patent is written - I'd say it's "order dependent".


----------



## jacmyoung (Sep 9, 2006)

Curtis52 said:


> ...Patents are required to be detailed enough that someone familiar with the art can build one without undue experimentation. It's a requirement.


The question is, if, and only if, claims 31 and 61 describe an art which includes a PID filter, and a hard drive, together in an MPEG receiver, without disclosing that indexing method, can a person of ordinary skill in the field build one *to perform DVR trickplay* without undue experimentation? Can it even be done?

We know the PID filter does not identify the "start codes" and does not store any of such "start codes", we know a hard drive only save whatever it is thrown at. By disclosing only these two items, do you honestly believe someone of *ordinary skill* will be able to produce a functional DVR that can playback a saved program, pause it, jump to desired locations, skip forward or back at certain time intervals, go forward or backward at various speeds, stop at any part of the show, remember the location, and then allow the resumption of playback in a later time...?

You see only with that "core of the invention", that "indexing" which contains all the "start codes", and temporarily storing such "start codes" or "index table", and later such stored info can then be extracted for use, so can a person of ordinary skill realize, oh, that is how the DVR knows where to look for the program, where to begin playback, where to pause, where to resume, how far to skip and how fast.

Without such "parsed" "said video and audio data" that is "temporarily stored" by that "physical data source", the DVR trickplay cannot take place, at least as far as this TiVo DVR invention is concerned.

While "indexing" and "start codes" do not appear in claims 31 and 61, they are the "said video and audio data" in the real world of DVR and MPEG decoding.

Without such "indexing" and "start codes", there is no such "said video and audio data", and therefore there is no "temporarily stores" such "said video and audio data", and therefore there will be no such "soruce object" that may "extract" such stored "said video and audio data" from the "said physical data source."

From the above, can you count how many times I have mentioned the *exact terms* used in the first and second steps of the claims 31 and 61?

It does not have much to do with the order of the steps, only that can one honestly say from the above, one still beleives the two first steps in claims 31 and 61 are met?


----------



## Curtis52 (Oct 14, 2003)

Here's an even better one. The appeals court upheld infringement and the injunction just on the basis of infringed software claims. How can a DVR work without any hardware whatsoever? It's a real knee slapper. Accept the way the patent laws work.


----------



## jacmyoung (Sep 9, 2006)

Curtis52 said:


> Here's an even better one. The appeals court upheld infringement and the injunction just on the basis of infringed software claims. How can a DVR work without any hardware whatsoever? It's a real knee slapper. Accept the way the patent laws work.


Of course by virtue of the appeals court upholding the final judgment and the injunction, it affirmed the notion that *any one independent claim* in a patent is considered a *full representation of the said patented invention*, only under such assumption, can meeting a single independent claim constitute an infringement of the entire invention.

That is the same as saying the software claims are closely related to the hardware claims, in describing the single invention, the process, the constructions, the only reason they are separated into individual claims is because the inventor is allowed to try to cover all aspects of the invention, whether from the hardware perspective, or software perspective.

But they must describe a single invention. If the software claims describe an invention that is different in its method, or function, or result, then the software claims themselves should be granted a separate patent, and the hardware claims be granted their own patent.

In short, all *independent claims* in a patent application must attribute to a single invented function/method/result. The law however allows "division" of elements of a single invention to be included in a patent application, but only in the form of *dependent claims*.

So look it this way, if the hardware claims are the "core of the invention" and the software claims describe a separate division of the invention, then the software claims cannot be independent claims, rather dependent claims to the hardware claims.

Of course if this were true, the reversal of the hardware claims alone would have made E* non-infringing.

But fortunately for TiVo, the software claims are independent claims, only because *there is no "division" between the software claims and the hardware claims*, they all describe a single invention, all describe the same function/method/result, only in trying to cover different aspects of the invention. As a result, meeting just one of such independent claim may infringe on the entire, the only, the whole, the same, the very identical invention.

Now another question may be, if they all describe a single invention, how can one infringe on some but not the other independent claims?

First off, the reason the hardware claim verdict was reversed, was because of a technicality. The jury was not allowed to consider the equivalents when deciding on the hardware claims. The appeals court overturned the hardware verdict on the more restrictive literal infringement standard. Had the jury given the opportunity to consider the equivalents, there is little doubt they would have found infringement of the hardware claims by equivalents, and the appeals court would have likely upheld both the hardware and the software claims.

Secondly, a DVR consists of the hardware and the software that installed on it. It is of course possible that the DVR hardware aspect itself does not infringe, yet the software installed on it made it an infringing DVR. Conversely, it is also possible to install a new software to make it again a non-infringing DVR.


----------



## dfd (Aug 29, 2008)

jacmyoung said:


> Of course by virtue of the appeals court upholding the final judgment and the injunction, it affirmed the notion that *any one independent claim* in a patent is considered a *full representation of the said patented invention*, only under such assumption, can meeting a single independent claim constitute an infringement of the entire invention.


Patents are infringed not inventions.

Everything argued after false premises carries no weight.


----------



## Greg Bimson (May 5, 2003)

That's correct.

The invention is the ability to rewind, fast forward and pause within a DVR.

The patent is an implementation of that functionality.

The claims in the patent are elements of the functionality of the DVR with respect to the Time Warp. All claims do not require an index.


----------



## jacmyoung (Sep 9, 2006)

When an invention is patented, it first describes a product as a result of such invention. But the patentee is allowed to include other independent claims to address different "special technical features" of that invention. In describing such "special technical features" the rules state generally what may be considered a different "special technical feature", and it is either one of the following three:

1) A *process* used to manufacture such invented product; or
2) An *apparatus* (basically a design) used to carry out the above process in order to manufacture such invented product; or
3) A *process and apparatus* used to allow such product to be designed and manufactured.

In TiVo's patent, there are many independent claims and also many dependent claims, the only independent claims at issue before the jury were the two software claims and the two hardware claims.

The software claims describe a process, the hardware claims describe an apparatus.

The reason the TiVo patent is allowed to include such multiple independent claims was because the "special technical features" they each offer. The software claims describe the process of which the said DVR may be made into reality, and the hardware claims describe an apparatus specifically designed to enable such process to make such DVR into a reality.

As a result, the difference between the process, and the apparatus, is not a difference in the invented function, method, or end result (end product) of the invention, rather the difference of such features needed to make such invented product into reality.

Both the process, and the apparatus must describe the same invention, which points to the same function, method and result, only that a different aspect of the invention is further claimed so that the patent may cover the process in which such DVR may be manufactured, and also the specific design to allow such process to take place so the DVR can be made.

If one escapes the process infringement, simply because for example one argues that they do not use the process to manufacture such product, one may still be caught if one nevertheless employs an aparratus (i.e. a design) that, if used, can enable such process to make the product a reality.

And as long as one also has that apparatus (design) that also infringe, one infringes on such invention, even if the infringer may argue they do not use such process, only that design.

So you see, the different groups of the claims in no way describe their own different invented function, method and end product, they must describe the same function, method and the end product (end result), simply because one patent must cover only one invention.

Now I am back to further reinstate what I believe is the current E* argument. Please keep in mind what I explained above is not even the point here. I have tried to point out the following multiple circumstances:

1) So far we are only able to learn what TiVo had said, but not what E* had said, because Curtis52 was relunctant to post what E* had said.

2) While I had joked about such fact, I don't necessarily care what E* had said. I'd like to offer my own "independent opinions" based on the case law and standards. On the other hand TiVo folks just wait to read what TiVo has said, and follow that to the beat. The reason I want to do my own analysis is so if at some point we get to see what E* lawyers are saying, I can see how much theirs may agree or disagree with mine. If you all recall after the 5/30/08 status meeting, I made several points, and when the E* and TiVo's 06/08 filings were available, it turned out E*'s filing pretty much agreed with mine point by point.

3) On the issue of E*'s current arguement, even though Curtis52 resisted posting it, he still allowed some information to leak out. E*'s argument appears to be that the new software had *removed the "indexing" and the "start codes".* Notice the "start codes" are new, but not all that different than the "indexing" because they both represent that "said video and audio data" described in Step One of both claims 31 and 61. By removing the "indexing" and/or the "start codes", the "video and audio data" is no longer there, therefore Step One of claims 31 and 61 is no longer met.


----------



## scooper (Apr 22, 2002)

jacmyoung said:


> When an invention is patented, it first describes a product as a result of such invention. But the patentee is allowed to include other independent claims to address different "special technical features" of that invention. In describing such "special technical features" the rules state generally what may be considered a different "special technical feature", and it is either one of the following three:
> 
> 1) A *process* used to manufacture such invented product; or
> 2) An *apparatus* (basically a design) used to carry out the above process in order to manufacture such invented product; or
> ...


I noticed how Mr. Chu did not pursue that any further in that snippet, once that statement was made, as well.


----------



## jacmyoung (Sep 9, 2006)

scooper said:


> I noticed how Mr. Chu did not pursue that any further in that snippet, once that statement was made, as well.


My observation as well. Though one must admit what we have heard so far is incomplete. We don't know if Mr. Chu later said anything more on that particular point or not, all we know is Curtis52 can try to find that out and let us know More importantly, TiVo will be able to adjust their proposed FFCL in their final push for a contempt ruling, of course E* will do the same to argue against a contempt.

Off topic discussion removed

The danger of a too detailed step in a patent claim is that such step may be easily imitated without been infringed on. On the other hand if not enough detail is available, the patent application may not be granted, as Curtis52 had said, the patentee must fully disclose the art so that a person of ordinary skill in the field may use such art without undue experimentation.

The first two steps in claims 31 and 61:



> [1] providing a physical data source, wherein said physical data source accepts broadcast data from an input device, parses video and audio data from said broadcast data, and temporarily stores said video and audio data;
> 
> [2] providing a source object, wherein said source object extracts video and audio data from said physical data source;


They disclose many details and constructions:

1) A physical data source,
2) Accepts,
3) Broadcast data,
4) An input device,
5) Parses,
6) Video and audio data ("start codes")
7) Temporarily stores,
8) A source object,
9) Extracts.

If any one of the above is missing, the steps are not met. In this case, 6) is a crucial item and the link between the two steps, once gone, both steps and their link are broken/gone.


----------



## Tom Robertson (Nov 15, 2005)

<Moderator Note>
Please remember to discuss the case, not other members. (Even if you're being nice--which I thank you for.) Posts have been removed.

Cheers,
Tom


----------



## jacmyoung (Sep 9, 2006)

Thank you for the reminder, I have also edited the last post to make it more coherent.


----------



## Greg Bimson (May 5, 2003)

jacmyoung said:


> They disclose many details and constructions:
> 
> 1) A physical data source,
> 2) Accepts,
> ...


"Video and audio data" becomes "start codes". Now I've seen it all.


----------



## jacmyoung (Sep 9, 2006)

> Therefore, the court defines "parses video and audio data from said broadcast data" as "analyzes video and audio data from the broadcast data."


And what are the "video and audio data" from the broadcast data the claims are referring to?

The "start codes". Want to know why? Because if they are not "start codes" then even if the PID filter "temporarily stores" them, and later the "source object" extract them from the PID filter, the data will be useless for DVR trickplay.

In debating whether the first step is met or not, one must never forget what is the goal the claims 31 and 61 are trying to achieve, it is stated right at the very top of the claim steps, it basically says to achieve DVR trickplay.

Therefore when one reads all what the judge had agreed, one must realize eveything is under the very assumption that whatever the steps are doing is to achieve DVR trickplay.

TiVo is trying to point out that the PID filter is also "analyzing" the incoming broadcast data, and separating "interleaved audio and video data", but such data cannot be used to do DVR trickplay, because they are not the "start codes." They are simply the MPEG A/V data processed to for display on TV.

Therefore such data the PID filter is analyzing, is not the "video and audio data" "as described in the claims 31 and 61."

You will never be able to find from the PID filter patent in which the data was referred to as the "I frame", "time marker"...


----------



## jacmyoung (Sep 9, 2006)

The reason why the "video and audio data" in Step One must be the "start codes" is if you look at the claims themselves:



> A process for the simultaneous storage and play back of multimedia data, comprising the steps of:
> [1] *providing a physical data source*, wherein said physical data source accepts broadcast data from an input device, parses *video and audio data* from said broadcast data, and *temporarily stores said video and audio data*;
> [2] providing a *source object*, wherein said source object *extracts video and audio data* from said physical data source;
> [3] providing a transform object, wherein said transform object stores and retrieves data streams onto a storage device;
> ...


The above invention describes a "physical data source" "parses" the "video and audio data" out of the "broadcast data", then stores them, later the "source object" extracts such "vidoe and audio data". As a result, the "video and audio data" "parsed" out of the "broadcast data" are already not the same as the "broadcast data", or to said already not the "interleaved (broadcast) video and audio data".

But it does not end there. Later during DVR trickplay, the "source object" must obtain a buffer from the "transform object" (basically the hard drive), then the "source object" "converts" the "video data" (you know the "video and audio data" the "source object" had just "extracted" earlier, but yes now only the "video data" portion is used by the "source object") and convert such "video data" into video streams and put them into that buffer the "source object" had just "obtained" from the "transform object" (hard drive).

The question is, what is that "video data" the claims are referring to? After the "source object" "extracted" both the "video and audio data" from the "physical data source", why only the "video data" is converted?

Because that "video data" are the "start codes". The purpose of the "source object" is to match the "video data" (start codes, such as the video start frame)) against the program saved by the "transform object" (hard drive) so the program can be paused, rewinded, skipped, fast forwarded...

The "interleaved video and audio data" analyzed by the PID filter are the broadcast data, they do not identify the required "video data" (i.e. the "start codes"), therefore they are not the same as the "video and audio data" described in steps one and two, the PID filter also does not store such "video and audio data" in order for the "source object" to "extract" them for DVR trickplay.

Therefore the PID filter cannot be that "physical data source" as described in Step One.


----------



## jacmyoung (Sep 9, 2006)

BTW, TiVo does not like to touch on that "video and audio data" issue, they'd like to only focus in the "broadcast data", i.e. the interleaved video and audio data that the PID filter is "parsing." Unfortunately the "physical data source" does not parse the "broadcast data", rather the "video and audio data."

TiVo could do so had the steps one and two said something like this:

[1] providing a physical data source, wherein said physical data source accepts broadcast data from an input device, parses *said broadcast data* from said broadcast data, and temporarily stores *said broadcast data*;

[2] providing a source object, wherein said source object extracts *broadcast data* from said physical data source;


----------



## Greg Bimson (May 5, 2003)

jacmyoung said:


> BTW, TiVo does not like to touch on that "video and audio data" issue, they'd like to only focus in the "broadcast data", i.e. the interleaved video and audio data that the PID filter is "parsing."


The PID filter does NOT parse interleaved video and audio data. The PID filter DOES parse a transponder, by analyzing the information of the dozen or so channels on that transponder. The PID filter grabs the requested channel needed from that transponder, and separates the audio and video data from the data for that one channel available from the transponder.


----------



## CuriousMark (May 21, 2008)

The video and audio data contains start codes. They get saved to the hard drive as part of the video and audio data. In the workaround software the video and audio data are read from the hard drive and parsed to find the locations of the start codes in the identical manner they would have if done before storage. It is the same step, different order, same step. The start codes help build the wtt file and help define the average number of bytes between start codes (the statistics). These items can be thought of as an index. None of these things go away, they got moved, but they did not go away, saying that they do is just sleight of hand.


----------



## jacmyoung (Sep 9, 2006)

CuriousMark said:


> The video and audio data contains start codes. They get saved to the hard drive as part of the video and audio data. In the workaround software the video and audio data are read from the hard drive and parsed to find the locations of the start codes in the identical manner they would have if done before storage. It is the same step, different order, same step. The start codes help build the wtt file and help define the average number of bytes between start codes (the statistics). These items can be thought of as an index. None of these things go away, they got moved, but they did not go away, saying that they do is just sleight of hand.


This is why I said before TiVo should let you be the one to explain to the court, because TiVo does not argue like you do, for a good reason, they know they cannot possibly convince the judge they are the same method.

The bottomline is:

There are changes in the software, one of the changes is the new software no longer accepts the broadcast data then parses the "start codes" out of the broadcast data then temporarily stores such "starts codes". Yes it still parses out the "start codes" some time during the DVR trickplay, but it does not parse them from the "broadcast data" while "accepting" such incoming "broadcast data" from that "input device" which "accepts" "live" broadcast data.

The old software did that, by the PID filter and the MPEG processor together, as identified by TiVo. Which was how they got E* to admit the PID filter was part of the "physical data source."

But due to the change, E* is saying the PID filter is no longer that "physical data source", in fact the "physical data source" no longer exists because for it to exist, it must "parse" out the "video (video start codes) and audio (audio start codes) data" and then store them, so the "source object" can later during the DVR trikcplay, "extract" such codes, and then convert the "video codes" (not the audio codes) into some video streams and fill such video streams in the buffer obtained from the "transform object."

TiVo on the other hand believe it or not is using the same line of argument. TiVo said back then the "indexing" (building indices using the "start codes") method was the "core of the invention", by the definition of "core" it meant that was the "only" method, because there was only one "core", TiVo did not say there were two "cores".

Now TiVo is saying, there in fact existed more than one "core method" in its invention, one method may be called the "indexing method" depicted by the hardware claims. But there is another method depicted by the software claims, let's call it the "PID method", and now this "PID method" alone, on its own, may achieve the same DVR trickplay without any of that "indexing method" at all, basically saying the "start codes" are irrelevant to the invention. Only then TiVo may convince the judge the changes made by the new software is merely colorable.

The court must decide who to agree. In making his decision, the judge must also be aware that E* only needs to establish the doubt whether the "PID method" still infringes on TiVo's patent, but TiVo must prove with clear and convincing evidence that the "PID method" is now TiVo's "core of the invention", or at least one of the "cores of the invention" (though I doubt the "two-core" argument will fly, so it has to be the "indexing method" is irrelevant to the invention, only the "PID method" is now relevant to the invention), and since E's new software still uses such "PID method", it still infringes.

That will be the decision the court must make. In the colorable difference analysis, it is not how good TiVo's story is, rather as bad as E*'s story might be, does it nevertheless put some doubt in the judge's mind?

Based on what I have seen so far, TiVo's story does not even hold up. Two "core methods" in one invention, one relevant at one time but not now, just doesn't cut it.


----------



## Curtis52 (Oct 14, 2003)

Different independent claims cover different things. In fact, it's a requirement.

There is no requirement that independent claims cover the same things. In fact, it isn't allowed.

There is no requirement that independent claims stand alone to provide a complete workable design. In fact, an apparatus can be in one claim and software in another.

There is no requirement that both the hardware claim and the software claims be infringed simultaneously to find infringement. in fact, the appeals court said that Dish infringed on the software claims alone even though there is no way a DVR can work without hardware.

The appeals court said:


> *The two "hardware claims" at issue in this case relate to the process and
> apparatus used to effect time shifting according to the invention. * The two "software claims" relate to the software process and apparatus used in the invention.


Even though Dish didn't follow the claim steps necessary to do time shifting per the invention, the appeals court said it didn't matter. They still followed the independent software claims so infringement was found.


----------



## jacmyoung (Sep 9, 2006)

Curtis52 said:


> ...Even though Dish didn't follow the claim steps necessary to do time shifting per the invention, the appeals court said it didn't matter. They still followed the independent software claims *[process and apparatus used in the invention]* so infringement was found.


I have added the necessary words to make the statement accurate.

You see even by your own discovery, they must all go to the heart of the question, what is the *invention* about? Is "time shifting" unrelated to the invention now? Isn't that the same as saying all E*'s MPEG receivers must infringe, DVR or not? Because as we know all E*'s receivers have the PID filter, and the non-DVRs do not "time shift."

Is it "convincing" for TiVo to say at one point, that the "core of the invention" was that "indexing" but now says but "indexing" is "irrelevant" to the invention?

If the answer is no, then did TiVo prove with clear and convincing evidence?

Or put it another way, Tivo is trying to convince the court that the software claims depict a process and apparatus used in the invention that are *irrelevant* to the "indexing" nor "time shifting", if so, please tell us what kind of things are they related to? Without "indexing" and "time shifting", can DVR trickplay take place?

While we have always disagreed on the infringement issue, I think everyone here is of the same agreement that "indexing" is necessary for DVR trikckplay, and I have little doubt we all agree "time shifting" is essential to DVR trickplay. If so, "indexing" is not irrelevant, and "time shifting" as you pointed out to be essential to the hardware claims, must also be essential to the software claims, else there is no DVR.


----------



## Curtis52 (Oct 14, 2003)

The appeals court said that it wasn't necessary to infringe both the time shifting claims (the hardware claims) and the claims for simultaneously recording and playing back the audio and video data (the software claims) which was true anyway. They are independent claims. The time shifting claims aren't a part of finding ongoing infringement. Only the software claims are being considered. That's what they infringed before and that's what they infringe now. The time shifting claims are irrelevant.


----------



## jacmyoung (Sep 9, 2006)

Curtis52 said:


> ...The time shifting claims are irrelevant.


What are "time shifting claims?"

Let's try to use your own words for a minute:



> Even though *Dish didn't follow the claim steps necessary to do time shifting per the invention*, the appeals court said it didn't matter. They still followed the independent software claims [process and apparatus used in the invention] so infringement was found.


In other words, the justification in your mind why the appeals court reversed the hardware claims was that E* didn't follow the [hardware] claims steps necessary to do *time shifting* per the invention.

So far so good?

Now follow the same line of logic provided by the appeals court, E* now says:

E*'s new software no longer follows the software claims necessary to do *indexing (i.e. using the "start codes")* per the invention. Therefore they no longer infringe on the software claims. What do you think so far?

Oh wait, according to TiVo, "indexing" is irrelevant to the software claims, because the word "indexing" or "start codes" for that matter do not appear in the software claims limitations.

But wait, the term "time shifting" does not appear in the hardware claims either, how dare the appeals court use it to justify their reversal of the hardware verdict? Should E* be held at a much higher standard than the appeals court?

And furthermore, in this contempt proceeding, remember E*'s burden of proof is less than in the previous trial. Meaning everything being equal, it should be much easier for the appeals court to reverse the software claims verdict than to reverse the hardware claims verdict back then, if Judge Folsom's verdict still ends up founding the software claims infringed.


----------



## Curtis52 (Oct 14, 2003)

jacmyoung said:


> What are "time shifting claims?"


Appeals Court:


> *The two "hardware claims" at issue in this case relate to the process and apparatus used to effect time shifting according to the invention. *


----------



## Greg Bimson (May 5, 2003)

jacmyoung said:


> E*'s new software no longer follows the software claims necessary to do indexing (i.e. using the "start codes") per the invention.


Again, the invention may have called for "start codes", but claims 31 and 61 of the Time Warp patent do not.

A patent claim can describe part of an invention. The entire patent can describe an invention, and there could be more to the product than just the invention. If the patent only contained one claim that was the entire embodiment of the invention, then this would not be an issue.

Indexing is mentioned in the Hardware Claims. It is not mentioned in the Software Claims. Therefore, any argument regarding "indexing" or "start codes" is a strawman, as neither are mentioned in the Software Claims of the patent.

There is no sense arguing that "the invention" requires an index. "The Patent" is the invention, and "indexing and start codes" are not in the infringed Software Claims.


----------



## jacmyoung (Sep 9, 2006)

> Both the specification and the text of claims 1 and 32 make clear, however, that indexing occurs after, and in addition to, the separation of the incoming data into distinct video and audio buffers.


And



> This says that the indexing in the hardware claims doesn't happen as part of the parsing in claim 31. In claim 31, the parsing happens before the audio and video data is stored in buffers, not after.


Realize that word "indexing" is not even mentioned in the two hardware claims? So the first question is why was the appeals court even discussing the "indexing?" How could the appeals court even use the "indexing" word? It is irrelevant to the two hardware claims because the word "indexing" never appeared in the two hardware claims.

Secondly, while the appeals court said the "indexing" occurred after the separation of the incoming data into distinct video and audio buffers, it recognized the "indexing" was still done right after the incoming data were put into distinct video and audio buffers, in fact TiVo said so, in order to prove E*'s old DVRs did not physically separate the A/V data, only logically, by the use of "indexing."

You see it was TiVo who used the word "indexing" which does not exist in the two hardware claims, to try to prove E* infringed, and while the appeals court did not agree with TiVo, they did so not by saying, but the word "indexing" was not in the claims, therefore it was "irrelevant," rather the word "indexing" referred to a "logical separation", it did not change the fact the E* DVRs did not physically separate the A/V data, so they did not infringe on the hardware claims.

Now we can see why TiVo may not say but "indexing" is not mentioned in the software claims therefore it is not "relevant" to the software claims and not "relevant" to the invention, can't we? What you mean only TiVo can use that "irrelevant" word but not E*?

But then you conveniently forgot the E*'s current assertion, the "start codes." The "indexing" argument was initially used in E*'s pre-5/30/08 status meeting, nearly a year ago. The current E* argument is the PID filter does not parse out the "start codes" therefore cannot be that "physical data source." The PID filter only "parses" the "broadcast data", it cannot "parse out" the "video and audio data" (the start codes) from the "said broadcast data."

Those "start codes" are critical for the software claims to work, because such start codes must be first parsed out by the physical data source, then temporarily stored in the buffers, then the source object can extract such start codes, and then it coverts only the video part of such start codes data, and converts such video start codes into video streams, then fills such video streams in that buffer obtained from the transform object for DVR trickplay.

But the PID filter in E*'s new design simply does not parse out such "start codes", period, so many steps in the software claims simply cannot be met.


----------



## jacmyoung (Sep 9, 2006)

Curtis52 said:


> Start code detection is done by the media switch which is covered by the hardware claims. Figure 4 identified everything in the media switch.
> 
> Note that this is not the same parser mentioned in the software claims. The media switch is downstream of the parser that tunes to a channel and separates the audio and video into buffers.


What do you think is the "said video and audio data" in the software claims then? It most certainly is not the "said broadcast data" isn't it?

E* said the "said video and audio data" is that "start codes" and the PID filter does not parse out such data, what was TiVo's response? You have the full transcript, maybe you can offer some info no that?

If TiVo is simply silent on that, then E*'s assertion should prevail, what do you think?

Whatever we say is not going to make any impression on the judge, rather what E* says and what TiVo says.


----------



## Greg Bimson (May 5, 2003)

jacmyoung said:


> What do you think is the "said video and audio data" in the software claims then? It most certainly is not the "said broadcast data" isn't it?


The broadcast data is the dozen or so channels on a single transponder, or in the case of the OTA HD DVR's, the broadcast data is the entire HD channel stream, which may contain a few sub channels and PSIP guide information, amongst other things.

The "video and audio data" is the channel broadcast.


----------



## jacmyoung (Sep 9, 2006)

Greg Bimson said:


> The broadcast data is the dozen or so channels on a single transponder, or in the case of the OTA HD DVR's, the broadcast data is the entire HD channel stream, which may contain a few sub channels and PSIP guide information, amongst other things.
> 
> The "video and audio data" is the channel broadcast.


Did TiVo say that or was it only your opinion?

I want to know what TiVo said about what was that "said video and audio data."


----------



## jacmyoung (Sep 9, 2006)

Curtis52 said:


> Figure 3 that judge Folsom liked so much shows the interleaved audio and video of the TV program being separated by the parser in the software claims into a separate video buffer (308) and a separate audio buffer (309). The TV program is the input to the parser and is also the output of the parser as separated audio and video.
> 
> At trial:
> Q (BY MR. CHU) QUESTION: DO ALL OF THE ECHOSTAR PRODUCTS HAVE A PHYSICAL DATA SOURCE?
> ...


And this is quoted from your 2/17/09 hearing transcript?


----------



## Curtis52 (Oct 14, 2003)

jacmyoung said:


> And this is quoted from your 2/17/09 hearing transcript?


Yes


----------



## dfd (Aug 29, 2008)

To continue the fun:

(CHU) NOW, I WANT TO ASK YOU A FOLLOW-UP QUESTION THAT RELATES
TO PART OF THIS. YESTERDAY, IN RESPONSE TO YOUR LAWYER’S
QUESTION, YOU MADE A MAJOR POINT TO MAKE SURE THAT THE WORD
PARSE BE PUT IN ITS PROPER CONTEXT SO THAT IT MEANS ANALYZE
VIDEO AND AUDIO DATA FROM SAID BROADCAST DATA. I AM
PARAPHRASING PART OF YOUR ANSWER THAT IS IN YELLOW. IS THAT
RIGHT?
A (RHYNE) YES.
Q AND WHEN YOU SQUARELY ANSWER THAT ALL OF THE ECHOSTAR
PRODUCTS HAVE A PHYSICAL DATA SOURCE UNDER THE COURT’S
CONSTRUCTION OF PARSE, YOU HAD THAT FULL PHRASE IN MIND,
CORRECT?
A AT THAT –- AT 2005 I DID.
Q THANK YOU. NOW, THE COURT’S CLAIM CONSTRUCTION IN 2005
WE HAVE SEEN IN A WRITTEN FORM, CORRECT?
A YES.
Q AND YOU DO RECALL THAT THAT CLAIM CONSTRUCTION WITH
RESPECT TO PARSE WAS NOT APPEALED TO THE FEDERAL CIRCUIT,
CORRECT?
A I DON’T RECALL THAT. I HAVE HEARD THAT.
Q AND THERE HAS BEEN NO CHANGE TO THE COURT’S CLAIM
CONSTRUCTION FROM 2005 UNTIL TODAY, 2009, IS THAT CORRECT?
A THAT’S MY UNDERSTANDING.
Q THANK YOU. ALL ECHOSTAR PRODUCTS PARSE THE MPEG STREAM.
CAN YOU FAIRLY ANSWER THAT YES OR NO?
MR. BARQUIST: YOUR HONOR, I OBJECT TO THAT QUESTION
AS VAGUE AS TO TIME.
THE COURT: WHAT TIME FRAME ARE YOU REFERRING TO?
Q (MR. CHU) WELL, LET’S ASK A BROADER QUESTION, DR. RHYNE.
IS IT FAIR, FIRST OF ALL, THAT THE TERM PARSE HASN’T CHANGED
AT ALL?
A IT’S JUST AN ENGLISH WORD. I DON’T KNOW –- I GUESS I
DON’T UNDERSTAND YOUR QUESTION.
Q AND THERE WERE PID FILTERS IN THE ECHOSTAR PRODUCTS
DURING THE JURY TRIAL, CORRECT?
A YES.
Q AND WITHOUT MY TRYING TO DESCRIBE THE EXACT FUNCTION,
THEY PERFORMED ONE OR MORE FUNCTIONS, CORRECT?
A BASICALLY ONE FUNCTION.
Q AND THERE ARE PID FILTERS IN ALL THE ECHOSTAR PRODUCTS AT
ISSUE TODAY, CORRECT?
A YES. YES.
Q AND THEY STILL PERFORM THAT FUNCTION, CORRECT?
A THAT SAME FUNCTION THAT THEY PERFORMED BEFORE. SOME OF
THEM DO IT A LITTLE BIT DIFFERENTLY, BUT THEY ARE STILL
PERFORMING THE SAME BASIC FUNCTION.
Q HARDWARE IS THE SAME THERE, RIGHT?
A THE HARDWARE, MORE OR LESS, EXCEPT FOR THE DISABLED PARTS
IN THE BROADCOM.
Q YOU WOULD AGREE THAT AT THE TIME OF THE JURY TRIAL ALL
ECHOSTAR PRODUCTS PARSED THE MPEG STREAM?
A THOSE PRODUCTS DID.
Q UNDER THE COURT’S CLAIM CONSTRUCTION?
A YES.
Q AND YOU WOULD AGREE AT THAT TIME THAT THE PID FILTERING
WAS RESPONSIBLE FOR THE PARSING?
A THAT WAS MY OPINION BEFORE THE JURY.
Q UNDER THE COURT’S CLAIM CONSTRUCTION?
A YES.
Q AND THE ONLY DIFFERENCE BETWEEN YOUR OPINION THEN AND NOW
IS THE RESULT OF THE JURY VERDICT, AS YOU JUST REFERRED TO?
A THAT’S CORRECT, THE JURY VERDICT --
Q THANK YOU.
A –- CHANGED MY OPINION.
Q DO YOU RECALL READING ANY SPECIAL VERDICT, SPECIAL
INTERROGATORIES, BASICALLY SOME QUESTIONS PUT TO THE JURY
ABOUT HOW IN THEIR MINDS THEY WERE INTERPRETING AND APPLYING
THE WORD PARSING TO THE MPEG STREAM?
A I HAVE NO RECOLLECTION OF THAT.


----------



## jacmyoung (Sep 9, 2006)

Curtis52 said:


> Yes


Really, according to another part of your 2/17/08 transcript posting a few days ago, and similar to what dfd just posted above, that was Dr. Rhyne's opinion back in 2005, and in this hearing he clearly stated that: "Changed my opinion."

How do you explain that?

Dr. Rhyne now says no, the PID filter is not the "physical data source" anymore. His opinion has since changed. Without seeing the transcript, my guess is because the "start codes" are removed?

So let me ask again, was the quote you made with the header "At Trial" a quote from 2005 or from 02/09?

Once we get this straight I will then move on with my further response, but I don't want any misunderstanding on this one.


----------



## nobody99 (May 20, 2008)

jacmyoung said:


> Really, according to another part of your 2/17/08 transcript posting a few days ago, and similar to what dfd just posted above, that was Dr. Rhyne's opinion back in 2005, and in this hearing he clearly stated that: "Changed my opinion."
> 
> How do you explain that?


As dfd provided in the transcript, Dr. Rhyne said he changed his opinion because the jury did: "THAT'S CORRECT, THE JURY VERDICT CHANGED MY OPINION." No other reason was given (and, gee, what do you know, he has a financial interest for his opinion to change).



jacmyoung said:


> I don't want any misunderstanding on this one.


That ship has long since sailed :lol:


----------



## Greg Bimson (May 5, 2003)

jacmyoung said:


> Dr. Rhyne now says no, the PID filter is not the "physical data source" anymore. His opinion has since changed. Without seeing the transcript, my guess is because the "start codes" are removed?





> Chu: And you would agree at that time that the PID filtering
> was responsible for the parsing?
> Rhyne: That was my opinion before the jury.
> Chu: Under the court's claim construction?
> ...


The only reason Dr. Rhyne's opinion changed is because of the guilty verdict.

Dr. Rhyne is trying to redefine the definition of "analyzes video and audio data from the broadcast data".


----------



## jacmyoung (Sep 9, 2006)

Greg Bimson said:


> The only reason Dr. Rhyne's opinion changed is because of the guilty verdict.
> 
> Dr. Rhyne is trying to redefine the definition of "analyzes video and audio data from the broadcast data".


Of course that means he admitted he made a mistake for admitting that the PID filter was that "physical data source" which might have in part contributed to the jury verdict. Why? Can't people make any mistake?

More importantly, is Dr. Rhyne not allowed to correct a mistake he made?

It is not that he simply said he was wrong, he also said why he was wrong back then and why he is correct now.

On that part there are two points, one quite clear and one not so much only because the TiVo folks who have the 2/09 transcript continue to refuse to provide E*'s point of view, only TiVo's point of view, which by itself is very telling.

But don't worry, as I said we can still figure out what is E* saying.

The clear point E* made was that word "indexing."

If you recall in the earlier posts Curtis52 and I touched on the appeals court decision to reverse the hardware claims verdict. During that debate TiVo used the term "indexing", *even though the two hardware claims never mentioned the word "indexing."*

According to TiVo, even if the old E* DVRs did not physically separate the video and audio data into distinct buffers, they still used that "indexing" method, which by TiVo's definition was a "logical separation" of the A/V data.

While the appeals court did not say, hey, TiVo you could not use that argument because "indexing" was not in the hardware claim limitations therefore it was "irrelevant", the appeals court did say, while TiVo was correct E*'s DVR did use "indexing" (i.e. the "logical separation"), that was not enough, the hardware claims clearly stated that physical separation into distinct buffers had to take place, and since E* was correct their old DVRs did not physically separate the A/V data, the hardware claim verdict was reversed.

But why the software claims were still met? Because the software claims do not specify any physical separation of the A/V data, instead, they describe a "logical separation" which as TiVo put it, by E*' old DVR's "indexing" they were still met.

Which is why E* now is saying, they no longer do "indexing", therefore even the "logical separation" is gone. TiVo's only response to that? But "indexing" does not appear in the claims so it is "irrelevant."

Want to guess what the court should respond to that TiVo's argument?

Now the second point is not totally clear because as I said TiVo folks still refuse to post anything E* said in the hearing, but they did leak out some info, the so called "start codes" E* is now pointing to.

It seems E* is saying the new software no longer parses the "start codes", and since the "start codes" are the "said video and audio data" stated in the software claims, the software claims are no longer met.

Now I have asked Curtis52 to tell us what was TiVo's response to that E*'s point, he has yet to tell us.

If TiVo simply had no response to that, then the court will have to adopt E*'s view. So I am patiently waiting for Curtis52 to find that out for us, what was TiVo's response to such E*'s new assertion?

Please don't tell us how you want to respond to that assertion, for example by saying but the "start codes" are not the "video and audio data." I am only interested to hear what was TiVo's response, because as I said what we say will not make any impression on the judge, it is what E* says, or what TiVo says.

TiVo can't just point out one thing E* had admitted in 2005 by mistake, and not address the current E*'s assertions, by simply ignoring them, or calling them "irrelevant", especially since it was TiVo who had made them relevant, and the appeals court agreed they were relevant.

Unless if one sincerely believes people are not allowed to make a mistake and/or not allowed to correct a mistake. If so, infringement was a mistake, and if an infringer is not allowed to correct that mistake, then why bother? What a waste of our tax dollars?


----------



## Sterling (Feb 18, 2009)

_TiVo folks who have the 2/09 transcript continue to refuse to provide E*'s point of view, only TiVo's point of view, which by itself is very telling_

How very transparent. The only telling thing is that you want to see more of the transcript. So you resort to casting dispersions.

Sorry, not taking the bait.


----------



## nobody99 (May 20, 2008)

jacmyoung said:


> Unless if one sincerely believes people are not allowed to make a mistake and/or not allowed to correct a mistake. If so, infringement was a mistake, and if an infringer is not allowed to correct that mistake, then why bother?


Hmm. So after the jury verdict, did he call up the appeals court and tell them he made a mistake before they affirmed infringement?

Yeah, didn't think so. He's a perfect match for Charlie and his Merry Band of Technology Thieves.


----------



## jacmyoung (Sep 9, 2006)

nobody99 said:


> Hmm. So after the jury verdict, did he call up the appeals court and tell them he made a mistake before they affirmed infringement?...


Are you saying there is a deadline to recognize a mistake and a deadline to correct a mistake?

The mistake was made and E* failed to recognize it and did not appeal on that point, they ended up paying the $104M price, and that was over, live and learn.

There is potentially another "mistake" E* made, actually I'd like to say the USPTO made but E* could have caught that mistake sooner. But that should not stop E* from trying to discover such mistake and try to correct it.

That other mistake is E* failed to ask the USPTO to consider the two prior art in combination to re-examine the TiVo patent's validity. Now E* caught that, and succeeded in having the USPTO to re-examine the TiVo's patent validity. It is too late to have any impact on the $104M paid, but it may have a big impact on this current fight.

It is never too late to correct a mistake.


----------



## jacmyoung (Sep 9, 2006)

Curtis52 said:


> Judge Folsom and the appeals court disagree with that statement.
> 
> The Figure 3 that Judge Folsom acknowledged described the software claim analysis of interleaved video and audio data shows the audio going to one buffer and video to another. That is separation.
> 
> ...


On the hardware claims, the appeals court reversed that, saying no, they agreed with E*, that the E* old DVRs did not separate the A/V data into "distinct buffers" because as the appeals court said, they had construed the claims constructions in a more restrictive way than the lower court. Why do people think the hardware claim verdict was reversed? Initially I thought it was because the jury was not allowed to use the equivalents, but thanks to your reminder, I looked more, and it turned out the data separation issue was the key.

On the software claims, E* is saying the "interleaved video and audio" is that "broadcast data", the "start codes" are that "said video and audio data", and they are different. While E* still does "broadcast data", they do not do the "said video and audio data", what was TiVo's response?

Besides, you still cannot answer my question, what are the TiVo's responses to the two new E* assertions? Things have changed, opinions have changed, if TiVo simply refuses to confront such change of opinion and facts, what do you think the odds of TiVo winning?

Did TiVo argue, as you did, that the "start codes" are not the "said video and audio data", rather the "said video and audio data" point to that "interleaved video and audio data" which point to the "broadcast data"? You see the problem here, if so, one must conlude the "broadcast data" are the same as the "said video and audio data." Does that make sense?

If they are the same, why gave them different definitions? Each word in the claim limitations has very important purpose and meaning, they don't just show up, or change for fun, else the patent may not be granted.


----------



## nobody99 (May 20, 2008)

jacmyoung said:


> Are you saying there is a deadline to recognize a mistake and a deadline to correct a mistake?.


No, I am saying it is far too convenient to dismiss this as a "mistake," and it seems much more likely that Dr. Rhyne is simply telling the court what Charlie's lawyers told him to say. I don't know how much more clearly I can say it,* I think he's lying.*


----------



## Greg Bimson (May 5, 2003)

jacmyoung said:


> Of course that means he admitted he made a mistake for admitting that the PID filter was that "physical data source" which might have in part contributed to the jury verdict. Why? Can't people make any mistake?


Sure people can make mistakes.

So Dr. Rhyne made a "mistake" admitting the PID filter was the "physical data source". So did four other experts. Of the five experts, three were hired by DISH/SATS. Dr. Rhyne is the only one that would change his testimony.

Which obviously means Dr. Rhyne is making a mistake now, recanting his prior testimony that matched four other experts.


----------



## CuriousMark (May 21, 2008)

jacmyoung said:


> It seems E* is saying the new software no longer parses the "start codes", and since the "start codes" are the "said video and audio data" stated in the software claims, the software claims are no longer met.


The stat codes are NOT the said video and audio data. They are components of the said audio and video data and it does not matter whether they have been looked at or not. Any claim to the contrary is purely made up. The claim that parsing is not done if the audio and video packet payloads are not opened and examined by a start code detector is the heart of Dishes argument, yes. But the extension to say that not having done so renders the data to not be audio and video data anymore, or that the said data is just the start codes themselves is ludicrous. It does not need to be answered, and in fact cannot be answered, beyond what Curtis just posted because that is the testimony you are asking for. TiVo's answer was Dr. Storer's testimony posted above that a PID filter parses.


----------



## Tom Robertson (Nov 15, 2005)

Sterling said:


> _TiVo folks who have the 2/09 transcript continue to refuse to provide E*'s point of view, only TiVo's point of view, which by itself is very telling_
> 
> How very transparent. The only telling thing is that you want to see more of the transcript. So you resort to casting dispersions.
> 
> Sorry, not taking the bait.


But you see, he does have a point. If one side of a discussion controls the excerpts of critical information, no matter how well balanced it is, that control gives the appearance of being one-sided.

That said, I do understand there was a financial cost and everyone is able to decide if the $500 is worth expending.

So the points are made, play nice, everyone should share as much as they can, and we'll all keep noodling this about until the Judge makes his rulings. (Which of course we'll noodle them too.) 

Cheers,
Tom


----------



## jacmyoung (Sep 9, 2006)

Tom Robertson said:


> ...that control gives the appearance of being one-sided...


And what was incorrect was he also said I wanted to hear more from that transcript, that is not true.

Of course I wanted to see what was TiVo's own response to E*'s assertion that the "start codes" are the "said video and audio data", I did not think the responses from Curtis52, Greg, or CuriousMark to such E*'s assertion would matter, only TiVo's response.

That is not exactly wanting to know all the more in that transcript, only what was TiVo saying on that point. But I suspect TiVo did not have a response to that E*'s assertion, therefore there is really nothing more I care to read.

Since the TiVo folks who have access to the full transcript had no problem posting everything TiVo was saying in that hearing, I thought that was not too much of a request.

Other than that, I really don't care what more were said in that hearing, as far as I am concerned, most what said were a waste of time, just like the entire 9/4/08 meeting was a waste of time, Curtis52 said so


----------



## nobody99 (May 20, 2008)

Tom Robertson said:


> But you see, he does have a point. If one side of a discussion controls the excerpts of critical information, no matter how well balanced it is, that control gives the appearance of being one-sided.


Wouldn't it be better, then, for him to just not say anything?


----------



## Curtis52 (Oct 14, 2003)

Dr. Rhyne seems to be confused about whether start code detection is in the hardware claims or the software claims.

Q (Barquist) NOW, DID TIVO MAKE ANY STATEMENTS IN CONNECTION WITH THE APPEAL OF THE VERDICT THAT YOU FOUND SIGNIFICANT TO YOUR ANALYSIS? 
A (Rhyne) I DID. AND I TOLD YOU I HAD READ THAT TRANSCRIPT AND I THINK I ACTUALLY QUOTED A PIECE OF IT ON PAGE 5 OF MY EXPERT REPORT. 
Q OKAY. 
A COULD WE BRING THAT UP? 
Q COULD WE TURN TO EXHIBIT 5008 AND PAGE 38 AND 39? THIS IS THE TRANSCRIPT OF THE APPELLATE ARGUMENT. 
A ALL RIGHT. 
Q LOOK AT LINE 18 ON PAGE 38. 
A THIS IS MR. WAXMAN, I BELIEVE, SOMEONE I DON'T THINK I'VE EVER MET. HE RESPONDED TO JUDGE BRYSON BY SAYING, THE GENIUS, THE CORE OF THIS INVENTION -- HE'S TALKING ABOUT MR. BARTON'S 
INVENTION -- IS SEPARATION AT THE COMPONENT LEVEL. THAT IS THE WAY THE CPU AND THE HIGHER PROGRAM LOGIC GETS LIBERATED 
FROM HAVING TO RUN LIKE A MANIAC UP AND DOWN THIS MASSIVE DATA STREAM EVERY TIME IT GETS A COMMAND SITTING ON A COUCH. 
THE GENIUS, CONTINUING, IS THE BUILDING OF A LOGICAL TABLE OF EVENTS THAT SAYS, YOU KNOW, AHA, THIS IS AN AUDIO 
COMPONENT. IT APPEARS AT THIS SEQUENTIAL PLACE. IT *STARTS* HERE. IT'S STORED HERE. IT'S THIS LONG. AND WHEN A COMMAND COMES IN, THE CPU ONLY HAS TO DEAL WITH THAT TABLE. AND THEY BUILD A TABLE, THEY MEANING I THINK ECHOSTAR, WE BUILD A TABLE, MEANING TIVO, AND THAT'S THE INVENTION HERE. THAT'S THE WAY IN WHICH A LOW COST, LIMITED CPU DEVICE CAN MANIPULATE THESE STREAMS THE WAY THAT THEY, I THINK AGAIN MEANING ECHOSTAR, DO IN THE INFRINGING DEVICES. 
Q SO, DR. RHYNE, IN VIEW OF THE CLAIM LANGUAGE AND THE COURT'S CONSTRUCTION OF IT AND THE POSITIONS TIVO TOOK AT TRIAL AND ON APPEAL ABOUT WHAT MET THE PARSING VIDEO AND AUDIO DATA LIMITATION, IN YOUR OPINION DO THE ECHOSTAR'S -- DO 
ECHOSTAR'S REDESIGN DVRS MEET THE PARSING AUDIO AND VIDEO DATA LIMITATION? 
A THEY DON'T. THEY NO LONGER HAVE ANY FORM OF START CODE DETECTION THAT ANALYZES VIDEO AND AUDIO DATA FROM THE 
BROADCAST STREAM ON THE PRIMARY INPUT SIDE, EXCUSE ME, BEFORE THE DISK. 
Q DO THE NEW ECHOSTAR DEVICES DO ANY ANALYSIS OF VIDEO AND AUDIO DATA BEFORE STORAGE? 
A NONE. 
Q DOES ECHOSTAR EVER CREATE ANY TABLE OR INDEX OF START CODES BEFORE STORAGE -- 
A NO. 
Q -- IN THE NEW DEVICES? 
A I'M SORRY. NO, THEY DO NOT.

The next day:

Q GOOD MORNING, DR. RHYNE. 
A GOOD MORNING, MR. CHU. 
Q YESTERDAY WHEN YOU WERE TESTIFYING IN RESPONSE TO QUESTIONS FROM YOUR LAWYER YOU MADE A REFERENCE TO ARGUMENT BY TIVO'S LAWYER BEFORE THE FEDERAL CIRCUIT. DO YOU REMEMBER THAT? 
A YES, I DO. 
Q AND I THINK YOU EVEN SAID THAT MR. SETH WAXMAN WAS MAKING THE ARGUMENT? 
A I AM NOT SURE ABOUT WHICH GENTLEMAN IT WAS. I JUST, AS I READ ALONG, I SAW A MR. WAXMAN'S NAME. 
Q AND IF I REFRESH YOUR RECOLLECTION THAT HE WAS THE SOLICITOR GENERAL OF THE UNITED STATES UNDER THE CLINTON ADMINISTRATION, DOES THAT REFRESH YOUR RECOLLECTION? 
A I HAVE NO RECOLLECTION OR PRECOLLECTION. I DON'T KNOW WHO THE GENTLEMAN WAS. I JUST RECALL AS I WAS READING THROUGH THE TRANSCRIPT THAT THERE WAS THAT NAME IN THERE. 
Q AND YOU CITED TO A PARTICULAR PART OF MR. WAXMAN'S ARGUMENT TO MAKE A POINT THAT RELATED TO INDEXING IN GENERAL. IS THAT CORRECT? 
A IT WAS WHAT IT WAS. HE WAS DESCRIBING THE GENIUS OF THE BARTON INVENTION, AND AN ASPECT OF WHAT HE TALKED ABOUT WAS *START CODE DETECTION* AND INDEXING. 
Q AND ALL I AM TRYING TO DO IS SET THE CONTEXT. THE REASON YOU WERE CITING IT IS YOU WERE USING IT TO SUPPORT YOUR OPINION AS IT RELATES TO INDEXING? 
A START CODE DETECTION AND INDEXING. 
Q AND IF YOU LOOK AT THE MATERIALS BOTH BEFORE AND AFTER THE PORTION YOU CITED, IS IT FAIR TO SAY THAT IT'S VERY CLEAR THAT THIS RELATES TO THE CLAIM TERM SEPARATING? 
A INDEXING WAS ARGUED BY YOUR CLIENT TO BE ASSOCIATED WITH SEPARATING AT THAT TRIAL. 
Q SIR, I AM ASKING -- 
A AND I DON'T RECALL WHAT WAS PRIOR TO OR AFTER THAT PARTICULAR CITE. I'D BE HAPPY TO READ IT. 
Q SO LET ME GET THIS CLEAR. YOU WERE CITING TO A SPECIFIC PART OF THE FEDERAL CIRCUIT TRANSCRIPT, AND YOU DIDN'T LOOK AT THE MATERIAL IMMEDIATELY BEFORE OR AFTER TO DETERMINE WHETHER IT WAS RELEVANT TO SEPARATING, WHICH IS A CLAIM TERM IN CLAIM 1 ONLY AND NOT A CLAIM TERM IN CLAIM 31 OR 61? YOU DIDN'T LOOK AT THE MATERIAL BEFORE OR AFTER? 
A THAT'S INCORRECT. I HAVE LOOKED AT IT. I DON'T HAVE RECOLLECTION OF EXACTLY WHAT IT SAYS TODAY. 
Q LET'S FIRST LOOK AT PAGE 38 OF THE FEDERAL CIRCUIT ARGUMENT, AND IF WE CAN PUT THAT ON THE SCREEN AND GO TO ABOUT LINE 18 AND BLOW IT UP, THE GENIUS, THE CORE OF THIS INVENTION, AT THE BOTTOM OF THE PAGE, LINE 18, THE GENIUS, THE CORE OF THE INVENTION, THAT'S WHAT YOU WERE READING, RIGHT? 
A YES, SIR. 
Q NOW, LET'S GO, WE CAN EITHER HOLD THAT OR GO TO PAGE 37 AT THE BOTTOM OF THE PAGE, LINE 23, AND LET'S HIGHLIGHT LINE 23. CAN WE BLOW THAT UP? SO IT'S VERY CLEAR THAT WHAT'S BEING DISCUSSED IS THE MEDIA SWITCH ELEMENT, WHICH IS THE FOURTH ELEMENT IN CLAIM 1 AND 32, BOTH OF THOSE ARE WHAT WE CALL HARDWARE CLAIMS,
CORRECT? 
A THAT'S WHAT WE HAVE BEEN REFERRING TO THEM AS. 
Q OKAY. NOW LET'S GO ON TO THE PAGE 38 AND LET'S LOOK AT THE TOP OF THE PAGE. YOU SEE THERE IS STILL THE DISCUSSION ABOUT MEDIA SWITCH, THE MEDIA SWITCH ELEMENT? 
A YES. 
Q AND THEN IF WE CONTINUE DOWN TO LINE 15, AFTER JUDGE BRYSON SAYS, UH-HUH, MR. WAXMAN SAYS: IT DOESN'T SAY VIDEO AND AUDIO STREAMS. IT DOESN'T SEPARATE THEM LOGICALLY OR PHYSICALLY INTO STREAMS. AND YOU RECALL FROM THE TRIAL THERE WAS AN ISSUE ABOUT THE WORD SEPARATE OR SEPARATING IN CLAIM 1, AND WHETHER IT WAS LIMITED TO PHYSICAL SEPARATION OR IT COULD ALSO BE LOGICAL SEPARATION. IS THAT CORRECT? 
A I RECALL THAT ISSUE. 
Q NOW LET'S GO TO PAGE 39, THE VERY NEXT PAGE, AND LET'S HIGHLIGHT STARTING FROM LINE 5 THROUGH LINE 9, IF WE CAN BLOW THAT UP. AND MR. WAXMAN IS SAYING: NOW THEY ARE ASKING THAT THIS CLAIM LANGUAGE OF THIS INDEPENDENT CLAIM REQUIRES THAT THE SEPARATION BE PHYSICAL, AND IT GOES ON, AND THAT WHAT THE MEDIA SWITCH DO, SEPARATE IT INTO STREAMS. DO YOU SEE THAT? 
A YES. 
Q AND MEDIA SWITCH IS ALSO A PART OF CLAIM 1, CORRECT? 
A YES.


----------



## Curtis0620 (Apr 22, 2002)

WOW! Not good for DISH.


----------



## jacmyoung (Sep 9, 2006)

I don’t see where Dr. Rhyne was confused. He basically took TiVo’s words which said the index table was the core of the invention, E* had it, and TiVo had it, so E* infringed.

What TiVo did was trying to point out that the core of invention was in reference to the hardware claims, not the software claims. Dr. Rhyne never was trying to address that, only that if TiVo said this was the core of their invention, and now this core is no longer there, Dr. Rhyne’s opinion is the difference is more than colorable. It has nothing to do with which claim, just an opinion based on some statement TiVo made during the trial.

Of course I know what TiVo was trying to say, but “indexing” is not relevant to the software claims because the word “indexing” is not in the software claims. But I think I have already pointed out earlier, it was TiVo who tried to use the “indexing” to try to prove E*’s old design infringed on the hardware claims, except that the hardware claims also have no mentioning of the word “indexing.”

So please explain why was the “indexing” relevant to the hardware claims back then, but not relevant to the software claims now?

What about the “start codes?” Do the hardware claims mention the term “start codes?” No, but TiVo had no problem raising it as an issue in the hardware claims discussion during the trial, did they?

Now E* is saying, “indexing” and the “start codes” are relevant to the invention, and therefore relevant to the software claims, just like TiVo believed the “indexing” and “start codes” were relevant to the hardware claims.

And E* is saying the “said video and audio data” in the software claims refer to the “indexing” and “start codes.” What is TiVo’s response? Oh right, but they are irrelevant to the software claims because they are not mentioned in the software claims?

The only problem is, when TiVo raised the "indexing" and the "start codes" as issues in the hardware claims discussions, the district court, and the appeals court, neither of the courts regarded the "indexing" and "start codes" as irrelevant to the hardware claims, even though the hardware claims do not mention them. What do you think the odds that the court will also not consider the "indexing" and the "start codes" irrelevant to the software claims?


----------



## Curtis52 (Oct 14, 2003)

jacmyoung said:


> What about the "start codes?" Do the hardware claims mention the term "start codes?" No


Fig 4 of the patent shows the parser (401) as part of the media switch. The media switch is in the hardware claims. It is not in the software claims. This parser is well downstream of the parsing done in the software claims.

From the patent:


> The input stream flows through a parser 401. The parser 401 parses the stream looking for MPEG distinguished events indicating the *start of video*, audio or private data segments.


----------



## jacmyoung (Sep 9, 2006)

> Fig 4 of the patent shows the parser (401) as part of the media switch. The media switch is in the hardware claims. It is not in the software claims. This parser is well downstream of the parsing done in the software claims.


Let's first understand Fig 4 depicts the invention, which describe a process explained by both the hardware claims and the software claims.

Ok, where in this figure does it show the "parser" described in the software claims that, according to you, is "well-upstream" from, but not the "media switch"?



> The *input stream* flows through a parser 401. The parser 401 parses the stream looking for MPEG distinguished events indicating the start of video, audio or private data segments.


That "input stream" (the broadcast data) is provided by that "input device", am I correct? It flows through a "parser 401", the "parser 401" parses the stream looking for "start codes." According to you, this parser is not the same as the "parser" "well upstream" of the media switch, but again do you see that "parser" "well upstream" in your figure? If so what is it called? Does it have a number?


----------



## Curtis52 (Oct 14, 2003)

jacmyoung said:


> Let's first understand Fig 4 depicts the invention, which describe a process explained by both the hardware claims and the software claims.


Figure 4 describes the media switch. The media switch is only in the hardware claims. It is not in the software claims.

From the patent:


> FIG. 4 is a block schematic diagram of a *parser* and four direct memory access (DMA) input engines *contained in the Media Switch* according to the invention;


----------



## deaincaelo (Feb 5, 2009)

Greg Bimson said:


> "Video and audio data" becomes "start codes". Now I've seen it all.


honestly, im less surprised at that then parse becomes analize, nevermind analize becomes tune.



> Charlie and his Merry Band of Technology Thieves.


people with enclosure forming lips...

honestly, i have difficulty seeing how stealing from thieves is so upsetting. since Tivo now owns technology that was in the public domain before some of us were born, they've succesfully and LEGALLY converted it. not to mention that charlie had a working prototype before tivo was incorperated- i for one see tivo as stealing technology, albeit legally.

i still think that Dr. Rhyne is working off a good-faith belief. i dont believe that tivo or echostar produced more then one witness (were they only allowed one with the time contraints?) as long as you believe that betamax doesnt infringe the tivo patent, you can come to this conclusion. unfortunately thats not the case from a plain reading of claim 31.

considering whats at stake here, this is probibly going to end with the death of one or both companies. i also think both ceo's know that. the only stratagy that makes sense for charlie is to fight until he gets a win, no matter how small, and then use that as a platform to patent the technology tivo is using and counter-sue.


----------



## jacmyoung (Sep 9, 2006)

Curtis52 said:


> Figure 4 describes the media switch. The media switch is only in the hardware claims. It is not in the software claims.
> 
> From the patent:


Did you find any figure that illustrates the "physical data source" or anything that resemble what is described in the software claims?


----------



## Curtis52 (Oct 14, 2003)

deaincaelo said:


> honestly, im less surprised at that then parse becomes analize, nevermind analize becomes tune.


PID filtering is not tuning. Tuning involves selection of RF frequency. PID filtering can't occur until after the RF frequency is selected and reception begins.


----------



## nobody99 (May 20, 2008)

deaincaelo said:


> not to mention that charlie had a working prototype before tivo was incorperated- i for one see tivo as stealing technology, albeit legally.


Absolutely, positively incorrect. Here's a post by rh15hz8 over at investorvillage that will hopefully set the record straight about the so-called prototype that DISH had.



> DISH had been working on a DVR, but they could not get it anywhere near consumer affordable. Their model was based upon a design that had ONLY ONE CUSTOMER. The US Military. And such a unit following that design cost several thousand dollars to manufacture and sell. Nowhere near the consumer pricing range. And DISH was stuck in that space until TiVo came along with a DVR based upon the Barton Media Switch. And the BMS made the unaffordable into something affordable.
> 
> DISH did not steal the DVR. They stole the consumer affordable DVR. They copied the Barton Media Switch into their own design. DISH was not even close to releasing a consumer affordable device until they had the TiVo prototype from which to copy


----------



## Greg Bimson (May 5, 2003)

deaincaelo said:


> ...as long as you believe that betamax doesnt infringe the tivo patent, you can come to this conclusion. unfortunately thats not the case from a plain reading of claim 31.


As long as one can define a "source object", a "transform object" and a "sink object" within a Betamax. It isn't there.


----------



## jacmyoung (Sep 9, 2006)

Curtis52 said:


> PID filtering is not tuning. Tuning involves selection of RF frequency. PID filtering can't occur until after the RF frequency is selected and reception begins.


Whether the PID tunes RF or not is not the subject of the debate because neither E* nor TiVo was arguing on that issue.

What I want to know is, what is the basis for you to claim there is another parser "well upstream" from the media switch?

Did you find it in one of the patent figures? Or did TiVo say so? Because if you simply made that second parser up with out TiVo saying so, well of course you have the right to do that, but I just don't think it is going to be very helpful because whatever you, Greg, CuriousMark&#8230; believe or claim, or whatever I believe or claim, will not matter, because Judge Folsom will not look at our posts to make his ruling.

So may I ask again, what did you see or read from TiVo or its patent documents that there is another parser "well upstream" from the media switch?


----------



## Curtis52 (Oct 14, 2003)

The parsing of the broadcast date in the software claims is done prior to storing the data in a buffer. The parsing in the hardware claims done by the media switch is done after data is separated into audio and video and stored in buffers.

It seems like I post this every day.

Also...



> Claim differentiation: In United States patent law, under the doctrine of claim differentiation, each claim is presumed to cover a different aspect of the invention than in each other claim.


----------



## jacmyoung (Sep 9, 2006)

Curtis52 said:


> The parsing of the broadcast date in the software claims is done prior to storing the data in a buffer. The parsing in the hardware claims done by the media switch is done after data is separated into audio and video and stored in buffers.
> 
> It seems like I post this every day.


You can say it twice a day, every day, but if TiVo does not say that it is no use


----------



## Curtis52 (Oct 14, 2003)

I see that Dish's expert Dr. Polish still says that parsing is PID filtering:

Q(Chu) NOW, GOING TO SLIDE 42, WHAT DID DR. POLISH SAY AT DEPOSITION ABOUT PID FILTERING AND PARSING WITH RESPECT TO CLAIMS 31 AND 61 AT ISSUE HERE TODAY? 
A (Storer) SO AGAIN HE IS CONSISTENT WITH THIS NOTION THAT PID FILTERING IS PARSING. AND AT DEPOSITION HE SPECIFICALLY SAYS IN THE CONTEXT OF CLAIMS 31 AND 61, AND YOU SEE THAT HERE. THIS IS JUST A PORTION OF QUESTION AND ANSWER FROM THAT 
DEPOSITION. 
Q AND DR. POLISH WAS ECHOSTAR’S EXPERT, CORRECT? 
A THAT’S RIGHT. HE WAS ONE OF THE THREE EXPERTS FOR ECHOSTAR AT THE TRIAL.

Dish did not refute this in cross examination or bring it up in any way. They never mentioned Dr. Polish.


----------



## jacmyoung (Sep 9, 2006)

Curtis52 said:


> I see that Dish's expert Dr. Polish still says that parsing is PID filtering:
> 
> Q(Chu) NOW, GOING TO SLIDE 42, WHAT DID DR. POLISH SAY AT DEPOSITION ABOUT PID FILTERING AND PARSING WITH RESPECT TO CLAIMS 31 AND 61 AT ISSUE HERE TODAY?
> A (Storer) SO AGAIN HE IS CONSISTENT WITH THIS NOTION THAT PID FILTERING IS PARSING. AND AT DEPOSITION HE SPECIFICALLY SAYS IN THE CONTEXT OF CLAIMS 31 AND 61, AND YOU SEE THAT HERE. THIS IS JUST A PORTION OF QUESTION AND ANSWER FROM THAT
> ...


Of course the PID filter parses, this is undisputed, only that now E* says the new design no longer parses as described in the patent claims, because the PID filter is no longer that "physical data source."

Again, TiVo seemed convinced "parse" alone will meet step one, but no, there are many things in step one to be met.

Did you find out in those figures what was described as the "parser" "well upstream" from the "media switch" yet?

No? Because there is no second parser described in the figures, or to say described in the invention.

If you look at that figure, you see an "input section", which is the same as the "input device" depicted in the software claims, and immediately from there it goes to that "media switch", with nothing in between. Within that "media switch" there are many components, one of them as you indicated is the "parser."

If one simply put the hardware claims right next to the software claims, one will notice the similarity.

In the hardware claims step one, it describes an "input section" that builds up MPEG streams from the raw TV signals, this "input section" corresponds to the "input device" in the step one of the software claims.

Next the hardware claims describe a "media switch" that accepts the MPEG streams from that "input section", "parses" such MPEG streams and separates out the audio and video data and stores them in different buffers.

The above step corresponds to the second half of the first step in the software claims where it says the "physical data source" (which is a part of the media switch) parses video and audio data (out of the broadcast data, i.e. the MPEG streams), then temporarily stores such parsed data.

In other words, step one of the software claims corresponds to the first two steps of the hardware claims. They both describe only *one invention*, but in different perspective to cover all bases.

There is a good reason for doing so. As I said before the hardware claims may describe the DVR hardware part of process and design, the software claims may describe the software part of the process and design.

If someone goes around start advertising an invention he had just designed on paper, if this invention infringes on a patented invention, he will be caught, even though he may argue that he does not have the actual product to sell, but since he has that design on the paper, it infringes on the software part of the claims, he is still in trouble.

But whether the claims are to cover the hardware part, or the software part, they all describe one invention, therefore you cannot separate them and treat them as "irrelevant" parts. They may differ in some details simply because one addresses hardware, the other software, so they will not be in lock steps, still they are absolutely closely connected in their function, method and result.


----------



## Greg Bimson (May 5, 2003)

jacmyoung said:


> Of course the PID filter parses, this is undisputed, only that now E* says the new design no longer parses as described in the patent claims, because the PID filter is no longer that "physical data source."


Actually,

1) the PID filter parses, and it is undisputed.
2) DISH/SATS doesn't say the new design no longer parses as described in the patent claims, only Dr. Rhyne (who they paid handsomely for his expert testimony) decided to change his testimony from the trial, where he admitted the PID filter met the claim.
3) There must be a physical data source, or the DVR would be a brick. Something provides the DVR with an audio and video stream, and that pretty much is the "physical data source".

So when the first sentence is the foundation built with straw, the rest of the argument falls as more weight is put on it.


----------



## deaincaelo (Feb 5, 2009)

Greg Bimson said:


> As long as one can define a "source object", a "transform object" and a "sink object" within a Betamax. It isn't there.


sure, coax in, vcr head, and coax out.

There must be a physical data source, or the Betamax would be a brick. Something provides the Betamax with an audio and video stream, and that pretty much is the "physical data source". unless you can explain a difference with respect to claim 31.

the PID filter seems to me just a part of the tuner that sub-parses the portion of a broadcast from a single transponder the same way any other tuner parses the relivant portion of a rf frequency out of the whole spectrum. otherwise, why couldnt they just turn it off?



> DISH did not steal the DVR. They stole the consumer affordable DVR. They copied the Barton Media Switch into their own design.


the barton media switch is an innovative device worthy of its patent. but that portion of the claims have been reversed and remanded, and dish claims to have bypassed it completely. its not at issue right now.


----------



## jacmyoung (Sep 9, 2006)

Greg Bimson said:


> Actually,
> 
> 1) the PID filter parses, and it is undisputed.
> 2) DISH/SATS doesn't say the new design no longer parses as described in the patent claims, only Dr. Rhyne (who they paid handsomely for his expert testimony) decided to change his testimony from the trial, where he admitted the PID filter met the claim.


This is what was said in the E* outside counsel non-infringement opinion, and it is echoed all through E*'s filing since 5/30/08 meeting, and again by Dr. Rhyne:

"The modified EchoStar 50X DVRs do not include any structure that is "a physical data source" that parses (i.e., analyzes) the "broadcast data." In the modified EchoStar 50X DVRs, a video elementary stream and audio elementary stream are selected from the incoming transport stream. The modified Echostar 50X DVRs write the video ES and audio ES data to the hard drive without any analysis of either of the streams. *Thus, the modified Echostar 50X DVRs do not "parse" the streams as required by this element of claims 31 and 61.*



> 3) There must be a physical data source, or the DVR would be a brick. Something provides the DVR with an audio and video stream, and that pretty much is the "physical data source".


It is not just what the patent lawyer's opinion the new E* design no longer has that "physical data source", it is logic really, that the "physical data source" cannot simply be some PID filter that is *a necessary part of a non-DVR*. If you think a necessary part of a non-DVR can be considered a part of the DVR invention that consists a full step in the claim, that step would not have been validated, because that step no longer describes any part of the invention. Every step in an invention claim must describe a necessary step in that invention, not a step in a non-invention.



> So when the first sentence is the foundation built with straw, the rest of the argument falls as more weight is put on it.


Who is building straw now?


----------



## jacmyoung (Sep 9, 2006)

deaincaelo said:


> ...There must be a physical data source, or the Betamax would be a brick. ...


The "physical data source" in the TiVo invention must perform several functions before it can qualify as that "physical data source" as described in the software claims.

It must first accept the incoming broadcast data from an input device, it then must parse out the video and audio data (indexing and/or start codes, according to E*) from that broadcast data, and it then must store such data temporarily in some buffer.

The indexing and start codes of course are E*'s assertion. The question is, what was TiVo's response to such assertion? TiVo either had no response or its response is they are "irrelevant" because they are not mentioned in the software claims.

As I have proven earlier, the court will consider many terms that are not literally mentioned in the claims. The example I used was how TiVo itself used the word "indexing" in arguing the hardware claims issues, even though the word "indexing" is never mentioned in the hardware claims, and the court never told TiVo it was irrelevant because it was not mentioned in the claims. The appeals court actaully agreed with TiVo "indexing" was relevant.


----------



## Greg Bimson (May 5, 2003)

Uh, during the jury trial, FIVE experts agreed (three paid for by DISH/SATS) that the PID filter is responsible for the analyze step:


> "The modified EchoStar 50X DVRs do not include any structure that is "a physical data source" that parses (i.e., analyzes) the "broadcast data." In the modified EchoStar 50X DVRs, a video elementary stream and audio elementary stream are selected from the incoming transport stream.


This is convenient wordsmithing, where the last sentence should read:In the modified EchoStar 50X DVRs, a video elementary stream and an audio elementary stream are *parsed* from *analyzing* the incoming transport stream.​Thus, once again, the argument provided is simply the straw which cannot support the weight of the rest of the argument.


jacmyoung said:


> It is not just what the patent lawyer's opinion the new E* design no longer has that "physical data source", it is logic really, that the "physical data source" cannot simply be some PID filter that is *a necessary part of a non-DVR.*


And here we go with the telephone patent similarities:

The telephone should have never contained any information regarding wires, as the telegraph already used those wires.

People said decades ago one could make millions by "building a better mouse trap". The key to those millions would have been patenting the invention. Yet I guarantee that there would be pieces used from the standard mouse trap in the patent of a new mouse trap.

It is otherwise foolish to believe that a claim of a patent must contain every innovation and no "prior art".


----------



## jacmyoung (Sep 9, 2006)

Greg Bimson said:


> Uh, during the jury trial, FIVE experts agreed (three paid for by DISH/SATS) that the PID filter is responsible for the analyze step:This is convenient wordsmithing, where the last sentence should read:In the modified EchoStar 50X DVRs, a video elementary stream and an audio elementary stream are *parsed* from *analyzing* the incoming transport stream.​Thus, once again, the argument provided is simply the straw which cannot support the weight of the rest of the argument.And here we go with the telephone patent similarities:
> 
> The telephone should have never contained any information regarding wires, as the telegraph already used those wires.
> 
> ...


The problem is TiVo can only argue what E* had admitted in 2005, TiVo cannot face what E* is saying now.

E* has changed its opinion, and told the court the reasons for the change of the opinion. TiVo must face such new opinion right on, to dispute E*'s reasons for such change. But TiVo did not, all TiVo can do is to say the reasons are "irrelevant", but I have already showed the court will most likely consider those reasons relevant, because the court had done so before.

Therefore in effect, E* made an assertion, TiVo had no counter to such assertion. The court must either agree with E*'s assertion, or with TiVo's counter argument. If TiVo did not offer any counter argument, the court of course will have to take E*'s assertion as is. The court will not help TiVo to create counter argument.


----------



## Greg Bimson (May 5, 2003)

jacmyoung said:


> Therefore in effect, E* made an assertion, TiVo had no counter to such assertion. The court must either agree with E*'s assertion, or with TiVo's counter argument. If TiVo did not offer any counter argument, the court of course will have to take E*'s assertion as is.


Of course. However, that implies that DISH/SATS assertions are true to the definitions given by the court.

Instead, DISH/SATS assertions are a change in the definitions as supplied by the court, such as:

1) we followed the injunction when we disabled the DVR for a moment, yet the injunction was not in effect at the time
2) when the injunction went into effect, the products we downloaded new software to are no longer "Infringing Products", as if something we do would change the definition
3) FIVE experts said the PID filter is the "physical data source" which did the parsing, but the guy we paid that was one of those five has changed his story, only because the jury found us guilty
4) we only have a single buffer method now, but in actuality it is ten buffers in a circle so that data loss isn't as probable

Borderline ridiculous. That is the definition I've come up with.


jacmyoung said:


> The court will not help TiVo to create counter argument.


There is a counter argument. The definitions of the court have not changed.


----------



## Curtis52 (Oct 14, 2003)

jacmyoung said:


> It is not just what the patent lawyer's opinion the new E* design no longer has that "physical data source", it is logic really, that the "physical data source" cannot simply be some PID filter that is *a necessary part of a non-DVR*. If you think a necessary part of a non-DVR can be considered a part of the DVR invention that consists a full step in the claim, that step would not have been validated, because that step no longer describes any part of the invention. Every step in an invention claim must describe a necessary step in that invention, not a step in a non-invention.


I guess it just never occurred to Dish to appeal on patent invalidity grounds back when all of their experts said that the PID filter was the parser in the software claims. That makes more sense than that a nonlawyer knows more about what's valid. They just never thought about it.


----------



## jacmyoung (Sep 9, 2006)

I am going to summarize what I believe what E*'s current argument is.

E* is now saying, the new design no longer "indexing" and no longer do the "start codes." And because TiVo said during the appeal that "indexing" was relevant to the hardware claims, even though the word "indexing" did not appear in the hardware claims. And TiVo defined "indexing" as "logical separation." More importantly the appeals court agreed "indexing, i.e. logical separation" was relevant to the invention.

Therefore what E* is saying is, the first step of the software claims essentially says:

[1] providing a physical data source, wherein said physical data source accepts broadcast data from an input device, *logically separates start codes* from said broadcast data, and temporarily stores *said start codes*;

Since the new design no longer "logically separates" and no longer do "start codes", the differences are more than colorable.

TiVo on the other hand literrally has not responded to such argument, if one agrees that the court will not buy the notion that "indexing" is irrellevant because "indexing" does not appear in the software claims.

Now of course TiVo spent a lot of time trying to point out what E* had said in 2005, or how the claim constructions had not changed.

Ture, but E* says their opinion has changed, because their design has changed, and no, the claim constructions never changed, just that because of the changes in the design, the new design no longer meet some of the claim constructions.


----------



## Curtis52 (Oct 14, 2003)

Greg Bimson said:


> There is a counter argument. The definitions of the court have not changed.


Yep, and TiVo said it within the first few minutes.

CHU: YOUR HONOR INTERPRETED THAT CLAIM TERM PARSING AFTER HARD FOUGHT CLAIM CONSTRUCTION TO MEAN ANALYZE. THAT CLAIM CONSTRUCTION WAS NOT APPEALED TO THE FEDERAL CIRCUIT. IF THEY
DISAGREED, THAT WAS THE POINT IN TIME WHERE THEY COULD HAVE SAID TO THE FEDERAL CIRCUIT, PARSING REALLY MEANS INDEXING. THEY DIDN'T DO THAT. AND NOW THE BULK OF THEIR EVIDENCE HAS TO DO WITH THE FACT THAT THEY ARE NOT INDEXING. IT'S NOT A CLAIM TERM, AND IT'S IRRELEVANT.


----------



## jacmyoung (Sep 9, 2006)

Curtis52 said:


> I guess it just never occurred to Dish to appeal on patent invalidity grounds back when all of their experts said that the PID filter was the parser in the software claims. That makes more sense than that a nonlawyer knows more about what's valid. They just never thought about it.


It never occurred to E* to ask the USPTO to combine the two prior art when they were doing the last re-examination, as a result the TiVo claims were unheld by the USPTO last time.

Now E* realized that, and made this new request, and the USPTO agreed with E* that now with this new argument, there are substantial new evidence questioning the validity of the TiVo software claims.

To respond to your other comment, I'd like to use a quote I made some time ago, which I think is very appopriate:



> In order to defeat a motion for summary judgment, the non-moving party only has to show substantial evidence that a dispute of material facts exists, regardless of the strength of that evidence. For example, if one side [TiVo] on a summary judgment motion can produce the evidence of *"a dozen bishops"*, and the other side [E*] only has the testimony of a *known liar*, then summary judgment is not appropriate. Deciding on the relative credibility of witnesses is a question for trial.


----------



## jacmyoung (Sep 9, 2006)

Curtis52 said:


> ... IT'S NOT A CLAIM TERM, AND IT'S IRRELEVANT.


And that is where TiVo's argument will be dismissed, because TiVo used the exact same term during the appeal, and the appeals court considered it relevant.


----------



## Curtis52 (Oct 14, 2003)

jacmyoung said:


> [1] providing a physical data source, wherein said physical data source accepts broadcast data from an input device, *logically separates start codes* from said broadcast data, and temporarily stores *said start codes*;


The media switch does the start code detection. The media switch is in the hardware claims. It is not in the software claims.


> Claim differentiation: In United States patent law, under the doctrine of claim differentiation, each claim is presumed to cover a different aspect of the invention than in each other claim.


The PID filter analyzes the broadcast data from the satellite, selects the desired program audio and video data and stores it temporarily in a buffer.


----------



## jacmyoung (Sep 9, 2006)

Curtis52 said:


> The media switch does the start code detection. The media switch is in the hardware claims. It is not in the software claims.


Where does E* even mention the term "media switch" now? The word used is "indexing." This word does not appear in any of the four patent claims, yet TiVo argued it was relevant to two of the claims, and the appeals court agreed, now E* is saying it is also relevant to the other two claims. What is TiVo's response? No, it is irrelevant to the other two claims because the word does not appear in them? Short memory you think?



> The PID filter analyzes the broadcast data from the satellite, selects the desired program audio and video data and stores it temporarily in a buffer.


As long as such "program audio and video data" is not the "start codes", the PID filter is not that "physical data source." This is what E* says, and TiVo has no counter argument against that.


----------



## Curtis52 (Oct 14, 2003)

jacmyoung said:


> And that is where TiVo's argument will be dismissed, because TiVo used the exact same term during the appeal, and the appeals court considered it relevant.


Appeals court:


> *TiVo is correct* that the specification describes a process of logical cataloguing or *indexing* of data, Figure 6 and the portion of the specification that describes it make clear that the logical processes described by TiVo occur after the data is separated into distinct audio and video buffers. That is, *after the parser in the Media Switch separates the video, audio, and private event data packets and stores them in separate buffers*


Indexing happens after the data is stored in a buffer. The parsing in the software claims happens before the data is stored in a buffer. It seems like I post this every day.


----------



## Greg Bimson (May 5, 2003)

jacmyoung said:


> 1] providing a physical data source, wherein said physical data source accepts broadcast data from an input device, logically separates start codes from said broadcast data, and temporarily stores said start codes;


If this is DISH/SATS argument, they lose. The court's definition:Therefore, the court defines "parses video and audio data from said broadcast data" as "analyzes video and audio data from the broadcast data."​There is nothing about "start codes" in that definition.

The PID filter takes the transport stream ("the broadcast data") containing a dozen or so channels and analyzes the data to only store the selected channel (which is "the audio and video data") to a file.


jacmyoung said:


> E* is now saying, the new design no longer "indexing" and no longer do the "start codes."


But DISH/SATS actually isn't saying that. They've been stating they no longer index pre-storage. Which means they still index.

Indexing pre-storage is an element in the Hardware Claims. Indexing is not required by the Software Claims.


----------



## Greg Bimson (May 5, 2003)

jacmyoung said:


> It never occurred to E* to ask the USPTO to combine the two prior art when they were doing the last re-examination, as a result the TiVo claims were unheld by the USPTO last time.


I'll give the real reason for this...

Last year SCOTUS ruled that the combination of two existing patents cannot be considered a patentable idea. There must be an element which contains no prior art.

The review by USPTO appears to me that DISH/SATS is arguing the Software Claims are simply two patents combined into one. That test could not have been evaluated until SCOTUS made that change.


----------



## Curtis52 (Oct 14, 2003)

jacmyoung said:


> As long as such "program audio and video data" is not the "start codes", the PID filter is not that "physical data source." This is what E* says, and TiVo has no counter argument against that.


If Dish wanted "analyzes" to mean "start code detection". They should have argued for that at the Markman hearing and appealed the claim construction to the appeals court. They didn't do either one of those things. At the Markman hearing they argued that "analyzes" meant "separates". Their argument lost and they didn't appeal that or ever argue or appeal that "analyzes" means "start code detection". Meanwhile, PID filtering is still analyzing.


----------



## Curtis52 (Oct 14, 2003)

Greg Bimson said:


> Indexing pre-storage is an element in the Hardware Claims. Indexing is not required by the Software Claims.


Actually, the hardware claims do not specify whether the indexing occurs before storage or after storage. The order isn't specified.


----------



## jacmyoung (Sep 9, 2006)

Curtis52 said:


> Appeals court:
> 
> Indexing happens after the data is stored in a buffer. The parsing in the software claims happens before the data is stored in a buffer. It seems like I post this every day.


So what, you mean there is no buffer before that? Do you realize the PID filter has it own buffer? In fact all things computer related pretty much work around buffers, buffers are where things happen.

The PID filter has its own buffer, when the broadcast data goes to the PID filter, it gets stored on the PID buffer while the PID analyzes it, throws out the bad bits, retains the good bits, now the good video and audio bits are in the buffers provided by the PID filter and gets pushed out for further processing.

As I said, you can say all you want about the software claims happens before the buffer, as long as TiVo does not say it, or the court did not say it, it does not count.

What you have continued to quote was the hardware claims discussions, not the software claims discussions. Parties never discussed such issue in the context of the software claims before. Now E* has raised this new issue, a dispute of facts. What TiVo must do is to prove with clear and convincing evidence that such dispute simply does not exist to be tried in a new trial.

TiVo does not even attempt to do that, the only thing TiVo is doing is basically calling E* a liar. Well fine, we'll see how it goes.


----------



## jacmyoung (Sep 9, 2006)

Curtis52 said:


> Actually, the hardware claims do not specify whether the indexing occurs before storage or after storage. The order isn't specified.


Good, then don't try to specify it for TiVo. If E* specifies it this way, TiVo may disagree, but TiVo wasn't disputing the order E* is specifying, only that E* may not even specify such because it is irrelevant, and as I said good luck with that.


----------



## Curtis52 (Oct 14, 2003)

The PID filter is in the input section where the broadcast signal is analyzed.. Start code detection is done in the media switch which according to figure 1 is downstream of the input section. The media switch is in the hardware claims. It is not in the software claims.


----------



## scooper (Apr 22, 2002)

Curtis52 said:


> The PID filter is in the input section where the broadcast signal is analyzed.. Start code detection is done in the media switch which according to figure 1 is downstream of the input section. The media switch is in the hardware claims. It is not in the software claims.


So - since the HARDWARE claims have been remanded - Echostar COULD be using a Media Switch and (currently) NOT BE INFRINGING . Is that what you're saying ?

If you answer no - you're saying that the indexing is a software function and is therefore relevant to the current SOFTWARE discussion. Otherwise - I don't see where you're going with this idea that indexing is a Hardware function. It may be getting done by specialized silicon, but it is still basically a software function.

Heck, to destroy your arguement that the PID filter is an important piece of the DVR - all you have to do is bring a non DVR Echostar receiver in as evidence and show that it too has a PID filter. What have you got to answer that one ?


----------



## Curtis52 (Oct 14, 2003)

scooper said:


> So - since the HARDWARE claims have been remanded - Echostar COULD be using a Media Switch and (currently) NOT BE INFRINGING . Is that what you're saying ?


The reason the appeals court said that Dish infringed was because they infringed the software claims. If even one claim is infringed, infringement can be found.


----------



## Curtis52 (Oct 14, 2003)

scooper said:


> Heck, to destroy your arguement that the PID filter is an important piece of the DVR - all you have to do is bring a non DVR Echostar receiver in as evidence and show that it too has a PID filter. What have you got to answer that one ?


A DVR won't work without a signal. A patent is required to give enough information to allow someone to build one without undue experimentation. Requiring analysis is actually detrimental to TiVo. Not requiring analysis would be a broader patent.


----------



## Greg Bimson (May 5, 2003)

scooper said:


> So - since the HARDWARE claims have been remanded - Echostar COULD be using a Media Switch and (currently) NOT BE INFRINGING . Is that what you're saying ?


Well, if DISH/SATS was using a Media Switch in their implementation, then TiVo would have requested the bench hearing incorporate an evaluation of infringement of the Hardware Claims. Instead, Judge Folsom did want to incorporate the evaluation of the Hardware Claims, but TiVo asked that evaluation be removed, as DISH/SATS is not using the Media Switch.


scooper said:


> If you answer no - you're saying that the indexing is a software function and is therefore relevant to the current SOFTWARE discussion. Otherwise - I don't see where you're going with this idea that indexing is a Hardware function. It may be getting done by specialized silicon, but it is still basically a software function.


The Hardware Claims have some software elements. The Software Claims have some hardware elements. The PID filter is part of the hardware elements of the Software Claims.


scooper said:


> Heck, to destroy your arguement that the PID filter is an important piece of the DVR - all you have to do is bring a non DVR Echostar receiver in as evidence and show that it too has a PID filter. What have you got to answer that one ?


Just because windshield wipers exist does not mean a patent for intermittent wipers should be invalidated, because the wiper is the important piece and is prior art.

It is continually a strawman to say "PID filters" are prior art, when they exist in both the process and apparatus of the Software Claims in TiVo's Time Warp patent. MOST patents contain elements which are PRIOR ART.

Don't believe me? Take a look at SATS patent application for their "brute force" software implementation for time-shifting in a DVR. For some reason there are pieces of hardware in it.


----------



## scooper (Apr 22, 2002)

Greg Bimson said:


> Well, if DISH/SATS was using a Media Switch in their implementation, then TiVo would have requested the bench hearing incorporate an evaluation of infringement of the Hardware Claims. Instead, Judge Folsom did want to incorporate the evaluation of the Hardware Claims, but TiVo asked that evaluation be removed, as DISH/SATS is not using the Media Switch.The Hardware Claims have some software elements. The Software Claims have some hardware elements. The PID filter is part of the hardware elements of the Software Claims.Just because windshield wipers exist does not mean a patent for intermittent wipers should be invalidated, because the wiper is the important piece and is prior art.
> 
> It is continually a strawman to say "PID filters" are prior art, when they exist in both the process and apparatus of the Software Claims in TiVo's Time Warp patent. MOST patents contain elements which are PRIOR ART.
> 
> Don't believe me? Take a look at SATS patent application for their "brute force" software implementation for time-shifting in a DVR. For some reason there are pieces of hardware in it.


TO keep bringing the PID filter in as your "parsing piece" is the TRUE Strawman.

Face it gents - Tivo is REACHING to try to make their patent fit on Echostar's new software.

The same general purpose PC I'm typing this on here at home also can function as a DVR with the PC tuner card I have. There ain't no "media switch" in it - just NTSC and ATSC tuners (with a PID filter, no less) and an MPEG encoder chip for the analog inputs, with software drivers and a program that is, at it's core, doing what Echostar says it's new software is doing.

The PID filter arguement is a strawman. You know it , Tivo knows it, Echostar knows it, and if the judge can't see it - he shouldn't be a judge.


----------



## Curtis52 (Oct 14, 2003)

scooper said:


> TO keep bringing the PID filter in as your "parsing piece" is the TRUE Strawman.


What other parsing does the input section do? The indexing is done in the media switch downstream of the input section. The PID filtering is done in the input section.


----------



## jacmyoung (Sep 9, 2006)

Curtis52 said:


> The PID filter is in the input section where the broadcast signal is analyzed.. Start code detection is done in the media switch which according to figure 1 is downstream of the input section. The media switch is in the hardware claims. It is not in the software claims.


Are you sure this is what TiVo should go with, that *the PID filter is in the input section?*

If so, the PID filter will just be part of that "input device", if so, we are now missing that "physical data source."

Is that the final answer?


----------



## jacmyoung (Sep 9, 2006)

Curtis52 said:


> What other parsing does the input section do? ...


Does it matter? The parsing as described in the software claims is done outside of that "input device". Whatever and no matter how much "parsing" is done in that "input section" (input device) has nothing to do with this invention. The "physical data source" accepts broadcast data from that "input device", then does the parse, not as part of the input device, rather independent of it.

That is why you cannot find another parser "well upstream" of the media switch in the patent figure, because even if such thing exists, it is not a part of the invention, therefore not a part of the patent figure. If the PID filter happens to be in that upstream parser, it is irrelevant as far as this invention is concerned, that is why it does not show up in that patent figure.


----------



## Curtis52 (Oct 14, 2003)

jacmyoung said:


> So what, you mean there is no buffer before that? Do you realize the PID filter has it own buffer? In fact all things computer related pretty much work around buffers, buffers are where things happen.





jacmyoung said:


> the new design only uses a single buffer


Wow


----------



## jacmyoung (Sep 9, 2006)

Curtis52 said:


> Wow


Since when you talk like Greg?

Nice try my friend, that was in reference to the number of buffers used to achieve "automatic flow control."


----------



## scooper (Apr 22, 2002)

Curtis52 said:


> What other parsing does the input section do? The indexing is done in the media switch downstream of the input section. The PID filtering is done in the input section.


That's exactly right -

In the Tivo invention - it goes from the output of the PID filter, to the media switch where it gets the timestamp embedded, onto the disk buffer for storage / playback.

In the Echostar invention - it goes from the PID filter output straight to the disk buffer, from where it goes for storage / playback.

The playback processes are different too. I'll leave it as an exercise for the reader to figure it out.

Between the two - there is more than a colorable difference on their approach to the same problem. And before somebody brings it up - order of the operations IS important.


----------



## Curtis52 (Oct 14, 2003)

jacmyoung said:


> So what, you mean there is no buffer before that? Do you realize the PID filter has it own buffer? In fact all things computer related pretty much work around buffers, buffers are where things happen.





jacmyoung said:


> the PID filter does not temporarily store any parsed data, and therefore no source object can possibly extract any of the stored parsed data from the PID filter because there is none to be extracted. The parsed data goes straight to the hard drive.


It's getting hard to keep up.


----------



## jacmyoung (Sep 9, 2006)

scooper said:


> ...In the Tivo invention - it goes from the output of the PID filter, to the media switch where it gets the timestamp embedded, onto the disk buffer for storage / playback...


We need to remember always go back to the software claims, because only the software claims are at issue.

What happened was Curtis52 finally said the PID filter is part of that "input section," now we go to the software claims, we can find where that "input section" is located, it is located in the first step, by the name of "input device."

Per Curtis52's latest statement, the PID filter sits in that "input device" or one can say it IS that "input device," therefore the PID filter cannot be that "physical data source" at the same time.


----------



## jacmyoung (Sep 9, 2006)

Curtis52 said:


> It's getting hard to keep up.


Confused? Having doubt? Guess what, if TiVo cannot clear up the confusion, or cannot remove the doubt, TiVo loses

TiVo must prove by clear and convincing evidence, E* only needs to establish the doubt, or put it bluntly, E* only needs to succeed in confusing the heck out of the issue.

In reality however, I think E* is as clear as it can be, and TiVo simply has no meaningful response.


----------



## Curtis52 (Oct 14, 2003)

scooper said:


> In the Tivo invention - it goes from the output of the PID filter, to the media switch where it gets the timestamp embedded, onto the disk buffer for storage / playback.


There is no media switch in the software claims. Dish is trying to put one there but it just ain't there.


----------



## Curtis52 (Oct 14, 2003)

jacmyoung said:


> We need to remember always go back to the software claims, because only the software claims are at issue.
> 
> What happened was Curtis52 finally said the PID filter is part of that "input section," now we go to the software claims, we can find where that "input section" is located, it is located in the first step, by the name of "input device."
> 
> Per Curtis52's latest statement, the PID filter sits in that "input device" or one can say it IS that "input device," therefore the PID filter cannot be that "physical data source" at the same time.


Where does it say that the input section and the physical data source are mutually exclusive?


----------



## jacmyoung (Sep 9, 2006)

Curtis52 said:


> There is no media switch in the software claims. Dish is trying to put one there but it just ain't there.


No, DISH never tried to put one in. We just used it to help our own debate, and it has been used on both sides.


----------



## Curtis52 (Oct 14, 2003)

jacmyoung said:


> No, DISH never tried to put one in. We just used it to help our own debate, and it has been used on both sides.


Sure they are. They say they no longer do start code detection or indexing. Those are done by the media switch which is not in the software claims.


----------



## jacmyoung (Sep 9, 2006)

Curtis52 said:


> Sure they are. They say they no longer do start code detection or indexing. Those are done by the media switch which is not in the software claims.


"Start code detection and indexing" are not in the hardware claims either, yet parties had no problem using these terms.

The only thing you can say is such terms were never applied to the software claims in the past, but this is not to say they cannot now be applied on the software claims. Because back then hardware claims were the focus of the appeal, E* never tried to address the software claims much.

Now the software claims are the issue, you cannot say simply because the terms were not discussed in the context of the software claims last time, they may not be discussed now.

What TiVo needs to do is to dispute E*'s new assertions head on, not to avoid such debate by simply brush them off as "irrelevant." Because then these terms should be irrelevant to the hardware claims back then too.


----------



## Greg Bimson (May 5, 2003)

scooper said:


> TO keep bringing the PID filter in as your "parsing piece" is the TRUE Strawman.
> 
> Face it gents - Tivo is REACHING to try to make their patent fit on Echostar's new software.


To fit the _new software_?

ALL FIVE experts gave testimony during the trial (the _old_ software) that PID filtering met the parse step of the first element of the Software Claims.

Which means nothing is reaching as it is evidence that was presented before.


----------



## jacmyoung (Sep 9, 2006)

Greg Bimson said:


> ...ALL FIVE experts gave testimony during the trial (the _old_ software) that PID filtering met the parse step of the first element of the Software Claims...


So what? As long as they no longer parse that "said video and audio data" (i.e. the start codes), the first step is no longer met.


----------



## Greg Bimson (May 5, 2003)

jacmyoung said:


> Confused? Having doubt? Guess what, if TiVo cannot clear up the confusion, or cannot remove the doubt, TiVo loses


Not confused at all. When all of the arguments are against the Hardware Claims, then TiVo automatically wins, as there is no doubt there weren't signficant changes made to anything regarding the Software Claims.


----------



## Greg Bimson (May 5, 2003)

jacmyoung said:


> So what? As long as they no longer parse that "said video and audio data" (i.e. the start codes), the first step is no longer met.


The "start codes" are not "said video and audio data".


----------



## jacmyoung (Sep 9, 2006)

Greg Bimson said:


> Not confused at all. When all of the arguments are against the Hardware Claims, then TiVo automatically wins, as there is no doubt there weren't signficant changes made to anything regarding the Software Claims.


Curtis52 was confused, I was responding to his issue

What do you mean all of the arguments are against the hardware claims? E* never even mentioned the hardware claims, nor was TiVo for that matter, as far as whether the first step of the software claims is met or not.

We are the ones who are talking about the hardware claims. But the judge will not listen to us.


----------



## jacmyoung (Sep 9, 2006)

Greg Bimson said:


> The "start codes" are not "said video and audio data".


You said so, not TiVo.

When the E* witness said "indexing" and "start codes" were the reasons, what was Mr. Chu's response? Yes, "no further question." He did not even want to go there.


----------



## Greg Bimson (May 5, 2003)

Because it is irrelevant.


----------



## jacmyoung (Sep 9, 2006)

Greg Bimson said:


> Because it is irrelevant.


Again you said so not TiVo. TiVo did not say "start codes" were irrelevant, because they knew start codes are relevant, the start codes are what the DVR invention is all about.

Which was why Mr. Chu said no further questions, he knew he should not try to touch those "start codes."


----------



## nobody99 (May 20, 2008)

jacmyoung said:


> Confused? Having doubt? Guess what, if TiVo cannot clear up the confusion, or cannot remove the doubt, TiVo loses


I think what he's saying is that he can't keep up with the number of times you've changed what you are saying. I'm pretty sure his position has stayed the same the entire time.


----------



## jacmyoung (Sep 9, 2006)

nobody99 said:


> I think what he's saying is that he can't keep up with the number of times you've changed what you are saying. I'm pretty sure his position has stayed the same the entire time.


Do you agree Curtis52?

I wonder if this can be a good TiVo argument before the judge, look E* changed their positions, and we never did, so E* must be wrong and we must be right, there is no need for us to address E*'s new position, cuz we did not change our position, so E* may not change theirs either.

But wait, isn't the whole idea of colorable *difference* analysis about changed positions? If nothing can change, why bother?


----------



## dfd (Aug 29, 2008)

jacmyoung said:


> Do you agree Curtis52?
> 
> I wonder if this can be a good TiVo argument before the judge, look E* changed their positions, and we never did, so E* must be wrong and we must be right, there is no need for us to address E*'s new position, cuz we did not change our position, so E* may not change theirs either.
> 
> But wait, isn't the whole idea of colorable *difference* analysis about changed positions? If nothing can change, why bother?


The E* arguments about how they don't infringe are focused on the claims that they are not in front of the judge for now.

Any confusion raised about the hardware claims does nothing to strengthen their case regarding the software claims. Why is this so hard to understand?

E*'s defense should be that we no longer infringe the software claims because the claim says 'a, b, c' and we now do 'a,b, X' but instead they seem to be saying, 'see we don't do i,j, k so we don't infringe.'

TiVo is saying 'i,j,k' don't matter as they aren't in the infringed claim.

THE QUESTION BEFORE THE JUDGE IS ABOUT THE SOFTWARE CLAIMS.


----------



## Sterling (Feb 18, 2009)

E* stole Tivo's process. Used it to gain marketshare.
Unfair and not right. Judged and confirmed by appeal to be not right.
Solution as stated. Shut them off.

E* did not do this.

Now it appears E* may have come up with some clever method to workaround Tivo's patent going forward -- and that is fine. And that means E* would not have to pay for any NEW dvrs -- going forward -- after the workaround version of the software was applied.

But as for the DVR's that are adjudicated. Stop recording to the hard drive, do not pass go, do not collect $200. You do not magically become a new device. There is no get out of jail free card.

Can't we all agree the infringing devices still _record to the hard drive_. Good. Then turn them off.

If Folsum agrees that the new workaround has *colorable enough differences* then the new (not old infringing) devices can be sold and used _after_ the new workaround software method is installed.

For every single month that the old infringing devices continue to record to the hard drive Tivo is owed cash (damages) until disabled permanently.

For every single month any new (non-adjudicated device) was operated until the new workaround was applied Tivo is owed cash (damages).

We can only pray that Folsum does what is right and just. Anything other is just plain wrong.

Go ahead, pick apart my sentences. Doesn't change the fact that E* stole Tivo tech until the day new version software was installed on new devices and until the day the existing adjudicated devices are turned off.


----------



## Sterling (Feb 18, 2009)

Please, feel free to debate for another 46 pages if E* process is 'different enough' - by hook, by crook, by wordsmithing, by confusion or actual clever workmanship.

It doesn't change the previous post.


----------



## jacmyoung (Sep 9, 2006)

dfd said:


> The E* arguments about how they don't infringe are focused on the claims that they are not in front of the judge for now...


How is the following statement not focused on the software claims:



> [1] providing a physical data source, wherein said physical data source accepts broadcast data from an input device, parses (i.e. logically separates) videos and audio data (i.e. start codes) from said broadcast data, and temporarily stores said video and audio data (i.e. start codes);


The current E* design no longer does "indexing", i.e. "logical separation", and also do not do "start codes," therefore the first step is no longer met.


----------



## Greg Bimson (May 5, 2003)

jacmyoung said:


> How is the following statement not focused on the software claims:
> 
> 
> > [1] providing a physical data source, wherein said physical data source accepts broadcast data from an input device, parses (i.e. logically separates) videos and audio data (i.e. start codes) from said broadcast data, and temporarily stores said video and audio data (i.e. start codes);


Because the court has never added "(i.e. logically separates)" or "(i.e. start codes)". That is the parsing done in the Hardware Claims.

ALL FIVE EXPERTS in the jury trial stated the PID filter met the step limitation regarding parsing in the Software Claims.

That is irrefutable.

That simple fact has not been changed as the PID filter now is the same as it was before. The only expert opinion that has changed is somehow based upon some strange analysis of what the jury did, yet they only ever had two checkboxes on their form to adjudge guilt: infringement of the Hardware Claims and infringement of the Software Claims.

Instead of Dr. Rhyne, DISH/SATS should have put Kreskin up on the stand as their expert. Kreskin would have been more credible.


----------



## scooper (Apr 22, 2002)

Sterling said:


> Please, feel free to debate for another 46 pages if E* process is 'different enough' - by hook, by crook, by wordsmithing, by confusion or actual clever workmanship.
> 
> It doesn't change the previous post.


So you're saying it is not OK to change the software ?

You've just turned patent law on its head.(Unable to make modifications to infringing devices).

We will continue with our current discussion while you go read some more.


----------



## nobody99 (May 20, 2008)

scooper said:


> You've just turned patent law on its head.(Unable to make modifications to infringing devices).


Woefully erroneous misconception. You can modify and sell anew, but that's not what we're talking about.

Feel free to try again, though.


----------



## scooper (Apr 22, 2002)

nobody99 said:


> Woefully erroneous misconception. You can modify and sell anew, but that's not what we're talking about.
> 
> Feel free to try again, though.


Obviously Judge Folsom thought there was merit to it, or you would have had your Prima Facie contempt already....


----------



## jacmyoung (Sep 9, 2006)

nobody99 said:


> Woefully erroneous misconception. You can modify and sell anew, but that's not what we're talking about.
> 
> Feel free to try again, though.


It had been tried already

E* had modified and had since been selling/using the software product anew, that is what we are talking about.

I have already made such argument, when the judge ordered to have "the DVR functionalities" disabled, he was prohibiting the old software product from being used again.

That was exactly what E* did. They replaced the old software product with the new software product.

Unless you want to insist "the DVR functionalities" are hardware product?


----------



## jacmyoung (Sep 9, 2006)

scooper said:


> ...We will continue with our current discussion while you go read some more.


That was exactly what he should have done before making that comment There were 100X46 pages posted since 04/08 on this subject, right in this forum, he apparently was only aware of 1/100 of it


----------



## nobody99 (May 20, 2008)

jacmyoung said:


> That was exactly what he should have done before making that comment There were 100X46 pages posted since 04/08 on this subject, right in this forum, he apparently was only aware of 1/100 of it


What if a single person were responsible for the other 99/100 of it, and he had that single person on ignore? For the record, both are very real possibilities.


----------



## Greg Bimson (May 5, 2003)

scooper said:


> Obviously Judge Folsom thought there was merit to it, or you would have had your Prima Facie contempt already....


Bear with me...

Let's say that Judge Folsom had granted prima facie contempt. Then what?


----------



## jacmyoung (Sep 9, 2006)

Greg Bimson said:


> Bear with me...
> 
> Let's say that Judge Folsom had granted prima facie contempt. Then what?


We would likely have been arguing what the appeals court might rule next.

You would have been on the top of the world and Scooper, Curtis52 (yes Curtis52) and I would be eating crow.


----------



## jacmyoung (Sep 9, 2006)

nobody99 said:


> What if a single person were responsible for the other 99/100 of it, and he had that single person on ignore? For the record, both are very real possibilities.


Not possible, he would not have said 46 pages, rather 0.46 pages.


----------



## Sterling (Feb 18, 2009)

scooper said:


> So you're saying it is not OK to change the software ?
> 
> You've just turned patent law on its head.(Unable to make modifications to infringing devices).
> 
> We will continue with our current discussion while you go read some more.


Don't be silly. Of course you can change software.

But you can't make it a new device. The court said shut down the existing device. They didn't give the guilty the option to change as they see fit. And if the court allows this to go down this way it is wrong.

Yes, there is way too much reading on this topic already. But, it seemed like a good time to bring us back to what should have happened. And what is just and fair.

The right thing would be for the Judge to point out that E* failed to do as instructed and bring this case to closure now. Not 3 months from now.

I know I'm wasting my breath. I'll go back to lurk mode now.


----------



## James Long (Apr 17, 2003)

[916] NOTICE by Echostar Satellite LLC, Echostar Communications Corporation, Echostar DBS Corporation, Dish Network Corporation, Echosphere Limited Liability Company of Intent to Request Redaction


> Notice is hereby given that a statement of redaction will be submitted to the court reporter within 21 days from the filing of the transcript with the Clerk of Court. The proceeding occurred on February 17-19, 2009 and was reported by Libby Crawford, CSR, the court reporter.


----------



## deaincaelo (Feb 5, 2009)

Sterling said:


> ...
> But as for the DVR's that are adjudicated. Stop recording to the hard drive, do not pass go, do not collect $200. You do not magically become a new device. There is no get out of jail free card.
> 
> Can't we all agree the infringing devices still _record to the hard drive_. Good. Then turn them off.





> But you can't make it a new device. The court said shut down the existing device. They didn't give the guilty the option to change as they see fit. And if the court allows this to go down this way it is wrong.


is echostar allowed to scrap the existing dvr's for parts?

do DVR's go to heaven when they die-is there a spirit that is more then the sum of its parts? if so, Echostar has commited a grievous sin and the machine spirit may rebel. while the gestalt view is certainly appealing- and im not saying its wrong per se, it relies on the spectral evidence of the machine spirit.

if the 4 million or so adjoined dvr's are to be seperated and ordered to be replaced with IDENTICAL dvr's then i dont see why tivo should be awarded a dime beyond continuing infringement. that order would not be to benifit tivo in any way-every affected echostar customer would still use competing services in that instance (less the ineffeciencies of reality.) it would simply be for echostar to incur expense that causes nothing to happen. it could have been as well fulfilled by gathering the requisite cash and burning it on the courthouse steps.

however, as long as echostar is allowed to scrap the adjoined devices to build another, different DVR then they must be treated the same as the newly manufactured dvr's until it is determined to be adjoined or not. the reason is simple- the claim that joe blow's dvr is recycled (if given that it is not disallowed) is undisprovable. the device that exists today in joe blows house is physically and in software identical to the recycled product.

nor has there been any explination as to what would be needed to do so- do you have to melt it into base silicone? disassemble it? reassemble it? replace parts with parts with a different serial number? or can you never use that hard drive again? would i, if i tore out the harddrive of an adjudged 508 be in contempt of court if i installed it to a pc and downloaded a dvd to it?


----------



## Curtis52 (Oct 14, 2003)

The disable order only applies to certain DVRs installed at the time the injunction was issued. It does not apply to _different_ DVRs.

There's that word "different". The hearing in February was to find out whether the currently installed DVRs fall into the "different" category.


----------



## dfd (Aug 29, 2008)

James Long said:


> [916] NOTICE by Echostar Satellite LLC, Echostar Communications Corporation, Echostar DBS Corporation, Dish Network Corporation, Echosphere Limited Liability Company of Intent to Request Redaction


What does this mean? The already available transcript will be further redacted or the already redacted text will remain that way?


----------



## jacmyoung (Sep 9, 2006)

dfd said:


> What does this mean? The already available transcript will be further redacted or the already redacted text will remain that way?


Along the same line of questioning, how could the full transcript already be available to the public before redaction deadline?

Was that copy of full transcript released by the court to the public, or was it leaked out by the parties (E* or TiVo) involved? I understand there was a $500 fee paid, it is likely that it was ordered through the court, on the other hand, if it was not the case, there could be some potential serious issues.


----------



## jacmyoung (Sep 9, 2006)

Curtis52 said:


> ...There's that word "different". The hearing in February was to find out whether the currently installed DVRs fall into the "different" category.


And they can't be just "different" rather have to be "more than colorably different." If the difference is only colorable, and after that, there are also clear and convincing evidence to prove that they still infringe, the order may be enforced on them, even if they are different.


----------



## Greg Bimson (May 5, 2003)

jacmyoung said:


> We would likely have been arguing what the appeals court might rule next.


So under what grounds would DISH/SATS have appealed the granting of prima facie contempt of the injunction?


----------



## jacmyoung (Sep 9, 2006)

Greg Bimson said:


> So under what grounds would DISH/SATS have appealed the granting of prima facie contempt of the injunction?


Likely "abuse of the district court's discretion."


----------



## Curtis52 (Oct 14, 2003)

dfd said:


> What does this mean? The already available transcript will be further redacted or the already redacted text will remain that way?





> "(3) Within seven business days of the filing of the transcript in CM/ECF, each party wishing to redact a transcript must inform the court, by filing the attached "Notice of Intent to Request Redaction," of the party's intent to redact personal data identifiers from the transcript as required by Fed.R.Civ.P 5.2, If no such notice is filed within the allotted time, the court will assume redaction of personal data identifiers from the transcript is not necessary.
> (4) If redaction is requested, a party is to submit to the court reporter or transcriber and file with the court, within 21 calendar days of the transcript's delivery to the clerk, or longer if a court so orders, a statement indicating where the personal data identifiers to be redacted appear in the transcript. The court reporter or transcriber must redact the identifiers as directed by the party. These procedures are limited to the redaction of the specific personal identifiers listed in Fed.R.Civ.P. 5.2. If an attorney wishes to redact additional information, he or she may make a motion to the court. The transcript will not be remotely electronically available until the court has ruled on any such motion.
> (5) The court reporter or transcriber must, within 31 calendar days of the filing of the transcript, or longer if the court so orders, perform the requested redactions and file a redacted version of the transcript with the clerk of court. Redacted transcripts are subject to the same access restrictions as outlined above during the initial 90 days after the first transcript has been filed. The original unredacted electronic transcript shall be retained by the clerk of court as a restricted document.
> (6) If, after the 90-day period has ended, there are no redaction documents or motions linked to the transcript, the clerk will remove the public access restrictions and make the unredacted transcript available for inspection and copying in the clerk's office and for download from the PACER system.
> (7) If, after the 90-day period has ended, a redacted transcript has been filed with the court, the clerk will remove the access restrictions as appropriate and make the redacted transcript available for inspection and copying in the clerk's office and for download from the PACER system, or from the court reporter or transcriber. "


..


----------



## jacmyoung (Sep 9, 2006)

Curtis52 said:


> ..


If the above procedures were followed by the court, someone who had restrictive access to the transcript might have leaked out the document for profit. I am not saying it is illegal, I don't know the detail or the rules enough to say.


----------



## Greg Bimson (May 5, 2003)

Greg Bimson said:


> So under what grounds would DISH/SATS have appealed the granting of prima facie contempt of the injunction?





jacmyoung said:


> Likely "abuse of the district court's discretion."


Then what would have been abused, and why? There would need to be examples of that abuse cited to the Court of Appeals, so what would have been in those arguments?


----------



## Curtis52 (Oct 14, 2003)

Greg Bimson said:


> Then what would have been abused, and why? There would need to be examples of that abuse cited to the Court of Appeals, so what would have been in those arguments?


It would likely be similar to KSM vs Jones. Although the exact terms of the consent order in that case were violated, and there was nothing about infringement in the order, the appeals court said that infringement of the modified devices had to be examined.



> Infringement is the sine qua non of violation of an injunction against infringements.


Even though infringement wasn't mentioned in the order the appeals court said that infringement was the underlying issue.


----------



## Greg Bimson (May 5, 2003)

Greg Bimson said:


> So under what grounds would DISH/SATS have appealed the granting of prima facie contempt of the injunction?





Curtis52 said:


> It would likely be similar to KSM vs Jones. Although the exact terms of the consent order in that case were violated, and there was nothing about infringement in the order, the appeals court said that infringement of the modified devices had to be examined.


So "continuing infringement" should be adjudged...


Curtis52 said:


> Even though infringement wasn't mentioned in the order the appeals court said that infringement was the underlying issue.
> 
> 
> > Infringement is the sine qua non of violation of an injunction against infringements.


Yes.

However, Judge Folsom has not ruled against TiVo on prima facie contempt. That action still has a course, and Judge Folsom has determined he needs to evaluate "continuing infringement". So Judge Folsom cannot grant contempt and order devices disabled if they have been modified and could no longer infringe.

Judge Folsom is solving that problem right now.


----------



## Curtis52 (Oct 14, 2003)

Greg Bimson said:


> However, Judge Folsom has not ruled against TiVo on prima facie contempt.


Right. The discussion was about a hypothetical case of the judge already ruling on prima facie prior to finding whether there is continued infringement and the possible grounds for appeal in such a situation.


----------



## Greg Bimson (May 5, 2003)

True.

However, as a judge can only order a device disabled if it still infringes, it stands to reason Judge Folsom cannot simply order a device disabled even if those devices were subject to an injunctive order.


----------



## jacmyoung (Sep 9, 2006)

Greg Bimson said:


> True.
> 
> However, as a judge can only order a device disabled if it still infringes, it stands to reason Judge Folsom cannot simply order a device disabled even if those devices were subject to an injunctive order.


What are you saying, are you agreeing with me?

But as Curtis52 pointed out your question took the pretense that there was a prima facie contempt ruling already issued, and if so what might be the ground for an appeal of such ruling, the answer is, the likely ground for such appeal is abuse of the court discretion.

There are other grounds for appeal, such as on the ground that the district court lacks the jurisdiction on the issue, or on the ground of claim exclusion, etc.


----------



## Greg Bimson (May 5, 2003)

jacmyoung said:


> But as Curtis52 pointed out your question took the pretense that there was a prima facie contempt ruling already issued, and if so what might be the ground for an appeal of such ruling, the answer is, the likely ground for such appeal is abuse of the court discretion.


And that assumption is that with prima facie violations of an injunction granted, the court would order the devices disabled without an evaluation of their status.

However, the converse though is also somewhat true:

The Court of Appeals won't overturn a finding of contempt and another order to disable if an evaluation of continuing infringement is positive.

Unless, of course, there is another "standard" that must also be used.

And remember, DISH/SATS could be found in contempt but the remedy might not contain another order to disable.


----------



## jacmyoung (Sep 9, 2006)

If one had read more than a few appeals court decisions in such cases, one would have found a common clause used by the appeals court before they began their discussions, and it reads something like this:



> We review the trial (district) court issuing of contempt order for abuse of the trial court discretion...


----------



## jacmyoung (Sep 9, 2006)

Greg Bimson said:


> ...The Court of Appeals won't overturn a finding of contempt and another order to disable if an evaluation of continuing infringement is positive...


True in most cases, I don't think I have ever said anything in contrast to the above.

There are however other reasons to overturn a finding of a contempt, the example I used was in an FDA drug case, where the infringer's "modified drug" was found to continue to infringe, and it was found in contempt of the injunction not to manufacture, use, sell...

But the contempt ruling was overturned because it turned out the infringer did not manufacture, use or sell that "modified drug" rather only filed a new FDA application for that "modified drug" in preparation to manufacture, use or sell...

Even though the appeals court agreed the infringer's such act was clearly to try to scam the system, but the injunction failed to say hey you may not file another FDA application, the infringer could not be found in contempt.


----------



## JyroBip (May 28, 2008)

It has been awhile since anyone has chimed in here.
Perhaps all are awaiting this weeks' statements of facts and fiction?..


----------



## CuriousMark (May 21, 2008)

JyroBip said:


> It has been awhile since anyone has chimed in here.
> Perhaps all are awaiting this weeks' statements of facts and fiction?..


Yup, at least I know I am. Everything else has just devolved into back and forth argument retreads. The only wrinkle is that Dish requested that something (they didn't say what) be removed from the transcript and gave notice they plan on using the the entire 21 day window to do so. This could delay those statements if Dish gets their way on it. The judge hasn't changed the schedule though, so it may make no difference. The request could be a signal that Dish is not supremely confident of their argument and are invoking any delay tactics that are available to them. Of course that is reading tea leaves, there may be no signal to be read there at all.


----------



## jacmyoung (Sep 9, 2006)

CuriousMark said:


> Yup, at least I know I am. Everything else has just devolved into back and forth argument retreads. The only wrinkle is that Dish requested that something (they didn't say what) be removed from the transcript and gave notice they plan on using the the entire 21 day window to do so. This could delay those statements if Dish gets their way on it. The judge hasn't changed the schedule though, so it may make no difference. The request could be a signal that Dish is not supremely confident of their argument and are invoking any delay tactics that are available to them. Of course that is reading tea leaves, there may be no signal to be read there at all.


From what I can tell, the only request was to keep some personal ID information confidential, and this request has no impact on the court schedule. The full transcript is already out, some of the TiVo folks had seen it, and we have the benefit of learning most what TiVo had said in there.


----------



## CuriousMark (May 21, 2008)

Correct me if I am wrong, but I had read that the filing that was submitted was only required if they wished to remove more than personal information. Also, the filing could have included the information that described what they wanted removed, but instead said they would provide it within the 21 days allowed. So they certainly are appearing to take every minute available to them. That hints that it might be about more than simple personal information. Again, correct me if I have that wrong, I am basing it on forum posts, not first hand understanding of the rules.


----------



## Steve (Aug 22, 2006)

This announcement sure puts a whole new spin on the importance of the lawsuit. /steve

*"ECHOSTAR UNVEILS WORLD'S FIRST SLINGLOADED HD DVR FOR CABLE"*

http://www.dbstalk.com/showthread.php?p=2046641#post2046641


----------



## Curtis52 (Oct 14, 2003)

CuriousMark said:


> Correct me if I am wrong, but I had read that the filing that was submitted was only required if they wished to remove more than personal information. Also, the filing could have included the information that described what they wanted removed, but instead said they would provide it within the 21 days allowed. So they certainly are appearing to take every minute available to them. That hints that it might be about more than simple personal information. Again, correct me if I have that wrong, I am basing it on forum posts, not first hand understanding of the rules.


The submittal was a notice of intent to give a redaction request to the court reporter. That is standard procedure for redaction requests for personal ID problems. All other requests for redaction must be submitted to the court in a motion. That isn't what happened. There has been no motion.


----------



## Ken_F (Jan 13, 2003)

Steve said:


> This announcement sure puts a whole new spin on the importance of the lawsuit. /steve
> 
> *"ECHOSTAR UNVEILS WORLD'S FIRST SLINGLOADED HD DVR FOR CABLE"*
> 
> http://www.dbstalk.com/showthread.php?p=2046641#post2046641


From what I understand, the Echostar T2200S (i.e. ViP921 for cable) will simply use the cable company's true2way DVR software. It won't have any DVR software of its own. Hence, Echostar cannot be held liable for software infringement.


----------



## jacmyoung (Sep 9, 2006)

Steve said:


> This announcement sure puts a whole new spin on the importance of the lawsuit. /steve
> 
> *"ECHOSTAR UNVEILS WORLD'S FIRST SLINGLOADED HD DVR FOR CABLE"*
> 
> http://www.dbstalk.com/showthread.php?p=2046641#post2046641


Yes and no.

Yes because what is at issue here is "the DVR functionalities, i.e. storage and playback of all data from the hard drive." All DVRs have this fundamental issue, may it be the 8 named DVRs in this lawsuit, or the new 622, 722 and 922 (E* and cable version), or the Comcast DVRs (or any cable DVRs), or the D* DVRs, or the OTA PC DVR cards&#8230;Therefore it is important to convince the court there can be different ways to achieve the DVR functionalities.

No because if one just look at how difficult for TiVo to even get their hands on the same 8 named old mostly discontinued DVRs, and even if successful, assume the appeals court upholds the decision, which could be likely up to two years from now, for TiVo to begin name any of the newer E* DVRs, not only must TiVo convince the court how the software used is merely colorably different, but also how the new hardware is also merely colorably different. Guess why Charlie is not so concerned about his new DVRs, and continues to roll out his new 922s, even the cable version, and continues going around saying: "Better than TiVo"


----------



## James Long (Apr 17, 2003)

FYI: Today would have been the deadline for DISH to identify to the court reporter what they wanted redacted. The proposed FFCLs from both DISH and TiVo are due "no later than 5:00 PM on Tuesday, March 31, 2009."

Those documents will be posted here when available unless they are filed under seal.

The last document filed in PACER in this case was March 18th.


----------



## CuriousMark (May 21, 2008)

Curtis52 said:


> The submittal was a notice of intent to give a redaction request to the court reporter. That is standard procedure for redaction requests for personal ID problems. All other requests for redaction must be submitted to the court in a motion. That isn't what happened. There has been no motion.


Thanks for the correction. I guess I misunderstood.


----------



## James Long (Apr 17, 2003)

[917] Motion to Redact Transcript - Unopposed MOTION to Redact [912] Transcript, [910] Transcript, by Echostar Satellite LLC, Echostar Communications Corporation, Echostar DBS Corporation, Dish Network Corporation, Echosphere Limited Liability Company.

[918] Order on Motion to Redact Transcript - ORDER granting [917] Motion to Redact re [912] Transcript, and [910] Transcript,. Signed by Judge David Folsom on 3/31/09.

[919] SEALED PATENT DOCUMENT EchoStar's Post-Hearing Proposed Findings of Fact and Conclusions of Law.

[920] SEALED PATENT DOCUMENT TiVo's Post-Hearing Proposed Findings of Fact and Conclusions of Law Regarding Contempt of the Permanent Injunction.

[921] SEALED PATENT MOTION to Strike or Exclude Hearing Testimony of Dr. Storer on Subjects Not Disclosed In His Expert Report by Echostar Satellite LLC, Echostar Communications Corporation, Echostar DBS Corporation, Dish Network Corporation, Echosphere Limited Liability Company. (Attachments: # (1) Exhibit A, # (2) Exhibit B, # (3) Text of Proposed Order)

[922] SEALED PATENT DOCUMENT: Notice of Graphics Shown By Defendants During February 17-19, 2009 Hearing. (Attachments: # (1) Exhibit A, # (2) Exhibit B, # (3) Exhibit C, # (4) Exhibit D)

(Sealed documents not available.)


----------



## James Long (Apr 17, 2003)

Curtis52 said:


> The submittal was a notice of intent to give a redaction request to the court reporter. That is standard procedure for redaction requests for personal ID problems. All other requests for redaction must be submitted to the court in a motion. That isn't what happened. There has been no motion.


Please see motion in above post.


----------



## jacmyoung (Sep 9, 2006)

James Long said:


> ...[921] SEALED PATENT MOTION to Strike or Exclude Hearing Testimony of Dr. Storer on Subjects Not Disclosed In His Expert Report by Echostar Satellite LLC, Echostar Communications Corporation, Echostar DBS Corporation, Dish Network Corporation, Echosphere Limited Liability Company. (Attachments: # (1) Exhibit A, # (2) Exhibit B, # (3) Text of Proposed Order)...


I could be wrong, but my recollection on this one is Dr. Storer made a new assertion about how the "ring of buffers" used by the hard drive could meet the limitation of the "multiple buffers" used by the "automatic flow control" function. E* contended he did not include such assertion in his expert disclosures, TiVo argued otherwise, the judge stopped the argument, allowed Dr. Storer's such assertion be included at the time, and made a note that if later he had the time to look into Dr. Storer's disclosures and E* was right, he would strike out such new testimony.

It seems E* is not waiting for the judge, rather wants to remind the judge to strike out that particular testimony by DR. Storer. I am sure the motion to strike tries to explain how Dr. Storer did not include that new assertion in his pre-hearing disclosures.


----------



## Curtis52 (Oct 14, 2003)

The Delaware court has said that the case there is best resolved by Folsom and will likely transfer the case.


----------



## dgordo (Aug 29, 2004)

Orders from the Delaware District Court:


----------



## Curtis52 (Oct 14, 2003)

Delaware Court:

"However, in the court's view, whether TiVo is ultimately able to make this showing is a decision best made by Judge Folsom given his experience with this case and the technology at issue".


----------



## jacmyoung (Sep 9, 2006)

> &#8230;Based on this evidence [provided by E*], the Court is unable to conclude that there is not a colorable difference between the re-designed products and the infringing products. However, to the Court's knowledge, TiVo has not an opportunity for significant discovery on the re-designed products, and, in fact, TiVo claims that Echostar has refused to produce some discovery pertaining to the re-designed products. Ultimately, TiVo may in fact be able to show that there is not a "colorable difference" between the re-designed products and the products accused in this action. However, in the Court's view, whether TiVo is ultimately able to make this showing is a decision best made by Judge Folsom given his experience with this case and the technology at issue&#8230;


A few observations, and IMHO of course:

1)	Based on E*'s argument, the DE court was unable to agree with TiVo the difference was only colorable.
2)	The DE court also could not say the difference was more than colorable, but the reason was because TiVo said they were not given sufficient discovery to prove only colorable difference. In a sense the DE court's decision, though made final on 3/31/09, was actually based on the information from 05/08 status meeting.
3)	A lot had happened since 05/08. TiVo had since been given the opportunity for a full discovery, the question is whether TiVo will be successful.
4)	And to answer this particular question, the DE court said Judge Folsom will be the best to make such decision.
5)	Of course, this is what we are waiting for from Judge Folsom.
6)	But the issue at the DE court is not the same, the issue at the DE court is that of whether the new design is non-infringing. On that issue, the DE court was silent.
7)	The DE court now has dismissed TiVo's motion to dismiss E*'s complaint, meaning the declaratory judgment proceeding has the merit to move forward.
8)	The only thing the DE court is now asking both parties to do is to tell them whether they think the declaratory judgment case should stay at the DE court or be transferred to the Texas court.

There is no doubt E* will argue that this case should remain at the DE court. TiVo will likely argue that this case should be transferred to Judge Folsom's court. The DE court will then make the decision whether the case should stay or be transferred.

I want to also note that based on the DE court decision, I think it is now clear that the "infringing products" may be re-designed to be more than colorably different, and/or to be non-infringing. Else this case would have been dismissed.


----------



## Greg Bimson (May 5, 2003)

jacmyoung said:


> I want to also note that based on the DE court decision, I think it is now clear that the "infringing products" may be re-designed to be more than colorably different, and/or to be non-infringing. Else this case would have been dismissed.


Of course, this has always been the case. The issue at hand is regarding those products which have already been found infringing and are also subject to another court order.


jacmyoung said:


> 1) Based on E*'s argument, the DE court was unable to agree with TiVo the difference was only colorable.
> 2) The DE court also could not say the difference was more than colorable, but the reason was because TiVo said they were not given sufficient discovery to prove only colorable difference. In a sense the DE court's decision, though made final on 3/31/09, was actually based on the information from 05/08 status meeting.
> 3) A lot had happened since 05/08. TiVo had since been given the opportunity for a full discovery, the question is whether TiVo will be successful.
> 4) And to answer this particular question, the DE court said Judge Folsom will be the best to make such decision.
> ...


This can be wrapped up in about two sentences:

DISH/SATS had asked the Delaware for a declaratory judgment that their "new products" are more than colorably different and do not infringe. By moving that to Judge Folsom's court, eight of those products are being evaluated for colorable difference and infringment.

Armed with the information about the eight products having their status of ongoing infringement tested, it is possible there is enough of an overlap to have the case dismissed. I wouldn't think DISH/SATS wants to ask Judge Folsom for a declaratory ruling on the ViP series regarding infringement status. I suspect if this does not move forward in Delaware but in Texas, DISH/SATS would then voluntarily withdraw the case.


----------



## jacmyoung (Sep 9, 2006)

Let's not confuse the two cases.

The DE case is about E*'s request that the DE court declares the E*'s re-designed DVRs no longer infringing. When E* filed such complaint on 5/30/08, it was clearly referring to the modified 8 named DVRs, because TiVo made several claims before they even had a chance to see the new code that the modified DVRs still would infringe.

So we are still talking about the 8 named DVRs.

Now the DE court's job is to decide if such E*'s complaint, according to TiVo, should be dismissed.

TiVo had made several arguments, all dismissed by the DE court. The DE court did spend some time to respond to one of TiVo's several arguments, that was the modified DVRs were only colorably different, and TiVo would try to prove that but at the time TiVo did not have a full discovery opportunity to do so. But nevertheless TiVo wanted to convince the DE court that the modified DVRs were no different.

The DE court said no, based on E*'s evidence, we could not agree with TiVo that the modified DVRs were no more than colorably different, but the DE court did agree that TiVo could in the future prove it after the full contempt proceeding went through its own course, but it was not DE court's job to decide on the colorable difference issue, rather Judge Folsom.

This decision is one-sided, the DE court agreed with E* on all issues, dismissed TiVo's motion to dismiss. So the DE court decided E*'s new action will move forward.

Notice there is no mentioning of VIP or any specific DVRs. When E* originally filed the complaint, it referred to the 8 named "modified DVRs" therefore the DE court must address such products, not some other VIP DVRs.

The reason the DE court also ordered both parties to make another round of arguments if this new action should take place in the DE court, or be transferred, is because as the DE court stated, both parties must be given sufficient notification and time to argue which court must have the jurisdiction over the new action, so not to violate either party's due process rights.

I my view there will be no due process violation against TiVo if this new action remains at the DE court. Both parties are registered DE corporations.

The only reason, as cited by the DE court for a transfer was, if by not transferring the case, TiVo would have not had its own due process right to address all the issues in the contempt proceeding in the Texas court.

But we know the contempt proceeding in the Texas court has been fully entertained by Judge Folsom. The only thing left is a ruling.

So the new action at the DE court, which has nothing to do with the contempt issue, will likely stay at the DE court. The DE court however must give both parties the opportunity to be notified, and then argue for proper jurisdiction, before the new action may proceed forward.

Even if after hearing both arguments, the DE court decides to transfer this new action to the Texas court, Judge Folsom will still not be making a decision on the VIPs, only whether to declare the E* modified DVRs are no longer infringing. That is what this new action is all about, whether to grant E*'s motion to declare that the modified E* DVRs are no longer infringing, called a declaratory judgment, separate from this contempt proceeding.


----------



## Curtis52 (Oct 14, 2003)

jacmyoung said:


> The DE case is about E*'s request that the DE court declares the E*'s re-designed DVRs no longer infringing. When E* filed such complaint on 5/30/08, *it was clearly referring to the modified 8 named DVRs*





jacmyoung said:


> If the DE takes the case, *the issue will cover all DISH DVRs with the new software*, the DE court will be looking into the new software only, no difference what DVRs are using it.


It's getting hard to keep up.


----------



## jacmyoung (Sep 9, 2006)

Curtis52 said:


> It's getting hard to keep up.


You are trying too hard. I can point out all the instances where you quoted out of the context, including the most recent DE court quote, and in this case can easily mislead people.

The DE court never said Judge Folsom was better at making the declaratory judgment, only the colorable difference issue.


----------



## CuriousMark (May 21, 2008)

jacmyoung said:


> The DE court never said Judge Folsom was better at making the declaratory judgment, only the colorable difference issue.


If the case is transferred Folsom will do both. If the case is not transferred, DE will have to do both, effectively repeating at least part of this last hearing.


----------



## jacmyoung (Sep 9, 2006)

CuriousMark said:


> If the case is transferred Folsom will do both. If the case is not transferred, DE will have to do both, effectively repeating at least part of this last hearing.


This declaratory judgment case first off will be a jury trial because E* asked for a jury trial, secondly it will have nothing to do with determining any colorable difference issue. It will be similar to the jury trial back three years ago, only that the role is reversed, back then TiVo was asking the jury to find E*'s 8 named DVRs infringing, now E* is seeking a jury finding of the re-designed DVRs non-infringing.

Neither of which involves any colorable difference issues.

The reason the DE court even mentioned the colorable difference issue was because TiVo tried to dismiss this new action by arguing the re-designed DVRs were not colorably different. Such argument was rebutted by the DE court, as the DE court pointed out the colorable difference issue was the decision for Judge Folsom to make, because the colorable difference issue is addressed in a contempt proceeding, which is currently presided by Judge Folsom, not the DE court.

Both the last jury trial by TiVo, and this proposed jury trial by E* (which has been essentially granted by the DE court), are infringement cases, not contempt proceedings.

There is a chance the DE court may decide to transfer this new case to the Texas court, but IMO the chance is not high for reasons I explained earlier. But regardless which court may end up with this new case, it is an infringement case, independent of the current contempt proceeding.


----------



## Curtis52 (Oct 14, 2003)

CuriousMark said:


> If the case is transferred Folsom will do both. If the case is not transferred, DE will have to do both, effectively repeating at least part of this last hearing.


Yes, but if there is no settlement, TiVo will soon be filing a contempt motion for the newer models of DVRs. Those contempt hearings on colorable differences will happen before any trials on the Delaware issue. After Dish has been found in contempt for all their DVR models the Delaware question will be moot.


----------



## James Long (Apr 17, 2003)

Filed & Entered: 04/01/2009

[---] NOTICE of Deficiency regarding the 921 submitted by Echostar Satellite LLC, Echostar Communications Corporation, Echostar DBS Corporation, Dish Network Corporation, Echosphere Limited Liability Company. No Certificate of Conference. Correction should be made by One business day.

[923] SEALED PATENT ADDITIONAL ATTACHMENTS to Main Document: [919] Sealed Patent Document: Appendix to EchoStar's Post-Hearing Findings of Fact and Conclusions of Law. (Attachments: # (1) Exhibit A)

[924] NOTICE by Echostar Satellite LLC, Echostar Communications Corporation, Echostar DBS Corporation, Dish Network Corporation, Echosphere Limited Liability Company of Order Denying TiVo's Motion to Dismiss Delaware Action (Attachments: # (1) Exhibit A, # (2) Exhibit B)


----------



## jacmyoung (Sep 9, 2006)

Curtis52 said:


> Yes, but if there is no settlement, TiVo will soon be filing a contempt motion for the newer models of DVRs. Those contempt hearings on colorable differences will happen before any trials on the Delaware issue. After Dish has been found in contempt for all their DVR models the Delaware question will be moot.


If the DE court decides later to transfer this new case to the Texas court, then yes Judge Folsom will have presided over both cases, but if the DE court decides to preside over this new case, the DE court will not be handling "both" because the DE court has no jurisdiction over the previous TiVo's jury trial nor the current contempt proceeding, of which both are the same case presided over by Judge Folsom.

I don't think TiVo can file another contempt motion on any newer DVRs until the ruling on the current contempt proceeding is out and only if the ruling is in TiVo's favor.

But even if Judge Folsom finds a contempt in the current proceeding, E* should still be able to proceed with a jury trial on the new case simply because E* has the right to a jury trial on a new case, that case is whether the re-designed DVRs are non-infringing.

What I do not know is if E* insists to go that jury trial route after, and assume Judge Folsom does find contempt, would the contempt ruling be allowed as evidence for the new jury trial.

I do agree that if there is a contempt on the current proceeding, E* will have to fight this battle first through appeals, rather bother with the declaratory judgment case.

But now with the DE court decision in E*'s favor, there is even less chance E* will settle unless the settlement proposed by TiVo substantially benefits E*. Anything is possible.


----------



## Greg Bimson (May 5, 2003)

jacmyoung said:


> The DE court never said Judge Folsom was better at making the declaratory judgment, only the colorable difference issue.





CuriousMark said:


> If the case is transferred Folsom will do both. If the case is not transferred, DE will have to do both, effectively repeating at least part of this last hearing.


If the case is not transferred, the Delaware court will obviously retreading the same issues that were just before Judge Folsom.

If the case is transferred, it is obvious that the declaratory judgment filed by DISH/SATS cannot be used on the eight models of receivers currently in front of Judge Folsom.

Either that or the software would be treated as one product, and the receivers (including the software) would be another.


----------



## Curtis52 (Oct 14, 2003)

If contempt is not found, I'm guessing TiVo will ask for the hardware claims to be revisited as suggested by the appeals court.


----------



## jacmyoung (Sep 9, 2006)

Greg Bimson said:


> If the case is not transferred, the Delaware court will obviously retreading the same issues that were just before Judge Folsom.


What same issues? The issue about whether the 8 named DVRs under the old design infringed? Or the issue about whether the modified 8 named DVRs are only colorably different? These are the issues before Judge Folsom either in the past or right now. The delaratory judgment case filed by E* has nothing to do with these two issues.



> If the case is transferred, it is obvious that the declaratory judgment filed by DISH/SATS cannot be used on the eight models of receivers currently in front of Judge Folsom.


Why not? This case is about infringement issue on the modified ("re-designed") 8 named DVRs, once granted, the issue cannot be changed to cover some other products unless E* wants to amend it and TiVo does not object to it. The decision has been made by the DE court already to grant this case.



> Either that or the software would be treated as one product, and the receivers (including the software) would be another.


The software has already been treated as a product. Else the DE court would not have defined the E*'s modified 8 named DVRs as "re-designed products."


----------



## jacmyoung (Sep 9, 2006)

Curtis52 said:


> If contempt is not found, I'm guessing TiVo will ask for the hardware claims to be revisited as suggested by the appeals court.


Unlikely, but if TiVo does so, E* can easily have such motion denied, that is if a contempt is not found.


----------



## dgordo (Aug 29, 2004)

jacmyoung said:


> There is a chance the DE court may decide to transfer this new case to the Texas court, but IMO the chance is not high for reasons I explained earlier. But regardless which court may end up with this new case, it is an infringement case, independent of the current contempt proceeding.


The DE court nearly transfered the case sua sponte. The DE court wants nothing to do with this case and is only requesting briefs on the issue to avoid violating due process.


----------



## dfd (Aug 29, 2008)

jacmyoung said:


> Unlikely, but if TiVo does so, E* can easily have such motion denied, that is if a contempt is not found.


On what grounds?

The verdict was remanded back to the TX court IIRC. TiVo has every right to go after this claim again.

How could it be 'easily denied'?


----------



## jacmyoung (Sep 9, 2006)

dgordo said:


> The DE court nearly transfered the case sua sponte. The DE court wants nothing to do with this case and is only requesting briefs on the issue to avoid violating due process.


On that I agree, E* must do a good job to convince the DE court to keep the new case there.

However I want to point out one thing, the DE court considers the modified 8 named DVRs as "re-designed products." This is a definition that goes beyond the term "modified DVRs" the parties and everyone of us have been using so far. The message is clear and TiVo should read between the lines.


----------



## jacmyoung (Sep 9, 2006)

dfd said:


> On what grounds?
> 
> The verdict was remanded back to the TX court IIRC. TiVo has every right to go after this claim again.
> 
> How could it be 'easily denied'?


Because if you recall, when Judge Folsom first ordered his "bench trial" hearing for 2/17, he followed the appeals court's suggestion to want to address both the software and hardware claims, but TiVo decided not to use the hardware claims, against the judge's wish, according to TiVo they wanted to make it simple. But in reality TiVo realized hardware claims were much harder to prove.

If TiVo fails even on the basis of the software claims, (based on Curtis52's own premise of a no contempt) which would have been an easier one than going after the hardware claims, E* can easily argue there should be no chance for TiVo to win on the hardware claims. Additionally, it is unfair for TiVo to give up on some ground voluntarily, against the judge's own urging, then after TiVo fails they may be allowed to revisit the issue.


----------



## Curtis52 (Oct 14, 2003)

dfd said:


> The verdict was remanded back to the TX court IIRC. TiVo has every right to go after this claim again.


Yep. It isn't related to the contempt issue in any way. If Dish is found to have infringed the hardware claims, they can't be found in contempt on that basis alone. They would probably be given a few days to disable the DVRs and then be subject to contempt if they didn't comply.


----------



## Greg Bimson (May 5, 2003)

jacmyoung said:


> On that I agree, E* must do a good job to convince the DE court to keep the new case there.
> 
> However I want to point out one thing, the DE court considers the modified 8 named DVRs as "re-designed products." This is a definition that goes beyond the term "modified DVRs" the parties and everyone of us have been using so far. The message is clear and TiVo should read between the lines.


Your Honor in Delaware,
Please keep our case under your jurisdiction. We would like you to hold a jury trial to evaluate our redesigned products for infringement.

Please pay no attention to that man behind the curtain over in eastern Texas, who is already doing that exact same evaluation.


----------



## jacmyoung (Sep 9, 2006)

Curtis52 said:


> ...If Dish is [were] found to have infringed the hardware claims, they can't be [couldn't have been] found in contempt on that basis alone...


Why not? E* was found to have infringed the software claims, are you saying E* now can't be found in contempt on this basis alone?


----------



## jacmyoung (Sep 9, 2006)

Greg Bimson said:


> Your Honor in Delaware,
> Please keep our case under your jurisdiction. We would like you to hold a jury trial to evaluate our redesigned products for infringement.
> 
> Please pay no attention to that man behind the curtain over in eastern Texas, who is already doing that exact same evaluation.


The DE court has already granted E*'s new case to move forward, meaning E* will have the right to a new jury trial, whether it is in the DE court, or transferred to Judge Folsom.

The right to a jury trial is a fundamental right in a new case, the court cannot deny such right.


----------



## jacmyoung (Sep 9, 2006)

And let me make another point, why I have been saying over and over, whether the modified DVRs (the "re-designed products") are an infringement or not, may not be determined in this contempt proceeding. By the DE court granting this new case to determine if the "re-designed products" are infringement or not, it signals TiVo that Judge Folsom will not be able to make such infringement decision in his current contempt proceeding.

The Court should not duplicate an issue in two separate cases. The new case is now assigned to address the infringement issue, the implication is clear, Judge Folsom is now almost forced to find E* not in contempt.

Because to find E* in contempt, he must first find the difference only colorable, then agree that TiVo has proven by clear and convincing evidence that the "re-designed products" are still an infringement. But to do so will mean that Judge Folsom will have to then dismiss this new case, which had just been granted by the DE court.

A district court judge is unlikely to do anything to nullify a decision made by one of his/her own fellow district court judges.

The timing of the DE court's decision is no coincidence, it happened right after both E* and TiVo had submitted their final proposed FFCLs to Judge Folsom. The message is very clear, TiVo must weigh the risk of going down this road with E*, all over, again.


----------



## Greg Bimson (May 5, 2003)

jacmyoung said:


> By the DE court granting this new case to determine if the "re-designed products" are infringement or not, it signals TiVo that Judge Folsom will not be able to make such infringement decision in his current contempt proceeding.


The Delaware case is whether the "modified software" still infringes. That case can proceed under Judge Folsom. By the time a trial even starts regarding the modified software, the modified devices will have been evaluated for infringement.

Different products, different cases.


----------



## jacmyoung (Sep 9, 2006)

Greg Bimson said:


> The Delaware case is whether the "modified software" still infringes...


I hope you can quote me where did it say the DE case was whether the "modified software" still infringed.

From what I can see, it is about whether the "re-designed products" still infringe, and in making the decision, the DE court even compared the "re-designed products" with the "infringing products" as urged by TiVo.

Please show me your basis for your above claim.


----------



## nobody99 (May 20, 2008)

jacmyoung said:


> The message is clear and TiVo should read between the lines.


:lol: :lol: LOL :lol: :lol:


----------



## Tower Guy (Jul 27, 2005)

jacmyoung said:


> However I want to point out one thing, the DE court considers the modified 8 named DVRs as "re-designed products."


The Judge must use words to define the case. To me, the simple use of the word "re-designed" in the decision does not imply that the Judge determined that the re-design is non-infringing.


----------



## jacmyoung (Sep 9, 2006)

With this new development, I will bring back a story I had posted some time earlier:

http://www.law.com/jsp/PubArticle.jsp?id=900005504899

I am sure many had read it, but for those not yet done so it is a long one but well worth the read. I will again summarize it to make some relevant observation to the current situation.

Back when E* just lost the initial jury trial case to TiVo in 06, the environment in that Texas court house was very toxic to any defendants in a patent infringement case. So after E*'s loss, Forgent filed a similar DVR patent infringement suit against E*, D* and Time Warner. Considering the toxic environment at the time, both D* and TW settled with Forgent for $8M and $20M respectively before the jury trial.

Charlie was the only one went ahead with the trial, even after he had just lost one to TiVo, and what was more, he used the same lawyers who had just managed to lost the case against TiVo. But this second time the same lawyers learned the lesson from the TiVo trial, used a different strategy and convinced the jury to throw the Forgent case out.

The strategy? To make it simple, convince the jury that the Forgent DVR patent was invalid, never mine whether E* infringed it or not.

Guess what, it is happening again. E* had just recently managed to convince the USPTO to re-examine the TiVo's software claims, because as the USPTO agreed with E*, with the new information provided by E*, there is now "substantial new light" questioning the validity of the TiVo's software patent claims.

With the new DE court decision, E* will have the right to a new jury trial to determine if the modified DVRs no longer infringe. To do so, E* only needs to convince the jury the TiVo's software patent claims are invalid, and E* has the USPTO's agreement as evidence.

Yes, TiVo needs to seriously read between the lines now. TiVo now stands the chance to have their only two remaining patent claims thrown out by a new jury. The consequences of such outcome will be devastating to TiVo.


----------



## jacmyoung (Sep 9, 2006)

Tower Guy said:


> The Judge must use words to define the case. To me, the simple use of the word "re-designed" in the decision does not imply that the Judge determined that the re-design is non-infringing.


Of course not, I never implied such, but to understand why I made a point of that, one needs to read all the thousands of the posts we had in the past year


----------



## dgordo (Aug 29, 2004)

jacmyoung said:


> TiVo now stands the chance to have their only two remaining patent claims thrown out by a new jury. The consequences of such outcome will be devastating to TiVo.


Are you implying that a jury in DE has the right to overturn a jury verdict in TX?


----------



## Greg Bimson (May 5, 2003)

I thought TiVo's motion to dismiss was denied in Delaware, but that the judge also has pretty much determined that the case should be moved under Judge Folsom.

However, I do not see where a jury trial has even been granted yet. Judge Folsom will not grant a jury trial on devices he's already evaluated for colorable difference and infringement.


----------



## Curtis52 (Oct 14, 2003)

If the DE case is moved to Texas, Judge Folsom would be free to grant a dismissal motion from TiVo or just table the lawsuit until TiVo is finished with contempt hearings on the remainder of the DVR models.


----------



## jacmyoung (Sep 9, 2006)

dgordo said:


> Are you implying that a jury in DE has the right to overturn a jury verdict in TX?


The verdict the new jury will render, if it comes to that, will be that whether the "re-designed products" no longer infringe. The Texas jury never made any such verdict because the "re-designed products" did not exist at that time.


----------



## jacmyoung (Sep 9, 2006)

Greg Bimson said:


> ...However, I do not see where a jury trial has even been granted yet...


When a complaint is granted, the parties will have the right too seek that a jury hear the facts and make the decision, there is no granting of such request because it is the *right* of the parties to seek jury trial.


----------



## dgordo (Aug 29, 2004)

jacmyoung said:


> The verdict the new jury will render, if it comes to that, will be that whether the "re-designed products" no longer infringe. The Texas jury never made any such verdict because the "re-designed products" did not exist at that time.


You said, "TiVo now stands the chance to have their only two remaining patent claims thrown out by a new jury. The consequences of such outcome will be devastating to TiVo." Of course a jury cant throw out a patent but semantics aside, losing a jury trial is always a risk. You could just as easily say that DISH now stands the chance of a jury ruling against them, the consequences of such outcome will be devastating. However, it didn't seem to worry either party in the first trial. Both sides seem to be playing with a nothing to lose attitude.


----------



## dgordo (Aug 29, 2004)

jacmyoung said:


> When a complaint is granted.....


Lets wait until that happens.


----------



## jacmyoung (Sep 9, 2006)

Curtis52 said:


> If the DE case is moved to Texas, Judge Folsom would be free to grant a dismissal motion from TiVo


In theory yes be not in reality, a district judge is very unlikely to overturn another district judge's ruling. It is not an appeal, a district court has no power over another district court.



> ...or just table the lawsuit until TiVo is finished with contempt hearings on the remainder of the DVR models.


TiVo can't even finish the 8 named DVRs, which for all we know most of them are discontinued. First thing first.

The point however is, if the new case is transferred to Judge Folsom, which will determine whether the modified 8 named DVRs no longer infringe, then even if he tables it, he will still not able to rule that TiVo may have proven by clear and convincing evidence the modified 8 named DVRs still infringe, because this decision is to be made in this new case, not in the current contempt proceeding.

So in a sense this DE court decision will force a no contempt ruling from Judge Folsom, unless if Judge Folsom is willing to rule against his fellow DE court judge in order to produce a contempt ruling.


----------



## jacmyoung (Sep 9, 2006)

dgordo said:


> ...You could just as easily say that DISH now stands the chance of a jury ruling against them, the consequences of such outcome will be devastating. ...


I disagree, a jury ruling against E* next time will not be as devastating, because it will still only be those 8 named DVRs which by that time will likely not have many in service. They will still have not touched on any newer E* DVRs.

If TiVo loses, their whole livelihood will be gone.


----------



## nobody99 (May 20, 2008)

jacmyoung said:


> E* had just recently managed to convince the USPTO to re-examine the TiVo's software claims, because as the USPTO agreed with E*, with the new information provided by E*, there is now "substantial new light" questioning the validity of the TiVo's software patent claims.


Please, stop lying. It's been pointed out to you repeatedly that the USPTO doesn't "agree with" E*, and they don't believe that there is "substantial new light" (whatever that means).

Anyone, and I mean anyone, can pony up some money and ask for a reexam.

And, again, just for the fun of it, if the patent was so obvious, why didn't E* think of it before they saw TiVo's box? Hmm? Maybe it wasn't so obvious after all?


----------



## jacmyoung (Sep 9, 2006)

nobody99 said:


> Please, stop lying. It's been pointed out to you repeatedly that the USPTO doesn't "agree with" E*, and they don't believe that there is "substantial new light" (whatever that means)...


I will only respond with the USPTO's decision if another person agrees with you, other wise please go read the USPTO's decision for yourself.


----------



## nobody99 (May 20, 2008)

jacmyoung said:


> I disagree, a jury ruling against E* next time will not be as davastating, because it will still only be those 8 named DVRs which by that time will likely not have many in service. They will still have not touched on any newer E* DVRs.


Uh, what?

No, I dare say that next time it will be every DVR that DISH has. Remember, most people think that they still infringe. So even if Folsom finds no contempt, he *cannot find "no infringment"*. He has two choices: merely colorable and infringing, or more than colorable.

If he finds "more than colorable" then Judge Folsom will have to decide what to do with the DE case that will be transferred to him.



> If TiVo loses, their whole livelihood will be gone.


TiVo has $200 million in the bank, no debt, deals with DirecTV and Comcast. They are cash flow positive. They will be fine. Plus they have all sorts of new things to sue DISH over once this case is wrapped up. The "TiVo fan's" brain just salivates with the possibilities of screwing with DISH. Seriously, they are not going away, and they are going to continue to sue DISH until the cows come home.

TiVo also doesn't have the burden of multiple billions (with a "B") of debt like DISH does. Let's see what happens to DISH once interest rates go up. The world "default" comes to mind.


----------



## nobody99 (May 20, 2008)

jacmyoung said:


> I will only respond with the USPTO's decision if another person agrees with you, other wise please go read the USPTO's decision for yourself.


I seriously hope you don't think I'm waiting for you to respond. :lol:

TiVo's press release:



> EchoStar's latest request for reexamination is based on a combination of two prior art references that were both already submitted to the USPTO in connection with the earlier reexamination," said the company. "*The USPTO grants most patent reexamination requests. Contrary to EchoStar's statement, the USPTO made no substantive findings.* We are confident that the USPTO will once again confirm the validity of all of the claims of the Time Warp patent


----------



## dgordo (Aug 29, 2004)

jacmyoung said:


> In theory yes be not in reality, a district judge is very unlikely to overturn another district judge's ruling. It is not an appeal, a district court has no power over another district court.
> 
> TiVo can't even finish the 8 named DVRs, which for all we know most of them are discontinued. First thing first.
> 
> ...


If a case is transferred to another court it begins anew. Nothing that happened up until that point has any bearing other than the transfer.


----------



## dgordo (Aug 29, 2004)

jacmyoung said:


> I will only respond with the USPTO's decision if another person agrees with you, other wise please go read the USPTO's decision for yourself.


It has been pointed out several times that the PTO grants nearly all of these requests.


----------



## dgordo (Aug 29, 2004)

jacmyoung said:


> I disagree, a jury ruling against E* next time will not be as devastating, because it will still only be those 8 named DVRs which by that time will likely not have many in service. They will still have not touched on any newer E* DVRs.
> 
> If TiVo loses, their whole livelihood will be gone.


DISH is moving for a declaratory judgment that their new DVRs don't infringe. DISH makes no mention of any named DVRs (Read the document). If they were to lose that would be devastating.


----------



## jacmyoung (Sep 9, 2006)

dgordo said:


> DISH is moving for a declaratory judgment that their new DVRs don't infringe. DISH makes no mention of any named DVRs (Read the document). If they were to lose that would be devastating.


Reading in the context of filings by both parties, the new case is about the modified 8 named DVRs. E* could not have been referring to any other DVRs because no other DVRs had ever been ruled as infringing products by the court, therefore there is no point of trying to have the court declare them non-infringing.

Even if E* were so stupid to ask for that, the court would not have granted such stupid request, it would be a waste of court economy to try to declare a product no-longer infringing when it had never been ruled as infringing product in the first place.


----------



## jacmyoung (Sep 9, 2006)

dgordo said:


> It has been pointed out several times that the PTO grants nearly all of these requests.


It is the justification by the USPTO that is very telling, according to them, they agreed with E* that "substantial new light" now exists to question the validity of the TiVo's software patent claims.


----------



## jacmyoung (Sep 9, 2006)

dgordo said:


> If a case is transferred to another court it begins anew. Nothing that happened up until that point has any bearing other than the transfer.


Try, but if TiVo again tries to dismiss the case, Judge Folsom will weigh DE court's decision heavily in response. Unless the DE court made some serious error, Judge Folsom is very unlikely to rule in contrast.


----------



## jacmyoung (Sep 9, 2006)

nobody99 said:


> I seriously hope you don't think I'm waiting for you to respond. :lol:
> 
> TiVo's press release:


Wrong quote, I was referring to the USPTO's decision, not TiVo's response. You don't see me constantly quoting E*'s response do you? For a good reason, they don't make the call, the courts and the USPTO do.


----------



## dgordo (Aug 29, 2004)

jacmyoung said:


> Reading in the context of filings by both parties, the new case is about the modified 8 named DVRs. E* could not have been referring to any other DVRs because no other DVRs had ever been ruled as infringing products by the court, therefore there is no point of trying to have the court declare them non-infringing.
> 
> Even if E* were so stupid to ask for that, the court would not have granted such stupid request, it would be a waste of court economy to try to declare a product no-longer infringing when it had never been ruled as infringing product in the first place.


You really need to read the complaint. DISH repeatedly says New DVRs. The rest of your post only indicates that you still don't know what a declaratory judgment is about.


----------



## dgordo (Aug 29, 2004)

jacmyoung said:


> Try, but if TiVo again tries to dismiss the case, Judge Folsom will weigh DE court's decision heavily in response. Unless the DE court made some serious error, Judge Folsom is very unlikely to rule in contrast.


That is just wrong. Judge Folsom must hear the case anew. Judge Folsom is not on an appellate court overseeing a district court in DE. You make it seem as if a party is only allowed to make one motion to dismiss and then they cant do it again. If any party wanted they could make motion to dismiss repeatedly.

When a case is transferred the court must hear the case anew.


----------



## Greg Bimson (May 5, 2003)

jacmyoung said:


> Reading in the context of filings by both parties, the new case is about the modified 8 named DVRs. E* could not have been referring to any other DVRs because no other DVRs had ever been ruled as infringing products by the court, therefore there is no point of trying to have the court declare them non-infringing.
> 
> Even if E* were so stupid to ask for that, the court would not have granted such stupid request, it would be a waste of court economy to try to declare a product no-longer infringing when it had never been ruled as infringing product in the first place.


A company, when facing the threat of a lawsuit for patent infringement, can trump the filing by the patentee by asking for a declaratory judgment that products or processes do not infringe.

TiVo CEO Rogers had stated he felt the new software still infringed. DISH/SATS hauled that statement into court to ask for a declaratory judgment that the modified products do not infringe. DISH/SATS, along with the eight models already found to infringe, had also modified others, such as the ViP 622 and 722. DISH/SATS never did narrow the scope of the "modified products" in any Delaware filings (that we are aware of).

The judge in Delaware is basically stating colorable difference needs to be addressed. It is already happening in Texas on eight models. Therefore, the Delaware filing will not address any of the eight models currently in front of Judge Folsom, unless Judge Folsom finds those devices more than colorable in this section of the contempt motion.


jacmyoung said:


> Try, but if TiVo again tries to dismiss the case, Judge Folsom will weigh DE court's decision heavily in response. Unless the DE court made some serious error, Judge Folsom is very unlikely to rule in contrast.


The Delaware court did not address the fact that eight of the models are being evaluated against the colorable difference and infringement standards upon issuing the dismissal of TiVo's motion. Had the Delaware court been aware, it would have dismissed or tabled any litigation on the eight models in front of Judge Folsom.


----------



## CuriousMark (May 21, 2008)

jacmyoung said:


> Try, but if TiVo again tries to dismiss the case, Judge Folsom will weigh DE court's decision heavily in response. Unless the DE court made some serious error, Judge Folsom is very unlikely to rule in contrast.


Why would TiVo want it dismissed? Once it is in Folsom's court it is the issue they want to address, and address sooner rather than later. Dish will have done them a favor. Colorable differences and infringement analysis of the new receiver can get started right away. And to top that off, if infringement is found with the workaround on the 8 devices, then it is highly likely that the new ones will be ordered shut down via a preliminary injunction while the new trial is being put in motion.


----------



## Curtis52 (Oct 14, 2003)

CuriousMark said:


> Why would TiVo want it dismissed?


I've never heard of the plaintiff having to pay damages if they lose. Court costs yes. Not damages.

TiVo wants damages.

Also, the DE complaint is a new complaint entirely. That might require a new Markman hearing. A new jury trial if needed as part of TiVo's filings, on the other hand, might be considered a supplemental action and not require a new Markman hearing. I don't know_._


----------



## jacmyoung (Sep 9, 2006)

Greg Bimson said:


> ...Therefore, the Delaware filing will not address any of the eight models currently in front of Judge Folsom...


Show me where did the DE court imply that the 8 named modified DVRs will not be part of this declaratory judgment.

The DE court referred to the modified 8 named DVRs as "re-designed products." I agree if E* did not specifically name the 8 named DVRs, it can be assumed the DVRs outside of the 8 named DVRs may be part of the case, but it is hard to argue that when the DE court used the term "re-designed products" it was referring to the VIP DVRs.

The VIP DVRs are not "re-designed products" rather new products. A re-designed product implies that it is based on some older design.

But the most important point is this, When TiVo asked the DE court to dismiss the case, TiVo's argument was precisely that, the modified DVRs were those 8 named DVRs, and they were no different, Judge Folsom was already addressing them, therefore the new case had no merit. TiVo couldn't possibly be referring to the newer DVRs such as the VIP DVRs.

And the DE court response was, did not matter, the modified DVRs had created a "new controversy" and therefore TiVo's motion was denied.

As far as if this case is transferred to Judge Folsom, can TiVo motion him to dismiss the case again, of course TiVo can try, I never said they cannot. But when Judge Folsom considers such motion, he will not ignore the DE court's decision to dismiss TiVo's such similar prior motion. It is not as if the DE court simply dismissed TiVo's motion without giving its own justifications, in fact the DE court addressed all the issues raised by TiVo and E* with regard to whether the new case should be dismissed, and rebutted all TiVo's arguments, and agreed with all E*'s arguments.

The question is not if after the case is transferred, whether it will be "anew", rather in such renewed effort, what are the chances TiVo may succeed in having the same case dismissed, when another court had already resoundingly denied such TiVo's similar attempt.

The merit of this new case is that once the same DVRs have been "re-designed" whether they are still an infringement or not has become a *new controversy*, that was the most important reason why the DE court denied TiVo's motion. And such factor will not change regardless which court will be handling this case. Judge Folsom is under the same law and operates by the same standards as the judge in the DE court.


----------



## dgordo (Aug 29, 2004)

jacmyoung said:


> As far as if this case is transferred to Judge Folsom, can TiVo motion him to dismiss the case again, of course TiVo can try, I never said they cannot. But when Judge Folsom considers such motion, he will not ignore the DE court's decision to dismiss TiVo's such similar prior motion.


Not only would he ignore the DE courts decisions but he is required to, in fact the DE judge is asking him to by telling him he is in a better position to decide if the case should proceed or be dismissed.



jacmyoung said:


> It is not as if the DE court simply dismissed TiVo's motion without giving its own justifications, in fact the DE court addressed all the issues raised by TiVo and E* with regard to whether the new case should be dismissed, and rebutted all TiVo's arguments, and agreed with all E*'s arguments.
> 
> The question is not if after the case is transferred, whether it will be "anew", rather in such renewed effort, what are the chances TiVo may succeed in having the same case dismissed, when another court had already resoundingly denied such TiVo's similar attempt.


The DE judge denied the motion to dismiss because he said that he did not have the information necessary to determine if the DVRs were similar enough to the DVRs in the TX case. He vecer said that with the proper info the case could not be dismissed. This is why he believes Folsom is in a better position to determine if the case should be dismissed or continue.



jacmyoung said:


> The merit of this new case is that once the same DVRs have been "re-designed" whether they are still an infringement or not has become a *new controversy*, that was the most important reason why the DE court denied TiVo's motion. And such factor will not change regardless which court will be handling this case. Judge Folsom is under the same law and operates by the same standards as the judge in the DE court.


If that were true the contempt hearing would be a mere sham.


----------



## dgordo (Aug 29, 2004)

jacmyoung said:


> It is the justification by the USPTO that is very telling, according to them, they agreed with E* that "substantial new light" now exists to question the validity of the TiVo's software patent claims.


They say that a lot. Rarely do they do anything about it.


----------



## CuriousMark (May 21, 2008)

Curtis52 said:


> Also, the DE complaint is a new complaint entirely. That might require a new Markman hearing. A new jury trial if needed as part of TiVo's filings, on the other hand, might be considered a supplemental action and not require a new Markman hearing. I don't know_._


I would hope that the existing Markman hearing results would carry over. I don't know either. My comment was a bit flip, rather than a real question. My point was simply that at some point, unless there is a settlement first, even TiVo will want to see an answer to this question.


----------



## jacmyoung (Sep 9, 2006)

dgordo said:


> Not only would he ignore the DE courts decisions but he is required to, in fact the DE judge is asking him to by telling him he is in a better position to decide if the case should proceed or be dismissed.


Not at all, the only thing the DE court said was better for Judge Folsom to do was that colorable decision, which has nothing to do with this new case which is an infringement case. No colorable issue shall be relavant to this new case.



> The DE judge denied the motion to dismiss because he said that he did not have the information necessary to determine if the DVRs were similar enough to the DVRs in the TX case. He vecer said that with the proper info the case could not be dismissed. This is why he believes Folsom is in a better position to determine if the case should be dismissed or continue.


Please read it again, the reason he dismissed TiVo's motion was because he disagreed with every TiVo's argument, one of which was that the new case should be valid because now there is a "new controversy." The other was that this new case was not "forum shopping" as argued by TiVo. There were other points by TiVo but all were rebutted.

The reason he mentioned the colorable issue and proper info on that was because TiVo tried to use such issue to dismiss this case, the DE court said that colorable issue was better left for Judge Folsom to decide, the DE court had no business in that.

If your intertretation is correct, the case should have been dismissed, because at a minimum, according to you, TiVo was successful in arguing that the colorable issue was for Judge Folsom to decide not for the DE court, therefore this new case has no merit. But that is not the case.



> If that were true the contempt hearing would be a mere sham.


The contempt hearing has nothing to do with this new case, TiVo tried to used the current contempt case to argue that this new case should be dismissed, TiVo failed.

I will quote the specific reasons why the TiVo's motion was dismissed when I got a chance soon.


----------



## jacmyoung (Sep 9, 2006)

Let me put it this way, the only agreement I have with you is that the DE court probably does not want to preside over this case, rather refers E* should have filed this new case in the Texas court.

But if we take this proposition for a moment and suppose E* did file this declaratory judgment case with the Texas court rather with the DE court. TiVo would have objected in the same way with the same arguments, E* would have responded with the same arguments too.

And if Judge Folsom were operating under the same rules, the same standards, and under the same law, he would have made the same decision to dismiss TiVo’s motion just like the DE court did. The question one asks is then, does he?


----------



## nobody99 (May 20, 2008)

Delaware was an attempt by DISH to distract things. It failed. I don't know why anyone thinks this is any sort of victory for DISH. The only time this would matter is in the event Judge Folsom finds the DVRS "more than colorably" different.

For the sake of argument, let's say that the case in Delaware was never filed. Here's what would happen in the case that the changes are more than colorable (if they are merely colorable, 

1) Judge Folsom finds "more than colorably different"
2) TiVo moves for a new trial to find patent infringement.
3) The case is probably, but not necessarily, assigned to Judge Folsom due to his familiarity with the issues and heard with a new jury.


Now that it's apparent that Delaware is transferring the case to Texas, here's how it plays out:

1) Judge Folsom finds "more than colorably" different
2) He grants DISH's motion for a jury case for a summary finding of non-infringement
3) The case is heard by Judge Folsom and a new jury

In fact, one could argue that DISH lost out on this one. Had they not brought this motion to Delaware, and more than colorably different had been found, they might have had a shot ad having it heard somewhere else. 

Not the case now. If Judge Folsom finds "more than colorably different" it's all but assured that he'll hear the next case. Good news for TiVo.

Of course that requires the rather large leap of faith that Judge Folsom is going to find that the changes are more than colorable.


----------



## dgordo (Aug 29, 2004)

jacmyoung said:


> Not at all, the only thing the DE court said was better for Judge Folsom to do was that colorable decision, which has nothing to do with this new case which is an infringement case. No colorable issue shall be relavant to this new case.


Colorable difference has everything to so with this case. If the devices are no more than colorably different, they don't get a new infringement case.



jacmyoung said:


> Please read it again, the reason he dismissed TiVo's motion was because he disagreed with every TiVo's argument, one of which was that the new case should be valid because now there is a "new controversy." The other was that this new case was not "forum shopping" as argued by TiVo. There were other points by TiVo but all were rebutted.
> 
> The reason he mentioned the colorable issue and proper info on that was because TiVo tried to use such issue to dismiss this case, the DE court said that colorable issue was better left for Judge Folsom to decide, the DE court had no business in that.
> 
> If your intertretation is correct, the case should have been dismissed, because at a minimum, according to you, TiVo was successful in arguing that the colorable issue was for Judge Folsom to decide not for the DE court, therefore this new case has no merit. But that is not the case.


I don't know what an intertretation is, but again, colorable difference is the essence of this case. If no more than colorably different there is no new cause of action. Whether this case has merit has yet to be decided.


----------



## Greg Bimson (May 5, 2003)

And if the "modified DVR's" are merely colorably different that the adjudged, then the Delaware suit can only be about the VIP series, if DISH/SATS wishes to take it this far...


----------



## Tower Guy (Jul 27, 2005)

jacmyoung said:


> Of course not, I never implied such, but to understand why I made a point of that, one needs to read all the thousands of the posts we had in the past year


The thousands of posts had nothing to do with the case in Delaware.


----------



## jacmyoung (Sep 9, 2006)

dgordo said:


> Colorable difference has everything to so with this case. If the devices are no more than colorably different, they don't get a new infringement case.


Even though I know you are a lawyer, I do not hesitate to call you wrong on this one. The court has always said, if the difference is more than colorable, a contempt may not be found, to again find the modified products an infringement, the patentee will be relegated to a new action, independent of the contempt proceeding, to again try to prove the modified proudcts are still an infringement.

The only problem here is, E* had taken the initiative and filed such new action long time ago. Since E* now is the plaintiff in this new action, they can decide what to do with it, they can press on if they wish, or if they see that such new action may not benefit them, after it is half way into the process, they can withdraw.

TiVo on the other hand cannot file another such new action to address the same issue. If the judge finds no contempt, TiVo must address the modified DVRs' infringement issue in this E* suit, E* will be able to dictate the process.


----------



## jacmyoung (Sep 9, 2006)

Greg Bimson said:


> And if the "modified DVR's" are merely colorably different that the adjudged, then the Delaware suit can only be about the VIP series, if DISH/SATS wishes to take it this far...


If the modified DVRs are merely colorbly different, E* will be in big trouble, how this new case may proceed will be a much less of an problem for E* than trying to appeal a likely contempt ruling.

But as I said earlier, if the difference is more than colorable, this new case will then be dictated by E* moving forward. E* will be in the driver seat compared to if TiVo is allowed to file such new action.

The moment E* filed this new case on 6/2/08 I pointed out such E*'s stretagy, only now this new action is affirmed by the DE court.


----------



## jacmyoung (Sep 9, 2006)

Tower Guy said:


> The thousands of posts had nothing to do with the case in Delaware.


Then you have not read those thousands of posts


----------



## jacmyoung (Sep 9, 2006)

dgordo said:


> ...I don't know what an intertretation is


I hope you understand such tactic does not gain you any more credibility.



> ...but again, colorable difference is the essence of this case.


Which case? The case currently before Judge Folsom, or the case currently before the DE court? Or are you saying both are the same case? Last I checked they are under different case #s.


----------



## dgordo (Aug 29, 2004)

jacmyoung said:


> Even though I know you are a lawyer, I do not hesitate to call you wrong on this one. The court has always said, if the difference is more than colorable, a contempt may not be found, to again find the modified products an infringement, the patentee will be relegated to a new action, independent of the contempt proceeding, to again try to prove the modified proudcts are still an infringement.
> 
> The only problem here is, E* had taken the initiative and filed such new action long time ago. Since E* now is the plaintiff in this new action, they can decide what to do with it, they can press on if they wish, or if they see that such new action may not benefit them, after it is half way into the process, they can withdraw.
> 
> TiVo on the other hand cannot file another such new action to address the same issue. If the judge finds no contempt, TiVo must address the modified DVRs' infringement issue in this E* suit, E* will be able to dictate the process.


You can think whatever you want but that doesn't change the fact that if the devices are no more than colorably different they are not entitled to a new cause of action.

I'm also guessing that you are not aware of Rule 13 of the federal rules of procedure. That allows a defendant to bring a counterclaim in an action. Tivo wouldn't need to file a new action, DISH did that for them. Go take a civil procedure class and then tell me what Tivo and DISH can and can't do.


----------



## dgordo (Aug 29, 2004)

jacmyoung said:


> I hope you understand such tactic does not gain you any more credibility.


What tactic, what does that mean?



jacmyoung said:


> Which case? The case currently before Judge Folsom, or the case currently before the DE court? Or are you saying both are the same case? Last I checked they are under different case #s.


Here I was saying that it was the essence of the case filed in DE. If the "new DVRs" are not more than colorably different the case in DE, or wherever it may end up, can't proceed. But at this point it is also the essence of the case in TX.


----------



## jacmyoung (Sep 9, 2006)

dgordo said:


> You can think whatever you want but that doesn't change the fact that if the devices are no more than colorably different they are not entitled to a new cause of action.


On that I admit I read you wrong, I thought you were saying if the difference were more than colorable, but you were not, as such you were saying the same as Greg, then please see my response to Greg.



> I'm also guessing that you are not aware of Rule 13 of the federal rules of procedure. That allows a defendant to bring a counterclaim in an action. Tivo wouldn't need to file a new action, DISH did that for them. Go take a civil procedure class and then tell me what Tivo and DISH can and can't do.


Of course TiVo can file a counter claim, but about what? That TiVo's own DVRs to be declared not infringing on any E*'s patents?


----------



## jacmyoung (Sep 9, 2006)

dgordo said:


> What tactic, what does that mean?


That pickinng on one's wrong spelling in an attempt to discredit someone, and ad hominem argument, I am sure you heard of it.



> Here I was saying that it was the essence of the case filed in DE. If the "new DVRs" are not more than colorably different the case in DE, or wherever it may end up, can't proceed. But at this point it is also the essence of the case in TX.


I do not disagree, please again see my response to Greg.

Both you and Greg seem to forget the possibility that the difference may be found more than colorable. This E*'s new action was prepared for such occasion. Again if the difference is only colorable, E* will have a much bigger problem to deal with than this new action.

What I disagree is that colorable difference issue is also the essence of the DE case, no it is not. The DE case is about one thing and one thing only, whether the modified DVRs no longer infringe, not whether the difference is colorable or not.

There is of course relevance to the two claims, that is, if Judge Folsom finds only colorable difference and then a contempt, TiVo will have an easy time to motion to have the E*'s new action dismissed.

But as I will say it again, E*'s this new action is prepared for the occasion if Judge Folsom finds more than colorable difference, therefore no contempt. It is not prepared for the occasion if the judge finds a contempt.


----------



## dgordo (Aug 29, 2004)

jacmyoung said:


> Of course TiVo can file a counter claim, but about what? That TiVo's own DVRs to be declared not infringing on any E*'s patents?


Uh no, the counter claim would be for patent infringement. You know, that DISH is infringing Tivo's patents. Just because DISH has claimed that they don't doesn't stop Tivo from making the counter claim.


----------



## dgordo (Aug 29, 2004)

jacmyoung said:


> That pickinng on one's wrong spelling in an attempt to discredit someone, and ad hominem argument, I am sure you heard of it.


I had no idea that was a spelling error, I thought you were using a fancy word that I didn't know, sorry.



jacmyoung said:


> I do not disagree, please again see my response to Greg.
> 
> Both you and Greg seem to forget the possibility that the difference may be found more than colorable. This E*'s new action was prepared for such occasion. Again if the difference is only colorable, E* will have a much bigger problem to deal with than this new action.
> 
> ...


I completely understand that the differences may be more than colorable and agree with most of what you are saying. My point was the DE case can't go on with out a determination of colorable difference, which is why it is the essence of the case.


----------



## Greg Bimson (May 5, 2003)

dgordo said:


> I completely understand that the differences may be more than colorable and agree with most of what you are saying. My point was the DE case can't go on with out a determination of colorable difference, which is why it is the essence of the case.


That is the point all of us are making.

The judge in Delaware simply requoted the KSM standard as the next step, followed by the action to move the case to Judge Folsom in Texas. Lo and behold, the judge in Delaware didn't know that Judge Folsom is already applying the KSM standard in this contempt hearing.

If the evaluation of colorable difference in the contempt action is found to be more than colorable, then the suit by DISH/SATS will have merit. Of course, DISH/SATS should voluntarily dismiss the suit to force TiVo to take DISH/SATS to court for infringement.

If the evaluation of colorable difference in the contempt action is found to be merely colorably different, then the DISH/SATS suit would only have merit on devices that were not already adjudged. DISH/SATS should not continue an action which they initiated to put their ViP series of DVR's on the patent infringement line.


----------



## jacmyoung (Sep 9, 2006)

nobody99 said:


> Pot, meet kettle.


Please provide evidence that I used ad hominem argument against you or anyone on the other side before making such accusation. Each accusation should have some basis.

I do want to elaborate on one of my other response to your TiVo's quote.

Remember back in 06/08, the TiVo folks took the usual steps to reply 100% on what TiVo said in their motion to dismiss and predicted the DE case would be dismissed for sure?

What happened? Well each and every one of TiVo's arguments in that motion was rebutted by the DE court. Now I hope you know why I said do not rely on what TiVo is saying, just as I do not rely on what E* is saying.

What the court is saying, and what the USPTO is saying, while one may not agree or even think they are stupid or just a formality, still they are much more reliable than what TiVo is saying, or what E* is saying.


----------



## jacmyoung (Sep 9, 2006)

dgordo said:


> I had no idea that was a spelling error, I thought you were using a fancy word that I didn't know, sorry.


That is why I try not to make any assumption what others are saying.



> I completely understand that the differences may be more than colorable and agree with most of what you are saying. My point was the DE case can't go on with out a determination of colorable difference, which is why it is the essence of the case.


The DE case can go on, the DE court said so. When a case is filed, the defendents are given the opportunity to object to such filing, if the objections are rebutted, the case moves forward.

But I have already agreed that if Judge Folsom finds mere colorable difference, and therefore a likely contempt, this new case will be of little importance, E* will have something else to worry about.

That does not change the fact that TiVo's motion was dismissed resoundingly, and the court had agreed with E* 100% on the question whether this new case has merit and may move forward. So next time when one quotes TiVo, please consider the risk Likewise when one quotes E*, consider the risk too.

I also disagree with you on the notion that when it comes time for Judge Folsom to consider whether this new case should move on, that the DE court decision should be "ignored" by him. Judge Folsom specifically instructed the parties to fully inform him of any decisions that might come out of the DE court or from the USPTO, if he must "ignore" such decisions, he would not have made a point to order the parties to inform him of such decisions.

On the other hand, I agree Judge Folsom's decisions should be independent decisions. But you can bet when parties making arguments in the future, E* will use the DE court decision to their fullest advantage, and there is no chance Judge Folsom can ignore the DE court decision. Likewise, when relevant, E* will also use the USPTO's decision to their fullest advantage.


----------



## nobody99 (May 20, 2008)

jacmyoung said:


> Remember back in 06/08, the TiVo folks took the usual steps to reply 100% on what TiVo said in their motion to dismiss and predicted the DE case would be dismissed for sure?


no, sorry, I'm really not all _that_ interested in this case.



jacmyoung said:


> What happened? Well each and every one of TiVo's arguments in that motion was rebutted by the DE court.


Umm, dumb question, if they rebutted each and every one of TiVo's arguments, why are they transferring the case to Judge Folsom? If they disagreed with TiVo, wouldn't Delaware be hearing the case, not Judge Folsom?

Let's face it, DISH tried to move the case, and failed. Plain and simple.


----------



## Tower Guy (Jul 27, 2005)

jacmyoung said:


> Then you have not read those thousands of posts


Well, if you are right, the DE court has already determined that the redesigned products are officially redesigned and then there is no need to send the case back to Texas.

That's not the case. (pun intended)


----------



## Greg Bimson (May 5, 2003)

jacmyoung said:


> That does not change the fact that TiVo's motion was dismissed resoundingly, and the court had agreed with E* 100% on the question whether this new case has merit and may move forward.
> 
> [...]
> 
> I also disagree with you on the notion that when it comes time for Judge Folsom to consider whether this new case should move on, that the DE court decision should be "ignored" by him.


All Judge Farnan in Delaware did was dismiss TiVo's motion, on the grounds that the suit can move forward as there is controversy between the parties. Judge Farnan's next step is to receive arguments regarding transferring the case to Judge Folsom.

Judge Farnan didn't say that the case has no merit, but the explanation to move it to Judge Folsom to find colorable difference is redundant for the eight named DVR's.


----------



## Curtis52 (Oct 14, 2003)

jacmyoung said:


> Judge Folsom specifically instructed the parties to fully inform him of any decisions that might come out of the DE court or from the USPTO


No he didn't. That was made up.


----------



## jacmyoung (Sep 9, 2006)

Curtis52 said:


> No he didn't. That was made up.


On 9/4 Judge Folsom made a big point of E* not informing him that they had filed a new case at the DE court, said to the E* lawyer if you wanted to be fair, should have informed him of all the relevant development.

If he was so serious about been informed of that filing, how can you deny he is not very serious about been informed of what the DE court decision might be?

Ever wondered why E* immediately filed the DE court decision with Judge Folsom?


----------



## jacmyoung (Sep 9, 2006)

Greg Bimson said:


> All Judge Farnan in Delaware did was dismiss TiVo's motion, on the grounds that the suit can move forward as there is controversy between the parties.


"*New* controversy," don't leave out one word, the word "new" is the key, had there be the same controversy, the new case would have been dismissed.

The "new controversy" exists, regardless which court this case is transferred to.



> Judge Farnan didn't say that the case has no merit


He said the new case had merit, if not he would have dismissed it.



> but the explanation to move it to Judge Folsom to find colorable difference is redundant for the eight named DVR's.


You can interpret all you want, that does not change the fact he agreed with E* that the new case had merit and should move forward, and this new case is independent of the case before Judge Folsom because it bears a different case number. And this new case covers the modified 8 named DVRs, both E* and TiVo said so, not me.

The court cannot arbitrarily decide what products should be included in this case, what should not be, it is the plaintiffs decision which products are in their own case they are pursuing.


----------



## jacmyoung (Sep 9, 2006)

Tower Guy said:


> Well, if you are right, the DE court has already determined that the redesigned products are officially redesigned and then there is no need to send the case back to Texas.
> 
> That's not the case. (pun intended)


Yes the DE court had already determined the re-designed products are officially re-designed products, the issue in this case is whether the re-designed products no longer infringe. That is not determined. At this point the DE court wants to decide which court should have the jurisdiction over making such decision whether the re-designed proudcts should be delared non-infringing.


----------



## jacmyoung (Sep 9, 2006)

nobody99 said:


> no, sorry, I'm really not all _that_ interested in this case.


You should, if you are true to your own words that as a TiVo investor, you want to fully inform yourself of all relevant development.



> If they disagreed with TiVo, wouldn't Delaware be hearing the case, not Judge Folsom?


Have you read the DE decision? If so can you not at least agree the DE court disagreed with TiVo?

There is no requirement the DE court must hear the case, once it affirms the case. The district court, after affirming a case as having the merit to move forward, may decide to transfer the case to another court. If that happens, when the other court receives such case, it is assumed such case was already affirmed to have the merit to move forward.



> Let's face it, DISH tried to move the case, and failed. Plain and simple.


Move what case? The case before Judge Folsom? E* never tried that. This is a new case, and the DE court had accepted it, though the DE court has the discretion to decide if he wants to transfer this new case.


----------



## Curtis52 (Oct 14, 2003)

jacmyoung said:


> On 9/4 Judge Folsom made a big point of E* not informing him that they had filed a new case at the DE court, said to the E* lawyer if you wanted to be fair, should have informed him of all the relevant development.


He said no such thing. He asked Dish whether they thought they should have informed him about filing in Delaware. He was asking about the Dish action to file. He didn't even say anything about court decisions or mention the USPTO much less instruct them to inform him about court decisions or USPTO decisions. Court decisions weren't mentioned and the USPTO wasn't mentioned. *There were no instructions given.*



jacmyoung said:


> Judge Folsom *specifically* *instructed* the parties to fully inform him of any decisions that might come out of the DE court or from the USPTO


Every day it's something new. Please stop making stuff up.


----------



## nobody99 (May 20, 2008)

jacmyoung said:


> nobody99 said:
> 
> 
> > no, sorry, I'm really not all that interested in this case.
> ...


Oh, so that implies that you are DISH investor (since you seem to be fully informing yourself). Thanks. You refused to disclose that before.



jacmyoung said:


> Have you read the DE decision? If so can you not at least agree the
> DE court disagreed with TiVo?


I have, but it's irrelevent. They will not be hearing the case. DE is not going to be the jurisdiction. Texas will be the jurisdiction. The only way to look at this result is a loss for DISH. DISH tried to move the case to another venue. They failed.



jacmyoung said:


> There is no requirement the DE court must hear the case, once it affirms the case.


Might want to check up on your legalistic lingo. The term "affirm" is used when an appeals court upholds a decision. It's not used when a court refuses to hear a case and instead transfers it to another district 



jacmyoung said:


> Move what case? The case before Judge Folsom? E* never tried that. This is a new case, and the DE court had accepted it, though the DE court has the discretion to decide if he wants to transfer this new case.


I will try to explain it.

DISH tried to get a declaratory judgement in Delaware that their new software does not infringe. The court in Delaware said that they cannot do this, because first a determination must be made that the new software is more than colorably different. Judge Folsom must make this decision. Since they are moving the entire motion for a summary judgement to Texas, Judge Folsom decides what happens from here on out. If he decides they are more than colorably different, he may, at that time, deny DISH's request for a declaratory judgement and allow TiVo to file a new lawsuit. We don't know.

There is one simple fact that you absolutely refuse to acknowledge: DISH tried to move the venue to Delaware and failed. It's really that simple. Nothing else matters with regards to the Delaware case.


----------



## Greg Bimson (May 5, 2003)

jacmyoung said:


> You can interpret all you want, that does not change the fact he agreed with E* that the new case had merit and should move forward, and this new case is independent of the case before Judge Folsom because it bears a different case number. And this new case covers the modified 8 named DVRs, both E* and TiVo said so, not me.


There is a motion for contempt sitting in front of Judge Folsom, where a hearing has taken place to evaluate the status of infringement regarding eight models of receivers, the same eight models found infringing.

Yet there is some magical belief that the suit filed in Delaware can be about the exact same issue? That would be like charging John Wilkes Booth with fifteen counts of murder for killing Abraham Lincoln. Double Jeopardy applies.

Edit: I would bet everything that DISH/SATS voluntarily dismisses this case, either before Judge Farner or Judge Folsom.


----------



## nobody99 (May 20, 2008)

jacmyoung said:


> At this point the DE court wants to decide which court should have the jurisdiction over making such decision whether the re-designed proudcts should be delared non-infringing.


Wrong. Delaware is transferring the entire case to Texas. Once transferred, Delaware won't even look at the case again.


----------



## Greg Bimson (May 5, 2003)

Technically, DISH/SATS got what they wanted: an evaluation of the modified devices. DISH/SATS didn't think they'd get that evaluation in front of Judge Folsom.

Of course, DISH/SATS would have rather had this evaluation in another court, hence the reason for filing in Delaware.

That is why I predict DISH/SATS to dismiss this suit.


----------



## jacmyoung (Sep 9, 2006)

Greg Bimson said:


> Technically, DISH/SATS got what they wanted: an evaluation of the modified devices. DISH/SATS didn't think they'd get that evaluation in front of Judge Folsom.
> 
> Of course, DISH/SATS would have rather had this evaluation in another court, hence the reason for filing in Delaware.
> 
> That is why I predict DISH/SATS to dismiss this suit.


I think you are likely wrong on this one. E* will like to have this new case in the DE court, but will also accept it to be in the Texas court, now it is affirmed by the DE judge.

The reason I say this is because E* immediately filed the DE decision with Judge Folsom to inform him of such development. That does not appear a behavior from one who wanted to have the case dismissed.

We'll see.


----------



## dgordo (Aug 29, 2004)

jacmyoung said:


> You can interpret all you want, that does not change the fact he agreed with E* that the new case had merit and should move forward, and this new case is independent of the case before Judge Folsom because it bears a different case number. And this new case covers the modified 8 named DVRs, both E* and TiVo said so, not me.
> 
> The court cannot arbitrarily decide what products should be included in this case, what should not be, it is the plaintiffs decision which products are in their own case they are pursuing.


Oh so the key to determining if a case is independent is the case number. Interesting, too bad you just made that up.

The court made no determination as to merit, only that with the info it has now it could not dismiss the case. You're jumping ahead.


----------



## jacmyoung (Sep 9, 2006)

Curtis52 said:


> He said no such thing. He asked Dish whether they thought they should have informed him about filing in Delaware. He was asking about the Dish action to file. He didn't even say anything about court decisions or mention the USPTO much less instruct them to inform him about court decisions or USPTO decisions. Court decisions weren't mentioned and the USPTO wasn't mentioned. *There were no instructions given.*
> 
> Every day it's something new. Please stop making stuff up.


Judge Folsom used very strong lauguage that "you want fairness?" If so you should have let me know your intention to file at the DE court, why would he say that had he had no interest in the DE case?

If he did not care for the DE case, how in the world he could possibly accuse E* for not playing fair by not informing him about the DE case?


----------



## Curtis52 (Oct 14, 2003)

jacmyoung said:


> Judge Folsom used very strong lauguage that "you want fairness?"


If the judge made specific instructions to provide opinions of the DE court or opinions from the USPTO then quote them. The judge didn't provide any instructions whatsoever, specific or otherwise. 


jacmyoung said:


> Judge Folsom *specifically instructed* the parties to fully inform him of any decisions that might come out of the DE court or from the USPTO


There were no instructions. You made it up.


----------



## jacmyoung (Sep 9, 2006)

dgordo said:


> Oh so the key to determining if a case is independent is the case number. Interesting, too bad you just made that up.


Are you saying the two cases are the same?



> The court made no determination as to merit, only that with the info it has now it could not dismiss the case. You're jumping ahead.





> &#8230;Based on the parties' litigation history and public statements made by TiVo regarding Echostar's redesigned products, the court is satisfied that there is such a controversy&#8230;
> 
> Turning now to the question of whether discretionary dismissal is nevertheless appropriate, the Court is *unpersuaded by TiVo's argument* that questions of "forum shopping" or the "chilling" of&#8230;
> 
> The court agrees with Echostar that the countervailing policy goals of encouraging patent design-around, and hence innovation, are just as compelling. Likewise the Court agrees with Echostar&#8230;


Sounded to me the Court did agree with E* the new case has merit. If E*'s case has no merit, the Court should dismiss it.


----------



## jacmyoung (Sep 9, 2006)

Curtis52 said:


> If the judge made specific instructions to provide opinions of the DE court or opinions from the USPTO then quote them. The judge didn't provide any instructions whatsoever, specific or otherwise.
> There were no instructions. You made it up.


If the judge tells E* that it is very much unfair for you not to tell me your case at the DE court, it is the same as to instruct E* from now on, if you even wanted me to be fair for you, you'd better tell me what is going on up there, anything at all.

Which E* did just that.


----------



## dgordo (Aug 29, 2004)

jacmyoung said:


> Are you saying the two cases are the same?


What I am saying is the case number is not what determines that.



jacmyoung said:


> Sounded to me the Court did agree with E* the new case has merit.


Because you don't know what merit means. The judge denied the motion to dismiss because he agreed that Tivo didn't present evidence necessary for a dismissal. This had nothing to do with merit.


----------



## dgordo (Aug 29, 2004)

jacmyoung said:


> why would he say that had he had no interest in the DE case?


Because he was pissed that DISH was trying to take his case away from him.


----------



## nobody99 (May 20, 2008)

jacmyoung said:


> Sounded to me the Court did agree with E* the new case has merit. If E*'s case has no merit, the Court should dismiss it.


What are you talking about when you say "has merit?" Dish is asking for a declaratory judgement that they don't infringe. It has nothing to do with merit. There is no "merit test" in a declaratory judgement action. And, again, the judge didn't "affirm" anything :lol:



wikipedia said:


> When a patent owner becomes aware of an infringer, the owner can simply wait until he pleases to bring a suit for infringement. Meanwhile, the monetary damages continuously accrue - with no effort expended by the patent owner, apart from marking the patent number on products the patent owner sold or licensed. On the other hand, the alleged infringer could do nothing to rectify the situation if no declaratory judgment existed. The alleged infringer would be forced to continue to operate his business with the cloud of a lawsuit over his head. Fortunately, the declaratory judgment procedure allows the alleged infringer to proactively bring suit to resolve the situation and eliminate the cloud of uncertainty looming overhead.


If more than a colorable difference is found, TiVo immediately would have taken action and filed a new suit. DISH's motion simply makes it unnecessary. If TiVo had filed suit against DISH, it would be virtually the same thing as DISH asking for declaratory judgement. The court is going to simply decide if it infringes.

Dish had a single goal in mind with the Delaware action, and yet DISH fans simply refuse to see it. They wanted the new case moved outside of the venue where it has already lost, twice. They failed. Sorry Charlie, you lost this one too.


----------



## Curtis52 (Oct 14, 2003)

jacmyoung said:


> If the judge tells E* that it is very much unfair for you not to tell me your case at the DE court, it is the same as to instruct E* from now on, if you even wanted me to be fair for you, you'd better tell me what is going on up there, anything at all.


It should be a simple matter to provide a quote where the judge specifically instructed the parties to provide opinions from the DE court and opinions from the USPTO. I mean, if there were *specific *instructions it should be easy to quote them right? How about a quote of any mention whatsoever of the USPTO at the 9-4 hearing where all this supposedly took place? Any mention at all will suffice. Just a mention that the USPTO has a nice snack bar or whatever will do.


jacmyoung said:


> Judge Folsom *specifically instructed* the parties to fully inform him of any decisions that might come out of the DE court or from the USPTO


It never happened.


----------



## jacmyoung (Sep 9, 2006)

dgordo said:


> What I am saying is the case number is not what determines that.


You did not answer my question, do you beleive these two cases are the same one?



> Because you don't know what merit means. The judge denied the motion to dismiss because he agreed that Tivo didn't present evidence necessary for a dismissal. This had nothing to do with merit.


You only need to read the above quotes and tell me based on the simple reading do you think when the judge agreed with everything E* said, does that appear to you that he considered E*'s arguments having merit? If the anser is yes, then E*'s case has merit. Else he would have dismissed it.

In order to be a valid case, there are several criteria E* must meet, and TiVo was trying to convince the judge E*'s case did not meet those criteria, and according to the DE judge, E* has met each and everyone of such criteria.


----------



## jacmyoung (Sep 9, 2006)

Curtis52 said:


> It should be a simple matter to provide a quote where the judge specifically instructed the parties to provide opinions from the DE court and opinions from the USPTO. I mean, if there were *specific *instructions it should be easy to quote them right? How about a quote of any mention whatsoever of the USPTO at the 9-4 hearing where all this supposedly took place? Any mention at all will suffice. Just a mention that the USPTO has a nice snack bar or whatever will do.
> It never happened.


I have provided my quote, you disagree, that is all. We do not have to agree.

E* has informed Judge Folsom of both the USPTO's decision and the DE court decision, they are now on file with the judge, Judge Folsom will look at those, because as he said, it would be unfair had he not be made aware of such relevant issues.


----------



## dgordo (Aug 29, 2004)

jacmyoung said:


> You did not answer my question, do you beleive these two cases are the same one?


Impossible to know with out knowing if the new DVRs are more than colorably different. What I can tell you is that your notion that case number has anything to do with it is wrong.



jacmyoung said:


> You only need to read the above quotes and tell me based on the simple reading do you think when the judge agreed with everything E* said, does that appear to you that he considered E*'s arguments having merit? If the anser is yes, then E*'s case has merit. Else he would have dismissed it.


Again, you have no idea what merit means.


----------



## Curtis52 (Oct 14, 2003)

jacmyoung said:


> I have provided my quote, you disagree, that is all. We do not have to agree.


There was no quote provided.


----------



## jacmyoung (Sep 9, 2006)

dgordo said:


> ...Again, you have no idea what merit means.


What do you think E* was saying? Arguing for the merit of its own case. You made it sound like only TiVo was talking, only that TiVo failed to convince the judge E* had no merit.

When E* was arguing for its own merit, and when the judge agrees with E*, what does it mean to you?

And this is the whole problem with the other side, they only see TiVo's point of view, even if when TiVo's point of view is rebutted by the court, still only TiVo's view did not work, that's all.

Nothing E* said mattered, even if the judge agreed with what E* said.


----------



## jacmyoung (Sep 9, 2006)

Curtis52 said:


> There was no quote provided.


I already said I did, you disagree, we must agree to disagree.


----------



## Curtis52 (Oct 14, 2003)

jacmyoung said:


> I aready said I did, you disagree, we must agree to disagree.


It isn't a matter of opinion. There was no quote provided whatsoever.


----------



## jacmyoung (Sep 9, 2006)

Curtis52 said:


> It isn't a matter of opinion. There was no quote provided whatsoever.


It is my opinion Judge Folsom had instructed E* to inform him of anything related to the DE case, if E* ever wished he be fair to them, that was a very strong order: "you want fairness?"

That is my quote, you do not have to agree.


----------



## dgordo (Aug 29, 2004)

jacmyoung said:


> What do you think E* was saying? Arguing for the merit of its own case. You made it sound like only TiVo was talking, only that TiVo failed to convince the judge E* had no merit.
> 
> When E* was arguing for its own merit, and when the judge agrees with E*, what does it mean to you?


This had nothing to do with merit. DISH was arguing that they were not engaged in forum shopping, that DE was an appropriate forum and that this would not have a chilling effect on the contempt proceeding. The judge said that based upon the information he currently had that he agreed but he wasn't sure that this was the appropriate venue.


----------



## Curtis52 (Oct 14, 2003)

jacmyoung said:


> It is my opinion Judge Folsom had instructed E* to inform him of anything related to the DE case, if E* ever wished he be fair to them, that was a very strong order: "you want fairness?"
> 
> That is my quote, you do not have to agree.


That phrase doesn't appear anywhere in the hearing transcript. It is a made up quote.


----------



## jacmyoung (Sep 9, 2006)

dgordo said:


> This had nothing to do with merit. DISH was arguing that they were not engaged in forum shopping, that DE was an appropriate forum and that this would not have a chilling effect on the contempt proceeding. The judge said that based upon the information he currently had that he agreed but he wasn't sure that this was the appropriate venue.


If E* is not forum shopping, E*'s case has gained some merit, if E*'s case has no chilling effect, E*'s case has gained some more merit, and please do not forget, if there is a genuine controversy created, that gives E*'s case some more merit, which the judge affirmed that.


----------



## dgordo (Aug 29, 2004)

jacmyoung said:


> If E* is not forum shopping, E*'s case has gained some merit, if E*'s case has no chilling effect, E*'s case has gained some more merit, and please do not forget, if there is a genuine controversy created, that gives E*'s case some more merit, which the judge affirmed that.


Please define merit.


----------



## jacmyoung (Sep 9, 2006)

Curtis52 said:


> That phrase doesn't appear anywhere in the hearing transcript. It is a made up quote.


Go back and read it all over again.


----------



## jacmyoung (Sep 9, 2006)

dgordo said:


> Please define merit.


For one: justification. Did E* offer the DE judge good justifications?


----------



## Curtis52 (Oct 14, 2003)

jacmyoung said:


> Go back and read it all over again.


No. Computers tend to come up with the same result each time a command is performed. That phrase appears nowhere in the transcript. It is a made up quote.


----------



## dgordo (Aug 29, 2004)

jacmyoung said:


> For one: justification. Did E* offer the DE judge good justifications?


that's not what merit means.


----------



## jacmyoung (Sep 9, 2006)

Curtis52 said:


> No. Computers tend to come up with the same result each time a command is performed. That phrase appears nowhere in the transcript. It is a made up quote.


I asked you to read it all over again, not to put a command in the computer to do a search.

You made a very serious accusation against me, a serious accusation requires a serious effort for verification.


----------



## Curtis52 (Oct 14, 2003)

jacmyoung said:


> I asked you to read it all over again, not to put a command in the computer to do a search.
> 
> You made a very serious accusation against me, a serious accusation requires a serious effort for verification.


I asked that a quote be provided. No quote has been provided.


jacmyoung said:


> Judge Folsom specifically instructed the parties to fully inform him of any decisions that might come out of the DE court or from the USPTO


It never happened.


----------



## dgordo (Aug 29, 2004)

jacmyoung said:


> I asked you to read it all over again, not to put a command in the computer to do a search.
> 
> You made a very serious accusation against me, a serious accusation requires a serious effort for verification.


Well, I'm bored so I just read the 9/4/08 transcript again. I didn't see that quote. Why don't you give us a page and line?


----------



## jacmyoung (Sep 9, 2006)

dgordo said:


> that's not what merit means.


From Merriam-Webster Dictionary:



> 3 a: plural : the substance of a legal case apart from matters of jurisdiction, procedure, or form b: individual significance or *justification.*


"The substantce of a legal case" will do too, E* presented several substances, and the judge agreed with them.


----------



## Curtis52 (Oct 14, 2003)

jacmyoung said:


> From Merriam-Webster Dictionary:


3 a: plural : the substance of a legal case *apart from matters of jurisdiction, procedure*, or form b: individual significance or justification


----------



## nobody99 (May 20, 2008)

Curtis52 said:


> 3 a: plural : the substance of a legal case *apart from matters of jurisdiction, procedure*, or form b: individual significance or justification


This may be the first time I've ever seen someone reference the dictionary...and get it wrong. :lol:


----------



## jacmyoung (Sep 9, 2006)

dgordo said:


> Well, I'm bored so I just read the 9/4/08 transcript again. I didn't see that quote. Why don't you give us a page and line?


On page 13:



> THE COURT: WHAT IS THE STATUS OF THE DELAWARE
> ACTION?
> MR. MCELHINNY: THE DELAWARE ACTION IS PENDING. IT
> HAS A MOTION TO DISMISS PENDING.
> THE COURT: I GUESS I FIND MYSELF--&#8230;


Did not seem the judge wanted to ignore the DE case didn't it?



> MR. MCELHINNY: -- AND, WELL, I AM SORRY. BUT IN
> FAIRNESS, I SAID TO YOU --
> THE COURT: WELL, WHAT ABOUT FAIRNESS? DO YOU THINK
> IT WOULD HAVE BEEN FAIR TO ADVISE ME ON THAT DAY?


Not exactly the quote, but I was basing it on my recollection, close enough IMHO.


----------



## jacmyoung (Sep 9, 2006)

Curtis52 said:


> 3 a: plural : the substance of a legal case *apart from matters of jurisdiction, procedure*, or form b: individual significance or justification


Exactly, the merits have been already confirmed, so is the case, the next step is to decide jurisdiction, which is apart from the merits.

The decision on jurisdiction, whatever it may be, will have nothing to do with the merits of this case, because the two issues are *apart from each other.*


----------



## Ron Barry (Dec 10, 2002)

I know the thread took a break for a few weeks. But remember.. Personal attacks will not be tolerated and all posts should be considered the opinions of the poster as they see the facts of the case. If their is any confusion, I suggest doing a search for Tom Robertson posts here. He gives some good advice I strong suggest people follow.


----------



## Curtis52 (Oct 14, 2003)

THE COURT: WELL, WHAT ABOUT FAIRNESS? DO YOU THINK
IT WOULD HAVE BEEN FAIR TO ADVISE ME ON THAT DAY?

So, a simple question about a past Dish action somehow translates to a demand to be informed about future third party actions?:


jacmyoung said:


> Judge Folsom specifically instructed the parties to fully inform him of any decisions that might come out of the DE court or from the USPTO


----------



## dgordo (Aug 29, 2004)

jacmyoung said:


> Exactly, the merits have been already confirmed, so is the case, the next step is to decide jurisdiction, which is apart from the merits.
> 
> The decision on jurisdiction, whatever it may be, will have nothing to do with the merits of this case, because the two issues are *apart from each other.*


Every decision made so far has been procedural, nothing substantive.


----------



## jacmyoung (Sep 9, 2006)

dgordo said:


> Every decision made so far has been procedural, nothing substantive.


You mean the decision that there was a "genuine controversy" created by TiVo that justifies this case was a procedural one?

The decision that E*'s case was not forum shopping was a procedural one?

The decision that E*'s case would not have a chilling effect was a procedural one?


----------



## dgordo (Aug 29, 2004)

jacmyoung said:


> You mean the decision that there was a "genuine controversy" created by TiVo that justifies this case was a procedural one?


Exactly. A motion to dismiss is a procedural argument. Granting or denying such request is procedural.


----------



## Curtis52 (Oct 14, 2003)

jacmyoung said:


> You mean the decision that there was a "genuine controversy" created by TiVo that justifies this case was a procedural one?
> 
> The decision that E*'s case was not forum shopping was a procedural one?
> 
> The decision that E*'s case would not have a chilling effect was a procedural one?


Here's a clue: a jury didn't make those decisions.


----------



## jacmyoung (Sep 9, 2006)

dgordo said:


> Exactly. A motion to dismiss is a procedural argument. Granting or denying such request is procedural.


That was not my question. In making a procedural decision to dismiss, the court must look at the merits of the case and make a decison based on the merits or lack of it.


----------



## dgordo (Aug 29, 2004)

Curtis52 said:


> Here's a clue: a jury didn't make those decisions.


Bingo, or more specifically, the trier of fact didn't make those decisions.


----------



## nobody99 (May 20, 2008)

jacmyoung said:


> You mean the decision that there was a "genuine controversy" created by TiVo that justifies this case was a procedural one?
> 
> The decision that E*'s case was not forum shopping was a procedural one?
> 
> The decision that E*'s case would not have a chilling effect was a procedural one?


Let me make a simple statement:

If the Judge in Delaware can't decide what is more than colorable, he can't decide if the case has merit. It's a simple, logical conclusion. In fact, the action of transferring the case to TX is _proof_ that he doesn't know if the case has merit.

Again (and again, etc) DISH did this for a single reason: to move the venue to Delaware. They failed.


----------



## dgordo (Aug 29, 2004)

jacmyoung said:


> That was not my question. In making a procedural decision to dismiss, the court must look at the merits of the case and make a decison based on the merits or lack of it.


That wasn't your question? Your question was quoted above in my response. Only the trier of fact can look at the merits of the case.


----------



## jacmyoung (Sep 9, 2006)

Curtis52 said:


> Here's a clue: a jury didn't make those decisions.


If this case should reach the point of jury decision, they will not be making any decision on those items because the above decisions has already been made by the court.

The jurys' job will be to decide if the re-designed products no longer infringe.


----------



## dgordo (Aug 29, 2004)

jacmyoung said:


> The jurys' job will be to decide if the re-designed products no longer infringe.


And that is the merits of the case! :joy:


----------



## jacmyoung (Sep 9, 2006)

dgordo said:


> That wasn't your question? Your question was quoted above in my response. Only the trier of fact can look at the merits of the case.


The merits of the case to even be allowed to reach the point of trial of fact. Maybe the term was improper, I also used the word criteria.

A case must first meet certain criteria in order to be an acceptable case to move forward. Once such criteria are met, the case moves forward, next the court may decide the jurisdiction of the case.

TiVo was trying to argue that the case did not meet the criteria, and should be dismissed, TiVo failed.

Next will be for the jury to decide on the merits of the case, if they agree with E* they will find the re-designed products no longer infringing, if they agree with TiVo, they should find the re-designed products an infringement.

The one thing I agree with you, if Judge Folsom finds the difference only colorable, and then a contempt, TiVo will have every reason to again motion to dismiss this new case. But such dismissal will have nothing to do with which court should have the jurisdiction over this new case.

If the new case stays with the DE court, and Judge Folsom finds the above, TiVo will still be able to try again to dismiss this new case, on the ground of the new ruling by the Texas court.

But this new case as I will say again, is not prepared for such occasion, it is prepared in the event the judge finds more than colorable difference, and therefore no contempt. When that happens, the patentee usually can file a new action to again try to find the modified products still an infringement.

But TiVo's such opportunity will not be there in such case. E* had already filed such case, and this case is in pending. TiVo will just have to participate in this one as the defendents, not the plaintiff.

Being the plaintiff has the benefit of determining when to proceed and when to fold. The decison will be for E* to make, not TiVo.


----------



## jacmyoung (Sep 9, 2006)

dgordo said:


> And that is the merits of the case! :joy:


Of course you are a lawyer, I am not surprised you may win some word games. As long as I win the case, that is good enough for me

But thanks for the education, I say so sincerely.


----------



## Greg Bimson (May 5, 2003)

jacmyoung said:


> TiVo was trying to argue that the case did not meet the criteria, and should be dismissed, TiVo failed.


Yes, TiVo failed to convince Judge Farner that the case should be thrown out under the Declaratory Judgment Act's standard. However, the moment that DISH/SATS tries to use the suit to adjudge the eight models currently sitting in front of Judge Folsom:

1) the case will be tabled until a ruling on the contempt charge is issued
2) the case will be dismissed if a DISH/SATS if the modifications still infringe and are merely colorably different
3) the case will be taken if the devices are found more than colorably different.

Simply because Judge Farner wants to reassign the case to Judge Folsom does not mean the case still has any legs. Judge Farner did not know Judge Folsom is performing the colorable difference analysis on eight models of DVR.


----------



## nobody99 (May 20, 2008)

jacmyoung said:


> But TiVo's such opportunity will not be there in such case. E* had already filed such case, and this case is in pending. TiVo will just have to participate in this one as the defendents, not the plaintiff.


Ultimately, it doesn't matter who's the plaintiff or the defendent in the case. The result would be the same - either they infringe or they don't.



jacmyoung said:


> Being the plaintiff has the benefit of determining when to proceed and when to fold. The decison will be for E* to make, not TiVo.


And if E* folds, Judge Folsom will immediately grant TiVo's trial for finding patent infringement.

The only reason for asking for a declaratory judgment is to remove the cloud of doubt by a patent holder who is not coming after you. In this case, DISH doesn't have that problem, do they 

Dish tried to change the venue and failed. It's that simple.


----------



## jacmyoung (Sep 9, 2006)

Greg Bimson said:


> Yes, TiVo failed to convince Judge Farner that the case should be thrown out under the Declaratory Judgment Act's standard. However, the moment that DISH/SATS tries to use the suit to adjudge the eight models currently sitting in front of Judge Folsom...


I don't think E* will even seek that moment for several reasons:

1) It is my guess Judge Folsom's ruling will come out before he even gets this new case, that is if the DE court decides to transfer, it will take some time for the DE court to do so.

2) Even if this new case is transferred to Judge Folsom before his ruling, E* will not press it. Charlie has already said he would wait for Judge Folsom's ruling before making any move.

3) E* will file response per the DE court order, my guess is E* will likely try, but there is a chance E* may not even try to insist the new case stays at the DE court.

This E* new case as I said was prepared for the occasion that Judge Folsom finds more than colorable difference and no contempt, if so, this new case will deny TiVo's opportunity for an attempt to file a new action against E* because such new action is already pending.


----------



## jacmyoung (Sep 9, 2006)

nobody99 said:


> ...And if E* folds, Judge Folsom will immediately grant TiVo's trial for finding patent infringement.


The timing will be in E*'s control, it usually takes a long time for a jury trial to go through its process, it could take a year or more, if E* senses the danger, they can withdraw one year into the trial.

TiVo can then start a similar process over.



> The only reason for asking for a declaratory judgment is to remove the cloud of doubt *by a patent holder who is not coming after you.* In this case, DISH doesn't have that problem, do they


If you were correct, then this case should have been dismissed, because TiVo was coming after E*. In fact one of the major reasons the DE court dismissed TiVo's motion was because TiVo said several times in the public E*'s modified DVRs still infringed and they intended to easily prove that soon. As a result there existed a "genuine controversy." Had TiVo not coming after E* on the modified DVRs, there would have been no such "genuine controversy" and the case would have been dismissed.

Are you still sure a declaratory judgment is only for those occasions when the patentee does not come after you?

BTW, I failed to understand why you had concluded that I was an E* investor. I do not recall ever told you so.


----------



## Greg Bimson (May 5, 2003)

jacmyoung said:


> This E* new case as I said was prepared for the occasion that Judge Folsom finds more than colorable difference and no contempt, if so, this new case will deny TiVo's opportunity for an attempt to file a new action against E* because such new action is already pending.


It appears it has been forgotten that when this case was filed in Delaware, there wasn't going to be an evaluation of colorable difference nor infringement.

It would not matter if there was an action pending, per se. DISH/SATS wanted their day in court to prove they no longer infringe and they've already had it.


----------



## jacmyoung (Sep 9, 2006)

Greg Bimson said:


> It appears it has been forgotten that when this case was filed in Delaware, there wasn't going to be an evaluation of colorable difference nor infringement...


Nothing was forgotten, at the 5/30/08 status meeting TiVo wished to find contempt on the face without colorable difference analysis, but TiVo also said they wanted a full discovery to prove the modified DVRs still infringe.

E* argued against both TiVo's attempts, for one thing, E* said the colorable difference issue must be addressed before finding of contempt, there could not be merely contempt on the face, and TiVo's discovery request for the purpose of infringement analysis was improper and should be denied.

Right after that 5/30/08 meeting E* filed this new action. I said at that time it was a long term stretagy, and so far E* has everything fitting in places as expected. It was of course a hard fought battle in the past year, they had to object to the judge's own orders and TiVo's effort several times to eventually get to this point.


----------



## Curtis52 (Oct 14, 2003)

Greg Bimson said:


> It appears it has been forgotten that when this case was filed in Delaware, there wasn't going to be an evaluation of colorable difference nor infringement.
> 
> It would not matter if there was an action pending, per se. DISH/SATS wanted their day in court to prove they no longer infringe and they've already had it.


The thing that Dish wanted was a new trial, preferably in Delaware. They didn't want "rolling contempt hearings" or even a single contempt hearing. So far, they haven't gotten anything they wanted. There has been a contempt hearing. There hasn't been a trial and if there is a trial it won't be in Delaware. Instead, there is going to be new contempt motions. The new models will be the next target.


----------



## scooper (Apr 22, 2002)

Curtis52 said:


> The thing that Dish wanted was a new trial, preferably in Delaware. They didn't want "rolling contempt hearings" or even a single contempt hearing. So far, they haven't gotten anything they wanted. There has been a contempt hearing. There hasn't been a trial and if there is a trial it won't be in Delaware. Instead, there is going to be new contempt motions. The new models will be the next target.


Don't count your chickens before they hatch - Tivo hasn't even gotten contempt on the "modified" DVRs yet. If they are judged colorably different and not infringing - Tivo is stuck and can't go any further.


----------



## jacmyoung (Sep 9, 2006)

scooper said:


> Don't count your chickens before they hatch - Tivo hasn't even gotten contempt on the "modified" DVRs yet. If they are judged colorably different and not infringing - Tivo is stuck and can't go any further.


TiVo can still go further if the difference is more than colorable, they just have to take a ride with E*. Judge Folsom will not be able to rule the modified DVRs non-infringing, not in his contempt proceeding, instead this new E* case will be the venue.

But like you said, TiVo has yet gotten one thing so far after almost one year. E* on the other hand had planned for this thing almost a year ago, they had a strategy, and the strategy has been unfolding as planned.

First they filed the new case before TiVo even thought about it, then they managed to deny TiVo's attempt to find contempt on the face, then they managed to have the judge change his "bench trial" to the "evidentiary hearing." This may sound trivial, but if you think about it, had the bench trial got through as a trial to determine the modified DVRs infringement issue, this DE case would have been easily dismissed since that bench trial would have served the same purpose.

Next in the same deal they managed to have the judge to *first* address the software colorable difference issue, before anything else. Now with this DE case on course, it serves to remind Judge Folsom that he should not try very hard to agree with TiVo that the modified DVRs still infringe because the DE court said this new case to determine the modified DVRs infringment could move forward, there will be ample time for TiVo to again try to prove the modified DVRs still infringe under this new case #, such opportunity is already in motion.

There is no compelling reason to rule in TiVo's favor, if he does not feel he should find in TiVo's favor. TiVo will likely still have that chance and do so under his watch too, in that new case.


----------



## nobody99 (May 20, 2008)

jacmyoung said:


> E* on the other hand had planned for this thing almost a year ago, they had a strategy, and the strategy has been unfolding as planned.


I literally had to pick myself up off the floor I was laughing so hard when I read this. I have the movie cast all picked out. Mike Myers (in Dr. Evil get-up) plays Charlie Ergen. But he still has his fake hair.

Lost the trial, lost the appeal, were denied at the Supreme Court, paid $105 million dollars (cue the pinky finger in corner of mouth here), lost the attempt to change the venue to Delaware. Oh, and no matter the outcome of the contempt proceedings, they will be paying millions more to TiVo.

Austin Powers fortunately sees this Evil Plan (tm) that is "unfolding as planned" and recognizes that DISH is simply trying to lull TiVo into a false sense of complacency. So clearly, for this plan to continue to work, DISH is planning on losing the contempt hearing, having the software declared merely colorable different, and pay TiVo another $400 million.

But the surprise Evil Plan (tm)... DISH will reveal that all along they been secretly shorting their own stock, and they have made four hundred billion dollars, which they will use to buy TiVo.

Brilliant.

You. Can't. Make. This. Stuff. Up.


----------



## jacmyoung (Sep 9, 2006)

All the drama you have played in the past and now will come to an abrupt end when the ruling is out, the reason is as following:

To determine whether to grant or deny this TiVo's contempt motion, Judge Folsom will first decide if the new software is more than colorably different compared to the old software, this much is a fact not opinion. E* fought hard for this, it did not come easy.

Below are parties argument on this issue:

E* said their new software no longer uses indexing therefore no longer meet the first step of the software claims.

TiVo does not dispute that, only that TiVo said indexing is irrelevant to the first step of the software claims, because the word "indexing" does not appear in that claim description.

E* argues that TiVo said themselves indexing was the "core of the invention,", that E*'s old software had it, TiVo had it, therefore E* infringed. Now this "core of the invention" is removed, which TiVo does not even dispute, of course logic tells the judge *the difference is more than colorable.*

But what about TiVo's assertion that "indexing" is irrelevant? Well during the argument before the appeals court, TiVo used the term "indexing" to argue that E* infringed on the hardware claims, despite the fact the word "indexing" does not appear in the hardware claims. The appeals court agreed indexing was relevant to the hardware claims, but disagreed that indexing met the hardware claims definition literally.

If Judge Folsom agrees with TiVo now that "indexing" is irrelevant to the software claims, because it does not literally appear in the software claims first step, he will have contradicted his own boss's view, and his decision will be overturned by his boss, he should be aware of that. He'd better agree with his boss and rule that "indexing" is also relevant to the software claims.

Therefore logic says he has to agree with E* on this one, and find the difference more than colorable. Once that happens, he must deny TiVo's contempt motion. All the rest discussions made will be a waste of time as far as contempt is concerned.

Just like when the DE court denied TiVo's motion to dismiss this E*'s new case. This DE court decision is the first TiVo's taste of denial a warm up as far as I am concerned. That is why you should pay a lot of attention to what the DE court said in its decision.

Can Judge Folsom agree with TiVo anyway? Of course he can, but his boss will overturn it if he does so, for the reason I stated above.

Actually the DE denial is the second of TiVo's taste of major denials, the first was Judge Folsom's denial of TiVo's motion for treble damages and attorney fees.


----------



## nobody99 (May 20, 2008)

jacmyoung said:


> All the drama you have played in the past and now will come to an abrupt end when the ruling is out, the reason is as following:
> 
> To determine whether to grant or deny this TiVo's contempt motion, Judge Folsom will first decide if the new software is more than colorably different compared to the old software, this much is a fact not opinion. E* fought hard for this, it did not come easy.
> ...
> [more stuff nobody reads]


And when DISH is found in contempt because their software is not more than colorably different, they will owe TiVo a bunch of money. Yeah, I know, we've been over this about forty five billion times.


----------



## jacmyoung (Sep 9, 2006)

Of course I can agree we should talk about something new, so here it is.

When the DE court stated its intention to transfer the new case to Judge Folsom, it nevertheless allowed the parties to argue whether such transfer should take place, the reason, as stated by the DE court, was to ensure the parties' due process rights were not violated.

The question is then, what may constitute a potential violation of parties' due process rights? In describing "due process right" it is often said that:



> These rights and requirements have been expanded by Supreme Court decisions and include, timely notice of a hearing or trial which informs the accused of the charges against him or her; *the opportunity to confront accusers and to present evidence on one's own behalf before an impartial jury or judge*.


While in this case E* is the accuser, and TiVo is the accused, the DE court apparently had said the due process rights are afforded to both parties, it also assumed TiVo wanted the transfer, E* was against the transfer.

So in allowing the parties the opportunity to make their argument whether a transfer should take place, the DE court was mostly trying to make sure E*'s due process right was not violated.

With that in mind, if the court must ensure E*'s due process right is not violated, it must then ensure that E* has the opportunity to present evidence on E*'s own behalf *before an impartial jury or judge.*

If E* really wants to object to this transfer, E*'s argument would likely be on that issue. If the new case is transferred to the Texas court, could it be possible that its opportunity to present evidence before an impartial jury or judge be in question?

I admit it would be a hard case to argue that E* would not be able to have an impartial jury or judge in the Texas court, I think a case can still be made for it.

For one thing, that Texas court is well known to be patent chasers' heaven because the juries in that part of Texas were known to favor the patentees.

For another, Judge Folsom on 9/4 had clearly expressed his utmost displeasure regarding E*'s not informing him on 5/30/08 the intention to file this new case at the DE court, calling that act unfair to his decision making.

I know this is a risky way to argue for the case to stay in the DE court, I am only trying to speculate that in the event E* really wants to have the case stay at the DE court, what might be the most likely justifications.


----------



## Tom Robertson (Nov 15, 2005)

Using a "the other judge is not impartial" tactic seems to be very, very difficult to prove. And does that involve a higher court to make that ruling?


----------



## Curtis52 (Oct 14, 2003)

jacmyoung said:


> Judge Folsom *specifically instructed* the parties to fully inform him of any decisions that might come out of the DE court or from the USPTO


Let's take a look at what Judge Folsom said:


> THE COURT: WELL, WHAT ABOUT FAIRNESS? DO YOU THINK
> IT WOULD HAVE BEEN FAIR TO ADVISE ME ON THAT DAY?


Is this:

a) "calling that act unfair to his decision making"
b) a question
c) an instruction of any kind
d) a *specific instruction* to fully inform him of any decisions that might come out of the DE court or from the USPTO


----------



## jacmyoung (Sep 9, 2006)

Curtis52 said:


> Let's take a look at what Judge Folsom said:
> 
> Is this:
> 
> ...


I suggest you read a little more, you called me making stuff up last time, do you still want me to provide some more quotes this time or can you be bothered to find out for yourself?

How about you over look the semantics for once and respond to my question, what might be the argument by both parties before the DE court?


----------



## jacmyoung (Sep 9, 2006)

Tom Robertson said:


> Using a "the other judge is not impartial" tactic seems to be very, very difficult to prove. And does that involve a higher court to make that ruling?


You made a very good point, I have read several cases where the district judges's rulings were overturned on technicalities, involving similar objections by a losing party on something less controversial.

As for transfer between district courts, I did come across one but need some time to find it and get some details, if I can find it

But that is not the point. We all assume, I think correctly that TiVo would want the case transferred, E* not. The question is what might be the argument?

I have offered mine.


----------



## jacmyoung (Sep 9, 2006)

Another argument against the transfer is the so-called "first to file" rule. All things been equal, the forum where a suit was first filed gets to be the one to have the jurisdiction.

In this case, the declaratory judgment is about whether the modified DVRs infringe on the TiVo's patent. Such issue was first filed in the DE court. TiVo never even filed a suit alleging that the modified DVRs infringed on its patent.

On the other hand, the DE court was clear that for the convenience factors and court economy the Texas court should have the jurisdiction.

As I said, it will be a hard sell for E*, but they do have a few things to go by. But I am no lawyer, some of the points could be quite off.


----------



## jacmyoung (Sep 9, 2006)

In making the above arguments, I lost focus and forgot to simply look at the very DE court's own decision.

According to the DE judge, he could not make that decision whether the difference was not colorable, because had he been able to make that decision, he could have done so and ruled that the contempt proceeding before the Texas court would be inappropriate. He acutally said so.

But the reason he could not make that decision, as he stated clearly, was TiVo told him they did not get a chance for a full discovery on the new design, and more importantly, E* had refused to provide the information TiVo asked for. Regardless if what TiVo said was the whole truth or not, now TiVo had been given that opportunity, and they cannot say E* had refused to provide any information.

The new design has been fully discovered and fully argued for, the record is available. The only question is, can E*, in only 10 pages, as ordered by the DE judge, summarize all the information from both the 9/4 and the 2/17 hearings, to make a compelling presentation that the DE judge can no longer say, hey, based on that, I still cannot make a decision whether the difference is not colorable.

If E* is successful, then the DE judge will not be able to say that anymore. But it was also clear, the DE judge would rather have Judge Folsom make such decision. So my speculation is, if, and only if E* can make such a compelling argument in front of the DE judge that the difference is more than colorable, at a minimum, the DE judge will not make a decision on case transfer, rather wait until Judge Folsom makes the decision of his own first.


----------



## dfd (Aug 29, 2008)

jacmyoung said:


> In making the above arguments, I lost focus and forgot to simply look at the very DE court's own decision.
> 
> According to the DE judge, he could not make that decision whether the difference was not colorable, because had he been able to make that decision, he could have done so and ruled that the contempt proceeding before the Texas court would be inappropriate. He acutally said so.
> 
> ...


All the discovery took place in TX correct?

Do you think that everything that took place in TX should be packed up and moved to DE for a new judge to rule upon?

Isn't there already a case in TX with a judge that is already up to speed on the case? Wouldn't this be better for 'judicial economy'?

When I read the decision this is what I read:

1. Clearly there is a dispute between the parties
2. E* was within their rights to file suit in DE
3. DE cannot determine colorable test now, "In the court's view, whether TiVo is ultimately able to make this showing is a decision best made by Judge Folsom given his experience with this case and the technology at issue."
4. The DE court would have kicked this case to TX already if not for Clopay / Newell, "[f]ailure to afford parties adequate notice and opportunity to be heard on a district judge's contemplated sua sponte transfer would in most, if not all, cases violate the parties' due process rights."

This will be moved to TX and the judge is just following the required procedure so that E* doesn't appeal his ruling.

Jac - want to place a little side wager on the outcome in DE? Loser agrees to not post.


----------



## jacmyoung (Sep 9, 2006)

dfd said:


> ...the judge is just following the required procedure so that E* doesn't appeal his ruling...


True, that is why if E* makes a compelling presentation, when the DE judge read it, he cannot say, well I still cannot make a decision whether the difference is colorable or not, it will be unreasonable, an abuse of the court discretion, because as the DE judge stated, the reason he could not make that decision last time was because TiVo told him TiVo did not have a chance for a full disclosure and E* had refused to provide the needed info.

Now I agree that the DE judge is not compelled to make a decision of colorable difference, he just cannot say he still would not be able to decide on it if E*'s presentation makes it obvious he should be able to make a decision.

On the other hand, the decision on whether the difference is only colorable or not, will determine if the current contempt proceeding is appropriate or not, this much the DE judge said so clearly. Since he said that, if it becomes clear to him the difference is more than colorable, he must agree with E* that the current contempt proceeding is inappropriate. He can still transfer the case of course, but he must at the same time agree with E* the current contempt proceeding is inappropriate, if it is obvious now that the difference is more than colorable.

But we all understand the DE judge does not want to make that decision, that is why I said, if E* indeed makes a compelling presentation, the DE judge will likely shelve his decsion, wait for Judge Folsom to speak.

Why do I say that is a strong possibility? Because the DE judge had done so once already. The decision to dismiss TiVo's motion was already made before 9/4, if you had simply read it. The timeline was pre-9/4 hearing when the full discovery had yet taken place. The DE judge simply at that time shelved his decision, for a good reason, he did not want his decision to have unfair impact on parties' on-going litigation. That is why he made his decision known on 3/31/09, right after both parties had just filed their final proposed FFCLs to Judge Folsom, because after that, parties' arguments are over.

I have never intended to stop posting, this is an E* forum, I am a partial E* sub. Even though some of your fellow TiVo folks had in the past promised time after time they would stop posting or ignore me, they all ended up breaking their promises, so you see your such bet would not work even with your own folks, it is therefore even more laughable to suggest an E* sub somehow should stop posting in an E* forum just because some TiVo folks do not like to read the posts an E* sub is posting in an E* forum.


----------



## nobody99 (May 20, 2008)

Why is anyone still talking about this? The case will be transferred to Texas. That means DISH lost its attempt to move the venue. It was a long shot to begin with, and it failed.

Paragraph upon paragraph of (redacted)analysis doesn't change that fact.


----------



## jacmyoung (Sep 9, 2006)

nobody99 said:


> Why is anyone still talking about this? The case will be transferred to Texas. That means DISH lost its attempt to move the venue. It was a long shot to begin with, and it failed.
> 
> Paragraph upon paragraph of (redacted)analysis doesn't change that fact.


Because the judge denied TiVo's motion to dismiss the case for one thing.

For another, he also looked at the colorable difference issue, because both E* and TiVo was aruging about it in front of him. When he reviewed E*'s evidence he also *agreed with E** on the colorable difference issue, the only reason he did not go all the way was because TiVo was whining about they did not get a full discovery and accused E* of refusing to provide the information TiVo had asked for. Basically the judge said TiVo deserved that full discovery opportunity.

Please also keep in mind at that time, TiVo was all over the contempt on the face crap, and by telling TiVo they needed to ultimately prove mere colorable difference, before anything else, this DE judge had also practically told TiVo to forget about the so called on the face game.

The above facts are very important because they came out of a district court judge's mouth, not out of E* or TiVo. And this judge is at the same level of Judge Folsom, therefore his view is a much more reliable one to anticipate what Judge Folsom's view might be.

Everything else is pure semantics.

While I have made many posts, if one actually reads them, one may realize they all each address some new points. From the very beginning many TiVo folks ridiculed the idea that contempt on the face was pure garbage now you know it is in fact pure garbage, they also insisted this new case would be dismissed for sure, now you know for a fact TiVo failed on that too.

The record is there, one only needs to look at it. Now I am saying TiVo will fail again because the difference is more than colorable, of course you want to dismiss this idea as usual, but while you are doing it, think about the above two losses.


----------



## nobody99 (May 20, 2008)

I have found new evidence that the Judge in Delaware would be abusing his discretion should he allow this case to move forward.



> Applied to the patent landscape, the Declaratory Judgment Act relieves defendants who are engaging in an allegedly infringing activity of a Hobson's choice: either pursue the allegedly infringing activity and face damages, or cease an activity that may be a substantial source of revenue. Generally speaking, the Declaratory Judgment Act was intended to "fix the problem that arise[] when the other side does not sue." (6)




Since clearly TiVo has already sued DISH, DISH is not entitled to use the declaratory judgement act against TiVo. TiVo would win an easy appeal based on this language if the Delaware Judge took any action other than transferring this case because he would be abusing his discretion.


----------



## nobody99 (May 20, 2008)

jacmyoung said:


> Please also keep in mind at that time, TiVo was all over the contempt on the face crap, and by telling TiVo they needed to ultimately prove mere colorable difference, before anything else, this DE judge had also practically told TiVo to forget about the so called on the face game.


I would like to remind you that the "contempt on the face crap" (an interesting way to phrase it), is still open. He has not ruled.

In fact, I believe it would be an abuse of the court's discretion not to find contempt for the DVRs that were in place at the time the decision was reached.

Any changes made to the DVRs after the decision would certainly be open to the "more than colorable" test, but those DVRs would also be found in contempt assuming, as most everyone does, that they still infringe.

Once contempt is found, TiVo will then go after new DVRs as being only colorably variations of the eight-named DVRs. Since they are running the same software (and probably much of the same hardware), it will likely require another bench trial/hearing to determine if they are colorably different or not. So let's say that TiVo makes motion on these in a month. The hearing is scheduled for six months out, and the decision would be another three months. So nine months from now, Judge Folsom will rule whether DVRs that have never been in his court are more than colorably different. If he rules that they are not, they too will be held in contempt, and probably added to the language of the permanent injunction (not to mention the fines).

If they are not more than colorably different, TiVo will immediately appeal citing abuse of discretion by Judge Folsom, and then after a year of appeals, a decision will come down. After that appeal, a new case can begin. Since Judge Folsom would already be familiar with the new DVRs, the case would stay with him.

Clearly, this will all be settled before then. I suspect that DISH will receive word through sources that the really, really better settle "or else" and they will enter into a long-term agreement with TiVo for all their DVRs. And once they enter into that agreement, their DVRs will work much better and more reliably.


----------



## Greg Bimson (May 5, 2003)

jacmyoung said:


> For another, he also looked at the colorable difference issue, because both E* and TiVo was aruging about it in front of him. When he reviewed E*'s evidence he also agreed with E* on the issue, the only reason he did not go all the way was because TiVo was whining about they did not get a full discovery and E* refused to provide the information TiVo asked.


Judge Farner did not agree with DISH/SATS regarding their evidence:Based on [the evidence provided by DISH/SATS], the Court is unable to conclude that there is not a colorable difference between the re-designed products and the infringing products.​


jacmyoung said:


> Basically the judge said TiVo deserved that full discovery opportunity.


1) that was already granted by Judge Folsom
2) It says loads that even evaluating only the evidence provided by DISH/SATS, that Judge Farner couldn't not state there was a colorable difference between the adjudged and modified receivers.


----------



## nobody99 (May 20, 2008)

jacmyoung said:


> The record is there, one only needs to look at it.


Texas Jurisdiction: TiVo Wins
Jury Found Wilful Infringement: TiVo Wins
Trial: TiVo Wins
Appeal: TiVo Wins
Supreme Court: TiVo Wins
$105 million payment: TiVo Wins
Case relocated to Delaware: TiVo Wins
Contempt in Your Face: TiVo about to Win
Contempt for ongoing infringement: TiVo about to win



jacmyoung said:


> Now I am saying TiVo will fail again


Darn, I forgot. TiVo did lose once. They lost when Dish asked for the bench hearing to be delayed. DISH got an extra two hours of face time with the Judge. It's almost like DISH's legal team is some T-Ball league baseball team going up against the Yankees or something. They must be pretty embarrassed about their performance so far.


----------



## jacmyoung (Sep 9, 2006)

Greg Bimson said:


> Judge Farner did not agree with DISH/SATS regarding their evidence:Based on [the evidence provided by DISH/SATS], the Court is unable to conclude that there is not a colorable difference between the re-designed products and the infringing products.​1) that was already granted by Judge Folsom
> 2) It says loads that even evaluating only the evidence provided by DISH/SATS, that Judge Farner couldn't not state there was a colorable difference between the adjudged and modified receivers.


You read it wrong, please read it again, TiVo was arguing there was *not a colorable difference*, and the DE judge said based on E*'s evidence he could not conclude [as argued by TiVo] there was not a colorable difference, meaning he could not agree with TiVo.

But then he said, because TiVo told him TiVo did not get a full discovery, and TiVo also accused E* of not providing information, he said TiVo should have that opportunity, who knows, maybe after TiVo got that full discovery, and E* provided TiVo with all the info, TiVo might ultimately prove "not a colorable difference".

The term "not a colorable difference" was used by TiVo to mean "only colorably different" and the judge simply used TiVo's term to say he could not agree with TiVo, based on E*'s evidence.

Had the judge agreed with TiVo, the case would have been dismissed.


----------



## nobody99 (May 20, 2008)

Greg Bimson said:


> Judge Farner did not agree with DISH/SATS regarding their evidence:Based on [the evidence provided by DISH/SATS], the Court is unable to conclude that there is not a colorable difference between the re-designed products and the infringing products.​


I think to put it another way, Judge Farner _cannot _legally make any decision _until _there has been a finding of colorable/more than colorable.


----------



## nobody99 (May 20, 2008)

jacmyoung said:


> The timing will be in E*'s control, it usually takes a long time for a jury trial to go through its process, it could take a year or more, if E* senses the danger, they can withdraw one year into the trial.
> 
> TiVo can then start a similar process over.


I just wanted to mention that this is wrong (the underlined part). As soon as the trial starts, TiVo simply files a counterclaim alleging infringement. That will guarantee the trial goes to its conclusion barring a settlement, and DISH cannot withdraw if Chuckles "senses the danger."

This further supports the position that it was all simply an attempt to change venue.


----------



## jacmyoung (Sep 9, 2006)

Greg Bimson said:


> Judge Farner did not agree with DISH/SATS regarding their evidence:Based on [the evidence provided by DISH/SATS], the Court is unable to conclude that there is not a colorable difference between the re-designed products and the infringing products.​1) that was already granted by Judge Folsom
> 2) It says loads that even evaluating only the evidence provided by DISH/SATS, that Judge Farner couldn't not state there was a colorable difference between the adjudged and modified receivers.


If you have difficulty reading my above post, this judge's quote will help:



> ...however&#8230;Ultimately, TiVo may in fact be able to show that there is *not a "colorable difference"* between&#8230;"


Therefore the term "not a colorable difference" actually meant "merely colorable difference."

And therefore, what the judge said was, based on E*'s evidence, the judge could not conclude there was merely colorable difference. Only thing was he would let TiVo have that full discovery too.

I have read so many similar judges' fancy wording to know how to make any sense of them, the key is to find the exact same term and circle them and treat them as the same meaning but not try to interpret that term literally or separately.

It is as the court often says, putting things in their context. Why the lawyers are paid big bucks, they, just as the judges, must know how to play fancy and not be confused


----------



## nobody99 (May 20, 2008)

jacmyoung said:


> And therefore, what the judge said was, based on E*'s evidence, the judge could not conclude there was merely colorable difference. Only thing was he would let TiVo have that full discovery too.


Incorrect. The judge in effect said that Judge Folsom is the only person who can make that determination. And since only he can make that determination, he can have the whole case. That's why it's being transferred, and that's why DISH lost this round. The record is clear, one just needs to read the results.

Hypothetically speaking, in the off-chance that Judge Folsom finds the software more than colorably different, it doesn't matter about the Delware case at that point.

DISH's motion for Declaratory Judgement will be wrapped together with TiVo's counterclaim of infringement, and we'll be right back to a new jury trial in Texas. This is *the exact same outcome* that would have occurred in DISH had never filed the case in Delaware.


----------



## jacmyoung (Sep 9, 2006)

nobody99 said:


> Incorrect. The judge in effect said that Judge Folsom is the only person who can make that determination. And since only he can make that determination, he can have the whole case. That's why it's being transferred, and that's why DISH lost this round. The record is clear, one just needs to read the results.
> 
> Hypothetically speaking, in the off-chance that Judge Folsom finds the software more than colorably different, it doesn't matter about the Delware case at that point.
> 
> DISH's motion for Declaratory Judgement will be wrapped together with TiVo's counterclaim of infringement, and we'll be right back to a new jury trial in Texas. This is *the exact same outcome* that would have occurred in DISH had never filed the case in Delaware.


(Redacted)
This is a declaratory judgment case, there is no counter claim in such case, because for TiVo to counter claim, they will have to ask Judge Folsom to declare the TiVo's DVRs also do not infringe on E*'s patent. That is why usually a counter claim does not happen in a declaratory judgment case.

The Decalratory Judgment Act serves a very distinctive purpose, in a patent case it allows the defendant or party under the threat of an infringement suit take the initiative to prevent the patentee from endlessly trying to run its competitor out of business by using "rolling cases," such as in this case TiVo trying any "rolling" contempt proceedings.


----------



## nobody99 (May 20, 2008)

jacmyoung said:


> This is a declaratory judgment case, there is no counter claim in such case,


Incorrect. In fact, it is all but assured that TiVo will file a counterclaim. If they do not, they will give up the ability to challenge DISH at any other point due to res judicata. The claim and counterclaim will be wrapped up into the same case.



jacmyoung said:


> because for TiVo to counter claim, they will have to ask Judge Folsom to declare the TiVo's DVRs also do not infringe on E*'s patent. That is why usually a counter claim does not happen in a declaratory judgment case.


Uh, what patent was that? You mean the patent application? You can't infringe on a patent application :lol:

The counterclaim would be for patent infringmement by the exact same devices. I would imagine it's very common to file a counterclaim in these cases, especially when you have already won a case, won an appeal, and won a patent reexamination.



jacmyoung said:


> The Decalratory Judgment Act serves a very distinctive purpose, in a patent case it allows the defendant or party under the threat of an infringement suit take the initiative to prevent the patentee from endlessly trying to run its competitor out of business by using "rolling cases," such as in this case TiVo trying any "rolling" contempt proceedings.


Wholly incorrect. I have provided detailed information about the Declaratory Judgment act. It not used for "rolling cases" but rather for the occassion when a patent owner *does not* bring suit. We don't have that problem here. It allows the infringer to escape the cloud of doubt of _not knowing _if the patent holder will sue.

In fact, software is a perfect example of how it would not stop "rolling cases" since each new case, according to many posters here, are a "new device." That means when the version changes from 9.0001 to 9.0002 a new case can be filed. A declaratory judgement might find version 9.0001 not infringing for example, but as soon as 9.0002 is release a whole new lawsuit could be brought. TiVo will have the opportunity to learn from any mistakes it might have made, and will certainly win on a 9.0002 case because it will know DISH's reasoning. And since there is not a "merely colorable" distinction in a declaratory judgement case, DISH would not be able to stop the new suits.

In fact, as I have mentioned above, I am quite sure that TiVo would win on appeal for abuse of judicial discretion if the declaratory judgement case is allowed to proceed.


----------



## jacmyoung (Sep 9, 2006)

nobody99 said:


> Incorrect. In fact, it is all but assured that TiVo will file a counterclaim. If they do not, they will give up the ability to challenge DISH at any other point due to res judicata. The claim and counterclaim will be wrapped up into the same case.


The point is, a TiVo's counterclaim in E*'s declaratory judgment suit will mean little, because the declaratory judgment is to resolve the issue whether the modified DVRs still infringe or not. If the outcome is no, they no longer infringe, the TiVo's counterclaim will be moot.



> The counterclaim would be for patent infringmement by the exact same devices. I would imagine it's very common to file a counterclaim in these cases, especially when you have already won a case, won an appeal, and won a patent reexamination.


You kept mentioning that TiVo had won a jury trial, then won an appeal, then won another appeal, but keep in mind all of them are really only *one* victory, not three. E* was infringing, the only reason it had appeared to you that TiVo won three times was because E* used the appeals to delay the payment and win time to design around, to that end E* had achieved both objectives.



> Wholly incorrect. I have provided detailed information about the Declaratory Judgment act. It not used for "rolling cases" but rather for the occassion when a patent owner *does not* bring suit. We don't have that problem here. It allows the infringer to escape the cloud of doubt of _not knowing _if the patent holder will sue.


This is exactly the case, TiVo did not intend to sue E* on the modified DVRs rather wished they could use the contempt proceeding to wrap up the modified DVRs all together, by arguing "on the face" contempt. By dismissing TiVo, the DE court handed E* a victory, now TiVo may no longer try to use the contempt proceeding to include the modified DVRs, only the originally adjudicated DVRs, or those that are only colorably different. If the difference is more than colorable, the new case will then gonvern the future.



> In fact, software is a perfect example of how it would not stop "rolling cases" since each new case, according to many posters here, are a "new device." That means when the version changes from 9.0001 to 9.0002 a new case can be filed. A declaratory judgement might find version 9.0001 not infringing for example, but as soon as 9.0002 is release a whole new lawsuit could be brought. TiVo will have the opportunity to learn from any mistakes it might have made, and will certainly win on a 9.0002 case because it will know DISH's reasoning. And since there is not a "merely colorable" distinction in a declaratory judgement case, DISH would not be able to stop the new suits.


Your above theory may sound very good, but it will fall apart so easily you should have though about it before even bringing it up. TiVo will be wasting time and resources to go after software 9.0002, if software 9.0001 no longer infringes, all E* has to do is to make sure the 9.0002, 9.0003, 9.0004...no longer use the things they say the 9.0001 no longer uses. Please, try something different.



> In fact, as I have mentioned above, I am quite sure that TiVo would win on appeal for abuse of judicial discretion if the declaratory judgement case is allowed to proceed.


The declaratory judgment case has already been allowed by the DE court to proceed, let's wait and see if TiVo will appeal such DE's decision.


----------



## dfd (Aug 29, 2008)

jacmyoung said:


> The declaratory judgment case has already been allowed by the DE court to proceed, let's wait and see if TiVo will appeal such DE's decision.


You really think that is what happened in DE?

DE is going to kick this case to Folsom as soon as it can.

Folsom will then decide how this case proceeds.

Why am I imagining a scene with E* playing the Black Knight in the Holy Grail?


----------



## nobody99 (May 20, 2008)

jacmyoung said:


> The point is, a TiVo's counterclaim in E*'s declaratory judgment suit will mean little, because the declaratory judgment is to resolve the issue whether the modified DVRs still infringe or not. If the outcome is no, they no longer infringe, the TiVo's counterclaim will be moot.


Again, incorrect. The declaratory judgment that DISH has asked for will be combined with a counterclaim by TiVo of the '389 patent.  This will result in one jury trial. In such cases, the defendant will raise a counterclaim specifically to avoid the situation that you have described. If TiVo does not raise a counterclaim, that would mean that DISH could drop the case a day later, and TiVo would no longer be allowed to challenge DISH on infringement. For this reason, the two cases will be combined.



jacmyoung said:


> You kept mentioning that TiVo had won a jury trial, then won an appeal, then won another appeal, but keep in mind all of them are really only *one* victory, not three.


No, there's actually three more, so let's call it six. There's the Supreme Court refusing to pay, there's the $105 million, and there's the patent office saying the patent stands, unmodified, after the re-exam. So six victories.

DISH got two extra hours at a hearing. A hollow victory since they were trying to move the case out by two months. The legal team must be devastated by their losses thus far.



jacmyoung said:


> E* was infringing, the only reason it had appeared to you that TiVo won three times was because E* used the appeals to delay the payment and win time to design around, to that end E* had achieved both objectives.


I always thought in a lawsuit "winning" was the objective. And since TiVo was paid significant interest on those winnings, the delay really didn't matter. DISH also had to pay that interest.

Incorrect again.



jacmyoung said:


> This is exactly the case, TiVo did not intend to sue E* on the modified DVRs rather wished they could use the contempt proceeding to wrap up the modified DVRs all together, by arguing "on the face" contempt.


I don't believe anyone has any information that TiVo is not going to sue on modified DVRS (those not named in the original suit). TiVo is going after the low-hanging fruit first. Contempt is a far faster process (though still slow) than going through a new jury trial. If TiVo wins on contempt, they won't need the other trial, since they will likely win half a billion dollars.

Furthermore, the prima facie contempt (I think that's what you meant by "on the face") is not yet settled.



jacmyoung said:


> By dismissing TiVo, the DE court handed E* a victory, now TiVo may no longer try to use the contempt proceeding to include the modified DVRs, only the originally adjudicated DVRs, or those that are only colorably different. If the difference is more than colorable, the new case will then gonvern the future.


Umm, incorrect. If one reads the Delaware decision, one finds that the court has not made any decisions and it is not "dismissing" TiVo. In fact, as I have been saying, this is a victory for TiVo since there will not be a jury case in Dealware. Once again, this was the sole purpose for the DE case. Instead, Dsh will be in front of Judge Folsom again.



jacmyoung said:


> Your above theory may sound very good, but it will fall apart so easily you should have though about it before even bringing it up. TiVo will be wasting time and resources to go after software 9.0002, if software 9.0001 no longer infringes, all E* has to do is to make sure the 9.0002, 9.0003, 9.0004...no longer use the things they say the 9.0001 no longer uses. Please, try something different.


let me explain in a bit more detail. Let's Dish gets a declaratory judgement that says "this court finds that version 9.0001 of Dishplayer software does not infringe TiVo's '389 patent"

TiVo could immediately sue for patent infringement the moment that version 9.0002 was downloaded. The very same flexibility that DISH claims to have with new software being a "new device" now becomes a weapon that TiVo can use to invalidate any declaratory judgment unless DISH leaves the software at the same version.



jacmyoung said:


> The declaratory judgment case has already been allowed by the DE court to proceed, let's wait and see if TiVo will appeal such DE's decision.


Completely incorrect. The case has not "been allowed" but is simply being transferred to Judge Folsom because he is the only person who can make the decision. Again (ad infinitum) tried to move the venue and lost. It's really that simple. Occam's razor.


----------



## nobody99 (May 20, 2008)

nobody99 said:


> jacmyoung said:
> 
> 
> > because for TiVo to counter claim, they will have to ask Judge Folsom to declare the TiVo's DVRs also do not infringe on E*'s patent. That is why usually a counter claim does not happen in a declaratory judgment case.
> ...


I couldn't help but noticed that this question was not answered. Just so we're clear, DISH has, as far as we know, submitted a patent request to the patent office for the "Herculean effort" it put forth in its alleged design-around. It's not an actual patent. It is a virtual certainty that it will be denied.

But let's play along anyway. When you say TiVo "will have to ask Judge Folsom to declare the TiVo's DVRs also do not infringe on E*'s patent" can you be more specific with the patent number? How can TiVo ask Judge Folsom to "declare the TiVo's DVR also do not infringe on E*'s patent" without knowing which patent it is? Is it patent roulette, where they just pick any random DISH patent and ask Judge Folsom to declare non-infringement?

I really do want to understand this. Once you've provided the patent number, could you provide precedence that says that a company can't file for infringement unless a judge declares that the device doesn't infringe on another patent? Because that seems like it would be an abuse of discretion, and such abuse would immediately be appealable and would cause DISH to lose the entire case.

When one states conjecture as fact, one should back up such conjecture with evidence and specifics. The lack of evidence thus far is very telling - it is a very clear indication that DISH does not have a case. The evidence has certainly not been provided and it will be very much appreciated. In fairness, since the above scenario is completely impossible, I suspect no such evidence will be presented because it does not exist.


----------



## nobody99 (May 20, 2008)

dfd said:


> Why am I imagining a scene with E* playing the Black Knight in the Holy Grail?


:lol::lol:

'Tis but a flesh wound!

:lol::lol:


----------



## jacmyoung (Sep 9, 2006)

nobody99 said:


> :lol::lol:
> 
> 'Tis but a flesh wound!
> 
> :lol::lol:


I was referring to actual E* patents, I hope you are not suggesting E* holds no patents?

Now it is true TiVo can counter claim that E*'s modified and new DVRs still infringe on the TiVo's patent. But as I have discussed with Greg, the immediate question to ask is not what TiVo might do in the future, but what TiVo could likely expect next from the court.

The agreement so far has been, if the difference is more than colorable, there cannot be a contempt, and this new case will be the venue to address any new infringement issues.

But the immediate question is, what is the likelihood that Judge Folsom may found the difference only colorable?

You say almost certain, but offered none of your independent analysis. At least Greg, Curtis52 and CuriousMark was offering their justifications. You had only played some drama just like the one above when it comes to explain why it is certain the difference is only colorable.

I offered my justifications as why I believe the difference is more than colorable.

But you do not have to pay attention to my justifications, because I am no judge, so on that I cannot necessary refute your such attitude.

What I can offer however is the DE court judge's opinion, when the DE court judge said, after reviewing the evidence provided by E* that the DE judge could not agree with TiVo that the difference was merely colorable. But since TiVo argued they did not have the chance for a full discovery, and E* supposedly refused to provide TiVo some info, the DE judge said well maybe, after TiVo you did get that chance you might ultimately prove your case.

But did TiVo prove its case? According to E*, the new design no longer use the "core of the TiVo's inventioin"-that indexing thing. TiVo's only response was but "indexing" was irrelevant.

The problem is, E* told the DE judge the same thing, that their new design no longer used the "indexing" thing. Did the DE judge consider "indexing" irrelevant? Apparently not, otherwise he would have said hey it was not relevant, and I had to agree with TiVo that the difference was merely colorable.

Now the very same evidence is in front of Judge Folsom. Nothing had really changed after TiVo got that full discovery. The question is, what is the likelihood of Judge Folsom finding the difference only colorable, by looking at the exact same evidence looked at by the DE judge, when the DE judge had said that he could not agree with TiVo the difference was merely colorable.


----------



## dfd (Aug 29, 2008)

jacmyoung said:


> I was referring to actual E* patents, I hope you are not suggesting E* holds no patents?
> 
> Now it is true TiVo can counter claim that E*'s modified and new DVRs still infringe on the TiVo's patent. But as I have discussed with Greg, the immediate question to ask is not what TiVo might do in the future, but what TiVo could likely expect next from the court.
> 
> ...


How could the DE judge really consider anything? Were there witnesses called? Depositions?

Do you think the DE judge wants to make this decision? Is he calling for more hearings?


----------



## nobody99 (May 20, 2008)

jacmyoung said:


> I was referring to actual E* patents, I hope you are not suggesting E* holds no patents?


Again, please provide the specific DVR-related patents by number. DISH does not hold any patents on DVR software. You have said TiVo will have to "ask Judge Folsom to declare the TiVo's DVRs also do not infringe on E*'s patent" Please provide the patent you are referencing. I can't help but wonder why you won't provide the patent number.



jacmyoung said:


> Now it is true TiVo can counter claim that E*'s modified and new DVRs still infringe on the TiVo's patent. But as I have discussed with Greg, the immediate question to ask is not what TiVo might do in the future, but what TiVo could likely expect next from the court.
> 
> The agreement so far has been, if the difference is more than colorable, there cannot be a contempt, and this new case will be the venue to address any new infringement issues.


Correct, and the venue is now Texas, in front of a judge who was none-to-happy about DISH's filing of a new case in Delaware a mere 45 minutes after the hearing. Ooops. Let's just call that one a screw-up by DISH's rookie legal team.

But this doesn't matter. If the judge finds the differences more than colorable, TiVo was planning a new trial immediately anyway. In fact, DISH's legal team probably screwed up because now its a guarantee that the case will be in Texas. As I've said repeatedly, DISH's legal team screwed this one up too.



jacmyoung said:


> What I can offer however is the DE court judge's opinion, when the DE court judge said, after reviewing the evidence provided by E* that the DE judge could not agree with TiVo that the difference was merely colorable.


Incorrect. He said that he could neither find more than colorable nor merely colorable and that Judge Folsom is in the position to make that determination. That's why he's moving it to Texas. Exactly the thing that DISH's legal team did not want to happen.


----------



## jacmyoung (Sep 9, 2006)

nobody99 said:


> Again, please provide the specific DVR-related patents by number. DISH does not hold any patents on DVR software. You have said TiVo will have to "ask Judge Folsom to declare the TiVo's DVRs also do not infringe on E*'s patent" Please provide the patent you are referencing. I can't help but wonder why you won't provide the patent number.


E* holds many DVR related patents, even before TiVo existed, my point was a possible counter claim scenario is TiVo also ask the judge to declare their own DVRs do not infringe on any of the E*'s patents, if E* is threatening to get back at TiVo, it does not have to be just a DVR functionality patent.



> In fact, DISH's legal team probably screwed up because now its a guarantee that the case will be in Texas. As I've said repeatedly, DISH's legal team screwed this one up too.


If as you said, by E* filing the case then to have the case transferred to the Texas court, it would be a better thing for TiVo, logic should tell you TiVo should have tried to simply ask the case be transferred rather dismissed, after all wouldn't you want to get the better result? But TiVo apparently did not agree with you, they tried very hard to dismiss this new action, not to transfer it. Because this new action by E* is not good for them.

Are you still so sure about your above assertion that this new action is actually better for TiVo? Had TiVo filed a new action first, of course it would have been in the Texas court. BTW, please do not make it a fact that the new action is transferred to the Texas court, not yet. Though very likely, it is not 100% certain, because if so, there would be no point of asking the parties to argue whether the new action should be transferred. E* still can make an arugment, even though it will be a very tough one.



> Incorrect. He said that he could *neither find more than colorable* nor merely colorable and that Judge Folsom is in the position to make that determination. That's why he's moving it to Texas. Exactly the thing that DISH's legal team did not want to happen.


No, he did not say the highlighted part, only the latter part. But I will not continue to argue with you on that one. Because that is an issue that is not with you, but with Greg and maybe Curtis52 or CuriousMark, so unless they wish to respond...


----------



## dgordo (Aug 29, 2004)

jacmyoung said:


> ...my point was a possible counter claim scenario is TiVo also ask the judge to declare their own DVRs do not infringe on any of the E*'s patents, if E* is threatening to get back at TiVo, it does not have to be just a DVR functionality patent.


The Tivo counterclaim would be against DISH for infringement of the 389 patent for devices not already adjudicated.


----------



## Curtis52 (Oct 14, 2003)

dgordo said:


> The Tivo counterclaim would be against DISH for infringement of the 389 patent for devices not already adjudicated.


Yep. TiVo would want to be in the position of getting damages if they win.


----------



## nobody99 (May 20, 2008)

jacmyoung said:


> nobody99 said:
> 
> 
> > Again, please provide the specific DVR-related patents by number. DISH does not hold any patents on DVR software. You have said TiVo will have to "ask Judge Folsom to declare the TiVo's DVRs also do not infringe on E*'s patent" Please provide the patent you are referencing. I can't help but wonder why you won't provide the patent number.
> ...


Once again please supply these patents specifically related to recording video. If "E* holds many DVR related patents" you obviously should have trouble providing specific patent numbers that we can discuss. As I have said, it is clear that DISH has no DVR patents, and your inability to provide any specific patents only strengthens TiVo's position in such matters.

I have asked for this information three times, yet it has not been supplied. Clearly other readers can see the reason is that DISH has no patents on DVR recording.



> Are you still so sure about your above assertion that this new action is actually better for TiVo? Had TiVo filed a new action first, of course it would have been in the Texas court. BTW, please do not make it a fact that the new action is transferred to the Texas court, not yet. Though very likely, it is not 100% certain, because if so, there would be no point of asking the parties to argue whether the new action should be transferred. E* still can make an arugment, even though it will be a very tough one.


I am glad to see that you now admit that TIVo won a "very likely" victory in this by getting a transfer to TX. Yes the new action in TX is better than having it dismissed. let me explain why. Suppose DISH had never filed the Delaware action. After the present contempt motion, TiVo would have filed a new contempt motion for DVRs other than those eight-named models. At that point, if Judge Folsom had declared them "more than colorably different" DISH could have then filed a declaratory judgement motion in Delaware. The judge would have agreed to hear the case, since the colorable test had alread been performed. Now, however, the case is already moved to Texas and there is no chance for DISh to hear the case anywhere else.



> nobody99 said:
> 
> 
> > He said that he could neither find more than colorable nor merely colorable and that Judge Folsom is in the position to make that determination.
> ...


Pleaes read the case again. The Judge was quite clear that he could not make such a determination:



Delaware Court said:


> However, on the current record, the Court is unable to make a concrete determination as to wheter the re-designed products present more than a "colorable difference" over the infringing products.


I have presented concrete evidence that the Judge in Delware has determined that he cannot make a colorable difference determination; no one else has shown otherwise other than through simple opinion. When one looks at the situation, the Judge's actual words "unable to make a determination" clearly have more weight than an anonymous poster on the internet.


----------



## jacmyoung (Sep 9, 2006)

Curtis52 said:


> Yep. TiVo would want to be in the position of getting damages if they win.


True but why some of you have been totally silent on the colorable difference issue since I have explained why now a more than colorable difference ruling is more likely, given the DE opinion?

The only person making argument on merely colorable difference now is nobody99 (redacted)


----------



## jacmyoung (Sep 9, 2006)

nobody99 said:


> Once again please supply these patents specifically related to recording video. If "E* holds many DVR related patents" you obviously should have trouble providing specific patent numbers that we can discuss. As I have said, it is clear that DISH has no DVR patents, and your inability to provide any specific patents only strengthens TiVo's position in such matters.
> 
> I have asked for this information three times, yet it has not been supplied. Clearly other readers can see the reason is that DISH has no patents on DVR recording.


I already said it does not have to be DVR functionalites patent, any patent E* may threaten to go after TiVo will do. But I will not tell you what is E*'s patent portifolio since our discussion is about how this new action may benefit who.

You seem to believe as long as your ask me for something and I failed to answer, I lose, well I asked you who knows how many times such question: "are your still so sure...?" everytime you made an incorrect assertion, you never answered my such question, so please...



> I am glad to see that you now admit that TIVo won a "very likely" victory in this by getting a transfer to TX.


This is exactly why there is no point of answering your questions sometimes, I don't know how in the world you could have possibly concluded I admitted that.



> Yes the new action in TX is better than having it dismissed.


That is not TiVo's opinion, it is ok to present your opinion, but I hope your opinion is at least similar to TiVo's if you wish to help TiVo.

TiVo did not believe transfer was better than dismissal, because had TiVo thought so, TiVo would have asked for a transfer, rather asked for a dismissal.

So let me ask you again, are you still so sure TiVo thinks tranferring to TX was better than dismissal?



> Now, however, the case is already moved to Texas and there is no chance for DISh to hear the case anywhere else.


Please show me where did it say this case is already moved to Texas?


----------



## dgordo (Aug 29, 2004)

jacmyoung said:


> True but why some of you have been totally silent on the colorable difference issue since I have explained why now a more than colorable difference ruling is more likely, given the DE opinion?


I'm glad to see you say that is true, because you had been saying something different before. As for the rest, probably because we understand that the DE opinion has no bearing on what Judge Folsom will decide.


----------



## nobody99 (May 20, 2008)

jacmyoung said:


> True but why some of you have been totally silent on the colorable difference issue


*Until* a colorable difference determination is made for a future contempt hearing on non-adjudicated dvrs, a declarative judgment cannot proceed. And only Judge Folsom can make that determination. As I have said, now that the case is moving back to Texas, *it doesn't matter anymore* because if Judge Folsom finds more than colorable, there would be a new trial regardless. But DISH lost in its effort to move the new trial to Delaware.



jacmyoung said:


> since I have explained why now a more than colorable difference ruling is more likely, given the DE opinion?


I am confused, what "DE Opinion?" The only opinion they have made is "we can't determine this, only Judge Folsom can." Which is a victory for TiVo since the case is back in Texas.


----------



## nobody99 (May 20, 2008)

jacmyoung said:


> I already said it does not have to be DVR functionalites patent, any patent E* may threaten to go after TiVo will do.


here's what you said



jacmyoung said:


> because for TiVo to counter claim, _they will have to ask Judge Folsom to declare the TiVo's DVRs also do not infringe on E*'s patent._ That is why usually a counter claim does not happen in a declaratory judgment case.


Surely you can see there is a big difference between "E* threaten to go after TiVo" and Judge Folsom requiring TiVo to be noninfringing.

This contention is rather unusual, and, in all honesty, seems like it's made up. I have never heard of a requirement that a judge declare non-infringement of a different patent. Clearly, though, you had a particular patent in mind.

But again (for a fifth time) I will ask specifically for a patent number that shows that DISH has a DVR patent. I think most readers will find it quite curious that the information still has not been provided.

Furthermore, it would be helpful if we could see a specific example where a counterclaim requires a judge to declare noninfringement of a different patent.


----------



## scooper (Apr 22, 2002)

nobody99 said:


> *Until* a colorable difference determination is made for a future contempt hearing on non-adjudicated dvrs, a declarative judgment cannot proceed. And only Judge Folsom can make that determination. As I have said, now that the case is moving back to Texas, *it doesn't matter anymore* because if Judge Folsom finds more than colorable, there would be a new trial regardless. But DISH lost in its effort to move the new trial to Delaware.
> 
> I am confused, what "DE Opinion?" The only opinion they have made is "we can't determine this, only Judge Folsom can." Which is a victory for TiVo since the case is back in Texas.


No - all it means is that the DE case can't proceed until Judge Folsom in TX makes his "colorable difference ruling" - it would be "pending" if anything. It certainly hasn't been transfered yet.

Echostar is playing this for the long view - I'd suggest an adjustment in your scope should be considered.


----------



## jacmyoung (Sep 9, 2006)

nobody99 said:


> ...I have presented concrete evidence that the Judge in Delware has determined that he cannot make a colorable difference determination; ...


Here is why I said when one reads a statement, one must put it in the context, not just read it in total isolation.

When the DE judge said he could not make a concrete decision, one must continue to read as the reasons why he said so.

He looked at E*'s evidence and told TiVo, no, based on the E*'s evidence, I could not agree with you that the difference was merely colorable. But then why did he say he could not make a concrete decision anyway? Because TiVo did not get the chance to have a full discovery, and in fact, TiVo said E* had refused to provide the info needed.

And that was the reason the DE judge said he could not make a concrete decision. Because you know why? E* could have been lying to him, TiVo did not have a chance to verify such E* evidence.

Therefore one can say, had TiVo had the full discovery at that time, the DE judge would have been able to make a concrete decision.

Now TiVo did have that full discovery and E* had given all TiVo had asked for. So in such case one needs to ask, had that happened at that time, what might be that "concrete decision" be from the DE judge?

It is a hypothetical question of course, but an answer to such hypothetical question can give some idea what the Judge Folsom's "concrete decision" might look like.

If you read to this point and still cannot see my point, I give up.


----------



## nobody99 (May 20, 2008)

jacmyoung said:


> When the DE judge said he could not make a concrete decision, one must continue to read as the reasons why he said so.


Why? He can't make the decision because he does not know anything about the case. One need not read anything further into it. I suppose if DISH wanted to appeal the decision it could read further into it, but it does not matter.



Delaware Court said:


> However, on the current record, the Court is unable to make a concrete determination as to wheter the re-designed products present more than a "colorable difference" over the infringing products.


One need not read anything into this. When a court issues such strongly-worded, clear communication, the losing side should take it to mean that the Judge felt that the case was filed improperly by the mover. It is rare for a case to be transferred, and DISH's legal team should take this defa



jacmyoung said:


> If you read to this point and still cannot see my point, I give up.


That is your choice. I will be here if you change your mind.


----------



## nobody99 (May 20, 2008)

scooper said:


> No - all it means is that the DE case can't proceed until Judge Folsum in TX makes his "colorable difference ruling" - it would be "pending" if anything. It certainly hasn't been transfered yet.
> 
> Echostar is playing this for the long view - I'd suggest an adjustment in your scope should be considered.


You might want to read up on the case some more. Delaware is transferring the entire case to Texas. They are not simply waiting for Judge Folsom to decide colorable differences.

Here's a link to the decision text

http://www.southernme.com/DAVY_v_GOLIATH/Tivo v Echostar/DEFarnumOpinion.pdf


----------



## jacmyoung (Sep 9, 2006)

nobody99 said:


> Why? He can't make the decision because he does not know anything about the case. ...


Yes he could and he did make a decision, based on E*'s evidence, he is no dummy, he can read and make up his mind.

TiVo argued before him that the difference was merely colorable, and the DE judge, after reading E*'s evidence, told TiVo, no, I could not agree with you the difference was merely colorable.

Yes, he made a decision to disagree with TiVo's assertion that the difference was only colorable.

But it is also true he did not make a concrete decision that the difference was more than colorable, but that was because TiVo did not have a chance to verify E*'s evidence through a proper full discovery. As I said earlier, E*'s evidence could be false, or inaccurate, or made up. TiVo had the right to seek a verification process to try to prove the E*'s evidence was false or inaccurate.

Did TiVo do that? No, after the full discovery, TiVo did not dispute E*'s evidence, TiVo only said the E* evidence was "irrelevant."

Did the DE judge say E*'s evidence was irrelevant? No he did not. He actually made a decision based on the E* evidence, the decision was to disagree with TiVo that the difference was merely colorable.


----------



## dgordo (Aug 29, 2004)

jacmyoung said:


> Yes he could and he did make a decision, based on E*'s evidence, he is no dummy, he can read and make up his mind.
> 
> TiVo argued before him that the difference was merely colorable, and the DE judge, after reading E*'s evidence, told TiVo, no, I could not agree with you the difference was merely colorable.
> 
> Yes, he made a decision to disagree with TiVo's assertion that the difference was only colorable.


It would be beyond an abuse of discretion for a judge to make the decision you are alleging without a hearing where both parties could present witnesses and evidence.


----------



## dgordo (Aug 29, 2004)

scooper said:


> No - all it means is that the DE case can't proceed until Judge Folsum in TX makes his "colorable difference ruling" - it would be "pending" if anything. It certainly hasn't been transfered yet.


It doesn't even need to be Judge Folsom. The DE judge could have made the colorable difference ruling, but he chose not to, despite what others have said. Regardless, you are correct, the DE case cannot proceed (in whatever court room it may end up) without a colorable difference ruling.


----------



## scooper (Apr 22, 2002)

dgordo said:


> It doesn't even need to be Judge Folsom. The DE judge could have made the colorable difference ruling, but he chose not to, despite what others have said. Regardless, you are correct, the DE case cannot proceed (in whatever court room it may end up) without a colorable difference ruling.


It makes the most sense for Judge Folsom to make the colorable difference ruling, since he has heard the evidence already.

That explains my shortcut


----------



## jacmyoung (Sep 9, 2006)

dgordo said:


> It would be beyond an abuse of discretion for a judge to make the decision you are alleging without a hearing where both parties could present witnesses and evidence.


Precisely why he said TiVo should have that hearing.

That was not my point, all I am saying is, he looked at the E* evidence, and based on E*'s evidnece, he told TiVo I could not agree with TiVo your argument that the difference was merely colorable. And it is this very statement I suggest people take to heart when we try to speculate what might be the Judge Folsom's decision.

Because Judge Folsom is faced with the exact same E* evidence, and TiVo did have a full discovery, and E* did give all the info TiVo asked for. Judge Folsom will be making a decision, following the same standards and logic as the DE judge used, if so, Judge Folsom will have to tell TiVo the same thing, I cannot agree with you the difference (as shown by the same E* evidence) is merely colorable.

The only way TiVo can win is if TiVo, through the discovery, could dispute the E* evidence as false, or inaccurate, but TiVo did not do that. Therefore E*'s exact same evidence now stands, same as the one stood in front of the DE judge.

Judge Folsom will have to make his "concrete decision" based on the exact same evidence.


----------



## nobody99 (May 20, 2008)

jacmyoung said:


> Judge Folsom will have to make his "concrete decision" based on the exact same evidence.


And after he makes that decision, he decides what the next action is (declaratory judgement combined with counterclaim of infringement).

Which is exactly what would have occurred had DISH never filed in Delaware.

In other words, DISH lost it's attempt to change venue. Chalk one up for the minor-leaguers known as DISH's legal clown posse :lol:


----------



## dgordo (Aug 29, 2004)

jacmyoung said:


> Judge Folsom will have to make his "concrete decision" based on the exact same evidence.


Judge Folsom had significantly more evidence/testimony to make his decision.


----------



## jacmyoung (Sep 9, 2006)

nobody99 said:


> And after he makes that decision, he decides what the next action is (declaratory judgement combined with counterclaim of infringement).
> 
> Which is exactly what would have occurred had DISH never filed in Delaware.
> 
> In other words, DISH lost it's attempt to change venue. Chalk one up for the minor-leaguers known as DISH's legal clown posse :lol:


I finally see your point.

But remember, if Judge Folsom denies TiVo's contempt motion, the next thing for TiVo to consider is likely whether to appeal the decision, not what to do with the new action.

And the next immediate action is actually the second motion on the additional damages. May I suggest TiVo do not try too many tings at one time? They had trouble getting one thing done for the last almost whole year.

Do you serious think TiVo will have the same desire to go through with E* for another four years?


----------



## dgordo (Aug 29, 2004)

jacmyoung said:


> Precisely why he said TiVo should have that hearing.


According to you the hearing has already happened and a DE judge ruled against Tivo. Make up your mind.


----------



## jacmyoung (Sep 9, 2006)

dgordo said:


> Judge Folsom had significantly more evidence/testimony to make his decision.


Have you read those? I did, it is the same, only with more details, nothing of which disputes the evidence before the DE judge.


----------



## dgordo (Aug 29, 2004)

jacmyoung said:


> Do you serious think TiVo will have the same desire to go through with E* for another four years?


I don't see how they have a choice.


----------



## jacmyoung (Sep 9, 2006)

dgordo said:


> According to you the hearing has already happened and a DE judge ruled against Tivo. Make up your mind.


According to me the DE judge decided to disagree with TiVo that the difference was merely colorable, you simply did not read me right.


----------



## jacmyoung (Sep 9, 2006)

dgordo said:


> I don't see how they have a choice.


The quesiton is whether TiVo, in its current condition, can even afford to go through that choice.

Do you not agree that this time around, it will be much more difficult to prove infringement again, if even possible?


----------



## nobody99 (May 20, 2008)

jacmyoung said:


> I finally see your point.
> 
> But remember, if Judge Folsom denies TiVo's contempt motion, the next thing for TiVo to consider is likely whether to appeal the decision, not what to do with the new action.
> 
> ...


It doesn't matter what I think. This is the legal process. It's slow, ugly, and not fair to anyone. But DISH lost, plain and simple. They were trying to move the case to Delaware and failed.

In all honesty, it was a longshot anyway.


----------



## dgordo (Aug 29, 2004)

jacmyoung said:


> Have you read those? I did, it is the same, only with more details, nothing of which disputes the evidence before the DE judge.


Considering neither party was able to call witnesses to testify under oath its impossible it was the same. The DE motions contain nothing more than allegations and exhibits that have not been subject to examination.


----------



## jacmyoung (Sep 9, 2006)

nobody99 said:


> It doesn't matter what I think. This is the legal process. It's slow, ugly, and not fair to anyone. But DISH lost, plain and simple. They were trying to move the case to Delaware and failed.
> 
> In all honesty, it was a longshot anyway.


Let me say it again, the case currently is still in DE court, not moved yet. Both parties has yet filed their arguments for or against the transfer.


----------



## dgordo (Aug 29, 2004)

jacmyoung said:


> According to me the DE judge decided to disagree with TiVo that the difference was merely colorable, you simply did not read me right.


How could he do that without a colorable difference hearing?


----------



## jacmyoung (Sep 9, 2006)

dgordo said:


> Considering neither party was able to call witnesses to testify under oath its impossible it was the same. The DE motions contain nothing more than allegations and exhibits that have not been subject to examination.


It is the same because E*'s statement is still that the "indexing" is removed, and the "automatic flow control" is removed, neither had changed. The DE judge was given these two evidence, so is Judge Folsom now, only with more details and testimony.


----------



## nobody99 (May 20, 2008)

jacmyoung said:


> The quesiton is whether TiVo, in its current condition, can even afford to go through that choice.


Hahaha. that's funny :lol:

TiVo has has $200 million in the bank, positive cash flow, no debt, and a proven legal team that's already won over $100 million. They have deals with Comcast and DirecTV that will bring them millions of subscribers over the next few years.

DISH has $6 billion+ in debt and a legal team that lost $100 million. They lost a major source of subscribers with their deal through AT&T.

In the last year, TiVo's stock is down 18% to DISH being down 60%.

The question is really "is DISH in any position to fight another four-year battle?" The downside for TiVo is that if it takes four years, DISH will probably be bankrupt at the end of that period and they'll be nothing left to be paid with.


----------



## dgordo (Aug 29, 2004)

jacmyoung said:


> The quesiton is whether TiVo, in its current condition, can even afford to go through that choice.


Tivo has no debt and over 200 million in cash. They have no choice but to defend their IP, it is the essence of their business model.



jacmyoung said:


> Do you not agree that this time around, it will be much more difficult to prove infringement again, if even possible?


No idea, after Judge Folsom rules this will be easier for me to know.


----------



## jacmyoung (Sep 9, 2006)

dgordo said:


> How could he do that without a colorable difference hearing?


I don't know, ask him, because he did.


----------



## dgordo (Aug 29, 2004)

jacmyoung said:


> It is the same because E*'s statement is still that the "indexing" is removed, and the "automatic flow control" is removed, neither had changed. The DE judge was given these two evidence, so is Judge Folsom now, only with more details and testimony.


Judge Folsom was presented with much more evidence that that.


----------



## jacmyoung (Sep 9, 2006)

dgordo said:


> Tivo has no debt and over 200 million in cash. They have no choice but to defend their IP, it is the essence of their business model.
> 
> No idea, after Judge Folsom rules this will be easier for me to know.


We have argued on the new design's infringement issue to death, if you had read them, you can get some idea.


----------



## dgordo (Aug 29, 2004)

jacmyoung said:


> I don't know, ask him, because he did.


So now he did hold a colorable difference hearing?


----------



## dgordo (Aug 29, 2004)

jacmyoung said:


> We have argued on the new design's infringement issue to death, if you had read them, you can get some idea.


I'd rather wait for a judge to make the ruling.


----------



## jacmyoung (Sep 9, 2006)

dgordo said:


> Judge Folsom was presented with much more evidence that that.


Yet the DE judge only needed the two, and the two are still there and undisputed. E* only needs to provide the evidence to establish the doubt. One evidence will do, more evidence changes nothing unless they dispute this one core evidence.


----------



## jacmyoung (Sep 9, 2006)

dgordo said:


> I'd rather wait for a judge to make the ruling.


We all do.


----------



## jacmyoung (Sep 9, 2006)

dgordo said:


> So now he did hold a colorable difference hearing?


No, he did make that decison to disagree with TiVo that the difference was merely colorable.


----------



## dgordo (Aug 29, 2004)

jacmyoung said:


> No, he did make that decison to disagree with TiVo that the difference was merely colorable.


I just want to figure out what you are saying.

Did he or did he not hold a colorable difference hearing?

If he didn't how could he making a ruling on colorable difference?


----------



## Greg Bimson (May 5, 2003)

jacmyoung said:


> The only way TiVo can win is if TiVo, through the discovery, could dispute the E* evidence as false, or inaccurate, but TiVo did not do that.


TiVo most certainly did dispute that DISH/SATS evidence was "inaccurate". TiVo portrayed DISH/SATS' contention of a lack of parsing by comparing the old, adjudged DVR's, where five of five experts agreed that PID filtering was the analysis step of the claim, to the modified DVR's which still contain that PID filter as an inaccurate statement. TiVo portrayed DISH/SATS' contention of a lack of automatic flow control by comparing the old, adjudged DVR's containing the circular buffer with the modified DVR's which still have that circular buffer as an inaccurate statement.

And let's not forget that DISH/SATS threw the entire pantry at Judge Farner to state there was a colorable difference in the modifications, and Judge Farner has decided to ship the case off to Judge Folsom. Sounds like a TiVo win to me.

The only reason TiVo didn't file a motion to transfer was because they were more interested in shelving the case. Since the Delaware case was filed, Judge Folsom has taken up the cause to evaluate the eight models of DVR, and Judge Farner has decided not to hear the case and is trying to ship it off to Judge Folsom.


----------



## jacmyoung (Sep 9, 2006)

Greg Bimson said:


> TiVo most certainly did dispute that DISH/SATS evidence was "inaccurate". TiVo portrayed DISH/SATS' contention of a lack of parsing by comparing the old, adjudged DVR's, where five of five experts agreed that PID filtering was the analysis step of the claim, to the modified DVR's which still contain that PID filter as an inaccurate statement.


If curtis52 agrees with you I will try to address that issue one more time



> TiVo portrayed DISH/SATS' contention of a lack of automatic flow control by comparing the old, adjudged DVR's containing the circular buffer with the modified DVR's which still have that circular buffer as an inaccurate statement.


No, it was not the "circular buffer" in the old design that managed the flow control, the "circular buffer" is a part of the hard drive itself, cannot possibly be the invention. TiVo simply tried to find anything that might stick.



> And let's not forget that DISH/SATS threw the entire pantry at Judge Farner to state there was a colorable difference in the modifications, and Judge Farner has decided to ship the case off to Judge Folsom. Sounds like a TiVo win to me.


But you all try to forget, while he had tried to transfer the case, he also agreed with E*'s evidence and told TiVo he could not agree with them that the difference was merely colorable.



> The only reason TiVo didn't file a motion to transfer was because they were more interested in shelving the case.


Really? are you saying TiVo anticipated the DE judge would shelve the case? That would be some foresight! TiVo could not even anticipate that the "on the face contempt" would not fly! You are giving them too much credit.



> Since the Delaware case was filed, Judge Folsom has taken up the cause to evaluate the eight models of DVR, and Judge Farner has decided not to hear the case and is trying to ship it off to Judge Folsom.


Please make sure we know the exact timeline. The DE judge only made his decision known on 3/31/09, TiVo wanted to dismiss the new action, TiVo failed. TiVo was not so smart to time the DE judge's decision to be at 3/31/09 and said, hey let's try to dismiss this case, and in effect it would be "shelved" till 3/31/09.

No, having this case initiated by E* is bad for TiVo, that was why TiVo tried to dismiss it, not to transfer it, and to that extent, TiVo had failed.

Had TiVo tried to transfer it in the first place, then I would have agreed with you TiVo had won, but this is not the case, so don't make it one.

TiVo wanted to dismiss it, not transfer it, they lost.

It is true that if the case is transferred it is not a perfect ending for E*, but at this moment, TiVo lost their bid to dismiss the case. While it is very likely the case will be transferred, let's not talk about it as if the transfer is already a fact, it is not.


----------



## jacmyoung (Sep 9, 2006)

dgordo said:


> I just want to figure out what you are saying.
> 
> Did he or did he not hold a colorable difference hearing?
> 
> If he didn't how could he making a ruling on colorable difference?


What I am saying is he made his opinion known to TiVo that based on the E* evidence he looked at, TiVo could not say the difference was merely colorable, and it is such opinion that is very telling, not his ruling, he made no ruling on the issue, but he did offer his opinion.

I can say, hey it is not my job to say if you are correct or not, but if you really want my opinion, I'd say you are wrong. That was exactly what the DE judge was saying to TiVo.


----------



## Sterling (Feb 18, 2009)

The DE judge could not say it was only colorable. 

And here is the part you are missing.

The DE judge could not say it was more than colorable.

It really is that simple.


----------



## dgordo (Aug 29, 2004)

jacmyoung said:


> What I am saying is he made his opinion known to TiVo that based on the E* evidence he looked at, TiVo could not say the difference was merely colorable, and it is such opinion that is very telling, not his ruling, he made no ruling on the issue, but he did offer his opinion.
> 
> I can say, hey it is not my job to say if you are correct or not, but if you really want my opinion, I'd say you are wrong. That was exactly what the DE judge was saying to TiVo.


see below.



Sterling said:


> The DE judge could not say it was only colorable.
> 
> And here is the part you are missing.
> 
> ...


----------



## Greg Bimson (May 5, 2003)

jacmyoung said:


> No, it was not the "circular buffer" in the old design that managed the flow control, the "circular buffer" is a part of the hard drive itself, cannot possibly be the invention. TiVo simply tried to find anything that might stick.


The circular buffer is not part of the hard drive.


jacmyouung said:


> But you all try to forget, while he had tried to transfer the case, he also agreed with E*'s evidence and told TiVo he could not agree with them that the difference was merely colorable.


Yet with the evidence provided by DISH/SATS, Judge Farner could not agree that the modifications were more than colorably different, otherwise that would have been his ruling.


jacmyoung said:


> Really? are you saying TiVo anticipated the DE judge would shelve the case? That would be some foresight! TiVo could not even anticipate that the "on the face contempt" would not fly! You are giving them too much credit.


A motion to dismiss was all that was filed by TiVo. Instead, Judge Farner doesn't want the case.


jacmyoung said:


> Please make sure we know the exact timeline. The DE judge only made his decision known on 3/31/09, TiVo wanted to dismiss the new action, TiVo failed. TiVo was not so smart to time the DE judge's decision to be at 3/31/09 and said, hey let's try to dismiss this case, and in effect it would be "shelved" till 3/31/09.


The case is still "shelved". There is another "motion" pending before Judge Farner, namely, the arguments to transfer the case. That creates a delay, which is why TiVo never filed to have the case transferred.

This new action if it ever gets to Judge Folsom will not address any of the eight models of DVR that Judge Folsom is currently addressing. Mark my words.


----------



## nobody99 (May 20, 2008)

jacmyoung said:


> I can say, hey it is not my job to say if you are correct or not, but if you really want my opinion, I'd say you are wrong. That was exactly what the DE judge was saying to TiVo.


So that would be an abuse of discretion, right?

I believe when Judge Folsom asked if DISH thought it was fair that no notification was made to the court about the workaround, you said that showed bias and could be used as an appeal.

So just so I'm clear and understand, when the Judge says something _against TiVo's position_, it's informative and telling them they're wrong and they should be careful. But when a Judge says something _against DISH's position_, it's an abuse of discretion due to bias.

I think there's abuse going on, but it's not of discretion. It's an abuse of logic.


----------



## jacmyoung (Sep 9, 2006)

nobody99 said:


> So that would be an abuse of discretion, right?
> 
> I believe when Judge Folsom asked if DISH thought it was fair that no notification was made to the court about the workaround, you said that showed bias and could be used as an appeal.
> 
> ...


You know I would have never thought to say this, this is about the only time I think I can totally agree with you.

That in fact, the DE judge produced an opinion, this much I hope is not disputed. Yes he may not have produced a ruling on that issue, nor did he want to, but he did produce an opinion, and that opinion in effect warned TiVo what they had to do to prove their case.

Only thing is, if, and only if such warning is inappropriate, it will be the ground for appeal not by TiVo but by E*. A district judge should not have made a decision that may influence another on-going related litigation.

But guess what, he did not. He let his opinion known only after both parties had completed all their arguments, a point I had also made several times before.

So the bottom line is, a district court judge, while refusing to produce a ruling on the issue, nevertheless finally made his opinion known, without jeopardizing parties chances, and the opinion was based on a "core evidence" presented by E*.

The question I am asking is whether such "core evidence" had been disputed, if not such "core evidence" stands before Judge Folsom. Never mind what other evidence TiVo had drummed up later, as long as they do not dispute this "core evidence." Remember, E* only needs the evidence to establish a doubt to avoid a contempt.

The question is, will Judge Folsom produce *a ruling* that will contradict *an opinion* of one of his fellow district court judges.

The answer is very unlikely, because it is not usual for the district court judges to disagree among themselves. It is the job of the circuit court judges to disagree with the disctrict court judges, if parties should appeal.

In fact it is so much a job for the circuit court judges to disagree, the law even prepares for them to disagree among themselves, by creating a three-judge panel, in the event there is dissenting opinion, they can break the tie.

But it is not the distirct court judges to want to contradict one another.


----------



## Greg Bimson (May 5, 2003)

jacmyoung said:


> But guess what, he did not. He let his opinion known only after both parties had completed all their arguments, a point I had also made several times before.


Judge Folsom, DISH/SATS nor TiVo continually telegraphed Judge Farner about the status of the case in Texas. So to suggest Judge Farner waited for the proceedings in Texas to issue his opinion is rooted in ignorance.


jacmyoung said:


> The question I am asking is whether such "core evidence" had been disputed, if not such "core evidence" stands before Judge Folsom. Never mind what other evidence TiVo had drummed up later, as long as they do not dispute this "core evidence." Remember, E* only needs the evidence to establish a doubt to avoid a contempt.


The "core evidence" was disputed. As the "core evidence" appears to be a complete misrepresentation regarding alleged changes to the adjudged devices, DISH/SATS needed to establish irrefutable evidence (as in actual evidence) that there were changes made. DISH/SATS could not prove when a receiver installed new software, and could not prove that the changes were even substantive enough against the patent claims to even be colorably different.


jacmyoung said:


> The question is, will Judge Folsom produce *a ruling* that will contradict *an opinion* of one of his fellow district court judges.


What? Judge Farner's *opinion* is that controversy exists, and therefore, the suit cannot be dismissed. If this "controversy" starts naming devices already being evaluated by Judge Folsom, then this "controversy" is already being adjudged, and the suit is without merit.

There was no other "opinion". I'd even argue that it is a great disservice to this forum to even suggest there was any other opinion issued by Judge Farner.


----------



## jacmyoung (Sep 9, 2006)

Greg Bimson said:


> ...DISH/SATS needed to establish irrefutable evidence (as in actual evidence) that there were changes made. DISH/SATS could not prove when a receiver installed new software, and could not prove that the changes were even substantive enough against the patent claims to even be colorably different


This is an absolutely wrong interpretation of the law and the standards. In a summary contempt proceeding, it is the mover who must prove by clear and convincing evidence, not the defendents. The non-mover's job is to try to establish the doubt.

It is absolutely not enough for TiVo to simply say it is "irrelevant" and hope to prove anything, especially since the DE judge did not consider it was irrelevant, and the appeals court also did not think it was irrelevant, when TiVo themselves used such "core evidence" to try to prove infringement last time.



> .What? Judge Farner's *opinion* is that controversy exists, and therefore, the suit cannot be dismissed. If this "controversy" starts naming devices already being evaluated by Judge Folsom, then this "controversy" is already being adjudged, and the suit is without merit.


No, please read carefully, the opinion I was referring to was not the opinion that a "geniune controversy" existed, rather the opinion that TiVo I could not agree with you the difference was merely colorable.



> There was no other "opinion". I'd even argue that it is a great disservice to this forum to even suggest there was any other opinion issued by Judge Farner.


That is your opinion, I disagree. But please do not try to suggest that my such opinion somehow is a disservice to this great forum.

For one thing, this is an E* forum, not a TiVo forum, if anything I could have said coming here to insult E* subs is a disservice to this forum, but I never made such accusation, I only responded to each and everyone of those accusations without complaint.

For another, your such tacitc is a fallacy called "appeal to the authority," when one cannot argue on the issue, he instead seeks a supposed authoritative assertion for assistance, this fallacy is the opposite of the fallacy some of you have used in the past called "ad hominem" argument.

One example of such "ad hominem" argument was when my misspelling was used by some of you to try to discredit me, implying that I lacked any authority to make a good judgment because I misspelled (hence the opposite of the above).


----------



## Curtis52 (Oct 14, 2003)

Dish was unable to convince the Delaware court:


> the court is unable to make a concrete determination as to whether the redesigned products present more than a "colorable difference" over the infringing products.


----------



## Greg Bimson (May 5, 2003)

jacmyoung said:


> This is an absolutely wrong interpretation of the law and the standards. In a summary contempt proceeding, it is the mover who must prove by clear and convincing evidence, not the defendents. The non-mover's job is to try to establish the doubt.


The sky is green.

That establishes doubt?

I was under the impression that a statement that stands up as a fact would be something that establishes doubt.  Stating that the DVR's no longer analyze and are no longer automatically flow controlled is not a fact, it is a statement. Those are statements that TiVo ran a freight train through.

If the defense is a strawman, it certainly cannot establish doubt...


jacmyoung said:


> It is absolutely not enough for TiVo to simply say it is "irrelevant" and hope to prove anything, especially since the DE judge did not consider it was irrelevant[...]


Because Judge Farner did not even "consider it", so that argument is irrelevant...


jacmyoung said:


> [...]and the appeals court also did not think it was irrelevant, when TiVo themselves used such "core evidence" to try to prove infringement last time.


When the appeals court upheld infringement on the Software Claims, without the "index table"?


jacmyoung said:


> No, please read carefully, the opinion I was referring to was not the opinion that a "geniune controversy" existed, rather the opinion that TiVo I could not agree with you the difference was merely colorable.


Only two issues, due to modifications:

1) there is a statement that the DVR's no longer parse, yet they still do exactly what they did when found infringing, where five of five experts agreed that the parsing met the limitation.

2) there is a statement that the DVR's are no longer automatically flow controlled, yet they still have the circular buffer that met the automatically flow controlled limitation.

Any other modifications do not apply to this case, including the removal of an index table, as those modifications are irrelevant to the Software Claims.


jacmyoung said:


> That is your opinion, I disagree. But please do not try to suggest that my such opinion somehow is a disservice to this great forum.


Not the opinion, but the argument.

The suggestion is that Judge Farner waited until now in order to issue an opinion, and that Judge Farner had to pay attention to all of the issues in front of Judge Folsom before issuing his opinion. There is no *evidence* Judge Farner even knows about the evaluation of eight models of DVR in front of Judge Folsom. But it is now spun as if it is a fact.


jacmyoung said:


> For one thing, this is an E* forum, not a TiVo forum, if anything I could have said coming here to insult E* subs is a disservice to this forum, but I never made such accusation, I only responded to each and everyone of those accusations without complaint.


Just trying to accurately inform the public. I thought that is what a forum is about. I don't believe the forum is a place for a propaganda machine.


----------



## jacmyoung (Sep 9, 2006)

Curtis52 said:


> Dish was unable to convince the Delaware court:


And as I have already said one cannot simply read a statement without consider the context it was in. If you read further the judge explained the reason for the above *opinion*, that was because TiVo did not get a chance for a full discovery to try to dispute the E*'s evidence.

BTW the DE's decision is full of the DE judge's opinions, aside from what we have discussed, he also said this new case was not "fourm shopping," and additionally this new case would not have a "chilling" effect.

I can find more of his opinions, but one thing is true, he made one ruling and one ruling only, to dismiss TiVo's motion.

He made no other ruling, for example he made no ruling whether the difference was in fact more than colorable, he also made no ruling to transfer this case, even though he did express his *opinion* that this case should be transfered.


----------



## jacmyoung (Sep 9, 2006)

Greg Bimson said:


> ...Those are statements that TiVo ran a freight train through...


I disagree and have made my arugments on this one, I will not repeat unless as I promised if Curtis52 wish to agree with you

Except one thing, TiVo did not dispute that the "core of the invention" is removed, only that the removal is irrelevant. To that end, I have also made my argument so I will not repeat.



> If the defense is a strawman, it certainly cannot establish doubt...Because Judge Farner did not even "consider it",


Please read again, he most certainly considered it, he said himself he read the E*'s evidence carefully, and based on such evidence he could not agree with TiVo that the difference was merely colorable.



> 1) there is a statement that the DVR's no longer parse, yet they still do exactly what they did when found infringing, where five of five experts agreed that the parsing met the limitation.


Absolutely false to say they still do the same, it is a fact E* said they no longer do the "start codes," and to that end again TiVo had no response.



> 2) there is a statement that the DVR's are no longer automatically flow controlled, yet they still have the circular buffer that met the automatically flow controlled limitation.


The buffers themselves cannot meet the automatic flow control limitation, it is what the buffers are used for that may prove whether the flow control is still taking place. To that end TiVo did not even try, they only pointed out look there are still some buffers on the hard drive, did not explain how those buffers managed to do any kind of flow control as part of this invention.



> Any other modifications do not apply to this case, including the removal of an index table, as those modifications are irrelevant to the Software Claims.Not the opinion, but the argument.


If so why did TiVo use the index table to argue on the hardware claims before the appeals court? And why did the appeals court accept such index table as relevant? Just you know the term "index table" also did not appear in the hardware claims.



> The suggestion is that Judge Farner waited until now in order to issue an opinion, ...


That was not my suggestion at all. Judge Farner waited until now to issue his ruling, not his opinion.

But the reason he waited now to issue his ruling was because in order to do so, he had to let his opinions known, and letting his opinions known too soon would have unfair influence on the parties on going litigation.

But he had to express his opinions in order to render his ruling, because TiVo asked him to. Without experssing his opinions, he would not be able to tell TiVo whether he would dismiss this motion or not. He could not just say hey I want to dismiss your motion but I do not wish to tell you why.


----------



## Greg Bimson (May 5, 2003)

Greg Bimson said:


> 1) there is a statement that the DVR's no longer parse, yet they still do exactly what they did when found infringing, where five of five experts agreed that the parsing met the limitation.





jacmyoung said:


> Absolutely false to say they still do the same, it is a fact E* said they no longer do the "start codes," and to that end again TiVo had no response.


Start codes have nothing to do with parsing. It is an irrelevant argument.


Greg Bimson said:


> 2) there is a statement that the DVR's are no longer automatically flow controlled, yet they still have the circular buffer that met the automatically flow controlled limitation.





jacmyoung said:


> The buffers themselves cannot meet the automatic flow control limitation, it is what the buffers are used for that may prove whether the flow control is still taking place. To that end TiVo did not even try, they only pointed out look there are still some buffers on the hard drive, did not explain how those buffers managed to do any kind of flow control as part of this invention.


Wholly inaccurate. The buffers in question are not part of the hard drive. And TiVo's expert Dr. Storer did explain how flow control is accomplished. That makes this another irrelevant argument.


Greg Bimson said:


> Any other modifications do not apply to this case, including the removal of an index table, as those modifications are irrelevant to the Software Claims.Not the opinion, but the argument.





jacmyoung said:


> If so why did TiVo use the index table to argue on the hardware claims before the appeals court? And why did the appeals court accept such index table as relevant? Just you know the term "index table" also did not appear in the hardware claims.


Because the index table is a key component in conjunction with the Media Switch. Without the index table, the Media Switch doesn't work correctly.

The index table isn't the only piece of the invention that determines infringement. That fact continually is lost, which in turn makes this another irrelevant argument.


----------



## nobody99 (May 20, 2008)

jacmyoung said:


> nobody99 said:
> 
> 
> > So that would be an abuse of discretion, right?
> ...


Agree with what? I never made a statement. I simply pointed out that your earlier comments are contradictory.



> That in fact, the DE judge produced an opinion, this much I hope is not disputed.


Well, we're off to a bad start. This much _is_ disputed. He is in the process of moving the case to Texas. Any other interpretation of what he said must be taken in that context.



> in effect warned TiVo


He did no such thing.


----------



## nobody99 (May 20, 2008)

jacmyoung said:


> because for TiVo to counter claim, they will have to ask Judge Folsom to declare the TiVo's DVRs also do not infringe on E*'s patent. That is why usually a counter claim does not happen in a declaratory judgment case.


Please provide the specific DISH patent number which TiVO must ask Judge Folsom to declare TiVo'S DVR non-infringing.

Please provide supporting evidence that a "counter claim does not happen in a declaratory judgment case."


----------



## dgordo (Aug 29, 2004)

jacmyoung said:


> But it is not the distirct court judges to want to contradict one another.


You must be joking. Judges from different districts disagree with each other everyday. Federal court decisions that never reach the SCOTUS have completely different meanings across the country. What a judge under the 9th circuit decides has no force on what a judge in the 5th circuit decides and so on.


----------



## dgordo (Aug 29, 2004)

Curtis52 said:


> Dish was unable to convince the Delaware court:


Its amazing that it is right there but some cant find it.


----------



## dgordo (Aug 29, 2004)

nobody99 said:


> Please provide supporting evidence that a "counter claim does not happen in a declaratory judgment case."


Don't bother, we have already established that this is nonsense.


----------



## jacmyoung (Sep 9, 2006)

Greg Bimson said:


> Start codes have nothing to do with parsing. It is an irrelevant argument.


During the 2/17 hearing, E* expert witness said the start codes had everything to do with parsing, because the start codes were the "audio and video data" described in the first step, since they are no longer parsed out and then stored, the first step was no longer met, TiVo did not even say it was irrelevant, therefore you cannot just say so yoruself, TiVo simply had no response to E*'s such assertion. If E* made an assertion, TiVo simply did not have a response, then the judge will have to accept E*'s assertion.

Again please do not say things TiVo did not say as if the judge will hear you. Only say what TiVo had said. Likewise, I only say what E* had actually said, not anything E* did not say, because the judge will not hear it.



> Wholly inaccurate. The buffers in question are not part of the hard drive. And TiVo's expert Dr. Storer did explain how flow control is accomplished. That makes this another irrelevant argument.


They are, Dr. Storer pointed to the "circular buffers on the hard drive" when he described the so called new "multiple buffers."



> Because the index table is a key component in conjunction with the Media Switch. Without the index table, the Media Switch doesn't work correctly.


Now E* is saying the indexing is a key step of the parsing as described in the first step of the software claims, what is TiVo's response? But the word "indexing" is not in the claim description therefore it is irrelevant. But the words "index table" are not in the hardware claims, why did TiVo say "index table" was a "key component?" Please do not use any term that is not literally described in the claim limitations to try to prove anything, that is pretty much what TiVo is saying now. For example, the claims never mentioned the term "PID filter" nor "circular buffers." In fact if TiVo's logic prevails, TiVo must go into E*'s DVRs to try to find out if there is this item labeled "physical data source," or a "source object," or a "sink object" or a "control object," before TiVo can even make them "relevant" to even begin to discuss infringement.

Now can you show me any items in a DVR with such above labels? I can only find a hard drive, a motherboard, some cables, some weird looking chips, a bunch of resisters and so on. There is nothing labeled "source object" or "sink object."&#8230;Therefore they are irrelevant, now can you see how this argument will lead to?



> The index table isn't the only piece of the invention that determines infringement. That fact continually is lost, which in turn makes this another irrelevant argument.


As long as the index table was one of the things that caused infringement, and as long as it is no longer there, there exists the doubt that it may no longer infringe, that is all E* needs to establish.

All the items must be there to prove infringement, remove one, the whole thing falls apart.


----------



## scooper (Apr 22, 2002)

jacmyoung said:


> All the items must be there to prove infringement, remove one, the whole thing falls apart.


Not only there - but in that particular order.


----------



## jacmyoung (Sep 9, 2006)

scooper said:


> Not only there - but in that particular order.


Yes.

But the above arguments are not even the point. I am not going to go circular with Greg over and over on them, we have all made our views known.

Today we have a new piece of information, the DE judge's ruling to dismiss TiVo's motion to dismiss the new action.

This new ruling contains a lot of the DE judge's opinions, among which is one saying, he did review E*'s evidence, and he did consider the evidence relevant, and based on such evidence, he could not agree with TiVo that the difference was merely colorable.

It is this opinion, not anything else said in the ruling, only this opinion, that I'd like to point out, that it may show which direction the wind is blowing. Not saying Judge Folsom will have to follow such opinion, or disregard any new evidence.

But Judge Folsom will look at this DE ruling, as one of the many pieces of documents, before making his ruling. If he decides to make a ruling that there is merely colorable difference, he must be sure the justifications are most compelling, because on appeal, E* can use the DE judge's opinion for support, to point out hey there is now doubt because two judges appear to have different views, among other things. It is true that judge Folsom's opinion will be based on more thorough evidence and he has more experience on the issue, but that does not matter, because in a summary contempt proceeding, as I have discussed before, the defendants only need to point out that a dispute exists, regardless the credibility of the person who has caused such dispute, because the credibility of the person is not to be judged in a summary proceeding, rather to be debated in a full trial.

When both parties review the new information before them, they must try to guess what is the implication of such new info, does it mean Judge Folsom will more likely, or less likely say, the difference is merely colorable.


----------



## Tower Guy (Jul 27, 2005)

Greg Bimson said:


> There was no other "opinion". I'd even argue that it is a great disservice to this forum to even suggest there was any other opinion issued by Judge Farner.


I agree with your opinion.


----------



## dfd (Aug 29, 2008)

jacmyoung said:


> But Judge Folsom will look at this DE ruling, as one of the many pieces of documents, before making his ruling. If he decides to make a ruling that there is merely colorable difference, he must be sure the justifications are most compelling, because on appeal, E* can use the DE judge's opinion for support, to point out hey there is now doubt because two judges appear to have different views, among other things. It is true that judge Folsom's opinion will be based on more thorough evidence and he has more experience on the issue, but that does not matter, because in a summary contempt proceeding, as I have discussed before, the defendants only need to point out that a dispute exists, regardless the credibility of the person who has caused such dispute, because the credibility of the person is not to be judged in a summary proceeding, rather to be debated in a full trial.


Are you serious?

The case in DE IS GOING TO BE SENT TO TX - take that to the bank.

There is nobody else reading this as a victory for E*.

Where is the typical E* proclamation of victory that we've seen after every court ruling?

Why should a judge in TX that has been working a case for years need to pay any attention to what a judge in a different district writes in a ten page statement?

E* and TiVo both had their time in TX to make their case. Nothing the DE judge says or does will have any impact on what Folsom decides.


----------



## nobody99 (May 20, 2008)

> It is this opinion, not anything else said in the ruling, only this opinion, that I'd like to point out, that it may show which direction the wind is blowing. Not saying Judge Folsom will have to follow such opinion, or disregard any new evidence


So when Judge Folsom said that DISH maybe should have informed him about the workaround, you don't think that shows which direction the wind is blowing? When Judge Folsom asked DISH if he was supposed to read the Quarterly Report, you don't think that shows a gale force warning in effect? When Judge Folsom mentioned that the Delaware filing was made 45 minutes after his decision last year, that doesn't show a Hurricane Warning in effect?

Last time I checked, Judge Folsom is the only guy who matters. So I would pay much more attention to the way his wind is blowing.


----------



## nobody99 (May 20, 2008)

jacmyoung said:


> But Judge Folsom will look at this DE ruling, as one of the many pieces of documents


This statement is so ludicrously laughable that I don't even know how to respond. But let me take a shot.

Suppose TiVo filed new case in Alviso, California (where they are based). Suppose that Judge said "sorry, I can't take this case, I'm transferring it to Texas. But geeze louise, TiVo, you have a damn strong case here. I mean, seriously, this is a slam dunk."

Must Judge Folsom now incorporate that into his decision as well?


----------



## scooper (Apr 22, 2002)

dfd said:


> Are you serious?
> 
> The case in DE IS GOING TO BE SENT TO TX - take that to the bank.
> 
> ...


I'm still waiting on Judge Folsom's ruling about the colorable differences first.
If he should rule that there are more than colorable differences - THEN we'll see if the DE case gets moved to TX - but I don't see any reason why it should, since anything else after that in TX doesn't make a difference until the DE case IS transfered.


----------



## nobody99 (May 20, 2008)

dgordo said:


> nobody99 said:
> 
> 
> > Please provide supporting evidence that a "counter claim does not happen in a declaratory judgment case
> ...


I do appreciate your position, but I think it's time that we hold people on this message board to certain standards of accuracy and truthfulness. I think alot of us have grown tired of the outright falsehoods and misinformation, and I do think it's completely fair to ask someone who has makes a very specific claim to either provide very specific evidence or to admit that it was purely made up.

That said, I hope the moderators of this forum share what I believe is a very fair position.

So, I'll ask again.



jacmyoung said:


> because for TiVo to counter claim, they will have to ask Judge Folsom to declare the TiVo's DVRs also do not infringe on E*'s patent. That is why usually a counter claim does not happen in a declaratory judgment case.


Please provide the specific DISH patent number which TiVO must ask Judge Folsom to declare TiVo's DVR non-infringing.

Please provide supporting evidence that a "counter claim does not happen in a declaratory judgment case."


----------



## dfd (Aug 29, 2008)

scooper said:


> I'm still waiting on Judge Folsom's ruling about the colorable differences first.
> If he should rule that there are more than colorable differences - THEN we'll see if the DE case gets moved to TX - but I don't see any reason why it should, since anything else after that in TX doesn't make a difference until the DE case IS transfered.


DE ruling 3/31

By my reading (maybe add a day for shipping and hadling)

E* response due 4/14 (10 pp max)

Tivo response due 4/21 (5 pp max)

My bet is that the DE judge will rule to transfer before Folsom makes his ruling one way or the other. He has pretty much said he will and is just crossing T's and dotting I's at this point. He'll read the 15 pages and bounce the case.


----------



## dfd (Aug 29, 2008)

Just noticed the last foot note, "In the Court's view, TiVo should have raised an alternative motion to transfer with the instant Motion."

"Don't need to be a weatherman to know which way the wind blows" - RZ


----------



## jacmyoung (Sep 9, 2006)

dfd said:


> Just noticed the last foot note, "In the Court's view, TiVo should have raised an alternative motion to transfer with the instant Motion."
> 
> "Don't need to be a weatherman to know which way the wind blows" - RZ


I made that point too, TiVo made a mistake, had they simply made that request to transfer, the DE judge would have easily granted it, and he would not have been forced to produce all those opinions.

But instead, TiVo wanted to dismiss the new action all together, and in doing so, TiVo argued because the difference was merely colorable, in fact TiVo first said there was no difference, those were the same DVRs, also TiVo said E* was "forum shopping" and the new action would have serious "chilling effect" on TiVo's business.

Now the judge was forced to respond, and in doing so he dismissed all TiVo's arguments, but he could not release such opinions because E* could have argued that by releasing all those opinions DE would have reminded TiVo what TiVo needed to do to win.

As a result, the ruling is released only now, and the case still cannot be transferred until the parties make their filings, and by that time who knows what E* may say to try to stop the transfer, it only totally complicates the whole thing for the court, and all because TiVo was too arrogant to think they could call E* a lier, a forum shopper and someone who wanted to simply try to kill its competitor by claiming some design around to fool the court.

But E* provided the design around evidence to the judge, and he looked at it and said guess what, I could not agree with you TiVo, not only could I not agree that the difference was merely colorable, but E* was not forum shopping, it would not have some "chiling effect" as TiVo you said.


----------



## Greg Bimson (May 5, 2003)

jacmyoung said:


> During the 2/17 hearing, E* expert witness said the start codes had everything to do with parsing, because the start codes were the "audio and video data" described in the first step, since they are no longer parsed out and then stored, the first step was no longer met, TiVo did not even say it was irrelevant, therefore you cannot just say so yoruself, TiVo simply had no response to E*'s such assertion.


Start codes were not the "audio and video data" which found infringement three years ago. Therefore, in order to defeat the "parsing" limitation, DISH/SATS must *create* controversy where none exists. DISH/SATS must pay their expert to recant exactly what he testified three years ago, yet four other experts came up with the same opinion: PID filtering meets the parse step.

Dr. Rhyne, DISH/SATS expert, changed his mind only because the jury found DISH/SATS guilty of infringement. Not because a definition changed. That may have something to do with the pay he received from DISH/SATS.


jacmyoung said:


> Please do not use any term that is not literally described in the claim limitations to try to prove anything, that is pretty much what TiVo is saying now.


1) Please do not tell me how to present an argument. That is usually a last resort for those losing their argument.
2) This is exactly how DISH/SATS is arguing. PID filtering met the parse limitation three years ago, but let's change the parse step to include start codes and an index table. Automatic flow control is great now that DISH/SATS uses a single buffer, but that buffer is actually a circular buffer the same as it was when adjudged three years ago.

Nothing which still meets claim limitations has been *removed*. That is TiVo's argument. Suggesting that TiVo did *nothing* is simply as irrelevant as the arguments DISH/SATS presented.


----------



## dgordo (Aug 29, 2004)

nobody99 said:


> I do appreciate your position, but I think it's time that we hold people on this message board to certain standards of accuracy and truthfulness. I think alot of us have grown tired of the outright falsehoods and misinformation, and I do think it's completely fair to ask someone who has makes a very specific claim to either provide very specific evidence or to admit that it was purely made up.
> 
> That said, I hope the moderators of this forum share what I believe is a very fair position.


I completely agree with you, I was pointing out that on that particular point it has already been established that it was misinformation. But I can see how it could be missed among all the other misinformation.

I think the moderators agree with you, however, it is my opinion that they often don't understand the finer points enough to stop the misinformation or they would.


----------



## Curtis52 (Oct 14, 2003)

Greg Bimson said:


> Nothing which still meets claim limitations has been *removed*. That is TiVo's argument. Suggesting that TiVo did *nothing* is simply as irrelevant as the arguments DISH/SATS presented.


Yep.

Chu:


> IT IS EVIDENCE AND TESTIMONY THAT RELATES TO CLAIM CONSTRUCTIONS THAT WERE NEVER MADE BY THIS COURT, RELATES TO CLAIM TERMS THAT ARE NOT IN THE CLAIMS, RELATES TO CONSTRUCTIONS THAT WERE NOT APPEALED TO THE FEDERAL CIRCUIT, ALL OF WHICH WE BELIEVE IS IRRELEVANT.





> AND NOW THE BULK OF THEIR EVIDENCE HAS TO DO WITH THE FACT THAT THEY ARE NOT INDEXING. IT'S NOT A CLAIM TERM, AND IT'S IRRELEVANT.





> SO THE INDEXING ARGUMENT IS IRRELEVANT FOR THE ST BOX, AND OF COURSE IRRELEVANT FOR THE BROADCOM BOXES.





> THEY COULD BE MAJOR CHANGES. BUT IF THEY DON'T RELATE TO A CLAIM ELEMENT AND A CLAIM AT ISSUE, THEY ARE ABSOLUTELY IRRELEVANT AND THEREFORE ONE NEVER NEEDS TO GET TO THE QUESTION OF WHETHER THEY ARE COLORABLY DIFFERENT.


----------



## Ron Barry (Dec 10, 2002)

nobody99 said:


> I do appreciate your position, but I think it's time that we hold people on this message board to certain standards of accuracy and truthfulness. I think alot of us have grown tired of the outright falsehoods and misinformation, and I do think it's completely fair to ask someone who has makes a very specific claim to either provide very specific evidence or to admit that it was purely made up.
> 
> That said, I hope the moderators of this forum share what I believe is a very fair position.





dgordo said:


> I think the moderators agree with you, however, it is my opinion that they often don't understand the finer points enough to stop the misinformation or they would.


Since no moderator has made any statement either way, I am not sure how you could draw that conclusion dgordo, That said, discussion of moderation in public forums is not allowed. If anyone has an issue with moderation feel free to PM any moderator or admin of the site to discuss your concerns or use the report button located on the left of each posts.


----------



## jacmyoung (Sep 9, 2006)

Greg Bimson said:


> Start codes were not the "audio and video data" which found infringement three years ago.


That is your opinion, but TiVo never said such, please do not make it as if TiVo said so.

E*'s expert asserted that the "start codes" were the "said audio and video data" and E* new design no longer did the "start codes," to which TiVo simply had no response. Again TiVo did not respond by saying "start codes are not the 'audio and video data'", so again do not say such thing, because the judge will hear no such assertion from you.



> Dr. Rhyne, DISH/SATS expert, changed his mind only because the jury found DISH/SATS guilty of infringement. Not because a definition changed. That may have something to do with the pay he received from DISH/SATS.


The reason why he changed his mind is not the point, the question is whether he was correct in changing his mind. The decision the judge must make is if it is indeed true that he was wrong last time, and correct this time.

TiVo needs to prove that he is wrong by changing his mind, that his current position, after the change, is now wrong. TiVo cannot simply say he said so before, and he cannot change his mind. If this is all TiVo can say, then the judge must agree with his current position, because TiVo did not dispute his current position, only pointed out he was saying it differently last time. That is not enough.



> 1) Please do not tell me how to present an argument. That is usually a last resort for those losing their argument.


I did not tell you how to present an argument, only that please do not make an argument that is not that of TiVo's position, because it is useless, the judge will not hear it.



> 2) This is exactly how DISH/SATS is arguing. PID filtering met the parse limitation three years ago, but let's change the parse step to include start codes and an index table.


And when E* does so, TiVo must prove no, start codes are not the audio and video data, and indexing is not a part of the parsing as described. TiVo did not do so.



> Automatic flow control is great now that DISH/SATS uses a single buffer, but that buffer is actually a circular buffer the same as it was when adjudged three years ago.


Three years ago that circular buffer existed as part of the hard drive, therefore it still exists today. Three years ago such circular buffer was never discussed, it was not the so called "multiple buffers" identified to have formed the automatic flow control functions. The multiple buffers that did the automatic flow function are not gone, so TiVo pointed to some circular buffer, which was a generic part of the hard drive, and said, look you still had some circular buffer, never mind what it does, just that, hey, there is still circular buffer.



> Nothing which still meets claim limitations has been *removed*. That is TiVo's argument. Suggesting that TiVo did *nothing* is simply as irrelevant as the arguments DISH/SATS presented.


E* said the "start codes," which are the "audio and video data," are also removed, TiVo totally skipped that part. TiVo simply did not address that part.


----------



## jacmyoung (Sep 9, 2006)

> IT IS EVIDENCE AND TESTIMONY THAT RELATES TO CLAIM CONSTRUCTIONS THAT WERE NEVER MADE BY THIS COURT, RELATES TO CLAIM TERMS THAT ARE NOT IN THE CLAIMS, RELATES TO CONSTRUCTIONS THAT WERE NOT APPEALED TO THE FEDERAL CIRCUIT, ALL OF WHICH WE BELIEVE IS IRRELEVANT.
> 
> AND NOW THE BULK OF THEIR EVIDENCE HAS TO DO WITH THE FACT THAT THEY ARE NOT INDEXING. IT'S NOT A CLAIM TERM, AND IT'S IRRELEVANT.
> 
> ...


Again, TiVo was only saying, "indexing" was a term that was never evaluated by the court, and never existed in the software claim terms, therefore is irrelevant.

But let me quote what the appeals court said, and keep in mind they were discussing the hardware claims, which also do not contain the term "indexing:"



> TiVo argues that physical separation of the audio and video data is not necessary, that logical separation is all that is required, and that *indexing* of the data achieves logical separation.





> Although TiVo does not address that statement in the specification directly, it appears to argue that the statement that the "invention . . . separates [the MPEG stream] into its video and audio components" refers to logical *indexing*.





> While *TiVo is correct that* the specification describes a process of logical cataloguing or *indexing* of data, Figure 6 and the portion of the specification that describes it make clear that the logical processes described by TiVo occur after the data is separated into distinct audio and video buffers.





> In sum, *TiVo is correct that* the specification describes the process of *indexing* data. Both the specification and the text of claims 1 and 32 make clear, however, that *indexing* occurs after, and in addition to, the separation of the incoming data into distinct video and audio buffers.


Again, keep in mind the hardware claims do not mention the term "indexing", but the appeals court had no problem accepting the notion that "indexing" was a valid issue, only that the appeals court did not agree that "indexing" literally met the limitation of the term "separation" in the hardware claims.

The term "indexing" was construed by the appeals court as "logical separation" or "logical cataloguing." So you see, indexing was constructed by the court back then, not something "irrelevant," even though it is never a hardware claim's term. TiVo's memory was a bit too short.

E* now is saying, just as TiVo was arguing back then, "indexing" is an essential part of the software claim first step, because the first step in the software claims describes a logical separation (parsing, or indexing) of the audio and video data (the start codes), and the new design does no such thing anymore.

To that end TiVo was only saying but indexing was irrelevant, and as far as the start codes being the audio and video data, TiVo simply had no response to that.

Of course TiVo is correct that back then "indexing" was never used as an issue in discussing the software claims. But now E* is making it an issue related to the software claims, TiVo cannot simply say it is irrelevant, TiVo must prove "parsing" in the first step of the software is not "indexing" and the "audio and video data" in the first step are not the "start codes." TiVo did neither.


----------



## nobody99 (May 20, 2008)

> Again, keep in mind the hardware claims


All quite interesting. You do realize that the hardware claims were remanded, and we're all talking about the software claims, right?


----------



## jacmyoung (Sep 9, 2006)

Now let me try to explain why I said the DE ruling and the DE judge's opinions will complicate things for TiVo.

Take one example when the DE judge said regarding the "chilling" argument by TiVo:



> Similarly, with regard to the possible "chilling" of vigorous advocacy, the Court agrees with Echostar that the countervailing *policy goals of encouraging patent design-arounds, and hence innovation, are just as compelling*.


What if Judge Folsom finds E* in contempt? It basically means TiVo had proven E*'s design around was a "sham" and in bad faith, not to be encouraged by this court, in fact to be totally condemned by this court.

Now the question is not if Judge Folsom might be technically correct or not, he might just be correct that E*'s design around had failed, but the problem is the DE judge just agreed with E* that patent design-arounds should be encouraged. Therefore E*'s effort in general should be encouraged, even though the effort sometimes may fail. But you cannot blame them for trying.

It will make it more difficult for TiVo to argue during the damage motion that how should E* be punished for this design around attempt, and in the future how to address the issue if E* should try another design around.

Not saying E*'s design around will fail, in fact I believe the design around was a success, but even if I accept TiVo's position that the design around had failed, at least TiVo's motion to dismiss the DE new action will end up complicating the things for TiVo, even if TiVo could possibly convince Judge Folsom the difference is only colorable and infringement is still clearly present.


----------



## nobody99 (May 20, 2008)

jacmyoung said:


> Now let me try to explain why I said the DE ruling


There was no ruling.

(redacted)


----------



## nobody99 (May 20, 2008)

> TiVo's motion to dismiss the DE new action will end up complicating the things for TiVo


If Judge Folsom even considered anything said in the Delaware case, it would result in an emergency appeal being granted and DISH would be required to post a $150 million bond due to expected damages. I doubt they want that.


----------



## dgordo (Aug 29, 2004)

jacmyoung said:


> Now let me.....


Please study Obiter dictum.


----------



## jacmyoung (Sep 9, 2006)

dgordo said:


> Please study Obiter dictum.


Part of the good spirit of a debate is to inform others, (redacted)

Judge Folsom does not make a decision based on the DE judge's decision, though he will look at that decision, the DE's ruling will have some weight, there is no rule saying Judge Folsom cannot be influenced by that decision, because if he makes a ruling that is similar to that of the DE ruling, TiVo cannot appeal and say hey Judge Folsom abused his discretion by mimicking the DE ruling.

For one thing, TiVo forced the DE decision, for another, just because the two decisions may be similar, you cannot prove one is made from the other, as long as Judge Folsom does not cite DE's ruling, even though I do not know if it is even prohibited to cite DE's opinions, I will try to find out since you have no desire to share the good information.

But the above is not even the point, the point is on appeal, E* can argue there is a judge who had made his opinion known, that E*'s effort had no chilling effect, and the reason was E* should be encouraged to make design around attempts (hence "design-arounds" in plural). Therefore in the event that Judge Folsom makes an unfavorable decision against E*, TiVo will have a very hard time to say E*'s attempt was in bad faith and it was trying to fool the court or to "chill."

TiVo will have a very hard time to blame E* for trying to do something another judge had clearly said the very same effort E* was making did not have a "chilling effect" and should be encouraged.


----------



## jacmyoung (Sep 9, 2006)

As I suspected:



> From Wikipedia, the free encyclopedia
> 
> An obiter dictum (plural obiter dicta, often referred to simply as dicta), Latin for a statement "said by the way", is a remark or observation made by a judge that, although included in the body of the court's opinion, does not form a necessary part of the court's decision. In a court opinion, obiter dicta include, but are not limited to, words "introduced by way of illustration, or analogy or argument."[1] Unlike the rationes decidendi, obiter dicta are not the subject of the judicial decision, even if they happen to be correct statements of law. Under the doctrine of stare decisis, *statements constituting obiter dicta are therefore not binding, although in some jurisdictions, such as England and Wales, they can be strongly persuasive.*
> 
> ...


The only thing said was "obiter dicta" is not a binding opinion, but nevertheless it can be very persuasive, and can be quoted by the subsequent rulings. It only makes sense.


----------



## Chris Blount (Jun 22, 2001)

Since this thread is more of a legal nature, its been moved to our Legislative and Regulatory forum.


----------



## Greg Bimson (May 5, 2003)

Greg Bimson said:


> Start codes were not the "audio and video data" which found infringement three years ago.





jacmyoung said:


> That is your opinion, but TiVo never said such, please do not make it as if TiVo said so.


*Again*, my statement is one hundred percent correct and verifiable. So please do not tell me how to argue.


jacmyoung said:


> E*'s expert asserted that the "start codes" were the "said audio and video data" and E* new design no longer did the "start codes," to which TiVo simply had no response.


From the transcript:IT IS EVIDENCE AND TESTIMONY THAT RELATES TO CLAIM CONSTRUCTIONS THAT WERE NEVER MADE BY THIS COURT, RELATES TO CLAIM TERMS THAT ARE NOT IN THE CLAIMS, RELATES TO CONSTRUCTIONS THAT WERE NOT APPEALED TO THE FEDERAL CIRCUIT, ALL OF WHICH WE BELIEVE IS IRRELEVANT.​Sounds like there was a response. Something along the lines that start codes are irrelevant. Just like they were three years ago when PID filtering without start codes met the limitation.


jacmyoung said:


> I did not tell you how to present an argument, only that please do not make an argument that is not that of TiVo's position, because it is useless, the judge will not hear it.


But it was TiVo's position, so my argument still stands.


jacmyoung said:


> TiVo needs to prove that he is wrong by changing his mind, that his current position, after the change, is now wrong. TiVo cannot simply say he said so before, and he cannot change his mind. If this is all TiVo can say, then the judge must agree with his current position, because TiVo did not dispute his current position, only pointed out he was saying it differently last time. That is not enough.


TiVo can simply prove there is no real reason why Dr. Rhyne should have changed his mind. Dr. Rhyne simply stated he changed his mind because DISH/SATS was found guilty, and TiVo's expert Dr. Storer still states that PID filtering meets the parse limitation.

Therefore, TiVo did dispute Dr. Rhyne's position by showing Dr. Rhyne impeached his own testimony during the trial, thus bringing his credibility into question, while still having their own expert still saying that PID filtering meets the parse limitation.


Greg Bimson said:


> Automatic flow control is great now that DISH/SATS uses a single buffer, but that buffer is actually a circular buffer the same as it was when adjudged three years ago.





jacmyoung said:


> Three years ago that circular buffer existed as part of the hard drive, therefore it still exists today.


The circular buffer is not part of the hard drive. It is memory. Here is the refresher.


----------



## nobody99 (May 20, 2008)

jacmyoung said:


> wikipedia said:
> 
> 
> > in some jurisdictions, such as England and Wales, they can be strongly persuasive


It's difficult to read, but there is an additional third footnote in Judge Farnum's decision, under the note that TiVo should have motioned to transfer.



Delaware Court said:


> (2) In the Court's view, TiVO should have raised an alternative motion to transfer with the instant Motion.
> 
> (3) Hello, Luv, in the Court's view, DISH should have motioned the court to transfer to England or Wales, where the jolly good blokes could have joked with the courtroom constables.


----------



## nobody99 (May 20, 2008)

jacmyoung said:


> and can be quoted by the subsequent rulings


In order for there to be a "subsequent ruling" there must be a first ruling. Delaware never made a ruling.



the dictionary said:


> Sub"se*quent\, a. [L. subsequens, -entis, p. pr. of subsequi to follow, succeed: cf. F. subs['e]quent. See Sue to follow.]
> 
> 1. Following in time; coming or being after something else at any time, indefinitely; as, subsequent events; subsequent ages or years; a period long subsequent to the foundation of Rome.
> 
> 2. Following in order of place; succeeding; as, a subsequent clause in a treaty. "The subsequent words come on before the precedent vanish." --Bacon.


----------



## nobody99 (May 20, 2008)

Greg Bimson said:


> jacmyoung said:
> 
> 
> > Three years ago that circular buffer existed as part of the hard drive, therefore it still exists today.
> ...


Simple common sense says Greg is correct. The hard drive's buffer is controlled by the hard drive's firmware and is used to cache data so it can level out the movement of the read/write heads across the platters; the DVR software has no access to it.

If DISH DVRs are anything like TiVo, you can pop any size hard drive in from any manufacturer. Since hard drive buffers vary considerably in both size and implementation, there's no possible way that the hard drive buffer is the same as the ten 140,000 byte buffers referenced by Greg's refresher.

Here's a thought experiment: if you pulled the hard drive out of a DISH DVR, is the physical memory for the buffer still present in the DVR?

It is most certainly not the hard drive buffer.


----------



## dgordo (Aug 29, 2004)

jacmyoung said:


> As I suspected:
> 
> The only thing said was "obiter dicta" is not a binding opinion, but nevertheless it can be very persuasive, and can be quoted by the subsequent rulings. It only makes sense.


I had no idea this case was decided in England or Wales.


----------



## dgordo (Aug 29, 2004)

(Quote and reply redacted)



jacmyoung said:


> Judge Folsom does not make a decision based on the DE judge's decision, though he will look at that decision,


No he won't.

The rest of this is just more of your random speculation.



jacmyoung said:


> Of course I could be wrong, but no matter how wrong you may prove my speculations, please do not lose the sight, that is TiVo is still waiting to find out what more they can get out of this whole thing. If they can't, all your correct points mean very little.


I think this thought of yours is very telling. You have no interest in your process being correct, only that Tivo loses in the end. Process is important.


----------



## nobody99 (May 20, 2008)

jacmyoung said:


> Part of the good spirit of a debate is to inform others


Really?



jacmyoung said:


> because for TiVo to counter claim, they will have to ask Judge Folsom to declare the TiVo's DVRs also do not infringe on E*'s patent. That is why usually a counter claim does not happen in a declaratory judgment case.


Please inform others of the specific DISH patent that TiVo "will have to ask Judge Folsom to declare" non-infringing. (redacted).


----------



## nobody99 (May 20, 2008)

Chris Blount said:


> Since this thread is more of a legal nature, its been moved to our Legislative and Regulatory forum.


I actually thought this was a pretty funny joke. Turns out it was true. Well, I suppose that's one way to kill a thread


----------



## Chris Blount (Jun 22, 2001)

nobody99 said:


> I actually thought this was a pretty funny joke. Turns out it was true. Well, I suppose that's one way to kill a thread


You guys killed it a long time ago. 

Discussion about anything new will be in the Dish forum but as soon as it turns legal, it gets moved here.

The original rules still apply along with the general forum rules. Be nice to eachother and be constructive.


----------



## Steve (Aug 22, 2006)

Chris Blount said:


> Discussion about anything new will be in the Dish forum but as soon as it turns legal, it gets moved here. [...]


Thanks for realizing that many of us simply want to know how the outcome of this case may or may not affect us. I can finally "unsubscribe" from this thread, without fearing that I'll miss some important bit of news! :hurah: /steve


----------



## nobody99 (May 20, 2008)

jacmyoung said:


> I had taken the time to research that term you mentioned and offered my research results





jacmyoung said:


> Part of the good spirit of a debate is to inform others


It is also a part of a debate to "inform others" about _misinformation_. So I have started to collect what I consider to be misinformation that can be cleared up with a few simple answers.



jacmyoung said:


> Three years ago that circular buffer existed as part of the hard drive, therefore it still exists today.


Question: If you physically remove the hard drive, is the physical memory for the "circular buffer" still present in the DVR?



jacmyoung said:


> because for TiVo to counter claim, they will have to ask Judge Folsom to declare the TiVo's DVRs also do not infringe on E*'s patent. That is why usually a counter claim does not happen in a declaratory judgment case.


Question: What is the specific patent number that TiVo must ask Judge Folsom to declare non-infringingi?



jacmyoung said:


> Judge Folsom specifically instructed the parties to fully inform him of any decisions that might come out of the DE court or from the USPTO


Question: Please provide the text of specific instructions given by Judge Folsom


----------



## Tom Robertson (Nov 15, 2005)

I have closed the thread for a few hours for cleaning and cool down.

I strongly urge all participants to remember the following:


Do not make arguments personal. 
Inconsistencies in discussion may be pointed out--once. After that, take it to PM. (Or PM a moderator.)
If called upon to back up points, do so or drop them. Do not repeat points as facts that are unsubstantiated.
In this thread (and subsequent threads on this case) if someone violates the substantiate or drop rule, please report the post(s) (politely) or PM any moderator.
If a moderator redacts a portion of a post, treat that post very, very carefully. If you repeat or respond to what has been redacted, you will be infracted for questioning moderation.
Speaking of redactions... learn from what has been redacted from your posts. We want to keep discussion flowing, yet there are limits.

Thank for your understanding and following these rules.
Tom


----------



## Tom Robertson (Nov 15, 2005)

Please remember the rules posted above.

Thread is re-opened.

Thanks,
Tom


----------



## James Long (Apr 17, 2003)

DISH's statement to the Delaware Court on why they believe the Delaware case should not be moved to Texas.

[29] STATEMENT re [28] Order, (Echostar's Submission Regarding Potential Transfer Of This Action To The Eastern District Of Texas) by Dish Network LLC, Dish Network Corporation, Echostar DBS Corporation, Echostar Technologies LLC, Echosphere LLC. (Attachments: # (1) Exhibit A)

Filed & Entered: 04/13/2009 - Modified on 4/14/2009

...


----------



## deaincaelo (Feb 5, 2009)

well, i'm still wondering what exactly WOULD get around 31/61?


----------



## James Long (Apr 17, 2003)

TiVo's statement to the Delaware Court on why they believe the Delaware case should be moved to Texas.

[30] STATEMENT (TiVo's Brief in Support of Transfer to the Eastern District of Texas) re [28] Order, by TiVo Inc..

Filed & Entered: 04/20/2009 - Modified on 4/21/2009

...


----------



## James Long (Apr 17, 2003)

130 pages on why the case should be transferred ...

[32] REDACTED VERSION (Declaration of Perry Goldberg in Support of Transfer to the Eastern District of Texas) by TiVo Inc.. (Attachments: # (1) Exhibit A, # (2) Exhibit B, # (3) Exhibit C, # (4) Exhibit D, # (5) Exhibit E)

Filed & Entered: 04/24/2009 - (Sealed version was posted on 4/20/2009)

...


----------



## dgordo (Aug 29, 2004)

DE case transferred to TX.


----------



## James Long (Apr 17, 2003)

Thanks dgordo ...

The final word from Delaware: "Case transferred from Delaware has been opened in Eastern District of TEXAS as case 2:09-cv-00171, filed 05/28/2009."

Still no updates in the original Texas case (2:04-cv-1).


----------



## Curtis52 (Oct 14, 2003)

Dish has been found in contempt.


----------



## dfd (Aug 29, 2008)

Let me guess the next steps...

1. E* appeals
2. 6 months later Appeals court hears case
3. 2 months later appeal denied
4. 1 month later E* requests a full court hearing
5. 2 months later request denied
6. 1 month later E* appeals to SCOTUS
7. 5 months later SCOTUS refuses to hear arguments

Total: 17 more months until this is done.


----------



## Curtis0620 (Apr 22, 2002)

dfd said:


> Let me guess the next steps...
> 
> 1. E* appeals
> 2. 6 months later Appeals court hears case
> ...


Only if they stay the injunction. They may have to disable thier DVR's through the appeal process.


----------



## Tom Robertson (Nov 15, 2005)

New discussion thread based on the news: http://www.dbstalk.com/showthread.php?p=2117354#post2117354


----------



## James Long (Apr 17, 2003)

Note: Today's court documents are now posted in the thread linked by Tom above. Enjoy!


----------

