# TiVo vs. Dish: Judge orders Feb. 2009 hearing on infringement



## Curtis52

O R D E R 

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 hearing on this matter in the form of a Bench Trial on February 17-18, 2009 to determine whether EchoStar’s DP-501, DP-508, DP-510, DP-522, DP-625, DP-721, DP-921, and DP-942 receivers continue to infringe claims 1, 5, 21, 23, 32, 36, 52, 31, and 61 of U.S. Patent No. 6,233,389, either literally or under the doctrine of equivalents. The hearing will be held in Texarkana and begin each morning at 9 a.m.. Each side will have five (5) hours to present their case. 

IT IS ORDERED that the following discovery limitations shall apply to this matter. 

1. Disclosures. To the extent not already disclosed, within 15 days of this Order, each party shall disclose to every other party the following information: 

a. the legal theories and, in general, the factual bases of the disclosing party’s claims or defenses; 

b. the name, address, and telephone number of persons having knowledge of relevant facts, a brief statement of each identified persons’ connection with the case, and a brief, fair summary of the substance fo the information known by any such person; 

c. for any testifying expert, by the date set by the court below, each party shall disclose to the other party or parties: 

i. the expert’s name, address, and telephone number; 

ii. the subject matter on which the expert will testify; 

iii. if the witness is retained or specially employed to provide expert testimony in this case or whose duties as an employee of the disclosing party regularly involve giving expert testimony: 

(a) all documents, tangible things, reports, models, or data compilations that have been provided to, reviewed by, or prepared by or for the expert in anticipation of the expert’s testimony; and 

(b) the disclosures required by Fed. R. Civ. P. 26(a)(2)(B) and Local Rule CV-26; 

iv. for all other experts, the general substance of the expert’s mental impression and opinions and a brief summary of the basis for them or documents reflecting such information. 

2. Additional Disclosures. Each party, within 15 days of this Order and without awaiting a discovery request, will provide, to the extent not already provided, every other party a copy of all documents, electronically stored information, and tangible things in the possession, custody, or control of the party that are relevant to the above stated matter. 

3. Discovery Limitations. In addition to the disclosure listed in Paragraphs 1 and 2 above, the each side may serve 10 interrogatories, 10 requests for admission on the opposing side. In addition, each side may take 15 hours of fact witness depositions and the depositions of experts. 

4. Pre-hearing disclosure. Each party shall provide to every other party within 7 days of the trial the following: 

a. the name and, if not previously provided, the address and telephone number, of each witness, separately identifying those whom the party expects to call and those whom the party may call if the need arises; 

b. the designation of those witnesses whose testimony is expected to be present by means of a deposition and, if not taken stenographically, a transcript of the pertinent portions of the deposition testimony; 

c. an appropriate identification of each document or other exhibit, including summaries of other evidence, separately identifying those that the party expect to offer and those which the party may offer if the need arises; 

d. an copy of each demonstrative that the party expects to present, separately identifying those that the party expects to present and those which the party may present if the need arises. 

5. Duty to Supplement. After disclosure is made pursuant to this order, each party is under a duty to supplement or correct its disclosures immediately if the party obtains information that a disclosure was incomplete or incorrect when made, or is no longer complete or true.

IT IS FURTHER ORDERED that the following deadlines shall apply to this case. 

Date Event 

December 22, 2008 TiVo’s Expert Disclosures Due 

January 5, 2009 EchoStar’s Expert Disclosures Due 

February 10, 2009 Parties’ Proposed Findings of Fact and Conclusions of Law due


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## phrelin

A bench trial in mid-February on whether the receivers continue to infringe. That allows enough time for another 1,500 posts.


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## CuriousMark

phrelin said:


> A bench trial in mid-February on whether the receivers continue to infringe. That allows enough time for another 1,500 posts.


LOL!!!


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## James Long

Original document from PACER attached.

So much for this being a slam dunk for either side. Nearly three months after the September 4th hearing and over six months after the status hearing and the outcome: *Another two days in court MONTHS away from today!*

In the spirit of non-repetitive discussion (repetitive discussion leads to thread closure) ...

Does this "outcome" change your opinion on how the case will be resolved?
Does this delay hurt Tivo, DISH or both companies by not resolving the issue promptly?

Remember, discuss the topic and not each other ---


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## scooper

IMO - this is probably the best thing Judge Folsum could do. By having the bench trial, he covers both sides at once and this is in the interest of "Judical economy". Fairest to both sides.


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## CuriousMark

James Long said:


> Does this "outcome" change your opinion on how the case will be resolved?
> Does this delay hurt Tivo, DISH or both companies by not resolving the issue promptly?


I think in the long run Dish and TiVo will still settle, but it will be delayed. On the other hand, after the bench trial and ruling some of the issues of the case that might have been left up in the air by an earlier settlement will be resolved.

I think it hurts both companies by leaving them both with large risks that will hold back their ability do as well as they could in their respective industries. I think both would be better off to settle and settle sooner rather than later.

It is interesting that the judge has left contempt on the table, and brought infringement of the hardware claims under the doctrine of equivalents back into play. If DOE infringement is found, TiVo's patent will be even stronger. If it is not found it will be considerably weakened. It seems like the answer needs to be determined to eliminate uncertainty either way.

It is also interesting that while he did bring DOE in on the modified DVRs, he did not add the newer units that could also be looked at. I guess that is another kettle of fish for future litigation and perhaps a new trial.

Some were arguing that a new trial would be needed for this determination, but it seems that the judge is keeping it under the umbrella of the current case.

Let the 1500 post roll!!!


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## phrelin

James Long said:


> Original document from PACER attached.
> 
> So much for this being a slam dunk for either side. Nearly three months after the September 4th hearing and over six months after the status hearing and the outcome: *Another two days in court MONTHS away from today!*
> 
> In the spirit of non-repetitive discussion (repetitive discussion leads to thread closure) ...
> 
> Does this "outcome" change your opinion on how the case will be resolved?
> Does this delay hurt Tivo, DISH or both companies by not resolving the issue promptly?
> 
> Remember, discuss the topic and not each other ---


Thanks for the PDF.

No opinion change on outcome. I don't know enough to have an opinion.

Damage from delay? Compared to the economy?

Tivo (TIVO) share price at $5.08 is down 42% from September 3, Echostar (SATS) at $13.04 is 59% down, Dish Network (DISH) at $8.37 down 71%, Nasdaq at 1036.51 is down 44%.

The TiVo case delay will not hurt TiVo more than the economy generally. It could hurt Dish although it's hard to imagine how anyone outside the Dish organization could do any more damage than the folks inside the organization.

It should hurt Echostar as the code is the basis for that company's DVR products. Dish Network should and could cut a deal with TiVo to offer TiVo boxes as an option like DirecTV did.


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## Curtis52

ENGLEWOOD, Colo. – Nov. 20, 2008 – DISH Network Corporation (NASDAQ: DISH) and EchoStar Corporation (NASDAQ: SATS) issued the following statement regarding today’s developments in the Tivo Inc. v. EchoStar Communications Corp. lawsuit:

“We are pleased that the district court did not find us in contempt on the face of the injunction. We look forward to the February bench trial on our software design-around. Our subscribers can continue using their award-winning DVRs from DISH Network.”


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## phrelin

Curtis52 said:


> ENGLEWOOD, Colo. - Nov. 20, 2008 - DISH Network Corporation (NASDAQ: DISH) and EchoStar Corporation (NASDAQ: SATS) issued the following statement regarding today's developments in the Tivo Inc. v. EchoStar Communications Corp. lawsuit:
> 
> "We are pleased that the district court did not find us in contempt on the face of the injunction. We look forward to the February bench trial on our software design-around. Our subscribers can continue using their award-winning DVRs from DISH Network."


Hmmmm, "*their award-winning DVRs*." The DVR's aren't my DVR's. Well, I guess the two 508's stored in a closet are mine. But the ViP722 and ViP612 are Dish Networks.

If the new code is found to infringe, I have to believe it's essentially the same code design that's in the ViP's. While that will have to be adjudicated separately, Dish Network as a company will be toast anyway as theoretically the dollar clock on infringement on these other boxes will have started. Dish Network does not have enough current assets for a continued fight that it's likely to lose. Again, only if the judge says my two 508's contain infringing code would they be in that position.

EDIT: My frustration expessed in this post is about the idiotic PR/Marketing of Echostar/Dish which extends much further than just this stupidly worded news release.


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## Curtis52

Curtis52 said:


> "We are pleased that the district court did not find us in contempt on the face of the injunction."


Very misleading. The judge hasn't ruled on it yet.


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## Curtis52

The judge will also be looking at whether the hardware infringes at the February trial.


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## jacmyoung

Curtis52 said:


> The judge will also be looking at whether the hardware infringes at the February trial.


I would say so too.

Remember when the appeals court reversed the hardware verdict, it allowed the parties to re-address it if they wished to. Ordinarily you would think TiVo would be the one who would be inclined to re-address the issue but TiVo did not. But then the judge himself can re-address the issue too, that is the part I did not think about.

What is surprising to me is, this new order appears the "new action" the judge was telling the TiVo's attorney on 9/4 because it will be a bench trial, it will be a formal trial, and therefore a new trial, independent of this current trial. Meaning this case is practically over, as far as the contempt issue is concerned, but not the damages part. Apparently the judge decided to delay the damages part until the new bench trial is concluded.

And this new bench trial will in fact be able to determine if the new design around is still an infringement or not, which is the same goal the case E* filed in the DE court were to accomplish, only that because the DE court had not decided if they would grant E* the trial or not, and the fact Judge Folsom decided to initiate the new trial in his court, E* will not be able to settle it in the DE court, rather again in Judge Folsom's court.

Just my speculation as I am no lawyer.


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## CuriousMark

jacmyoung said:


> What is surprising to me is, this new order appears the "new action" the judge was telling the TiVo's attorney on 9/4 because it will be a bench trial, it will be a formal trial, and therefore a new trial, independent of this current trial. Meaning this case is practically over, as far as the contempt issue is concerned, but not the damages part. Apparently the judge decided to delay the damages part until the new bench trial is concluded.


It is a new hearing, which will be a bench trial, but it is still part of the current summary action of contempt, and not a whole new action. If it were a new action, the summary rules you have been telling us about repeatedly would not apply, but here they do.


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## James Long

Personally, I like this outcome ... and while the judge did not explicitly _refuse_ to find DISH guilty of contempt on the face of the injunction (denying the motion) it seems that the argument on that matter has been set aside - looking for the deeper truth. Has DISH ceased infringing?

Judge Folsom probably should have ordered a bench trial months ago instead of wasting time on the "face of the injunction" issue. TiVo pressed for "face of the injunction" and said in May that they could win that argument. While I don't agree with DISH's press release I can understand it and it is fundamentally true ... DISH was not held in contempt on the face of the injunction. (At least, not yet.)

It will come down to whether or not DISH actually cleaned up their act and stopped infringing ... but as noted in previous threads there wasn't enough evidence presented to prove the case either way - hence the discovery and trial.

Did DISH win? Did TiVo win? Nobody has won yet, but DISH should be happy that they are still in the game.


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## Kheldar

Curtis52 said:


> Curtis52 said:
> 
> 
> 
> "We are pleased that the district court did not find us in contempt on the face of the injunction."
> 
> 
> 
> Very misleading. The judge hasn't ruled on it yet.
Click to expand...

Misleading, possibly, but technically accurate. The district court _didn't_ find them in contempt, but they _didn't_ find them _*not*_ in contempt either. Expect a press release from TiVo saying something about _them_ winning the ruling today also.


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## spear61

Judge has slapped down Dish's attempt to move to the east coast and get a new judge to decide if the "workaround" infringes.


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## jacmyoung

CuriousMark said:


> It is a new hearing, which will be a bench trial, but it is still part of the current summary action of contempt, and not a whole new action. If it were a new action, the summary rules you have been telling us about repeatedly would not apply, but here they do.


A bench trial by definition is a new trial, cannot be a part of the current trial or contempt proceeding. The current contempt motion is over.

Now if in the new trial, E*'s new design around is again found an infringement, TiVo can seek a new injunction that will cover the design around, as well as some left over from the last injunction, and later seek a new contempt motion as a part of the new injunction.

But from this point forward, everything E* and TiVo will be doing will be for this new trial, not the past one.

The only thing left from the past trial is the additional damages.


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## jacmyoung

spear61 said:


> Judge has slapped down Dish's attempt to move to the east coast and get a new judge to decide if the "workaround" infringes.


Very true.

I will say though as I have said before, E* probably did not expect their move would succeed. It was a move to force TiVo to address the new design around, because up until that time, TiVo only wanted to address the "face of order" issue, but after the DE filing TiVo was forced to accept E*'s new design around evidence and started to talk about the colorable issue.

In a sense Judge Folsom was granting E*'s wish, to try the new design around, only that he told E* if you want to try it, do it in my courtroom, not in the DE court.


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## James Long

spear61 said:


> Judge has slapped down Dish's attempt to move to the east coast and get a new judge to decide if the "workaround" infringes.


The Delaware side of the issue seems to be at a standstill ... but it isn't dead yet.

Delaware was asked to look at the latest DVR software as the product ... Texas is looking at the named receivers as the product. The ViP receivers are not in jeopardy in Texas. (Until further court action claiming they are "only colorably different".)


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## peak_reception

Curtis52 said:


> Very misleading. The judge hasn't ruled on it yet.


 I disagree. The court spoke (for now) and did not find DISH in contempt "...on the face of the injunction" as DISH says. Nor will that be the issue in February, so DISH phrased their statement accurately. They may well be found in contempt on other grounds, but not on the face of the injunction. Or so it seems to me.

Having said that, I have to say that you were right about the 9-4 hearing being A BIG WASTE OF TIME. You were right and I was wrong. Amazing but true  I'm serving myself a big slice of humble pie tonight for dessert (yuck).

Why couldn't all of this have been arranged last May 30 ?! Apparently because TiVo didn't ask for it! We were all mystified as to why TiVo didn't even mention the DOE on hardware. Well, this looks to be the answer. The judge appears to be doing TiVo counsel's job for them now by bringing hardware back into it. AMAZING.

Just when ya think things can't get any weirder....


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## Greg Bimson

peak_reception said:


> I disagree. The court spoke (for now) and did not find DISH in contempt "...on the face of the injunction" as DISH says. Nor will that be the issue in February, so DISH phrased their statement accurately.


If that were the case, where is the decision?

I believe the problem here is that TiVo implored Judge Folsom to find infringement on the modified DVR's that were sold after the injunction. A bench trial would solidify that ruling.


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## peak_reception

jacmyoung said:


> Remember when the appeals court reversed the hardware verdict, it allowed the parties to re-address it if they wished to. Ordinarily you would think TiVo would be the one who would be inclined to re-address the issue but TiVo did not. But then the judge himself can re-address the issue too, that is the part I did not think about.


 That's how it seems to me too. Where did TiVo ask to have hardware and DOE looked at again? This seems to be the judge's initiative. I remember asking dgordo whether a judge can construct a ruling which includes elements and arguments not presented by counsel. This isn't a ruling but it seems as though the judge came up with this revisitation of hardware all by himself.


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## peak_reception

Greg Bimson said:


> If that were the case, where is the decision?
> 
> I believe the problem here is that TiVo implored Judge Folsom to find infringement on the modified DVR's that were sold after the injunction. A bench trial would solidify that ruling.


 No decision obviously, but a completely different agenda in store now (for next Feb.) than the one TiVo asked for on 9-4.


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## Curtis52

jacmyoung said:


> The current contempt motion is over.


The judge can leave that open until after the trial. He may yet decide that they are in contempt for reasons of the difference being only colorable or whatever.


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## peak_reception

Kheldar said:


> Expect a press release from TiVo saying something about _them_ winning the ruling today also.


 First of all there was no ruling. Second of all, such a declaration from TiVo would be absurd. Nothing they've done in court has borne fruit since last May apart from finally getting payment for damages already accrued (and that was a given). Just more delay. Playing right into Charlie's hands.

But as I think about this more, it seems that Judge Folsom might actually be saving TiVo counsel from their own missteps. It looks like Prima Facie Contempt was a losing proposition legally given the existence of EchoStar's design-around. Instead of ruling Not in Contempt (or ruling contempt and getting reversed) the judge is re-focusing the issue on the workaround itself where apparently it should've been in the first place.

Delaware will now punt back into Folsom's domain but that action certainly seems to have paid dividends for DiSH counsel. (Just my speculation as, like most of us, I am no lawyer).

The Design-Around is now THE issue as it probably should've been last May too.


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## James Long

peak_reception said:


> First of all there was no ruling.


The ruling was "come back in February for a trial". The order states the ruling clearly.

It would have been nice to see the motion to find DISH in contempt "on the face of the injunction" denied instead of left in limbo - but it appears that Judge Folsom isn't ready to hand anyone that big of a victory.


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## Greg Bimson

> 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 hearing on this matter in the form of a Bench Trial on February 17-18, 2009 to determine whether EchoStar's DP-501, DP-508, DP-510, DP-522, DP-625, DP-721, DP-921, and DP-942 receivers continue to infringe claims 1, 5, 21, 23, 32, 36, 52, 31, and 61 of U.S. Patent No. 6,233,389, either literally or under the doctrine of equivalents. The hearing will be held in Texarkana and begin each morning at 9 a.m.. Each side will have five (5) hours to present their case.


Notice there has not been any determination whatsoever. Continuing to infringe could simply apply to only the "adjudged receivers", "the modified receivers" or both.

Then again, by finding infringement, it does render the "on its face" somewhat useless, as a finding of infringement wouldn't matter to the adjudged receivers unless contempt is built off of the bench trial.

*So are we charting new ground, and this has become an exceptional case, or what?*


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## peak_reception

James Long said:


> The ruling was "come back in February for a trial". The order states the ruling clearly.


 Nitpicky semantics. No decision was made on the issue argued before the court [Prima Facie Contempt or Not]. Call it a ruling if you like but nothing legal was decided, just a court order setting aside what was at issue on 9-4 and setting up what comes next in its place next February.


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## Albie

How many here believe that Folsom did this as a way of *strongly * urging them to settle as most of his previous subtle hints have gone unheeded?


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## scooper

Albie said:


> How many here believe that Folsom did this as a way of *strongly * urging them to settle as most of his previous subtle hints have gone unheeded?


<Chuckle> if Tivo would give up their notion of getting a monthly stream from Dish, it could be settled .

And Dish "licensing" Tivo up until their new S/W was in place. </Chuckle>

Discussed a long time ago....


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## Curtis52

Albie said:


> How many here believe that Folsom did this as a way of *strongly * urging them to settle as most of his previous subtle hints have gone unheeded?


Not me. There was really nothing else the judge could do.


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## peak_reception

jacmyoung said:


> A bench trial by definition is a new trial, cannot be a part of the current trial or contempt proceeding. The current contempt motion is over.
> 
> Now if in the new trial, E*'s new design around is again found an infringement, TiVo can seek a new injunction that will cover the design around, as well as some left over from the last injunction, and later seek a new contempt motion as a part of the new injunction.
> 
> But from this point forward, everything E* and TiVo will be doing will be for this new trial, not the past one.
> 
> The only thing left from the past trial is the additional damages.


 I have to agree with all of the above. I also wonder if Judge Folsom doesn't open himself up to reversal on appeal by setting up a bench trial with hardware and DOE that nobody asked for. The power steering here seems ripe for some higher judge to slap down eventually.

Will this trial ever end?


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## Kheldar

Kheldar said:


> Expect a press release from TiVo saying something about _them_ winning the ruling today also.


The TiVo press release:


> We are pleased that the U.S. District Court has scheduled a hearing on EchoStar's purported workaround on February 17, 2009. Contrary To EchoStar's statement today, the Court did not rule on TiVo's pending motion for contempt of the injunction. The Court will do so after the hearing as well as rule on the amount of damages owed to TiVo beyond the nearly $105 million already paid by EchoStar. This is a positive step, particularly the accelerated discovery ordered by the Court, towards the ultimate resolution of all issues in the litigation and we remain confident that we will prevail in showing that EchoStar's workaround does not avoid infringement.


So they didn't claim victory, but they said that E* also didn't win. TiVo called it a "positive step".


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## peak_reception

Kheldar said:


> The TiVo press release:
> 
> So they didn't claim victory, but they said that E* also didn't win. TiVo called it a "positive step".


 Score one for Kheldar. TiVo has out-B.S.-ed DISH, especially with that opening statement:


> We are pleased that the U.S. District Court has scheduled a hearing on EchoStar's purported workaround on February 17, 2009.


 Yeah sure, that's just what they were hoping for. Not.


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## James Long

peak_reception said:


> ... setting up a bench trial with hardware and DOE that nobody asked for. The power steering here seems ripe for some higher judge to slap down eventually.


The appeals court reversed and ***REMANDED*** the issue back to Judge Folsom. If you want to ask the question "who asked" look to that appeals court ruling. You will see that the "higher power" did the asking.

Perhaps while researching the law to give a ruling on contempt the court realized that there was more work to do. The issue isn't solved until the infringement ends. The court needs to figure out if and when that infringement ended ... to do that they also have to determine PROPERLY per the appeal court's ruling what infringement is.


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## FTA Michael

The market cap for TiVo is less than $520 million as I type. Considering how much E* has already spent on this lawsuit, and looking forward to more legal fees at a minimum, wouldn't it make a lot more sense for E* to go ahead and buy TiVo?


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## jacmyoung

peak_reception said:


> Score one for Kheldar. TiVo has out-B.S.-ed DISH, especially with that opening statement: Yeah sure, that's just what they were hoping for. Not.


Precisely! It was E* that wanted a "speedy trial" to prove their new design around no longer infringed, TiVo rigorously argued aginst the E* such motion. TiVo wanted to nail E* in the contempt proceeding, they did not get it.

To say now that it was TiVo who wished to have such a "speedy trial"?


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## Curtis52

FTA Michael said:


> The market cap for TiVo is less than $520 million as I type. Considering how much E* has already spent on this lawsuit, and looking forward to more legal fees at a minimum, wouldn't it make a lot more sense for E* to go ahead and buy TiVo?


Well, TiVo values themselves pretty highly these days. $200 million in cash, no debt, probably more damages and a lucrative settlement with Dish. Plus, they have a poison pill. Dish may not have enough money.


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## jacmyoung

FTA Michael said:


> The market cap for TiVo is less than $520 million as I type. Considering how much E* has already spent on this lawsuit, and looking forward to more legal fees at a minimum, wouldn't it make a lot more sense for E* to go ahead and buy TiVo?


But what if in 02/09 the E* new design around is found non-infringing and TiVo's shares drop below the current level as a result, won't Charlie have over paid?



Curtis52 said:


> Well, TiVo values themselves pretty highly these days. $200 million in cash, no debt, probably more damages and a lucrative settlement with Dish. Plus, they have a poison pill. Dish may not have enough money.


Not impossible but I doubt there will be a settlement now that E* gets a new day in court. Judging from what E* had described of the new design around, it is almost certain to me it is not infringing on the TiVo's patent.


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## Kheldar

jacmyoung said:


> But what if in 02/09 the E* new design around is found non-infringing and TiVo's shares drop below the current level as a result, won't Charlie have over paid?


Then again, if E* did buy it, wouldn't the lawsuit be dropped? (Surely even he isn't stupid enough to continue a lawsuit against himself?) He would never found out that he overpaid, so what he doesn't know won't hurt him. :grin:


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## jacmyoung

Kheldar said:


> Then again, if E* did buy it, wouldn't the lawsuit be dropped? (Surely even he isn't stupid enough to continue a lawsuit against himself?) He would never found out that he overpaid, so what he doesn't know won't hurt him. :grin:


Can't argue with that


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## Curtis52

jacmyoung said:


> Not impossible but I doubt there will be a settlement now that E* gets a new day in court.


If TiVo wins, I think Dish will have to settle.


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## jacmyoung

Curtis52 said:


> Well, TiVo values themselves pretty highly these days. $200 million in cash, no debt, probably more damages and a lucrative settlement with Dish. Plus, they have a poison pill. Dish may not have enough money.


I should clarify I was speaking about your "lucrative settlement" deal, it is more probable if TiVo offers a reasonable deal E* can still take it to avoid paying the additional $16+ million damage.


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## jacmyoung

Curtis52 said:


> If TiVo wins, I think Dish will have to settle.


You know very well the only way for TiVo to win is if E* totally lied about their new design around. If the new design around is just as E* described of it, there is almost no chance it is still infringing.


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## Bidderman9

It appears the consensus is that the hardware is back in to play. I am assuming that this is interpreted from the paragragh below? Can somebody decipher this in laymans terms for me? How is the hardware back in play?



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 hearing on this matter in the form of a Bench Trial on February 17-18 said:


> Also, I assume that the Judge will most likely not issue a ruling at the bench trial? Could it be another several months after the bench trial?
> 
> One final question. Does anybody have an opinion whether this latest ruling/trial is better for TiVo or E*?
> 
> Thanks!


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## Curtis52

jacmyoung said:


> You know very well the only way for TiVo to win is if E* totally lied about their new design around. If the new design around is just as E* described of it, there is almost no chance it is still infringing.


I can only go by what they have in their patent application and going by that, my opinion is that Dish infringes.


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## Jim5506

O JOY.. here we go again another thread with 40 posts per day going nowhere.


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## Curtis52

Bidderman9 said:


> It appears the consensus is that the hardware is back in to play. I am assuming that this is interpreted from the paragragh below? Can somebody decipher this in laymans terms for me? How is the hardware back in play?
> 
> Also, I assume that the Judge will most likely not issue a ruling at the bench trial? Could it be another several months after the bench trial?
> 
> One final question. Does anybody have an opinion whether this latest ruling/trial is better for TiVo or E*?


Claims 1, 5, 21, 23, 32, 36, and 52 are hardware claims,
Claims 31 and 61 are software claims, although "software" is a misnomer. There is no code in the patent. It's the process itself that is patented.

The claim numbers refer to specific sections in the patent. Infringement of any single claim by Dish is all TiVo needs to show to win.

I think the new hearing is great news for TiVo because had the judge ruled that Dish is in contempt without looking at whether Dish still infringes it would have been reversed by the appeals court. This way, that won't happen and we'll get to the bottom of this much sooner.


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## Bidderman9

Curtis52 said:


> Claims 1, 5, 21, 23, 32, 36, and 52 are hardware claims,
> Claims 31 and 61 are software claims.
> 
> The claim numbers refer to specific sections in the patent. Infringement of any single claim by Dish is all TiVo needs to show to win.
> 
> I think the new hearing is great news for TiVo because had the judge ruled that Dish is in contempt without looking at whether Dish still infringes it would have been reversed by the appeals court. This way, that won't happen and we'll get to the bottom of this much sooner.


Thanks for the explanation, I appreciate it. But you missed 1 question. In your opinion, do you think it will months after the trial before the judge issues a ruling?


----------



## Curtis52

Bidderman9 said:


> Thanks for the explanation, I appreciate it. But you missed 1 question. In your opinion, do you think it will months after the trial before the judge issues a ruling?


Almost certainly.


----------



## scooper

I honestly think it was the last thing Tivo wanted to hear - another trial (even if it is an abbreviated bench trial). Judge Folsom not ruling on their "face of the injunction" contempt is the same as a ruling for Echostar on that issue.

My prediction for a ruling - 1 to 3 months after the bench trial.


----------



## jacmyoung

Curtis52 said:


> I can only go by what they have in their patent application and going by that, my opinion is that Dish infringes.


Whether it still infringes or not has nothing to do with the E* new patent application, rather what TiVo had tried to argue the new design around was still infringing.

The only thing TiVo had was that the new design around still used the PID analyzer, nothing else. If you believe that, you must also believe all satellite receivers, DVR or non-DVR, C-band or Ku band, DBS or FTA, all of them infringe, because all of them use PID analyzer, it is part of satellite receivers necessary design feature, nothing to do with DVR functions.

TiVo seriously needs some help from you


----------



## jacmyoung

scooper said:


> I honestly think it was the last thing Tivo wanted to hear - another trial (even if it is an abbreviated bench trial). Judge Folsom not ruling on their "face of the injunction" contempt is the same as a ruling for Echostar on that issue.
> 
> My prediction for a ruling - 1 to 3 months after the bench trial.


I wouldn't say the last thing TiVo wanted to hear, the judge could have told them to go to the DE court to fight over there

On 9/4, Judge Folsom asked the TiVo's lawyer this question, what if I found no violation on the face, and you would have to seek a new action either in the DE court or in my court, what did that leave you?

He has kept his promise, but did not ask TiVo to go to DE.


----------



## Curtis52

jacmyoung said:


> Whether it still infringes or not has nothing to do with the E* new patent application, rather what TiVo had tried to argue the new design around was still infringing.
> 
> The only thing TiVo had was that the new design around still used the PID analyzer, nothing else. If you believe that, you must also believe all satellite receivers, DVR or non-DVR, C-band or Ku band, DBS or FTA, all of them infringe, because all of them use PID analyzer, it is part of satellite receivers necessary design feature, nothing to do with DVR functions.
> 
> TiVo seriously needs some help from you


All the steps of a claim have to be performed for there to be infringement. One matching step does not constitute infringement.


----------



## Herdfan

jacmyoung said:


> You know very well the only way for TiVo to win is if E* totally lied about their new design around.


While not saying they lied about not infringing in the first place, what would make you think are not "mistaken" about the design around?


----------



## jacmyoung

Herdfan said:


> While not saying they lied about not infringing in the first place, what would make you think are not "mistaken" about the design around?


Based on TiVo's argument trying to prove infringement. See the above PID issue.



Curtis52 said:


> All the steps of a claim have to be performed for there to be infringement. One matching step does not constitute infringement.


Are you agreeing with me?

The use of the PID analyzer meets one of the 10 steps in the claim, called the "parsing" (analyzing) step, and it was the only thing TiVo said the new design around had met its claim.


----------



## peak_reception

James Long said:


> The appeals court reversed and ***REMANDED*** the issue back to Judge Folsom. If you want to ask the question "who asked" look to that appeals court ruling. You will see that the "higher power" did the asking.


 Yes the Appeals Court remanded the hardware claims back to District Court. However, it's not Judge Folsom's job to set the agenda from that point forward. TIVO, as plaintiff, assumed that job. That's what May 17th was for: TiVo's Agenda for the May 30 conference moving forward. TiVo included ***NOTHING*** at all about hardware or DOE. An obvious mistake in retrospect.


----------



## jacmyoung

peak_reception said:


> Yes the Appeals Court remanded the hardware claims back to District Court. However, it's not Judge Folsom's job to set the agenda from that point forward. TIVO, as plaintiff, assumed that job. That's what May 17th was for: TiVo's Agenda for the May 30 conference moving forward. TiVo included ***NOTHING*** at all about hardware or DOE. An obvious mistake in retrospect.


The only thing I can think of is, part of the reasons why the hardware verdict was reversed by the appeals court was blamed on the judge's less than ideal jury instructions (though the reference was very subtle and none of us had ever found the evidence to support it), and Judge Folsom might have had that on his mind when he made his latest decision.


----------



## James Long

jacmyoung said:


> You know very well the only way for TiVo to win is if E* totally lied about their new design around. If the new design around is just as E* described of it, there is almost no chance it is still infringing.


No, it just takes a difference of opinion. DISH does not have to be liars to lose ... all they have to do is lose the argument and have TiVo persuade the judge otherwise.

You're setting up DISH for too big of a fall ... they don't have to be liars if they are wrong.


jacmyoung said:


> On 9/4, Judge Folsom asked the TiVo's lawyer this question, what if I found no violation on the face, and you would have to seek a new action either in the DE court or in my court, what did that leave you?
> 
> He has kept his promise, but did not ask TiVo to go to DE.


Judge Folsom has not ruled on the motion discussed on September 4th. He has not found "no violation on the face". If he had found that the motion would be DENIED. The motion remains pending.


----------



## James Long

peak_reception said:


> Yes the Appeals Court remanded the hardware claims back to District Court. However, it's not Judge Folsom's job to set the agenda from that point forward. TIVO, as plaintiff, assumed that job. That's what May 17th was for: TiVo's Agenda for the May 30 conference moving forward. TiVo included ***NOTHING*** at all about hardware or DOE. An obvious mistake in retrospect.


I agree TiVo should have brought it up even though I don't believe it would have made a difference in the timetable the case is on. TiVo's request to "first" file contempt on the face of the injunction and if that failed file something else then file something else tactic began with "contempt on the face of the injunction".

Are you saying that Judge Folsom is powerless to follow the mandate of a higher court?


----------



## dgordo

Although it is unusual for a judge to rule on an issue he was not asked about, it happens. Looks like Folsom is headed in that direction.


----------



## Greg Bimson

jacmyoung said:


> The only thing TiVo had was that the new design around still used the PID analyzer, nothing else.


No, DISH/SATS argument was that the new software doesn't analyze pre-storage, which from a simple reading is 100 percent correct. However, it is the only defense DISH/SATS proffers for no longer having the 501 and 508 infringe. DISH/SATS defense is that they only had to stop meeting one step of the claim, so they changed only that one step. Their argument is they now meet only 9 steps out of 10 in the claim, so there isn't any infringement any longer.

However, the problem is that the receiver still analyzes in the same manner as it did when it was found to be an infringement. It was found that in addition to having an index table, that the PID analysis met the step of the claim for infringement.

In other words, under the old software, DISH/SATS could have the receiver found to met the analysis step 17 different times. If they don't remove all 17 occurences, it is still infringing and only colorably different.

TiVo did not have to prove that DISH/SATS no longer meets every step of the claim if DISH/SATS defense is that they simply don't perform only one step of the claim. TiVo would have only needed to prove that since DISH/SATS has admitted meeting all but one step, that the step that was changed still hasn't been changed, which means infringement is still present.


----------



## peak_reception

James Long said:


> I agree TiVo should have brought it up even though I don't believe it would have made a difference in the timetable the case is on. TiVo's request to "first" file contempt on the face of the injunction and if that failed file something else then file something else tactic began with "contempt on the face of the injunction".


 That's an awfully long process ("rolling contempt hearings" as Judge Folsom put it) to be undertaking if what you really want is a speedy outcome.



> Are you saying that Judge Folsom is powerless to follow the mandate of a higher court?


 There was no "mandate" from the CAFC regarding hardware and DOE. Here is what they wrote:



> At several points, TiVo argues that even if this court were to overturn the jury's verdict of literal infringement, there would still be ample evidence of infringement under the doctrine of equivalents. There are two problems with upholding the judgment on the hardware claims on that basis. First, the jury was told that if it found literal infringement it should not make a determination as to whether there was infringement under the doctrine of equivalents, so there was no verdict on the issue of equivalents with regard to the hardware claims. Second, we have construed two of the claim limitations more restrictively than the trial court's instructions permitted. For that reason, even if the jury had reached a verdict with respect to the doctrine of equivalents we could not sustain that verdict merely upon finding that substantial evidence supported it. At this juncture, we could uphold the judgment on the basis of the doctrine of equivalents only if we were to conclude that no reasonable jury, given proper instructions, could reach any verdict other than to find infringement by equivalents. The parties, however, have not briefed that issue in any detail, and we therefore do not address it. More generally, we do not decide what further proceedings, if any, are appropriate in the district court regarding the equivalents issue. *Instead, we leave that issue for the district court to resolve in the event that, on remand, TiVo decides to continue to pursue the hardware claims in light of this decision.*


 "In the event that, on remand, TiVo decides to continue to pursue..." It was up to TiVo, not Judge Folsom.


----------



## peak_reception

dgordo said:


> Although it is unusual for a judge to rule on an issue he was not asked about, it happens. Looks like Folsom is headed in that direction.


 Thank you dgordo, I was hoping that you would appear and weigh in.


----------



## Greg Bimson

James Long said:


> Are you saying that Judge Folsom is powerless to follow the mandate of a higher court?


Well, a revisitation of the hardware claims was left up to the parties to deal with upon remand. There was no mandate to revisit the hardware claims. I'm guessing Judge Folsom doesn't want to deal with this case anymore, so it is now on a fast track.


dgordo said:


> Although it is unusual for a judge to rule on an issue he was not asked about, it happens. Looks like Folsom is headed in that direction.


I said before that this case may require new case law. It appears Judge Folsom is going the extra mile to prove it.

Then again, Judge Folsom is the person that created the ongoing royalty payment in _Paice v. Toyota_.


----------



## Greg Bimson

peak_reception said:


> Yes the Appeals Court remanded the hardware claims back to District Court. However, it's not Judge Folsom's job to set the agenda from that point forward. TIVO, as plaintiff, assumed that job. That's what May 17th was for: TiVo's Agenda for the May 30 conference moving forward. TiVo included ***NOTHING*** at all about hardware or DOE. An obvious mistake in retrospect.


But didn't we go about this before? This bench trial is for _ongoing_ infringement. The new software bypasses the media switch, so many of the "hardware claims" would no longer be met by the new software. I had originally believed that is why it was abandoned by TiVo.


----------



## dgordo

peak_reception said:


> Thank you dgordo, I was hoping that you would appear and weigh in.


How could I stay away? :lol:


----------



## Greg Bimson

scooper said:


> I honestly think it was the last thing Tivo wanted to hear - another trial (even if it is an abbreviated bench trial). Judge Folsom not ruling on their "face of the injunction" contempt is the same as a ruling for Echostar on that issue.


I'll agree with that.

However, trying to think like Judge Folsom, knowing darn well whatever he does during this contempt proceeding will be appealed, if you had some of the decision on the motions ready, would you wait until one of the most critical pieces of information, the current status with respect to infringement, is decided?

Any decision that would have been released today along with this order would be appealed immediately.


----------



## peak_reception

Greg Bimson said:


> But didn't we go about this before? This bench trial is for _ongoing_ infringement. The new software bypasses the media switch, so many of the "hardware claims" would no longer be met by the new software. I had originally believed that is why it was abandoned by TiVo.


 I don't know. I never understood why they didn't pick up and run with what almost reads like an invitation by CAFC (as quoted above).


----------



## peak_reception

dgordo said:


> How could I stay away? :lol:


 You rubbernecker you


----------



## dgordo

peak_reception said:


> You rubbernecker you


----------



## Mainer_ayah

Why does everyone here think Folsom is resurrecting the hardware issue? There is nothing in his order that indicates they will be discussing whether the hardware, or the software for that matter infringes. The purpose of the bench trial is to determine if the receivers continue to infringe the claims of the patent either literally or under the doctrine of equivalents.

He is not looking at the hardware or the software, he is looking at the total package. It is dish's job to show him that modifications that they allegedly made render the receivers non-infringing. This is what the case has been about since it started. Not the hardware not the software, but that total package.

Personally I think he is 1. calling Dish's bluff on the software mods. 2. Setting up Dish for treble damages from the time they claim their alleged new software was functioning, and giving Dish yet another opportunity to settle when they realize what all of this will add up to.


----------



## phrelin

Golly gee. When I said 1,500 posts as a target in post 2, I hadn't anticipated the level of interest. I thought perhaps since the only issue of focus is highly technical it would limit the discussion. This thread only needs an average of 17 posts a day until the trial to get to 1,500. We already have over 4 days worth.

But, hey, I don't really know anything about the differences between the original design and the revised design, but I've already posted four times.


----------



## jacmyoung

Greg Bimson said:


> ...However, it is the only defense DISH/SATS proffers for no longer having the 501 and 508 infringe.


Did you seriously read E*'s new design around argument or should I quote it for you? E* said their new design around no longer meets any one of the 10 steps, it no longer analyzes pre-storage, it no longer uses an index file, it no longer uses the media switch, and it no longer uses the Broadcom chips...

I will be more than happy to quote what E* said if you say so.


----------



## jacmyoung

The reason this contempt motion was over was because the judge called for a new trial, that is done when a contempt cannot be found. If a contempt were found, there would have been no need for a new trial, the TiVo's motions on 5/30 would have been all granted, and TiVo would have been able to roll out another contempt proceeding on the products beyond the 4 million DVRs, and had that happened, depending on the outcome, another new trial could be then arranged if necessary if the next contempt could not be found. But if the next contempt is again found, then still there will be no need for a new trial.

A contempt proceeding is designed to ensure the winning patentee does not have to go through a new trial every time the infringer changes something, as long as the patentee can prove a contempt. Only when the patentee fails in proving a contempt, should he be subject to another costly new trial, therefore it is unfair if the judge believes the patnetee proved a contempt, and yet still forces the winning patentee to go through a new trial which the winning patnetee does not even seek in the first place.

The current contempt motion is not granted and is over. There is a good explanation why the judge did not produce a formal ruling. If one had paid attention to his court schedule, it was clear he had been totally booked, having 4 or 5 hearings every day non-stop. No one under such busy schedule could have had time to produce a 10-page formal ruling which requires thorough justifications and citing many cases, in order to stand up to an appeal. But a man has to do what a man has to do, that is to do his job in a reasonable time frame. He had no choice, if he had not done it such way, he might as well have told the parties to just go away and never see him again.

Also, when people think the judge appeared to have initiated a new trial on his own therefore concluded that he made a special case out of it, it is not so. We are all focused on whether TiVo asked for a new trial or not, but either party can seek a new trial and the judge can grant it.

Since E* motioned for a new trial, Judge Folsom could rightfully arrange that, as long as no one objects to it, it is therefore nothing special.

IMHO of course.


----------



## Curtis52

peak_reception said:


> Yes the Appeals Court remanded the hardware claims back to District Court. However, it's not Judge Folsom's job to set the agenda from that point forward. TIVO, as plaintiff, assumed that job. That's what May 17th was for: TiVo's Agenda for the May 30 conference moving forward. TiVo included ***NOTHING*** at all about hardware or DOE. An obvious mistake in retrospect.


Yep. 


> More generally, we do not decide what further proceedings, if any, are appropriate in the district court regarding the equivalents issue. Instead, we leave that issue for the district court to resolve *in the event that*, on remand, *TiVo decides to continue to pursue the hardware claims* in light of this decision.


TiVo seems pretty happy about the turn of events though.


----------



## Curtis52

jacmyoung said:


> The reason this contempt motion was over was because the judge called for a new trial, that is done when a contempt cannot be found.


Really?


> "MARTINSBURG - A federal judge has found a local Martinsburg attorney *guilty of criminal contempt* for her failure to answer two subpoenas requiring her to appear before a federal grand jury in Wheeling in December 2006. "
> 
> "The court held a *bench trial* on the contempt charge last May but Stamp held off on making a ruling in order to review the evidence in the case. " http://www.journal-news.net/page/content.detail/id/502800.html


----------



## Greg Bimson

jacmyoung said:


> Did you seriously read E*'s new design around argument or should I quote it for you? E* said their new design around no longer meets any one of the 10 steps, it no longer analyzes pre-storage, it no longer uses an index file, it no longer uses the media switch, and it no longer uses the Broadcom chips...
> 
> I will be more than happy to quote what E* said if you say so.


I would suggest you do quote what DISH/SATS said. After all, the index file, the media switch and the Broadcom chips were all part of the hardware claims which were reversed. Analysis pre-storage, however, is still being done by the receiver, in the form of PID filtering, which was found to meet the analysis step of Claims 31 and 61.

I'm guessing you are still taking DISH/SATS word that they no longer infringe.

Instead, you read the marketing and assumed it applied to all charges.

Then DISH/SATS goes into detail why they no longer infringe Claims 31 and 61, by stating they no longer meet one step of each claim, because the software doesn't do those claims. Except only the receiver has to meet the claim, and the receivers do the PID filtering outside of the software.


----------



## Curtis52

New TiVo statement

ALVISO, Calif., Nov. 21 /PRNewswire-FirstCall/ -- TiVo Inc. (Nasdaq: TIVO - News), the creator of and a leader in television products and services for digital video recorders (DVR), offered the following statement today on the order by the United States District Court, Eastern District of Texas, in the lawsuit against EchoStar Communications Corporation:

"We are pleased that the U.S. District Court has scheduled a hearing on
EchoStar's purported workaround on February 17, 2009. Contrary to
EchoStar's statement yesterday, the Court did not rule on TiVo's pending
motion for contempt of the injunction. The Court will do so after the
hearing as well as rule on the amount of damages owed to TiVo (which
EchoStar admitted at the September 4, 2008 hearing are owed) beyond the
nearly $105 million already paid by EchoStar. This is a positive step,
particularly the accelerated discovery ordered by the Court, towards the
ultimate resolution of all issues in the litigation and we remain
confident that we will prevail in showing that EchoStar's workaround does
not avoid infringement."


----------



## jacmyoung

Curtis52 said:


> New TiVo statement
> 
> ALVISO, Calif., Nov. 21 /PRNewswire-FirstCall/ -- TiVo Inc. (Nasdaq: TIVO - News), the creator of and a leader in television products and services for digital video recorders (DVR), offered the following statement today on the order by the United States District Court, Eastern District of Texas, in the lawsuit against EchoStar Communications Corporation:
> 
> "We are pleased that the U.S. District Court has scheduled a hearing on
> EchoStar's purported workaround on February 17, 2009. Contrary to
> EchoStar's statement yesterday, the Court did not rule on TiVo's pending
> motion for contempt of the injunction. The Court will do so after the
> hearing as well as rule on the amount of damages owed to TiVo (which
> EchoStar admitted at the September 4, 2008 hearing are owed) beyond the
> nearly $105 million already paid by EchoStar. This is a positive step,
> particularly the accelerated discovery ordered by the Court, towards the
> ultimate resolution of all issues in the litigation and we remain
> confident that we will prevail in showing that EchoStar's workaround does
> not avoid infringement."


What part is new?

Greg, give me some time to get you the qoutes, I have never and will never fail you


----------



## Greg Bimson

Thanks.

Remember this: in order to state that infringement is no longer an issue, steps of the claims must not be met. Simply by stating that the index file, the pre-storage analysis, the media switch, etc., are no longer there does not make proof the step has not been met.


----------



## scooper

PID FIltering is NOT analysis of the type that should be covered by Tivo's patent.


----------



## Curtis52

> "Parse" means "analyze." Dckt. No. 185, Claim Construction Order at 18 (Ex. D). It does not mean "index" or "separate." This claim construction is law of the case. AFG Indus., 375 F.3d at 1372 (prior claim construction is law of the case). EchoStar does not contend that the Adjudicated Receivers perform no analysis. In fact, the opinions of EchoStar's counsel admit that parsing is still performed by "PID filtering," which EchoStar's trial expert agreed meets the parsing limitation.7





> 7 Compare 8/24/06 opinion letter at 28 (Dckt. No. 826 Ex. 2) ("A Broadcom chip
> performs packet identifier (PID) filtering . . . .") and 4/7/06 AM Trial Tr. 110:10-14 (Ex. E) ("Q: Okay. So you'll agree that the EchoStar products do actually parse the MPEG stream? A: Yes. The Court said analyze, and there are PID filters in those products that examine the MPEG transport stream and do a parsing."). See also id. at 111:8-13; 4/6/06 PM Trial Tr. 145:3-16 (Ex. F); 4/10/06 AM Trial Tr. 38:2-8 (Ex. G); 4/11/06 AM Trial Tr. 100:6-23 (Ex. H); 3/31/06 PM Trial Tr. 29:18-24 (Ex. I). EchoStar's products analyze the data at various stages. PID filtering is one such analysis, which is used to identify the type of packets that should be processed. The broadcast data is in packets, each of which has a "packet identifier" or PID. The components that performs the PID filtering are actually named "parsers." See, e.g., Trial Ex. 478, pp. 1-6, 1-23, fig 1-7 (Ex. J). EchoStar did not eliminate these components.


..


----------



## Mainer_ayah

jacmyoung said:


> What part is new?


(which
EchoStar admitted at the September 4, 2008 hearing are owed)


----------



## jacmyoung

Mainer_ayah said:


> (which
> EchoStar admitted at the September 4, 2008 hearing are owed)


Thank you.


----------



## jacmyoung

http://www.marketwatch.com/news/sto...1B5-045A-48DF-9FC1-1DC60E6575F0}&siteid=yhoof

"However, on Wednesday, a judge in the U.S. District Court for the Eastern District of Texas said he needs a hearing to evaluate whether the satellite provider's software workaround does avoid infringement before he can decide if EchoStar is in contempt of the injunction. That hearing will be held in February."

I know I know, what does a reporter know, right?


----------



## jacmyoung

Greg Bimson said:


> Thanks.
> 
> Remember this: in order to state that infringement is no longer an issue, steps of the claims must not be met. Simply by stating that the index file, the pre-storage analysis, the media switch, etc., are no longer there does not make proof the step has not been met.


Do you still want the quote or are you arguing simply by removing them will not be enough proof?


----------



## CuriousMark

jacmyoung said:


> http://www.marketwatch.com/news/sto...1B5-045A-48DF-9FC1-1DC60E6575F0}&siteid=yhoof
> 
> "However, on Wednesday, a judge in the U.S. District Court for the Eastern District of Texas said he needs a hearing to evaluate whether the satellite provider's software workaround does avoid infringement before he can decide if EchoStar is in contempt of the injunction. That hearing will be held in February."
> 
> I know I know, what does a reporter know, right?


Sounds to me like he got it right. I know you say differently, and we will have to agree to disagree on that point.


----------



## scooper

Repeat after me - "PID Filtering in this manner is a basic part of Satellite tuner operation and is not part of the Tivo process, regardless of what they claim and is in their patent".


----------



## Mainer_ayah

jacmyoung said:


> http://www.marketwatch.com/news/sto...1B5-045A-48DF-9FC1-1DC60E6575F0}&siteid=yhoof
> 
> "However, on Wednesday, a judge in the U.S. District Court for the Eastern District of Texas said he needs a hearing to evaluate whether the satellite provider's software workaround does avoid infringement before he can decide if EchoStar is in contempt of the injunction. That hearing will be held in February."
> 
> I know I know, what does a reporter know, right?


It must be true because E* hasn't asked for a retraction!


----------



## Curtis52

scooper said:


> Repeat after me - "PID Filtering in this manner is a basic part of Satellite tuner operation and is not part of the Tivo process, regardless of what they claim and is in their patent".


It is simply part of providing a signal source. That is one of the steps in claim 31:


> 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;


----------



## Greg Bimson

jacmyoung said:


> Do you still want the quote or are you arguing simply by removing them will not be enough proof?


I don't need you to quote them if you believe removing them will not be enough proof.

I'll even show you the one paragraph from the response to the contempt motion that proves the point...


> Although software claims 31 and 61 do not require the Media Switch, they call for "a physical data source" that "accepts broadcast data from and input device, _parses_ video and audio data from said broadcast data, and temporarily stores said video and audio data." [&#8230;] Thus, all '389 patent claims required this analysis function.


So all that is needed is for the receiver to analyze. The paragraph continues:


> According to TiVo's infringement expert, EchoStar's accused DVRs satisfied the parsing - or analyzing - function by generating what was referred to as a "table" or "index" that kept track of where frames started and where audio and video components were stored.


But, looking back up at Curtis52's post, it was DISH/SATS own counsel that said the PID filtering ALSO met the analysis component of the step of the claim.

All of the analysis hasn't been removed.


----------



## Greg Bimson

scooper said:


> Repeat after me - "PID Filtering in this manner is a basic part of Satellite tuner operation and is not part of the Tivo process, regardless of what they claim and is in their patent".


Running an electrial charge through a wire is a basic part of the telegraph and is not part of the telephone process, regardless of what they claim and is in their patent.

Patents can include other patentable or fair-use processes or technologies, provided every claim in total would not be itself be in another patent or prior art.

Besides, TiVo builds a box and wouldn't include in their patent the ability to receive a signal as a claim?


----------



## dgordo

jacmyoung said:


> The reason this contempt motion was over was because the judge called for a new trial, that is done when a contempt cannot be found.


A bench trial is not a new trial, it is part of the contempt process.


----------



## CuriousMark

dgordo said:


> A bench trial is not a new trial, it is part of the contempt process.


Thank you. I agree and have been saying so for a few posts now.


----------



## James Long

jacmyoung said:


> The reason this contempt motion was over was because the judge called for a new trial, ...
> 
> The current contempt motion is not granted and is over.


No. When the motion for contempt is over the court ill make it clear. The court will either GRANT or DENY the order or DISMISS the motion if the parties agree or if the motion in moot. Until the motion is addressed in one of those ways by the court it remains pending.

And as noted by others it is not a new trial, it is just a bench trial continuing the current discussion. Apparently Judge Folsom didn't get enough information to decide in the September 4th hearing (despite the confidence of both parties that they each had enough proof).

BTW: Wasn't all of this discovery leading up to the February trial what Tivo wanted to do before the September 4th hearing?


----------



## dgordo

I'm surprised this didn't happen sooner. 
My guess is that his law clerk is sick of the case too and told him to hear all the evidence at once so they can get rid of this case.


----------



## jacmyoung

James Long said:


> No. When the motion for contempt is over the court ill make it clear. The court will either GRANT or DENY the order or DISMISS the motion if the parties agree or if the motion in moot. Until the motion is addressed in one of those ways by the court it remains pending.
> 
> And as noted by others it is not a new trial, it is just a bench trial continuing the current discussion. Apparently Judge Folsom didn't get enough information to decide in the September 4th hearing (despite the confidence of both parties that they each had enough proof).
> 
> BTW: Wasn't all of this discovery leading up to the February trial what Tivo wanted to do before the September 4th hearing?


Not regarding the "face of order" contempt argument, which has been the sole argument from TiVo up to 9/4. The "face of order" contempt needs no discovery nor a bench trial. TiVo said they would seek additional motion for discovery when the judge asked them on 9/4, what if I found no violation on the face, what did that leave you?

Now we are in that phase for that additional motion for discovery TiVo asked for, and we are in this phase because the judge did not found violation on the face.


----------



## James Long

Did Judge Folsom GRANT, DENY or DISMISS the motion?
If he didn't it is still pending.

Show me where the motion to find DISH in contempt was granted, denied or dismissed. It isn't enough to parrot the line that he didn't find contempt ... the motion isn't over when you say it is over or when I say it is over. It is over when Judge Folsom says it is over. So far, Judge Folsom has not made that ruling.


----------



## Mainer_ayah

James Long said:


> BTW: Wasn't all of this discovery leading up to the February trial what Tivo wanted to do before the September 4th hearing?


Yes it was. But happening this way, directed by the court, the judge is avoiding all the nasty bickering over what is discoverable. Basically, what he is saying is "give each other everything you have on this matter".


----------



## James Long

Mainer_ayah said:


> Yes it was. But happening this way, directed by the court, the judge is avoiding all the nasty bickering over what is discoverable. Basically, what he is saying is "give each other everything you have on this matter".


In my opinion, the discovery ordered is too vague ... but I'm sure it won't prolong the case any longer than need be to get it right. Perhaps another year in court?


----------



## Mainer_ayah

jacmyoung said:


> Now we are in that phase for that additional motion for discovery TiVo asked for, and we are in this phase because the judge did not found violation on the face.


No, we are here because the judge decided to postpone taking action on TiVos motion. He has done nothing with it as yet. It is still an open matter. Did you read his order yesterday? 
"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 hearing on this matter in the form of a Bench Trial"
How can you hold a hearing on a matter that has gone away?


----------



## jacmyoung

dgordo said:


> A bench trial is not a new trial, it is part of the contempt process.


It is if you paid attention to what the judge asked TiVo's lawyer on 9/4. During the TiVo's damages presentation, the judge asked, what if I did not find violation on the face, and you were asked to seek a new action either in the DE court or in my court, what did that leave you?

He posted a likely scenario for the TiVo attorney to consider and respond to, which he did not get much response.

The latest order by the judge is the realization of the above scenario, and the judge decided to have the "new action" done in his court instead of asking TiVo to go to the DE court.

With that in mind, let's look at the phrase, "seek a new action *either* in the DE court *or* in my court", by that the new action has to be an independent action, not part of the comtempt proceeding, because it could have been in the DE court too, and a continued action as a part of the contempt proceeding can not possibly be in the DE court.

This new order spelled out the "new action" the judge said could happen on 9/4, by saying it could happen either in the DE court, or in his court, he was saying it would be a separate proceeding from the current contempt proceeding--a "new action".

Only that he ended up deciding he would be the one to preside over this new action, rather let the DE court handle it.


----------



## James Long

jacmyoung said:


> It is if you paid attention to what the judge asked TiVo's lawyer on 9/4.


If you would have paid attention to what the judge wrote yesterday ... as pointed out by Mainer_ayah:


Mainer_ayah 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 hearing on this matter in the form of a Bench Trial"
> How can you hold a hearing on a matter that has gone away?


An additional hearing on the motion before the court.


----------



## CuriousMark

James Long said:


> BTW: Wasn't all of this discovery leading up to the February trial what Tivo wanted to do before the September 4th hearing?


Yes it was. That discovery was for the workaround and DOE. You could look at that as TiVo's request in a sense and that would explain why the judge set the February meet up the way he did without forcing TiVo to amend their complaint.


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## Mainer_ayah

James Long said:


> Perhaps another year in court?


Or perhaps when Charlie realizes this could cost him upwards of 600 million more if he doesn't find a way to hammer out an agreement with Tivo, we might see the end of this before feb.


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## dgordo

James Long said:


> If you would have paid attention to what the judge wrote yesterday ... as pointed out by Mainer_ayah:
> An additional hearing on the motion before the court.


Exactly.


----------



## Mainer_ayah

jacmyoung said:


> It is if you paid attention to what the judge asked TiVo's lawyer on 9/4. During the TiVo's damages presentation, the judge asked, what if I did not find violation on the face, and you were asked to seek a new action either in the DE court or in my court, what did that leave you?
> 
> He posted a likely scenario for the TiVo attorney to consider and respond to, which he did not get much response.
> 
> The latest order by the judge is the realization of the above scenario, and the judge decided to have the "new action" done in his court instead of asking TiVo to go to the DE court.
> 
> With that in mind, let's look at the phrase, "seek a new action *either* in the DE court *or* in my court", by that the new action has to be an independent action, not part of the comtempt proceeding, because it could have been in the DE court too, and a continued action as a part of the contempt proceeding can not possibly be in the DE court.
> 
> This new order spelled out the "new action" the judge said could happen on 9/4, by saying it could happen either in the DE court, or in his court, he was saying it would be a separate proceeding from the current contempt proceeding--a "new action".
> 
> Only that he ended up deciding he would be the one to preside over this new action, rather let the DE court handle it.


So tell me, how long have you been a personal confidant of Judge Folsom's to the point where he shares with you his thoughts regarding what ifs becoming reality. You are really reaching now.


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## CuriousMark

jacmyoung said:


> Not regarding the "face of order" contempt argument, which has been the sole argument from TiVo up to 9/4. The "face of order" contempt needs no discovery nor a bench trial.


Unless the judge chose to agree with Dish's contention that any finding of contempt can only be done if first there is a finding of infringement per KSM. This is what you have been arguing for a long time now. It is happening as you have argued for it. So why deny at this point that what is happening is as you suggested and move onto something new and different? This process is the following of the KSM guidelines in order to prove contempt on the face of the injunction.


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## Bidderman9

Just curious, why does TiVo have the first disclosure due date? Is it because the files the original contempt motion?


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## Greg Bimson

> Not regarding the "face of order" contempt argument, which has been the sole argument from TiVo up to 9/4.


It wasn't the only contempt argument. Once DISH/SATS presented their defense of contempt on the basis of non-infringement due to the modification, TiVo said the court could find contempt on the modification as they believe it still infringes. That was back on 11 July. It was reiterated during the damages portion of the hearing on 4 September by TiVo.


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## CuriousMark

Bidderman9 said:


> Just curious, why does TiVo have the first disclosure due date? Is it because the files the original contempt motion?


Yes, TiVo is the mover in this contempt action.


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## dgordo

Bidderman9 said:


> Just curious, why does TiVo have the first disclosure due date? Is it because the files the original contempt motion?


yes, the party who has submitted the motion goes first.


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## Mainer_ayah

I think Judge Folsom has brilliantly crafted a way to either force a settlement, or failing that retry the case and make it "whole" again when Dish can not show that their receivers do not infringe Tivos claims either literally or under the doctrine of equivalents. If and when it lands at the CAFC it will this time be completely upheld.


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## jacmyoung

Mainer_ayah said:


> Yes it was. But happening this way, directed by the court, the judge is avoiding all the nasty bickering over what is discoverable. Basically, what he is saying is "give each other everything you have on this matter".


The problem is, by the difinition of a bench trial, it will be much more lengthy than a summary contempt proceeding, because it will follow a natural course of a trial, while maybe less time consuming than a jury trial, still must follow certain path.

As an example, during the bench trial, more extensive discoveries will be needed, expert testimonials will be needed, and during the trial parties can motion and counter motion, after the trial, when a ruling is finally out (assume another infringement verdict, for argument sake), parties will then be asked to argue on the detials of the final judgement, which may include damages and an injunction, and the wording of it all. The final judgment can then be produced, and once that happens, parties will be able to appeal, it will take another delay for the appeals court to do their work, and the decision will then be handed down (for argument sake the infringement and injucntion are again upheld), then another hearing may then be arranged to give TiVo the chance to seek a contempt motion, if they see reason to do so, than parties will motion in response to prepare to argue in yet another hearing why there should or should not be a contempt, and yet again for argument sake a contempt is found, E* will be able to appeal still...Please do not tell me Charlie can not go through it again, he will certainly have the legal right to go through it again.

James you said at least a year, I say two years or more will not surprise me.

How can the judge possibly put TiVo through such a torture again? He did so only because TiVo failed to prove contempt on the face. If there is any validity in TiVo's "on the face" contempt charge, there is no way he could do this to TiVo, and IMHO he would have abused his discretion by forcing TiVo to go through it.


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## James Long

You are forgetting the contempt motion STILL ON THE TABLE.

If Judge Folsom decides in February that DISH should be held in contempt DISH can be held in contempt immediately. No need for additional delay.


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## jacmyoung

CuriousMark said:


> Unless the judge chose to agree with Dish's contention that any finding of contempt can only be done if first there is a finding of infringement per KSM. This is what you have been arguing for a long time now. It is happening as you have argued for it. So why deny at this point that what is happening is as you suggested and move onto something new and different? This process is the following of the KSM guidelines in order to prove contempt on the face of the injunction.


And the KSM guideline says (as well said in all the other similar cases) to again find whether a design around is an infringement or not, an independent proceeding will be needed, which must be a separate action than the old one.


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## jacmyoung

James Long said:


> You are forgetting the contempt motion STILL ON THE TABLE.
> 
> If Judge Folsom decides in February that DISH should be held in contempt DISH can be held in contempt immediately. No need for additional delay.


Judge Folsom will only decide in his bench trial whether the new design around is an infringement or not, nothing else.


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## James Long

jacmyoung said:


> Judge Folsom will only decide in his bench trial whether the new design around is an infringement or not, nothing else.


And you are saying that the court CANNOT find DISH in contempt?

The question is not your opinion of if DISH will be found in contempt, the kind of opinion we've read over and over again where you say the court cannot do something that is obviously within their power but you believe the court won't do. The question is on the power of the court.

Are you saying the court does not have the power to find DISH in contempt?


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## Greg Bimson

jacmyoung said:


> And the KSM guideline says (as well said in all the other similar cases) to again find whether a design around is an infringement or not, an independent proceeding will be needed, which must be a separate action than the old one.


I said before if TiVo doesn't receive the "violation on its face" ruling, then this case becomes extraordinary. The decision isn't even rendered and the case has become extraordinary, with a bench trial to determine continuing infringement.

Although it appears KSM is in play, where is the section about "colorable difference"?


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## jacmyoung

And I can't believe I forgot the most important standard which was one of the first ones I used in this year-long debate

A summary contempt proceeding is not the venue to find infringement, only colorable difference. Infringement can only be tried in an independent trial.

The bench trial in the order, the sole purpose of it is to determine the issue of infringement, as such it cannot possibly be a part of the contempt proceeding, the law does not allow the court to make a decision of infringement in a contempt proceeding.

This contempt proceeding is over.


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## dgordo

There isn't a sole purpose for a bench trial.


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## Curtis52

The judge can rule that there is only a colorable difference after hearing the expert testimony.


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## jacmyoung

Greg Bimson said:


> I said before if TiVo doesn't receive the "violation on its face" ruling, then this case becomes extraordinary. The decision isn't even rendered and the case has become extraordinary, with a bench trial to determine continuing infringement.
> 
> Although it appears KSM is in play, where is the section about "colorable difference"?


No this case is not special, the standards have always been, a contempt proceeding may only determine colorable difference of the design around, not to rule if it is an infringement or not.

If mere colorable, the winning patentee should not be asked to go through another trial, rather nail the infringer right there.

But if more than colorable, the patentee is out of luck, even if the design around can be later found to infringe, there cannot be a contempt. The patentee will be forced to seek a new trial, and to try to again find the design around still is an infringement.

Your qestion of course is valid, if the decision of colorable difference is not rendered, how can I say it is rendered? I am not saying the judge had rendered a decision on that, rather that he side-stepped it, because no standards had ever required a decision of colorable difference must be rendered and a no contempt must always be given.

What the standards say though is, if a contempt argument is successful, the winning patentee shall not be relegated to another trial, because the contempt proceeding is designed to avoid such trials. Only if the patentee fails in the proof of a contempt, so should he be relegated to a new trial.

By the fact the judge ordered a new trial, I am saying TiVo had failed in the attempt to find a "face of order" contempt, and is now relegated to a new bench trial.


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## jacmyoung

dgordo said:


> There isn't a sole purpose for a bench trial.


Even if so, since it is in part to determine infringement, it cannot be a part of the contempt proceeding, because a contempt proceeding may not detemine infringement, only colorable difference.


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## Greg Bimson

> No this case is not special, the standards have always been, a contempt proceeding may only determine colorable difference of the design around, not to rule if it is an infringement or not.


Did you forget about KSM already? The KSM standard is that for a violation of an injunction against infringements by making, using or selling a modified device, it must be found as an infringement.


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## CuriousMark

This is a bench trial of limited scope. I believe the judge is within his discretion to do this given the complexity of the matters involved. He is not subjecting Dish to a full new trial from scratch with full discovery of everything. That has been done before and all the information from it is available to both parties and the judge. If the judge wants to consider this hearing to be a part of a contempt action, I am sure he is within his discretion to do so.


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## jacmyoung

Curtis52 said:


> The judge can rule that there is only a colorable difference after hearing the expert testimony.


A trial is not designed to determine colorable difference, but infringement. A contempt proceeding is to determine colorable difference.

Though I will not say no to the above scenario, but your point is moot, because after the hearing, the judge will be able to rule on infringement, it will be a much more conclusive ruling than a colorable difference ruling. It will be uncesessary to even rule on colorable difference.

If the new design around is infringing, a judgment will be made against E* for additional damages from 10/06 up to the time of the new judgment, and a new injunction if TiVo asks for it, and if they are upheld on appeal (if E* does appeal), at that point the old case along with its contempt proceeding will be moot. TiVo will be made whole because E* will have to pay all the damages from 10/06 up to the time of the new judgment, plus interest all the way to the time of actual payment. Additionally, if E* is again found to have willfully infringed, this time around there will be a better chance to get treble damage and attorney fees.

But if the ruling is no infringement, and the decision is upheld on appeal (if TiVo appeals), the judge can then finish the damages part left over from the old case, to cover a period from 10/06 to 05/07, when E* still was infringing during the stay of the injunction.

In either case, there will be no use to go back to the old case anymore, other than to use its evidence to help 
calculate the damages.


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## jacmyoung

CuriousMark said:


> This is a bench trial of limited scope. I believe the judge is within his discretion to do this given the complexity of the matters involved. He is not subjecting Dish to a full new trial from scratch with full discovery of everything. That has been done before and all the information from it is available to both parties and the judge. If the judge wants to consider this hearing to be a part of a contempt action, I am sure he is within his discretion to do so.


Nothing has been done before for the new design around in terms of its infringement issue, and this new bench trial is a full trial to adjudicate the new design infringement issue, just like the old jury trial was to adjudicate the old design's infringement issue.

Again a contempt proceeding cannot possibly be used to determine infringement, this is the law, trust me on that one.


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## dgordo

CuriousMark said:


> This is a bench trial of limited scope. I believe the judge is within his discretion to do this given the complexity of the matters involved. He is not subjecting Dish to a full new trial from scratch with full discovery of everything. That has been done before and all the information from it is available to both parties and the judge. If the judge wants to consider this hearing to be a part of a contempt action, I am sure he is within his discretion to do so.


I agree with this but I guess we will find out when his decision is appealed.


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## dgordo

jacmyoung said:


> Again a contempt proceeding cannot possibly be used to determine infringement, this is the law, trust me on that one.


But a contempt proceeding is used to determine if infringement continues to occur. That seems to be the issue here.



> 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 hearing on this matter in the form of a Bench Trial on February 17-18, 2009 to determine whether EchoStar's DP-501, DP-508, DP-510, DP-522, DP-625, DP-721, DP-921, and DP-942 receivers *continue to infringe* claims 1, 5, 21, 23, 32, 36, 52, 31, and 61 of U.S. Patent No. 6,233,389, either literally or under the doctrine of equivalents.


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## Curtis52

dgordo said:


> But a contempt proceeding is used to determine if infringement continues to occur. That seems to be the issue here.


and if the infringement is by reason of there only being a colorable difference, contempt can be found.


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## James Long

jacmyoung said:


> This contempt proceeding is over.


Sidestepping the direct question out to you and stating an opinion.
Are you stating the above as fact or as opinion?


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## Bidderman9

Choose your poison...

"While the judge's decision can be interpreted as part of a methodical process to prevent another appeal from Dish, it could also be argued that scheduling a hearing is a "good indication he thinks there is some validity to (Dish's) claim," Mitchell said."

http://biz.yahoo.com/ap/081121/tivo_mover.html?.v=1


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## jacmyoung

James Long said:


> Sidestepping the direct question out to you and stating an opinion.
> Are you stating the above as fact or as opinion?


Of course it is my opinion. Most folks here have always disagreed with my opinions, and continued to wait for things that have yet to come to prove their opinions


----------



## Greg Bimson

jacmyoung said:


> Of course it is my opinion. Most folks here have always disagreed with my opinions, and continued to wait for things that have yet to come to prove their opinions





> Before the Court is TiVo's Motion to Hold EchoStar In Contempt For Violation Of This Court's Permanent Injunction. Dkt. No. 832.


Then why hasn't any ruling been issued? A single ruling. Docket 832 is the contempt motion. There is a damages motion which hasn't been ruled upon, either. Speculation says part of your opinion may be correct, but it is only speculation, not anything resembling proof.

I do believe Judge Folsom will render one decision when everything is said and done, to make it easier for the Court of Appeals, and himself if the case ends up remanded from the Court of Appeals.


----------



## jacmyoung

James Long said:


> If you would have paid attention to what the judge wrote yesterday ... as pointed out by Mainer_ayah:
> An additional hearing on the motion before the court.


From the face of the order, one can of course argue it appears the judge is saying this bench trial will be a part of the contempt proceeding, but it must not have to be interpreted this way. One can say that the judge simply stated two facts, first, in front of him there was this motion, and second he decided to order an additional trial.

But more importantly, even if the judge meant for this trial to be part of the contempt motion, with the purpose of finding a contempt or not, the law is very clear if true, he will have abused his discretion.

While he can ignore the law, but like the other poster said, it can be ground for appeal later. As an example, if he finds the new design around an infringement, and says because of that E* is in contempt, E* can easily appeal to have such *contempt decision* invalidated, on procedural ground.

And there are actually a few cases I read in fact such did happen and *the ruling of contempt* was overturned and the appeals court asked the lower court to again initiate a new trial, separate from the contempt motion, to settle the design around infringement issue. Now it is not to say the *infringement decision* itself must also be overturned, the infringement decision can still be valid because a full bench trial did lead to such decision, but it just cannot be used to rule a contempt.

Again, an infringement decision (if this is the case) from the upcoming trial will not be able to be used to find a contempt, that is why I said the contempt issue is over.

The infringement decision however, can be used to produce a final judgment, which as I explained can include damages, a new injunction, treble and attorney fees. And because it is a full trial, the procedure is then to have TiVo again file a motion for contempt based on the new injunction, and go from there.


----------



## Curtis52

It isn't proper to find more-than-colorable infringement at a contempt hearing because it is usually a summary proceeding. If there needs to be testimony etc. there needs to be a trial. If it turns out there is infringement that is only colorable at that trial, then contempt can be found. Non colorable infringement can't be found at a contempt hearing but the reverse is not true. Contempt can be found at a trial if the infringement turns out to be only colorable. It's just overkill. I think it may also be possible to find contempt at a trial if the change is more than colorable but I'm not sure.


> "Under the above standard for determining a colorable difference, a party may seek relief by way of contempt proceedings only if the issues are appropriate for summary disposition. If substantial issues need to be litigated, particularly if expert and other testimony subject to cross-examination would be helpful or necessary, the court may properly require a supplemental or new complaint. The question to be answered under such standard is essentially a procedural one. Must substantial new issues be litigated to determine infringement?" KSM


----------



## CuriousMark

Curtis52 said:


> It isn't proper to find more-than-colorable infringement at a contempt hearing because it is usually a summary proceeding. If there needs to be testimony etc. there needs to be a trial. If it turns out there is infringement that is only colorable at that trial, then contempt can be found. Non colorable infringement can't be found at a contempt hearing but the reverse is not true. Contempt can be found at a trial if the infringement turns out to be only colorable. It's just overkill.


Is it even possible for there to be infringement that is also more than colorably different? That seems self contradictory.


----------



## dgordo

jacmyoung said:


> From the face of the order, one can of course argue it appears the judge is saying this.


What else do we have to go by other than the judge's words?



jacmyoung said:


> But more importantly, even if the judge meant for this trial to be part of the contempt motion, with the purpose of finding a contempt or not, the law is very clear if true, he will have abused his discretion.


Please cite your source for this, that a judge cannot use a bench trial to find continuing infringement, ie contempt.


----------



## bartendress

phrelin said:


> A bench trial in mid-February on whether the receivers continue to infringe. That allows enough time for another 1,500 posts.


You may need to raise that to 3000 at this rate. These threads should be retitled "Semantics 101". I consider watching these DISH vs. Tivo lawsuit threads my 'dbstalk.com guilty pleasure'...


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## phrelin

bartendress said:


> You may need to raise that to 3000 at this rate. These threads should be retitled "Semantics 101". I consider watching these DISH vs. Tivo lawsuit threads my 'dbstalk.com guilty pleasure'...


Me too.

At the current rate of about 70 per day, they could post 6,230 posts before the trial starts. Even if one allows for a drop during Thanksgiving and Christmas, 6,000 posts is a potentially viable target. I suppose we could start a pool, like a football pool, for the number of posts at the end of each week.


----------



## jacmyoung

After some more reading, I need to correct what I said about if the new trial produces a verdict of infringement, such verdict may not be used to find E* in contempt of the initial injunction. While the courts are clear that a trial to determine design around infringement issue, is independent of a contempt proceeding, I found no evidence the verdict from the independent trial cannot be used to rule the defendant in contempt of the prior injunction.

Except as I said it would be a moot point. Because the contempt decision TiVo is seeking now, had it been successful, would have covered additional damages up to 04/08, but the new trial, if ends in TiVo’s favor, will be able to produce a judgment that will cover the additional damages up to the time of that judgment, which by our estimate is likely in mid-09, another full year of damages added.

What the courts disallowed was to make a decision whether the design around is an infringement or not, in a contempt proceeding. The contempt proceeding can only determine colorable difference issue, not beyond. If only colorable or the same, a contempt, if more than colorable, no contempt, and the process must stop there.

The court can then initiate a new action to determine if the more-than-colorable design around is still an infringement or not. At that point however, the previous contempt proceeding usually has passed.

If an infringement can again be found by the design around, it will be disadvantageous for TiVo to go back to the old contempt motion which only covered the prior period up to 04/08, therefore the old contempt motion will be moot.

A new judgment will have easily covered the whole period the old contempt motion was to cover, plus the new period up to the time of the new judgment, and it will be wise to ask for a new injunction then to cover the period from that point on. The benefit of a new injunction is it will then be able to cover additional DVRs beyond the 4 million DVRs in the first injunction because the new trial will cover any newly placed same-model DVRs.

To put it this way, while my statements may not all be correct, in all practicality, they all point to the same end result. The old motion is practically over, TiVo will not want to use it anyway if they are successful at the new trial. Of course if TiVo fails, it will also end this thing until they find something else to fight over

Another discovery is, some of us had feared because neither party actually asked for this specific bench trial Judge Folsom just ordered, the judge might have stepped out of his bound, when in fact after some reading, it is not so.

Judge Folsom does have wide latitude. If there is a clear dispute needs to be resolved and will not go away, and if there is the only way to resolve it, the judge can order such proceeding without either party first asking for it.

Of course with that said, it seems true that from the judge’s point of view, he saw this bench trial to determine the design around infringement issue as the only way to solve the on-going dispute, that implies that any prior attempts by TiVo had failed.


----------



## jacmyoung

Curtis52 said:


> It isn't proper to find more-than-colorable infringement at a contempt hearing because it is usually a summary proceeding. If there needs to be testimony etc. there needs to be a trial. If it turns out there is infringement that is only colorable at that trial, then contempt can be found. Non colorable infringement can't be found at a contempt hearing but the reverse is not true. Contempt can be found at a trial if the infringement turns out to be only colorable. It's just overkill. I think it may also be possible to find contempt at a trial if the change is more than colorable but I'm not sure.


See my above post which corrected myself and agreed with you


----------



## jacmyoung

dgordo said:


> What else do we have to go by other than the judge's words?


Want to say the same about TiVo's "face of order" argument?



> Please cite your source for this, that a judge cannot use a bench trial to find continuing infringement, ie contempt.


I never said cannot find infringement, and now I have also corrected my statement about not able to find a contempt, see my post above.


----------



## Greg Bimson

jacmyoung said:


> The contempt proceeding can only determine colorable difference issue, not beyond. If only colorable or the same, a contempt, if more than colorable, no contempt, and the process must stop there.


From KSM:


> Under the standard we adopt, a judgment of contempt against an enjoined party for violation of an injunction against patent infringement by the making, using or selling of a modified device may not be upheld without a finding that the modified device falls within the admitted or adjudicated scope of the claims and is, therefore, an infringement. KSM


----------



## jacmyoung

The above two statements are not mutually exclusive at all, and my statement has many court citations for support too, I just do not care to quote them all over again.

As I said if the same or only colorable, infringement is proven, therefore a judgment of contempt can be held.

If more than colorable, the infringement is not proven, or to say "the modified device falls within the admitted or adjudicated scope of the claims" is *not* proven, therefore a judgment of contempt can not be held.

And the contempt proceeding will end there.

The only debate is, whether by the judge's new order, can one interpret it as the contempt proceeding had ended, or it is still on going. We can agree to disagree, what is true is the new bench trial is independent from the contempt proceeding, not part of it, because the purpose of the bench trial is to determine whether the design around is an infringement or not, and the courts had clearly said a summary contempt proceeding was not the correct venue to determine whether the design around is an infringement or not.


----------



## Greg Bimson

jacmyoung said:


> We can agree to disagree, what is true is the new bench trial is independent from the contempt proceeding, not part of it...





> 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 hearing on this matter in the form of a Bench Trial* on February 17-18, 2009 to determine whether EchoStar's DP-501, DP-508, DP-510, DP-522, DP-625, DP-721, DP-921, and DP-942 receivers continue to infringe claims 1, 5, 21, 23, 32, 36, 52, 31, and 61 of U.S. Patent No. 6,233,389, either literally or under the doctrine of equivalents.


But it is somehow an opinion that this hearing, a bench trial, has nothing to do with the contempt proceeding, but it is there in black and white...


----------



## bartendress

phrelin said:


> Me too.
> 
> At the current rate of about 70 per day, they could post 6,230 posts before the trial starts. Even if one allows for a drop during Thanksgiving and Christmas, 6,000 posts is a potentially viable target. I suppose we could start a pool, like a football pool, for the number of posts at the end of each week.


I'm not sure what we could set for our wager, but I'd be willing to commit to a guesstimate of 6500 posts by the trial date.

The whole thing is so entertaining for me because you see arguments along the lines of, "Well, when you review _Cagney v. Lacey_ you will see that the ruling spelled out that in a 10MPH headwind, when your neighbor farts within 3 feet or less of your location, and said headwind flows from the southeast... said headwind is only colorably different from that when your neighbor farts within 3.129354 feet and the wind is coming from the south-southeast."

At least we now know where all the excess inventory of law school grads go to roost... dbstalk.com! LOL


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## jacmyoung

Greg Bimson said:


> But it is somehow an opinion that this hearing, a bench trial, has nothing to do with the contempt proceeding, but it is there in black and white...


Yes that is what I am saying, and you do not have to agree.

Because this motion for contempt is an "on the face contempt" which does not require this trial, therefore the purpose of this trial is not to prove or disprove "on the face contempt". The only purpose of this trial, as stated by the order, is to determine if the named DVRs still infringe on TiVo's patent or not, no more, no less.

Just like the only purpose of the original jury trial was to determine if that 4 million DVRs infringed on the TiVo's patent or not.

Since this trial does not serve the purpose of the above motion for contempt, they are independent of each other.

In my view, the only way for you to prove this trial is a part of the "on the face contempt" motion is if after the trial, the judge rules an infringement, and then says, as a result, the TiVo's such "on the face contempt" is granted.

Let's wait to find out.

However I just want to point out one thing, a very hotly debated issue between you and me was whether the Joe Blow's already adjudicated DVR must be re-adjudicated after the design around, you said no, once adjudicated always adjudicated. You lost that one, the judge said he needed to re-adjudicate them, and both parties agreed.

I am confident your "face of contempt" argument is also lost, but you still insist the judge has not ruled on that yet, so I am willing to wait to prove it to you. Just remember, if this "on the face contempt" motion is never granted in the future, you will have lost this one too, despite the fact you believe it is also black and white.

It can be as black and white as you like to see it, but once disproven it will be just a big shades of gray


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## Greg Bimson

jacmyoung said:


> In my view, the only way for you to prove this trial is a part of the "on the face contempt" motion is if after the trial, the judge rules an infringement, and then says, as a result, the TiVo's such "on the face contempt" is granted.
> 
> Let's wait to find out.


Okay, with this one explanation:

Judge Folsom is trying to determine continuing infringement. DISH/SATS defense of this whole ordeal is simply that they do not infringe any longer. TiVo's response is that the receivers still infringe, and they've asked Judge Folsom to find that the modifications still infringe. TiVo leveled that charge in their last brief on the matter and again while addressing damages.

So there is more than just a violation of a contempt order "on its face" waiting for Judge Folsom to rule upon.


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## James Long

jacmyoung said:


> From the face of the order, one can of course argue it appears the judge is saying this bench trial will be a part of the contempt proceeding, but it must not have to be interpreted this way.


I suppose if you fold his words into origami they would look entirely different. You never were a fan of plain text reading.



> But more importantly, even if the judge meant for this trial to be part of the contempt motion, with the purpose of finding a contempt or not, the law is very clear if true, he will have abused his discretion.


And of course if the Judge doesn't follow your opinion he is corrupt.  
How many years of law school have you had? How many years practicing law? How many years appointed as a judge? When did you become the supreme legal expert?

I think Judge Folsom knows what he is doing. I don't believe any man is above making an error, but given the choice of believing Judge Folsom's plain text or your origami rendering ... I'll go with the guy who graduated law school. Nothing personal.



Greg Bimson said:


> But it is somehow an opinion that this hearing, a bench trial, has nothing to do with the contempt proceeding, but it is there in black and white...


Sad, isn't it.



bartendress said:


> I'm not sure what we could set for our wager, but I'd be willing to commit to a guesstimate of 6500 posts by the trial date.


I'll guess somewhat lower ... but I have an inside edge. When the thread ceases to be productive and turns redundant again it will be closed.

Some may feel we've already reached that point. 



jacmyoung said:


> Because this motion for contempt is an "on the face contempt" which does not require this trial, therefore the purpose of this trial is not to prove or disprove "on the face contempt". The only purpose of this trial, as stated by the order, is to determine if the named DVRs still infringe on TiVo's patent or not, no more, no less.


Here is an "a ha" moment for you. When we were discussing the September 4th hearing you were adamant in claiming that the judge MUST look at infringement and could NOT find DISH in contempt "on the face" unless they were still infringing. Following your logic, the first and most important step would be to decide whether or not DISH continues to infringe. Obviously Judge Folsom did not have enough evidence/testimony/information to make that decision based on the filings leading up to September 4th ... he has now scheduled a trial so he will have enough information to make that decision. Once the infringement decision is made the contempt decision is easy.

Or are you now claiming that your arguments regarding September 4th were incorrect?


----------



## peak_reception

dgordo said:


> What else do we have to go by other than the judge's words?


 Ah yes, the most frustrating aspect of this whole affair. Most of us felt that the Judge's words, his explicit order in his Final and Permanent Injunction, were perfectly clear too. Shut down DVR functionality in the Infringing Products. DISH didn't (unless one buys the "Jedi mind trick") and yet here we are again without resolution moving into even more complications next year. So it could well be that jac is right on the contempt issue (on prima facie compliance) being a dead letter now, a de facto no-contempt without the Judge admitting as much. Remember, the Judge is probably mad about all this. He didn't want to hand DISH a big win so he verbally folded 9-4 contempt into the upcoming bench trial where it doesn't seem to fit.

Also, some words are created more equally than others (with a nod to George Orwell). These latest words from the Judge were in the form of an order, not a ruling. The difference? A ruling is stitched from Law. Judge Folsom decided no law in his latest order and he certainly didn't decide 9-4. The order still carries his authority of course but the part about contempt carrying over to next year is a red herring. The de facto, unissued ruling from 9-4 is Not in Contempt... for now. "For now" will be forgotten later as the meatier infringement issues of the design-around are ruled on which will make prima facie contempt a mere footnote.


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## peak_reception

James Long said:


> I suppose if you fold his words into origami they would look entirely different. You never were a fan of plain text reading.


 Well I for one am a Big Fan of plain text, especially from a judge, but DISH folded the Injunction into origami (certainly the part about shutting down DVR functionality) without even a hint of reprimand from Judge Folsom. That fact makes it kind of hard to interpret the Judge too literally any more, at least for me.


----------



## Greg Bimson

Well, I do believe some of this is intended to be a shot-across-the-bow. Other than one person that has completely "origamied" a plain text order, many here believe that the changes in the modification weren't enough, that infringement still exists.

I don't recall at anytime during the 4 September hearing, other than stating they obtained outside counsel and have expert affadavits, that infringement no longer exists. One can figure out the defense by the amount of "screaming" being done on certain points. DISH/SATS isn't screaming they no longer infringe (although they've pointed it out), but they certainly are screaming that KSM is the case law which should be applied.

It is nice to see that Judge Folsom simply didn't take DISH/SATS word that there isn't infringement in the modification.


----------



## peak_reception

bartendress said:


> I'm not sure what we could set for our wager, but I'd be willing to commit to a guesstimate of 6500 posts by the trial date.
> 
> The whole thing is so entertaining for me because you see arguments along the lines of, "Well, when you review _Cagney v. Lacey_ you will see that the ruling spelled out that in a 10MPH headwind, when your neighbor farts within 3 feet or less of your location, and said headwind flows from the southeast... said headwind is only colorably different from that when your neighbor farts within 3.129354 feet and the wind is coming from the south-southeast."


You've miscalculated windspeed, direction, and proximity of the discharge. Defnitely a newbie here. :lol:


----------



## peak_reception

James Long said:


> Once the infringement decision is made the contempt decision is easy.


 Once infringement is decided then prima facie contempt is a footnote. 9-4 was a BIG WASTE OF TIME all along, as Curtis said. TiVo counsel is to blame.


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## jacmyoung

peak_reception said:


> Well I for one am a Big Fan of plain text, especially from a judge, but DISH folded the Injunction into origami (certainly the part about shutting down DVR functionality) without even a hint of reprimand from Judge Folsom. That fact makes it kind of hard to interpret the Judge too literally any more, at least for me.


Bingo!

Don't blame me for pointing out the so called "black and white" judge's orders are actually a large pile of gray shades


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## Ergan's Toupe

peak_reception said:


> Once infringement is decided then prima facie contempt is a footnote. 9-4 was a BIG WASTE OF TIME all along, as Curtis said. TiVo counsel is to blame.


What makes you say that? IIRC Didn't Chu try to bring it up and was shot down by Folsom?


----------



## Ergan's Toupe

Greg Bimson said:


> I don't recall at anytime during the 4 September hearing, other than stating they obtained outside counsel and have expert affadavits, that infringement no longer exists. .


I think we all agreed that the boxes still parse. I also think if that's true, the boxes still infringe.


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## jacmyoung

No matter how Greg you try to massage it, the fact of the matter is the one and the only argument TiVo had been making is that the adjudicated products needed not re-adjudicated. Yes that is the *sole* argument for TiVo to prove their on the face contempt motion.

And by the judge's new order, that argument has been defeated! And TiVo has admitted the defeat by accepting the new trial, only that TiVo is trying to get you to believe TiVo had always wanted to re-adjudicate those already-adjudicated products. No they did not! Accept the loss and move on.

Did TiVo lie for saying things that they want which they did not want? I wouldn't say so, they just lost the argument.

Did E* lie when they said their old design did not infringe? I wouldn't say so, E* just lost that argument, that is all.

TiVo lost this one, please move on.


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## peak_reception

Ergan's Toupe;1894901 said:


> What makes you say that? IIRC Didn't Chu try to bring it up and was shot down by Folsom?


 I'll need to get back to you on this. Gotta go now for the whole day.


----------



## jacmyoung

peak_reception said:


> I'll need to get back to you on this. Gotta go now for the whole day.


Let me try it.

If by saying Mr. Chu tried it on 9/4 you meant he wanted a discovery for the purpose of finding the desgin around infringing, yes he did ask for that, but not on 9/4, rather on 5/30, and was rightfully shut down by the judge, at E*'s request.

Because the contempt proceeding cannot determine if the design around is infringing or not, only if it is mere colorable or not. Mr. Chu asked for the wrong kind of discovery.

Was it his fault then? Yes and no. One might say from a technical standpoint he made a mistake, but from a strategic standpoint, TiVo did not want to waste all the time to go through any discovery, they just wanted to find the quickest way to get E* to give in, by arguing "on the face contempt", which if successful, needed no discovery at all, just by the "face" of it. Only that TiVo was facing this Charlie personality that happened to be unrelenting.

Now that TiVo's strategy did not work, we are back to the right way of doing things, with a new discovery to determine whether the design around is still an infringement or not, but not in the contempt proceeding (the judge already shut it down), rather in a new trial.

Another reason why this trial is not part of the contempt motion, rather an independent proceeding.


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## jacmyoung

Now to try to ease people's concern about the judge's lack of ability to follow his own "black and white" orders, there is in fact a good explanation. I have tried to say it before but no one listened, maybe now it makes more sense to people.

The Circuit Court had said they give the District Court judges "wide latitude" to frame their orders. The purpose of the order, in a civil dispute, is to coax the parties to settle, rather continue to rely on the court.

Most times such plan works well. Take for example the Blackberry case, the judge did not even have to issue an injunction, by just threatening one, it coaxed Rim to settle.

But, if such attempt fails, and the parties continue to rely on the court to settle further dispute, the higher court said in determining whether the infringer violated the order or not, it is not the "black and white" order that is the issue, it is the law that the court must find if the infringer is still violating or not.

Even if it may *appear* to some, or to the judge, that the infringer seemed to have violated the order, a judge (and at least a good judge) may not be vindictive in making his ruling, but base his decision solely on the law.

I had confidence Judge Folsom was one of those good judges and he in fact is, knows what he can and cannot do.


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## Greg Bimson

Except that he ordered a hearing, a bench trial, to determine infringement in a contempt proceeding.


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## jacmyoung

Greg Bimson said:


> Except that he ordered a hearing, a bench trial, to determine infringement in a contempt proceeding.


If you believe so, then you must also believe it was the judge's fault on 5/30 when he denied Mr. Chu's discovery request, which was the same the judging is ordering now.

Are you sure about that?

Before answering that, think about your "black and white" argument that the Joe Blow's infringing product was forever infringing product


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## jacmyoung

BTW I have corrected the date above, it was not 9/4, rather 5/30, when Mr. Chu asked for that discovery and was shut down by the judge, as requested by E*.

Mr. Chu did not ask such request on 9/4, or even if he did he would have been shut down too, for the same reason.

A bench trial is an independent proceeding, the court has said so may times. That is not to say the decision from this trial may not be used to rule on the contempt issue, but as I said before, the point is moot.

Because if TiVo is successful in this new trial, TiVo will want a new injunction not to go back to the old one, because then TiVo will be able to charge E* in contempt of using *ALL* its DVRs, yes all of them, because E* had already said they had downloaded the new software to all of their DVRs, so all of them are under the new design.

And if the new design is an infringement, E* will be in contempt for continued use of all of them.


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## Curtis52

Oldie but goodie...



Curtis52 said:


> Chu did not address the possibility that the judge raised about not being able to find contempt without an infringement analysis first. The judge might require a new contempt hearing that includes discovery and an infringement analysis.





jacmyoung said:


> The problem is, TiVo did get a discovery on the design around, before 5/30, that discovery was arranged between DISH and TiVo themselves, and after that discovery, TiVo never disputed the new design around evidence.
> 
> So DISH can ask, why another discovery if TiVo did not reject those evidence? TiVo accepted those evidence without any problem, only that TiVo said based on such evidence the design around still infringed.
> 
> So again if the judge insists there should be another discovery granted for TiVo, DISH will have a very legit reason to appeal that decision.
> 
> The reasons for a discovery are usuallly because:
> 
> Either there is no evidence, or the evidence is in dispute, or the evidence is not sufficient to make a decision, or any combination of the three.
> 
> But none of the above three are true today.
> 
> 1) The design around evidence is right in front of the judge,
> 2) The design around evidence is not in dispute, both parties accepted it, and
> 3) apparently the evidence is sufficient to make a decision, because both parties have already made their own decision based on the evidence, only that the decisions they made are opposite to each other.
> 
> So the judge will just have to decide which one he will agree to. Another discovery will be moot, and if the judge insists to have another one, DISH can certainly appeal that decision. Whether this is going to happen that way of course is anyone's guess, I only tried to give you my take on your scenario.


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## James Long

peak_reception said:


> Well I for one am a Big Fan of plain text, especially from a judge, but DISH folded the Injunction into origami (certainly the part about shutting down DVR functionality) without even a hint of reprimand from Judge Folsom. That fact makes it kind of hard to interpret the Judge too literally any more, at least for me.


There are punishments for what DISH has done ... perhaps not the punishments that TiVo wants and especially not the punishment the most adamant TiVo worshiper would want but there will be compensation for the choices DISH has made.

The first goal is to stop infringement ... if that has been done Judge Folsom can move on to imposing penalties for not stopping quickly enough (if he deems them necessary). If infringement continues he'll likely work out another resolution of the issue, perhaps forced royalties like Paice. Problem solved?



peak_reception said:


> Once infringement is decided then prima facie contempt is a footnote. 9-4 was a BIG WASTE OF TIME all along, as Curtis said. TiVo counsel is to blame.


I agree, although TiVo had the help of Judge Folsom in wasting the time. TiVo made the mistake of bringing up the whole "on the face" argument and asking for it to be dealt with first ... I believe the case would have been further along if TiVo would have focused on continuing infringement than "on the face".


----------



## James Long

jacmyoung said:


> Don't blame me for pointing out the so called "black and white" judge's orders are actually a large pile of gray shades


The trouble is you're finding shades of gray in the most simple of statements where NO gray exists. The question of if "the DVR functionality" refers only to infringing DVR functionality and allows infringing functionality to be replaced has gray area (even though DVR functionality was clearly defined in the injunction).

But there is no gray in the first two lines of the most recent order:
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 hearing on this matter in the form of a Bench Trial on February 17-18, 2009 to determine whether EchoStar's DP-501, DP-508, DP-510, DP-522, DP-625, DP-721, DP-921, and DP-942 receivers continue to infringe claims 1, 5, 21, 23, 32, 36, 52, 31, and 61 of U.S. Patent No. 6,233,389, either literally or under the doctrine of equivalents.​The court is still dealing with the "Motion to Hold EchoStar In Contempt". Plain as day.



jacmyoung said:


> Another reason why this trial is not part of the contempt motion, rather an independent proceeding.


Stop looking for reasons not to read the court's order. The #1 reason why this latest order is part of the contempt motion is because the judge SAYS it is. "The Court will hold an additional hearing *on this matter* ..."


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## Ergan's Toupe

James Long said:


> I agree, although TiVo had the help of Judge Folsom in wasting the time. TiVo made the mistake of bringing up the whole "on the face" argument and asking for it to be dealt with first ... I believe the case would have been further along if TiVo would have focused on continuing infringement than "on the face".


I don't think Chu had much of a choice after Folsom shot him down back in May. What was he supposed to do after Folsom basically said none of this was needed? The fact that 6 months later Folsom is now basically "admitting" he screwed up is no reason to think Chu was incompetent.

Should Chu have stuck to his guns? Absolutely.

Chu took the path of least resistance for "Judicial Economy". What exactly was he supposed to do?

Did Chu and Folsom overestimated Charlie's "stubbornness"? Absolutely.

As far as I'm concerned, Folsom blew it back in May by thinking there was going to be some kind of settlement and all he had to do was rattle his saber from his bench. we all know now how that worked out.

Now if someone can tell me why Chu never brought up the hardware claims I'm all ears. As far as I'm concerned this whole thing is going to hinge on those claims.


----------



## jacmyoung

> "The question is presented as to how a patentee should be allowed to proceed when following a successful infringement suit the infringer modifies the infringing structure and continues as before. Allowing the patentee to proceed by a summary contempt proceeding in all cases would unnecessarily deter parties from marketing new devices that are legitimately outside the scope of the patent in question. On the other hand, to require in each instance the patentee to institute a new infringement suit diminishes the significance of the patent and the order of the court holding the patent to be valid and infringed. Obviously there must be *a dividing point* between those cases which should be handled by *a summary contempt proceeding* and those cases which should be more fully viewed in *an infringement proceeding*. Courts have uniformly held that the standard to be applied in determining the dividing point is whether the alleged offending device is "merely 'colorably' different from the enjoined device or from the patent."...
> 
> ...If any of the differences are found to be more than colorable, summary contempt proceedings would be inappropriate and Sure Plus would be *relegated to an independent action for infringement*...


The above is the very first case I ever cited in this very long debate going back many many months

Let's pay attention to what the court said with emphasis added.

In the above quote, the court clearly explained the difference between a *summary contempt proceeding* and *an infringement proceeding*, separated by a dividing point.

Now the motion for contempt is the summary contempt proceeding.

This new bench trial to determine the design around's infringement is by definition the infringement proceeding.

And the court says they are different proceedings, separated and independent. TiVo is now *relegated to such independent action for infringement*.


----------



## Curtis52

jacmyoung said:


> Now the motion for contempt is the summary contempt proceeding.


A motion is not a proceeding. Once a motion is made, a judge can decide on the proper forum to consider it. If there isn't going to be testimony, it can be done in a summary hearing. If there needs to be testimony and extensive discovery then the proper forum is a trial. A contempt trial.


----------



## jacmyoung

> *contempt proceedings respecting a modified device are inappropriate* if there is more than a colorable difference between the adjudicated device and the modified one. Colorability is determined in accordance with a procedural test, which is simply *whether there are substantial new issues to be litigated*. If so, *a new or supplemental complaint must be filed*. To show contempt, the patent owner must prove by clear and convincing evidence that the modified device falls within the admitted or adjudicated scope of the claims and is, therefore, an infringement, *and if there are substantial open issues with respect to infringement to be tried, contempt proceedings are inappropriate*.


The above is a quote in the midway of our debate, of which the whole reading of that book almost caused me to totally reverse my argument, but only for one day, uniitl I realized I read one section wrong

Again, if there are substantial open issues to be litigated, a summary contempt proceeding is *inappropriate*. A new or supplemental proceeding is needed.

This new bench trial is that supplemental proceeding to fully litigate and settle all the substantial open issues raised by the new design.


----------



## jacmyoung

Curtis52 said:


> A motion is not a proceeding. Once a motion is made, a judge can decide on the proper forum to consider it. If there isn't going to be testimony, it can be done in a summary hearing. If there needs to be testimony and extensive discovery then the proper forum is a trial. A contempt trial.


A contempt proceeding is separate from an infringement proceeding.

The new bench trial is to determine infringement, a function a contempt proceeding cannot serve. Therefore the bench trial is the infringement proceeding, separate and independent of the contempt proceeding.


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## James Long

Ergan's Toupe;1895248 said:


> The fact that 6 months later Folsom is now basically "admitting" he screwed up is no reason to think Chu was incompetent.


You know what I'm thinking? Scary ... although you seem to have read someone else's mind as I don't think that Chu was incompetent (or is now) and I didn't say he was. Nor do I believe that Judge Folsom screwed up.

Chu decided that his first argument would be on the disablement issue ... on the face of the injunction. He was not confident that he would win that argument, which is why he asked for discovery for the next step in the process on a provisional basis. "Here is my claim ... those DVRs shouldn't even be DVRs any more. If you rule against me then my claim will be that they still infringe and I'd like to pursue that theory while you decide whether or not my first claim is valid."

Judge Folsom did not want to waste the court's time on "provisional" issues. If Chu wanted to claim that those DVRs shouldn't even be DVRs then that claim would be dealt with first. Write a motion and it will be dealt with as soon as possible (next opening is three months away in September).

Chu made the mistake of not having a motion ready on the day of the "status hearing" and when he submitted his motion it was another laundry list of if thens that went beyond the question Judge Folsom allowed. If the motion would have remained focused on the "face" issue perhaps we would have a ruling.



> Now if someone can tell me why Chu never brought up the hardware claims I'm all ears. As far as I'm concerned this whole thing is going to hinge on those claims.


I believe that he thought it was irrelevant ... that he had an injunction in hand that was good enough to prevent those DVRs from being used as DVRs and there was no need to relitigate the remanded claims. I also believe that he was wrong and was very surprised that they went unmentioned in the agenda TiVo set.

As for now it appears Judge Folsom has brought the hardware claims back into the picture for current infringement by the named DVRs. Software claims infringement is enough to cause DISH to pay for past infringement (which they have done, in part). Knowing the full extent of current infringement will help with what hopefully will be and undoubtedly will not be the "final" outcome.


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## James Long

jacmyoung said:


> Let's pay attention to what the court said with emphasis added.


OK ...
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 hearing *on this matter* in the form of a Bench Trial on February 17-18, 2009 ...​
Why won't you pay attention to what THIS court says?


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## jacmyoung

Curtis52, I will agree with everyone on one thing, the problem in our case is that *dividing point* has not been clearly demonstrated because the judge has yet said if the difference is more than colorable or not.

But on the other hand, since the new bench trial (or any trial) is the kind of proceedings meant to litigate substantial open issues, by ordering such trial, it implied the judge believed substantial open issues existed to justify such trial, and by that is the admission that the difference is more than colorable, he just did not explicitly say so.

The question is whether the judge is compelled to first rule on colorable, before he may order a new trial? Apparently not.


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## jacmyoung

James Long said:


> OK ...
> 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 hearing *on this matter* in the form of a Bench Trial on February 17-18, 2009 ...​
> Why won't you pay attention to what THIS court says?


Very good question and I must admit I had a hard time explaining it myself

Until Curtis52 said something, a motion is not a proceeding!

What the judge said was, there was this motion to hold contempt in front of him. His job was of course to decide what kind of proceeding was appropriate to respond to such motion.

And by ordering a new trial in response to the above motion, he is saying a contempt proceeding is not appropriate to respond to such motion, rather a proceeding called a bench trial.

In another word, in the judge's mind, he had never even started a contempt proceeding yet, which easily explains why he has yet to make a ruling on it, because he needs not make a ruling in a proceeding that does not exist.

That is of course the same as saying he did not grant TiVo a contempt proceeding as the TiVo's motion sought for, rather forced TiVo to go through a full trial.

And of course if there had never been a contempt proceeding ever initiated, E* is not in contempt!

E* was right and TiVo was wrong.


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## dgordo

When a party makes a motion, it is open until the judge grants or denies such motion. Where is the ruling? There is none, thus the motion is still open.


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## jacmyoung

dgordo said:


> When a party makes a motion, it is open until the judge grants or denies such motion. Where is the ruling? There is none, thus the motion is still open.


Actually after thinking it over, the answer I will give you will surprise you.

The motion is granted by the judge! Only not in the way TiVo asked for.

And you were all correct this bench trial is in fact granting TiVo's motion for finding a contempt, Curtis52's "contempt trial" definition was right.

However this trial is not *a part* of an on going contempt proceeding, rather *the* contempt proceeding. Because part of my above opinion is still correct, that up until this new order, there was never a contempt proceeding existed, only the motion existed.

And since this bench trial is the only form of the contempt proceeding the judge has granted, the only way to possibly find E* in contempt is if the new design is again found an infringement after the trial.

So E* was right in that they are not in contempt on the face of the order.

TiVo was right the court had not ruled on contempt issue, and E* may still be found in contempt, if and only if the new design around is still found an infringement.


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## James Long

jacmyoung said:


> Curtis52, I will agree with everyone on one thing, the problem in our case is that *dividing point* has not been clearly demonstrated because the judge has yet said if the difference is more than colorable or not.


Colorable difference has NOTHING to do with whether or not the existing adjudicated products in question continue to infringe.



jacmyoung said:


> And by ordering a new trial in response to the above motion, he is saying a contempt proceeding is not appropriate to respond to such motion, rather a proceeding called a bench trial.


Wrong again. The bench trial is just the next step the judge has decided to use in resolving the motion. He wants more information in order to make the right decision on the motion. A bench trial is a good way to get as much information as possible so he can complete his decision on the motion at hand.



> And of course if there had never been a contempt proceeding ever initiated, E* is not in contempt!


I'm not going to jump into your dictionary since you seem to define your own legal terms and processes ... and change your mind every time the court goes another way. The motion for contempt REMAINS active ... Judge Folsom has yet to rule on that motion ... Judge Folsom can still GRANT that motion and find DISH in contempt.



jacmyoung said:


> The motion is granted by the judge! Only not in the way TiVo asked for.


No ... the motion remains PENDING. No more, no less. In limbo awaiting the judge's ruling just like it has been since the motion was filed June 13th.

Thanks for the humor ... hopefully no one is taking such posts seriously.


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## jacmyoung

James Long said:


> Colorable difference has NOTHING to do with whether or not the existing adjudicated products in question continue to infringe.


It has everything to do with if a new trial will be needed or not, if you cared to read those cases I cited earlier.



> The bench trial is just the next step the judge has decided to use in resolving the motion. He wants more information in order to make the right decision on the motion. A bench trial is a good way to get as much information as possible so he can complete his decision on the motion at hand.


You seemed to have made the same mistake you accuesed me of making, not reading the judge's order. His order says the bench trial is to determine if the designed-around DVRs are still an infringement, the order does not say the bench trial is to get as much information as possible so he can...



> I'm not going to jump into your dictionary since you seem to define your own legal terms and processes ... and change your mind every time the court goes another way.


But has the court gone your way yet as far as the contempt goes?



> The motion for contempt REMAINS active ... Judge Folsom has yet to rule on that motion ... Judge Folsom can still GRANT that motion and find DISH in contempt.


Only if those DVRs are still found to infringe under the new design, which is the purpose of this new trial, that is what the order says, the purpose of this order is to determine whether the DVRs under the new design are still an infringement.



> No ... the motion remains PENDING. No more, no less. In limbo awaiting the judge's ruling just like it has been since the motion was filed June 13th.


If you mean short of a final ruling whether there is a contmept or not, the motion is always in pending, then I cannot argue with that, it is only semantics, does not change the end result, that is TiVo's "face of order" argument did not fly.


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## James Long

jacmyoung said:


> It has everything to do with if a new trial will be needed or not, if you cared to read those cases I cited earlier.


Your "other cases" are absolutely irrelevant until you understand THIS case.

As long as you keep repeating the lies you are telling about this case there is no reason to go on discussing in with you. I'd like this thread to move on to discuss Tivo vs Dish. I'd like that discussion to include you, but as long as you deny the fundamental facts in the case it looks like we'll be talking about the case without you.

When you are ready to accept that the motion for contempt remains pending and that this bench trial is exactly what the judge has said it is let us know. This thread is here to discuss the case ... not to fantasize or argue for the sake of argument as it appears that you once again are doing.

Let's get past this BS and on with the case. The real case.


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## Greg Bimson

Bear with me...

This started as a "violation on its face" contempt motion. Since then TiVo has stated the modified receivers are infringements, twice: first during the rebuttal of DISH/SATS defense and again during the motion for additional damages. Heck, the damages motions are sealed, so TiVo could have asked for a determination of continuing infringement in the briefs on the damages motion.

Also, in both the contempt motion and the damages motion, the contention from DISH/SATS is that the modifications made the software infringement-free.

Both sides appear to want an adjudication of the modified receivers. Judge Folsom ordered it, so that it no longer wastes time upon appeal once he makes a decision.

Meanwhile, it is entirely possible Judge Folsom already has the "violation on its face" judgment, but is waiting for the rest of the case to catch-up with it. Why bother releasing the decision of the "violation on its face" when it will be appealed, and also continue to litigate the infringement status on the modification as well as the additional damages which require a finding of continuing infringement?


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## peak_reception

dgordo said:


> When a party makes a motion, it is open until the judge grants or denies such motion. Where is the ruling? There is none, thus the motion is still open.


 James Long says that the Judge ruled on Thursday.  Seriously though, here is why I think the issue is now a dead letter --or should be-- despite what the Judge said:

What if the Judge finally rules that DISH's design-around no longer infringes after weighing the evidence next February? Will he then also revisit the "open" motion and potentially find DISH In Contempt for violating the terms of his Final and Permanent Injunction? Hard to imagine. The legal "sine qua non" of non-infringement will surely trump whatever ethical transgressions DISH committed in getting there and they will be free and clear.

So if TiVo's (prima facie) Contempt motion will only be granted if the Judge rules against DISH on infringement next year then that seems like double jeopardy because it holds an additional threat (contempt) over them (DISH) in the coming bench trial which multiplies their risk but adds no potential benefit.

If they win on infringement the Contempt motion is irrelevent. If they lose on infringement the Contempt motion multiplies their losses (damages, etc). Downside with no upside. Double Jeopardy. Doesn't seem fair, especially as DISH has essentially already beaten the rap of prima facie contempt or the Judge would have issued a ruling granting TiVo's motion and finding DISH In Contempt for violating his Injunction.

How can I say that DISH has already beaten the charge if the Judge hasn't made that ruling? Because otherwise they would've been found In Contempt. Of course he wanted to, but legally he couldn't (sine qua non and all the rest) lest his decision be overturned on appeal. Too fragile.

So he's denying DISH their win and rolling it (prima facie contempt) in with the bench trial on infringent to decide everything together at once. I can't say if that's within his powers or not but I can point out how it's not fair to DISH. Rightfully they should no longer have that issue hanging over them. Rightfully Judge Folsom owed them a decision. It was argued before him in good faith by both sides on 9-4 and yet he refused to rule.

"Hey, the Judge can do whatever he wants; He's the Judge!" Ok, but if his non-ruling adds threat to only one party moving forward then it could be deemed inequitable on appeal (appeal of an adverse ruling on infringement next year. One component of the appeal).

At first I too thought that Judge Folsom's non-ruling was bad news for TiVo. I now think he's saved them from their own blunder on the contempt motion which would've gone against them had he ruled. The additional delay certainly isn't helpful to TiVo but that's their own fault for wasting time on a losing issue while the real issue (such is patent law) of infringement in the face of modification went largely uncontended.

Easy to say in retrospect, i know, but isn't Morgan Chu the ultimate guru on patent law? That's what I hear. He should've known better. At the very least he and his team should've had their contempt motion(s) in hand ready to go on May 30th since contempt was the path they chose. Time was not (and is not) on TiVo's side. Instead they dilly-dallied some more before finally in mid-June presenting their motion. By then there was nearly a 3 month wait before a hearing could be set.

"You're not being fair to Chu. What's wrong with going for a Hail Mary? If it worked he's a genius!" If time was not an issue for TiVo I would agree, but it wasn't just the Hail Mary. That "agenda" TiVo submitted on May 16th was painful to read. That dreary laundry list. No focus, no urgency, no initiative, poorly constructed and written. Well, to be fair, they did say in their motion to hold DISH in contempt that they wanted a hearing at the earliest possible date, but that wasn't submitted until --what was it? June 12th? Another couple of weeks squandered. By then they had to get in line after August vacation(s).

Judge Folsom doesn't seem to be in a big hurry either, or maybe he's just real busy, but that's all the more reason for TiVo to set the tone for action and resolution. All water under the bridge by now i suppose but i was saying the same things back in May and June.

Despite the length of this post I am less engaged than ever in this matter (good news for some of you  ). Even though a new hearing is now set there will undoubtedly be more maneuvering, more delay, more b.s., and --in all likelihood-- more cause for appeal after appeal to come. Years more. 

Cases like these never seem to end....


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## James Long

With apologies this thread seems to have hung up on one member's refusal to accept what the February 17-18th trial is and we have not really got into discussing the order, beyond the first two lines.

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 hearing on this matter in the form of a Bench Trial on *February 17-18, 2009* to determine whether EchoStar's DP-501, DP-508, DP-510, DP-522, DP-625, DP-721, DP-921, and DP-942 receivers continue to infringe claims 1, 5, 21, 23, 32, 36, 52, 31, and 61 of U.S. Patent No. 6,233,389, either literally or under the doctrine of equivalents. The hearing will be held *in Texarkana* and begin each morning at *9 a.m.*. Each side will have *five (5) hours* to present their case.

These are the eight named receivers that the injunction was placed against. DISH has claimed to have replaced the software on five of the named models, software that allegedly does not infringe the software or hardware claims of the patent. The remaining three models admittedly continue to infringe and as they break are being replaced by newer non-infringing models.

Note the purpose is to determine infringement on these models ... not other models such as the ViP series. Note the products named remain the receivers, not the software. This isn't about whether or not the receivers are now colorably different. This is about whether or not they continue to infringe.

*IT IS ORDERED* that the following discovery limitations shall apply to this matter.
1. *Disclosures.* To the extent not already disclosed, within 15 days of this Order, each party shall disclose to every other party the following information:(a.) the legal theories and, in general, the factual bases of the disclosing party's claims or defenses;
(b.) the name, address, and telephone number of persons having knowledge of relevant facts, a brief statement of each identified persons' connection with the case, and a brief, fair summary of the substance fo the information known by any such person;
(c.) for any testifying expert, by the date set by the court below, each party shall disclose to the other party or parties:
(i.) the expert's name, address, and telephone number;
(ii.) the subject matter on which the expert will testify;
(iii.) if the witness is retained or specially employed to provide expert testimony in this case or whose duties as an employee of the disclosing party regularly involve giving expert testimony: (a) all documents, tangible things, reports, models, or data compilations that have been provided to, reviewed by, or prepared by or for the expert in anticipation of the expert's testimony; and (b) the disclosures required by Fed. R. Civ. P. 26(a)(2)(B) and Local Rule CV-26;
(iv.) for all other experts, the general substance of the expert's mental impression and opinions and a brief summary of the basis for them or documents reflecting such information.​"Tell me everything!" All claims and defenses need to be filed with the court by December 5th (within 15 days of the order). Information about testifying experts must be disclosed by December 22nd (TiVo) or January 5th (DISH).

2. *Additional Disclosures.* Each party, within 15 days of this Order and without awaiting a discovery request, will provide, to the extent not already provided, every other party a copy of all documents, electronically stored information, and tangible things in the possession, custody, or control of the party that are relevant to the above stated matter.

This is the part I consider overly broad ... all documents (etc) that are relevant? Who is to decide what is relevant? If something is considered irrelevant by DISH or TiVo will "we didn't consider that relevant" be a defense? I'd prefer a more focused list of what needs to be provided ... but perhaps the interrogatories will bring out anything not considered relevant.

Discovery without a list of what needs to be discovered ... just "tell me what I need to know" with no guidance.

3. *Discovery Limitations.* In addition to the disclosure listed in Paragraphs 1 and 2 above, the each side may serve 10 interrogatories, 10 requests for admission on the opposing side. In addition, each side may take 15 hours of fact witness depositions and the depositions of experts.

This is where I see paragraph 2 omissions being filled in at the request of the opposing side. I don't know what questions DISH would have of TiVo, I expect that TiVo will ask compound questions (where one question is actually several questions rolled together) so they can beat the 10 request limit.

4. *Pre-hearing disclosure.* Each party shall provide to every other party within 7 days of the trial the following:(a.) the name and, if not previously provided, the address and telephone number, of each witness, separately identifying those whom the party expects to call and those whom the party may call if the need arises;
(b.) the designation of those witnesses whose testimony is expected to be present by means of a deposition and, if not taken stenographically, a transcript of the pertinent portions of the deposition testimony;
(c.) an appropriate identification of each document or other exhibit, including summaries of other evidence, separately identifying those that the party expect to offer and those which the party may offer if the need arises;
(d.) an copy of each demonstrative that the party expects to present, separately identifying those that the party expects to present and those which the party may present if the need arises.​This has a February 10th deadline (within 7 days of trial). Final summaries of the argument so the court will know what to expect.

5. *Duty to Supplement.* After disclosure is made pursuant to this order, each party is under a duty to supplement or correct its disclosures immediately if the party obtains information that a disclosure was incomplete or incorrect when made, or is no longer complete or true.

Pretty simple ... "keep me updated if anything changes".


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## James Long

Greg Bimson said:


> Both sides appear to want an adjudication of the modified receivers. Judge Folsom ordered it, so that it no longer wastes time upon appeal once he makes a decision.


I don't see anyone who is anyone complaining that the current state of infringement will be looked at. I agree - TiVo claims and wants proven that irregardless of "new software" the receivers infringe. DISH wants proven that they no longer infringe. Solving the question of infringement is good for everyone.



> Meanwhile, it is entirely possible Judge Folsom already has the "violation on its face" judgment, but is waiting for the rest of the case to catch-up with it.


I'm wondering. If the judge is just trying to get it out of his court then ruling "contempt" and letting the appeals court deal with it for a while (until it is reversed) gets it off of his docket. Until the appeals court acts he would only have to deal with TiVo's next attempt - getting ViP receivers declared "only colorably different".

The judge is in a tough spot ... he either tries to create new case law by ignoring the face of the injunction and going with the "spirit of the injunction" that only he as the author knows or he follows case law that so often gets overturned at the appeals court level. Determining actual infringement makes that decision easier for him and for the appeals court. If the infringement remains then there is no problem in finding DISH in contempt. If no infringement remains it is easier to rely on the "spirit" to work in mysterious ways. 



peak_reception said:


> James Long says that the Judge ruled on Thursday.


Funny.



> What if the Judge finally rules that DISH's design-around no longer infringes after weighing the evidence next February? Will he then also revisit the "open" motion and potentially find DISH In Contempt for violating the terms of his Final and Permanent Injunction? Hard to imagine.


If he finds no infringement AND grants the motion for contempt the punishment will be merrily financial. I doubt he would try to enforce a shutdown of a non-infringing product. (Another reason to determine infringement ... so he can determine the penalty.)

Contempt is still out there ... win or lose on infringement the motion can still be granted.

Don't forget Walker vs Birmingham. The underlying injunction required the parties to follow a law later ruled unconstitutional ... yet the penalty for not following the injunction was upheld by the Supreme Court. Courts don't like the process being ignored.


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## jacmyoung

James Long said:


> ...Don't forget Walker vs Birmingham. The underlying injunction required the parties to follow a law later ruled unconstitutional ... yet the penalty for not following the injunction was upheld by the Supreme Court. Courts don't like the process being ignored.


But E* is saying they have followed the injunction, unlike the Walker case the defendents admitted they violated the injunction and did so intentionally too to make a point.

So why not just tell E* that you are wrong, that you did violate my injunction, how dare you to even say you complied with my injunction when clearly you did not? If courts don't like the orders ignored, then why ignore TiVo's such rightful request to make the point this order should not be ignored?


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## jacmyoung

peak_reception said:


> .... If they lose on infringement the Contempt motion multiplies their losses (damages, etc). Downside with no upside. Double Jeopardy. Doesn't seem fair....


I don't think it is that easy to determine which way is better for which party.

If the judge rules E* not in contempt on the face (deny the contempt motion), and tells TiVo they need to file a new action to again find the design around still infringing (he clearly told TiVo's lawyer on 9/4 he could do that), TiVo will be able to immediately file that action (instead of an appeal), and in the new action they will be able to accuse all E*'s DVRs, not just limited to the 8 models, because E* admitted all of them use the same DVR design.

The process will be similar to what we have now in terms of the delay, with the exception that if TiVo can find the design around still infringing, they will nail all E*'s DVRs.

But as it stands, even if TiVo is successful in this new trial, they still will not be able to touch any DVRs beyond the 8 old models, and who knows how many of those 8 models will even be around two years from now, which could be time needed consider all the appeals.


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## jacmyoung

Greg Bimson said:


> ...Both sides appear to want an adjudication of the modified receivers. Judge Folsom ordered it, so that it no longer wastes time upon appeal once he makes a decision...


That is if you somehow is thinking there will be no appeal after this new bench trial. This will be a trial, and a trial by bench is no different than a jury trial in procedures.

First the two-day trial, wait three months to get an infringement verdict, wait another three months to make a final judgement based on the infringement verdict, one year already passed at that point, then E* will appeal the infringement verdict, that will take another year maybe, just to have the infringement verdict looked at by the Appeals Court, while everything else will be on hold, because that verdict will have to be upheld before everything else can be in motion again, such as any damages and contempt motions.

At least if a contempt on the face now, E* may appeal but if the ruling is upheld, it can be done within a year, without any costly trial efforts (just look at the list of things TiVo and E* need to do in the order, all very labor intensive and costly), not to mention for court economy, surely this will be the most effective way and the best way to get E* to settle.

That is if as you said the on the face contempt is already in the bag for TiVo. Does the judge have something against TiVo, does he appear to have a lot free time on his hand?


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## James Long

jacmyoung said:


> But E* is saying they have followed the injunction, unlike the Walker case the defendents admitted they violated the injunction and did so intentionally too to make a point.


It doesn't matter what DISH says. It matters what Judge Folsom says. Judge Folsom is the authority on whether DISH's actions were a violation of the injunction or not. DISH does not have to admit it.


> So why not just tell E* that you are wrong, that you did violate my injunction, how dare you to even say you complied with my injunction when clearly you did not?


Judge Folsom still has the opportunity to do that, complete with penalties to be determined.

The only way out I see for DISH to get around Walker would be to show that they had no legal option except to ignore the injunction. Or that ignoring injunctions was an acceptable action in similar cases that have set a precedent.



jacmyoung said:


> But as it stands, even if TiVo is successful in this new trial, they still will not be able to touch any DVRs beyond the 8 old models, and who knows how many of those 8 models will even be around two years from now, which could be time needed consider all the appeals.


TiVo will be able to go after the newer models ... and I am surprised that they have not done so already. The ViP series is practically a footnote in the current case. TiVo should get serious about their claims and go after DISH for selling the ViPs. I see no reason why they need to wait (except some hope that Judge Folsom will magically declare ViPs infringing without being asked).



jacmyoung said:


> First the two-day trial, wait three months to get an infringement verdict, wait another three months to make a final judgement based on the infringement verdict, one year already passed at that point, ...


Interesting math (3+3=12) ... if you're thinking one year since the injunction went into effect (after being upheld by the appeals court) that is only a couple months after trial.

There is no reason why "judgement" has to wait several months after the verdict. Judgment is simple. If DISH's receivers infringe then they are most certainly in contempt and owe damages on every receiver every month from 2006 through the present. If DISH's receivers no longer infringe Judge Folsom has to decide what dates to accept as far as when they stopped infringing for damages and can handle the contempt issue as discussed in prior posts.

If DISH continues to infringe the penalties are known. There is no need to hold hearings to figure out how to punish them.


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## jacmyoung

James Long said:


> It doesn't matter what DISH says. It matters what Judge Folsom says. Judge Folsom is the authority on whether DISH's actions were a violation of the injunction or not. DISH does not have to admit it.
> Judge Folsom still has the opportunity to do that, complete with penalties to be determined.


Then why wait? Why not tell E* already? It is not as if his new trial is earth shaking, it is still about this 8 models.

In fact after E* is found in contempt on the face, while E* may appeal, TiVo can motion for contempt on the next round without delay, accusing all the VIP DVRs.



> TiVo will be able to go after the newer models ... and I am surprised that they have not done so already. The ViP series is practically a footnote in the current case. TiVo should get serious about their claims and go after DISH for selling the ViPs. I see no reason why they need to wait (except some hope that Judge Folsom will magically declare ViPs infringing without being asked).


Because the judge has not ruled on this one yet. The judge's ruling on the current contempt issue will determine if TiVo may successfully go after the VIPs.

If E* is not even in contempt for using the 4 million modified DVRs, there is no way in hell TiVo can find contempt on the use of the VIPs.


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## jacmyoung

James Long said:


> ...Interesting math (3+3=12) ...


That may be so but a trial still takes a much longer time than a summary proceeding to get over, much more time.



> if you're thinking one year since the injunction went into effect (after being upheld by the appeals court) that is only a couple months after trial.


The final judgment was in 09/06, the injunction went into effect in 04/08, not a couple of months if my math is right.



> There is no reason why "judgement" has to wait several months after the verdict. Judgment is simple. If DISH's receivers infringe then they are most certainly in contempt and owe damages on every receiver every month from 2006 through the present.


But E* has the right to appeal such judgment, and such appeals usually take up to a year to get the answer. Until then the infringement verdict can not be used for any action.



> If DISH's receivers no longer infringe Judge Folsom has to decide what dates to accept as far as when they stopped infringing for damages and can handle the contempt issue as discussed in prior posts.


Do not necessarily disagree.



> If DISH continues to infringe the penalties are known. There is no need to hold hearings to figure out how to punish them.


But the infringement decision and penalties will have to wait for E*'s appeal to go through before getting in motion again, that is if they can be upheld by the Appeals Court. If not upheld, all time of the trial, cost to TiVo and court are wasted.


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## dgordo

jacmyoung said:


> Actually after thinking it over, the answer I will give you will surprise you.
> 
> The motion is granted by the judge! Only not in the way TiVo asked for.


A motion is not granted or denied until we see something signed by judge folsom that says so. Until then this motion remains open.


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## jacmyoung

James Long said:


> ...Interesting math (3+3=12) ...


BTW I am comparing it to an on the face contempt now with damages. E* will appeal, that may take up to a year, but that will be it, if the last appeal is any indication.

But with this new order, wait until 02/09 just to start the trial, three months for a verdict, ok one month to finalize penalties, we are in 06/09. E* then appeals, say about the same time for appeal above, we are into 06/10.

No matter how you do the math, it will be at least an additional delay equivalent to the time needed to go through this bench trial.


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## jacmyoung

dgordo said:


> A motion is not granted or denied until we see something signed by judge folsom that says so. Until then this motion remains open.


Do you think by ordering a bench trial to find infringement, that the judge will still likely to find a contempt even if the trial ends a no infringement?


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## James Long

jacmyoung said:


> Then why wait? Why not tell E* already?


See above responses.



> Because the judge has not ruled on this one yet. The judge's ruling on the current contempt issue will determine if TiVo may successfully go after the VIPs.
> 
> If E* is not even in contempt for using the 4 million modified DVRs, there is no way in hell TiVo can find contempt on the use of the VIPs.


That is one opinion ... but who is to say that DISH figured out a way to stop infringing on the named models yet still uses infringing software (and hardware) on the ViP models? Only a court, after reviewing the evidence and determining if _those_ models infringe.



jacmyoung said:


> The final judgment was in 09/06, the injunction went into effect in 04/08, not a couple of months if my math is right.


When you decide what you are talking about stick with the same answer. Either February plus two months is a year after the injunction took effect (my math) or your 3+3=12 math is sometime in 2007 (a year after the original trial).



> But E* has the right to appeal such judgment, and such appeals usually take up to a year to get the answer. Until then the infringement verdict can not be used for any action.


Wrong. There is no such limit on the verdict.



> But the infringement decision and penalties will have to wait for E*'s appeal to go through before getting in motion again, that is if they can be upheld by the Appeals Court.


Wrong again. But thanks for playing.


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## dgordo

jacmyoung said:


> Do you think by ordering a bench trial to find infringement, that the judge will still likely to find a contempt even if the trial ends a no infringement?


I'm not willing to speculate on what a judge may do.

I do know that for a motion to be appealed there must be something with the judge's signature on it. Until then the motion is open.


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## James Long

dgordo said:


> I do know that for a motion to be appealed there must be something with the judge's signature on it. Until then the motion is open.


Hmmm ... could DISH or TiVo appeal the order for the bench trial?

I don't expect them to appeal (as both want the determination the trial offers - whether or not those receivers currently infringe - as long as they don't lose).

I have noticed that things that are appealed are generally marked "may be appealed" and this was not marked in that way.


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## Greg Bimson

James Long said:


> Hmmm ... could DISH or TiVo appeal the order for the bench trial?


I am pretty sure either party can. TiVo wouldn't, as this is exactly what they wanted, although they also wanted a finding of _prima facie_ contempt first.

DISH/SATS CEO Charles Ergen stated to analysts on one of those earnings calls that he wanted to prove his receivers no longer infringe. However, DISH/SATS CEO Harold McElhinny on the 4 September hearing said there would be a big discovery fight. I think DISH/SATS would prefer this action than any other, for now.


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## jacmyoung

James Long said:


> ...That is one opinion ... but who is to say that DISH figured out a way to stop infringing on the named models yet still uses infringing software (and hardware) on the ViP models? Only a court, after reviewing the evidence and determining if _those_ models infringe.


Because if E* can get away with a contempt, it will only be because of the design around, and because all E* DVRs are now under such new design, including the VIPs, TiVo understands unless they get a contempt on the 8 models, there is no way in hell to get a contempt on the VIPs.

I have given a reason why TiVo has yet to bring up the VIPs, since you asked the question, what is your answer then?



> When you decide what you are talking about stick with the same answer. Either February plus two months is a year after the injunction took effect (my math) or your 3+3=12 math is sometime in 2007 (a year after the original trial).


My math is to point out how long it usually takes for a trial to go through to finally get any order to go in full force, and this bench trial will follow the usual course a trial will go through, with delays, appeals and more delays, becasue in a trial parties have may more rights than in a summary proceeding.



> Wrong. There is no such limit on the verdict.


Did you mean E* cannot appeal? Or did you mean the judgment can be in force before the appeals court make their ruling? If the latter, I have never seen such happen in the trial, because a final judgement in a trial is always "pending appeal".



> Wrong again. But thanks for playing.


I hope you can offer some evidence that a final judgment in a trial is not "pending appeal".


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## jacmyoung

Parties can appeal any decisions by the judge at any time, whether the Appeals Court will hear the appeals is another matter. If a decision is only interim, the appeal will be rejected because only when the final decision in a proceeding is made so can it be appealed, along with all the interim decisions.

That is not to say this judge's decision cannot be appealed at this time, all we know is neither party wanted to appeal it.


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## jacmyoung

Greg Bimson said:


> I am pretty sure either party can. TiVo wouldn't, as this is exactly what they wanted, although they also wanted a finding of _prima facie_ contempt first...


There is no way this trial is "exactly" what TiVo wanted and the on the face contempt was only something they "also" wanted.

TiVo, just like you, argued those 8 models of DVRs need not be re-tried, the argument is lost.


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## James Long

jacmyoung said:


> Because if E* can get away with a contempt, it will only be because of the design around, and because all E* DVRs are now under such new design, including the VIPs, TiVo understands unless they get a contempt on the 8 models, there is no way in hell to get a contempt on the VIPs.


You're believing everything DISH says again. TiVo refuses to do that.



> I have given a reason why TiVo has yet to bring up the VIPs, since you asked the question, what is your answer then?


One does not have to know the answer to ask a question. If you have all the answers why bother asking?



> Did you mean E* cannot appeal? Or did you mean the judgment can be in force before the appeals court make their ruling? If the latter, I have never seen such happen in the trial, because a final judgment in a trial is always "pending appeal".


I believe you are mistaking this bench trial for something more than it is. Judge Folsom is not calling a do over and readjudicating the decision the jury made that was upheld by the Supreme Court ... he is checking the current status of the named adjudicated devices to find out if they still infringe. It is not a "new trial" as in a do over.

Pending appeal doesn't mean that the lower court must wait for the appeal before imposing judgment. Have you already forgotten that Judge Folsom refused to stay the injunction back in 2006? The injunction was set to go into effect in 30 days regardless of the appeals process. Or are you playing games with definitions again?

BTW - Your judicial experience is not complete (if it is you are wasting your life at whatever job you may have).


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## dgordo

James Long said:


> Hmmm ... could DISH or TiVo appeal the order for the bench trial?
> 
> I don't expect them to appeal (as both want the determination the trial offers - whether or not those receivers currently infringe - as long as they don't lose).
> 
> I have noticed that things that are appealed are generally marked "may be appealed" and this was not marked in that way.


Yes it could be appealed, however it should be noted that this is not a ruling on a motion, it is an order.


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## jacmyoung

dgordo said:


> Yes it could be appealed, however it should be noted that this is not a ruling on a motion, it is an order.


Could it be appealed immediately or after the trial?


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## Greg Bimson

jacmyoung said:


> There is no way this trial is "exactly" what TiVo wanted and the on the face contempt was only something they "also" wanted.


TiVo first wanted the adjudged receivers disabled and also to have the modified receivers sold found in contempt. To find contempt on the receivers modified and sold since the issuance of the injunction, both infringement and mere colorable difference must be found. So, TiVo wanted a ruling that the modified receivers still infringe. TiVo is exactly getting that. They wanted the receivers first sold unmodifed and found infringing to be disabled first. That is still hanging.

Remember, with all of the issues here, DISH/SATS can be found of contempt for not disabling and at the same time finding that the modifications no longer infringe.


jacmyoung said:


> TiVo, just like you, argued those 8 models of DVRs need not be re-tried, the argument is lost.


TiVo argued that Judge Folsom can find infringement on the modifications. TiVo argued that they are entitled to damages if Judge Folsom finds those receivers are in contempt for the making, selling or using of receivers which infringe.

So the "on its face" violation hasn't been ruled upon yet. When this is all said and done, this should be the end of it for Judge Folsom. Then the Court of Appeals will hear Judge Folsom's decision, and if still found infringing during a stay, DISH/SATS claims they have another work-around.


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## jacmyoung

James Long said:


> You're believing everything DISH says again. TiVo refuses to do that.


TiVo was given the full new software code in 5/08, and TiVo's engineers and lawyers reviewed the code, Rogers said so himself his quote is available. TiVo never disputed the fact all E* DVRs are now under the new design, only that they believe they still infringe.



> One does not have to know the answer to ask a question. If you have all the answers why bother asking?


Because I did not think I had all the answers, I asked for your opinion. You are telling me you do not have an answer, or maybe you do but do not care to share, now I know, will not ask again. Sorry.



> I believe you are mistaking this bench trial for something more than it is. Judge Folsom is not calling a do over and readjudicating the decision the jury made that was upheld by the Supreme Court ... he is checking the current status of the named adjudicated devices to find out if they still infringe. It is not a "new trial" as in a do over.


Yes the adjudicated products and final may not be re-adjudicated and do over, that was eaxctly how TiVo argued, they insisted the 8 models may not be re-adjudicated, so it could be done in a summary contempt proceeding. By ordering a bench trial, the judge told TiVo they were wrong, because the jury trial adjudicated the old design, the new design has never been adjudicated, and because of that a new trial will have to adjudicate the new design.

In another word the mistake TiVo made was they believed it was the hardware that was adjudicated, when in fact it was the *old design* that was adjudicated, not the *new design*. This trial is a new and independent trial.



> Pending appeal doesn't mean that the lower court must wait for the appeal before imposing judgment. Have you already forgotten that Judge Folsom refused to stay the injunction back in 2006? The injunction was set to go into effect in 30 days regardless of the appeals process. Or are you playing games with definitions again?


But the judgment order almost always is stayed on appeal in such civil trial, just like the last one. That was my point.


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## jacmyoung

Greg Bimson said:


> ...TiVo argued that Judge Folsom can find infringement on the modifications. TiVo argued that they are entitled to damages if Judge Folsom finds those receivers are in contempt for the making, selling or using of receivers which infringe...


TiVo argued the 8 models of adjudicated products needed not re-adjudicated, so did you. Once adjudicated to be infringing, always infringing.

Now the judge said he needs to re-adjudicate those 8 models of DVRs.

Both of you have lost such argument.

Please tell me which part of my above statement is not accurate.


----------



## jacmyoung

dgordo said:


> Yes it could be appealed, however it should be noted that this is not a ruling on a motion, it is an order.


May I ask you this other question too.

For this bench trial the judge ordered, will E* and TiVo both have the same kind of appeals rights as in the previous jury trial, and the same chance for a stay of the order on appeal if necessary?


----------



## James Long

jacmyoung said:


> This trial is a new and independent trial.


No, it isn't.



> But the judgment order almost always is stayed on appeal in such civil trial, just like the last one. That was my point.


"Almost always" doesn't apply. There was no stay from Judge Folsom in 2006 don't expect one in 2009. DISH even asked if the contempt would be stayed on September 2008 and that request was met with a chuckle. Do you honestly believe that Judge Folsom will offer a stay? Why?

While looking at the world of law is fine for background don't lose the focus on what is going on in Texas in Judge Folsom's court.



jacmyoung said:


> For this bench trial the judge ordered, will E* and TiVo both have the same kind of appeals rights as in the previous jury trial, and the same chance for a stay of the order on appeal if necessary?


I thought you already answered that question yourself. Are you now admitting that you spoke with certainty about something without knowledge of the topic you were speaking of?


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## jacmyoung

James Long said:


> No, it isn't.


I asked dgordo the question, maybe he will chip in.



> "Almost always" doesn't apply. There was no stay from Judge Folsom in 2006 don't expect one in 2009. DISH even asked if the contempt would be stayed on September 2008 and that request was met with a chuckle. Do you honestly believe that Judge Folsom will offer a stay? Why?


You did not understand me, I never said Folsom will stay his own order, but the Appeals Court, you conveniently left out the judge's response to DISH's attorney: "you can always appeal"' with his chuckle.



> I thought you already answered that question yourself. Are you now admitting that you spoke with certainty about something without knowledge of the topic you were speaking of?


I am waiting for dgordo to answer my question, if he cares to do so.


----------



## dgordo

jacmyoung said:


> May I ask you this other question too.
> 
> For this bench trial the judge ordered, will E* and TiVo both have the same kind of appeals rights as in the previous jury trial, and the same chance for a stay of the order on appeal if necessary?


This bench trial will be resolved with a ruling on the motion for contempt. That decision will be fully appealable by either party.
A stay of the order on appeal will be up to judge folsom first and then the CAFC.


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## dgordo

This is not a new and independent trial.


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## jacmyoung

dgordo said:


> This bench trial will be resolved with a ruling on the motion for contempt. That decision will be fully appealable by either party.
> A stay of the order on appeal will be up to judge folsom first and then the CAFC.


I was right then.


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## jacmyoung

dgordo said:


> This is not a new and independent trial.


I admit I was wrong. But since I got it right above, my estimate of the delay due to the trial process will be on mark or not?


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## James Long

jacmyoung said:


> You did not understand me, I never said Folsom will stay his own order, but the Appeals Court, you conveniently left out the judge's response to DISH's attorney: "you can always appeal"' with his chuckle.


What you are leaving out is the point of the conversation ... that Judge Folsom can IMMEDIATELY impose a penalty without waiting for appeal. That is the false claim you made - that the judge could not impose penalty until after the appeal.

Judge Folsom could rule on the motion for contempt tomorrow if he wished and immediately impose a penalty. That has not changed ... it remains within his power. It would cast the February 17-18th trial in a different light if he ruled on contempt before then - especially if he found DISH in contempt - but it is his case. His hands are not tied.


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## jacmyoung

The other question is if the 8 models DVRs are found not infringing in this new trial, can E* still be found in contempt?

I say no. The quote in KSM I am using below has been used by E*, TiVo, Curtis52, Greg, and me before, so I assume parties all agree it is relevant:

"Turning first to the question of the judgment of contempt itself, we agree, of course, that the issue in contempt proceedings is violation vel non of the injunction, not patent infringement. *Nevertheless*, devices which could not be enjoined as infringements on a separate complaint cannot possibly be deemed enjoined as infringements under an existing injunction in contempt proceedings."

The first half of the statement was quoted by TiVo, it says of course a contempt proceeding is to determine the merit of the question of violation of the order, not infringement, and the term "vel non" implies lack of merit BTW.

*But*

(the second part was quoted by E*, I must say we are better than those two, Curtis52, Greg and I all quoted the entire paragraph)

Devices (the 8 models of DVRs) which could not be enjoined as infringements (if found not infringements) on a separate complaint (i.e. during this bench trial) *cannot possibly be deemed enjoined* as infringements (E* cannot possibly be in contempt for using them) under an *existing* injunction (the current existing Injunction) in contempt proceedings.


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## phrelin

jacmyoung said:


> But the judgment order almost always is stayed on appeal in such civil trial, just like the last one. That was my point.


The important word is "almost" in this situation.

If I were the judge and if (a big "if") I decided the "boxes" continued to infringe, I would modify the order to eliminate the "shut off' and add a reasonable "monthly license fee" payable to TiVo, retroactive and continuing, to be placed in an escrow account with the court until all appeals are exhausted. Believe me, Dish Network will have a money problem at that point. And, I'm not sure any appellate court would take up the case.

A "shut off" order will be stayed because it affects customers (these judges are political people first), IMHO, and would simply give Echostar a chance to redesign or Dish a chance to replace more of the offending boxes.

Of course, like all the speculators here I could be wrong. But I've added to the total posts.


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## jacmyoung

James Long said:


> What you are leaving out is the point of the conversation ... that Judge Folsom can IMMEDIATELY impose a penalty without waiting for appeal. That is the false claim you made - that the judge could not impose penalty until after the appeal.
> 
> Judge Folsom could rule on the motion for contempt tomorrow if he wished and immediately impose a penalty. That has not changed ... it remains within his power. It would cast the February 17-18th trial in a different light if he ruled on contempt before then - especially if he found DISH in contempt - but it is his case. His hands are not tied.


An order is almost never in effect immediately, always leaves some room for appeal, the defendant can always appeal in time to seek a stay. Whether the Appeals Court will stay the order is of course another question, but my point was in a civil case, a stay is usually automatic, then the appeal will be put on the shelf for up to a year, if the previous trial is any indication.


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## jacmyoung

phrelin said:


> The important word is "almost" in this situation.
> 
> If I were the judge and if (a big "if") I decided the "boxes" continued to infringe, I would modify the order to eliminate the "shut off' and add a reasonable "monthly license fee" payable to TiVo, retroactive and continuing, to be placed in an escrow account with the court until all appeals are exhausted. Believe me, Dish Network will have a money problem at that point. And, I'm not sure any appellate court would take up the case.
> 
> A "shut off" order will be stayed because it affects customers (these judges are political people first), IMHO, and would simply give Echostar a chance to redesign or Dish a chance to replace more of the offending boxes.
> 
> Of course, like all the speculators here I could be wrong. But I've added to the total posts.


I do not disagree at all, this was what happened last time, Charlie went for it, whether he will go for it next time will be his call.

But remember, all of our discussions so far are assuming there is a verdict of infringement. What if there is no infringement, I have made my post above.


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## James Long

jacmyoung said:


> ... almost never ... usually ...


Maybe.  


> ... always leaves some room for appeal ... always appeal in time to seek a stay ...


Always? :grin:


jacmyoung said:


> But remember, all of our discussions so far are assuming there is a verdict of infringement.


Not ALL of them. Absolutes are dangerous.


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## jacmyoung

James Long said:


> Maybe.
> Always? :grin:
> Not ALL of them. Absolutes are dangerous.


I just contributed to the "not all of them" above so my bad


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## Curtis52

phrelin said:


> A "shut off" order will be stayed because it affects customers (these judges are political people first), IMHO,


I don't see why the appeals court would be more political than a district court judge. For that matter, I don't see why any of them would be political. They are appointed for life.


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## Link

Can someone tell me what Dish did against Tivo and when? I had Tivo when it first came out with cable and I liked it ok but I dumped it in favor of a Dish Network service and a Dish 501 which was basically timer scheduled recordings selected through the use of a program guide. I liked it better than Tivo even though it didn't have the season pass feature or name based recording. Tivo is also OVERPRICED at $12.99 a month for a recording service? That is just crazy. Directv and most cable companies offer dual tuner name based recording DVRs today, so I never understand what Dish did. In addition to Tivo, there was ReplayTV out around the same time. I guess they weren't an issue with Dish or Tivo.


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## phrelin

Link said:


> Can someone tell me what Dish did against Tivo and when? I had Tivo when it first came out with cable and I liked it ok but I dumped it in favor of a Dish Network service and a Dish 501 which was basically timer scheduled recordings selected through the use of a program guide. I liked it better than Tivo even though it didn't have the season pass feature or name based recording. Tivo is also OVERPRICED at $12.99 a month for a recording service? That is just crazy. Directv and most cable companies offer dual tuner name based recording DVRs today, so I never understand what Dish did. In addition to Tivo, there was ReplayTV out around the same time. I guess they weren't an issue with Dish or Tivo.


If you have all the time in the world, there are a number threads with maybe 4,000 posts on the subject.:lol:

But probably the best summary comes from this 2006 article:


> A federal judge ruled earlier this month that some of the features of DVR devices offered by EchoStar Communications (parent company of Dish Network) infringed upon TiVo's patents, awarding the company more than $90 million in damages. The lawsuit was over the "time warp" feature that allows users to record a show while playing back previously recorded material. The ruling has been stayed pending appeal, but if it's ultimately upheld, the single biggest reason to use a DVR -- watching and recording simultaneously -- might end up being exclusive to TiVo.


 The judge's ruling came after a jury finding.

There's alot of allegations about how Echostar and TiVo were exploring a relationship and Echostar had access to technical info. But your 501 like my two old 508's were found to be infringing on TiVo's patents.


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## Greg Bimson

jacmyoung said:


> Devices (the 8 models of DVRs) which could not be enjoined as infringements (if found not infringements) *on a separate complaint (i.e. during this bench trial)* cannot possibly be deemed enjoined as infringements (E* cannot possibly be in contempt for using them) under an existing injunction (the current existing Injunction) in contempt proceedings.


This bench trial is not a separate complaint. The action filed in Delaware is a separate complaint. However, since that hasn't even started, none of that applies at this time.

The closest proposition now is the Walker v. Birmingham case. It is entirely possible Judge Folsom can find DISH/SATS in contempt as the receivers were not disabled, but then turn around and say because the receivers no longer infringe that they are not subject to the disable order.

It is also possible (but not as likely) to rule that infringement is no longer continuing, yet order those originally adjudged devices to be disabled.


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## Greg Bimson

Link said:


> I had Tivo when it first came out with cable and I liked it ok but I dumped it in favor of a Dish Network service and a Dish 501 which was basically timer scheduled recordings selected through the use of a program guide. I liked it better than Tivo even though it didn't have the season pass feature or name based recording.


I assume one reason was the DVR is integrated with your service.


Link said:


> Tivo is also OVERPRICED at $12.99 a month for a recording service? That is just crazy. Directv and most cable companies offer dual tuner name based recording DVRs today, so I never understand what Dish did.


This suit started in 2004. At that time, DISH/SATS was the largest DVR manufacturer that was not licensing from TiVo.

DirecTV at that time only had TiVo-based DVR's, so TiVo was receiving licensing money from DirecTV. Which also means TiVo was receiving royalties for the "dual-tuner name based recording DVR's" at DirecTV. If DISH/SATS had an agreement with TiVo, this suit would have never happened.

And the price for those DVR's wasn't $12.99 a month for standalone service. DirecTV's pricing for TiVo DVR service was $5 a month.


Link said:


> In addition to Tivo, there was ReplayTV out around the same time. I guess they weren't an issue with Dish or Tivo.


But ReplayTV and TiVo sued each other in 2001, before each withdrew the suit. So there was an issue, and in 2002 ReplayTV was no longer a big-picture DVR manufacturer.


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## jacmyoung

Greg Bimson said:


> This bench trial is not a separate complaint. The action filed in Delaware is a separate complaint. However, since that hasn't even started, none of that applies at this time...


A "complaint" is a common term used by the court to refer to a trial, a trial is based on a complaint, no matter who initiates it.

The jury trial was a complaint, this bench trial is a complaint, they are separate as long as they are not the same complaint. Two trials cannot be the same complaint, they must be separate, because of this thing called *Claim Preclusion* which prohibits the same things be tried twice, as long as the previous trial is complete and final. Meaning all trials once complete by definition are separate complaints, stand on their own, because they must try separate things, not the same things.

It is possible during a trial different things may be introduced and added to the original items, depending on how far it is into the trial and the rules governing such supplements. But once it is final, (which the jury trial was) it is over. Another trial must be a separate trial, if not, it will be thrown out without a doubt.

Put it this way, if after this bench trial there is no infringement and E* is still found to violate on the face, and if the only thing TiVo may argue is becasue the bench trial is the same part of the jury trial which the contempt issue is the extension of that jury trial, then E* can easily point out that the judge had abused his discretion:

Either by not following the above KSM standard,

Or wasted all the time to have the bench trial, because the bench trial would have been "excluded" were TiVo's such "same complaint" argument true.


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## Greg Bimson

jacmyoung said:


> The jury trial was a complaint, this bench trial is a complaint, they are separate as long as they are not the same complaint.


The jury trial is over. The judgment and injunction were handed out. The new complaint is the violation of the injunction, and this new complaint is to find continuing infringement.

The *modified* versions of the eight models being sold, if found infringement-free, cannot be enjoined and would be free and clear. TiVo will not receive damages for those.

But that has nothing to do with the disable order. DISH/SATS could be found guilty of contempt and still be allowed to keep functionality active in every single DVR.


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## jacmyoung

Greg Bimson said:


> The jury trial is over. The judgment and injunction were handed out. The *new complaint* is the violation of the injunction, and this new complaint is to find continuing infringement.
> 
> The *modified* versions of the eight models being sold, if found infringement-free, cannot be enjoined and would be free and clear. TiVo will not receive damages for those.
> 
> But that has nothing to do with the disable order. DISH/SATS could be found guilty of contempt and still be allowed to keep functionality active in every single DVR.


You just admitted a separate complaint yourself.

The jury trial ended with this injunction taking effect and E* exhausted all its appeals, that complaint was over.

You said TiVo initiated a *new complaint*, and based on your own defintion we are in a separate complaint phase.

And that KSM standard says, if in this separate complaint the devices are not found to infringe, the devices cannot possibly be enjoined by the current Injunction which is part of the previous, separate complaint.

And when it said cannot be possibly enjoined by the current Injunction, it is just that, not be enjoined at all, not it cannot be enjoined in part, but still enjoind by the other part such as the disabling order.


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## Greg Bimson

jacmyoung said:


> And that KSM standard says, if in this separate complaint the devices are not found to infringe, the devices cannot possibly be enjoined by the current Injunction which is part of the previous, separate complaint.


I know you like to leap to a conculsion and believe it to be in your favor before any decision is rendered...

If a modified device is found infringement-free, then that modified device cannot be subject to an order enjoining sales, manufacture or use of an injunction prohibiting infringement.

However, DISH/SATS action of not disabling the devices can still be considered contempt of a valid injunction, irrespective of whether or not the modified devices infringe. You've jumped to a conclusion that isn't supported.

How many pieces of case law do you need? A party is expected to follow the order given by the court until the court deems whether or not it applies.

As I said, once this is done, it is entirely possible DISH/SATS modifications make the receivers infringement-free and Judge Folsom can order zero receivers be disabled, yet DISH/SATS can still be found in contempt for not disabling the DVR's subject to the disable order.

And I certainly do not believe the above will happen, but I am just pointing it out.


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## Greg Bimson

Just to clarify my position:

DISH/SATS always wanted the work-around to be evaluated before contempt could be found on the disable order.

TiVo wants the work-around evaluated to find contempt for sales, use and manufacture of a product they believe still infringes. The damages motion TiVo filed also requires a finding of infringement in order for TiVo to receive more money for continuing infringement.

It is entirely possible Judge Folsom could rule that the modifications now make the receivers infringement-free, and also find DISH/SATS in contempt for not complying with the order to disable. At that point, no receivers would be ordered disabled. That is not what TiVo wants, as they want an order for the receivers to be disabled, to force DISH/SATS to sit down and sign a licensing agreement on TiVo's terms.

Conversely, if the work-around on the receivers is ruled as an infringement, what would happen is Judge Folsom would order ALL of the eight models to be disabled, and damages would be closer to the $220 million TiVo has requested. However, it is possible that Judge Folsom uses some modification of the KSM standard, and finds that DISH/SATS is not in contempt for failing to disable anything.

The disable order and the finding of infringement might not be a hand-in-hand finding.


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## jacmyoung

Greg Bimson said:


> I know you like to leap to a conculsion and believe it to be in your favor before any decision is rendered...


No need to make any accusation since I did not accuse you of anything.

I was only stating my interpretation based on the above KSM quote, when it said the devices cannot possibly be enjoined by the current injunction, it should be interpreted such way, not in a way to say that it may not be enjoined by part of the injunction, but still enjoined by another part of the injunction.


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## Curtis52

The case number for the jury trial and the case number for the bench trial are the same:Case 2:04-cv-00001-DF-CMC


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## jacmyoung

Greg Bimson said:


> ... However, it is possible that Judge Folsom uses some modification of the KSM standard, and finds that DISH/SATS is not in contempt for failing to disable anything...


If infringement is still found, E* will have violated the disabling order because the order was to prohibit continued infringement, a finding of continued infringement means E* was in violation of the order. If the judge somehow says no E* is not in violation of his order, TiVo can appeal and have that decision reversed.


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## jacmyoung

Curtis52 said:


> The case number for the jury trial and the case number for the bench trial are the same:Case 2:04-cv-00001-DF-CMC


If by that you meant the bench trial is exactly the same complaint as the jury trial, then you can probably say the same thing you just said about 9/4, a waste of time because the bench trial can later be easily dismissed on claim preclusion.

The same complaint cannot happen again, once completed.

Unless you are saying the jury trial complaint has not ended yet, even after the Supreme Court's decision. I think it will be too hard a pill for the Appeals Court to swallow just to help out Judge Folsom on this one.


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## Curtis52

It could be that if there is more than a colorable difference but infringing, Dish's actions may not be contemptuous since they would have made a good faith effort as opposed to flagrantly disregarding the court's orders.



> "[C]ontempt is a shield protecting the patentee against an infringer's flagrant disregard for court orders," not "a sword for wounding a former infringer who has made a good-faith effort to modify a previously adjudged or admitted infringing device to remain in the marketplace." Arbek Mfg., 55 F.3d at 1570.


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## Greg Bimson

jacmyoung said:


> If by that you meant the bench trial is exactly the same complaint as the jury trial, then you can probably say the same thing you just said about 9/4, a waste of time because the bench trial can later be easily dismissed on claim preclusion.


The original trial was to find infringement. This bench trial is to determine continuing infringement. I don't see any claim preclusion here.

Besides, unless you see the need for Markman hearings to determine the scope of the patent claims, this trial will be using the same results from the Markman hearings back in 2005/6 to determine continuing infringement.


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## jacmyoung

Curtis52 said:


> It could be that if there is more than a colorable difference but infringing, Dish's actions may not be contemptuous since they would have made a good faith effort as opposed to flagrantly disregarding the court's orders.


Can't disagree.

The problem is, whatever the judgement that will be made based the outcome of this bench trial, whether as I argued to determine the contempt issue, or as Greg argued, to determine the damages issue.

Whatever that is can then be appealed on the ground this bench trial should be dismissed and the verdict of this trial cannot be used for anything.

If outcome is in favor of E*, as a result the damages awarded to TiVo is not what TiVo likes to see, TiVo can appeal and have the damages decision overturned on the ground that this bench trial must be dismissed. The Appeals Court can then in fact determine the correct damages for TiVo without remand.

Or if the outcome is in favor of TiVo and E* is found in contempt based on the outcome of this trial, E* can appeal to have the decision overturned on the exact same ground.

That is why I said this bench trial will be a waste of time, same as the 9/4 hearing being a waste of time, not that I said there was any waste of time though, you said so.


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## James Long

jacmyoung said:


> A "complaint" is a common term used by the court to refer to a trial, a trial is based on a complaint, no matter who initiates it.


I have a complaint. DISH is using TiVo's patented DVR system without permission.

This is the same complaint that TiVo has had since the case began. Each step in RESOLVING the complaint is not a separate complaint.

The injunction and other remedies the court ordered in 2006 were intended to resolve the complaint. Although TiVo's complaint may sound different to a casual reader, at the root it is just the same complaint. DISH is using TiVo's process without permission. (Add the word "still" in there if needed.)

The February hearing is just another step in resolving the complaint ... infringement ... not a new complaint.



jacmyoung said:


> The same complaint cannot happen again, once completed.


Are you saying that the complaint has been handled? That TiVo has been made whole for the infringement by DISH? That there is no question between the parties and the court that infringement has ended or an acceptable outcome has been reached? There has been a lot of activity but no completion.


----------



## jacmyoung

Greg Bimson said:


> The original trial was to find infringement. This bench trial is to determine continuing infringement. I don't see any claim preclusion here.
> 
> Besides, unless you see the need for Markman hearings to determine the scope of the patent claims, this trial will be using the same results from the Markman hearings back in 2005/6 to determine continuing infringement.


As long as you consider this trial the same or continuation of the last one, not a separate complaint, than you are saying the last trial has not completed yet.

But a trial is complete and final when the Supreme Court made it final. To then re-open that complaint and continue on will be a violation of claim preclusion.

Unless of course this complaint is in fact a *separate complaint*.

A separate complaint can of course use the evidence and decisions from the previous complaint if they are relevant. Heck even the decision from totally defferent cases can be used to make arguement on any other cases, why we have been citing case law all this time.


----------



## James Long

The trial is complete ... but the trial is only one step in resolving the complaint.

It is apparent that it will require another trial (February) to answer Judge Folsom's questions and move one step closer to resolving the complaint in a way that is fair to all parties.


----------



## dgordo

The original trial is over and complete. 

But this is part of the same complaint. 

The judge is responsible for making sure that parties to a complaint act in accordance with the verdict and court orders. That is what this bench trial is all about. Is DISH acting in accordance with the verdict and court orders.


----------



## Greg Bimson

jacmyoung said:


> As long as you consider this trial the same or continuation of the last one, not a separate complaint, than you are saying the last trial has not completed yet.


Not a bit. There is a document which allows this court to continue jurisdiction over the infringement matter. The injunction and any issues relating to it belong to Judge Folsom's court.

Judge Folsom has determined there is a need to understand whether or not products continue to infringe, in order to rule upon any or all of:
1) contempt for violations of the disable order
2) contempt for violations of the sales of infringing products order
3) the damages motion

The trial may have been "complete" when SCOTUS refused to hear the appeal from DISH. However, the injunction borne out of the trial is an ongoing document allowing the court to administer any issues relating to the original complaint. The motion for contempt TiVo filed is also a complaint arising out of the judgment and injunction from the original complaint.


jacmyoung said:


> But a trial is complete and final when the Supreme Court made it final. To then re-open that complaint and continue on will be a violation of claim preclusion.


This bench trial is to determing "continuing infringement". That means the original trial/complaint is not being reopened, as it _established_ infringement.


----------



## jacmyoung

James Long said:


> ...The injunction and other remedies the court ordered in 2006 were intended to resolve the complaint


And TiVo's such current complaint is different than the previous complaint, although TiVo wanted to argue it was the same, but it is not. By ordering a new trial the judge was telling TiVo the current complaint should not be considerd the same complaint because TiVo is complain about different things.

What TiVo is complaining now is the modified DVRs, not the old DVRs. Teh current DVRs are different than the old DVRs. The current DVRs have never been tried and found infringements, for that reason they can be re-tried, had the current DVRs been tried already and the trial was final, the current DVRs cannot possibly be again tried in this coming bench trial.



> Are you saying that the complaint has been handled? That TiVo has been made whole for the infringement by DISH?


The complaint TiVo made against the old DVRs had been handled and TiVo had been made whole by E* paying the $100+ million, after the Supreme Court had made it final.



> That there is no question between the parties and the court that infringement has ended or an acceptable outcome has been reached? There has been a lot of activity but no completion.


There of course is question and dispute between the parties, but such complaint by TiVo is a separate complaint for a very simple reason, a previously finalized complaint cannot be reopened and continue.

That is why the current complaint is a separate complaint, if not, one must conclude the last jury trial (including the judgment of the injunction) had not been finalized, or if finalized, can still be re-opened and tried again, and if so, it would have violated Claim Preclusion.


----------



## jacmyoung

Greg Bimson said:


> ... That means the original trial/complaint is not being reopened, as it _established_ infringement.


If so, this complaint is a separate complaint by definition.

Everything you said above does not conclude this complaint is not a separate complaint, only that they are closely related, with many issues in common, some not in common.

But when the original compliant is not reopened and therefore closed (you said so), then what is opening now has to be a separate complaint.


----------



## Greg Bimson

jacmyoung said:


> The complaint TiVo made against the old DVRs had been handled and TiVo had been made whole by E* paying the $100+ million, after the Supreme Court had made it final.


Not quite. When the Final Judgment and Injunction order was issued on 8 September, 2006, all of DISH/SATS devices still infringed, and they've admitted such. Therefore, TiVo still has not been made whole, as TiVo is at least entitled to more damages during the period the injunction went into effect until software was downloaded.


jacmyoung said:


> That is why the current complaint is a separate complaint, if not, one must conclude the last jury trial (including the judgment of the injunction) had not been finalized, or if finalized, can still be re-opened and tried again, and if so, it would have violated Claim Preclusion.


Besides, I erred.

This is not a complaint (in legal terms), but a motion regarding the original complaint. The complaint was about infringement. The motion is about possible violations of an order that arose from the infringement. It is still the same "case".

Just because there is a bench trial does not mean there is a new "complaint".


----------



## James Long

jacmyoung said:


> And TiVo's such current complaint is different than the previous complaint, although TiVo wanted to argue it was the same, but it is not. By ordering a new trial the judge was telling TiVo the current complaint should not be considerd the same complaint because TiVo is complain about different things.


If this was a new complaint it would have a new case number ... we're talking about a continuation of the same old complaint.



> The complaint TiVo made against the old DVRs had been handled and TiVo had been made whole by E* paying the $100+ million, after the Supreme Court had made it final.


So soon you forget the rest of the judgement! The payment of money DOES NOT make TiVo whole ... the rest of that order REQUIRED that DISH disable the DVR functionality on the adjudicated products. Place NO MORE of the adjudicated products with DVR functionality enabled and not develop or place ANY product that infringes on the patent. There is no proof that DISH has done anything more than (eventually) pay the money.

Please come back to reality.


----------



## jacmyoung

dgordo said:


> The original trial is over and complete.


Do you then agree the original complaint is over and complete?



> But this is part of the same complaint.


What complaint, the complaint about the old DVRs or the complaint about the modified DVRs? If you believe the two complaints are the same or part of it, then you must conclude the original compliant is not over nor complete.



> The judge is responsible for making sure that parties to a complaint act in accordance with the verdict and court orders. That is what this bench trial is all about. Is DISH acting in accordance with the verdict and court orders.


Of course, to do so a separate complaint is filed by the judge.


----------



## Curtis52

jacmyoung said:


> Do you then agree the original complaint is over and complete?


The complaint was a document. It was complete the instant it was written.



> COMPLAINT
> 
> What is it? In a civil action, the document that initiates a lawsuit.
> http://www.lawglossary.net/definition/831-COMPLAINT


----------



## jacmyoung

James Long said:


> If this was a new complaint it would have a new case number ... we're talking about a continuation of the same old complaint.
> 
> So soon you forget the rest of the judgement! The payment of money DOES NOT make TiVo whole ... the rest of that order REQUIRED that DISH disable the DVR functionality on the adjudicated products. Place NO MORE of the adjudicated products with DVR functionality enabled and not develop or place ANY product that infringes on the patent. There is no proof that DISH has done anything more than (eventually) pay the money.
> 
> Please come back to reality.


The reality is whatever the dispute now is not proven one way or the other, and to prove it, TiVo argued a separate complaint would not be needed, because their complaint on 5/30 was the same as before, on the "same" DVRs. The same things should not be re-tried due to Claim Preclusion, as TiVo argued.

By ordering a new trial, the judge was telling TiVo no those DVRs will be re-tried, and because they will be re-tried, Claim Preclusion does not apply, he was telling TiVo these modified DVRs are differnt things than the old DVRs, because only the different things may be tried and only be tried in a separate complaint. If they are tried twice in the same complaint, then it by definition violates Claim Preclusion.


----------



## jacmyoung

Curtis52 said:


> The complaint was a document. It was complete the instant it was written.


You only strengthened my point, that if a complaint is complete and over the instant it is written, then another complaint written later will be a separate complaint, and this separate complaint is also complete and over the instant it is written this time.


----------



## James Long

No, not reality.


----------



## Curtis52

jacmyoung said:


> You only strengthened my point, that if a complaint is complete and over the instant it is written, then another complaint written later will be a separate complaint, and this separate complaint is also complete and over the instant it is written this time.


TiVo has not started any new lawsuits.


----------



## jacmyoung

And as I have responded to Curtis52 in an earlier post, which I used the "on alternative" argument, which is basically assuming the opposing argument is true, then I laid out an scenario that again disproved it.

If everything is in the same complaint right now, the judge had made and error by trying to try the same things twice, and such proceeding can be dismissed later on appeal, on Claim Preclusion.


----------



## jacmyoung

Curtis52 said:


> TiVo has not started any new lawsuits.


The judge did. There is no requirement only TiVo may initiate a complaint, anyone can, E* can, the judge can, you can and I can, as long as the complaint has merit and as long as the party making the complaint has the resources and desire to do so.

The judge obviously had agreed there was merit to file another complaint, if nothing else, both parties seemed to say they wanted it. He simply decided to save everyone's hassle and did it for them.


----------



## Curtis52

jacmyoung said:


> The judge did.


No. It's a supplemental action not a new lawsuit. That's why the case number is the same and there is no new Markman hearing.


----------



## jacmyoung

Curtis52 said:


> No. It's a supplemental action not a new lawsuit. That's why the case number is the same and there is no new Markman hearing.


A complaint does not have to be a lawsuit on its own, a supplemenal complaint is a separate complaint as a part of a lawsuit. Why KSM did not use the term "separate lawsuit" rather "separate complaint".

A lawsuit can end up having multiple trials/complaints, each separate but together serve the purpose.

One thing is clear, the same things cannot be tried twice, and when one trial is over, another trial cannot be part of the trial that is over, even though both trials are part of the same lawsuit, each trial is separate from the other.

And there is no need to have another Markman hearing because the new complaint will be using the same evidence and guidelines, plus any new evidence to render the verdict.


----------



## Greg Bimson

jacmyoung said:


> One thing is clear, ths same things cannot be tried twice, and when one trial is over, another trial cannot be part of the trial that is over, even though both trials are part of the same lawsuit, each trial is separate from the other.


Judge Folsom did not state whether he was trying all modified receivers which he already adjudicated or simply the ones sold with the modification, which haven't been adjudged. All that was stated is that he is trying eight models of DVR for continuing infringement.

Yes, technically, Joe Blow's four year old DVR 501 and one sold to Jack Black yesterday are exactly the same, but Judge Folsom didn't exactly tip his hand.


----------



## jacmyoung

Greg Bimson said:


> Judge Folsom did not state whether he was trying all modified receivers which he already adjudicated or simply the ones sold with the modification, which haven't been adjudged. All that was stated is that he is trying eight models of DVR for continuing infringement.
> 
> Yes, technically, Joe Blow's four year old DVR 501 and one sold to Jack Black yesterday are exactly the same, but Judge Folsom didn't exactly tip his hand.


Yes he is, by stating the names of the 8 models of DVRs, he is going to try all the DVRs under such model names, exactly the same as TiVo's complaint from years back, both are about the 8 models of DVRs. There is no specification as "modified", "old" or "new" in neither of the two complaints.

Maybe he should have stated he wanted to try the "new" ones not the "old" ones, but he did not, and that can be the problem, only and only if your interpretation of the law prevails.

I said he did not have to specify at all, because the 8 models of DVRs in the current complaint have never been tried before, they are different things than the 8 models of DVRs before the design around. The previous complaint addressd the 8 models of DVRs with the old design, not the new design.

While the names of the DVRs have always been used, it is in fact the "design" that was on trial and will be on trial again, because the designs are different.

Remember what the court in StarBrite said? It was the "internal formulation" that was on trial and prohibited, not the products themselves, even though the names of the products had always been used during the trial and during the contempt proceeding.


----------



## Greg Bimson

It is possible Judge Folsom understands the receiver can have its nature changed by a download. I'm pretty certain he knows that Joe Blow's receiver was adjudged and Jack Black's was not, yet they are exactly the same.

So perhaps, unlike all of the standards we've discussed here, Judge Folsom has decided this is an extraordinary case which requires a new standard. After all, Judge Folsom is the one that created the standard for _Paice v. Toyota_.


----------



## dgordo

Lets get some legal terms straight here because they are being used improperly:

A complaint is basically a piece of paper. From Black's Law Dictionary:

"A complaint is the original or initial pleading by which an action is commenced under the rules of civil procedure."

"An action is a suit brought in court."

The complaint was the initial piece of paper that Tivo filed to start this action. The action was completed when all appeals from the jury verdict where finished. But if the action is is complete what is going on? The judge always retains jurisdiction over an action even when it is completed to ensure that all parties to the action are complying with the final order. Tivo has claimed that DISH is not complying with the final order. The judge is now trying to determine if that is the case.


----------



## Curtis52

Greg Bimson said:


> It is possible Judge Folsom understands the receiver can have its nature changed by a download. I'm pretty certain he knows that Joe Blow's receiver was adjudged and Jack Black's was not, yet they are exactly the same.


A software change is a physical change. The DVRs are not "exactly the same".


----------



## Greg Bimson

You've misinterpreted me. I said the four-year old adjudged 501 DVR with a modification (which technically was adjudged) and the four-day old 501 DVR with that modification (technically not adjudged) are the same. Unless I am misinterpreting you.


----------



## Curtis52

Oh, OK.


----------



## jacmyoung

dgordo said:


> Lets get some legal terms straight here because they are being used improperly:
> 
> A complaint is basically a piece of paper. From Black's Law Dictionary:
> 
> "A complaint is the original or initial pleading by which an action is commenced under the rules of civil procedure."
> 
> "An action is a suit brought in court."
> 
> The complaint was the initial piece of paper that Tivo filed to start this action. The action was completed when all appeals from the jury verdict where finished. But if the action is is complete what is going on? The judge always retains jurisdiction over an action even when it is completed to ensure that all parties to the action are complying with the final order. Tivo has claimed that DISH is not complying with the final order. The judge is now trying to determine if that is the case.


Thank you for the above.

And your further explanation actually remind me again what the judge said on 9/4 when he asked the TiVo's lawyer, what if I found no violation on the face, and a "new action" would be needed either in the DE court or in my court, what did that leave you?

In front of the court was a piece of paper complaining the 8 models of DVRs infringed, an action was granted and after many years such action was concluded by a finding of infringement, a judgment and an injunction upheld.

Towards the end of that old action, TiVo filed another piece of paper of complaint, that second complaint was not about the 8 models infringed, it was about the use of the 8 models violating the injunction, in fact TiVo made a point of saying it had nothing to do with infringement complaint, only "on the face" violation. It was a separate complaint because it complained about totally different subjects, one was an act of infringement, the other was an act of not obeying an order.

Now the judge implied that he might bring up a "new action", which later he did, by the way of this new bench trial. The only difference was instead of allowing the "new action" to occur in the DE court, he decided to have such "new action" again in his own court.

He did not say the old action could continue, as you said so too, the old action was over. Otherwise he would have said, what if I did not find violation on the face, and the "old action" would continue, either in the DE court, or in my court, what did that leave you?

The term "new action" used by the judge agreed with your above definitions very well. The reason he said it would be a new action was because it was a new complaint, a separate complaint

You are right that even if the old action was over, the court still has jurisdiction over it, and if parties file a new complaint, he can decide if a *summary contempt proceeding* may be used without starting a "new action", but if he cannot, because susbstantial open issues exist, then he must ask parties to start a "new action", or he can start it for them.

We can of course argue if this "new action" is still a part of the contempt proceeding or is itself a contempt proceeding, or not.

The point here is there are two separate complaints we are discussing here.


----------



## jacmyoung

If as a result of such second complaint, which is separate from the complaint filed by TiVo years back, and whatever the actions taken to resolve such second complaint, it does not even matter if the action is old, new or something in between, in the end if the devices are found not infringements, then those devices cannot possibly be enjoined in the current injunction, period, not enjoined by a part of it, but not by the other part.

This much is clear from KSM.


----------



## Greg Bimson

Unbelievable.


----------



## Curtis0620

And if the Hardware is found to infringe based on the Doctrine of Equivalents?

What happens then?


----------



## Greg Bimson

jacmyoung said:


> Towards the end of that old action, TiVo filed another piece of paper of complaint, that second complaint was not about the 8 models infringed, it was about the use of the 8 models violating the injunction, in fact TiVo made a point of saying it had nothing to do with infringement complaint, only "on the face" violation.


TiVo later filed a motion to find DISH/SATS in contempt for violations of the injunction, given from a guilty verdict from the complaint.

This is NOT another complaint.


----------



## dfd

jacmyoung said:


> The judge did. There is no requirement only TiVo may initiate a complaint, anyone can, E* can, the judge can, you can and I can, as long as the complaint has merit and as long as the party making the complaint has the resources and desire to do so.
> 
> The judge obviously had agreed there was merit to file another complaint, if nothing else, both parties seemed to say they wanted it. He simply decided to save everyone's hassle and did it for them.


Anyone can?

Standing?

"The party suing must have something to lose in order to sue unless they have automatic standing by action of law." - http://en.wikipedia.org/wiki/Standing_(law)


----------



## Greg Bimson

jacmyoung said:


> The judge obviously had agreed there was merit to file another complaint, if nothing else, both parties seemed to say they wanted it. He simply decided to save everyone's hassle and did it for them.


Merit to file another complaint? There is no complaint; Judge Folsom has issued an order for a bench trial, to resolve the pending motion in front of him.


----------



## jacmyoung

Greg Bimson said:


> Merit to file another complaint? There is no complaint; Judge Folsom has issued an order for a bench trial, to resolve the pending motion in front of him.


Too late Greg, dgordo had already pointed out, a complaint is just a piece paper filed alleging something, it does not have to have any merit, he corrected me.

When TiVo filed a piece of paper years ago, there existed a complaint.

When TiVo filed a piece of paper in 05/08, there existed another complaint.

When E* filed a piece of paper in 06/08 in the DE court, there existed yet another complaint.


----------



## dgordo

jacmyoung said:


> Too late Greg, dgordo had already pointed out, a complaint is just a piece paper filed alleging something, it does not have to have any merit, he corrected me.
> 
> When TiVo filed a piece of paper years ago, there existed a complaint.
> 
> When TiVo filed a piece of paper in 05/08, there existed another complaint.
> 
> When E* filed a piece of paper in 06/08 in the DE court, there existed yet another complaint.


You have the terms messed up again.

When TiVo filed a piece of paper years ago, they filed a complaint.

When TiVo filed a piece of paper on 05/08, they filed a motion.

When E* filed a piece of paper on 06/08 in the DE court, they filed a complaint to begin another action.


----------



## Greg Bimson

jacmyoung said:


> When TiVo filed a piece of paper years ago, there existed a complaint.
> 
> When TiVo filed a piece of paper in 05/08, there existed another complaint.
> 
> When E* filed a piece of paper in 06/08 in the DE court, there existed yet another complaint.


In order:
Yes
*NO*
Yes

A complaint initiates a lawsuit. The motion is about that lawsuit. The fact that the trial, final judgment and injunction order have finished the appeals process in no way means the court lacks jurisdiction to preside over matters of that final judgment and injunction order.

We'll have now spent a few pages explaining terminology.


----------



## jacmyoung

Thank you both for the good education.

Next, please tell me this:

When TiVo alleged the 8 models of DVRs infringements initially, and later a final judgment was rendered and upheld and made final.

Then is it legal to have the same 8 models of DVRs to be again adjudicated for the same claim at hand, that they are infringements?

Why is it not a ground for appeal and dismiss citing Claim Preclusion, after this bench trial is over?


----------



## James Long

jacmyoung said:


> If everything is in the same complaint right now, the judge had made and error by trying to try the same things twice, and such proceeding can be dismissed later on appeal, on Claim Preclusion.


The judge is not trying the same thing twice. The first trial was about whether or not DISH had infringed on TiVo's patent at that time. This trial is about whether they still actually infringe. Two questions that are part of the same complaint - "DISH is infringing on TiVo's patent rights!"



jacmyoung said:


> Yes he is, by stating the names of the 8 models of DVRs, he is going to try all the DVRs under such model names, exactly the same as TiVo's complaint from years back, both are about the 8 models of DVRs.


You're not paying attention. READ the order. "to determine whether EchoStar's DP-501, DP-508, DP-510, DP-522, DP-625, DP-721, DP-921, and DP-942 receivers *continue* to infringe".



jacmyoung said:


> We can of course argue if this "new action" is still a part of the contempt proceeding or is itself a contempt proceeding, or not.


We could, but there is only one person in this thread who believes that. The rest of us understand the place this upcoming trial has in the overall process.



> The point here is there are two separate complaints we are discussing here.


No, it isn't.

ONE complaint ... DISH infringed TiVo's patent ... one request, for the court to do something about it. The process continues until all parties are satisfied that enough has been done or until both sides have exhausted their legal rights.



jacmyoung said:


> Then is it legal to have the same 8 models of DVRs to be again adjudicated for the same issue at hand, that is whether they are infringements or not?


The question now is whether they STILL infringe. Nothing to be decided in the February trial will reverse the adjudication from 2006.


----------



## jacmyoung

The reason they are the same claim is because they are about the same models of DVRs, and the claim is the same, that they infringe on the TiVo's same patent.

Same subjects, same claim, for the same offense, time difference is precisely what the Claim Preclusion is trying to avoid, it says one can not try something once and after the decision is final, then in a later time to try it again for the same claim.

Unless you can say last time the claim was about infringements on the TiVo's patent, this time is *not* about infringements on the Tivo's patent, if so please tell me what it is.

Again whether "still infringements" dose not change the fact of trying the same claim twice.


----------



## James Long

Sorry, strawman, you're changing what you're arguing about again.
Does that mean you finally admit that this is all one complaint?


Perhaps you will find answers to your questions if you READ what has been posted in this thread.


----------



## jacmyoung

James Long said:


> Sorry, strawman, you're changing what you're arguing about again.
> Does that mean you finally admit that this is all one complaint?


Yes, I already thanked Greg and dgordo for the education.



> Perhaps you will find answers to your questions if you READ what has been posted in this thread.


My latest question has not been answered in satisfaction


----------



## Ergan's Toupe

jacmyoung said:


> If as a result of such second complaint, which is separate from the complaint filed by TiVo years back, and whatever the actions taken to resolve such second complaint, it does not even matter if the action is old, new or something in between, in the end if the devices are found not infringements, then those devices cannot possibly be enjoined in the current injunction, period, not enjoined by a part of it, but not by the other part.
> 
> This much is clear from KSM.


Wow. Just wow.....

My head hurts. :bang


----------



## Curtis52

A portion of the lawsuit complaint:








Document #1 Case 2:04-cv-00001-DF-CMC


----------



## jacmyoung

Ergan's Toupe;1897931 said:


> Wow. Just wow.....
> 
> My head hurts. :bang


My head hurts too.

Hopefully someday you will feel better when E* is finally found in contempt, at the meantime people are asking what did TiVo do that was wrong? What did the judge do that was wrong? What happened?

I am helping by asking legit questions, because if E* is finally found in contempt, and if the ruling could be easily overturned on technical ground, that will hurt more.


----------



## jacmyoung

Curtis52 said:


> A portion of the lawsuit complaint:
> 
> View attachment 16467


Care to answer my question, the 8 models of DVRs had been tried and found to infringe on the TiVo's 389 patent, a final judgment (including damages and an injunction, among other things) was made final after the Supremet Court decision.

Now the judge had ordered the same 8 models of DVRs been tried again to determine if they infringe on the same TiVo's 389 patent.

Could it be used as ground for appeal, no matter which party wants to?


----------



## dgordo

jacmyoung said:


> Care to answer my question, the 8 models of DVRs had been tried and found to infringe on the TiVo's 389 patent, a final judgment (including damages and an injunction, among other things) was made final after the Supremet Court decision.
> 
> Now the judge had ordered the same 8 models of DVRs been tried again to determine if they infringe on the same TiVo's 389 patent.
> 
> Could it be used as ground for appeal, no matter which party wants to?


That is not what the judge has ordered. He is trying to determine if DISH has violated the final order.


----------



## jacmyoung

dgordo said:


> That is not what the judge has ordered. He is trying to determine if DISH has violated the final order.


By "final order" I hope you meant the final Injunction? Which includes every order in it, such as the second order?

Therefore by saying this order is trying to determine if E* has violated the final order, to me it is also saying the outcome of this trial will provide the answer, if yes, infringements, a violation, if no, not infringements, no violation?


----------



## Greg Bimson

jacmyoung said:


> Therefore by saying this order is trying to determine if E* has violated the final order, to me it is also saying the outcome of this trial will provide the answer, if yes, infringements, a violation, if no, not infringements, no violation?


Only two questions from TiVo:

1) Did DISH/SATS violate the order for failing to disable the adjudged receivers?
2) Did DISH/SATS violate the order for failing to cease sales of infringing products?

A finding of infringement would definitely fix question 2. The answer is unknown regarding question 1. Judge Folsom did not tip his hand why he must find continuing infringement, but we know that question 2 needs to be answered.


----------



## jacmyoung

Now another point is, by reading the new order, it is to determine if the 8 models of DVRs continue to infringe the patent.

By simply issuing this order in such form, I think it already landed credit to E*'s argument that once an Infringing Product, not always Infringing Product, if modified to no longer be an infringing product, then the judge may not call it an Infringing Product anymore.

And since the injunction specifically ordered the DVR functions disabled from the Infringing Products, if the judge can no longer call them Infringing Products, they are certainly not subject to the judge's second disable order.

I am not saying you all have to agree with this line of logic, but I think the wording of this order most certainly make E*'s next argument much easier, if they can prove no infringements of course.


----------



## jacmyoung

Greg Bimson said:


> Only two questions from TiVo:
> 
> 1) Did DISH/SATS violate the order for failing to disable the adjudged receivers?
> 2) Did DISH/SATS violate the order for failing to cease sales of infringing products?
> 
> A finding of infringement would definitely fix question 2. The answer is unknown regarding question 1. Judge Folsom did not tip his hand why he must find continuing infringement, but we know that question 2 needs to be answered.


Then he needed to be more specific in my view, to put in his order that to find if the 8 models of DVRs, *sold after 09/06*, (or whatever the date should be) continue to infringe on the patent...

If not, then as I said above, it lands credit to E*'s argument. Because all the 8 models of DVRs are included, and once found no longer infringing products, it will be every difficult for the judge to tell E* but some of them are still Infringing Products, I don't care what you say.


----------



## Ergan's Toupe

jacmyoung said:


> I am helping by asking legit questions,


No you're not. You're just throwing crap at the wall to see what sticks. You were told at least 15 times this is not a new trial, yet you refuse to accept it.

No offense, but your act is already getting old. And this thread is going to get closed again because you refuse to listen to reason. I'm tired of wading through a hundred posts of the same old crap.

It's the same freaking trial, ok? That much was proven 100 posts ago. Folsom didn't rule anything yet. Deal with it.


----------



## Greg Bimson

jacmyoung said:


> If not, then as I said above, it lands credit to E*'s argument. Because all the 8 models of DVRs are included, and once found no longer infringing products, it will be every difficult for the judge to tell E* but some of them are still Infringing Products, I don't care what you say.


I'll bite. I agree.

So maybe when Judge Folsom asked DISH/SATS counsel McElhinny if he was supposed to read the SEC filings, or why he wasn't informed of a workaround, maybe the mistake was that DISH/SATS should have filed a motion for clarification regarding their workaround?

Either way, TiVo and DISH/SATS were talking two different languages when it came to this injunction, and finding whether or not all modifications to the eight originally adjudged DVR's would be a good way to resolve this case...


----------



## Ergan's Toupe

jacmyoung said:


> I don't care what you say.


Obviously. So why are you here?


----------



## Jim5506

These guys should work for the Federal Register.

They put out BS with the best of them.


----------



## James Long

jacmyoung said:


> I am helping by asking legit questions, because if E* is finally found in contempt, and if the ruling could be easily overturned on technical ground, that will hurt more.


Thanks for your "help" but I'm sure the DISH legal team has it all under control. No more hypotheticals laced with misunderstandings of the legal process are needed.

DISH's legal team knows what a complaint is. They understand that the February 17-18th trial is a legitimate and allowed part of the process (if they disagree they know where the appeals court is).


----------



## jacmyoung

James Long said:


> Thanks for your "help" but I'm sure the DISH legal team has it all under control. No more hypotheticals laced with misunderstandings of the legal process are needed.
> 
> DISH's legal team knows what a complaint is. They understand that the February 17-18th trial is a legitimate and allowed part of the process (if they disagree they know where the appeals court is).


Maybe I did not make myself clear, I could care less about helping E*, it is Charlie's money, he can decide however ways to spend it. But folks here wonder why there is still no contempt ruling, especially after they were so convinced E* had violated the order flagrantly. Where is the justice?

People started to ask questions like could TiVo have done differently? Could the judge have done differently? What will happen now?

Will a contempt ruling be out some time from now and the conclusion of the next trial? If not, how much the impact will the next verdict have on the contempt issue? I am not the one started asking those questions, in fact I had no questions to ask because in my view nothing wrong had happened, things had been moving along just as I expected

But if others asked theirs, I thought I wanted to ask mine. Thanks to some I learned a great deal too.


----------



## jacmyoung

Greg Bimson said:


> I'll bite. I agree.
> 
> So maybe when Judge Folsom asked DISH/SATS counsel McElhinny if he was supposed to read the SEC filings, or why he wasn't informed of a workaround, maybe the mistake was that DISH/SATS should have filed a motion for clarification regarding their workaround?
> 
> Either way, TiVo and DISH/SATS were talking two different languages when it came to this injunction, and finding whether or not all modifications to the eight originally adjudged DVR's would be a good way to resolve this case...


That is the most conciliatory post you have ever done for me, I appreciate it

Sounded to me you no longer believe E* had flagrantly violated the order, at least in the judge's mind E* did make a good effort to try to comply, based on the way E* interpreted his order, though the way they did it was not the most ideal way.

I will agree with you on this too, I sensed on 9/4 the judge wanted to blame E* for not keeping him in the loop, it almost seemed he felt had he been kept in the loop he could have helped the situation for example by making his injunction more clear and concise, like those other cases we discussed.


----------



## dgordo

jacmyoung said:


> By "final order" I hope you meant the final Injunction? Which includes every order in it, such as the second order?
> 
> Therefore by saying this order is trying to determine if E* has violated the final order, to me it is also saying the outcome of this trial will provide the answer, if yes, infringements, a violation, if no, not infringements, no violation?


By final order I mean this document called final judgment, the final order from the trial.


----------



## jacmyoung

dgordo said:


> That is not what the judge has ordered. He is trying to determine if DISH has violated the final order.


And I do not mean to pick on you dgordo, but I forgot to mention that you did not truly answer my previous question.

Though you said the judge's order was to determine if E* violated the final order or not, that does not make trying to try the same products for the same offense twice a proper way to go about it.

My understanding is, even if the goal is a good one, to determine whether a violation had occurred, and even if the final decision will be the right one and legal one, but the means to which he uses to reach that conclusion must also be legal and proper, if the final ruling is to be able to stand up to any challenge.

Is my understanding correct?


----------



## PTravel

I'm an intellectual property litigator, and among other things I litigate patent infringement. I haven't tried to wade through the hundreds of posts in this thread, but I'll try to make some sense out of the last few posts.

1. When a judgment finding patent infringement is tried on the merits and no further appeals are possible, it is res judicata, i.e. a thing decided by law. The question of infringement cannot be re-tried by either party.

2. Patent infringement is determined by comparing the accused device against specific claims in a patent. If the device contains all the limitations in any single claim, the patent is infringed.

3. If a plaintiff prevails in a patent infringement action, the standard remedies are damages and a permanent injunction. The permanent injunction precludes the defendant from infringing the claims of the patent that have been adjudged infringed.

4. Note that infringement results when a single claim of a patent is infringed. Most patents contain more than one claim. A plaintiff can choose to litigate a single claim or multiple claims in a patent infringement action. However, if a plaintiff litigates a single claim, he generally will be prohibited from subsequently litigating other claims in the patent in a separate action against the same defendant. Federal Rule of Civil Procedure 19 defines compulsory joinder, i.e. when a plaintiff is required to bring in other related claims. Because of FRCP 19, it would generally not be possible to litigate different claims in the same patent against the same defendant in a subsequent action.

5. Most defendants will comply with the permanent injunction by making changes to the accused device ("accused device" is "patentese" for the product that is alleged to infringe). There is generally no requirement that the defendant change the name or product designation of the accused device -- only that it be re-designed so that it no longer infringes. A defendant may introduce a design change that it thinks is sufficient to avoid infringement, but the plaintiff may believe it still infringes. The correct remedy would be to enforce the permanent injunction. This is generally done by bringing a motion before the court with jurisdiction, i.e. the court that issued the permanent injunction. The motion would be styled as, "Motion for an Order to Show Cause why Defendant should not be held in contempt for violation of the Permanent Injunction." It would be very unusual to file a new lawsuit alleging violation of the injunction. Some courts, however, require creation of a new matter for enforcement of injunctions -- this is done for docketing purposes. It is also possible that the either the parties agreed or the injunction specified that a different court would have enforcement jurisdiction over the judgment. This, too, would require filing a new matter. The form, however, would not be a complaint, though I've seen some lawyers make this mistake.

6. Whatever form of action is utilized to enforce the permanent injunction, patent infringement itself is not relitigated. There are two elements that most be proven to establish infringement: ownership of a valid patent and infringement of at least one of its claims. Ownership is tested by the defendant in the course of litigation. For example, a patent may only issue on an invention that is new, non-obvious and useful. Utility is rarely at issue in patent litigation -- if an invention isn't useful, there is no reason for the defendant to have used it. However, patents are routinely challenged in litigation on the grounds of not being new (this is proven by showing "prior art" demonstrating the invention), or of being obvious -- the standard is, "obvious to one skilled in the art." The validity of patents may also be challenged on procedural grounds, by alleging fraud on the Patent and Trademark Office, and on standing grounds.

Once a patent infringement action has been litigated to final judgment on the merits, the question of patent validity may not be re-opened by the same defendant in the context of responding to an OSC re: Contempt. 

Another key element in a patent infringement litigation is the Markman hearing, a mid-litigation bench trial in which the judge determines the scope of the claims of the patent. This is a key part of the litigation and will, for all intents and purposes, determine who will ultimately win. If the claims are given a broad scope by the judge, it is more likely that the accused product will come within ("read on" in patentese) the claims. A very narrow scope makes it more likely that the accused product doesn't infringe.

As with patent validity, the scope of the claims may not be re-opened by the same defendant in the context of responding to an OSC re: Contempt.

This is probably more than anyone wants to know about patent infringement, but I hope it is helpful.


----------



## Greg Bimson

I can still go back and state what I had stated before:

Does the fact that a modification was made to the adjudged receivers, the ones subject to the disable order, make them no longer subject to the disable order?

This order for the bench trial doesn't give enough information to say what Judge Folsom is thinking. If he intends to "re-try" the receivers found infringing, then we know it is being done to see if they should still apply to the disable order, which is exactly what DISH/SATS wants. If he is trying the receivers sold since the injunction became active, then he is applying _KSM_, which is exactly what TiVo wants.

And if it is a combination of both, the loser will appeal. If DISH/SATS loses, the appeal would be that Judge Folsom didn't adjudge infringement correctly. If TiVo loses, they'd appeal that a finding of infringement on the receiver again should not have to be determined to follow the disable order.

It isn't like Judge Folsom believes whatever he rules will be appealed, so he may as well go for the gold.

Then again, as Curtis52 stated, TiVo did stipulate there were modifications made to the adjudged receivers. And that may change the whole ballgame.


jacmyoung said:


> Sounded to me you no longer believe E* had flagrantly violated the order, at least in the judge's mind E* did make a good effort to try to comply, based on the way E* interpreted his order, though the way they did it was not the most ideal way.


No, I still feel that the way this should have been handled was DISH/SATS informed Judge Folsom of the work-around and filed a motion for consideration to take the adjudged receivers out of the scope of the injunction. That means if the injunction became active, that DISH/SATS would have disabled the receivers until the work-around was adjudged to be infringement free.

That reminds me of the egg processing case. In this case, since it was remanded to Judge Folsom, there have been three motions filed: the DISH/SATS motion for clarification (which they canceled), TiVo's contempt motion and TiVo's additional damages motion. In the egg processing case, the decision mentions that the infringer filed several motions discussing their new process. I'll assume they also filed a motion for clarification. So of course, the judge when confronted with a contempt motion from the patentee had all this information about the new process, he had hard facts from the infringer that there was a substantial question regarding infringement, while the patentee filed contempt based upon theory that it could only be colorably different.

A ruling on the status of infringement regarding the modified receivers squashes all of that, and I have the distinct feeling he is creating new case law. The courts don't have any case law regarding changes to an adjudged device subject to a disable order.


----------



## Greg Bimson

PTravel said:


> 6. Whatever form of action is utilized to enforce the permanent injunction, patent infringement itself is not relitigated.


So the question becomes:

Is a bench trial to find 'continuing infringement' a 'relitigation'?


----------



## dgordo

Greg Bimson said:


> So the question becomes:
> 
> Is a bench trial to find 'continuing infringement' a 'relitigation'?


Of course not. If it were a judge would never be able to enforce an injunction in an infringement case when his order to stop infringement was not followed.


----------



## dgordo

jacmyoung said:


> And I do not mean to pick on you dgordo, but I forgot to mention that you did not truly answer my previous question.
> 
> Though you said the judge's order was to determine if E* violated the final order or not, that does not make trying to try the same products for the same offense twice a proper way to go about it.
> 
> My understanding is, even if the goal is a good one, to determine whether a violation had occurred, and even if the final decision will be the right one and legal one, but the means to which he uses to reach that conclusion must also be legal and proper, if the final ruling is to be able to stand up to any challenge.
> 
> Is my understanding correct?


There is a difference between finding infringement and continuing infringement after it has been ordered to be stopped. If they were the same a judge would never be able to enforce an injunction in an infringement case when his order to stop infringement was not followed.


----------



## jacmyoung

dgordo said:


> There is a difference between finding infringement and continuing infringement after it has been ordered to be stopped. *If they were the same a judge would never be able to* enforce an injunction in an infringement case when his order to stop infringement was not followed.


Though I am not too clear about the part following the highlighted part, but I want to focus on the highlighted part for now.

If they are *not the same*, and they are found not infringements, then should E*'s argument prevail, that non of the accused products fall into the scope of this injunction anymore, because even that second order is to prohibit the old products, and not the modified products, which as you said are not the same as the old ones.


----------



## jacmyoung

PTravel said:


> ...This is probably more than anyone wants to know about patent infringement, but I hope it is helpful.


Thanks for the summary, though I think you explained it, but may I ask you to clarify, if the accused products are found not infringements, can the defendant still be found in contempt of the injunction for the continued use of such accused products, just because a specific order in that injunction?


----------



## Greg Bimson

jacmyoung said:


> If they are *not the same*, and they are found not infringements, then should E*'s argument prevail, that non of the accused products fall into the scope of this injunction anymore, because even that second order is to prohibit the old products, and not the modified products, which as you said are not the same as the old ones.


Not the same, in the context that finding infringement and litigating continiuning infringement are different.

But look what happens on the determination of continuing infringement...

The Court: The modified receivers are infringements. They are also merely colorably different than those I adjudged in 2006. I order $XXX million in damages, and I also order these infringements to be disabled.


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## jacmyoung

Greg Bimson said:


> ...The courts don't have any case law regarding changes to an adjudged device subject to a disable order.


Oh yes, a lot of them. The egg process case you mentioned, and the Footprint2.0 case too, both of them had the "disable orders" shutting down the existing infringing process and service, in addition to prohibiting any new sale, new use.. of the same infringing items.

In both cases the exsiting service and process were modifed while in use, in the field, and there were no contempt.

What you have argued about the details of those two cases in no way refute the fact that they did have the disabling orders to disable the already adjudicated things in the field which were already in use, which were never disabled.


----------



## jacmyoung

Greg Bimson said:


> Not the same, in the context that finding infringement and litigating continiuning infringement are different.
> 
> But look what happens on the determination of continuing infringement...
> 
> The Court: The modified receivers are infringements. They are also merely colorably different than those I adjudged in 2006. I order $XXX million in damages, and I also order these infringements to be disabled.


The Court: The modifed receivers are not infringements, no contempt.

Once infringement issue is settled, colorable issue is moot.


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## Greg Bimson

jacmyoung said:


> Oh yes, a lot of them. The egg process case you mentioned, and the Footprint2.0 case too, both of them had the "disable orders" shutting down the existing infringing process and service, in addition to prohibiting any new sale, new use.. of the same infringing items.


You can go back and look at my discussion above of the egg processing case. It appears the infringer told the court of the work-around "through a series of motions". The only motion that DISH/SATS filed was not about the work-around.

The Footprint 2.0 case only prohibited the service as configured. Change the configuration, and the injunction could not apply to it.


jacmyoung said:


> The Court: The modifed receivers are not infringements, no contempt.
> 
> Once infringement issue is settled, colorable issue is moot.


And that would be correct if the modifications do not infringe, with the only question remaining being contempt for violations of the disable order.

Think Walker v. Birmingham. The order is to disable, and it hasn't been followed. A granting of the contempt motion in that sense would not help TiVo, as nothing would be disabled.


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## Curtis0620

jacmyoung said:


> The Court: The modifed receivers are not infringements, no contempt.
> 
> Once infringement issue is settled, colorable issue is moot.


Hardware infringes base on "Doctrine of Equivalents", case closed.


----------



## Greg Bimson

Curtis0620 said:


> Hardware infringes base on "Doctrine of Equivalents", case closed.


I don't believe it is that cut-and-dried.

The modifications to the software have bypassed quite a bit of the hardware infringement. The question remaining on the hardware infringement is if any still exists. Not whether or not it did exist ages ago.

I assume we'll see more, as I believe the arguments have to be filed in the form of briefs as the court date draws nearer.


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## jacmyoung

Greg Bimson said:


> You can go back and look at my discussion above of the egg processing case. It appears the infringer told the court of the work-around "through a series of motions". The only motion that DISH/SATS filed was not about the work-around.
> 
> The Footprint 2.0 case only prohibited the service as configured. Change the configuration, and the injunction could not apply to it...


The point was whether there were prior cases where an already adjudicated thing and already in use was modified while still in use, after been ordered to be disabled.

That happened in both cases, whether what the infringer did, or what the injunction referred to did not change the fact they happened.

After that, you can then argue but this, but that. But the answer to your above question, and that question alone, was affirmative.

Now if you want to then argue but in the egg process case, the infringer actively motioned the court to explain how they modified the process, you can do that, my only response is the injunction never required E* must keep the court in the loop regarding the modification. The court of course would prefer it, but if it did not happen, as long as there is no requirement it has to be done, the court cannot find violation for infringer not doing things the court did not ask the infringer to do.

And if you want to argue that the injunction only prohibited the specific configuration tried during the trial, my response is it goes without saying all injunctions refer to the prohibited items to be the ones configured and tried during the trials. The reason is simple:

Only the act of infringement may be prohibited, the injunction only prohibits the things that were adjudicated during the trial to be infringements, as such, whatever is prohibited in the injunction has to be as configured and tried during the trial, because only such things that were configured and tried in the trial were found infringements, not anything else.

In another word, the injunction does not have to specify the configuration or referring to the trial, it is automatically implied.


----------



## dgordo

jacmyoung said:


> If they are *not the same*, and they are found not infringements, then should E*'s argument prevail, that none of the accused products fall into the scope of this injunction anymore, because even that second order is to prohibit the old products, and not the modified products, which as you said are not the same as the old ones.


Thats not for me to decide. Tivo has presented another argument, the face of the injunction argument. I have no idea what the judge will decide.


----------



## Greg Bimson

jacmyoung said:


> The point was whether there were prior cases where an already adjudicated thing and already in use was modified while still in use, after been ordered to be disabled.
> 
> That happened in both cases, whether what the infringer did, or what the injunction referred to did not change the fact they happened.


But it is an important distinction.

In the two cases you cite, neither involved a product at an end user's location. The egg processing case is about a process before the egg is sold; the egg is not the infringement. The Footprint 2.0 case is about a process embodied in a service. This case is about a receiver.


jacmyoung said:


> Now if you want to then argue but in the egg process case, the infringer actively motioned the court to explain how they modified the process, you can do that, my only response is the injunction never required E* must keep the court in the loop regarding the modification.


But the only point I make is that the device ruled as an infringement is still subject to the court. You must agree with that now, as Judge Folsom is ordering a bench trial for a determination of "continuing infringement". This is an action on the suit regarding infringement.


----------



## scooper

Greg Bimson said:


> But it is an important distinction.
> 
> In the two cases you cite, neither involved a product at an end user's location. The egg processing case is about a process before the egg is sold; the egg is not the infringement. The Footprint 2.0 case is about a process embodied in a service. This case is about a receiver.But the only point I make is that the device ruled as an infringement is still subject to the court. You must agree with that now, as Judge Folsom is ordering a bench trial for a determination of "continuing infringement". This is an action on the suit regarding infringement.


Industrial Process / server farm - vs Dish recievers at subscriber's homes - BFD - they're all endusers.


----------



## jacmyoung

Greg Bimson said:


> But it is an important distinction.
> 
> In the two cases you cite, neither involved a product at an end user's location. The egg processing case is about a process before the egg is sold; the egg is not the infringement. The Footprint 2.0 case is about a process embodied in a service. This case is about a receiver.


The Court never tried to distinguish between products, devices, services, processes or anything else. It is the infringement that is the issue, whatever *the thing* that is involved:

"Adjudication of infringement is a determination that a thing is made, used or sold without authority under the claims of a valid enforceable patent. Thus, the status of an infringer is derived from the status imposed on the thing that is embraced by the asserted patent claims, the thing adjudicated to be infringing." Young Engrs Inc. v. USITC.



> But the only point I make is that the device ruled as an infringement is still subject to the court. You must agree with that now, as Judge Folsom is ordering a bench trial for a determination of "continuing infringement". This is an action on the suit regarding infringement.


I never said it was not up to the court to adjudicate, therefore I do not have to admit it now. Of course it is up to the court to determine an infringement, what I said has always been, in a contempt proceeding, if the patentee fails to prove infringement by clear and convincing evidence, a contempt may not be found, to continue the accused *thing* must be tested in an infringement trial, and if in that trial the court determines no infringement, there cannot possibly be violation of a court injunction.

If after that trial that accused *thing* is deemed an infringement by the court, a violation therefore a contempt.


----------



## Greg Bimson

scooper said:


> Industrial Process / server farm - vs Dish recievers at subscriber's homes - BFD - they're all endusers.


Ahh, but the egg processing case isn't against infringing eggs, it was about the infringing process used on those eggs. The infringing product wasn't sold to the customer, as there wasn't an infringing product.

The Footprint 2.0 service was not against infringing hardware. It was against a process; there wasn't and infringing product other than the software which could be replaced.

In this case, the embodiment of the infringement is the receiver, sold to customers.


----------



## scooper

Greg Bimson said:


> Ahh, but the egg processing case isn't against infringing eggs, it was about the infringing process used on those eggs. The infringing product wasn't sold to the customer, as there wasn't an infringing product.
> 
> The Footprint 2.0 service was not against infringing hardware. It was against a process; there wasn't and infringing product other than the software which could be replaced.
> 
> In this case, the embodiment of the infringement is the receiver, sold to customers.


Precisely the point - the PROCESS of the egg processing and the SERVICE are the end products - aka the INFRINGING products. No difference between those "products" - same as the Dish receivers.


----------



## Greg Bimson

scooper said:


> Precisely the point - the PROCESS of the egg processing and the SERVICE are the end products - aka the INFRINGING products. No difference between those "products" - same as the Dish receivers.


Not precisely the point, as claim 31 of the Time Warp patent is an apparatus. That apparatus is the receiver, infringing and sold to customers.

The egg is not the infringement; the PROCESS for pasteurization was the infringement.
The networked computers are not the infringement; the SERVICE was.


----------



## Greg Bimson

And that is not precisely the point, as...

The process for pasteurizing the egg was enjoined from usage. Nothing was ordered disabled; Bartow Foods was free to design around the process and they came up with a new process. They even managed to keep the court informed.

The process for the Footprint 2.0 service as adjuged was enjoined from usage. Change the service with a patch, and you are free and clear from the injunction.

The process and apparatus, embodied in the eight DVR's sold by DISH/SATS were enjoining sales, service and usage. Those sold were also ordered disabled.

That is why there is a difference.


----------



## scooper

Greg Bimson said:


> The egg is not the infringement; the PROCESS for pasteurization was the infringement.
> The networked computers are not the infringement; the SERVICE was.


NO KIDDING !! (much exasperation)

And what do you call the "Infringing Products on Tivo's complaint" ? - THe INFRINGEMENT.

QED - The Process / the SERVICE / The DVRs are all the infringing products. They all get treated exactly the same as the object of their respective complaints.


----------



## phrelin

Well, it still appears we could make 6,000 posts by the trial date.:righton:


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## James Long

scooper said:


> And what do you call the "Infringing Products on Tivo's complaint" ?


I'd call them eight named models of receivers.

The target of Bartow Foods is the process not the eggs. The court did not order the defendant to stop selling eggs, they were told to cease using the process. They found a different process and kept selling eggs.

With Footprint 2.0 the named product was the service as configured. A Mack Truck sized hole that allowed them to offer the service configured in another manner.

With Echostar the named product is eight models of receivers. Turn off their DVR functionality, place no more of these models with DVR functionality enabled and don't infringe by creating new receiver models only colorable different.

The product is the named receivers. The remedy was specified. DISH followed another path.


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## jacmyoung

In all three cases there were two orders, which as a matter of fact is true in most cases anyway.

The first is usually the standard one, to prohibit the sale, use, make&#8230;

The second disabling orders were to stop the *use* of the existing infringing *things* already in the field and being used, not to stop the sale or make of those infringing things.

The thing in the Footprint2.0 case was the service that infringed.

The thing in the Bartow Foods case was the process that infringed.

The things in this case were the 8 named DVRs that infringed.

In all of the above cases, the infringers did not disable the things, rather modified them in the field, while still in use.


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## James Long

There was a recall of eggs processed via the infringing process?


----------



## Bidderman9

PTravel said:


> I'm an intellectual property litigator, and among other things I litigate patent infringement. I haven't tried to wade through the hundreds of posts in this thread, but I'll try to make some sense out of the last few posts....
> 
> This is probably more than anyone wants to know about patent infringement, but I hope it is helpful.


Thanks for the explanation. It certainly beats some of the personal attacks going on in this thread.

One other question. This case addresses very specific devices. What about other devices that have come out since the final judgement? How do they come in to play if TiVo were to try to say that they are also infringing devices? Are they totally out of the picture?

Interesting enough, I have a friend that is is Dish customer. He was leasing one of the infringing devices. Dish told him that we was not leasing the device. They told him that he owned it and that they would be more than happy to send him a new leased device. Of course the new device was not on the list. They technically did not replace the infringing device. He still "owns" it.


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## Greg Bimson

jacmyoung said:


> In all three cases there were two orders, which as a matter of fact is true in most cases anyway.
> 
> The first is usually the standard one, to prohibit the sale, use, make...
> 
> The second disabling orders were to stop the use of the existing infringing things already in the field and being used, not to stop the sale or make of those infringing things.
> 
> The thing in the Footprint2.0 case was the service that infringed.


From here


> The patent, 6,108,703, covers technology that involves renaming URLs to prepend a CDN host name to a domain name and path, directing content requests to edge caching servers. Digital Island claims it no longer uses that prepending method.





> Defendants, including Digital Island (now known as Cable & Wireless Internet Services, Inc.), their officers, agents, servants, employees, and attorneys are permanently enjoined and prohibited from making, using, selling, offering for sale, or importing into the United States the patented inventions claimed in claims 1, 3, 5 and 9 of the '703 patent, and from active inducement of infringement of these claims of the '703 patent. This injunction extends to Digital Island's Footprint 2.0 service, as configured and described at trial.


There doesn't appear to be a second order.


jacmyoung said:


> The thing in the Bartow Foods case was the process that infringed.


I cannot find the old post regarding the decision from Barstow Foods, but I can pretty much guarantee there is only one order there, as well.

Besides, I don't think there can be a disable order on eggs.


----------



## jacmyoung

"...This injunction extends to Digital Island's Footprint 2.0 service, as configured and described at trial. "

Meaning BTW the Digital Island's Footprint2.0 service was ordered to stop by that injunction.

The second order usually refers to the actual *things* adjudicated in the trial to be an infringement therefore to be disabled, the first order is a standard prohibition of continued infringement on the patent in general.



> Besides, I don't think there can be a disable order on eggs.


It can be chicken process, or milk process, or garbage process, that thing that was infringing was that process, which could be used to process the eggs for consumption. And the thing to be prohibited was the process, not the eggs.

The DVRs can process the DBS signals for entertainment, when the DVRs were ordered to be disabeld, no one was thinking it was to disable the signals.


----------



## jacmyoung

While I could not find the Bartow Foods injunction either, I did dig out a quote from that case:

"Contempt proceedings are available for patent infringement only where there are no substantial issues to be litigated. KSM, at 1532. In particular, where there are issues of fact to be determined which require expert or other testimony, contempt proceedings are not appropriate. KSM, at 1531. Where, however, such disputed issues are not present, contempt proceedings may be appropriate. In such cases, it is the movant's burden to show by clear and convincing evidence 1) that the defendant has violated the lawful injunction of the Court, and 2) that the defendant has infringed on the adjudicated claims of the patent. *It is insufficient simply to show that the defendant has violated the injunction. Infringement must also be found. KSM, at 1532.* Hence in the case at bar, Plaintiffs must show that there are no substantial disputed issues, and prove by clear and convincing evidence that the new process does infringe."


----------



## jacmyoung

And while going through KSM one more time, I found two quotes at the end of the document that no one seemed to have paid attention to:

"With respect to the issue of when contempt proceedings will be allowed, we conclude that the procedural analysis used by the majority of courts should be adopted as the general rule. 7 A standard based on procedural considerations is more likely to meet due process requirements, considering the usual summary nature of contempt proceedings. *Under a procedural standard, the district court is able to utilize principles of claim and issue preclusion (res judicata ) to determine what issues were settled by the original suit and what issues would have to be tried.* Such a determination may vary depending upon whether the original suit was settled by consent or fully litigated. 8 If there are substantial open issues with respect to infringement to be tried, contempt proceedings are inappropriate. Accord California Paving, 113 U.S. at 618, 5 S.Ct. at 622 (proceeding by way of a new suit "is by far the most appropriate one where it is really a doubtful question whether the new process adopted is an infringement or not"). The presence of such disputed issues creates a fair ground for doubt that the decree has been violated. *So long as the district court exercises its discretion to proceed or not to proceed by way of contempt proceedings within these general constraints, this court must defer to its judgment on this issue.* MAC Corporation of America, 767 F.2d at 885-86, 226 USPQ at 518."

In this quote, it touched on "claim preclusion" issue in the first highlighted part, and in the second highlighted part, KSM supported our final agreement that the judge can decide for himself whether claim preclusion should apply or not.

Interestingly KSM was addressing such issues we had been talking about the new bench trial, we just never read all the way to the end to notice it.

Obviously Judge Folsom believed the issue of whether the modified 8 named DVRs continued to infringe or not must be tried in this bench trial, and he had the latitude to order such trial to settle such issue.


----------



## jacmyoung

The last quote from KSM:

"In sum, the initial question to be answered in ruling on a motion for contempt is whether contempt proceedings are appropriate. That question is answered by the trial court's judging whether substantial disputed issues must be litigated. *The second question, whether an injunction against infringement has been violated, requires, at a minimum, a finding that the accused device is an infringement.*"

Here again, the *minimum* needed to find if the injunction is violated or not, is to find if the 8 named DVRs are infringements or not.

Judge Folsom is in lock step with KSM.


----------



## James Long

jacmyoung said:


> ... we just never read all the way to the end to notice it.


"We" ... why am I thinking of Gollum from Lord of the Rings?
Speak for yourself ... if you failed to present the entire case own up to it yourself. 

One would think after 7,000 posts you would have read what you were talking about.


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## Greg Bimson

jacmyoung said:


> Judge Folsom is in lock step with KSM.


As is TiVo, when addressing the modified DVR's sold. TiVo just does not want it to apply to the receivers already adjudged infringing.

DISH/SATS does want it to apply to the receivers already adjudged infringing.


Bidderman9 said:


> One other question. This case addresses very specific devices. What about other devices that have come out since the final judgement? How do they come in to play if TiVo were to try to say that they are also infringing devices? Are they totally out of the picture?


Like the ViP's, the 622, 722 and 612? I think they are supposed to be out of the picture for now. I am unsure if TiVo can even hope to amend the "continuing infringement" bench trial to include the 622 et al.


----------



## phrelin

Reported here:


> TiVo Inc. recorded a profit for its latest quarter because of a $105 million payment it received in a patent suit, but revenue declined, the maker of digital video recorders said Tuesday.
> 
> Alviso, Calif.-based TiVo earned $100.6 million, or 98 cents per share, in the fiscal third quarter, which ended Oct. 31.


Without the Dish Network lawsuit payment, they would have reported a loss. Also,


> TiVo had 3.5 million total subscriptions as of the end of October, a decline from the 3.6 million it reported in the second quarter and the 4.1 million it had in the third quarter of last year.


You would think these two companies could find a way to play nice and maybe even help each other, because the next quarterlies are going to be terrible.

Unfortunately, we don't see quarterlies from their law firms and can't buy shares. Now that would have been a good investment a few years ago....


----------



## PTravel

jacmyoung said:


> Thanks for the summary, though I think you explained it, but may I ask you to clarify, if the accused products are found not infringements, can the defendant still be found in contempt of the injunction for the continued use of such accused products, just because a specific order in that injunction?


If the accused products don't infringe, no permanent injunction will issue, i.e. the defendant isn't liable for patent infringement. A more interesting question is this: a preliminary injunction may be obtained early in the litigation, and is often sought. A PI will preclude sales and distribution of the accused product pending a judgment on the merits. What happens if a defendant violates the PI and is ultimately adjudged non-infringing? The technical answer is the defendant would be liable for violating the PI, which is an order of the court, and may be sanctioned for contempt. In practice, it's hard to imagine a judge sanctioning in this context. Incidentally, preliminary injunctions must be secured by a bond posted by the plaintiff, and the bond is forfeit if the plaintiff loses. The bonding amount is generally determined based on projected lost sales and other damage to the defendants. As an example, if you obtained a preliminary injunction against my sales of widgets, the judge would order a bond (called an "undertaking") equal to my lost sales. If my lost sales were $10 million and I prevail, i.e. I prove I didn't infringe and judgment is entered for me, you'd forfeit the bond, and I'd get the $10 million.


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## Greg Bimson

jacmyoung said:


> Thanks for the summary, though I think you explained it, but may I ask you to clarify, if the accused products are found not infringements, can the defendant still be found in contempt of the injunction for the continued use of such accused products, just because a specific order in that injunction?





PTravel said:


> If the accused products don't infringe, no permanent injunction will issue, i.e. the defendant isn't liable for patent infringement.


PTravel, let me try the question another way...

The defendant in this case was found to have sold 4 million DVR's that were adjudged infringing. Along with the standard order to cease sales, use and manufacture of the infringing product, there was another order in the injunction to disable those 4 million DVR's in the hands of customers that were already found to infringe.

The defendant, instead of disabling those 4 million DVR's, modified them. So the two questions here are:

1) As the court order was to disable functionality yet that has not been done, would that be considered contempt?
2) Now that Judge Folsom has issued an order for a bench trial to verify the infringement status on the modified product, could the defendant still be found in contempt for failing to disable even if the product no longer infringes?


----------



## Curtis52

Greg Bimson said:


> The defendant, instead of disabling those 4 million DVR's, modified them.


The chronology may be somewhat important. The DVRs were modified before the order to disable went into effect.


----------



## jacmyoung

Curtis52 said:


> The chronology may be somewhat important. The DVRs were modified before the order to disable went into effect.


Good question. I think TiVo was arguing along a similar line in their damages argument, had the order not stayed...

But unfortunately for TiVo, and maybe fortunately for E*, the order was stayed. Otherwise E* would have violated the second order, by at least a good 7 months, from 10/06 to 05/07.


----------



## Bidderman9

Curtis52 said:


> The chronology may be somewhat important. The DVRs were modified before the order to disable went into effect.


Most were, but I believe that even by E* own testimony that all units were not updated by the end of the stay.


----------



## Curtis52

jacmyoung said:


> Good question. I think TiVo was arguing along a similar line in their damages argument, had the order not stayed...
> 
> But unfortunately for TiVo, and maybe fortunately for E*, the order was stayed. Otherwise E* would have violated the second order, by at least a good 7 months, from 10/06 to 05/07.


That is assuming that Dish would not have complied with the disable order. I don't think anyone can say that for sure in terms of calculating "if not for the stay" damages.


----------



## jacmyoung

Curtis52 said:


> That is assuming that Dish would not have complied with the disable order. I don't think anyone can say that for sure in terms of calculating "if not for the stay" damages.


That is why such argument simply shall not apply, the Court does not operate on would have or could have theory.

But here is the point E* has been arguing all along, the second disabling order clearly said the DVR functions to be disabled from the *Infringing Products*. And since TiVo's argument has been that the order must be obeyed literally, then E* can argue in the most literal term, more so than even TiVo would have liked, only if the products can still be called Infringing Products, so can such order apply.

Now the judge had opened the door to the possibility that the 4 million DVRs may be proven no longer infringements, therefore E* can then argue that they were no longer Infringing Products, as such, the second disabling order could not have possibly be applied after the stay of the injunction was lifted.

Now TiVo does not even have to agree with E*'s such logic, insisting on their own logic and interpretation. But as long as both inpterpretations have their own merits, the least E* can say to the judge is there lies ambiguity in the order, and any ambiguity must be used in the defendant's favor.


----------



## Greg Bimson

Curtis52 said:


> That is assuming that Dish would not have complied with the disable order. I don't think anyone can say that for sure in terms of calculating "if not for the stay" damages.





jacmyoung said:


> That is why such argument simply shall not apply, the Court does not operate on would have or could have theory.


I would have agreed, until _Amado v. Microsoft_, where a different rate can be charged during a stay period. I disagree with TiVo on the lost profits, but that's just my opinion.

Besides, the issue isn't if "assuming that Dish would not have complied with the disable order", the issue is assuming that without the stay, DISH/SATS would have complied with the disable order. Without the stay, on 8 October 2006, DISH/SATS would have disabled 4 million DVR's. At that point, they certainly would not have been allowed to enable DVR functionality with new software.


----------



## Curtis52

Greg Bimson said:


> Without the stay, on 8 October 2006, DISH/SATS would have disabled 4 million DVR's. At that point, they certainly would not have been allowed to enable DVR functionality with new software.


The disable order wouldn't have prevented a software modification thereby creating an unadjudicated and unenjoned DVR. The disable order only applied to recording television data. Software is not television data.


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## Greg Bimson

Curtis52 said:


> The disable order wouldn't have prevented a software modification thereby creating an unadjudicated and unenjoned DVR. The disable order only applied to recording television data. Software is not television data.


*scratching my head*

How can one create a DVR that doesn't record the television data?


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## Curtis0620

Curtis52 said:


> The disable order wouldn't have prevented a software modification thereby creating an unadjudicated and unenjoned DVR. The disable order only applied to recording television data. Software is not television data.


I think a significant percentage of those 4 million DVR owners would have switched to a provider that had a working DVR.


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## jacmyoung

Greg Bimson said:


> I would have agreed, until _Amado v. Microsoft_, where a different rate can be charged during a stay period. I disagree with TiVo on the lost profits, but that's just my opinion...


I don't think there was ever a disagreement if the judge can change the rate, because he said on 9/4 he could, and if he does, the E*'s $16 million will be a minimum, but if he changes the rate even to the rate TiVo is seeking, the total should be some where under $30 million.


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## phrelin

Well darn. If this is Thanksgiving Holiday is any indication of what happens during the December holiday season, we'll be unlikely to reach 3,000 posts by trial date.:eek2:


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## James Long

The goal is discussion on topic ... if this becomes a post padding thread it may not reach 400 posts.
:backtotop (and only the topic)


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## Budget_HT

dgordo,

I very much appreciate your brief, clarifying posts here. I believe you are one of very few here who is qualified to accurately explain things that have otherwise been heavily misinterpreted and twisted for the sake of pure argument and/or personal agendas.

I have decided to skim past most of the posts until I see one of yours, since the meaningful substance is encapsulated in your posts.

Thanks for providing some reality in this mass of misinterpretations.


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## Curtis52

A personal message feature is available on dbstalk forums.


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## Jim5506

MUCH more heat than light in this thread.


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## James Long

Defendants intend to file promptly with the United States Court of Appeals for the Federal Circuit a petition for writ of mandamus to ensure that Defendants' due process and Seventh Amendment rights are not violated in conjunction with the contempt proceedings ordered by this Court in its Order of November 20, 2008. Defendants respectfully ask that this Court issue an order staying the district court proceedings pending a ruling from the Federal Circuit on Defendants' writ petition.

The Court's Order is improper. Under _KSM Fastening Systems, Inc. v. H.A. Jones Co._, 776 F.2d 1522, 1530 (Fed. Cir. 1985), the Court must make a threshold determination of "whether infringement should be adjudicated in contempt proceedings" instead of requiring new charges of infringement to be determined in a new full trial. Only if a court finds that there is no more than a colorable difference, _i.e._ any differences are only minor, cosmetic or insignificant, between the modified product and the product adjudged to infringe may a court determine the issue of infringement in summary contempt proceedings. _Abbott Labs. v. TorPharm, Inc._, 503 F.3d 1372, 1380 (Fed. Cir. 2007). "If there are substantial open issues with respect to infringement to be tried, contempt proceedings are inappropriate." _KSM_, 776 F.2d at 1532. The accused infringer is entitled to a new proceeding in which the question of infringement is fully litigated. _Id._ This includes the right, under the Seventh Amendment, to a jury trial on the issue of infringement. _See Markman v. Westview Instruments, Inc._, 517 U.S. 370, 377 (1996).

Full Text:


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## James Long

From the attachment in the PDF above:

While we do not agree with EchoStar's procedural maneuvering, we are willing to agree that the November 20 Order be amended to ensure that the Court will consider the issue of colorable difference and to streamline the proceeding so as to eliminate consideration of the certain claims at this stage and to focus on claims 31 and 61.

Accordingly, since EchoStar believes some change to the Order is needed, we propose a stipulation that the first sentence of paragraph 2 be changed to the following:"The Court will hold an additional hearing on this matter in the form of a Bench Trial on February 17-18, 2009 to determine (1) whether EchoStar's DP-501, DP-508, DP-510, DP-522, DP-625, DP-721, DP-921, and DP-942 receivers configured with software downloaded by EchoStar since entry of judgment are no more than colorably different from these receivers configured with software that EchoStar used at the time of trial; 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."​We would further agree to stay the November 20 Order as to all claims other than claims 31 and 61 pending the Court's decision whether to so-amend the November 20 Order.​


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## Bidderman9

Thanks for the prompt posting! I did not hear anything about this.

OK, somebody want to translate in laymans terms what is going on here?
Do you think that E* is trying to get a stay to prevent disclosure for fear that it may cause bigger problems?


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## James Long

Apparently our consensus that both parties liked the idea of a February trial was a little off ... it seems that the parties CAN agree on re-writing the judge's order in the way quoted above (1: are the current receivers colorably different than the adjudicated ones, 2: do they infringe). Also focusing on the software claims (and not dragging the hardware claims in at this time). Note the text limiting this to claims 31 and 61.

What TiVo is not agreeing to is a delay in dealing with what DISH and TiVo agree to.

I don't see a filing with DISH and TiVo actually trying to make that stipulation and change the context of the February trial. Perhaps if that were joint filed Judge Folsom could accept the stipulation and not grant a stay.

We'll have to find the appeal to know exactly what DISH wants. A courtesy copy should be filed with Judge Folsom soon.


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## phrelin

Anyone know what the Appeals Court schedule might look like 3 weeks before Christmas? Or is this potential appeal something that if taken up by the appeals court could be considered in, oh, say, April?


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## jacmyoung

Sounded to me E* is saying exactly what I had been saying, the order is not proper if it is a part of the contempt proceeding. E* is asking to separate this bench trial from the contempt proceeding.

While E* is asking Judge Folsom to stay his order pending appeal, I don't know if there is enough time for the Appeals Court to stay the order while putting the appeal on the waiting list again.

Another question is whether E* can even appeal the bench trial order or not, if as some people insisted this bench trial order is a part of the contempt proceeding, it may not be appealed until it is concluded.

TiVo's response is odd, TiVo is asking the bench trial be used to determine both the colorable issue and the infringement issue, I have never read any case done this way, but what do I know.


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## vampz26

jacmyoung said:


> Sounded to me E* is saying exactly what I had been saying, the order is not proper if it is a part of the contempt proceeding. E* is asking to separate this bench trial from the contempt proceeding.
> 
> While E* is asking Judge Folsom to stay his order pending appeal, I don't know if there is enough time for the Appeals Court to stay the order while putting the appeal on the waiting list again.
> 
> Another question is whether E* can even appeal the bench trial order or not, if as some people insisted this bench trial order is a part of the contempt proceeding, it may not be appealed until it is concluded.
> 
> TiVo's response is odd, TiVo is asking the bench trial be used to determine both the colorable issue and the infringement issue, I have never read any case done this way, but what do I know.


All cases are done this way...doesn't matter what they are...a judges decision can be influenced on the basis of past rulings affecting the given case.

If you've ever fought a speeding ticket, the judge always asks the prosecutor about the defendents driving record prior to the case. Sure its not evidence, but it is available as part of the court record, and thus can be considered testimony.

ITs pretty obvious here that Tivo's counsel thinks that the outcome of the bench trial can be used as testimony in determining the other issues...

Its all pretty standard...just that they are really playing for keeps here...


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## James Long

At first look I believe DISH is in error here ... claiming that the bench trial is about "new charges of infringement" and that this is a "new full trial". The trial seeks status of infringement - whether or not the receivers continue to infringe. These are not "new charges". The units in question are not new products ... they are the same products adjudicated as infringing in 2006.

This is coming down to the concept of "DISH snuck into our homes and replaced our receivers with different receivers without notification". The alleged change was designed to be invisible to the customer. (I don't know how one can claim that the "modified" product is more than colorably different when the design change was intended to be unnoticeable by the consumer.)

It seems that DISH would like to re-try their arguments from September 4th despite the fact that there has been no ruling from the September 4th hearing.

I can see where DISH believes that the bench trial is improper ... and as discussed earlier in this thread DISH has the right to appeal. If Judge Folsom is in error then now is the time to fix the problem ... before the damage is done.

DISH's claim that these are "newly accused devices" is only a half truth. These are adjudicated infringing devices that have not been proven to cease infringing. It should be interesting to see how this plays out.


----------



## jacmyoung

James Long said:


> At first look I believe DISH is in error here ... claiming that the bench trial is about "new charges of infringement" and that this is a "new full trial". The trial seeks status of infringement - whether or not the receivers continue to infringe. These are not "new charges". The units in question are not new products ... they are the same products adjudicated as infringing in 2006.
> 
> This is coming down to the concept of "DISH snuck into our homes and replaced our receivers with different receivers without notification". The alleged change was designed to be invisible to the customer. (I don't know how one can claim that the "modified" product is more than colorably different when the design change was intended to be unnoticeable by the consumer.)
> 
> It seems that DISH would like to re-try their arguments from September 4th despite the fact that there has been no ruling from the September 4th hearing.
> 
> I can see where DISH believes that the bench trial is improper ... and as discussed earlier in this thread DISH has the right to appeal. If Judge Folsom is in error then now is the time to fix the problem ... before the damage is done.
> 
> DISH's claim that these are "newly accused devices" is only a half truth. These are adjudicated infringing devices that have not been proven to cease infringing. It should be interesting to see how this plays out.


Unless of course if Judge Folsom agrees with E*.

But by reading TiVo's response, it is clear TiVo has conceded that their so called "on the face contempt" has failed, I hope this much is no longer in dispute. Even TiVo did not dream there may still be an "on the face contempt" ruling in their favor.


----------



## jacmyoung

vampz26 said:


> ...ITs pretty obvious here that Tivo's counsel thinks that the outcome of the bench trial can be used as testimony in determining the other issues...


And TiVo is wrong. Colorable issue is determined in a contempt proceeding, not in a trial. Infringement issue (once more than colorable is determined) is determined in a trial, not in a contempt proceeding.


----------



## James Long

jacmyoung said:


> Unless of course if Judge Folsom agrees with E*.


On contempt or on the stay?


> But by reading TiVo's response, it is clear TiVo has conceded that their so called "on the face contempt" has failed, I hope this much is no longer in dispute.


There is still hope. Judge Folsom has yet to rule on the contempt motion.

We're still in the midst of a contempt proceeding ... Judge Folsom has not ruled and the motion remains pending. It appears that Judge Folsom wanted the bench trial to determine continued infringement of the adjudicated devices (if they still infringe the question of contempt is easy). It looks like DISH and TiVo could be close to compromise if Judge Folsom allows them to change his question for the February bench trial.


----------



## vampz26

jacmyoung said:


> And TiVo is wrong. Colorable issue is determined in a contempt proceeding, not in a trial. Infringement issue (once more than colorable is determined) is determined in a trial, not in a contempt proceeding.


Hey...I can't read the lawyers mind any more than you can...but if there is a method to the madness, than thats it...they are looking for some form of testimony they can use. Its not saying they will get it...but it is a logical explanation for the riddle that you can't figure out here...its the only logical explanation...we will have to wiat and see how it works out...


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## jacmyoung

James Long said:


> On contempt or on the stay?


On the stay, this is what we are discussing right now.



> There is still hope...


What I was saying was TiVo no longer has that hope, otherwise TiVo would not have asked the judge to determine the colorable issue. The "on the face contempt" does not need any answer on the colorable issue.


----------



## jacmyoung

vampz26 said:


> Hey...I can't read the lawyers mind any more than you can...but if there is a method to the madness, than thats it...they are looking for some form of testimony they can use. Its not saying they will get it...but it is a logical explanation for the riddle that you can't figure out here...its the only logical explanation...we will have to wiat and see how it works out...


Of course, after I made my initial speculation, we waited over 6 months to find out I was right that TiVo was wrong on the on-the-face-contempt argument.

Not saying I cannot be wrong at all. Anything is possible.


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## James Long

jacmyoung said:


> Of course, after I made my initial speculation, we waited over 6 months to find out I was right that TiVo was wrong on the on-the-face-contempt argument.


We're still waiting for a decision on contempt, even if you choose to ignore that simple fact.


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## jacmyoung

I will say this though, it is possible E*'s appeal may be rejected by the Circuit Court.

E* is saying they deserve another jury trial, I don't think so. There are many prior cases which the District Courts ordered bench trials to further settle the new design's infringement issue.


----------



## jacmyoung

James Long said:


> We're still waiting for a decision on contempt, even if you choose to ignore that simple fact.


The fact is TiVo has conceded, that is all that matters.


----------



## vampz26

jacmyoung said:


> On the stay, this is what we are discussing right now.
> 
> What I was saying was TiVo no longer has that hope, otherwise TiVo would not have asked the judge to determine the colorable issue. The "on the face contempt" does not need any answer on the colorable issue.


Remember, what Tivo 'needs' and what they can use to influence are two different things...

like I said, we can't read the lawyers minds...but even if the decision does not go favorable, it can be used as a 'pitty plea' in the following case. There is a method to the madness, and I gave you the blueprint. Just ride it out with the rest of us...and all will be revealed...


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## James Long

jacmyoung said:


> The fact is TiVo has conceded, that is all that matters.


Conceded? Sorry, but this is a non-fiction discussion. "Conceeded" is not a fact.


----------



## vampz26

jacmyoung said:


> Of course, after I made my initial speculation, we waited over 6 months to find out I was right that TiVo was wrong on the on-the-face-contempt argument.
> 
> Not saying I cannot be wrong at all. Anything is possible.


Oh its possible, you have been wrong before...


----------



## jacmyoung

James Long said:


> Conceded? Sorry, but this is a non-fiction discussion. "Conceeded" is not a fact.


Yes TiVo has conceded, by formally asking the judge to determine whether the accused DVRs are more than colorably different or not, compared to the adjudicated DVRs.


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## vampz26

jacmyoung said:


> Yes TiVo has conceded, by formally asking the judge to determine whether the accused DVRs are more than colorably different or not, compared to the adjudicated DVRs.


That doesn't sound like conceded to me....sounds more like preparing for a bigger fight...


----------



## jacmyoung

vampz26 said:


> That doesn't sound like conceded to me....sounds more like preparing for a bigger fight...


The issue TiVo has conceded is the issue of "on the face contempt".

Of course TiVo wants to fight on, just that TiVo has lost the last fight.


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## James Long

Still no ruling from the judge ... at least not from Judge Folsom.

Judge jacmyoung seems to have ruled. 

If TiVo conceeded why didn't they withdraw their motion?


----------



## jacmyoung

James Long said:


> ...If TiVo conceeded why didn't they withdraw their motion?


Because TiVo believes the bench trial is the continuation of the contempt proceeding, after the "on the face contempt" failed to stick, now let's go the "colorable difference" route, the correct route. TiVo should have done so on 5/30, rather wasting all this time.

Still TiVo believes it is a contempt proceeding nevertheless.

E* now is saying the bench trial cannot be a part of this contempt proceeding. In another word, E* believes they have won the last round, and tries to again be one step ahead of the game, just like when they filed the new suit in the DE court.

To keep TiVo on the defense.

My opinion of course, you don't have to agree.


----------



## James Long

Q: On what matter did Judge Folsom order the February bench trial?
A: "TiVo’s Motion to Hold EchoStar In Contempt For Violation Of This Court’s Permanent Injunction"

This is the "on the face" motion ... if the matter were dead Judge Folsom would not be using it for a reason for further court action. If the matter were dead Judge Folsom would have said so ... he would have DENIED the motion and let TiVo decide the next step. But he did not do that. And TiVo did not conceed by withdrawing the motion.

Where does that leave us? With a PENDING motion that could be decided at any time ... most likely after the bench trial that Judge Folsom ordered in the matter concerning the motion for contempt (since a decision on contempt would render a trial on the matter moot).

I don't have to agree ... but I don't have to let false statements stand. TiVo did not conceed. The motion is not complete. The ordered bench trial is on the matter of the motion for contempt. These are facts.


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## vampz26

jacmyoung said:


> The issue TiVo has conceded is the issue of "on the face contempt".
> 
> Of course TiVo wants to fight on, just that TiVo has lost the last fight.


I believe its part of a longer term strategy, but as been already said...only time will tell on that one...


----------



## jacmyoung

James Long said:


> Q: On what matter did Judge Folsom order the February bench trial?
> A: "TiVo's Motion to Hold EchoStar In Contempt For Violation Of This Court's Permanent Injunction"
> 
> This is the "on the face" motion ... if the matter were dead Judge Folsom would not be using it for a reason for further court action. If the matter were dead Judge Folsom would have said so ... he would have DENIED the motion and let TiVo decide the next step. But he did not do that. And TiVo did not conceed by withdrawing the motion.
> 
> Where does that leave us? With a PENDING motion that could be decided at any time ... most likely after the bench trial that Judge Folsom ordered in the matter concerning the motion for contempt (since a decision on contempt would render a trial on the matter moot).
> 
> I don't have to agree ... but I don't have to let false statements stand. TiVo did not conceed. The motion is not complete. The ordered bench trial is on the matter of the motion for contempt. These are facts.


The "on the face" motion does not need the analysis of the colorable difference issue, by asking the judge now to determine the colorable issue, TiVo is no longer "waiting" for the "on the face" contempt ruling to come down in their favor ever, because the colorable difference decision will now be used to produce a ruling of contempt or not, not the "on the face" argument anymore, it will be moot after the bench trial.

If on the other hand you believe the "on the face" argument is still alive and stands on its own, then you have to believe a ruling "on the face" in TiVo's favor can still come before the conclusion of the bench trial, and yet you just said yourself it cannot happen. As such, the contempt ruling will have to be based on the outcome of the bench trial, not based on the "on the face" argument which requires no trial at all.

If you believe after this trial, the decision is of a more than colorable difference, and no more infringement, yet the judge may still rule a contempt on the face, of course you can continue to believe in so, but it will be a waste of the court economy that will make what has been wasted so far look like a child's play.

One other observation is, while E* cited several very important prior cases in support of their stay pending appeal argument, TiVo has again failed to cite any cases (which I beleive there are quite a few) in their response, unless TiVo has more briefing to file on this issue of appeal, the judge will be looking at cases arguing in favor of E*, nothing arguing in favor of TiVo, keeping the same pattern we have been seen since 5/30.

TiVo still hasn't learned, it is not enough to just dismiss the other side argument, it is necessary to cite your own case law to support your own argument.

I am not saying E* will be successful in this latest stay request, or the Appeals Court will even review their appeal, but so far TiVo again "does not have a case".


----------



## Greg Bimson

jacmyoung said:


> One other observation is, while E* cited several very important prior cases in support of their stay pending appeal argument, TiVo has again failed to cite any cases (which I beleive there are quite a few) in their response, unless TiVo has more briefing to file on this issue of appeal, the judge will be looking at two cases arguing in favor of E*, nothing arguing in favor of TiVo, keeping the same pattern we have been seen since 5/30.


Unreal.

DISH/SATS files their APPEAL yesterday, and you believe TiVo should have already given a response, rife with citations. This is truly an unreal argument.

So is this:


> Here, there has been no determination - nor could there be one on the record of this case - that there are no substantial open issues or that the modified devices are only colorably different from their predecessors. TiVo has not brought any contempt motion that seeks either of these findings.


Sure there has. TiVo mentioned it in their response brief to DISH/SATS response of the contempt motion, and again at the hearing discussing the damages motion.

I personally think TiVo made a huge mistake by offering to modify the court's order to discuss infringement of the modifications since judgment. If that is what Judge Folsom intended, he would have had the order written that way.

I don't believe infringement needs to be found regarding the "disable order".

And funny enough, the company that first issued a press release cheering on the order as a dismissal of the "on the face" contempt argument is now the one filing an appeal challenging the same order. Guess they weren't happy with it, either.


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## bobcamp1

James Long said:


> This is coming down to the concept of "DISH snuck into our homes and replaced our receivers with different receivers without notification". The alleged change was designed to be invisible to the customer. (I don't know how one can claim that the "modified" product is more than colorably different when the design change was intended to be unnoticeable by the consumer.)


Note that there WAS a detectable difference. People in this very forum started complaining about the trick play features. But you're right. You want the new design to act the same but function in a different way. But that's the fundamental structure of our patent system. And there is no sneaking -- I'm sure the service contract gives Dish the right at any time to upgrade the receivers' software.

The "colorably different" standard is so vague it practically begs an appeal every time a verdict uses it to award damages. But even Tivo has said that only applies to claims 31 and 61, not to the entire function of the device. An easy example is to simply rename all of your components to Dr. Seuss names. That is not colorably different. Also, breaking out the function of one component into two component isn't colorably different. After that, the slope gets pretty steep and it becomes difficult to prove the devices are not colorably different.

Tivo "conceding" is a strong word. "Compromising" is a better word. Dish and Tivo just want to clarify what exactly this bench trial will cover. And since evidence presented at the bench trial could be used in future jury trials, they have every right to be cautious. And since Tivo just wants to get the thing over with, compromising on questionable procedures is appropriate.


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## Greg Bimson

bobcamp1 said:


> Tivo "conceding" is a strong word. "Compromising" is a better word. Dish and Tivo just want to clarify what exactly this bench trial will cover. And since evidence presented at the bench trial could be used in future jury trials, they have every right to be cautious. And since Tivo just wants to get the thing over with, compromising on questionable procedures is appropriate.


I think it is worse than that...

The arguments presented by DISH/SATS that they no longer infringe are specious at best. DISH/SATS does not want a trial.


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## CuriousMark

jacmyoung said:


> What I was saying was TiVo no longer has that hope, otherwise TiVo would not have asked the judge to determine the colorable issue. The "on the face contempt" does not need any answer on the colorable issue.


I think you are jumping to a conclusion here. TiVo seems to have capitulated that KSM requires proof of continued infringement before contempt can be found, even "on the face of the injunction" contempt. But if continued infringement is found, I think they still will pursue the face of the injunction course of action. If however, all you are saying is that TiVo appears to have accepted KSM and nothing more than that, I can agree with you.


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## James Long

bobcamp1 said:


> James Long said:
> 
> 
> 
> This is coming down to the concept of "DISH snuck into our homes and replaced our receivers with different receivers without notification". The alleged change was designed to be invisible to the customer. (I don't know how one can claim that the "modified" product is more than colorably different when the design change was intended to be unnoticeable by the consumer.)
> 
> 
> 
> Note that there WAS a detectable difference. People in this very forum started complaining about the trick play features. But you're right. You want the new design to act the same but function in a different way. But that's the fundamental structure of our patent system. And there is no sneaking -- I'm sure the service contract gives Dish the right at any time to upgrade the receivers' software.
Click to expand...

Note my post said designed and intended. Experiences of a few sharp eyed (and verbose) people on the internet is representative of the 4 million plus DVRs changed in the field but the _intent_ was to seamlessly and without announcement modify the software to a version that the end user would not be able to differentiate from the "old" software.

I don't recall a release notes that said "new operating system" ... and even when DISH releases notes to the forums it isn't notification to all customers. There certainly was no notification to TiVo nor the courts until long after the change was made. That is why I consider it a "secret" upgrade "snuck" onto customer's machines.


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## Greg Bimson

It appears to me just as TiVo believes Judge Folsom has abandonded the issue of "on the face" violations, DISH/SATS is of the belief that:

1) that there has been no determination of colorable difference, which supposedly must be done before testing for infringement (yet I don't believe the order is necessary), but Judge Folsom could have that determination ready, and infringement now must be found.
2) that the hardware claims cannot be retried because they were reversed (yet remanded for TiVo to decide if they wish to press on a retrial)
3) that it may rob DISH/SATS of their due process

There are a lot of assumptions being made as the only finding borne out of the contempt issue is an order for a bench trial. Judge Folsom did not tip his hand regarding how he will rule.


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## jacmyoung

Greg Bimson said:


> Unreal.
> 
> DISH/SATS files their APPEAL yesterday, and you believe TiVo should have already given a response, rife with citations. This is truly an unreal argument...


Except that if the judge already has the "on the face contempt" ruling (E* in contempt) ready, there is no need to waste court economy to order a bench trial, the weight of the contempt ruling may just coax parties to settle without any burden of a full bench trial on the court.

Judge Folsom did not appear to me a person who wishes nor have the time to waste on court economy.

At issue here is E*'s "emergency" request for a stay of the order, citing that the order is improper. I agree you can take that as E* not willing to go through a full trial, therefore is suspect of probable false new design's claim. But if I were E*, even if I am 100% sure my new design is non-infringing, I will still be glad to delay the process as much as I can at the least cost to myself. Filing an appeal to have the order struck down is most certainly a more economical way to do so than having to pay for all the experts and lawyers to go through hours of preparing for exhibits and testimonials.

But in the legal emergency maneuver, there is not a lot of time for TiVo to respond. What TiVo is doing is trying to get the judge to modify the order, when the top priority at this time is to convincing the judge he should not stay the order, as requested by E*.

To do so TiVo needs to use case law to argue that the judge's order is in fact proper. What good does modifying the order do if it is later struck down by the Appeals Court?

There is not a lot of time for TiVo to respond, the first thing to happen with regard to the bench trial is 12/05. A decision to stay the order or not needs to be made soon, otherwise the work will be a waste.

While E* only filed the appeal and emergency request yesterday, TiVo was aware of it before that. E* had the time to prepare their argument, citing case law, TiVo failed to do the same, so far.


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## jacmyoung

One other point to make, E* is arguing their new design is most certainly more than colorable, and as such a no contempt should be issued, and the case should be concluded. If TiVo wants to further pursue the E*’s new design infringement, it has to be done in a new trial, not a bench trial as part of the contempt proceeding.

And guess what may happen if E* is successful for having the Appeals Court eventually struck down the bench trial order? E* could move the trial to the DE court because the trial on the new design was first filed in the DE court, not in the TX court.

Nothing wrong with pursuing the best conditions you possibly can have for yourself.


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## Greg Bimson

jacmyoung said:


> Except that if the judge already has the "on the face contempt" ruling (E* in contempt) ready, there is no need to waste court economy to order a bench trial, the weight of the contempt ruling may just coax parties to settle without any burden of a full bench trial on the court.


Sure there is. There isn't only the "on the face" contempt argument sitting in front of Judge Folsom, no matter what DISH/SATS nor you state.

Nowhere does it state that a judge must issue each piece of a ruling on a given issue; in fact, what I have seen is usually the entire decision given in one shot.


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## CuriousMark

jacmyoung said:


> There is not a lot of time for TiVo to respond, the first thing to happen with regard to the bench trial is 12/05. A decision to stay the order or not needs to be made soon, otherwise the work will be a waste.
> 
> While E* only filed the appeal and emergency request yesterday, TiVo was aware of it before that. E* had the time to prepare their argument, citing case law, TiVo failed to do the same, so far.


Given Dish filed yesterday, TiVo could not file a reply any earlier than today in the best case. Note that the letter attached to Dish's filing is NOT a response. It is correspondence between Dish and TiVo lawyers, nothing more.


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## phrelin

I'm really confused here.

The only thing new is an emergency petition to Judge Folsom that reads specifically as follows:


> Defendants intend to file promptly with the United States Court of Appeals for the Federal Circuit a petition for writ of mandamus to ensure that Defendants' due process and Seventh Amendment rights are not violated in conjunction with the contempt proceedings ordered by this Court in its Order of November 20, 2008. Defendants respectfully ask that this Court issue an order staying the district court proceedings pending a ruling from the Federal Circuit on Defendants' writ petition.


I suppose Folsom could write all kinds of various justifications for staying or not staying the proceedings which would then involve his thinking in the appeal. But if I were him, I'd issue a stay without comment. Let the parties screw around arguing in the appeals court.

What's in it for Folsom not to stay the procedings? It would create openings in his calendar. Of course, a delay is another win for Charlie.


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## Ergan's Toupe

"I suppose Folsom could write all kinds of various justifications for staying or not staying the proceedings which would then involve his thinking in the appeal. But if I were him, I'd issue a stay without comment. Let the parties screw around arguing in the appeals court."


Don't forget, Tivo can appeal too.

Folsom could just as easily deny the stay without comment and let Charlie go over his head again, although I doubt Chuckles gets his stay in time that way.


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## Ergan's Toupe

jacmyoung said:


> And guess what may happen if E* is successful for having the Appeals Court eventually struck down the bench trial order? E* could move the trial to the DE court because the trial on the new design was first filed in the DE court, not in the TX court.
> 
> I thought Chuckles was happy with the bench trial? Didn't he claim "victory" and "was looking foward" to having Folsom hear arguments on his "design around"?
> 
> Why the sudden change of heart?
> 
> Looks like Charlie wasn't really that "pleased" after all, huh? :lol:


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## jacmyoung

CuriousMark said:


> Given Dish filed yesterday, TiVo could not file a reply any earlier than today in the best case. Note that the letter attached to Dish's filing is NOT a response. It is correspondence between Dish and TiVo lawyers, nothing more.


Which is why I never said TiVo will not reply in the right way, only that there is not much time to do it, and TiVo has yet to do so. TiVo was aware of E*'s intention some time before E*'s formal request filed yesterday.

E*'s argument is forceful, with citing of several very influential patent cases, each said it is not appropriate to use the venue of a contempt proceeding to try the new design's infringement issue, a new, independent proceeding will be needed for that purpose. Something I had been saying for a while, but was struck down by many posters here. Glad to see there will be an answer by the courts on this issue.

I am looking forward to TiVo's own case law arguing otherwise. There is not much time left though.

Even if Judge Folsom refuses to stay his order, E* will just appeal and ask the Appeals Court to stay the order pending their review. I don't see any reason why the Circuit will not stay the judge's order. This bench trial has no immediate harm or benefit to either party.


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## phrelin

Ergan's Toupe;1905903 said:


> I thought Chuckles was happy with the bench trial? Didn't he claim "victory" and "was looking foward" to having Folsom hear arguments on his "design around"?
> 
> Why the sudden change of heart?
> 
> Looks like Charlie wasn't really that "pleased" after all, huh? :lol:


IMHO he was very pleased. It provides opportunities to possibly extend the whole process out for at least 12 more months.

If it goes on long enough, there won't be any reason for Dish Network to care much about the listed boxes as their whole system shifts to MPEG4 in order to create transponder space for more HD nationals and locals. We've almost reached the point where they could change everyone in the Eastern Arc from the listed boxes.

Also IMHO, Folsom could have simply found Charlie & Company in contempt using some simple language and offered no stays for an appeal. I'm not sure an appeals court would have granted a stay in this case. Enough is enough when it comes to enforcing a jury decision.

But Charlie has all kinds of procedural room for delays now.


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## jacmyoung

phrelin said:


> I'm really confused here.
> 
> The only thing new is an emergency petition to Judge Folsom that reads specifically as follows: I suppose Folsom could write all kinds of various justifications for staying or not staying the proceedings which would then involve his thinking in the appeal. But if I were him, I'd issue a stay without comment. Let the parties screw around arguing in the appeals court.
> 
> What's in it for Folsom not to stay the procedings? It would create openings in his calendar. Of course, a delay is another win for Charlie.


What you said makes common sense, but if you remember the exchange between Judge Folsom and the E* attorney on 9/4?

The E* attorney asked the judge if he was to make any order that may not be in E*'s favor, that he could stay the order allowing E* to appeal. The judge said it was unlikely he would stay his order but E* could always appeal.

Now E* has told Judge Folsom their intention to appeal, even though the order is not that much against E*, but if the judge fulfills his promise on 9/4, he might not stay the order, rather leave the stay decision to the Circuit Court.

And once the Circuit gets the chance to look at it, I agree with you there is just no obvious reason not to stay the order. That is not to say stay is a sure thing.

The reason I say so is because there are in fact some cases I read that seem to indicate the judge's bench trial order may be just fine. The Circuit Court has said many times they gave the District judges wide latitude to decide how to proceed in their courtrooms, as long as the process does not in the end constitute a violation of the law or an abuse of the court discretion.

But if the defendants rigorously argue against such order on appeal, the Circuit Court may have no choice but to apply strict standards to ensure the order is in fact air tight.


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## Ergan's Toupe

phrelin said:


> IMHO he was very pleased. It provides opportunities to possibly extend the whole process out for at least 12 more months.


This is not going to take another 12 months. Yesterday's groveling is the first crack in Charlie's armor.

You guys can spin it anyway you want but the bottom line is Chuckles has done a complete 360 degree on the bench trial. He knows that he has no chance of winning and is now pulling out all the delay tactics his lawyers can think of.

Charlie had his bluff called and is now in full blown stall mode. The longer he stalls the more it's going to cost him when his house of cards come crashing down on him.

This is what happens when you're "stubborn". :grin:


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## James Long

Ergan's Toupe;1906033 said:


> You guys can spin it anyway you want but the bottom line is Chuckles has done a complete 360 degree on the bench trial.


You do realize that a 360° leaves you headed in the same direction as you were before ...

I see this more as a 10° or 15° ... just enough of a tact into the wind that DISH can move forward.
The idea that TiVo is willing to back off on any claims for the February trial is a victory.


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## jacmyoung

Ergan's Toupe;1906033 said:


> This is not going to take another 12 months. Yesterday's groveling is the first crack in Charlie's armor.
> 
> You guys can spin it anyway you want but the bottom line is Chuckles has done a complete 360 degree on the bench trial. He knows that he has no chance of winning and is now pulling out all the delay tactics his lawyers can think of.
> 
> Charlie had his bluff called and is now in full blown stall mode. The longer he stalls the more it's going to cost him when his house of cards come crashing down on him.
> 
> This is what happens when you're "stubborn". :grin:


While I am not trying to dismiss the notion that by arguing against the order now, when E* was the first to say they looked forward to the trial, that does seem to imply E* is back paddling.

The issue is not as simple. Immediately after E* said in the press release that the judge's bench order meant E* was not in contempt on the face, TiVo rigorously disputed such statement, insisting that the judge had not ruled on the contempt, and TiVo intended to use the bench trial as a tool to keep the contempt issue alive, having that sword hanging over E*'s head so to speak.

And to me it is a very good strategy to now say, but wait your honor, TiVo cannot do that. According to the case law, it is not appropriate for TiVo to use the contempt proceeding as a tool to try the new design's infringement issue. TiVo is trying to take the advantage of the judge not ruling on contempt and create a false impression that the contempt proceeding is alive and well.

Why should E* let TiVo have its way, when there are ample cases that support the notion that it is not an appropriate way? I can be as eager as anyone wanting to prove I am no longer infringing, but I sure don't need to rush it if by doing so TiVo gets its bragging right.

If E* is successful in getting the judge to stay the order, or have the Appeals Court to stay the order, it immediately gives the impression that TiVo is stopped in its own trap. We will just all come back in 6 months to find out whether Sun is still shining early in the morning, and if so, on whose side of the bed.


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## Ergan's Toupe

James Long said:


> You do realize that a 360° leaves you headed in the same direction as you were before ...


LOL @ my dumb ass! :lol:

IMO Tivo is willing to leave the hardware out of this as long as there is still a bench hearing on 2/17.

If Charlie gets his stay, no way does Tivo drop the hardware issues. Either way, Charlie is painting himself into a corner with the stall tactics.

Do you think we hear from Tivo today?


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## peak_reception

James Long said:


> Apparently our consensus that both parties liked the idea of a February trial was a little off


 I for one wasn't part of any such consensus. I said TiVo disliked the order and Dish _should_ dislike the order (except in that it gives further opportunity for appeal and confusion), despite the respective PR depts trying spin things in their favor on both sides. 


> What TiVo is not agreeing to is a delay in dealing with what DISH and TiVo agree to.


 Good Luck with that TiVo! :lol: Expect a new hearing sometime after Labor Day, 2009 :nono2:


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## peak_reception

phrelin said:


> IMHO he was very pleased. It provides opportunities to possibly extend the whole process out for at least 12 more months.
> 
> If it goes on long enough, there won't be any reason for Dish Network to care much about the listed boxes as their whole system shifts to MPEG4 in order to create transponder space for more HD nationals and locals. We've almost reached the point where they could change everyone in the Eastern Arc from the listed boxes.
> 
> Also IMHO, Folsom could have simply found Charlie & Company in contempt using some simple language and offered no stays for an appeal. I'm not sure an appeals court would have granted a stay in this case. Enough is enough when it comes to enforcing a jury decision.
> 
> But Charlie has all kinds of procedural room for delays now.


+1. Yup. Delay and confusion is always good news for Charlie and Companies.


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## jacmyoung

Ergan's Toupe;1906140 said:


> LOL @ my dumb ass! :lol:
> 
> IMO Tivo is willing to leave the hardware out of this as long as there is still a bench hearing on 2/17.
> 
> If Charlie gets his stay, no way does Tivo drop the hardware issues. Either way, Charlie is painting himself into a corner with the stall tactics.
> 
> Do you think we hear from Tivo today?


I was also curious as why TiVo continues to want to exclude the hardware claims. It was understandable TiVo did not care to pursue the hardware claims after the reversal because it does take time and money to do anything extra, but now the judge put the hardware claims back in, you would think TiVo would have jumped up and down for joy.

Unless if by bringing the hardware claims in it will only undermine TiVo's software claims fight.

The hardware claims are generally connected to the issue of the use of the Broadcom chips in the DVRs and the use of this thing called a "media switch". The media switch serves the function of "self-regulation" or "automatic flow control".

Notice the term "automatic flow control" is described in both software claims in at least two claim elements, out of the 10 claim elements.

So far E* has said their new design on longer meet the following elements in the software claims:

1)	By not having the index file, there is no longer a "temporary storage location" as described in Element 1.
2)	By not having the "media switch", the automatic flow control is removed, therefore the Elements 4 and 6 (I could be wrong on the numbers) are no longer met.

But to prove 2), the evidence of the hardware claim's "media switch" must be introduced. Not that E* cannot introduce it, but if the hardware claims is out of the picture it will be less obvious.

To prove infringement of course, all 10 of the software claim elements must be met, if Elements 1, 4 and 6 are no longer met, no more infringement.

Now following the above logic, the fact TiVo is trying to avoid the hardware claims is a good sign that E*'s new design claim is real. TiVo has the new design code E* voluntarily gave to them before 5/30. If E* were simply bluffing, TiVo would not have the reason to avoid the hardware claims, especially when the judge decided to hand them to TiVo. At a minimum, TiVo knows E* had removed the media switch, and avoided the use of the Broadcom chips. That alone not only proves no infringement on the hardware claims, but also no infringement on the software claims.

In fact E* can still keep the index file and still does not infringe on the software claims.

Now I have offered an explanation to TiVo's mysterious avoiding of the hardware claims. Just my speculation.


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## James Long

The "hardware" is irrelevant as long as the "software" infringes.

TiVo is pretty confident that the receivers continue to infringe the software claims. Piling on the hardware claims is unneeded.

Their suggested "stipulation" would make this simple for Judge Folsom to rule on what the parties can agree needs to be ruled on ... infringement ... a ruling that will affect contempt and damages.

The simpler the better ... they NEED a verdict, specifically their motion granted, not another delay.


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## Curtis52

jacmyoung said:


> The E* attorney asked the judge if he was to make *any order* that may not be in E*'s favor, that he could stay the order allowing E* to appeal. The judge said it was unlikely he would stay his order but E* could always appeal.


I don't know how you get *any order* out of this:



> *IF YOUR HONOR IS GOING TO HOLD US IN CONTEMPT, WE WOULD ASK YOU TO STAY THAT ORDER* TO ALLOW US TO SEEK REVIEW OF IT. AND LAST, WHAT I WAS GOING TO SAY, BUT I WILL SAY IT ANYWAY --
> 
> THE COURT: WELL, I THINK -- AND I AM NOT SAYING I AM
> GOING TO FIND YOU IN CONTEMPT. I THINK IT'S HIGHLY UNLIKELY.
> IF I THINK YOU ARE IN CONTEMPT OF MY ORDER, I AM GOING TO STAY
> IT. MAYBE THE FEDERAL CIRCUIT WOULD, BUT I DON'T THINK YOU
> CAN LOOK TO ME FOR RELIEF IN THAT REGARD.


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## phrelin

James Long said:


> The "hardware" is irrelevant as long as the "software" infringes.
> 
> TiVo is pretty confident that the receivers continue to infringe the software claims. Piling on the hardware claims is unneeded.
> 
> Their suggested "stipulation" would make this simple for Judge Folsom to rule on what the parties can agree needs to be ruled on ... infringement ... a ruling that will affect contempt and damages.
> 
> The simpler the better ... they NEED a verdict, specifically their motion granted, not another delay.


That summarizes it. TiVo needs a verdict, Charlie needs delay.


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## Greg Bimson

phrelin said:


> That summarizes it. TiVo needs a verdict, Charlie needs delay.


But not if ultimately DISH/SATS is found in contempt. Imagine the monetary damage of a protracted period of contempt during the delay.


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## Ergan's Toupe

phrelin said:


> That summarizes it. TiVo needs a verdict, Charlie needs delay.


Couldn't agree more. This latest legal stunt by Charlie should be all the proof anyone needs that he is gaming the system.

He begged for this trial, he put out a PR claiming victory and said he was pleased with this trial and now, a week later, he doesn't think it's fair? Please, they should lock this clown up for wasting my taxpayer money.

No way does Chuckles get this stay.


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## HobbyTalk

James Long said:


> The "hardware" is irrelevant as long as the "software" infringes.
> 
> TiVo is pretty confident that the receivers continue to infringe the software claims. Piling on the hardware claims is unneeded.
> 
> Their suggested "stipulation" would make this simple for Judge Folsom to rule on what the parties can agree needs to be ruled on ... infringement ... a ruling that will affect contempt and damages.
> 
> The simpler the better ... they NEED a verdict, specifically their motion granted, not another delay.


Well, there could be another reason not to bring up the hardware claims at this time.

We know that Echostar needs to have a verdict of not infringing because much of their future income depends on it. They want to license their software to 3rd parties and those royalties could easily outpace the income from DISH&#8230; besides, they are separate companies now. As long as this lawsuit goes on, no 3rd party will license the software and TiVo has no competition for 3rd party licensing.

The interesting part of this is if TiVo feels they are going to lose the infringement ruling on the new software. Will they attempt to prolong the lawsuit to thwart Echostar's marketing plans? TiVo could hold back on the hardware claims as an Ace in the hole in case they lose the infringement case on the new software so they could then tie up Echostar's marketing plans further with the hardware claims.

Just an interesting twist that no one may have thought about,


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## CuriousMark

HobbyTalk said:


> We know that Echostar needs to have a verdict of not infringing because much of their future income depends on it. They want to license their software to 3rd parties and those royalties could easily outpace the income from DISH&#8230; besides, they are separate companies now. As long as this lawsuit goes on, no 3rd party will license the software and TiVo has no competition for 3rd party licensing.


If that is the case, wouldn't it be in Echostar's interest to get this over with rather than continuously adding delay after delay after delay? After all, if they settle with TiVo and cross license the patents they could quickly get about the business of selling and making that income. True some of it would flow to TiVo too, but having to share income is better than having no income at all.



> The interesting part of this is if TiVo feels they are going to lose the infringement ruling on the new software. Will they attempt to prolong the lawsuit to thwart Echostar's marketing plans? TiVo could hold back on the hardware claims as an Ace in the hole in case they lose the infringement case on the new software so they could then tie up Echostar's marketing plans further with the hardware claims.


Dish included a letter from TiVo agreeing to drop the hardware claims from the current action if Dish would drop the request for a stay and more delay. If TiVo is holding this back intentionally, then a delay would be in their favor. I would think they would not make that offer, let Dish ask for and get the stay and then grudgingly give in on that after much delay had already occurred. However, TiVo didn't do that, they offered it up front.

No, I don't buy it. I think TiVo gave it up easily because they may think it is a low value card and that the rest of the cards in their hand (software claims) are good enough to win this.


----------



## jacmyoung

HobbyTalk said:


> Well, there could be another reason not to bring up the hardware claims at this time.
> 
> We know that Echostar needs to have a verdict of not infringing because much of their future income depends on it. They want to license their software to 3rd parties and those royalties could easily outpace the income from DISH&#8230; besides, they are separate companies now. As long as this lawsuit goes on, no 3rd party will license the software and TiVo has no competition for 3rd party licensing.
> 
> The interesting part of this is if TiVo feels they are going to lose the infringement ruling on the new software. Will they attempt to prolong the lawsuit to thwart Echostar's marketing plans? TiVo could hold back on the hardware claims as an Ace in the hole in case they lose the infringement case on the new software so they could then tie up Echostar's marketing plans further with the hardware claims.
> 
> Just an interesting twist that no one may have thought about,


Giving how difficult for TiVo to license their patented technology to anyone, E* licensing its new DVR technology to another company is probably one of the last things on E*'s mind.

If you read the new E* DVR patent application, you would agree it is virtually impossible for any one to infringe on it. The E* new patent claims contain so many elements (up to 25 or more if I recall) that its goal is clear, to get the patent granted in the easiest way possible, rather than to try to stop others from infringing on it.

E* just wants to find any way to get rid of TiVo, not trying to go after anyone else, as far as this DVR technology is concerned.

Now selling their DVRs to an open market is another issue, that I can agree needs to have the cloud of this litigation removed. But E* is doing it already, selling the OTA DVR boxes.

I am still waiting for TiVo to offer some real response to E*'s emergency request for the stay of the judge's order. I am curious if TiVo does respond, which cases they may cite. I actually have seen a few it will be interesting to see if those will be used.

The several cases E* cited are no surprise at all, I think they all have been quoted here when I made a similar argument that this bench trial cannot be a part of the contempt proceeding.


----------



## jacmyoung

CuriousMark said:


> If that is the case, wouldn't it be in Echostar's interest to get this over with rather than continuously adding delay after delay after delay? After all, if they settle with TiVo and cross license the patents they could quickly get about the business of selling and making that income. True some of it would flow to TiVo too, but having to share income is better than having no income at all....


E* is actually trying to get over it as fast as they can by telling the judge they are appealing to have the bench trial order struck down. In that filing E* also argued the District Court should have issued a more than colorable verdict and found E* not in contempt, rather delaying the ruling. Once the no contempt ruling is out, the case should be over, because the patentees are generally not allowed to use "rolling contempt" proceedings. As the cases E* quoted, once more than colorable is determined, to further pursue the infringer, the patentee will be forced to file a new complaint or a new lawsuit.

And that new lawsuit filings (by both E* and TiVo) are already sitting on the shelves at the DE court.


----------



## CuriousMark

jacmyoung said:


> E* is actually trying to get over it as fast as they can by telling the judge they are appealing to have the bench trial order struck down.


An appeal process, as we all know, could take longer than just going to trial. This approach cannot speed things up.


----------



## jacmyoung

CuriousMark said:


> ...Dish included a letter from TiVo agreeing to drop the hardware claims from the current action if Dish would drop the request for a stay and more delay. If TiVo is holding this back intentionally, then a delay would be in their favor. I would think they would not make that offer, let Dish ask for and get the stay and then grudgingly give in on that after much delay had already occurred. However, TiVo didn't do that, they offered it up front.
> 
> No, I don't buy it. I think TiVo gave it up easily because they may think it is a low value card and that the rest of the cards in their hand (software claims) are good enough to win this.


Therefore the likely logical explanation is TiVo did not want the hardware claims in the picture in the first place, because them could undermine TiVo's next fight, as I speculated earlier. Of course TiVo offered them as a carrot to E*, E* did not bite. Neither of them really saw much value in the hardware claims.


----------



## jacmyoung

CuriousMark said:


> An appeal process, as we all know, could take longer than just going to trial. This approach cannot speed things up.


The appeal process does not stop the judge from finding a no contempt citing more than colorable difference. The appeal is only about whether the bench trial is proper or not.

In fact if you read the E*'s filing, it appears E* is threatening an appeal if the judge refuses to make a ruling on the contempt issue.


----------



## CuriousMark

jacmyoung said:


> The appeal process does not stop the judge from finding a no contempt citing more than colorable difference. The appeal is only about whether the bench trial is proper or not.
> 
> In fact if you read the E*'s filing, it appears E* is threatening an appeal if the judge refuses to make a ruling on the contempt issue.


And if the judge does not rule pending the outcome of the trial that KSM seems to require, dish will appeal and in about a year the judge will be told to rule. Meanwhile nothing happens at all in his court. he probably could use the vacation from the Dish and TiVo lawyers. :lol:


----------



## CuriousMark

jacmyoung said:


> Therefore the likely logical explanation is TiVo did not want the hardware claims in the picture in the first place, because them could undermine TiVo's next fight, as I speculated earlier. Of course TiVo offered them as a carrot to E*, E* did not bite. Neither of them really saw much value in the hardware claims.


Probably right.


----------



## peak_reception

Ok, I've now read Echo's Appeal (still playing catch up on this unexpected turn of events). They are arguing that the new bench trial cannot be fairly folded in with the Contempt proceeding already in motion. Kind of hard to argue with that. I thought it was unfair to Echo and still do. Just didn't know if the Judge had whatever discretionary power he needed to do it. Now Echo cites law saying he doesn't. I have to say they make a convincing argument, at least to me. 


> Originally Posted by James Long View Post
> ...If TiVo conceeded why didn't they withdraw their motion?





jacmyoung said:


> Because TiVo believes the bench trial is the continuation of the contempt proceeding...


 Well yes, b/c the Judge said so. 


> ... after the "on the face contempt" failed to stick, now let's go the "colorable difference" route, the correct route. TiVo should have done so on 5/30, rather wasting all this time.


 Yes, most of us agree on that in retrospect. Only Curtis52 made the right call on that before it was (not) decided by saying that it would be a BIG WASTE OF TIME. He was right. You, on the other hand, were saying that it would not be a waste at all and that Echo would be acquited (so to speak) of the prima facie contempt charge, either by Judge Folsom or by the CAFC. In a way I agree that you were right but Judge Folsom for whatever reason did not want to give them that win. Maybe he had in mind an even bigger win for TiVo come next Feb (or whenever that decision might be issued) but it looks like he's opened Pandora's Box again and Echo has seized the opportunity to throw more sand in the gears of justice. Sad to say I think this time they might be justified in doing so. 



> E* now is saying the bench trial cannot be a part of this contempt proceeding. In another word, E* believes they have won the last round, and tries to again be one step ahead of the game, just like when they filed the new suit in the DE court.


 Yup. It's like the proverbial race between the tortoise and the hare. Not hard to guess which is which. The turtle may well come out ahead in the end but the end may not be here for years to come the way this saga is dragging out. For now the hare is running circles around the turtle.

p.s. That behind the scenes exchange between the lawyers seems odd. I guess those contacts are common but Echo put this one, the e-mail, in their Appeal as an appendix. Is that unusual? dgordo?


----------



## jacmyoung

peak_reception said:


> ...Well yes, b/c the Judge said so...


I know many said so from their plain reading of the order. I offered another interpretation but was overwhelmingly rejected. Since at the time both E* and TiVo seemed eager to follow through with the order there was no point of insisting because my answer might never be proven.

Now I stand that chance again. We may know the answer soon, whether the judge did intend to have this trial be a part of the contempt proceeding or not. If he did, the order will more than likely be struck down simply because the standard is very clear, a contempt proceeding is inappropriate to try the new design's infringement issue.

But I think the judge can still say no my bench trial will not be part of the contempt proceeding, rather an independent proceeding. All he needs to demonstrate is to produce that no contempt on the face ruling he told the TiVo's lawyers more than once on 9/4 he might do. Then the bench trial might still proceed as planned.

Should that happen, the past 6 months would again not be a waste. Not that I am holding my breadth waiting for it to happen. If anything I learned from the past 7 or 8 months, there is really no telling what kind of strange things might happen next.

This much is not in dispute, E* still has not been found in contempt.


----------



## James Long

Greg Bimson said:


> phrelin said:
> 
> 
> 
> That summarizes it. TiVo needs a verdict, Charlie needs delay.
> 
> 
> 
> But not if ultimately DISH/SATS is found in contempt. Imagine the monetary damage of a protracted period of contempt during the delay.
Click to expand...

The verdict TiVo needs is "contempt" (ie: motion to find DISH in contempt granted) - at least that is what I was talking about.



jacmyoung said:


> This much is not in dispute, E* still has not been found in contempt.


Nor have they been found not in contempt ... the motion remains pending.


----------



## Greg Bimson

I'm thinking this way...

Judge Folsom issues an injunction on 8 September, 2006. This injunction is the normal one, which demands DISH/SATS cease making, using or selling DVR's which infringe. The case law regarding contempt on this point is _KSM_. It is the case law that DISH/SATS heavily relies upon. It is the case law that TiVo has also addressed when countering DISH/SATS defense: the modifications still make the receiver infringe and are merely colorably different, and therefore should _also_ be found in contempt.

The second order of the injunction is to disable those receivers found infringing. Contrary to opinion, there is no case law which avoids the "disable order". One of DISH/SATS arguments is that because their workaround no longer infringes, it cannot be forced to disable "Infringing Products" which do not infringe.

Colorable difference may not come into play on this order. The injunction orders DISH/SATS to disable the devices already found as infringements. Changing those devices to another form of infringement may not be appropriate.

I'm thinking, surprsingly enough, that Judge Folsom has intended to make this case a standard. Therefore, it has become an exceptional case.


----------



## tracyball

jacmyoung said:


> I know many said so from their plain reading of the order. I offered another interpretation but was overwhelmingly rejected. Since at the time both E* and TiVo seemed eager to follow through with the order there was no point of insisting because my answer might never be proven.
> 
> Now I stand that chance again. We may know the answer soon, whether the judge did intend to have this trial be a part of the contempt proceeding or not. If he did, the order will more than likely be struck down simply because the standard is very clear, a contempt proceeding is inappropriate *to try the new design's infringement issue.*
> 
> But I think the judge can still say no my bench trial will not be part of the contempt proceeding, rather an independent proceeding. All he needs to demonstrate is to produce that no contempt on the face ruling he told the TiVo's lawyers more than once on 9/4 he might do. Then the bench trial might still proceed as planned.
> 
> Should that happen, the past 6 months would again not be a waste. Not that I am holding my breadth waiting for it to happen. If anything I learned from the past 7 or 8 months, there is really no telling what kind of strange things might happen next.
> 
> This much is not in dispute, E* still has not been found in contempt.


Doesn't this boil down to how Folsom defines "new design"? Will this case set a new precedent for those to follow? Were the boxes made new devices because of a software download?, or will the test be to determine if the "old boxes" are still the same box do they still the infringe Tivo's patents?


----------



## jacmyoung

Greg Bimson said:


> ...I'm thinking, surprsingly enough, that Judge Folsom has intended to make this case a standard. Therefore, it has become an exceptional case.


Believe all you want.

And one other thing, it is far fetched to also believe the longer the delay, the worse the damages, if eventually there is a contempt. It simply does not work that way in reality.

Because contempt is a swift punishing tool offerred to the patentees to avoid any delay caused by having to go through another trial, that is the whole point of a summary contempt proceeding.

Once such swift route appears to be at a dead end, instead a long delay is expected, the prospect of a contempt finding is naturally gone, simply because the opportunity for a swift action is gone.

If it may take a length of a full trial to eventually get a contempt ruling, the Court might as well abandon the whole summary contempt proceeding concept, what a waste of time.


----------



## Curtis52

Greg Bimson said:


> The second order of the injunction is to disable those receivers found infringing. Contrary to opinion, there is no case law which avoids the "disable order".


The disable order is as much an injunction against infringement as the KSM injunction which did not even mention infringement.

"devices which could not be enjoined as infringements on a separate complaint *cannot possibly be deemed enjoined* as infringements under an existing injunction in contempt proceedings. Accord MAC Corp. of America, 767 F.2d at 886, 226 USPQ at 518, " 'fair ground for doubt' on infringement." (emphasis added). Infringement is the sine qua non of violation of an injunction against infringements." KSM


----------



## jacmyoung

tracyball said:


> Doesn't this boil down to how Folsom defines "new design"? Will this case set a new precedent for those to follow? Were the boxes made new devices because of a software download?, or will the test be to determine if the "old boxes" are still the same box do they still the infringe Tivo's patents?


It is not even up to Judge Folsom to define what is new v. what is old. The standards adopted by the Circuit is "the accused" v. "the adjudicated".

The use of the terms "the accused" and "the adjudicated" serve to avoid any confusion as to whether it has to be new, old, already sold, still on the shelves, already at the end user's, still being manufactured, or already a door stop.


----------



## jacmyoung

Curtis52 said:


> The disable order is as much an injunction against infringement as the KSM injunction which did not even mention infringement.
> 
> "devices which could not be enjoined as infringements on a separate complaint *cannot possibly be deemed enjoined* as infringements under an existing injunction in contempt proceedings. Accord MAC Corp. of America, 767 F.2d at 886, 226 USPQ at 518, " 'fair ground for doubt' on infringement." (emphasis added). Infringement is the sine qua non of violation of an injunction against infringements." KSM


Curtis Curtis, why are you still using that quote? I tried to use that quote to make my point and was laughed at by many because I was told I had no clue what the term "separate complaint" meant


----------



## tracyball

Curtis52 said:


> The disable order is as much an injunction against infringement as the KSM injunction which did not even mention infringement.
> 
> "devices which could not be enjoined as infringements on a separate complaint *cannot possibly be deemed enjoined* as infringements under an existing injunction in contempt proceedings. Accord MAC Corp. of America, 767 F.2d at 886, 226 USPQ at 518, " *'fair ground for doubt' on infringement."* (emphasis added). Infringement is the sine qua non of violation of an injunction against infringements." KSM


Seems to me that "fair ground for doubt" on infringement would be the first question that Folsom needs to answer, and depending on the answer, he would choose to go back to determine contempt or not.

But to do so he has to decide how to define "new design" and establish which playing field they are on. Is it a new device? or is it the old device and not colorably different thus still infringing? or is it the old device and IS colorably different

Seems to me there are 3 choices and this is the dividing line previously mentioned....but it needs to be made in order to answer the question of "fair ground for doubt" or not.

These are questions not statements.


----------



## jacmyoung

tracyball said:


> Seems to me that "fair ground for doubt" on infringement would be the first question that Folsom needs to answer, and depending on the answer, he would choose to go back to determine contempt or not.
> 
> But to do so he has to decide how to define "new design" and establish which playing field they are on. Is it a new device? or is it the old device and not colorably different thus still infringing? or is it the old device and IS colorably different
> 
> Seems to me there are 3 choices and this is the dividing line previously mentioned....but it needs to be made in order to answer the question of "fair ground for doubt" or not.
> 
> These are questions not statements.


The dividing line has never been hinged on the nature of the devices, rather on:

Fair ground for doubt;
More than colorable; or
Substantial open issues have been raised.

They are all saying pretty much the same thing, if any one of them is affirmative, the patentee has failed to prove with clear and convincing evidence that the accused devices are still infringements, and as such there simply cannot be a contempt finding.

*Even if* in a later trial the same accused devices may again be found as infringements.


----------



## Curtis52

tracyball said:


> is it the old device and IS colorably different


I don't think it can be both. They are mutually exclusive.


----------



## tracyball

jacmyoung said:


> It is not even up to Judge Folsom to define what is new v. what is old. The standards adopted by the Circuit is "the accused" v. "the adjudicated".
> 
> The use of the terms "the accused" and "the adjudicated" serve to avoid any confusion as to whether it has to be new, old, already sold, still on the shelves, already at the end user's, still being manufactured, or already a door stop.


OK I will rephrase :

Are the devices with the "new design" (which was the wording taken from your quote) aka software download/workaround still the "adjudicated boxes" and the test would be to determine if they are or are not colorably different?

or

Are the devices now the "accused" devices (completely different boxes warranting a new trial with jury) as a result of the software download


----------



## jacmyoung

Curtis52 said:


> I don't think it can be both. They are mutually exclusive.


If you only look at that four-year-old DVR sitting on top of the TV all this time, yes you can say it is still that good old DVR, and yet if the software in it has been updated a few times to make the DVR no longer infringe on the patent, is the difference the software made on this DVR more than colorable? Certainly.

That is why the Court has avoided too much the use of the word "new" or "old". The only thing that matters is whether the device still infringes or not.


----------



## tracyball

jacmyoung said:


> If you only look at that four-year-old DVR sitting on top of the TV all this time, yes you can say it is still that good old DVR, and yet if the software in it has been updated a few times to make the DVR no longer infringe on the patent, is the difference the software made on this DVR more than colorable? Certainly.
> 
> That is why the Court has avoided too much the use of the word "new" or "old". *The only thing that matters is whether the device still infringes or not.*


*
*

Yes, we have the matter of whether the device still infringes or not

But we also have the matter of is the contempt hearing appropriate or not

Thus my point......it boils down to how Folsom interprets what the software did to the box........are they "new=accused" or "old/same=adjudicated".

First question "fair ground of doubt" to figure out contempt hearing appropriate or not


----------



## jacmyoung

tracyball said:


> OK I will rephrase :
> 
> Are the devices with the "new design" (which was the wording taken from your quote) aka software download/workaround still the "adjudicated boxes" and the test would be to determine if they are or are not colorably different?


They are not the adjudicated devices because the DVRs with the new software had never been adjudicated, only the DVRs with the old software were adjudicated to be infringements.



> or
> 
> Are the devices now the "accused" devices (completely different boxes warranting a new trial with jury) as a result of the software download


They are accused devices simply because TiVo is "accusing" those DVRs with the new software, TiVo is not accusing those DVRs with the old software, because the DVRs with the old software no longer exist.


----------



## Curtis52

jacmyoung said:


> The only thing that matters is whether the device still infringes or not.


A device cannot be tried twice for infringement. That's why being more than colorably different allows a new trial. It isn't legally the same device. It is no longer "that good old DVR".


----------



## jacmyoung

tracyball said:


> [/U][/B]
> 
> Yes, we have the matter of whether the device still infringes or not
> 
> But we also have the matter of is the contempt hearing appropriate or not
> 
> Thus my point......it boils down to how Folsom interprets what the software did to the box........are they "new=accused" or "old/same=adjudicated".
> 
> First question "fair ground of doubt" to figure out contempt hearing appropriate or not


I think you are right on, as long as you are not too obssessed with the words "new" and "old"


----------



## tracyball

jacmyoung said:


> They are not the adjudicated devices because the DVRs with the new software had never been adjudicated, only the DVRs with the old software were adjudicated to be infringements.
> 
> They are accused devices simply because TiVo is "accusing" those DVRs with the new software, TiVo is not accusing those DVRs with the old software, *because the DVRs with the old software no longer exist.*


*
*

Is that a matter of law? And isn't that where a new precedent must be established?

Is there case law to back up what you are saying is fact?

Do software downloads extinguish/exterminate a device into oblivion? Do devices morph as a matter of law due to a software download?


----------



## vampz26

jacmyoung said:


> If you only look at that four-year-old DVR sitting on top of the TV all this time, yes you can say it is still that good old DVR, and yet if the software in it has been updated a few times to make the DVR no longer infringe on the patent, is the difference the software made on this DVR more than colorable? Certainly.
> 
> That is why the Court has avoided too much the use of the word "new" or "old". The only thing that matters is whether the device still infringes or not.


It will be interesting. Its not so much as being able to demonstrate a colorable difference or not, but to prove that whatever update was made in no way, shape, or form, has been derived from the original software thought to have infringed. This is a broad patent that supposedly covers innovations on the technology that otherwise would not exist without the original. As a software engineer with some legal experience thrown in, I have to admit...that would be quite a challenge to pull off on a technical level...


----------



## scooper

Tracy - if you go read about , oh - 4000-5000 posts in various threads over the past year - those questions have been debated very vigourously. Also several other points related to this topic....

IMO, as a trained CS person - with the new S/W, they are "new" boxes. At the very least, the new design needs looked at in a new trial

Again - MY opinion, for what it's worth....


----------



## jacmyoung

Curtis52 said:


> A device cannot be tried twice for infringement. That's why being more than colorably different allows a new trial. It isn't legally the same device. It is no longer "that good old DVR".


I understand that, but to tell it to the average Joe Blow's (borrowed term from Greg) that their good old DVRs are no longer the same good old DVRs will be tough. They might think we have some mental issues

That is why while the physical devices are all we are focused on, it is in fact the "act of infringement" that an injunction may prohibit.

The prohibition is aimed at that *act*, the devices are only the scapegoat.


----------



## tracyball

*


Curtis52 said:



A device cannot be tried twice for infringement. That's why being more than colorably different allows a new trial. It isn't legally the same device. It is no longer "that good old DVR".

Click to expand...

*

So....you agree then that he must determine if the device is "that good old DVR or not" by determining first the colorably different issue

Then depending on the answer determine if contempt can be revisited or a new trial is warranted?


----------



## jacmyoung

vampz26 said:


> It will be interesting. Its not so much as being able to demonstrate a colorable difference or not, but to prove that whatever update was made in no way, shape, or form, has been derived from the original software thought to have infringed. This is a broad patent that supposedly covers innovations on the technology that otherwise would not exist without the original. As a software engineer with some legal experience thrown in, I have to admit...that would be quite a challenge to pull off on a technical level...


But if you only care to look at it from a legal standpoint, and realize how an infringement on a patent claim may be found, E* has already pulled it off, if what E* described of their new design is true.


----------



## vampz26

jacmyoung said:


> But if you only care to look at it from a legal standpoint, and realize how an infringement on a patent claim may be found, E* has already pulled it off, if what E* described of their new design is true.


From a legal standpoint, yes...from a personal standpoint, I think the entire case is a crock...but what can I say. :grin:

I would be curious to see who they subscribe to for expert witness testimony in this case. Given that the difference is attributed entirely to software, its going to come down to whatever process the software implements. And that can be difficult to prove. You see, a judge has no knowledge of algorithm logic, finite state transitions, formal methods, or any of the other software design practices that would be required for analyzing a software component of this complexity for 'colorable difference'. They would be relying on a third party to effectively communicate that difference to the court. And how effectively they communicate those differences if any can make all the difference in the world on how this trial finally turns out...


----------



## Greg Bimson

jacmyoung said:


> It is not even up to Judge Folsom to define what is new v. what is old. The standards adopted by the Circuit is "the accused" v. "the adjudicated".


That is sweeping the problem under the rug. Unlike every other case, in this case is "the accused", devices subject to a disable order, and "the adjudicated" are one in the same: Joe Blow's four year old DVR 501.


jacmyoung said:


> They are accused devices simply because TiVo is "accusing" those DVRs with the new software, TiVo is not accusing those DVRs with the old software, because the DVRs with the old software no longer exist.


Again, the accused devices are the devices that were adjudged, but DISH/SATS modified them.


tracyball said:


> Is that a matter of law? And isn't that where a new precedent must be established?


Ordering a bench trial for continuing infringement is somewhat "precedential". Then again, both sides have stated their is a modification, but the infringer states infringement is no longer present and therefore not subject to an injunction order against infringements. If the devices are still infringing, it completely negates the argument from the infringer.

Now you know why the infringer doesn't want a bench trial.


----------



## Ergan's Toupe

vampz26 said:


> As a software engineer with some legal experience thrown in, I have to admit...that would be quite a challenge to pull off on a technical level...


Some would say it was a "Herculean effort".


----------



## tracyball

tracyball said:


> *
> 
> *
> 
> So....you agree then that he must determine if the device is "that good old DVR or not" by determining first the colorably different issue
> 
> Then depending on the answer determine if contempt can be revisited or a new trial is warranted?





Greg Bimson said:


> That is sweeping the problem under the rug. Unlike every other case, in this case is "the accused", devices subject to a disable order, and "the adjudicated" are one in the same: Joe Blow's four year old DVR 501.Again, the accused devices are the devices that were adjudged, but DISH/SATS modified them.Ordering a bench trial for continuing infringement is somewhat "precedential". Then again, both sides have stated their is a modification, but the infringer states infringement is no longer present and therefore not subject to an injunction order against infringements. If the devices are still infringing, it completely negates the argument from the infringer.
> 
> *Now you know why the infringer doesn't want a bench trial.*


*
*
exactly. I agree 100%

I went back through the May 30 transcript again. I think the bench trial appropriately addresses several issues put on the table during that meeting.

"THE COURT: SO ESSENTIALLY WE ARE TALKING NOW TWO 
UNRESOLVED ISSUES, THE INJUNCTION ISSUE AND THEN DAMAGES THAT 
HAVE ACCRUED SINCE THE JUDGMENT."

Tivo:
"THE FIRST ISSUE, WHETHER THE INJUNCTION HAS BEEN 
VIOLATED, THERE ARE REALLY TWO PARTS TO IT. "

Colorable difference has to be established to solve the damages issue. THEN; the injunction issue will be clear.


----------



## jacmyoung

Greg Bimson said:


> That is sweeping the problem under the rug. Unlike every other case, in this case is "the accused", devices subject to a disable order, and "the adjudicated" are one in the same: Joe Blow's four year old DVR 501.Again, the accused devices are the devices that were adjudged, but DISH/SATS modified them.


Modification is the key, all that matters.



> Ordering a bench trial for continuing infringement is somewhat "precedential".


Not at all, judges regularly order bench trials to further determine infringement issue of modified devices, but not before a finding of no contempt first. What is precedential here is Judge Folsom did so without concluding the contempt proceeding by not producing a ruling on contempt, giving the impression that the bench trial is a part of the contempt proceeding.

If so, it is an abuse of court discretion, because the Court said any trial following a contempt proceeding must only occur if there is no contempt finding, and then the trial that follows must be an indepedent proceeding.

Judge Folsom should have ruled on the contempt first, before ordering this bench trial, if and only if the ruling is a no contempt.

If the ruling is a contempt, the bench trial will be uncecessary. TiVo can get everything they ask for and then some, no need to go through another lengthy trial to determine additional damages.

TiVo does not want nor need another trial, if they can get a contempt right now. The fact TiVo is saying the bench trial is what they want is simply trying to hide the fact that they have lost the contempt argument.

E* is now forcing the judge to rule a no contempt, by telling him this trial cannot happen unless a ruling on the contempt is first produced. Otherwise E* will want the bench trial struck down by the Appeals Court, and E* has strong case law on their side.

We don't know what TiVo's response will be, what we do know is what TiVo has responded so far, that is to modify the bench order to avoid the order being struck down. But their modification itself is not even proper, a trial cannot be used to determine colorable difference issue, only the infringement issue.

Additionally, E* is saying once the judge makes a no contempt ruling, if another trial is necessary, E* has the right to a jury trial. And there is no doubt in my mind E* wants that jury trial to happen in the DE court too. They have already filed that case in the DE court, both E* and TiVo had already started their arguments on the merit of the lawsuit already, naturally the DE court should have the juristiction over that new trial now.

But first thing first.


----------



## Greg Bimson

jacmyoung said:


> Not at all, judges regularly order bench trials to further determine infringement issue of modified devices, but not before a finding of no contempt first.


Completely incorrect. In order to GRANT contempt, a process or device must be merely colorably different AND adjudged as an infringement, thanks to KSM. A DENIED contempt hearing would start a completely new trial for infringement, if the patentee starts it.


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## Greg Bimson

tracyball said:


> Do software downloads extinguish/exterminate a device into oblivion? Do devices morph as a matter of law due to a software download?


Of course, you've stated here the entire issue in a nutshell.

If a software download morphs adjudged devices to unadjudged devices, then contempt the injunction cannot be found. Conversely, if there is no "morph", then the devices MUST be disabled or contempt can be found.


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## jacmyoung

Greg Bimson said:


> Completely incorrect. In order to GRANT contempt, a process or device must be merely colorably different AND adjudged as an infringement, thanks to KSM. A DENIED contempt hearing would start a completely new trial for infringement, if the patentee starts it.


It is not necessary for the patentee to start another trial, once there is a no contempt, the judge can start that trial himself. The Circuit Court gives the District Court judges wide latitude in that regard.

But a no contempt ruling must come first, that is what is missing here.


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## James Long

jacmyoung said:


> What is precedential here is Judge Folsom did so without concluding the contempt proceeding by not producing a ruling on contempt, giving the impression that the bench trial is a part of the contempt proceeding.


Or clearly stating that the bench trial is part of the contempt proceeding ... if one reads the first two lines of the order.

Finding contempt on the face and making it stick would be precedential ... it would be a lot easier to say that DISH disobeyed the injunction if it were proven that they are still infringing. The end of infringement gets into the gray area of if DISH followed the "spirit" of the injunction.

The oddest part about this case is it seems that Judge Folsom seems to be telegraphing what he wants to hear from the parties and all he is getting is "yes you honor" followed by a completely different response/action than the one requested.

DISH is in contempt on the face of the injunction if you apply Walker ... DISH clearly did not disable the DVR functionality on the adjudicated receivers in any real sense of the word. But if they no longer infringe does that contempt matter? Without actual infringement contempt should be a slap on the wrist -- the goal of the entire process will have been met when infringement ends. All that will be left is to figure out a punishment for all past infringement.


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## James Long

Greg Bimson said:


> Completely incorrect. In order to GRANT contempt, a process or device must be merely colorably different AND adjudged as an infringement, thanks to KSM. A DENIED contempt hearing would start a completely new trial for infringement, if the patentee starts it.


Contempt on what basis? For having DVR functionality on adjudicated devices or for actually infringing?

The current motion is fairly simple ... court said "do X" and DISH didn't do X. Disobedience in it's simplest form. The question is if they have a valid excuse.


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## Greg Bimson

jacmyoung said:


> But a no contempt ruling must come first, that is what is missing here.


You'd think with the amount of times I'd quoted this:


> Under the standard we adopt, *a judgment of contempt* against an enjoined party for violation of an injunction against patent infringement by the making, using or selling of a modified device *may not be upheld without a finding that the modified device falls within the admitted or adjudicated scope of the claims and is, therefore, an infringement*. KSM


It is the standard. It doesn't mention that colorable difference must be found first. It doesn't mention that a contempt motion be denied before finding infringement.

I mean, let's use DISH/SATS motion for an emergency stay...


> Under KSM Fastening Systems, Inc. v. H.A. Jones Co., 776 F.2d 1522, 1530 (Fed. Cir. 1985), the Court must make a threshold determination of "whether infringement should be adjudicated in contempt proceedings" instead of requiring new charges of infringement to be determined in a new full trial.


This isn't a new charge of infringement. This is to determine continuing infringement. And Judge Folsom must feel that he has made the determination "whether infringement should be adjudicated in contempt proceedings".


> Only if a court finds that there is no more than a colorable difference, i.e. any differences are only minor, cosmetic or insignificant, between the modified product and the product adjudged to infringe may a court determine the issue of infringement in summary contempt proceedings. Abbott Labs. v. TorPharm, Inc., 503 F.3d 1372, 1380 (Fed. Cir. 2007).


But there isn't a direct citation. And perhaps Judge Folsom has already made the determination of colorable difference, but has not made it public.


> "If there are substantial open issues with respect to infringement to be tried, contempt proceedings are inappropriate." KSM, 776 F.2d at 1532. The accused infringer is entitled to a new proceeding in which the question of infringement is fully litigated. Id. This includes the right, under the Seventh Amendment, to a jury trial on the issue of infringement. See Markman v. Westview Instruments, Inc., 517 U.S. 370, 377 (1996).


Therefore, the argument from KSM is that a determination of infringement must be made before contempt can be found, which is counter to jacmyoung's position. If there are open issues regarding infringement, then contempt cannot be found. However, that is only on accused devices never in standing before the court.

It appears to me that Judge Folsom doesn't buy the argument that the modifications make these "new devices".


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## Greg Bimson

James Long said:


> Contempt on what basis? For having DVR functionality on adjudicated devices or for actually infringing?


The standard from KSM is in the post I did right before this. The KSM standard is for accusing devices manufactured, used or sold as infringements. I've stated for about a month now that KSM therefore is only about new devices since the start of the injunction. TiVo has accused sales of the newly-modified 501, 508, 510, 522 and 625 are also violating the injunction against sales.

TiVo does want this bench trial to happen; it is the basis of the last $52 million of the damages motion. TiVo first wanted a ruling that the adjudged devices are to be disabled. Judge Folsom therefore believes it is in the court's best interest to have a ruling on continuing infringement before ever issuing his decision.


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## peak_reception

jacmyoung said:


> It is not necessary for the patentee to start another trial, once there is a no contempt, the judge can start that trial himself. The Circuit Court gives the District Court judges wide latitude in that regard.
> 
> But a no contempt ruling must come first, that is what is missing here.


 On this last point I agree 100% except to add that he can rule Contempt too. If it's overturned so be it. He needs to RULE ALREADY!! YAY OR NAY ??

By sitting on the contempt motion and folding in in with the bench trial he's set (by no party's request) he's risking procedural nullification. Echo is exploiting the opening and I can't blame them. Judge Folsom's non-ruling order of November brings Echo double the risk with no upside and is, if you buy Echo's argument, a violation of due process in regards to patent case procedure. Hard to argue against when you read their citations on the matter in their Appeal. The 7th Amendment argument is a stretch but all they need is for the CAFC to grant the procedure point and they've won yet another delay, possibly more.


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## Curtis52

Greg Bimson said:


> The KSM standard is for accusing devices manufactured, *used* or sold as infringements. I've stated for about a month now that KSM therefore is only about new devices since the start of the injunction.


Since the injunction went into effect Dish has *used *the accused devices to make money each month.


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## jacmyoung

James Long said:


> Or clearly stating that the bench trial is part of the contempt proceeding ... ...


Which is precedential if true.

Greg was saying by the judge ordering a bench trial itself was precedential, I said no, the judges can order bench trials on their own, it is done regularly.

What is precedential here is the judge seemed to imply this bench trial is a part of the contempt proceeding, which is precedential.

Finding contempt on the face without any review of the modification will be precedential too, ok not precedential, but if such ruling will then be upheld by the Circuit Court later, that will be precedential.


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## Curtis52

jacmyoung said:


> What is precedential here is the judge seemed to imply this bench trial is a part of the contempt proceeding, which is precedential.


"Non-antitrust litigation experience includes the participation in successful bench trial for contempt for violation of consent decree resolving a patent infringement claim related to air brakes." http://www.arnoldporter.com/attorneys.cfm?u=FlackChristopherJ&action=view&id=510


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## jacmyoung

Greg Bimson said:


> You'd think with the amount of times I'd quoted this:It is the standard. It doesn't mention that colorable difference must be found first. It doesn't mention that a contempt motion be denied before finding infringement...


It did not say so in that quote because that quote was addressing the need for the patentee to prove with clear and convincing evidence of a continued infringement *in a contempt proceeding*. To do so *in a contempt proceeding*, the patentee must prove the accused devices are the same, or even if different, the difference is only colorable. These are the only two ways a patentee can use to prove infringement *in a contempt proceeding*. If these two methods fail, the contempt proceeding ends.

The reverse is not true that a contempt proceeding may be used to determine whether the modified devices are still infringing or not. The 3rd way is to use a trial to again determine the new design infringement question, and this method cannot be a part of the contempt proceeding because the court only allowed two methods be used in a contempt proceeding, the above two I mentioned, not this third one. You cannot isolate one quote and ignore all the other quotes.

Because it is also clear from the standards it is inappropriate to use a contempt proceeding to try the new design's infringement issue. Once substantial open issues are raised in a contempt proceeding, the patentee has failed to prove an infringement, therefore a contempt.

After that, the patentee, or the judge himself, may initiate another trial to further determine if the new design is still an infringement or not. But that trial has to be independent of the contempt proceeding.

Because Judge Folsom seemed to say his new bench trial was a part of the contempt proceeding, E* now is asking the Appeals Court to struck it down. There may not even be any opportunity for TiVo or the judge for that matter to modify the order to survive the appeal, though I am not certain on that.

As long as E* has such appeals right, parties will just have to wait till the appeal is over, and start all over again, that time better do it the right way.


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## jacmyoung

Curtis52 said:


> "Non-antitrust litigation experience includes the participation in successful bench trial for contempt for violation of consent decree resolving a patent infringement claim related to air brakes." http://www.arnoldporter.com/attorneys.cfm?u=FlackChristopherJ&action=view&id=510


You need to cite that case not just the attorney's resume I bet in that case the judge first told the parties he could not find a contempt, and ordered the bench trial to further settle the infringement issue.

Though I have already said I am not certain if E*'s appeal will prevail. I think there is still chance for the judge to clarify his intent and continue with the bench trial. All he needs to say is he did not find contempt on the face, as a result he is ordering this bench trial to further settle the dispute.

And after that, if an infringement can be found, he can of course say yes, E* was in contempt, not only on the face, but in spirit. Because they continued to infringe. Therefore in that sense, the above link you provided is not wrong for saying he won a bench trial to find a contempt.


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## Greg Bimson

jacmyoung said:


> It did not say so in that quote because that quote was addressing the need for the patentee to prove with clear and convincing evidence of a continued infringement *in a contempt proceeding*. To do so *in a contempt proceeding*, the patentee must prove the accused devices are the same, or even if different, the difference is only colorable. These are the only two ways a patentee can use to prove infringement *in a contempt proceeding*. If these two methods fail, the contempt proceeding ends.


This sounds exactly like DISH/SATS argument. Therefore, let's take your two scenarios:

1) if the accused device is the same, then it is contempt on its face.
2) if the accused device is merely colorably different, then contempt can be found.

Except that _KSM_ states in order for contempt to be upheld, infringement must also be found. In other words, appeals courts will reverse a granted charge of contempt if infringement is not addressed. Infringement must be addressed *before* a contempt motion is granted or dismissed.

The case is most likely GE Railway Electronics v. Westinghouse Air Brake. I'll let anyone find what they need in this case...


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## jacmyoung

peak_reception said:


> On this last point I agree 100% except to add that he can rule Contempt too. If it's overturned so be it. He needs to RULE ALREADY!! YAY OR NAY ?? ...


If he rules a contempt, there is no point of another trial. All the damages TiVo asks for are likely granted, other than the increased rates which will be subject to the judge, and the lost profit which is questionable.

E* will appeal, and TiVo can appeal too, if the damages the judge awarded is not satisfactory, and it will make sense to wait for the end of the appeal to decide what to do next.

Or E* can give up and settle with TiVo.

But I agree yes the judge needs to rule, but I don't think he is compelled to rule now. He can for example say he does not have enough evidence to rule one way or the other, and order another discovery, which will be much more limited than what he is ordering based on a full bench trial. What is not approporiate is to order this full bench trial as a part of the contempt proceeding.


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## phrelin

If this whole round is all about process and nothing but process, IMHO with regard to the listed boxes the judge can rule that E* failed to comply with his order and was in contempt up to the point the revised code was actually introduced into the proceedings by someone. What appellate court would overturn that unless there was a truly unreasonable money damages award?

IMHO procedurally with regard to the time after the revised code was first introduced into the proceedings, E* is probably Constitutionally entitled to a jury trial on the revised code in the listed boxes as they argue. Personally, if I were the judge I'd order a jury trial on that issue but play a little appellate chicken with E* by broadening the scope to the use of that code in all current and future boxes. If we have to create law for Charlie, well...try to create law that could be defended as fair and just? After all, if the new code infringes, it likely infringes in the ViP series. If it doesn't infringe, it doesn't infringe in any physical box.


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## CuriousMark

phrelin said:


> If this whole round is all about process and nothing but process, IMHO with regard to the listed boxes the judge can rule that E* failed to comply with his order and was in contempt up to the point the revised code was actually introduced into the proceedings by someone. What appellate court would overturn that unless there was a truly unreasonable money damages award?


The revised code was introduced while the injunction was stayed to allow Dish to appeal the original jury trial loss.



> IMHO procedurally with regard to the time after the revised code was first introduced into the proceedings, E* is probably Constitutionally entitled to a jury trial on the revised code in the listed boxes as they argue. Personally, if I were the judge I'd order a jury trial on that issue but play a little appellate chicken with E* by broadening the scope to the use of that code in all current and future boxes. If we have to create law for Charlie, well...try to create law that could be defended as fair and just? After all, if the new code infringes, it likely infringes in the ViP series. If it doesn't infringe, it doesn't infringe in any physical box.


So are you saying that anyone who infringes a field modifiable device can simply create new code to work around an infringement, buy an opinion of non-infringement from a hungry patent attorney, and know that the patent owner will have to spend 3 to 4 times more money and time to come after them for patent infringement? Are you also saying that they can repeat this process ad infinitum if they so desire?

Yes, TiVo will need a whole new trial to go after the newer boxes if they feel that those also infringe. But if Dish is able to avoid contempt by this practice, what would prevent them from doing the same in the next trial and thus effectively be able to ignore the patent for as long as they see fit.

I suppose that is what deep pockets gets you, or is what owners of deep pockets think that money gets them.


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## Curtis52

phrelin said:


> If this whole round is all about process and nothing but process, IMHO with regard to the listed boxes the judge can rule that E* failed to comply with his order and was in contempt up to the point the revised code was actually introduced into the proceedings by someone. What appellate court would overturn that unless there was a truly unreasonable money damages award?


Dish was under no obligation to report anything. Their only obligation was to either disable the boxes or correct the infringement problem. TiVo was also under no obligation to report anything.


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## James Long

No legal obligation but it would have been polite to keep the court informed. Aparently they wanted to wait until the appeals court was done so they would not be admitting that the old software was a problem.

Notifying the court PRIOR to the appeals court verdict would have had to been carefully worded. "We have made a significant change to our receivers that removes the processes alleged to infringed." And ask the court to consider the five upgraded models to be "modified". The court would not have acted, pending the appeal, but at least they would have been informed.

Judge Folsom was not happy about not being told ... but keepinmg the judge happy is merrily a good idea, not a requirement.


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## phrelin

Curtis52 said:


> Dish was under no obligation to report anything. Their only obligation was to either disable the boxes or correct the infringement problem. TiVo was also under no obligation to report anything.


Didn't say they were. I don't think the judge would be overturned if he set the first time he heard about it as the cutoff for penalties, however. That's just an opinion.


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## Curtis52

phrelin said:


> Didn't say they were. I don't think the judge would be overturned if he set the first time he heard about it as the cutoff for penalties, however. That's just an opinion.


I understood what you meant, but it would be penalizing Dish for not doing something they weren't required to do.


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## jacmyoung

CuriousMark said:


> ...So are you saying that anyone who infringes a field modifiable device can simply create new code to work around an infringement, buy an opinion of non-infringement from a hungry patent attorney, and know that the patent owner will have to spend 3 to 4 times more money and time to come after them for patent infringement? Are you also saying that they can repeat this process ad infinitum if they so desire?
> 
> Yes, TiVo will need a whole new trial to go after the newer boxes if they feel that those also infringe. But if Dish is able to avoid contempt by this practice, what would prevent them from doing the same in the next trial and thus effectively be able to ignore the patent for as long as they see fit.
> 
> I suppose that is what deep pockets gets you, or is what owners of deep pockets think that money gets them.


Guess what the answer is a yes, well almost.

1) It will take more than just a hungry patent attorney, rather a bunch All kidding aside, there was a discovery between E* and TiVo right before 5/30, and TiVo never disputed the fact E* modified the DVRs, TiVo also did not dispute the new design evidence presented by E*, TiVo just said based on the same evidence, while E* argued they no longer infringe, TiVo argued the difference was merely colorable. Therefore the judge has everything needed to say who he likes to agree with.

2) Yes E* can continue to design around the patent, but each time if they fail, they will have to pay, until such time they successfully design around the patent or stop trying and simply give up.

There is nothing unfair in this if one only understands the purpose of our patent law.

When the patent law was established, the intent of it was to encourage the inventors to disclose their inventions, rather keep the inventions as trade secrets. The reason as argued by the Congress was if people were encouraged to disclose their inventions, others could then use such ideas to design around and develop their own, thus benefit us all.

Of course to encourage the disclosure, the State decided to grant the patentee certain rights, the main right is the right to refuse to let others to use (infringe on) its patent without consent. But not to prevent design around, because the intent of the patent law is precisely to allow others to learn from the disclosed inventions and try to use such info to advance their own causes, as long as they do not infringe.

In reality though, even inventing and developing around a disclosed invention often means very high cost and effort, so a lot of times companies simply license the patented inventions, and let the patentees do the needed dirty work for them.

But everyone is free to try to design around the patented art, so long as they do not infringe on the art.

Our patent law does not grant patentees' the right to use or practice their own inventions, believe it or not, only the right to refuse the others from infringing on the patented inventions. For the same reason, if the patentees were granted the right to practice based on their own inventions, others would not have been allowed to practice (with some design around) based on the same inventions.


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## Ergan's Toupe

jacmyoung said:


> What is not approporiate is to order this full bench trial as a part of the contempt proceeding.


Says who?


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## Curtis52

CuriousMark said:


> So are you saying that anyone who infringes a field modifiable device can simply create new code to work around an infringement, buy an opinion of non-infringement from a hungry patent attorney, and know that the patent owner will have to spend 3 to 4 times more money and time to come after them for patent infringement? Are you also saying that they can repeat this process ad infinitum if they so desire?


http://www.dbstalk.com/showpost.php?p=1736362&postcount=1539


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## jacmyoung

Ergan's Toupe;1907532 said:


> Says who?


The Circuit Court, did you not read all those quotes from the Court?

If not done so yet, please do read them, and while you do so, pay attention to the word "inappropriate".


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## jacmyoung

Greg Bimson said:


> ...Except that _KSM_ states in order for contempt to be upheld, infringement must also be found. In other words, appeals courts will reverse a granted charge of contempt if infringement is not addressed. Infringement must be addressed *before* a contempt motion is granted or dismissed....


Before a contempt is granted, but not dismissed. The Court never said non-infringement must be found before a motion for contempt may be dismissed.

In fact what the Court said was, if more than colorable, the motion for contempt must be dismissed, even if later the accused products may be again found an infringement during a trial.


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## Greg Bimson

Greg Bimson said:


> Infringement must be addressed before a contempt motion is granted or dismissed....





jacmyoung said:


> Before a contempt is granted, but not dismissed. The Court never said non-infringement must be found before a motion for contempt may be dismissed.


Okay, that is correct. If there is more than a colorable difference, then there is no sense in finding infringement...


jacmyoung said:


> In fact what the Court said was, if more than colorable, the motion for contempt must be denied, even if later the accused products may be again found an infringement during a trial.


Also correct. However, from DISH/SATS motion to stay the order for the bench trial:


> Only if a court finds that there is no more than a colorable difference, i.e. any differences are only minor, cosmetic or insignificant, between the modified product and the product adjudged to infringe may a court determine the issue of infringement in summary contempt proceedings. Abbott Labs. v. TorPharm, Inc., 503 F.3d 1372, 1380 (Fed. Cir. 2007).


If the court has found "no more than a colorable difference", then there is no longer an issue. Nowhere is it stated that the court must release the details of the finding regarding colorable difference before asking for a trial.

So it is possible Judge Folsom has determined the devices are merely colorably different already.

However, I still have the feeling that Judge Folsom does not buy the "old device/new device" argument when it comes to placing modified software on the adjudged devices. He may not care about colorable difference on a device a jury already found adjudged as an infringement. He is charting new territory.


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## jacmyoung

Below is another way to explain it, but first a few legal concepts must be agreed on.

In a civial case there are generally two standards of proof used:

1) Proof by preponderance of evidence;

2) Proof by clear and convincing evidence.

Another standard of proof is called proof beyond reasonable doubt, used in a criminal case which does not apply here.

The first standard is usually used in a trial, such as that jury trial, and this new bench trial. The second standard is usually used in summary proceedings such as this summary contempt proceeding.

The first one is a *lower* standard of proof than the second one.

If we can agree so far, then let's look at what we have in front of us.

We have two things now, one is called the contempt proceeding in response to TiVo's contempt motion, the other thing is called a bench trial, ordered by the judge, again in his words in response to the same TiVo's contempt motion.

So far so good?

These two things carry different standards of proof, one is much higher standard than the other.

By that definition alone, one cannot be part of the other. Because if you insist the bench trial is just a part of the contempt proceeding, then the standard of proof of the bench trial naturally will be the same as the standard used in the summary contempt proceeding.

But we know this is not true. Because if true, it will be unfair to TiVo, meaning TiVo is now held to a much higher standard of proof of infringement regardless.

TiVo may fail in proving infringement in the sumamry contempt proceeding due to the higher standard of proof, but TiVo can still try to prove infringement in a trial because the standard of proof is lower.

By insisting this bench trial is just the same as or part of the summary contempt proceeding, it will be impossible for TiVo to prove infringement, if they did not prove so already, because the same *higher* standard must apply.


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## Curtis52

Greg Bimson said:


> Nowhere is it stated that the court must release the details of the finding regarding colorable difference before asking for a trial.


There is no finding until it is released. The law requires that findings be made public. This ain't Russia.


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## jacmyoung

Greg Bimson said:


> ...Nowhere is it stated that the court must release the details of the finding regarding colorable difference before asking for a trial.
> 
> So it is possible Judge Folsom has determined the devices are merely colorably different already...


Of course you wish so. While it may not be required to disclose the colorable finding process, if the decision is not already made, but if a finding is already made, it will most certainly be unfair to either party not to disclose it.

That is especially true for the defendant, because the defendant has the right to due process. But for the defendant to even enjoy such right, the State must first disclose what he is accused of or in violation of. Only then the defendant may begin to consider how to excercise his right in his defense. And that is what E* is saying.

By the judge not disclosing the finding, not telling E* if E* is in violation or not, yet go on to another trial is in violation of E*'s due process, because the motion before us is whether E* is in violation on the face or not, not whether E*'s new design is an infringement or not.

Once the finding is made and disclosed, if it is a contempt, then E* can appeal such finding. Now E* is deprived of such due process right because no disclosure is made. At a minimum if no disclosure is made, the judge should wait, not to order another trial. No one has accused E* of anything yet as far as the new design infringement is concerned.


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## Ergan's Toupe

jacmyoung said:


> The Circuit Court, did you not read all those quotes from the Court?
> 
> If not done so yet, please do read them, and while you do so, pay attention to the word "inappropriate".


No I didn't. Care to post a link?


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## Greg Bimson

Curtis52 said:


> There is no finding until it is released. The law requires that findings be made public. This ain't Russia.





jacmyoung said:


> While it may not be required to disclose the colorable finding process, if the decision is not already made, but if a finding is already made, it will most certainly be unfair to either party not to disclose it.


Sure.

Yet all Judge Folsom did was order a bench trial for ongoing infringement, linked to the finding of contempt for violations of the injunction. Judge Folsom did not tip his hand regarding any of the legal questions in front of him, other than ongoing infringement needs an answer.

DISH/SATS is screaming that is unfair, and maybe rightfully so. Maybe next time they infringe, their defense isn't that the injunction cannot apply to devices found infringing because they no longer infringe. They opened this door...


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## Ergan's Toupe

jacmyoung said:


> Of course you wish so. While it may not be required to disclose the colorable finding process, if the decision is not already made, but if a finding is already made, it will most certainly be unfair to either party not to disclose it.


Kind of like the super top secret "design around" that Chuckles didn't tell anyone about?


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## Ergan's Toupe

Greg Bimson said:


> Sure.
> 
> Yet all Judge Folsom did was order a bench trial for ongoing infringement, linked to the finding of contempt for violations of the injunction. Judge Folsom did not tip his hand regarding any of the legal questions in front of him, other than ongoing infringement needs an answer.
> 
> DISH/SATS is screaming that is unfair, and maybe rightfully so. Maybe next time they infringe, their defense isn't that the injunction cannot apply to devices found infringing because they no longer infringe. They opened this door...


They certainly did open the door. They also said publicly that "they were pleased to be able to prove that they no longer infringed".

Funny how a week later Chuckles is whining about fairness and his constitutional rights. It's almost like he's afraid of something....:eek2:


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## jacmyoung

Greg Bimson said:


> ...They opened this door...


Sure they did, E* can act like a big kid, so can TiVo, in fact Judge Folsom said himself they both acted like big kids could not agree on anything.

That is not to say the judge can just act like their dad and slap them around then put them in the dog house in the back yard until they come out like adults.

The judge must follow proper procedures, otherwise any hiccups can be used by either one of the spoiled kids to get away with something he should not be getting away with.


----------



## jacmyoung

Ergan's Toupe;1907656 said:


> No I didn't. Care to post a link?


Start with James' PDF file of E*'s filing and go from there. Then wait for TiVo's filing in response, if it will come. Then you can make your own decision who is likely to win this stay of the order argument.


----------



## Ergan's Toupe

jacmyoung said:


> Start with James' PDF file of E*'s filing and go from there. Then wait for TiVo's filing in response, if it will come. Then you can make your own decision who is likely to win this stay of the order argument.


That was not my question. My question was according to who is a bench trial "inappropriate"?

I don't care about making my own decision on " who is likely to win" or what Tivo's response will be. I just asked who said a bench trial is "inappropriate"?

It's a simple question answerable with a simple link. Care to supply one, or should we just chalk this up to you making stuff up again?


----------



## dgordo

I told you this was appealable.


----------



## dgordo

peak_reception said:


> p.s. That behind the scenes exchange between the lawyers seems odd. I guess those contacts are common but Echo put this one, the e-mail, in their Appeal as an appendix. Is that unusual? dgordo?


Perfectly normal.


----------



## phrelin

CuriousMark said:


> I suppose that is what deep pockets gets you, or is what owners of deep pockets think that money gets them.


Although I did say I thought the judge ought to find Dish in contempt up to the day the subject of new code was brought up in the court process, I don't favor Dish getting off if the new code infringes. None of us know whether it does legally infringe.

But yes, generally that is what deep pockets gets in court cases. That's generally the way it works in the good old USofA. Not always, though. Sometimes folks can wait out the system right along with their deep pocket opponent.


----------



## James Long

jacmyoung said:


> We have two things now, one is called the contempt proceeding in response to TiVo's contempt motion, the other thing is called a bench trial, ordered by the judge, again in his words in response to the same TiVo's contempt motion.
> 
> So far so good?


No. The bench trial is a step in this contempt proceeding. It is not a separate thing. There is just the one thing.



> By that definition alone, one cannot be part of the other.


Then your definition is wrong or you are misapplying the definition. Read the words of the great and powerful Judge Folsom and take heed! He did not say "before me I have a motion, but to hell with that motion I want to have a trial about something else". He said "before me I have a motion _The Court will hold an additional hearing *on this matter* in the form of a Bench Trial_." The matter is the motion for contempt.



Greg Bimson said:


> Yet all Judge Folsom did was order a bench trial for ongoing infringement, linked to the finding of contempt for violations of the injunction.


Linked to the _*question*_ of contempt. There was no link to a finding noted.



dgordo said:


> I told you this was appealable.


Yep.


----------



## jacmyoung

James Long said:


> ... Read the words of the great and powerful Judge Folsom and take heed! He did not say "before me I have a motion, but to hell with that motion I want to have a trial about something else". He said "before me I have a motion _The Court will hold an additional hearing *on this matter* in the form of a Bench Trial_." The matter is the motion for contempt...


Well then I guess all the posts since the new E* filing was a total waste because what we have been arguing is no longer about who interpreted the judge's order correctly, rather if his order was correct.

I thouhgt we had passed the point of arguing how to interpret his order

Even TiVo seemed to agree his order was not proper by modifying it to save it.

We shall find out soon since this is an emergency motion for stay of the order.


----------



## jacmyoung

dgordo said:


> I told you this was appealable.


I thought interlocutory orders are usually not appealable, is this not one of them?


----------



## Curtis52

jacmyoung said:


> I thought interlocutory orders are usually not appealable, is this not one of them?


Interlocutory orders can be appealed if the district court judge certifies to the appeals court that a question of law needs their guiding hand.


----------



## dgordo

correct, 28 U.S.C.A. § 1292


----------



## jacmyoung

Curtis52 said:


> Interlocutory orders can be appealed if the district court judge certifies to the appeals court that a question of law needs their guiding hand.


What question of law is at issue here? Not the question of infringement I don't think.


----------



## Curtis52

I'm pretty sure that Dish isn't too happy with Folsom's interpretation of procedural requirements.


----------



## jacmyoung

Curtis52 said:


> I'm pretty sure that Dish isn't too happy with Folsom's interpretation of procedural requirements.


That was not my question though, the question is what kind of question of law does this order seek to answer?

I see none. The question this order seeks to answwer is a question of infringement, not a question of law, therefore may not be appealable.

I will not be surprised if TiVo's response is just that, E* may not appeal this order.


----------



## James Long

jacmyoung said:


> Curtis52 said:
> 
> 
> 
> I'm pretty sure that Dish isn't too happy with Folsom's interpretation of procedural requirements.
> 
> 
> 
> That was not my question though, the question is what kind of question of law does this order seek to answer?
Click to expand...

Your question was:


jacmyoung said:


> Curtis52 said:
> 
> 
> 
> Interlocutory orders can be appealed if the district court judge certifies to the appeals court that a question of law needs their guiding hand.
> 
> 
> 
> What question of law is at issue here? Not the question of infringement I don't think.
Click to expand...

Curtis52 was referring to the appeals process ... an interlocutory order can be appealed if the judge wants guidance on a question of law. (Curtis52 will have to answer whether or not the order can be appealed without the judge's certification.)

Your second question was "what kind of question of law does this order seek to answer?" which isn't in regards to the appeal.


----------



## jacmyoung

Below is the case E* cited in its filing, I wanted to quote a few from it but thought it may be better just to post the whole thing because each and every paragraph seemed very telling, and the whole doc is not very long, I have highlighted some and will use them later:

55 F.3d 1567

34 U.S.P.Q.2d 1670

ARBEK MANUFACTURING, INC., Plaintiff-Appellant,
v.
Sasan MOAZZAM, Defendant-Appellee.

No. 94-1484.

United States Court of Appeals,
Federal Circuit.

May 8, 1995.
Robert A. Sheldon, Sheldon & Scillieri, Santa Monica, CA, argued for plaintiff-appellant. With him on the brief was John A. Scillieri.

Sasan Moazzam, Oak Land Co., Chula Vista, CA, argued pro se.

Before PLAGER, RADER, and SCHALL, Circuit Judges.

RADER, Circuit Judge.

In 1991, the United States District Court for the Southern District of California enjoined Sasan Moazzam from infringing Arbek Manufacturing, Inc.'s design patent. In 1994, Arbek requested the district court to hold Moazzam in contempt, contending that a new Moazzam design violated the injunction. The trial court denied Arbek's motion and made a finding of noninfringement. Arbek Mfg., Inc. v. Moazzam, No. 90-1814 (S.D.Cal. July 26, 1994) (Arbek ). Because the trial court, in effect, found substantial open issues about whether Moazzam's new design infringed Arbek's patent, *it could not find noninfringement in a summary contempt proceeding*. Accordingly, this court affirms the denial of the contempt motion and *vacates the noninfringement finding*.

BACKGROUND

Arbek and Moazzam make and sell furniture. Arbek owns U.S. design patent No. 313,323 (the '323 patent), titled "Cabinet or Similar Article." The '323 patent claims "the ornamental design for a cabinet or similar article, as shown and described" in eight figures. Two figures show the patented design: NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

The cabinet is called a "pier" in the furniture art. Usually a pier rests on either side of a bed's headboard. Arbek's patented design features a slanted top.

In 1990, Moazzam sold piers that Arbek claimed infringed the '323 patent. On April 4, 1991, the parties filed a stipulated Consent Judgment and Order, in which Moazzam admitted to infringing the '323 patent. Arbek Mfg., Inc. v. Moazzam, No. 90-1814 (S.D.Cal. Apr. 8, 1991) (Order). The Order enjoined Moazzam from any future infringement.

In March 1994, Arbek learned that Moazzam was marketing a second pier that Arbek believed infringed the '323 patent. Moazzam's second pier is a modification of the first. The top of the second pier is not entirely slanted. Instead, Moazzam's new pier features a horizontal portion which extends across approximately half of the top. Neither the first Moazzam pier nor the claimed design has a horizontal top portion. The Arbek design has two rounded angles separating the top and sides of the pier; the new Moazzam pier has three sharp angles separating the sides, the horizontal top portion, and the slanted top portion.

Arbek filed a contempt motion to enforce the Order. The motion accused Moazzam of again infringing the '323 patent. The trial court denied the motion. The trial court found: "defendant's design DOES NOT infringe on plaintiff's patented pier design." Arbek, slip op. at 2. Arbek appeals.

DISCUSSION

In KSM Fastening Systems, Inc. v. H.A. Jones Co., 776 F.2d 1522, 227 USPQ 676 (Fed.Cir.1985), this court sets forth a standard for deciding whether an accused infringer is in contempt of an injunction prohibiting infringement. To show contempt, the patent owner must prove by clear and convincing evidence that "the modified device falls within the admitted or adjudicated scope of the claims and is, therefore, an infringement." Id. at 1530.

A trial court may decide contempt motions "on affidavits and exhibits without the formalities of a full trial." Id. at 1524. Additionally, in summary proceedings, an accused infringer may face fines, damages, or even imprisonment. Accordingly, this court counsels caution in contempt proceedings.

In sum, contempt is a shield protecting the patentee against an infringer's flagrant disregard for court orders. Contempt, however, is not a sword for wounding a former infringer who has made a good-faith effort to modify a previously adjudged or admitted infringing device to remain in the marketplace. See id. at 1525-26. *Rather, the modifying party generally deserves the opportunity to litigate the infringement question at a new trial, "particularly if expert and other testimony subject to cross-examination would be helpful or necessary."* Id. at 1531.

In balancing protections for the patentee and the former infringer, this court stated:

If there are substantial open issues with respect to infringement to be tried, contempt proceedings are inappropriate. The presence of such disputed issues creates a fair ground for doubt that the decree has been violated.

Id. at 1532 (citation omitted). *This safeguard, the KSM court reasoned, accommodates due process* with "the usual summary nature of contempt proceedings." Id. Thus, during summary contempt proceedings, before reaching the ultimate question of "whether an injunction against infringement has been violated," the trial court must first consider a threshold question, namely whether "substantial open [infringement] issues must be litigated." Id.

The district court in this case found that Moazzam's second, modified pier does not infringe the '323 patent. Thus, in the words of KSM, the trial court in effect discerned "a fair ground for doubt" that Moazzam violated the order. See id. In other words, the trial court, in effect, detected substantial open infringement issues to be litigated before reaching the question of whether Moazzam had violated the 1991 injunction. This court reviews the trial court's finding for an abuse of discretion. Id.

Design patent infringement only occurs when "the accused design is substantially the same as the claimed design." L.A. Gear, Inc. v. Thom McAn Shoe Co., 988 F.2d 1117, 1124, 25 USPQ2d 1913, 1918 (Fed.Cir.), cert. denied, --- U.S. ----, 114 S.Ct. 291, 126 L.Ed.2d 240 (1993). That is, "if the resemblance is such as to deceive ... an [ordinary] observer, inducing him to purchase one supposing it to be the other, the first one patented is infringed by the other." Gorham Co. v. White, 81 U.S. (14 Wall) 511, 528, 20 L.Ed. 731 (1871). The accused product must also "appropriate the novelty in the patented device which distinguishes it from the prior art." Litton Sys., Inc. v. Whirlpool Corp., 728 F.2d 1423, 1444, 221 USPQ 97, 109 (Fed.Cir.1984) (quoting Sears, Roebuck & Co. v. Talge, 140 F.2d 395, 396, 60 USPQ 434, 434-35 (8th Cir.1944)).

As the trial court observed, the top of the Arbek pier is a continuous slope, while the top of the Moazzam pier is part sloped and part horizontal. In addition, the Arbek pier contains two rounded angles at the top of the pier, while the Moazzam pier contains three sharp angles at the top. These differences support what was, in effect, a finding by the trial court of substantial open infringement issues. In sum, substantial record evidence supports the trial court's finding.

With substantial open issues of infringement on the record, "contempt proceedings are inappropriate." KSM, 776 F.2d at 1532. The trial court properly denied Arbek's motion for contempt. This court affirms that denial.

*The trial court chose, however, to undertake a substantive infringement analysis. This inquiry was premature*. Once the trial court found the modified pier substantially different on its face from the patented design, KSM required denial of the motion and dismissal of the case because there could be no "finding that the modified [Moazzam pier fell] within the admitted ... scope of the ['323 patent]." Id. at 1530. *On a summary record, the district court could proceed no further. Accordingly, this court vacates the noninfringement finding*.

CONCLUSION

This court affirms the denial of the contempt motion and vacates the noninfringement finding. COSTS

Each party shall bear its own costs.

AFFIRMED-IN-PART and VACATED-IN-PART.


----------



## jacmyoung

The Court argued that, in a summary contempt proceeding, the district court may not even attempt to find non-infringement by the modifed devices, only to answer the question if substantial open issues have been raised by the modified devices.

What the judge's current order is in fact to determine if the modified devices are infringements or not, therefore it is not appropriate, as long as it is deemed a part of the sumamry contempt proceeding.


----------



## jacmyoung

James Long said:


> Your question was:Curtis52 was referring to the appeals process ... an interlocutory order can be appealed if the judge wants guidance on a question of law. (Curtis52 will have to answer whether or not the order can be appealed without the judge's certification.)
> 
> Your second question was "what kind of question of law does this order seek to answer?" which isn't in regards to the appeal.


I am still waiting for Curtis, or dgordo to answer my question, what kind of question of law does this bench trial seek to answer?


----------



## dgordo

Dish is claiming that their due process rights are being violated for one thing. Application of due process is a question of law.


----------



## jacmyoung

dgordo said:


> Dish is claiming that their due process rights are being violated for one thing.


We all know that. But that is not the question I am asking.


----------



## jacmyoung

dgordo said:


> ... Application of due process is a question of law.


But due process is not the question this bench trial order seeks to answer.

You agreed with Curtis, an interlocutory order may be appealed if the judge certifies with the appeals court that his such order is to seek an answer of question of law.

But his such order is not to answer a question of law, rather a question of infringement, therefore E* may not appeal this order.


----------



## dgordo

jacmyoung said:


> We all know that. But that is not the question I am asking.


You are asking the wrong question. You should be asking what is the issue DISH wishes to have the CAFC review. Answer, is a bench trial the proper way to proceed here.



> The Court's Order is improper. Under KSM Fastening Systems, Inc. v. H.A. Jones Co., the Court must make a threshold determination of "whether infringement should be adjudicated in contempt proceedings" instead of requiring new charges of infringement to be determined in a new full trial. Only if a court finds that there is no more than a colorable difference, i.e. any differences are only minor, cosmetic or insignificant, between the modified product and the product adjudged to infringe may a court determine the issue of infringement in summary contempt proceedings.


----------



## jacmyoung

dgordo said:


> You are asking the wrong question. You should be asking what is the issue DISH wishes to have the CAFC review. Answer, is a bench trial the proper way to proceed here.


You still tried to avoid my question.

My point is, even if E* is correct that the judge's current order is not proper, E* may not appeal it, because the current order is not to seek answer to a question of law.

Just because E* may not appeal this order now, does not mean the issue of the appropriateness of this order may not be appealed later.

Usually an interlocutory order is not appealable, until the process comes to a final conclusion. After the final judgment is made by the court, parties can then appeal the decision. In doing so, parties not only may appeal the final decision, but also appeal the interlocutory order itself.

But not now, E* may need to wait till the trial is over first.

TiVo may use that to argue against E*'s appeal. The danger is of course, if later even TiVo is successful in proving infringement by the new design, E* can simply appeal to have the verdict overturned on procedural ground.


----------



## Curtis52

jacmyoung said:


> What the judge's current order is in fact to determine if the modified devices are infringements or not, therefore it is not appropriate, as long as it is deemed a part of the sumamry contempt proceeding.


A bench trial is not a summary proceeding.


----------



## Curtis52

jacmyoung said:


> My point is, even if E* is correct that the judge's current order is not proper, E* may not appeal it, because the current order is not to seek answer to a question of law.


The question of law the appeal would seek an answer for would be whether the order followed required procedure. If Judge Folsom is himself unsure, he would allow the appeal in the interest of judicial economy so as to avoid an appeal on that point of law after the trial. A stitch in time saves nine.


----------



## jacmyoung

Curtis52 said:


> A bench trial is not a summary proceeding.


But everyone is saying it is a part of the summary proceeding.

Just read the above case, the Court said the disctrict court was wrong *"to undertake a substantive infringement analysis"* in the summary contempt proceeding.

The current bench trial order is precise that, to undertake a substantive infringement analysis.

The Court insists that in a summary contempt proceeding, the distirct court is only allowed to answer the question of whether substantial open issues have been raised. Once the answer is found and to be affirmative, the process must stop. The infringer then deserves a new trial if the patnetee wishes to further pursue the infringer.


----------



## jacmyoung

Curtis52 said:


> The question of law the appeal would seek an answer for would be whether the order followed required procedure. If Judge Folsom is himself unsure, he would allow the appeal in the interest of judicial economy so as to avoid an appeal on that point of law after the trial. A stitch in time saves nine.


That I generally agree, but TiVo does not have to go along with it, TiVo can argue this interlocutory order is not appealable, not at this time, because this order is not to seek an answer of law, rather an answer of infringement.

Of course the judge has the wide latitude to try to resolve it on his own, he can simply withdraw his order and do something else, like issuing a ruling on the contempt motion.


----------



## Curtis52

Trials are not arguments about what the law requires. That's what appeals are for. Trials are about what the facts are. The judge interprets the law.


----------



## dgordo

jacmyoung said:


> You still tried to avoid my question.


I realize that, because you asked the wrong question.



jacmyoung said:


> My point is, even if E* is correct that the judge's current order is not proper, E* may not appeal it, because the current order is not to seek answer to a question of law.


E can appeal whatever they want. Its up to the CAFC to decide if the appeal has merit.

And, as Curtis and I already pointed out, the question of law is whether the judge is proceeding in a proper manner.


----------



## jacmyoung

dgordo said:


> I realize that, because you asked the wrong question.
> 
> E can appeal whatever they want. Its up to the CAFC to decide if the appeal has merit.
> 
> And, as Curtis and I already pointed out, the question of law is whether the judge is proceeding in a proper manner.


My point is then the judge should simply withdraw the order, rather allow E* to appeal it. Because TiVo will be wronged by the judge's doing so.

TiVo did not even ask for this bench trial, and because the judge's own order may be questionable, another up to 6 months may be delayed just to figure out if the order is even right or wrong.

Remember what you two just said, E* may appeal this interlocutory order if Judge Folsom will certify it to the appeals court, he does not have to allow this appeal because it is interlocutory in nature.


----------



## jacmyoung

dgordo said:


> ...E can appeal whatever they want. Its up to the CAFC to decide if the appeal has merit...


Let me put it this way, without Judge Folsom's certification to the appeals court, the appeals court will simply reject E*'s appeal without further review, citing interlocutory reason.


----------



## Curtis52

jacmyoung said:


> Let me put it this way, without Judge Folsom's certification to the appeals court, the appeals court will simply reject E*'s appeal without further review, citing interlocutory reason.


Finally. I was about to give up hope.


----------



## jacmyoung

Curtis52 said:


> Finally. I was about to give up hope.


As long as I am right in the end

I hope you do agree now this judge's order is not appropriate. Even TiVo admitted so.


----------



## vampz26

dgordo said:


> Dish is claiming that their due process rights are being violated for one thing. Application of due process is a question of law.


I don't think this case is about law, at least from Dish's perspective anyway...

Looks to me that they are trying to litigate Tivo into bankruptcy as opposed to being right or wrong here...this trial could easily be settled outside the courtroom by accountants, as opposed to lawyers.... 

That is unless the judge gets some advice from his 'advisors' and just ends this thing once and for all...which of course could happen. And I have some theories about how and why it could in relation to the global economy and so forth...but I'll refrain. Nobody wants to hear that... 

What we've learned here with all this speculation and wonderment as to what was right and what was wrong with these recent preceedings, is that the law is not an exact science, and can be interpretted any number of ways. Not all of which make sense. I guess a judges decision no matter how final it may be, doesn't really mean anything other than somebody got lucky...


----------



## dgordo

vampz26 said:


> I don't think this case is about law, at least from Dish's perspective anyway...


Maybe, but we can only go by what they say in their briefs.


----------



## dgordo

jacmyoung said:


> Remember what you two just said, E* may appeal this interlocutory order if Judge Folsom will certify it to the appeals court, he does not have to allow this appeal because it is interlocutory in nature.


Its rare for a judge not to certify an appeal. They usually prefer to be advised before hand as opposed to being overturned after the fact.


----------



## jacmyoung

dgordo said:


> Its rare for a judge not to certify an appeal. They usually prefer to be advised before hand as opposed to being overturned after the fact.


That I can understand, but will TiVo be happy? After all TiVo did not even ask for such bench trial, why should TiVo let the judge and E* argue among themselves?

This is TiVo's motion to hopefully find E* in contempt on the face, it was supposed to be easy, not that complicated. I don't think it is fair for TiVo if the judge simply allows E* to appeal and drag this on another many months.


----------



## phrelin

Fair for TiVo? Fair for TiVo is a concept that faded into memory two years ago.


----------



## peak_reception

jacmyoung said:


> My point is then the judge should simply withdraw the order, rather allow E* to appeal it. Because TiVo will be wronged by the judge's doing so.


 If Echo's appeal has no merit then the CAFC will simply deny the motion on an expedited basis and Judge Folsom then has a green light to proceed with his bench trial. Yes? No? On the other hand, if the CAFC grants Echo's motion and stays the Judge's Order then you're right that TiVo is harmed by yet more delay.



> TiVo did not even ask for this bench trial...


 No one did. 


> ...and because the judge's own order may be questionable, another up to 6 months may be delayed just to figure out if the order is even right or wrong.


 Or the CAFC may clarify quickly (as above). But it could cause the kind of delay you mention and that would harm TiVo. I can't believe I'm getting sucked back into this all over again but it will be very interesting to see what happens here, both short term and long term. At least we won't have long to wait for the second shoe to drop, i.e. TiVo's response. And then the Judge... and then CAFC. What a legal soap opera! Maddening but fascinating.

jac to curtis and dgordo:


> Remember what you two just said, E* may appeal this interlocutory order if Judge Folsom will certify it to the appeals court, he does not have to allow this appeal because it is interlocutory in nature.


 dgordo replies:


> Its rare for a judge not to certify an appeal. They usually prefer to be advised before hand as opposed to being overturned after the fact.


 That's good to know. Thanks dgordo. Even if Judge Folsom were to deny certification the appeal would still be on record, sort of like filing a protest in a sporting event where the referee's call goes against you but you still file an official protest and hope the league office later rules in your favor. Echo's appeal now helps lay the groundwork for later appeal of the scheduled bench trial (and/or contempt proceeding) should it go forward as scheduled. I can't really see any downside for Echo except maybe angering Judge Folsom. What I would like to see is the Judge certify Echo's Appeal and the CAFC come back to the Judge with "Make Your Ruling!" (on contempt).


----------



## jacmyoung

peak_reception said:


> If Echo's appeal has no merit then the CAFC will simply deny the motion on an expedited basis and Judge Folsom then has a green light to proceed with his bench trial. Yes? No? ...


E*'s last appeal of the final judgment did not end up having much merit, that did not stop the appeals court from sitting on it for over a year, giving E* just enough time to design around without disabling any of their DVRs.



> I can't really see any downside for Echo except maybe angering Judge Folsom...


A judge should never be angered by any arguments, not even a bad one, much less a good one.

A judge may not be happy about it, but cannot be vindictive about it.


----------



## jacmyoung

Curtis52 said:


> "Non-antitrust litigation experience includes the participation in successful bench trial for contempt for violation of consent decree resolving a patent infringement claim related to air brakes." http://www.arnoldporter.com/attorneys.cfm?u=FlackChristopherJ&action=view&id=510


I thought about your above example again and here is my revised response

Even if your above case did have an order of "substantive infringement analysis" during the contempt proceeding, and ended up a finding of infringement, therefore a contempt, that did not mean the district procedure was correct.

If the parties did not object to such order and went along with it to the end and accepted the outcome without appeals, it was still settled.

But once a party objects, any inappropriate procedure should be over-ruled by the appeals court.

In the above case E* cited, apparently the parties did not object to that "substantive infringement analysis" initially, and allowed it to reach a verdict, but on appeal the verdict was vacated.

Only here, E* objects to it right the way without going through the trial, I don't blame them. Why go through the trouble of a trial to finally get a noninfringement verdict only to have it vacated?

Two words as Charlie put it: rigorous defense.


----------



## peak_reception

jacmyoung said:


> E*'s last appeal of the final judgment did not end up having much merit, that did not stop the appeals court from sitting on it for over a year, giving E* just enough time to design around without disabling any of their DVRs.


 But that was an appeal of a verdict. This one simply appeals a glorified scheduling order. Important, yes, but uncomplicated to sort out, at least for the CAFC one hopes.



> A judge should never be angered by any arguments, not even a bad one, much less a good one.
> A judge may not be happy about it, but cannot be vindictive about it.


 Judges are people just like everyone else. They have egos and feelings about how things are going. The one thing they shouldn't have is pre-judgment (prejudice). This same topic came up when we discussed the prima facie violation. Judge F. was probably mad about his Injunction being worked-around by Echo in the way they did (yes, just my conjecture) but it didn't cause him to grant TiVo's motion of contempt. Not yet anyway. Surely the Judge wants to see justice done. How that plays out is anyone's guess now. Lord knows we're trying.


----------



## jacmyoung

peak_reception said:


> ...The one thing they shouldn't have is pre-judgment (prejudice).


In addition to that, the final judgment cannot be vindictive.



> ... Judge F. was probably mad about his Injunction being worked-around by Echo in the way they did ...


First off I object to your calling the judge this way

Injunctions are made to be worked around as long as it is legal, the judge should never be mad at such attempt. He was not happy about the fact E* did not even bother to keep him in the loop, because God knows he could have helped the situation by clarifying his order you know, to same everyone the time and money, and the court economy.


----------



## Curtis52

jacmyoung said:


> Injunctions are made to be worked around as long as it is legal, the judge should never be mad at such attempt. He was not happy about the fact E* did not even bother to keep him in the loop, because God knows he could have helped the situation by clarifying his order you know, to same everyone the time and money, and the court economy.


I don't think anything less than a revision to the injunction would have sufficed to clarify it (if it needed clarification). I have my doubts that an injunction that is stayed could or should have been revised.

If asked for clarification, the judge might have said: "I don't give out legal advice, especially not in hypothetical situations".


----------



## James Long

peak_reception said:


> jacmyoung said:
> 
> 
> 
> TiVo did not even ask for this bench trial...
> 
> 
> 
> No one did.
Click to expand...

Not specifically ... but TiVo asked that DISH be held in contempt for not disabling the DVR functionality on the named products and that they be paid damages for the period of time that the injunction was not in effect due to the stay. If Judge Folsom needs a bench trial in order to answer those questions (in his words "The Court will hold an additional hearing on this matter in the form of a Bench Trial") then it is just part of the process.

It is just another hearing. TiVo didn't request the hearing on September 4th ... they didn't request the hearing on May 30th. The court set both of those hearings to resolve outstanding issues (May 30th as a status hearing and Sept 4th to hear arguments on the not yet filed at that point but expected motion for contempt).

Why is an additional hearing such a surprise to anyone? Is it the form of the hearing that gets people bent out of shape (bench trial) or is it the content?

For months we read in previous threads that the judge MUST look at infringement to decide contempt ... now that Judge Folsom wants to look at infringement it is suddenly wrong?


----------



## James Long

Curtis52 said:


> I don't think anything less than a revision to the injunction would have sufficed to clarify it (if it needed clarification). I have my doubts that an injunction that is stayed could or should have been revised.
> 
> If asked for clarification, the judge might have said: "I don't give out legal advice, especially not in hypothetical situations".


I would expect Judge Folsom to not rule on the clarification matter while the appeal was pending ... but at least there would be clean notification to the court.

Even the idea of reporting a "substantial change to receiver software" informally would have put DISH on record earlier. But as discussed before, it was not required.

Perhaps in the contempt ruling Judge Folsom will try to set some precedential instructions for future cases on how to notify the court ... even if under seal ... of substantial changes that may affect the case.


----------



## phrelin

The boxes as configured with the software at the time were found by a jury to infringe.

The boxes as configured with the new software have not been considered by a jury.



> *7th Amendment*
> In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.


Now I recognize that everyone could go nuts explaining related case law here. But....

Everyone involved in this case has to be careful how far they go in considering the new software outside a jury trial. At this point, E* has said they aren't going to simply accept a bench hearing by Folsom on the new software.


> Defendants intend to file promptly with the United States Court of Appeals for the Federal Circuit a petition for writ of mandamus to ensure that Defendants' due process and Seventh Amendment rights are not violated in conjunction with the contempt proceedings.


 Nothing surprising about this.

Although I recognize the validity of all the grumbling about abuse related to making minor software changes (colorable difference stuff) the reality here is that in ordering a bench trial/hearing Folsom chose to stand awfully close to the edge and E* predictably is taking advantage of that choice to try to create lengthy delays or in the alternative, a decision by TiVo to settle under terms acceptable to E*.

This is why "fuzzy law" (a synonym for current technology patent law) always benefits those with "deep pockets" though I'm not so sure Dish Network has sufficient pockets to keep this up.


----------



## jacmyoung

James Long said:


> ...For months we read in previous threads that the judge MUST look at infringement to decide contempt ... now that Judge Folsom wants to look at infringement it is suddenly wrong?


Not true, for months I have been saying the *first* thing the judge MUST do in a contempt proceeding is to look at the differences between the accused devices and the adjudicated devices, and decide if the differences are merely colorable or not.

If merely colorable, a contempt, if more than colorable, no contempt.

The confusion lies in one quote in KSM, where it said, a contempt may not be found without first finding that the accused devices fall within the patent claims, and therefore are infringements.

Greg had been using this quote over and over to make the argument an infringement analysis must be carried out in a contempt proceeding A) to grant, or B) to dismiss the contempt motion. Except the court said A), never said B).

I think I have already got Greg to agree that, while a finding of infringement is a MUST to grant the contempt motion, the reverse is not true. To dismiss the motion, more than colorable is enough, finding of infringement is not needed nor appropriate.

Of course you can then say the fact the judge ordered such "susbstantive infringement analysis" may imply that he wished to grant the motion for contempt, just he had not had the justifications to do so yet so he went out on his own to seek such justifications.

But he should not have done that, according to his boss.


----------



## James Long

phrelin said:


> The boxes as configured with the software at the time were found by a jury to infringe.
> The boxes as configured with the new software have not been considered by a jury.
> 
> 
> 
> *7th Amendment*
> In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.
> 
> 
> 
> Now I recognize that everyone could go nuts explaining related case law here. But....
Click to expand...

The second part of the 7th Amendment quote is safe ... Judge Folsom is not re-examining a fact tried by jury ... there is no attempt to reverse the jury's verdict that the receivers they were asked to consider infringe. Judge Folsom is seeking the current infringement status.

The first part as quoted is interesting ... the right of trial by jury preserved for controversies exceeding twenty dollars. Why involke that now? Why not ask for a jury trial on the motion for contempt? If the constitution is a clear as quoted here and there is a dispute between the parties for much more than $20 why not take every decision in a patent infringement case to a jury? Isn't that the defendant's right?


----------



## phrelin

Twenty bucks went alot further in 1800.:lol:


----------



## jacmyoung

phrelin said:


> ...E* predictably is taking advantage of that choice to try to create lengthy delays or in the alternative, a decision by TiVo to settle under terms acceptable to E*.


Or in the third scenario, to force the judge to quickly make a no contempt on the face ruling and end this case, so TiVo can go away.



> This is why "fuzzy law" (a synonym for current technology patent law) always benefits those with "deep pockets" though I'm not so sure Dish Network has sufficient pockets to keep this up.


While I do not agree with you whole-heartedly I do understand your point, except two things, one, I don't think the law is fuzzy on this issue at all, and two, as long as E* is not in contempt, E* needs no deep pockets to keep it up.


----------



## jacmyoung

James Long said:


> ... Why not ask for a jury trial on the motion for contempt? ...


Because it cannot be done, motion for contempt is a summary motion, not a trial motion, a summary judgment is sought in a summary proceeding. The purpose of a summary judgment is to bypass a jury trial or a bench trial.

And because of that, the courts excercise extreme caution when considering granting a summary judgment.


----------



## Greg Bimson

jacmyoung said:


> Not true, for months I have been saying the *first* thing the judge MUST do in a contempt proceeding is to look at the differences between the accused devices and the adjudicated devices, and decide if the differences are merely colorable or not.


I just realized something...


> ...to determine whether EchoStar's DP-501, DP-508, DP-510, DP-522, DP-625, DP-721, DP-921, and DP-942 *continue* to infringe...


I can only assume this is only about the receivers found infringing. This is only about the modifications made to the receivers ordered disabled. So, I can assume I was *wrong*.

However, by stating "continue to infringe", I also assume that Judge Folsom didn't buy what James Long calls "the Jedi mind-trick". Judge Folsom considers the devices found infringing and ordered disabled still under his court's supervision, even though DISH/SATS modified them. They are not "new devices". They are the adjudged devices with new software. Therefore, in Judge Folsom's eyes, _KSM_ does not apply.

Judge Folsom is creating a standard, where a device subject to a disable order but modified must have infringement tested before contempt can be granted or denied.


----------



## peak_reception

James Long said:


> It is just another hearing. TiVo didn't request the hearing on September 4th ... they didn't request the hearing on May 30th. The court set both of those hearings to resolve outstanding issues (May 30th as a status hearing and Sept 4th to hear arguments on the not yet filed at that point but expected motion for contempt).


 "TiVo's Motion for EchoStar to be Held in Contempt of This Court's Permanent Injunction" was filed on 6-13-08. Was the Sept. 4 hearing scheduled before that? Regardless, the May hearings (agenda setting, replies, and status) were an expected sequence of events following the CAFC's ruling which sent the case back to Judge Folsom's District Court. So was what followed in June and then again in September; All normal and expected. What was expected after Sept. 4 was a ruling by the Judge on TiVo's Contempt Motion. Anyone who says they expected something else is lying. I do realize that Folsom is the Judge and he can do what he thinks is appropriate to "resolve outstanding issues" as you say. At the same time, if what he thinks is appropriate does not conform to existing legal procedural standards then there is a problem. Or problems. That's what we're now waiting to find out. 


> Why is an additional hearing such a surprise to anyone?


 Speaking for myself it is because he hasn't ruled on the Motion argued before him in September. If he didn't have enough information to rule then he should've said so. The oral arguments were only 45 minutes long and pretty shallow as I recall. It's not like he was confronted with all kinds of new issues. Can anyone point to ANYTHING AT ALL that was new or unexpected on 9-4 ?



> Is it the form of the hearing that gets people bent out of shape (bench trial) or is it the content?


 Speaking for myself, it's 1) the surprise non-ruling on contempt. 2) the surprise announcement (order) of a new bench trial no one requested. 3) the folding in of contempt with this new bench trial; two proceedings which KSM says should be separate. and 4) bringing hardware back into the equation which even TiVo doesn't want. Ok, I can understand that the Judge wants to solve all the issues in one integrated hearing. Does it follow due process and does he do so within the bounds of his authority? Those are the questions for me.


----------



## jacmyoung

Greg Bimson said:


> I just realized something...I can only assume this is only about the receivers found infringing. This is only about the modifications made to the receivers ordered disabled. So, I can assume I was *wrong*.
> 
> However, by stating "continue to infringe", I also assume that Judge Folsom didn't buy what James Long calls "the Jedi mind-trick". Judge Folsom considers the devices found infringing and ordered disabled still under his court's supervision, even though DISH/SATS modified them. They are not "new devices". They are the adjudged devices with new software. Therefore, in Judge Folsom's eyes, _KSM_ does not apply.
> 
> Judge Folsom is creating a standard, where a device subject to a disable order but modified must have infringement tested before contempt can be granted or denied.


The objective of an injunction is to prohibit continued infringement. Therefore the use of the words "continue to infringe" is hardly something to have special meaning for.

What was not proper is to "undertake a substantive infringement analysis" within the context of the summary contempt proceeding.

What is appropriate is to order a discovery for the purpose of determining "continued infringement" by "undertake a limited colorable difference analysis."

The proper order may look something like this:

In front of the court is the motion to find contempt&#8230;in response the court orders another hearing in the form of a discovery to determine if the named DVRs continue to infringe, by way of colorable difference analysis.


----------



## Curtis52

peak_reception said:


> What was expected after Sept. 4 was a ruling by the Judge on TiVo's Contempt Motion. Anyone who says they expected something else is lying.





Curtis52 said:


> Chu did not address the possibility that the judge raised about not being able to find contempt without an infringement analysis first. The judge might require a new contempt hearing that includes discovery and an infringement analysis.


..


----------



## peak_reception

Curtis52 said:


> Chu did not address the possibility that the judge raised about not being able to find contempt without an infringement analysis first. The judge might require a new contempt hearing that includes discovery and an infringement analysis.


 From your quote you didn't exactly _predict_ such a turn of events ("might") but it does appear that you were on the right trail. Did you really not expect a ruling on prima facie contempt, grant or deny, especially after 2-1/2 months went by? Do you agree that the Judge's Order for February is a contempt hearing? Is that legally compatible folded in together with a bench trial ? How much merit do you see in Echo's present Appeal? Now that you've proven yourself to be most right on what's happened since last May it's time for some explicit predictions and analysis moving forward if you are so willing.


----------



## peak_reception

jacmyoung said:


> The proper order may look something like this:
> In front of the court is the motion to find contempt&#8230;in response the court orders another hearing in the form of a discovery to determine if the named DVRs continue to infringe, by way of colorable difference analysis.


 I have to agree (although you could word it better)


----------



## phrelin

How does one distinguish exactly between "a limited colorable difference analysis" and "a substantive infringement analysis" in the context of Seventh Amendment rights?


----------



## jacmyoung

phrelin said:


> How does one distinguish exactly between "a limited colorable difference analysis" and "a substantive infringement analysis" in the context of Seventh Amendment rights?


"A trial court may decide contempt motions '*on affidavits and exhibits* without the formalities of a full trial.' "

"...Rather, the modifying party generally deserves the opportunity to litigate the infringement question at a new trial, 'particularly if *expert and other testimony subject to cross-examination would be helpful or necessary*.' "

The two quotes above give an idea how the two proceedings may differ.


----------



## James Long

peak_reception said:


> "TiVo's Motion for EchoStar to be Held in Contempt of This Court's Permanent Injunction" was filed on 6-13-08. Was the Sept. 4 hearing scheduled before that?


Yes. The September date was set on May 30th.



> What was expected after Sept. 4 was a ruling by the Judge on TiVo's Contempt Motion.


And we're still expecting that ruling. Initially Judge Folsom stated he would have something by the end of the month (September) or in November knowing his October schedule was full. He delivered "something" ... just not what was expected. He delivered an order for an additional hearing on the matter of contempt to take the form of a bench trial to determine if the products in question continue to infringe.



> At the same time, if what he thinks is appropriate does not conform to existing legal procedural standards then there is a problem. Or problems. That's what we're now waiting to find out.


We're waiting for something to be filed ... unless the filing was missed. I expect that Judge Folsom will do nothing regarding a stay until he has seen the appeal. A copy of the alleged appeal has not been filed with his court.


----------



## James Long

866 Filed & Entered: 12/04/2008 *Sealed Patent Response to Sealed Patent Motion*
SEALED PATENT RESPONSE to PATENT MOTION re [865] Emergency MOTION to Stay This Court's Order of November 20, 2008 Pending Review By the Court of Appeals filed by TIVO Inc. (Giza, Alexander)​
867 Filed & Entered: 12/04/2008 *Sealed Patent Additional Attachments to Main Document*
SEALED PATENT ADDITIONAL ATTACHMENTS to Main Document: [866] SEALED PATENT RESPONSE to PATENT MOTION re 865 Emergency MOTION to Stay This Court's Order of November 20, 2008 Pending Review By the Court of Appeals filed by TIVO Inc.; Declaration of Alexander C.D. Giza and Exhibits A-G. (Attachments: # (1) Exhibit A, # (2) Exhibit B, # (3) Exhibit C, # (4) Exhibit D, # (5) Exhibit E, # (6) Exhibit F, # (7) Exhibit G)(Giza, Alexander)​


----------



## CuriousMark

Dish filed some TiVo correspondence as an addendum. Perhaps this sealed response includes much more of the correspondence to put it in context. We will probably never know, but that is my guess as to what some of that stuff probably is.


----------



## James Long

I expected disclosures to be filed (deadline tomorrow) that are required by the order for the bench trial. "To the extent not already disclosed, within 15 days of this Order, each party shall disclose to every other party the following information:" (legal theories, names and addresses of people with facts and experts) Plus additional disclosures "Each party, within 15 days of this Order and without awaiting a discovery request, will provide, to the extent not already provided, every other party a copy of all documents, electronically stored information, and tangible things in the possession, custody, or control of the party that are relevant to the above stated matter."

The title seems to be something more related to the motion for a stay ... a copy of which still has not been filed with Judge Folsom.


----------



## Curtis52

Joint Stipulation Re Modification of Schedule and 
Delay of Filing Motion for Stay with Federal Circuit 
IN THE UNITED STATES DISTRICT COURT 
FOR THE EASTERN DISTRICT OF TEXAS 
MARSHALL DIVISION

TiVo Inc., a Delaware corporation,

Plaintiff,

v.

1. DISH NETWORK CORPORATION, a 
Nevada corporation, 
2. ECHOSTAR DBS CORPORATION, a 
Colorado corporation, 
3. ECHOSTAR TECHNOLOGIES L.L.C., a 
Texas limited liability company, 
4. ECHOSPHERE LIMITED LIABILITY 
COMPANY, a Colorado limited liability 
company, 
5. ECHOSTAR SATELLITE LLC, a Colorado 
limited liability company, and 
6. ECHOSTAR CORPORATION, a Nevada 
corporation, 
Defendants. 
No. 2-04cv01 DF 
(Judge Folsom)

JOINT STIPULATION RE: 
MODIFICATION OF SCHEDULE 
AND AGREEMENT TO DELAY 
FILING MOTION FOR STAY WITH 
FEDERAL CIRCUIT 
Plaintiff TiVo Inc. ("TiVo") and defendants DISH Network Corporation, EchoStar DBS 
Corporation, EchoStar Technologies L.L.C., Echosphere Limited Liability Company, EchoStar 
Satellite L.L.C., EchoStar Corporation, by and through their counsel of record, stipulate and 
agree as follows:

1. That the December 5, 2008 disclosure deadlines in the Court's November 20, 
2008 Order be modified to December 9, 2008. 
2. That EchoStar agrees not to file its motion for stay with the Federal Circuit 
until the close of business on Monday, December 8, 2008. 
3. That the December 22, 2008 expert report deadline in the Court's November 
20, 2008 Order be modified to December 24, 2008. 
4. That the January 5, 2009 expert report deadline in the Court's November 20, 
2008 Order be modified to January 7, 2009. 
5. That the parties agree not to use this agreement as an argument to justify any 
other stay or anything else.

DATED: December 4, 2008 Respectfully submitted, 
By: /s/Alexander C.D. Giza 
Alexander C.D. Giza

IRELL & MANELLA LLP 
Morgan Chu (Pro Hac Vice) 
Christine Byrd (Pro Hac Vice) 
Andrei Iancu (Pro Hac Vice) 
Alexander C.D. Giza (Pro Hac Vice) 
1800 Avenue of the Stars, Suite 900 
Los Angeles, California 90067-4276 
Telephone: (310) 277-1010 
Facsimile: (310) 203-7199 
Attorneys for Plaintiff TiVo Inc.

Of Counsel: 
Samuel E. Baxter, attorney-in-charge 
TX State Bar No. 01938000 
MCKOOL SMITH, P.C. 
Post Office Box O 
104 East Houston Street, Suite 300 
Marshall, Texas 75670 
Telephone: (903) 927-2111 
Facsimile: (903) 927-2622 
[email protected] 
Respectfully submitted, 
By:/s/ Harold McElhinny


----------



## peak_reception

James Long said:


> The title seems to be something more related to the motion for a stay ... a copy of which still has not been filed with Judge Folsom.


  Echo's Motion for an Emergency Stay was filed on 12-1. It's the Appeal to CAFC which has still not been filed. Today's joint stipulation allows for a little breathing room on deadlines for submissions to District Court for use in the February bench trial. Someone correct me if any of this is mistaken. Thanks.


----------



## jacmyoung

peak_reception said:


> Echo's Motion for an Emergency Stay was filed on 12-1. It's the Appeal to CAFC which has still not been filed. Today's joint stipulation allows for a little breathing room on deadlines for submissions to District Court for use in the February bench trial. Someone correct me if any of this is mistaken. Thanks.


I will try.

This is mainly E* signaling its willingness not to proceed with the appeal if Judge Folsom's response may satisfy E*'s concern. Both parties agreed to hear the judge out by giving him some time to respond.


----------



## vampz26

jacmyoung said:


> "A trial court may decide contempt motions '*on affidavits and exhibits* without the formalities of a full trial.' "
> 
> "...Rather, the modifying party generally deserves the opportunity to litigate the infringement question at a new trial, 'particularly if *expert and other testimony subject to cross-examination would be helpful or necessary*.' "


As if somebody else didn't say this would be required earlier in this thread... 

The expert witness testimony will be very interesting indeed. Will undoubtedly make the difference in this trial...expecially how they communicate their findings to those who understand law but not the technology.


----------



## James Long

Curtis52 said:


> Joint Stipulation Re Modification of Schedule and Delay of Filing Motion for Stay with Federal Circuit
> IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS MARSHALL DIVISION


Great ... the court posted something immediately after I looked. 


peak_reception said:


> James Long said:
> 
> 
> 
> The title seems to be something more related to the motion for a stay ... a copy of which still has not been filed with Judge Folsom.
> 
> 
> 
> Echo's Motion for an Emergency Stay was filed on 12-1. It's the Appeal to CAFC which has still not been filed.
Click to expand...

Sorry ... that is the filing that I meant ... the actual appeal has not been filed.


> Today's joint stipulation allows for a little breathing room on deadlines for submissions to District Court for use in the February bench trial. Someone correct me if any of this is mistaken. Thanks.


A little but not a lot a couple of days won't make that much difference (unless the parties settle).

An interesting wording:
"_That EchoStar agrees not to file its motion for stay *with the Federal Circuit* until the close of business on Monday, December 8, 2008._"
EchoStar filed a motion for stay with the District Court on December 1st and agrees not to file a stay with the Federal Court until close of business on December 8th. That gives Judge Folsom until Monday to rule on the stay at his level before DISH tries the next level.


----------



## Mainer_ayah

jacmyoung said:


> Both parties agreed to hear the judge out by giving him some time to respond.[/QUOTE
> 
> While I agree that both parties wanted to give the judge time to respond, your speculation about E*'s motives is simply wrong.
> 
> Their motive was to show a modicum of cooperation with the plaintiff as well as the court so that they could gain some desperately needed points in the mind of the judge. Thankfully, the good Judge is on a level above that stammering fool of a defense counsel, Mclhiniy, and is easily able to see through his translucent ploys.


----------



## jacmyoung

James Long said:


> ...EchoStar filed a motion for stay with the District Court on December 1st and agrees not to file a stay with the Federal Court until close of business on December 8th. That gives Judge Folsom until Monday to rule on the stay at his level before DISH tries the next level.


Precisely what I meant, E* is willing to give the judge some more time to respond, and if the judge's response may satisfy E*, E* may not appeal after all.

But E* was not willing to give too much time. If the judge fails to respond, or responds not in E*'s satisfaction, E* can go pass the judge and ask his boss to stay the order, and E* has a compelling reason to get the stay, using the boss's own words, "to undertake a substantive infringement analysis, the inquiry was premature."


----------



## jacmyoung

Mainer_ayah said:


> jacmyoung said:
> 
> 
> 
> Both parties agreed to hear the judge out by giving him some time to respond.[/QUOTE
> 
> While I agree that both parties wanted to give the judge time to respond, your speculation about E*'s motives is simply wrong.
> 
> Their motive was to show a modicum of cooperation with the plaintiff as well as the court so that they could gain some desperately needed points in the mind of the judge. Thankfully, the good Judge is on a level above that stammering fool of a defense counsel, Mclhiniy, and is easily able to see through his translucent ploys.
> 
> 
> 
> Except the good judge has no control over E*'s requesting a stay from his boss. E* did not even have to show such modicum of cooperation, E* wants to appeal, an appeal needs no cooperation from anyone. But if Judge Folsom agrees with E*'s argument, he can do what E* is asking him to do, make the ruling on the contempt issue final--no contempt on the face, then there will be no need for the appeal anymore.
> 
> Ok let me put it this way, if anything it will be TiVo's turn to think if they want to appeal or not.
Click to expand...


----------



## Greg Bimson

jacmyoung said:


> The objective of an injunction is to prohibit continued infringement. Therefore the use of the words "continue to infringe" is hardly something to have special meaning for.


Sure it has special meaning. The contempt in _KSM v. Jones_ didn't check for continuing infringement; the district court did not check infringement at all.

In most other contempt cases, the device accused of violations against the making, selling or using of an infringing product isn't being reviewed for _continuing_ infringement. That device has never been adjudged before the court.

It appears by only discussing _continuing infringement_ in this bench trial, it is only about the devices that have been before the court and adjudged infringing.

In other words, unlike _KSM et al_, these are not new devices.


jacmyoung said:


> What was not proper is to "undertake a substantive infringement analysis" within the context of the summary contempt proceeding.


I'm only trying to read Judge Folsom at this time:

Judge Folsom seems to believe he has the right to order an analysis on the receivers his court found infringing, to determine if those same receivers "continue to infringe". That throws some of KSM directly out the door.


----------



## James Long

jacmyoung said:


> Precisely what I meant, E* is willing to give the judge some more time to respond, and if the judge's response may satisfy E*, *E* may not appeal after all*.


DISH has asked for a stay while an appeal is being heard. If no appeal is filed then there is no stay. Notice the loop?

DISH would have to be satisfied in some other way that doesn't require an appeal or stay. At this point no such other request has been made of Judge Folsom. There is nothing else for Judge Folsom to respond to other than a stay pending the appeal. If there is no appeal then there is no stay. Notice the loop?


----------



## jacmyoung

James Long said:


> DISH has asked for a stay while an appeal is being heard. If no appeal is filed then there is no stay. Notice the loop?
> 
> DISH would have to be satisfied in some other way that doesn't require an appeal or stay. At this point no such other request has been made of Judge Folsom. There is nothing else for Judge Folsom to respond to other than a stay pending the appeal. If there is no appeal then there is no stay. Notice the loop?


I go by want is the latest information, not the old news.

In the latest stipulation, E* agreed to delay their *request of stay by the Federal Circuit* until the end of business day 12/8/2008, giving the judge more time to make his own decision.

If he decides to stay his own order, there will be no need for E* to *request of stay by the Federal Circuit*.

And if he withdraws his order, instead produce a final ruling on the contempt motion, there will also be no need to go through this appeal. Please do not tell me the judge cannot do other things but only to respond to E*'s specific request.

If anything we learned, he can do a lot of things nobody asks him to do


----------



## jacmyoung

Greg Bimson said:


> ...Judge Folsom seems to believe he has the right to order an analysis on the receivers his court found infringing, to determine if those same receivers "continue to infringe". That throws some of KSM directly out the door.


I don't think it is true but even if you are correct, you somehow think he will succeed?


----------



## dgordo

jacmyoung said:


> If anything we learned, he can do a lot of things nobody asks him to do


And that whatever he decides, it will be appealed.


----------



## James Long

jacmyoung said:


> If he decides to stay his own order, there will be no need for E* to *request of stay by the Federal Circuit*.


That isn't what you said in the post I responded to ... you said "_E* may not *appeal* after all_."

Please keep your story straight.


dgordo said:


> And that whatever he decides, it will be appealed.


I consider that a given ... even without this "hearing in the form of a Bench Trial" that popped up generally unexpected. Contempt granted would be appealed by DISH, contempt denied would be appealed by TiVo ... we just wouldn't know on what grounds until Judge Folsom reveals the grounds he used to make the decision.

This "hearing in the form of a Bench Trial" may be the grounds if DISH is ever found in contempt. TiVo's suggested rewording of the order makes sense. Perhaps we will see a revised order by Monday and DISH will have to decide if they want to appeal the revised order or accept the judge's process.


----------



## Curtis52

Before the Court is EchoStar's Emergency Motion for a Stay of this Court's November 20, 2008 Order. Dkt. No. 865. Also before the Court is TiVo's response. Dkt. No. 866. For the reasons set forth below, EchoStar's Motion is hereby DENIED.
EchoStar contends that this Court's November 20, 2008 Order was improper because this Court must first "make a threshold determination of 'whether infringement should be adjudicated in contempt proceedings' instead of requiring new charges of infringement to be determined in a new full trial." Dkt. No. 865 at 2 (quoting KSM Fastening Systems, Inc. v. H.A. Jones Co., 776 F.2d 1522, 1530 (Fed. Cir. 1985)). This threshold determination must consider whether there are
"substantial open issues with respect to infringement," that is whether there are "colorable difference" between the adjudged and modified products. KSM, 776 F.2d at 1530-32; see also Additive Controls & Measurement v. Flowdata, Inc., 154 F.3d 1345, 1349 (Fed. Cir. 1998). If such differences exist, then contempt proceedings are inappropriate. KSM, 776 F.2d at 1530-32.
EchoStar argues that this determination can not be made on the current record before this Court. Dkt. No. 865 at 3. For exactly this reason, this Court ordered a further hearing on the matter. 8 See Dkt. No. 864. 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.
Next, EchoStar contends that this Court's November 20, 2008 Order "erroneously raises the question" of whether EchoStar receivers continue to infringe the hardware claims of TiVo's '389 Patent. Dkt. No. 865 at 3. On appeal, the Federal Circuit reversed the jury's finding of literal infringement with respect to the'389 Patent's hardware claims. Tivo, Inc. v. Echostar Commc'ns Corp., 516 F.3d 1290, 1304-05 (Fed. Cir. 2008). The Federal Circuit, however, did not render an opinion regarding EchoStar's infringement of those claims under the doctrine of equivalents. Id. In so doing, the Federal Circuit stated that "we do not decide what further proceedings, if any, are appropriate in the district court regarding the equivalents issue. Instead, we leave that issue for the district court to resolve in the event that, on remand, TiVo decides to continue to pursue the hardware claims in light of this decision." Id. at 1305. In accordance with this mandate, this Court left open the issue of EchoStar's infringement of the '389 Patent's hardware claims under the doctrine of equivalents. It was this Court's intention to hear evidence regarding this matter during the February hearing-thereby allowing this Court to be better equipped to determine what further proceedings, if any, were necessary. TiVo, however, has decided not to pursue its hardware claims at this time. See Dkt. No. 866 at 5-6. As such, this Court will revise its November 20, 2008 order to reflect that decision. To conclude, this Court finds that its November 20, 2008 order set forth a course of action consistent with the mandate of this case, Federal Circuit precedent, and this Court's continuing power to enforce its own injunction. It will, however, be modified to reflect TiVo's decision not to continue pursuing its hardware claims at this time. All discovery obligations will remain in effect
subject to the revised order setting the February hearing.


----------



## jacmyoung

James Long said:


> That isn't what you said in the post I responded to ... you said "_E* may not *appeal* after all_."
> 
> Please keep your story straight....


What is wrong for saying that? If the judgge drops the bench trial order instead try to rule on the contempt based on the colorable arguments made by both E* and TiVo (which he should have done), there is absolutely no reason to continue this appeal.

I never said there will be no appeals after that.

For example, if the judge rules a no contempt on the face, and grant TiVo $30 million damages after changing the rate, TiVo may appeal the no-contempt ruling, at the same time E* may appeal the $30 million damages since E* believes they should only pay $16 million.

My story is as straight as it can be.

But everyone else seemed to have gone off the straight line, forgetting what is *the appeal* we are talking about.

This appeal in front of us is an appeal to vacate the bench trial order, no more no less.


----------



## James Long

Curtis52 said:


> It will, however, be modified to reflect TiVo's decision not to continue pursuing its hardware claims at this time. All discovery obligations will remain in effect subject to the revised order setting the February hearing.


Good. It appears TiVo's suggestion will be followed and the case will go on.

Hopefully DISH accepts this.



> 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.


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## Mainer_ayah

2 new orders on the bottom of my page

http://southernme.com/DAVY_v_GOLIATH/


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## Curtis52

The bench trial is now an evidentiary hearing.


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## jacmyoung

And based on what the judge said, he did not dispute the need to answer the colorable difference issue in order to answer the contempt question.

I think the mistake the judge made in the following quote:

"EchoStar argues that this [colorable difference] determination can not be made on the current record before this Court. Dkt. No. 865 at 3. For exactly this reason, this Court ordered a further hearing on the matter."

The problems are two fold:

1) The "determination" E* mentioned was determination of colorable difference, not infringement, and yet the judge said he ordered this bench trial precisely to address this "determination" of E*'s, except it is not true, he order this trial not to make the determination of colorable difference, but to determine infringement.

2) E* did not mean a coloarable determination cannot be made on the record before this court, rather based on the record before this court, E* believes "mere colorable difference" cannot possibly be made, only more than colorabel difference is the natural outcome.

What he insisted was he has the descretion to further use the trial to determine if the new design is still an infringement or not. And his such descretion should be ruled as an abuse by the Appeals Court by simple reading of the Appeals Court past decisions.

I hope E* sticks to its apeal.


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## jacmyoung

Curtis52 said:


> The bench trial is now an evidentiary hearing.


The judge is changing the name of the hearing to avoid running into issues with the standard established by the Appeals Court. Just a hearing now, not a bench trial.

At this point, I think E* can still appeal to have the #2) stripped, leave only #1). Because if the outcome is 1) more than colorable, and 2)noninfringement, on appeal, 1) will be upheld, and 2) will be vacated, according to the case law.

That is what E* is talking about, their due process will be violated if their final win cannot be sustained on appeal. As far as #2), E* cannot win that one no matter what.


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## jacmyoung

However I want to point out a very important thing, now it should be clear from the judge's order that it is the *software* that is at the center of the contempt issue.

I have been saying so for all this time people insisted it was those DVRs, not true, it is the software, because the old software used in the DVRs caused the infringement.

Therefore it is perfectly fine for E* to replace the old software, and use the new software, as long as the new software no longer causes infringement.


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## jacmyoung

Since 1) is now added into the order, I believe it is ok for E* to drop the current appeal too, because for example, if after the hearing the judge finds the software more than colorable, but nevertheless the DVRs still infringe on the patent.

What is likely to happen is there will be no-contempt on the face, but still contempt due to infringement.

On appeal, E* will be able to have the Appeals Court vacate that infringement verdict. Meaning no-contempt on the face may be upheld, and contempt for continued infringement may be overturned.


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## Greg Bimson

> 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.


Why do I have the feeling TiVo will end up appealing this change?

The software, per se, was never adjudged.


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## James Long

Curtis52 said:


> The bench trial is now an evidentiary hearing.


Pretty much no change except removing the troubling words "Bench Trial". A rose is a rose.

Narrowing the scope of the hearing is a good thing.


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## James Long

jacmyoung said:


> I hope E* sticks to its apeal.





jacmyoung said:


> I believe it is ok for E* to drop the current appeal too,


Would you like to borrow a coin to flip?

The appeal of the initial order is moot as the order has changed.
If DISH finds anything wrong with this order they can still appeal.

They probably will ... they seem to appeal everything anyways.


----------



## jacmyoung

James Long said:


> Would you like to borrow a coin to flip?
> 
> The appeal of the initial order is moot as the order has changed.
> If DISH finds anything wrong with this order they can still appeal.
> 
> They probably will ... they seem to appeal everything anyways.


They should as long as this order's goal is still to determine the new design infringement issue. But what I am also saying is due to the order modification, there is not as much disadvatage to E* anymore if E* decides to accept the order.

In another word the coin now can lay on either side for E*

But you seemed to say the judge also reduced the scope of the hearing?


----------



## jacmyoung

Greg Bimson said:


> Why do I have the feeling TiVo will end up appealing this change?
> 
> The software, per se, was never adjudged.


If so TiVo should do it now


----------



## James Long

Greg Bimson said:


> Why do I have the feeling TiVo will end up appealing this change?
> 
> The software, per se, was never adjudged.


I agree. The products were adjudicated. If this stands it could refocus the case on software that is easily changed to "new new software" and then "new new new software" until the court gets tired of it and orders pre-approval of any modification that restores the DVR functionality to the receivers.

The only problem with a TiVo appeal is that they suggested the following language in their letter to EchoStar (attached to the stay request many posts above):


> (1) whether EchoStar's DP-501, DP-508, DP-510, DP-522, DP-625, DP-721, DP-921, and DP-942 receivers configured with software downloaded by EchoStar since entry of judgment are no more than colorably different from these receivers configured with software that EchoStar used at the time of trial;


It seems the wording you and I object to was formed from TiVo's suggestion. Tivo does not use the word adjudicated but they are referring to the same concept ... 'Infringing Product' vs 'Infinging Product' w/new software.


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## jacmyoung

This E*'s *threat of appeal* has already succeeded in verifying E*'s past argument.

Up to this new modified order, TiVo was saying the judge's injunction meant this, E* was saying he meant that. Now the judge had said what he really meant, was to *disable the old software*.

He has given us the answer. Whether you like it or not, his answer is his answer, unless TiVo now wishes to challenge the injunction, but it is too late according to TiVo.


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## Greg Bimson

jacmyoung said:


> He has given us the answer. Whether you like it or not, his answer is his answer, unless TiVo now wishes to challenge the injunction, but it is too late according to TiVo.


Oh lord...

TiVo can, just like DISH/SATS has, threatened to challenge the order for the bench trial. That is not a challenge to the injunction.


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## Mainer_ayah

Greg Bimson said:


> Oh lord...


No, I'm afraid he is beyond help, even from above.


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## jacmyoung

Greg Bimson said:


> Oh lord...
> 
> TiVo can, just like DISH/SATS has, threatened to challenge the order for the bench trial. That is not a challenge to the injunction.


Let's wait and find out shall we?

Let me bring back a very old argument I used sometime ago.

In the StarBrite case, the judge told the patentee, what he meant to enjoin in his injunction was the "internal formulation" used by the 6 paint products that were found infringing products, even though the term "internal formulation" was nowhere to be found in his injunction. And because the infringer changed the internal formulation of the exact same 6 paint products, and the difference was more than colorable, there was no contempt.

Here the judge can tell TiVo, what he meant in his second disabling order was to disable the "software" used by the 8 models of DVRs that were found infringing products, even though the term "software" is nowhere to be found in the injunction, and because E* changed the software in the 8 models of DVRs and the difference of the software is more than colorable, E* is not in contempt.

It has nothing to do with what was adjudged, rather how the judge choose to interpret his own order for you. If he says this is what I mean of my order, this is it, there is nothing you can do to challenge it, because you are the plaintiff. Even if you manage to successfully convince him his order may meant something else, the best you have done is to prove ambiguity in his order, and guess what, the plaintiff does not get to benefit from that ambiguity, the defendant does.


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## jacmyoung

Mainer_ayah said:


> No, I'm afraid he is beyond help, even from above.


Every time you avoid debating substance I have to guess you have run out of substance.


----------



## Mainer_ayah

jacmyoung said:


> Every time you avoid debating substance I have to guess you have run out of substance.


Let's wait and find out, shall we.

Let's look elsewhere for an opinion on who is "winning" this weeks activities in court. If you take a look at a stock chart plotting this weeks activities on the Nasdaq, TiVo and Dish, you can see that the "market" since monday afternoon has moved the price of TiVo's stock up 35% while Dish meanders along with performing not much better than the market. ( It would be tough to get it any lower than the brilliant management of Charlie has brought it). It seems the only mistakes the market has seen made is Dish showing their weakness by first praising the Bench trial and then moving to get rid of it. I believe that every move to delay Dish makes from now on will simply show more of those ****** in the armor.


----------



## Greg Bimson

jacmyoung said:


> Here the judge can tell TiVo, what he meant in his second disabling order was to disable the "software" used by the 8 models of DVRs that were found infringing products, even though the term "software" is nowhere to be found in the injunction, and because E* changed the software in the 8 models of DVRs and the difference of the software is more than colorable, E* is not in contempt.


Let's wait?


> (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;*


Show me where there was "adjudged software". There was an adjudged receiver, but not adjudged software.

Now we truly know why there is a bench trial for ongoing infringement. Judge Folsom is technologically illiterate.


----------



## jacmyoung

Greg Bimson said:


> ...Now we truly know why there is a bench trial for ongoing infringement. Judge Folsom is technologically illiterate.


Don't tell it to me, tell it to TiVo, and to the judge


----------



## jacmyoung

Mainer_ayah said:


> Let's wait and find out, shall we.
> 
> Let's look elsewhere for an opinion on who is "winning" this weeks activities in court. If you take a look at a stock chart plotting this weeks activities on the Nasdaq, TiVo and Dish, you can see that the "market" since monday afternoon has moved the price of TiVo's stock up 35% while Dish meanders along with performing not much better than the market. ( It would be tough to get it any lower than the brilliant management of Charlie has brought it). It seems the only mistakes the market has seen made is Dish showing their weakness by first praising the Bench trial and then moving to get rid of it. I believe that every move to delay Dish makes from now on will simply show more of those ****** in the armor.


Your point well taken, except I do not care about the stocks, nor do I care how Charlie manages his stocks.

You can believe all you want, I am enjoying the moment

Oh BTW, you did not necessarily prove everything, E*'s stocks are moving along the market, so maybe that had convinced Charlie to go on because what he has done at the court so far has not negatively impacted him much?


----------



## scooper

Greg Bimson said:


> Let's wait?Show me where there was "adjudged software". There was an adjudged receiver, but not adjudged software.
> 
> Now we truly know why there is a bench trial for ongoing infringement. Judge Folsom is technologically illiterate.


Do we need to repeat that AGAIN !?!?!

It's very simple to those of us who ARE technologically literate, and very complicated for those who aren't.


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## Greg Bimson

scooper, all I am saying is that it was the receivers that were found to infringe. A change in software must account for the receivers as well, since the software claims aren't only software. This is as glaring a mistake as the "colorable difference" missing from the original order.


----------



## peak_reception

Am I the only one thinking that TiVo's disinterest in -- and now formal dismissal of -- the hardware issue is a mistake?

Ok, hardware and software working together in a process is where infringement was found. Difficult to separate. But the CAFC managed to separate them as they analyzed the situation. And so did Judge Folsom in his initial November 20th Order where he specifically mentions hardware, DOE, and his readiness to make judgment.

So CAFC signals that hardware may still be pursued. Seems like an invitation but maybe not. Judge Folsom signals that he's ready to move on all fronts, including hardware, and TiVo says.... "no thanks." Odd.

The conclusion I draw is that Echo really has worked around any/all hardware infringement with their new process. Even TiVo seems to think so by abandoning the issue. So doesn't this make Echo's path to non-infringement all the more reasonable and proper? All those Infringing Products are now seemingly free and clear if Echo's new software is free and clear.

TiVo must be very confident that Echo's new software still infringes. So why didn't they just go after it with a vengeance from last May forward? Maybe they figured that prima facie violation would be a faster means to the same end? Not.


----------



## jacmyoung

scooper said:


> Do we need to repeat that AGAIN !?!?!
> 
> It's very simple to those of us who ARE technologically literate, and very complicated for those who aren't.


Too bad all the verdicts and decisions are made by the jury, and the judges, who are all technologically illiterate when it comes to any highly specialized technologies. Maybe they are not qualified to render decisions, maybe the whole infringement verdicts and the judgment from that jury trial should all be thrown out.


----------



## jacmyoung

peak_reception said:


> ...TiVo must be very confident that Echo's new software still infringes. So why didn't they just go after it with a vengeance from last May forward? Maybe they figured that prima facie violation would be a faster means to the same end? Not.


Or maybe TiVo had no confidence in the software at all, therefore decided to go the on-the-face route instead? If you read TiVo's filings on the new design (new software) colorable difference issue, it was a mess.


----------



## Greg Bimson

peak_reception said:


> The conclusion I draw is that Echo really has worked around any/all hardware infringement with their new process. Even TiVo seems to think so by abandoning the issue. So doesn't this make Echo's path to non-infringement all the more reasonable and proper?


This isn't about "HARDWARE INFRINGEMENT". This is about infringing upon claims 31 and 61, defined as the "Software Claims". However, it isn't all about software, as claims 31 and 61 are "a process" and "an apparatus", respectively. Claims 31 and 61 have a component in a step of each claim discussing parsing data, which has been defined in the Markman hearings as "analysis".

Here is the problem, in a nutshell.:

Main question: Does the recevier "analyze"?
Of course, it has to.

Does the hardware analyze? 
Of course, it has to, in order to parse the incoming signal.

Does the software analyze?
It does not appear to.

So if this is only about software, the new SOFTWARE avoids infringement because the software does not analyze. However, Claims 31 and 61 are not only about software. If this is about the receiver, which it should be as that is what was found to infringe, then that component is met.


----------



## scooper

jacmyoung said:


> Too bad all the verdicts and decisions are made by the jury, and the judges, who are all technologically illiterate when it comes to any highly specialized technologies. Maybe they are not qualified to render decisions, maybe the whole infringement verdicts and the judgment from that jury trial should all be thrown out.


Haven't I said that before ?


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## jacmyoung

scooper said:


> Haven't I said as such ?


Sorry I wasn't as literate to understand it


----------



## jacmyoung

Greg Bimson said:


> This isn't about "HARDWARE INFRINGEMENT". This is about infringing upon claims 31 and 61, defined as the "Software Claims". However, it isn't all about software, as claims 31 and 61 are "a process" and "an apparatus", respectively. Claims 31 and 61 have a component in a step of each claim discussing parsing data, which has been defined in the Markman hearings as "analysis".
> 
> Here is the problem, in a nutshell.:
> 
> Main question: Does the recevier "analyze"?
> Of course, it has to.
> 
> Does the hardware analyze?
> Of course, it has to, in order to parse the incoming signal.
> 
> Does the software analyze?
> It does not appear to.
> 
> So if this is only about software, the new SOFTWARE avoids infringement because the software does not analyze. However, Claims 31 and 61 are not only about software. If this is about the receiver, which it should be as that is what was found to infringe, then that component is met.


Sorry Greg, "anaylze" alone cannot infringe. As you said yourself, "analyze" is in only "a step" of the ten steps of the two claims. All ten steps must be met to infringe.

Your basic premise is wrong, so the argument following it is moot.

The software can analyze, the hardware can analyze, the receiver can analyze, as long as they do not use "temporary storage device (index file)", they no longer meet step1, as long as they do not use that "media switch", they no longer use "automatic flow control" therefore no longer meet steps 4 and 6. No infringement!


----------



## James Long

Mainer_ayah said:


> If you take a look at a stock chart plotting this weeks activities on the Nasdaq, TiVo and Dish,


No thanks ... stock market prices are not the only indicator of the health of a company and they certainly do not reflect a single issue that the company is facing.

Stock trades are made between a seller who believes that they can make more money elsewhere and a buyer who believes that they will make more money with the stock the seller is abandoning. Every trade includes a person who is wrong about the direction a company's stock is going --- which means half of all traders are wrong. So, you want to look to traders for advice?

There are other reasons to buy and sell but the bottom line is that everyone wants to make money ... those who buy low and sell high and those who short sale ... nobody gets into stocks to lose money.

Today's stock price only reflects what a few people felt about their holdings today. Some bought, some sold. At the end of the day the same number of shares were bought that were sold ... even if the price is apparently lower. What you are not seeing is long term shareholders ... those who invest for five or ten years not five or ten minutes. Nobody tracks how much they believe the stock is worth ... we focus too much on the buyers and sellers.

So no, I'm not going to get bent out of shape over a stock price. There are too many variables to worry on a day by day basis. Some of that TiVo rise could be idiots or fools that saw the massive influx of cash from the first payment of damages in this case and didn't do their homework ... they just bid high because they saw a big number. Some of the DISH dip could be those who don't like the way DISH is performing during the recession. Even though the company is fundamentally strong.

I don't put a lot of stock in stock.


----------



## peak_reception

Greg Bimson said:


> This isn't about "HARDWARE INFRINGEMENT".


 I realize that, but if the CAFC and Judge Folsom are both thinking of it in those terms where they are separating the two things in order to analyze and judge the issue(s) then it seems prudent to see it through their eyes too. After all, they are the ones who will be deciding the outcome!

p.s. I do appreciate your nutshell analysis. (the tech details of this case are difficult for a non-techie like me).


----------



## James Long

Greg Bimson said:


> Main question: Does the recevier "analyze"?
> Of course, it has to.
> 
> Does the hardware analyze?
> Of course, it has to, in order to parse the incoming signal.


Does it analyze as part of the receiver process or as part of the DVR process? The injunction quite clearly allows the Infringing Products to perform all functions and processes needed as a receiver. Only the DVR functionality was targeted to be disabled.

The named products were found to be infringing because the protected patent claims were violated in the DVR process. If those protected patent claims are not violated in the 'new' DVR process then the 'new' process does not infringe.

As far as the hardware claim goes ...

Say I had a case of beer in my car and in the process of driving I reached over and popped the top open on one of the cans. If an officer pulled me over I would be guilty of having open intoxicants in the vehicle even if I did not drink any of it. If I had a passenger drinking in my car I could get in trouble for open intoxicants. I would find myself in front of a judge who would instruct me never to open a beer or allow a beer to be open in my car while I'm driving it again.

So a week later I'm driving down the road with the same case of beer in the car but none of them are open. I have figured out a new process of driving that does not involve opening a can of beer. The hardware remains in my car but is harmless because that hardware is not in use.

DISH's claim is that even though the hardware alleged to infringe remains in the product they are no longer using it. It is similar to my claim about the case of beer still in my car. There is no harm in having the "bad hardware" there as long as I don't use it in the process of driving - or in DISH's case, the process of DVR functionality.

All DISH has to do is provide DVR functionality without infringing ANY of the claims in TiVo's patent and they are golden.


----------



## jacmyoung

peak_reception said:


> I realize that, but if the CAFC and Judge Folsom are both thinking of it in those terms where they are separating the two things in order to analyze and judge the issue(s) then it seems prudent to see it through their eyes too. After all, they are the ones who will be deciding the outcome!
> 
> p.s. I do appreciate the rest of what you put in nutshell form. It's helpful.


Let me try to provide my speculation again. The reason TiVo does not want the hardware claims back in maybe because of the nature of the hardware claims and what E* did that was related to the hardware claims may help E* to prove no infringement on the software claims.

Some of the hardware claims in question specifically address the "media switch" which serves the function of "automatic flow control" or "self-regulating". It is likely that after TiVo saw the software code E* voluntarily gave them before the 5/30 meeting, that the "media switch" was indeed gone, not used by the new software anymore.

If E* can prove the media switch is gone, they can easily prove the "automatic flow control" in the two of the ten steps of the software claims is also gone.

TiVo does not want to make the job easy for E*. Not that E* cannot use the media switch evidence, just that the evidence cannot flow from the hardware claims to the software claims so seemingly.


----------



## dgordo

James Long said:


> No thanks ... stock market prices are not the only indicator of the health of a company and they certainly do not reflect a single issue that the company is facing.
> 
> Stock trades are made between a seller who believes that they can make more money elsewhere and a buyer who believes that they will make more money with the stock the seller is abandoning. Every trade includes a person who is wrong about the direction a company's stock is going --- which means half of all traders are wrong. So, you want to look to traders for advice?
> 
> There are other reasons to buy and sell but the bottom line is that everyone wants to make money ... those who buy low and sell high and those who short sale ... nobody gets into stocks to lose money.
> 
> Today's stock price only reflects what a few people felt about their holdings today. Some bought, some sold. At the end of the day the same number of shares were bought that were sold ... even if the price is apparently lower. What you are not seeing is long term shareholders ... those who invest for five or ten years not five or ten minutes. Nobody tracks how much they believe the stock is worth ... we focus too much on the buyers and sellers.
> 
> So no, I'm not going to get bent out of shape over a stock price. There are too many variables to worry on a day by day basis. Some of that TiVo rise could be idiots or fools that saw the massive influx of cash from the first payment of damages in this case and didn't do their homework ... they just bid high because they saw a big number. Some of the DISH dip could be those who don't like the way DISH is performing during the recession. Even though the company is fundamentally strong.
> 
> I don't put a lot of stock in stock.


Nonsense, markets are efficient, gene fama told me so.


----------



## scooper

James Long said:


> Does it analyze as part of the receiver process or as part of the DVR process? The injunction quite clearly allows the Infringing Products to perform all functions and processes needed as a receiver. Only the DVR functionality was targeted to be disabled.
> 
> The named products were found to be infringing because the protected patent claims were violated in the DVR process. If those protected patent claims are not violated in the 'new' DVR process then the 'new' process does not infringe.


And I got raked by the Tivo fans when I pointed this out -


----------



## peak_reception

jacmyoung said:


> Or maybe TiVo had no confidence in the software at all, therefore decided to go the on-the-face route instead? If you read TiVo's filings on the new design (new software) colorable difference issue, it was a mess.


 Most of what TiVo counsel writes is a mess. Most of what Echo counsel writes is pithy and on point by comparison.


----------



## CuriousMark

James Long said:


> Does it analyze as part of the receiver process or as part of the DVR process? The injunction quite clearly allows the Infringing Products to perform all functions and processes needed as a receiver. Only the DVR functionality was targeted to be disabled.
> 
> The named products were found to be infringing because the protected patent claims were violated in the DVR process. If those protected patent claims are not violated in the 'new' DVR process then the 'new' process does not infringe.


I don't think you can make an arbitrary distinction and say that a step in a claim must be ignored simply because it occurs to the left of an imaginary line between receiver functions and DVR functions. There must be some overlap, it can't be a DVR without a receiver.

Still if any one of the steps is fully omitted, the claim is not infringed, according to what I have seen posted here. I am just saying that a step is to the left side of an imaginary line does not make that step be considered as fully omitted.

Now it is certainly reasonable to argue that the decision in the Markman hearing to define parsing as any form of analysis is overly broad. But it is what it is now.


----------



## scooper

CuriousMark said:


> I don't think you can make an arbitrary distinction and say that a step in a claim must be ignored simply because it occurs to the left of an imaginary line between receiver functions and DVR functions. There must be some overlap, it can't be a DVR without a receiver.
> 
> Still if any one of the steps is fully omitted, the claim is not infringed, according to what I have seen posted here. I am just saying that a step is to the left side of an imaginary line does not make that step be considered as fully omitted.
> 
> Now it is certainly reasonable to argue that the decision in the Markman hearing to define parsing as any form of analysis is overly broad. But it is what it is now.


Sure you can - the dividing line is where the DVR process has valid audio and video streams to start "recording" / processing out of the satellite receiver process. By the same reasoning - an ATSC DVR process will start after the DVR process has valid A/V streams out of the ATSC tuner process. Or, after an analog A/V signal has been converted to MPEG A/V streams by digitizing.

So maybe the case law following Markman needs to be revised ? Whoever said that precedents are ALWAYS correct ?


----------



## CuriousMark

scooper said:


> Sure you can - the dividing line is where the DVR process has valid audio and video streams to start "recording" / processing out of the satellite receiver process. By the same reasoning - an ATSC DVR process will start after the DVR process has valid A/V streams out of the ATSC tuner process. Or, after an analog A/V signal has been converted to MPEG A/V streams by digitizing.


That sounds like a fuzzy line to me. A full transponder stream has valid audio and video streams in it. Parsing out the packets that correspond to the streams for a single channel would be to the right of the line you just drew, but I am sure you would prefer to consider it to be on the left, and logically it does fit more into receiver functionality than DVR functionality. My point being simply that a clear line, other than the border of the device itself can be hard to draw and may or may not be a fair one. Do you think your examples are a better line than the edge of the patented device itself? Can a subsystem of a device be considered alone for patent purposes after the whole device was previously litigated and has that kind of history? I suspect these are some of the questions that will be discussed in the upcoming briefs and hearing. It will be interesting to see how the attorneys argue this before the judge.


----------



## jacmyoung

While TiVo argues the new design still “parses” or analyzes, which seems to meet Step One, TiVo does not dispute the new design no longer uses the “index file” as a “temporary storage device”. The temporary storage device is another part of Step One.

If only “parse” remains, not the “temporary storage device” in Step One, then one can say literal infringement is gone, for Step One that is.

The question is then on the equivalents, can you say just because it still parses, even though it no longer have that temporary storage part, the Step One is still met on equivalents?

I say no. Meeting a step in equivalents means:

“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.”

Based on that what James said makes sense. TiVo is now accusing the E* new design still uses the PID analyzer to meet the “parse” limitation on Step One.

A PID analyzer is used in every one of the satellite receivers, whether C band, FTA, DBS or any other kind. A PID analyzer has nothing to do with DVRs, only satellite receivers. It most certainly does not perform substantially the same function, to achieve substantially the same result as the “parsing” described in TiVo’s claims which is for DVR functions.

The reason E* met Step One before was because E*’s old design did use its own “index file” for temporary storage, and it also separated the incoming audio and video streams before storing them into the index file, and doing so required analyzing the MPEG streams first.

E* no longer analyzes to separate the audio and video (at least not in Step One), and no longer stores them in the index file. E* still must use the PID analyzer, because the nature of the satellite operations necessitates the PID analyzer.

Not to mention E* no longer uses “automatic flow control” in Steps 4 and 6.


----------



## scooper

Curiousmark - see jacmyoung's post #603 for the complete reasoning , paying particular attention to paragraph 7 (quoted below) - 
"A PID analyzer is used in every one of the satellite receivers, whether C band, FTA, DBS or any other kind. A PID analyzer has nothing to do with DVRs, only satellite receivers. It most certainly does not perform substantially the same function, to achieve substantially the same result as the “parsing” described in TiVo’s claims which is for DVR functions."


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## CuriousMark

Good description and analysis. Based on that it may not be the same, but that is not because it is outside some arbitrary line in the hardware or software. It is because it does not pass that particular test. And legally it is that test that counts in the decision. We have to be careful not to oversimplify.


----------



## scooper

I believe my dividing line is very clear and can probably be pointed out by the designing engineers to "what happens where" in each of these devices I used as examples. Echostar's engineers can probably point out to you exactly where on the circuitboard these functions are happening.


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## James Long

Each claim in the patent has a list of steps to perform the desired result.
The challenge is to get to the desired result without following those steps.
Perhaps the result can be reached with steps omitted or replaced.

DISH claims that they have omitted or replaced enough to be clear of infringing the 'software' claims and they claim that they bypassed what infringed in the 'hardware' claims.


----------



## jacmyoung

James Long said:


> ...The challenge is to get to the desired result without following those steps...


It is less challenging if one can follow all but one step.

The biggest problem as I said before, E* did not even try last time, they simply copied TiVo's patented technology without any modification and got caught.

I sure hope they have learned the lesson and did it more carefully this time.


----------



## James Long

jacmyoung said:


> The biggest problem as I said before, E* did not even try last time, they simply copied TiVo's patented technology without any modification and got caught.


Not quite. They got in trouble because DISH's method was equivalent to TiVo's method, not because it was the same. The 'hardware' verdict was overturned because the appeals court disagreed with the jury's decision that the method was the same ... and since the jury was not instructed properly they did not find DISH guilty of infringement by the doctrine of equivalents. (That decision was remanded for Judge Folsom to take care of.)


----------



## jacmyoung

BTW, I would still appeal if I were E*, first to ask the Appeals Court to stay the order.

Then the Appeals Court should vacate this order citing substantive infringement analysis premature in a contempt proceeding, as the Appeals Court once ruled themselves.

I will then further argue that no more hearing is needed. The new design evidence in front of the court are substantial, more importantly, TiVo does not dispute such evidence. A question of colorable difference does not require that the evidences are solid, only substantial. The evidential hearing clearly is to ensure the evidences are solid, which is not necessary in a summary proceeding. The quantity will do.

If the judge refuses to rule on such evidence the Circuit Court should force him to do so.

IMHO, it is certainly worth a try.


----------



## jacmyoung

James Long said:


> Not quite. They got in trouble because DISH's method was equivalent to TiVo's method, not because it was the same. The 'hardware' verdict was overturned because the appeals court disagreed with the jury's decision that the method was the same ... and since the jury was not instructed properly they did not find DISH guilty of infringement by the doctrine of equivalents. (That decision was remanded for Judge Folsom to take care of.)


E* got lucky on that one, had the equivalents been used on the hardware claims, all verdicts would have been upheld.


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## Greg Bimson

I'm still trying to figure out where "the DVR process" cannot include "the receiver analysis process". Didn't see that in patent law anywhere.


jacmyoung said:


> Based on that what James said makes sense. TiVo is now accusing the E* new design still uses the PID analyzer to meet the "parse" limitation on Step One.


Exactly. And it met that limitation of the component of the step in the original trial.


----------



## scooper

Greg Bimson said:


> I'm still trying to figure out where "the DVR process" cannot include "the receiver analysis process". Didn't see that in patent law anywhere.Exactly. And it met that limitation of the component of the step in the original trial.


That's because it's engineering and common sense, not law.

And I (and others) already told you that Markman is wrong - overly broad . Markman needs thrown out / revised substantially.

PID filtering is NOT analysis of the type that Tivo does in their DVRs to allow trick plays, etc.

If you get rid of all analysis except PID filtering - your Tivo would not work - Dish's new process will.


----------



## Mainer_ayah

jacmyoung said:


> Your point well taken, except I do not care about the stocks, nor do I care how Charlie manages his stocks.
> 
> You can believe all you want, I am enjoying the moment
> 
> Oh BTW, you did not necessarily prove everything, E*'s stocks are moving along the market, so maybe that had convinced Charlie to go on because what he has done at the court so far has not negatively impacted him much?


No, like I said, Charlie has the value of his company beat down so low that it would be hard for it to move much lower. (take a look at a one year chart for Dish, it is in direct proportion to Charlies management prowess)

And yes, I know you don't care about the company stock price, after all, you are one of the few remaining individuals left on the planet that actually believe Dish actually downloaded a viable (or any kind of ) work around to the infringing devices.


----------



## Greg Bimson

scooper said:


> PID filtering is NOT analysis of the type that Tivo does in their DVRs to allow trick plays, etc.
> 
> If you get rid of all analysis except PID filtering - your Tivo would not work - Dish's new process will.


So the telephone patent should be invalidated because the telegraph used the same wires?

TiVo builds a box that decodes OTA digital, which requires a parsing of the OTA stream.

Yep. Completely different.


----------



## scooper

Greg Bimson said:


> So the telephone patent should be invalidated because the telegraph used the same wires?
> 
> TiVo builds a box that decodes OTA digital, which requires a parsing of the OTA stream.
> 
> Yep. Completely different.


Exactly the same principle - tuner section hands A/V streams off to the DVR process. Drop the "analysis" after the stream is coming and your Tivo falls flat. Dish's process goes on.

What is so hard to see about this ?

It's generic -
Tuner => Dvr process => video display

The DirectTivo works the same way -
DirectTV Tuner => Dvr process => video display.

You can do the same thing for cable TV DVRs
Cable tuner (digital) => DVR process => video display
cable tuner (analog) => digitizer => DVR process => video display

It could all be done in modular pieces (and for prototyping - it probably is !)


----------



## jacmyoung

Mainer_ayah said:


> No, like I said, Charlie has the value of his company beat down so low that it would be hard for it to move much lower. (take a look at a one year chart for Dish, it is in direct proportion to Charlies management prowess)
> 
> And yes, I know you don't care about the company stock price,...


Then why are you still arguing with me on the point I have no interest in?



> ... after all, you are one of the few remaining individuals left on the planet that actually believe Dish actually downloaded a viable (or any kind of ) work around to the infringing devices.


I don't know how I don't care about TiVo or E* stocks has anything to do with the software download.

There may be only few individuals left on the planet still believe E* downloaded any kind of work around, but as long as TiVo is one of them, what is your point?

And if TiVo acknowledged everything E* said about the new download, then that is what all that matters isn't it? Why are you arguing with me again? Have you called TiVo to tell them how stupid they were?

Now as far as whether TiVo believes the download is a viable one or not, that is what we are discussing right now, care to join us?


----------



## Mainer_ayah

jacmyoung said:


> Now as far as whether TiVo believes the download is a viable one or not, that is what we are discussing right now, care to join us?


There was no download of a viable workaround. Soon, you will understand.


----------



## jacmyoung

Greg Bimson said:


> I'm still trying to figure out where "the DVR process" cannot include "the receiver analysis process". Didn't see that in patent law anywhere.Exactly. And it met that limitation of the component of the step in the original trial.


You conveniently left out the "temporary storage device (index file)" in that same step, which is no longer there in E*'s new design.

So who cares if E* still parse the data? The important thing now is if the parsed data is still stored in that index file "temporarily" or not. The new design uses the PID analyzer, but does not store any data temorarily in an index file anymore, your step one is now out of the window.

And I have not even started with the "automatic flow control" thing yet, you know this one is also out, not used anymore, which is described in the other two steps of the TiVo's claims.

I will say this one more time, for the rest of the individuals on this planet who do not believe E* downloaded the new software, TiVo is not one of you, TiVo does not dispute the download, TiVo also does not dispute the removal of the "index file", TiVo also does not dispute the removal of the "media switch" which means the removal of the "automatic flow control".

In fact TiVo knows the media switch is no longer there, so much so TiVo does not even dare to bring back the hardware claims.

The only thing TiVo has to question the viability of the download is this so called PID anaylzer still in there, which is used in all sat receives, non DVRs or DVRs.

Like scooper said, if you only care to use some common sense, can you honestly say TiVo's argument holds any water?


----------



## jacmyoung

Mainer_ayah said:


> ... Soon, you will understand.


You have said the above so many times, maybe it's time to try something new.


----------



## scooper

Mainer_ayah said:


> There was no download of a viable workaround. Soon, you will understand.


Now WHO is trying "Jedi Mind Tricks" ?


----------



## James Long

Mainer_ayah said:


> (take a look at a one year chart for Dish, it is in direct proportion to Charlies management prowess)


There is a chart of Mr Ergen's management prowess? Do you have a link to it?


----------



## jacmyoung

scooper said:


> Now WHO is trying "Jedi Mind Tricks" ?


Precisely, if TiVo did not think E* downloaded anything of substance, why has TiVo been so afraid of bringing back the hardware claims, even after the judges repeatedly encouraged them to do so?

TiVo had the full new software code E* voluntarily gave them right before the 5/30's meeting, I am sure TiVo had a few capable engineers that had read that code (Rogers in fact said so himself) and somehow found out E* was lying about everything E* claimed to have in that code?

Why did TiVo accept everything E* said of the new code? Were their engineers not capable of reading those codes?


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## James Long

TiVo accepts NOTHING but the concept that new code can be sent to receivers and that there is an outstanding unproven claim that DISH has sent new code that DISH alleges that the code referenced no longer infringes.

Asking Judge Folsom to not deal with the hardware claims at this time keeps the hearing nice and clean and removes one more reason why DISH might appeal any decision reached (failure to have a jury).

TiVo can always come back, win or lose, and press for the hardware claims to be retried as the appeals court directed.


----------



## Greg Bimson

jacmyoung said:


> You conveniently left out the "temporary storage device (index file)" in that same step, which is no longer there in E*'s new design.





> 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;
> 
> providing a source object, wherein said source object extracts video and audio data from said physical data source;
> 
> providing a transform object, wherein said transform object stores and retrieves data streams onto a storage device;
> 
> wherein said source object obtains a buffer from said transform object, said source object converts video data into data streams and fills said buffer with said streams;
> 
> wherein said source object is automatically flow controlled by said transform object;
> 
> providing a sink object, wherein said sink object obtains data stream buffers from said transform object and outputs said streams to a video and audio decoder;
> 
> wherein said decoder converts said streams into display signals and sends said signals to a display;
> 
> wherein said sink object is automatically flow controlled by said transform object;
> 
> providing a control object, wherein said control object receives commands from a user, said commands control the flow of the broadcast data through the system; and
> 
> wherein said control object sends flow command events to said source, transform, and sink objects.


I highlighted the word index in Claim 31. What, you don't see it? Because index does not exist in Claim 31, nor in Claim 61, which is quite similar.

*The index is in Claims 1 and 32, the so-called hardware claims*, which TiVo has elected not to pursue.


----------



## Curtis52

jacmyoung said:


> You conveniently left out the "temporary storage device (index file)" in that same step, which is no longer there in E*'s new design.


There is no index file in the software claims.


----------



## vampz26

Greg Bimson said:


> I highlighted the word index in Claim 31. What, you don't see it? Because index does not exist in Claim 31, nor in Claim 61, which is quite similar.
> 
> *The index is in Claims 1 and 32, the so-called hardware claims*, which TiVo has elected not to pursue.


I would like to see the actual software specifications for both software components in question.


----------



## jacmyoung

James Long said:


> TiVo accepts NOTHING but the concept that new code can be sent to receivers and that there is an outstanding unproven claim that DISH has sent new code that DISH alleges that the code referenced no longer infringes.
> 
> Asking Judge Folsom to not deal with the hardware claims at this time keeps the hearing nice and clean and removes one more reason why DISH might appeal any decision reached (failure to have a jury).
> 
> TiVo can always come back, win or lose, and press for the hardware claims to be retried as the appeals court directed.


Of course TiVo likes their followers to think so, the only problem is they can't get that contempt they want, that is the bottomline.


----------



## jacmyoung

Curtis52 said:


> There is no index file in the software claims.


Was there "Barton Switch" in the claims? Was there Broadcom chips in the claims?

In fact I did not see DP625 in that claim either, I really like to see it in there you know, my 625 will be a collector's item.

The index file, according to TiVo, is *the* center piece of its patented DVR technology, that was all that was needed to prove infringement on most if not all the steps of the claims, and in addition that "Barton switch" too helped to wrap up the rest of the steps.

Please folks, you are just being argumentitive. Maybe the original infringement verdicts should all be thrown out, because it was that "index file", and that "Barton switch", that the old E* software used that had proven infringement. Neither of them was ever mentioned in the software claims, what was the judge thinking?

Now I hope Greg you understand why the 8 named DVRs were never the real issue, but the on-going infringement. Because only when you prove all the steps of the claims are met, so can you prove infringement (in the jury trial), and a contempt (in the contempt proceeding). The only difference is, the standard of proof in the summary contempt proceeding is much higher.

How much higher you ask? So high that as long as the infringer can establish some doubt, can raise substantial open issues, the patentee will have failed its job, and there will be no contempt and it will be the end of it. The patentee does not get a second crack at it again in a summary contempt proceeding. That is why the judge's order is wrong.

It is not the end of the road for the patentee however, the patentee can still pursue the infringer, just that they will have to do so in a new trial, in this case TiVo will likely have to go to the DE court to again go after E*'s new design.


----------



## Ergan's Toupe

jacmyoung said:


> Please folks, you are just being argumentitive.


Wow. Just wow....:nono:


----------



## jacmyoung

Greg Bimson said:


> So the telephone patent should be invalidated because the telegraph used the same wires?...


I missed that one.

The question should be, did telegraph infringe on the telephone patent just because they both used the same wires?


----------



## jacmyoung

Ergan's Toupe;1910661 said:


> Wow. Just wow....:nono:


You have been saying this as long as I can remember, and my guess is you will continue to say the same until the every end.


----------



## James Long

jacmyoung said:


> Please folks, you are just being argumentitive.


Would you like to borrow a mirror?



> In fact I did not see DP625 in that claim either, I really like to see it in there you know, my 625 will be a collector's item.


The DP625 is a model of receiver that DISH decided to design and build in a way that infringes on TiVo's patent. It will be a collector's items, some day, just like any other modern electronics. If you are asking whether it will be disabled to appease TiVo that is a question for the courts.

If you're trying to make some odd claim that patent holders must name all the potential names for potential products that other potential manufacturers might use to label their infringing products then you have left reality.



> Now I hope Greg you understand why the 8 named DVRs were never the real issue, but the on-going infringement.


You HAVE left reality. Go back to your reading. Under the direction you are going all an infringer would have to do is change the name of a product and they would be safe to produce more products.



jacmyoung said:


> The question should be, did telegraph infringe on the telephone patent just because they both used the same wires?


Which came first? Did you have a hard night of drinking last night or did someone spike your Shirley Temple?


----------



## Curtis52

You can build a pretty good strawman if you pick and choose steps from various patent claims. It's easy to knock down but I guess that's the point of doing it.


----------



## jacmyoung

James Long said:


> Would you like to borrow a mirror?


I look at my mirror every day thank you.



> The DP625 is a model of receiver that DISH decided to design and build in a way that infringes on TiVo's patent. It will be a collector's items, some day, just like any other modern electronics. If you are asking whether it will be disabled to appease TiVo that is a question for the courts.


And the judge has apprently said, interpreting what TiVo was saying, that the *software* will have to be compared in order to make that decision, not whether the 8 models of DVRs have been disabled or not. Therefore the question should be asked to the judge and TiVo, not me.



> If you're trying to make some odd claim that patent holders must name all the potential names for potential products that other potential manufacturers might use to label their infringing products then you have left reality.


You did not even carefully determine who was making that claim in the first place. It was Greg and Curtis who said the term "index file" must be in the claims for the index file to be used against E*, I was only playing their devil's advocate to prove them wrong. I am surprised you did not detect even the slightest sarcasm in my above post.



> You HAVE left reality. Go back to your reading. Under the direction you are going all an infringer would have to do is change the name of a product and they would be safe to produce more products.


You have not understood what I tried to say again, and you have done so before. I was the very first who made this point that simply changing the name will not work, the difference will have nothing to do with the patent claims. Again the same mistake you made above, not realizing I was using the *on alternative* argument to prove them wrong by first pretending to agree with them, then to prove them wrong.

It is called *on alternative* method of debate. Not so often used in front of a jury because it can be confusing, but often used in front of the lawyers and judges, assuming they know better not to be confused.



> Which came first? Did you have a hard night of drinking last night or did someone spike your Shirley Temple?


I don't know if the same question may be asked by me?


----------



## jacmyoung

Curtis52 said:


> You can build a pretty good strawman if you pick and choose steps from various patent claims. It's easy to knock down but I guess that's the point of doing it.


I'd be more than happy to read your detailed explanations as how you knock them down, you have not even tried yet.

The only thing you have said was since the "index file" is not mentioned in the claims, therefore E* may not use the lack of the index file to prove noninfringement, yet you conveniently forgot, it was "the index file" that TiVo said in the trial that was the central component, the center piece of the TiVo's patented DVR technology, that E* copied, and because of E*'s use of the index file, E* had to first analyze the incoming MPEG streams, identify the frame index information, temporarily store such info in the index file, and use it later during the trickplays. The use of the index file got E* in such trouble in the first place.

Care to explain to me how now the index file is suddenly not relevant? If the index file is not relevant, should we throw out those jury verdicts too? Because without that "center piece" of evidence, TiVo would never have won the jury case in the first place.

BTW, pick and choose steps from the claims is the exact way in all patent infringement cases for the defendants to prove noninfringement, I am sure you are aware of this after reading the appeals court review from the jury verdicts and the judge's final judgment?

PS, after reading your post again, I must say you might be agreeing with me in part, if so I apologize for the above repeat. Please allow me to leave the above on to make the point clear to the others anyway, at your expense maybe, I know one thing, you are big enough to take it


----------



## James Long

jacmyoung said:


> I look at my mirror every day thank you.


And likely have your first argument. That does seem to be your main goal - to argue.



> And the judge has apprently said, interpreting what TiVo was saying, that the *software* will have to be compared in order to make that decision, not whether the 8 models of DVRs have been disabled or not. Therefore the question should be asked to the judge and TiVo, not me.


The question that Judge Folsom asked is "do the products still infringe". DISH has not alleged to have physically replaced the 4 million receivers in homes with different hardware. DISH has alleged to have replaced the software on those 4 million receivers. That is why there is a focus on software ... because that is what DISH has claimed to have changed.

It has nothing to do with software and hardware claims in the patent ... it has everything to do with what DISH claims to have done in this case.

The question of whether or not the receivers were disabled isn't the one Judge Folsom is asking February 17-18.



> I was only playing their devil's advocate to prove them wrong.


This is not the place for games. If you express a belief expect people to believe it is your belief unless you state otherwise.

Setting up strawmen and being condescending to your fellow posters isn't productive to the discussion. Lets get back to reality.


----------



## Greg Bimson

jacmyoung said:


> ...it was "the index file" that TiVo said in the trial that was the central component, the center piece of the TiVo's patented DVR technology, that E* copied...


Yet it wasn't the only "analysis" done by the receiver. And it wasn't the only time the "parse" component in the step of the claim was met in the trial.


----------



## scooper

Greg Bimson said:


> Yet it wasn't the only "analysis" done by the receiver. And it wasn't the only time the "parse" component in the step of the claim was met in the trial.


It's the only "analysis" and "parsing" that counts - PID filtering is part of TUNER function, not DVR function.


----------



## James Long

And that is where we get into the nitty gritty of DISH's claims on their patent pending new software:
DISH claims not to be doing the analysis and parsing that TiVo holds patent on.
DISH claims that their new DVR software does not need that protected analysis and parsing.


----------



## jacmyoung

James Long said:


> ...The question of whether or not the receivers were disabled isn't the one Judge Folsom is asking February 17-18...


In front of the court is TiVo's motion to find contempt for not disabling the DVRs.

In response the judge said he is ordering another evidentiary hearing to determine whether the new software is more than colorably different compared to the old software.

What is the purpose of looking at the difference in the software? Yes to answer if E* had violated the injunction by not disabling the DVRs, as TiVo complained.

Therefore the software colorable difference issue will be used to answer the TiVo's question.

Otherwise you must conclude judge again ordered a hearing that will be a waste, at least for the first part.


----------



## jacmyoung

scooper said:


> It's the only "analysis" and "parsing" that counts - PID filtering is part of TUNER function, not DVR function.


I would even agree with Greg the PID parsing can count, because this is how the patent claims work, it does not always ask what is this specific parsing mean, it can mean PID parsing, it can also mean parsing for frame indexing analysis.

While I agree with you, I don't necessarily refute Greg's point, because the E* lawyer did admit PID parsing also fit the definition of parsing in the patent claims.

The beauty of the patent claims are, that parsing word is not the only word in that Step One, there are other words, including "temporay stored", among a few.

The longer the sentence, the more words in it, the more difficult it is for the step to be met. Not only does E* have to meet the parsing part, but also have to meet the temporary storage part, in order to meet Step One.

Again the reason E* met Step One last time was because E* used that indexing method, with that method, the incoming MPEG streams had to be parsed (not for PID purpose) for the purpose of identifying the frame index markers, and then such marker information had to be temporarily stored in the index file. That was why Step One was met.

Remove the indexing method, no more storing indexing info temporarily anywhere anymore, therefore Step One is no longer met, parsing or not.


----------



## dgordo

jacmyoung said:


> In front of the court is TiVo's motion to find contempt for not disabling the DVRs.
> 
> In response the judge said he is ordering another evidentiary hearing to determine whether the new software is more than colorably different compared to the old software.
> 
> What is the purpose of looking at the difference in the software? Yes to answer if E* had violated the injunction by not disabling the DVRs, as TiVo complained.
> 
> Therefore the software colorable difference issue will be used to answer the TiVo's question.
> 
> Otherwise you must conclude judge again ordered a hearing that will be a waste, at least for the first part.


Its amazing how simple this is to you, yet a highly competent and respected district court judge is holding hearing and reading briefs and hearing arguments. Hmm, maybe its not so simple.


----------



## scooper

Well - the overall what is happening "in the large" is. As usual with most legal stuff - the devil is in the details.


----------



## James Long

jacmyoung said:


> In front of the court is TiVo's motion to find contempt for not disabling the DVRs.
> 
> In response the judge said he is ordering another evidentiary hearing to determine whether the new software is more than colorably different compared to the old software.
> 
> What is the purpose of looking at the difference in the software?


Judge Folsom can look at the software to figure out if the question of disabling the DVRs is a moot point for deciding contempt and damages. The software is the only thing DISH has admitted to changing on the Infringing Products. It is natural that the focus be on what is different (even if we would express the Order in different terms).

If the software is not colorably different then no claim of disabling the products can stand. As mentioned last week, finding current infringement makes it a lot easier to hold DISH in contempt and order higher damages. Judge Folsom doesn't have to worry about the 'spirit' of his injunction nor calculating a date that infringement may have stopped for damages.


----------



## jacmyoung

dgordo said:


> Its amazing how simple this is to you, yet a highly competent and respected district court judge is holding hearing and reading briefs and hearing arguments. Hmm, maybe its not so simple.


I used to think Judge Folsom this way but not as much so now

Remember when the judge's first order came I said it was inappropriate, that the analysis should have been colorable issue, not infringement issue, if it was a part of the contempt proceeding? And it could not be a bench trial?

For now I am half proven already because the judge now added software colorable issue as the first order of the hearing and decided not to call it a bench trial.

Whether E* will still appeal or not I don't know but if they do, my bet is judge's current order, at least the second one, and the extent of the hearing, will be overturned too.

The reason is that a summary contempt proceeding is not designed to resolve complex issues, and let me quote the Federal Circuit:

"...the modifying party generally deserves the opportunity to litigate the infringement question at a new trial, 'particularly if expert and other testimony subject to cross-examination would be helpful or necessary.' "

I hope you agree that Judge Folsom does believe, by the description of his hearing order, that he thinks expert testimonies and cross examinations are necessary or helpful?


----------



## jacmyoung

James Long said:


> Judge Folsom can look at the software to figure out if the question of disabling the DVRs is a moot point for deciding contempt and damages...


Your current statement seems to say the reason the judge now decided to look at the software colorable difference issue is to answer the disabling question?

As I recall you were saying no, it had nothing to do with the disabling question? But I could be wrong.


----------



## Curtis52

jacmyoung said:


> I'd be more than happy to read your detailed explanations as how you knock them down, you have not even tried yet.


It is the strawman builder that knocks down the strawman. Job security.



jacmyoung said:


> Care to explain to me how now the index file is suddenly not relevant?


The index file is relevant to the hardware claims but not relevant to the software claims. It's good that the upcoming hearing is only about the software claims so that there won't be any confusion (except on this board).


----------



## jacmyoung

Curtis52 said:


> It is the strawman builder that knocks down the strawman. Job security.


Sorry I still have trouble.



> The index file is relevant to the hardware claims but not relevant to the software claims. It's good that the upcoming hearing is only about the software claims so that there won't be any confusion (except on this board).


Don't tell me that, tell TiVo, because TiVo said during the trial the index file was the center piece of the patented technology that proved E* infringement on all those claims.

Without the indexing method, there is no "temporary stored" function in Step One.

Unless you are trying to say just because TiVo tries to hide the hardware claims issue, E* is forbidden from bringing in the indexing evidence?


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## Curtis52

jacmyoung said:


> Without the indexing method, there is no "temporary stored" function in Step One.


A buffer is temporary storage. Dish uses buffers. If nothing else, the hard drive has a buffer.


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## jacmyoung

Curtis52 said:


> A buffer is temporary storage. Dish uses buffers. If nothing else, the hard drive has a buffer.


Greg and I had discussed this one too, a buffer is not the same as the "temporary stored" for three reasons:

1) The word "buffer" is also used in the claims, and the court had given each a separate definition.

2) If they are the same, they should use the same name, not one as "buffer" the other as "temporary stored".

3) In reality, a buffer only stores any info in very short time, sometimes in milliseconds, just enough time for a particular execution to complete. The index file temporary storage function actually will store the index info for a much longer time, long enough to allow the info be used during DVR trickplays.


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## Curtis52

Judge Folsom:

"On the basis of the use of the term in the '389 claims, and on the basis of its IEEE dictionary definition, "*buffer*" will be construed as "memory where data can be *temporarily stored* for transfer." This definition is further consistent with the definition provided by counsel during the claims construction hearing. 5/23/05 Hr. Tr. 58:11-13. The claim phrase as a whole, "obtains a *buffer*" is therefore construed as "obtains memory where data can be *temporarily stored* for transfer."


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## James Long

Is the hard drive buffer part of the patented DVR process or part of the hard drive manufacture's storage process?

TiVo's buffer is pre-processing, long before the data sees the hard drive.


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## Greg Bimson

My argument about the wording of the "colorable difference" hearing is this:

If one compares:
The DVR's ruled infringing with old software
to
the DVR's ruled infringing with new software
then there is merely a colorable difference.

The receiver continues to do what it did before, in almost exactly the same manner as *the claims in the patent* state.

However, if one compares:
The old software on DVR's ruled infringing
to
the new software on DVR's ruled infringing
then there is *a difference*.

The new software does not *analyze*, compared to the old software.

That's why DISH/SATS has been telling everyone their new *software* does not infringe. It is because is most likely, as software only, does not.

That's why TiVo has been telling everyone the modifications still infringe, because the *receivers* with modified software still perform the two infringed claims in the patent in practcially the same way as they did before. That is why I expect TiVo to file an emergency motion with Judge Folsom's court on Monday.

The modified order from Judge Folsom is dead wrong; there wasn't "adjudicated software" but there were adjudicated receivers, with software and hardware parts found to infringe each of the primary claims.


----------



## Greg Bimson

James Long said:


> Is the hard drive buffer part of the patented DVR process or part of the hard drive manufacture's storage process?


 I can try to find it, but I recall from DISH/SATS opposition to TiVo's motion for contempt, DISH/SATS mentions they now only use a single buffer.

If you remember where DISH/SATS claims was no pre-storage analysis and that there was no longer any "automatic flow control", it was in the latter section of that argument where they mention they use a single buffer.


----------



## James Long

Greg Bimson said:


> However, if one compares:
> The old software on DVR's ruled infringing
> to
> the new software on DVR's ruled infringing
> then there is *a difference*.


The question that Judge Folsom will answer is if that difference is only colorable or more than colorable. There are many differences in software ... if Judge Folsom believes that the difference is large enough to make the software more than colorably different perhaps he will see the receivers as a whole as modified to be more than colorably different.

Beyond that point he can rule on contempt (potentially finding DISH in contempt for not following the court's injunction but limiting punishment if the software change is more than colorable and 'the spirit' of the injunction was followed) and he can rule on damages based on a timeline of when the colorably different software was sent to receivers.

If no colorable difference is found then contempt is nearly certain (since nothing was disabled) and damages will be great. (Didn't I say this a few hundred posts ago?)


----------



## James Long

Greg Bimson said:


> I can try to find it, but I recall from DISH/SATS opposition to TiVo's motion for contempt, DISH/SATS mentions they now only use a single buffer.


As long as they are changing the process enough that it is colorably different DISH should be happy.


----------



## Greg Bimson

James Long said:


> The question that Judge Folsom will answer is if that difference is only colorable or more than colorable. There are many differences in software ...


Understand what I am saying, here.

If the old software did analysis and the new software does not, of course there is a LARGE difference in the software, as in wayyy more than colorable.

The issue here is that the original verdict was based off of many pieces of both software and hardware which infringed on the claims, which were also comprised of both software and hardware. Whoever allowed these things to be termed "Software Claims" and "Hardware Claims" should be taken to the woodshed.


James Long said:


> As long as they are changing the process enough that it is colorably different DISH should be happy.


Yes, but does going from multiple buffers to one buffer make a "colorable difference"?


----------



## vampz26

Curtis52 said:


> Judge Folsom:
> 
> "On the basis of the use of the term in the '389 claims, and on the basis of its IEEE dictionary definition, "*buffer*" will be construed as "memory where data can be *temporarily stored* for transfer." This definition is further consistent with the definition provided by counsel during the claims construction hearing. 5/23/05 Hr. Tr. 58:11-13. The claim phrase as a whole, "obtains a *buffer*" is therefore construed as "obtains memory where data can be *temporarily stored* for transfer."


...so a judge, a non-technical judge, is now going to dictate to the courts what a 'buffer' is...great... :nono2:

Now you see why I never give any judges or courts any credibility what-so-ever. Consistantly making judgements on things they know nothing about...

I just hope things work out for the best in the long run...


----------



## Greg Bimson

vampz26 said:


> ...so a judge, a non-technical judge, is now going to dictate to the courts what a 'buffer' is...great...


Yet the definition of _buffer_ is based upon the one in the IEEE dictionary; it is a technical definition.


----------



## vampz26

Greg Bimson said:


> Yet the definition of _buffer_ is based upon the one in the IEEE dictionary; it is a technical definition.


Its the judge interpreting that technical definition and applying that technical definition with no technical background that I have a problem with...

...and why our legal system in general is fundementally flawed. We rely too much on judges to make decisions on matters they know nothing about...


----------



## James Long

Greg Bimson said:


> If the old software did analysis and the new software does not, of course there is a LARGE difference in the software, as in wayyy more than colorable.


Such a finding would make DISH happy - if Judge Folsom then said the product with colorably different software is a colorably different modified product.



> The issue here is that the original verdict was based off of many pieces of both software and hardware which infringed on the claims, which were also comprised of both software and hardware. Whoever allowed these things to be termed "Software Claims" and "Hardware Claims" should be taken to the woodshed.


I suppose they mean "implemented in software" and "implemented in hardware"?



> Yes, but does going from multiple buffers to one buffer make a "colorable difference"?


Only Judge Folsom (and the appeals court) knows!


----------



## dgordo

Greg Bimson said:


> Yes, but does going from multiple buffers to one buffer make a "colorable difference"?


Glad I don't have to make that call.



> In determining whether the changes made were merely colorable, and therefore a contempt, it is necessary to apply the doctrine of equivalents. This doctrine has been described by the Supreme Court as follows: " '_f two devices do the same work in substantially the same way, and accomplish substantially the same result, they are the same, even though they differ in name, form, or shape.' "_


----------



## vampz26

dgordo said:


> Glad I don't have to make that call.


Efficient buffer management can be a complicated task in software...and multi-media buffers are the worst, due to the high bit rates and sheer volume of data, as well as the required realtime processing speed. Its one heck of a task.

Now if Tivo has been managing the complexity of this task through multiple buffers, and E* has found a way to manage this task as efficiently if not better through the use of a single buffer, than I would say yes...its possible...

But than it comes down to whether or not E*'s solution is an original solution, or somehow derived from the existing solution.


----------



## jacmyoung

Curtis52 said:


> Judge Folsom:
> 
> "On the basis of the use of the term in the '389 claims, and on the basis of its IEEE dictionary definition, "*buffer*" will be construed as "memory where data can be *temporarily stored* for transfer." This definition is further consistent with the definition provided by counsel during the claims construction hearing. 5/23/05 Hr. Tr. 58:11-13. The claim phrase as a whole, "obtains a *buffer*" is therefore construed as "obtains memory where data can be *temporarily stored* for transfer."


Curtis, the phrase you should have highlighted is *"obtains memory where data can be temporarily stored for transfer"*, that is the function of a buffer.

The "temporarily stored" in Step One is not a buffer function, it is storing the pre-analyzed MPEG frame index marker information into the index file, so when the users later use trickplays, instead of relying on the CPU power to analyze those marker info on the hard drive directly, the info "temporarily stored" in the index file will be used instead, therefore reduce the demand on the CPU.

The above function was the center piece of the patented Tivo DVR technology, and very well understood by everyone including the judge and the jury.

One can understand why such "temporarily stored" has nothing to do with the usual "buffer" functions. In fact I can say this, if this were as simple as a buffer function, the patent would have been denied or invalidated.

Because "buffers" are an art that would have been obvious to ordinary persons in the computer tech trade, and therefore would not have been patentable.


----------



## jacmyoung

The other very important part of the invention is the "automatic flow control" in two other steps of the software claims. The reason for such automatic flow control, as TiVo said, is so to avoid skipped frames and A/V stream info, because the nature of the invention requires a "media switch" to perform such control, otherwise the users will just be watching "garbaged" video.

That is why TiVo has been trying to avoid mentioning the hardware claims, because E* not only stopped using the indexing method, as a result, also removed that "media switch". The evidence of the media switch removal must be very credible. My speculation is because the media switch relied on the Broadcom chips, and E* claimed the Broadcom chips are no longer used, rather bypassed, which can be a clear evidence the media switch is gone. Scooper maybe able to tell you it is easy to varify if the software code still uses a particular chip or not down to a specific part of the circuit board

Anyway, just because TiVo does not want to bring back the hardware claims, they cannot prevent E* from using that evidence to demonstrate the new software no longer uses "automatic flow control".


----------



## jacmyoung

In a summary contempt proceeding, the defendant does not have to prove noninfringement, only to establish doubt, and raise substantial open issues as whether it still infringes or not, that will be enough to defeat the plaintiff's goal, which is to prove with clear and convincing evidence an infringement still exists.

What the judge has done is to compell E* to prove they no longer infringe, in his contempt proceeding, that is wrong, and I hope E* appeals such order, and if they do I am almost sure the order will be vacated, just like when I said the judge could not order a bench trial in his contempt proceeding, he later removed it from the order. But simply removing the wording is not enough.

On the other hand, I understand what Greg is saying, by using the term "software" in his order, TiVo will be in a bad position. Except there is nothing wrong with the use of "software" in his order.

Because the *first thing* the judge must do in a congtempt proceeding, is to look at the *difference* between the accused devices, and the adjudicated devices, and determine if the difference is more than colorable or not.

Whatever makes such difference, is naturally what the judge must *first* look at, if it is the hardware, it is the hardware he must *first* look at, if it is the software, then it is the software he must *first* look at.

The beauty of the rule is, after *first* he looks at the difference, if the difference is more than colorable, it must be the end of the inquiry, there will not be a *second* or a *third* look, there will be no contempt and the case must end. Meaning the judge's second part of the order cannot happen.

That was precisely why the Federal Circuit had said, to undertake a substantive infringement analysis, the inquiry was premature.

Of course if the difference is only colorable and upheld on appeal, it is the end for E* too.


----------



## scooper

jacmyoung said:


> The other very important part of the invention is the "automatic flow control" in two other steps of the software claims. The reason for such automatic flow control, as TiVo said, is so to avoid skipped frames and A/V stream info, because the nature of the invention requires a "media switch" to perform such control, otherwise the users will just be watching "garbaged" video.
> 
> That is why TiVo has been trying to avoid mentioning the hardware claims, because E* not only stopped using the indexing method, as a result, also removed that "media switch". The evidence of the media switch removal must be very credible. My speculation is because the media switch relied on the Broadcom chips, and E* claimed the Broadcom chips are no longer used, rather bypassed, which can be a clear evidence the media switch is gone. Scooper maybe able to tell you it is easy to varify if the software code still uses a particular chip or not down to a specific part of the circuit board
> 
> Anyway, just because TiVo does not want to bring back the hardware claims, they cannot prevent E* from using that evidence to demonstrate the new software no longer uses "automatic flow control".


I'm not going to say it would be easy - but yes - with an intimate enough knowledge of the H/W and S/W involved - and enough time to do the job (and the right tools - a disassembler and logic probes come to mind, having the source code would help tremendously) - it would be possible to verify if a chip on a circuitboard is being accessed by a program.


----------



## jacmyoung

scooper said:


> I'm not going to say it would be easy - but yes - with an intimate enough knowledge of the H/W and S/W involved - and enough time to do the job (and the right tools - a disassembler and logic probes come to mind, having the source code would help tremendously) - it would be possible to verify if a chip on a circuitboard is being accessed by a program.


And one can speculate TiVo wants to avoid that


----------



## Curtis52

jacmyoung said:


> One can understand why such "temporarily stored" has nothing to do with the usual "buffer" functions. In fact I can say this, if this were as simple as a buffer function, the patent would have been denied or invalidated.
> 
> Because "buffers" are an art that would have been obvious to ordinary persons in the computer tech trade, and therefore would not have been patentable.


The use of a buffer isn't what TiVo patented. The whole process is what TiVo patented. People have also used hard drives before too. That doesn't mean TiVo's patent is invalid.

Judge Folsom has said that a buffer is temporary storage. Therefore if Dish uses a buffer they are using temporary storage. There is no mention of an index in the claim.


----------



## jacmyoung

Curtis52 said:


> The use of a buffer isn't what TiVo patented. The whole process is what TiVo patented. People have also used hard drives before too. That doesn't mean TiVo's patent is invalid.
> 
> Judge Folsom has said that a buffer is temporary storage. Therefore if Dish uses a buffer they are using temporary storage. There is no mention of an index in the claim.


There is no mentioning of a "buffer" in Step One either. Just because a buffer is used in some other fashion, it cannot meet Step One if it is not for substantially the same function, in substantially the same way, to achieve substantially the same result.

A buffer on the harddrive most certainly does not serve the same function, in the same way, to achieve the same result, as the "temporary storage" described in Step One.


----------



## Curtis52

jacmyoung said:


> The other very important part of the invention is the "automatic flow control" in two other steps of the software claims. The reason for such automatic flow control, as TiVo said, is so to avoid skipped frames and A/V stream info, because the nature of the invention requires a "media switch" to perform such control, otherwise the users will just be watching "garbaged" video.
> 
> That is why TiVo has been trying to avoid mentioning the hardware claims, because E* not only stopped using the indexing method, as a result, also removed that "media switch". The evidence of the media switch removal must be very credible. My speculation is because the media switch relied on the Broadcom chips, and E* claimed the Broadcom chips are no longer used, rather bypassed, which can be a clear evidence the media switch is gone. Scooper maybe able to tell you it is easy to varify if the software code still uses a particular chip or not down to a specific part of the circuit board
> 
> Anyway, just because TiVo does not want to bring back the hardware claims, they cannot prevent E* from using that evidence to demonstrate the new software no longer uses "automatic flow control".


TiVo's patent claim makes no mention of a media switch. It only mentions automatic flow control which has been construed by Judge Folsom to mean self regulation. No data writes to the buffer until there is room in the buffer.


----------



## Curtis52

jacmyoung said:


> There is no mentioning of a "buffer" in Step One either. Just because a buffer is used in some other fashion, it cannot meet Step One if it is not for substantially the same function, in substantially the same way, to achieve substantially the same result.


A buffer and temporary storage are synonymous terms according to Judge Folsom. "Substantially the same function"? The function of a buffer is temporary storage. Temporary storage is what is cited in step one.



jacmyoung said:


> A buffer on the harddrive most certainly does not serve the same function, in the same way, to achieve the same result, as the "temporary storage" described in Step One.


A buffer on a hard drive, just as all buffers, provides temporary storage while the data is awaiting transfer. I'm sure Dish's hard drive has a buffer and I'm sure there are others that they use. There is no "result" of the temporary storage in step one beyond storage.


----------



## Greg Bimson

jacmyoung said:


> There is no mentioning of a "buffer" in Step One either. Just because a buffer is used in some other fashion, it cannot meet Step One if it is not for substantially the same function, in substantially the same way, to achieve substantially the same result.
> 
> A buffer on the harddrive most certainly does not serve the same function, in the same way, to achieve the same result, as the "temporary storage" described in Step One.


Care to reread the last paragraph you just wrote?

A buffer on the harddrive does exactly the same function, in the same way, to achieve the same result, as it did before. Just because it is a hardware function doesn't make it any less different than the "temporary storage" found to infringe during the trial.

Conversely, in regards to the first paragraph you wrote, DISH/SATS still mentions they use a single buffer in their response brief. That should also be an insignificant change, i.e., there is still a buffer.


----------



## James Long

Which buffer?

Incoming data converted to MPEG2 from OTA or other analog feeds or pulled directly from an MPEG2/MPEG4 source are put into a buffer by TiVo for processing. No data leaves the buffer for processing until the natively slow CPU can handle it. The buffer keeps the data from being lost when the CPU is bogged down. Get a CPU that is faster than the data and you don't need the input buffer.

The hard drive buffer performs a similar function to balance out the speed of the hard drive ... buffering data so it isn't lost while the drive seeks and writes the data to the drive (while seeking and reading data for display from the same drive). DISH can have six or more streams of data in use at the same time (three tuners writing, two outputs reading, perhaps a VOD download via IP plus EPG access). The hard drive heads can't be everywhere at once.

One can design a product that doesn't use the buffer on the hard drive but why? The function is there and built in and as long as your software cannot do a better job than the buffer on the drive then you might as well use the buffer on the drive.

TiVo uses both buffers ... DISH uses just the latter one. Looks different to me.
TiVo parses data into video, audio and control streams. DISH simply writes the incoming video and audio PIDs to hard drive. Looks different to me.


----------



## James Long

Or to put it simply ... is using a hard drive with or without a buffer an upheld claim of the patent? Or is it merely a step in another claim that has other steps that could be omitted?

We're getting to the point of saying "our product does all of this in a metal case" and claiming all similar products infringe because their cases are metal. ALL of the steps of a claim MUST be there (in actuality or by equivalent) in order for that claim to be infringed. Are all of the steps still there? Focus on what is DIFFERENT ... not on what is the same.


----------



## Greg Bimson

Okay, let's get back to topic. There is a buffer. End of story:


> After the verdict, EchoStar's engineers developed a single-buffer record method that lacks automatic flow control for the Broadcom DVRs. Because only one buffer is used, the new software does not and cannot stop the flow of incoming data to the buffer.


This is DISH/SATS response statement. They have a buffer. That means it is temporary storage.

Let's move on from claiming no temporary storage, as DISH/SATS states they still have temporary storage, in the form of the buffer.

DISH/SATS so far has only claimed they no longer meet two components within the claims: the receivers no longer analyze and they lack "automatic flow control". Until DISH/SATS states there are other components within the claims they no longer meet, there is no sense of discussing them. Time to let it go...


----------



## James Long

A prime example of an "it is in a metal case" argument. Not every product in a metal case violates TiVo's patent.

So what if it has "a" buffer ... does it have "the" buffer that is claimed by TiVo?

Look at DISH's statement that you just quoted:


> After the verdict, EchoStar's engineers developed a single-buffer record method that lacks automatic flow control for the Broadcom DVRs. Because only one buffer is used, the new software does not and cannot stop the flow of incoming data to the buffer.


Pure and simple. Only ONE buffer is used ... handicapping the DISH DVR and making it rely on speed of CPU to prevent losing data rather than a buffer.


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## Greg Bimson

Yep. And when DISH/SATS claims they no longer have "temporary storage", then we can go 'round on those arguments. They haven't claimed they no longer have temporary storage. As you said, "pure and simple."


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## James Long

It has been a while since I read their patent application that explains all of the ways they believe their new software is different than TiVo's patented process. But if they are saying no buffer, no temporary storage, on the way from PID reception to the CPU before being sent to the hard drive which is natively buffered then they have outlined a difference.

And if that patent is ever granted TiVo would be stuck doing it their way ... with a pre-buffer ... lest they violate DISH's patent on a non pre-buffered approach.


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## Curtis52

The self regulted flow control can be of either the data to be stored or the played back data or both.


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## Greg Bimson

James Long said:


> And if that patent is ever granted TiVo would be stuck doing it their way ... with a pre-buffer ... lest they violate DISH's patent on a non pre-buffered approach.


True. The DISH/SATS patent could still be granted, yet DISH/SATS could still be infringing upon the TiVo Time Warp patent.


----------



## Mainer_ayah

vampz26 said:


> Now you see why I never give any judges or courts any credibility what-so-ever. Consistantly making judgements on things they know nothing about...


read this:
http://mcsmith.blogs.com/eastern_district_of_texas/2008/12/swearing-in-of-new-clerks-patent-case-status-conferences.html


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## vampz26

Greg Bimson said:


> Care to reread the last paragraph you just wrote?
> 
> A buffer on the harddrive does exactly the same function, in the same way, to achieve the same result, as it did before. Just because it is a hardware function doesn't make it any less different than the "temporary storage" found to infringe during the trial.
> 
> Conversely, in regards to the first paragraph you wrote, DISH/SATS still mentions they use a single buffer in their response brief. That should also be an insignificant change, i.e., there is still a buffer.


Whoa, whoa, whoa...

These are real-time multimedia buffers we are talking about here...does anyone here other than me know what that is?!?

Look, to simplify the whole concept here of 'what is a buffer', consider the following true statement. The slowest RAM memory is still faster that your fastest disk memory. When processing any type of data in real-time, you will have bottlenecks in the processing. Those bottlenecks are almost always diskIO and networkIO. Buffers help neutralize those bottlenecks by the buffer reading data from the Disk or Network into memory, and than the data itself is read from the in-memory buffer. Like I said, reading the data from RAM is infinitely faster than reading from Disk or Network IO, the copy IO happens in the background and the IO from the buffer happens in real-time.

Now I'm not saying all of you need buffer-101 classes here, but lets not over simplify the concept from here on in. Keep in mind that multi-media bitstreams in and of themselves encode multiple streams of synchronized data, and there are enough patents and patent pendings out there already to keep plenty of lawyers busy when it comes to multimedia buffers. A patented buffer already exists in your DVD player, and there is a second patent on the same buffer that exists by another company who was able to modify the buffer to handle the 'skip' that occurs when a DVD player transfers between layers on a dual-layer commercial DVD and process the bitstream in real-time without the skip. Now what does that tell you?

It tells me that there is a wide range of considerations when determining what may or may not be a 'colorable difference' in this situation, but it also sounds like you aren't necessarily required to prove that colorable difference within a very wide margin either.

I would love to see the technical specs provided to the expert witnesses here so I could help clear things up a bit, the legal mumbo-jumbo doesn't prove anything other than what someones 'best guess' is as to whats really going on. The confusion on the part of the 'DBS talk legal team' in terms of 'what a buffer is' proves that...

Pardon my tone here, but I am just trying to help...


----------



## vampz26

Mainer_ayah said:


> read this:
> http://mcsmith.blogs.com/eastern_district_of_texas/2008/12/swearing-in-of-new-clerks-patent-case-status-conferences.html


Thats EXCELLENT News!

Thanks for that. I guess I'm not the only one who see's the problem. I'm also not surprised that the state of Texas was on top of implementing a solution, all things considered thats its about to become the 'graceland' for IP law pretty soon based on this case.

Of course finally recognizing the need for technical expertise within the legal system above and beyond your usual expert-witness testimony may be a little to late in the game for this particular case. Regardless of who goes down in flames here, at least this is hope that a better legal system could rise out of the ashes...


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## James Long

I wish they were Judge Folsom's clerks ... but hopefully his are as skilled as the one's mentioned.


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## vampz26

James Long said:


> I wish they were Judge Folsom's clerks ... but hopefully his are as skilled as the one's mentioned.


Doubtful...if it was common practice to hire clerks with such a wide breadth of technical skills, they wouldn't have made such a big deal out of it this time around...

I'm taking this as validation to my claims of the legal system being fundamentally flawed with regards to IP litigation in general, and Texas recognizing that in light of the Tivo/Dish fiasco and doing something about it.

But like I said, it may just be a little to late for making certain the outcome of this Tivo/Dish trial is fair and just. The infusion of any actual "technical expertise" on the part of the courts would probably do more harm than good this late in the game...


----------



## Mainer_ayah

vampz26 said:


> Doubtful...if it was common practice to hire clerks with such a wide breadth of technical skills, they wouldn't have made such a big deal out of it this time around...
> 
> I'm taking this as validation to my claims of the legal system being fundamentally flawed with regards to IP litigation in general, and Texas recognizing that in light of the Tivo/Dish fiasco and doing something about it.
> 
> But like I said, it may just be a little to late for making certain the outcome of this Tivo/Dish trial is fair and just. The infusion of any actual "technical expertise" on the part of the courts would probably do more harm than good this late in the game...


I'm afraid I'm taking quite the opposite view, which of course invalidates your opinion.


----------



## vampz26

Mainer_ayah said:


> I'm afraid I'm taking quite the opposite view, which of course invalidates your opinion.


your opposite view invalidates what your post validates...

Ok...

I'm sorry, but all I can get out of your posted blog is that somebody out there who feels exactly the way I do was actually in the position to do something about it, and made a statement. Good...it needs to be done. Hopefully other states catch on...

Take if for what you will...but you posted it...all I can say is thank you.


----------



## phrelin

It's a great trend (I hope its a trend), but it takes years to restructure precedent with new appellate case law decisions. Won't help much in this case. Still, it's a start....


----------



## jacmyoung

There are a few basic concepts to address.

1) The software was adjudged, just like the hardware were adjudged. I think Greg's mistake is he thinks because the name of the 8 models of the DVRs were mentioned in the injunction, therefore only the DVRs were adjudged. Just because something is not mentioned in the injunction, does not mean it was not adjudged. The old software was adjudged to have infringed. The judge just did not care to mention it in the injunction. Now he is mentioning it, there is nothing TiVo can do about it. The judge can even lift his injunction, and then put a new injunction in to mention the old software, if TiVo likes to insist.

2) Even if one cannot understand a buffer does not perform the same function, in the same way, and achieve the same result, as the parsed MPEG stream data being temporarily stored in the index file for the purpose of being used during DVR tickplays. One must at least accept this concept, as long as there are the differences, the question is if those differences are more than colorable, and to answer that question is to ask, if the differences have raised substantial open issues as whether infringement still exists.

During the last trial, the two things, and the only two things, TiVo said proved E*'s old design's infringement, were this so called "indexing method" and the "automatic flow control" or "self-regulating" performed by this so called "media switch".

The only two things TiVo said to be the evidence that proved infringement, are now gone. Never mind the details what does "parse" mean, or "buffer" mean, or "temoporay stored" mean. The question is whether the removal of the only two pieces of evidence that proved infringement for TiVo last time has raised substantial open issues as whether infringement still exists or not.

If someone was convicted of murder, because he was last seen eating and talking with the victim, and had an argument with the victim, and even said something about he wished the victim were dead, *and* because they found his finger prints at the scene and on the gun that was left at the scene, and one witness testified he saw the accused walking away from the scene. If on appeal, new evidence points out that there was no gun involved in the killing, the victim died of stroke, and that the witness turned out legally blind, meaning the two pieces of evidence that proved murder are now gone. Can you honestly tell me you now still do not have any doubt as whether the accused is the killer, never mind all the other details? Remember the only thing needed in a contempt proceeding is that doubt. Once there is the doubt, the judge cannot find a contempt.

Now at this point if your answer is still no, no doubt the infringement is still there, then good luck to you, that is all I can say.


----------



## Curtis52

Appeals Court re software claim:


> Based on both intrinsic and extrinsic evidence, the court concluded that "in accordance with its ordinary meaning" the term "source object" means "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."
> 
> "We discern no error in the district court's claim construction."


----------



## tracyball

jacmyoung said:


> I used to think Judge Folsom this way but not as much so now
> 
> Remember when the judge's first order came I said it was inappropriate, that the analysis should have been colorable issue, not infringement issue, if it was a part of the contempt proceeding? And it could not be a bench trial?
> 
> For now I am half proven already because the judge now added software colorable issue as the first order of the hearing and decided not to call it a bench trial.
> 
> Whether E* will still appeal or not I don't know but if they do, my bet is judge's current order, at least the second one, and the extent of the hearing, will be overturned too.
> 
> The reason is that a summary contempt proceeding is not designed to resolve complex issues, and let me quote the Federal Circuit:
> 
> "...the modifying party generally deserves the opportunity to litigate the infringement question at a new trial, 'particularly if expert and other testimony subject to cross-examination would be helpful or necessary.' "
> 
> I hope you agree that Judge Folsom does believe, by the description of his hearing order, that he thinks expert testimonies and cross examinations are necessary or helpful?


Don't these questions have to be resolved before Folsom within the original lawsuit in order to calculate damages? Wouldn't it be inappropriate to litigate this question in Deleware?


----------



## Greg Bimson

jacmyoung said:


> There are a few basic concepts to address.
> 
> 1) The software was adjudged, just like the hardware were adjudged.


No, pieces of each were adjudged. The *receiver* was found to infringe. I could direct you back to the jury forms.


jacmyoung said:


> 2) Even if one cannot understand a buffer does not perform the same function, in the same way, and achieve the same result, as the parsed MPEG stream data being temporarily stored in the index file for the purpose of being used during DVR tickplays.


Obfuscation.

So DISH/SATS removed the index file. They removed that index file in an attempt to stop pre-storage _analysis_. Except the analysis function was also being done by the parser in the form of the PID filter.

*AGAIN*, DISH/SATS has made two claims:
1) the receivers no longer analyze
2) the software does not self-regulate

There is no temporary storage or buffer limitation which DISH/SATS has argued they no longer meet. DISH/SATS has only claimed they no longer do the two components I have just listed.


----------



## scooper

Christ Greg - Get off that thought that PID filtering is analysis for the DVR function - it plainly is not - it is a function of SATELLITE, OTA, and CABLE TUNER function.


----------



## Curtis52

Re PID parsing ...

Dish and the appeals court spent a lot of time considering whether the patent covered MPEG vs whether it covered analog signals. One might ask what possible difference the type of input signal has on DVR functions. It would seem to be a tuner function. I guess they thought it makes a difference. It is analgous.


----------



## CuriousMark

scooper said:


> Christ Greg - Get off that thought that PID filtering is analysis for the DVR function - it plainly is not - it is a function of SATELLITE, OTA, and CABLE TUNER function.


No matter how much you may wish it will not be discussed in this upcoming hearing, it almost surely will. Discussing it here gives a foretaste of what will be coming. I take your argument as a foreshadowing of what Dish will say about it. Please allow the others to provide their opinions also, as those will likely foreshadow TiVo's arguments.

I believe Curtis is right here, in the original trial much attention was given to things that could have been logically blocked as receiver functions, but were discussed in the context of the DVR functions. I think that will also be true here.

Earlier you modularized PID filtering into a "receiver block" that was the same for a receiver or DVR. It can also logically be argued that PID filtering is part of a central processing block. In a receiver that block selects the channel data and passes it to a decoder for playback. In a DVR that block selects that channel data and passes it to a HD for storage. It later reads the HD and passes the data to a decoder for playback. In that logical block structure the PID filter is not part of the receiver. There is no reason beyond a desire for elegance of design, to choose one organizational block structure over another. Furthermore patent discussions are completely agnostic to these structural organization issues, looking only at the DOE tests or claim constructions, depending on what kind of legal analysis is being done. So, in the end, how you group things doesn't even matter.

I do believe we will see your logic in Dish's briefs, we will also see some of Jac Young's there too. I believe we will see some of Greg's logic in TiVo's briefs. Please, allow all points to be made without derision so we can read and judge for ourselves.


----------



## Greg Bimson

scooper said:


> Christ Greg - Get off that thought that PID filtering is analysis for the DVR function - it plainly is not - it is a function of SATELLITE, OTA, and CABLE TUNER function.





> 61. An apparatus for the simultaneous storage and play back of multimedia data, comprising:
> 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;


A box which can store and play multimedia data, at the same time, with:

a physical data source, which *receives* a braodcast, analyzes the broadcast for video and audio data (the PID), and temporarily stores that video and audio data.

Heck, the patent even mentions MPEG, which in and of itself is another patent.


----------



## scooper

CuriousMark said:


> No matter how much you may wish it will not be discussed in this upcoming hearing, it almost surely will. Discussing it here gives a foretaste of what will be coming. I take your argument as a foreshadowing of what Dish will say about it. Please allow the others to provide their opinions also, as those will likely foreshadow TiVo's arguments.
> 
> I believe Curtis is right here, in the original trial much attention was given to things that could have been logically blocked as receiver functions, but were discussed in the context of the DVR functions. I think that will also be true here.
> 
> Earlier you modularized PID filtering into a "receiver block" that was the same for a receiver or DVR. It can also logically be argued that PID filtering is part of a central processing block. In a receiver that block selects the channel data and passes it to a decoder for playback. In a DVR that block selects that channel data and passes it to a HD for storage. It later reads the HD and passes the data to a decoder for playback. In that logical block structure the PID filter is not part of the receiver. There is no reason beyond a desire for elegance of design, to choose one organizational block structure over another. Furthermore patent discussions are completely agnostic to these structural organization issues, looking only at the DOE tests or claim constructions, depending on what kind of legal analysis is being done. So, in the end, how you group things doesn't even matter.
> 
> I do believe we will see your logic in Dish's briefs, we will also see some of Jac Young's there too. I believe we will see some of Greg's logic in TiVo's briefs. Please, allow all points to be made without derision so we can read and judge for ourselves.


The whole "analysis" that Tivo calls part of their patented process is the "media switch" and the pre-parsing of the streams with the index file. THAT is what makes "PID filtering" totally out of the DVR process.

Why else does that block diagram of functions work so well ? All you have to do is substitute the different tuners as input sources and the rest of of the Tivo DVR process just keeps working.


----------



## jacmyoung

Curtis52 said:


> Appeals Court re software claim:


Curtis if you have not noticed yourself, the quote you used above was to define the "source object", not "temporary storage device".

Each term in the claim constructions was given careful definitions. And if one reads how the "meeting of the steps" was done, there was no jumping from one definition to the other, in another word, no "over-reaching". That is why the courts go through great length to define *each and every* term used, not just a few and use them to cover every other term.


----------



## tracyball

scooper said:


> The whole "analysis" that Tivo calls part of their patented process is the "media switch" and the pre-parsing of the streams with the index file. THAT is what makes "PID filtering" totally out of the DVR process.
> 
> Why else does that block diagram of functions work so well ? All you have to do is substitute the different tuners as input sources and the rest of of the Tivo DVR process just keeps working.


scooper: I am not trying to insult you by asking the following question. I am just coming at this as a newbie who is following the case with interest. Did you argue for or against infringement before the appeal was upheld last spring. In other words, what is your track record in predicting the decision made by the court relative to this case?

The reason for the question - is that I have no technical expertise to make a judgement regarding what you are arguing may be adopted by the court.

I have observed that curtis's opinion regarding the contempt motion was spot on since last spring.

Respectfully,
Tracy Ball


----------



## Greg Bimson

scooper said:


> The whole "analysis" that Tivo calls part of their patented process is the "media switch" and the pre-parsing of the streams with the index file. THAT is what makes "PID filtering" totally out of the DVR process


You're right...


> *1.* A process for the simultaneous storage and play back of multimedia data, comprising the steps of:
> 
> [...]
> 
> providing a Media Switch, wherein said Media Switch parses said MPEG stream, said MPEG stream is separated into its video and audio components; [...]
> 
> *32.* An apparatus for the simultaneous storage and play back of multimedia data, comprising:
> 
> [...]
> 
> a Media Switch, wherein said Media Switch parses said MPEG stream, said MPEG stream is separated into its video and audio components;


Except your point is only valid on Claim 1 and 32, two of the primary "Hardware Claims" which are not being pursued. These were the claims which were reversed, remanded, and which Judge Folsom attempted to find continuing infringement until TiVo stipulated they do not wish to pursue these claims.

Your point, however, is invalid on Claims 31 and 61 which I have posted numerous times.


----------



## jacmyoung

Greg Bimson said:


> No, pieces of each were adjudged. The *receiver* was found to infringe. I could direct you back to the jury forms.


I will be more than happy to read TiVo's response to E*'s appeal, or TiVo's own appeal, as you argued they should do, and see if your such reasoning be used by TiVo. And remember TiVo once argued the modification did not even matter, it was about disobeying the order, how well did TiVo do on that one?

Remember, both you and Curtis have so far been arguing on the points that TiVo *never even had raised*. TiVo did not make the point of "buffer=temporay storage device", TiVo did not mention hey the word "index", or the term "media switch" were not in the software claims.

The only thing TiVo is saying, E* still uses that so called "PID analyzer" therefore still parses data, that was it. So I suggest you both stick to what TiVo is saying, instead of thinking too far ahead.

We have been saying what E* has been saying, in fact we did not even have to respond to anything you are saying that TiVo is not saying. Because the judge only looks at what each are saying in their briefs, he will not help TiVo nor E* by filling any holes for them.



> Obfuscation.
> 
> So DISH/SATS removed the index file. They removed that index file in an attempt to stop pre-storage _analysis_. Except the analysis function was also being done by the parser in the form of the PID filter.
> 
> *AGAIN*, DISH/SATS has made two claims:
> 1) the receivers no longer analyze
> 2) the software does not self-regulate
> 
> There is no temporary storage or buffer limitation which DISH/SATS has argued they no longer meet. DISH/SATS has only claimed they no longer do the two components I have just listed.


Who cares? Do you want me to qoute that case E* cited in the stay request again?

Or maybe you can just try to read it yourself, and pay close attention to the parts where the Appeals Court compared the old furniture design with the new furniture design.

And let me point out that in comparing the two designs, the court never even mentioned the patent, much less the steps, the claims, or any details in the terms used in the patent claims.

All they did was to compare the two designs actual appearances and to see if they were indeed *different*, and once they noticed such differences, that was enough. In fact so much so that they even vacated the district judge's no-infringement finding, because the decision went too far, was "*premature*".

So let me borrow the higer court own words, it is premature to even talk about those definitions, terms, claims constructions, heck it is even premature to think for TiVo at this point.

Wait to see what TiVo is going to say first, then we can talk about what each party is actually saying. Because that will be all that matters anyway, if you do not believe me, ask dgordo He said so himself I think.


----------



## Curtis52

jacmyoung said:


> Curtis if you have not noticed yourself, the quote you used above was to define the "source object", not "temporary storage device".





> Claim 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;





> Judge Folsom:
> Therefore, 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, "


It is clear that a buffer is the temporary storage referred to in claim 31.


----------



## Greg Bimson

jacmyoung said:


> I will be more than happy to read TiVo's response to E*'s appeal, or TiVo's own appeal, as you argued they should do, and see if your such reasoning be used by TiVo. And remember TiVo once argued the modification did not even matter, it was about disobeying the order, how well did TiVo do on that one?


There has yet to be a decision.


jacmyoung said:


> Remember, both you and Curtis have so far been arguing on the points that TiVo *never even had raised.* TiVo did not make the point of "buffer=temporay storage device", TiVo did not mention hey the word "index", or the term "media switch" were not in the software claims.


Uh, we were countering *your* arguments.

In case it has been forgotten, the only differences, used as a defense against the charge of contempt, was DISH/SATS statement that their receivers no longer analyze pre-storage and there is no longer any "automatic flow control". It is *you* that made the point that there is no longer a "temporary storage device", which even according to DISH/SATS there still is. DISH/SATS had several and now went to one buffer.


jacmyoung said:


> The only thing TiVo is saying, E* still uses that so called "PID analyzer" therefore still parses data, that was it. So I suggest you both stick to what TiVo is saying, instead of thinking too far ahead.


Except TiVo also stated that the software self-regulates, which is part of the claim construction in this trial.


----------



## Curtis52

jacmyoung said:


> TiVo did not mention hey the word "index", or the term "media switch" were not in the software claims.


Are you sure?

TiVo 07-18-08:


> EchoStar also devotes much attention to "indexing," the "Media Switch," and the concept of separation. Opp. at 3-4 (citing trial testimony relating to claim 1). But claims 31 and 61 do not include limitations requiring indexing, separation, or a Media Switch.


----------



## scooper

tracyball said:


> scooper: I am not trying to insult you by asking the following question. I am just coming at this as a newbie who is following the case with interest. Did you argue for or against infringement before the appeal was upheld last spring. In other words, what is your track record in predicting the decision made by the court relative to this case?
> 
> The reason for the question - is that I have no technical expertise to make a judgement regarding what you are arguing may be adopted by the court.
> 
> I have observed that curtis's opinion regarding the contempt motion was spot on since last spring.
> 
> Respectfully,
> Tracy Ball


I don't think I started following this too close until the runups to the 5/30 hearing. Or maybe the one just before that. I know I haven't been following the whole case with this kind of intensity. What reading I DID do is directly why I have that sig...

(added later)
In regards to the "Did Echostar infringe ?" - certainly did with the old software. And as that is the case, they need to pay for that infringement.

Regarding the "new software" - after having read the briefs filed for the 5/30 hearing and those since (as well as Echostar's patent application) - I don't believe so, on any front. Literal or DOE. And I do believe the new software is more than colorably different => Tivo will need a new trial to prove infringement.


----------



## Ergan's Toupe

Greg Bimson said:


> There has yet to be a decision.Uh, we were countering *your* arguments.
> 
> In case it has been forgotten, the only differences, used as a defense against the charge of contempt, was DISH/SATS statement that their receivers no longer analyze pre-storage and there is no longer any "automatic flow control". It is *you* that made the point that there is no longer a "temporary storage device", which even according to DISH/SATS there still is. DISH/SATS had several and now went to one buffer.Except TiVo also stated that the software self-regulates, which is part of the claim construction in this trial.


Apparently Jacy is a better armchair lawyer than an armchair engineer.


----------



## tracyball

scooper said:


> I don't think I started following this too close until the runups to the 5/30 hearing. Or maybe the one just before that. I know I haven't been following the whole case with this kind of intensity. What reading I DID do is directly why I have that sig...


Respectfully,
Thanks


----------



## peak_reception

jacmyoung said:


> We have been saying what E* has been saying, in fact we did not even have to respond to anything you are saying that TiVo is not saying. *Because the judge only looks at what each are saying in their briefs, he will not help TiVo nor E* by filling any holes for them*.


 That would've made good sense a month ago, before Judge Folsom ordered a new bench trial bringing back the hardware DOE issue all on his own initiative. Clearly this Judge was not shy about "filling holes" then. He may well be now.


----------



## Greg Bimson

Ergan's Toupe said:


> Apparently Jacy is a better armchair lawyer than an armchair engineer.


And even that is somewhat suspect. 

I'm the one that stated a bench trial could be used to find infringement of the hardware claims based upon the doctrine of equivalents, and I'm also the one that stated it was immaterial since DISH/SATS no longer uses the Media Switch. I was completely correct, as that is exactly what has happened.

And the newest theory from jacmyoung is that TiVo cannot motion or appeal this bench order to find colorable difference in only the software.

Don't get me wrong, jacmyoung did get a bit of this right. But when the lawyering is based upon the "cooking pasta" method, i.e., throw anything against the wall until something sticks, you'll see that pitchers have a better average in getting a hit...


----------



## peak_reception

Greg Bimson said:


> I'm the one that stated a bench trial could be used to find infringement of the hardware claims based upon the doctrine of equivalents, and I'm also the one that stated it was immaterial since DISH/SATS no longer uses the Media Switch. I was completely correct, as that is exactly what has happened.


 I'm not used to seeing such modesty from you Greg 


> Don't get me wrong, jacmyoung did get a bit of this right.


 You mean about prima facie contempt now being effectively gone?


----------



## Greg Bimson

Yes.


----------



## scooper

vampz26 said:


> Thats EXCELLENT News!
> 
> Thanks for that. I guess I'm not the only one who see's the problem. I'm also not surprised that the state of Texas was on top of implementing a solution, all things considered thats its about to become the 'graceland' for IP law pretty soon based on this case.
> 
> Of course finally recognizing the need for technical expertise within the legal system above and beyond your usual expert-witness testimony may be a little to late in the game for this particular case. Regardless of who goes down in flames here, at least this is hope that a better legal system could rise out of the ashes...


Helps one part - still does nothing for the "techincally inept" pool we have for most jurors.


----------



## scooper

peak_reception said:


> You mean about prima facie contempt now being effectively gone?


Prima Facie was nothing but a "Hail Mary" - when Tivo's council mentioned "Walker Vs. Birmingham" (a civil rights case) it was a non-starter and did nothing but waste time.


----------



## phrelin

scooper said:


> Helps one part - still does nothing for the "techincally inept" pool we have for most jurors.


Yeah. We've kinda reached a point in this patent stuff that it's like selecting 12 folks off the street to listen to physicists arguments about string theory and then judge who's argument is correct.:sure:


----------



## jacmyoung

Greg Bimson said:


> Yes.


And that "yes" I hope was to admit I was proven correct on one thing?

And how many yeses have you got? None. You seemed to imply that all the above arguments you made were already proven, you must be kidding me. If so where is the contempt ruling?

As I said, before you try to take credit for things that has not happened yet, be patient, do not make the same mistake that was made before, aruging that once infringing products, always infrining products, as if just because you argued so it was proven already. You were wrong.

And now you just said you were correct that the bench trial was necessary? Kidding me again I suppose, unless you have not noticed the judge abandoned his "bench trial" and now calls it an "evidentiary hearing"? You were wrong again without even realizing it.

One more thing, I never said TiVo may not appeal, please do not put words in my mouth, you have done so many times.

What I said was, TiVo has yet argued the software was not adjudged, so how about we wait till TiVo does so before cheering your own successful argument?

While Curtis correctly pointed out that TiVo did mention the "index file" and the "media switch" were not in the claims, but TiVo had very short memory, TiVo themselves insisted during the trial that it was those two items that proved E*'s old software infringed.

Do you really believe the judge will buy TiVo's such argument that the evidence used in the jury trial, cannot be used now?

And let's not forget, today, TiVo's proof is by clear and convincing evidence, a much higher standard of proof than in the jury trial, and without the two center pieces of evidence to be around to help them either.

And let's also remember, I know both you and Curtis would really like to ignore it, in the case E* cited, the Appeals Court had given the district court judges the colorable difference lesson 101, as how they should be doing such colorable difference analyses, and what kind of analyses they may not do in a contempt proceeding.

Ignore that lesson at TiVo's own peril I guess, if TiVo has not learned the "on-the-face" lesson yet.

TiVo might have won already a long time ago, if Charlie were just like RIM (in the Blackberry case) that quit the moment the judge threatened them with something. If anything you should know Charlie by now. If TiVo even wants to get what they want, be prepared to make successful arguments. You have lost two for two so far, that is not the end of the road of course, but please don't continue to walk on the same path that got you to a dead end in the first place, such as simply ignore the Appeals Court's standards and rules, and hoping some miracle would happen, such as Judge Folsom is trying to make history, or Charlie will fold any time now, or else he is going to pay real big, and hoping that will scare him to submission.

While I am saying all the above, please know that I will not be surprised if they settle either, I have said many times before, E* and TiVo working together will benefit both of them tremendously. But a legal argument is a legal argument, it has to be base on the case law, what the boss is saying, not what TiVo is saying.


----------



## Ergan's Toupe

Greg Bimson said:


> Yes.


Even a blind squirrel finds an acorn every once in a while. :grin:


----------



## Ergan's Toupe

scooper said:


> Prima Facie was nothing but a "Hail Mary" - when Tivo's council mentioned "Walker Vs. Birmingham" (a civil rights case) it was a non-starter and did nothing but waste time.


A "Hail Mary" implies that if it didn't work the "game" was over.

While I agree that it was a waste of time I't wasn't a "Hail Mary". It was the path of least resistance and you can't blame them for trying to end this BS quickly. If it worked you would have had to give Chu his props.


----------



## jacmyoung

Ergan's Toupe;1912548 said:


> Even a blind squirrel finds an acorn every once in a while. :grin:


What does that say about a squirrel with perfect eye sight that has yet found one acorn so far?


----------



## jacmyoung

Ergan's Toupe;1912554 said:


> A "Hail Mary" implies that if it didn't work the "game" was over.
> 
> While I agree that it was a waste of time I't wasn't a "Hail Mary". It was the path of least resistance and you can't blame them for trying to end this BS quickly. If it worked you would have had to give Chu his props.


The "on-the-face" game is over.


----------



## Greg Bimson

jacmyoung said:


> And that "yes" I hope was to admit I was proven correct on one thing?
> 
> And how many yeses have you got? None. You seemed to imply that all the above arguments you made were already proven, you must be kidding me. If so where is the contempt ruling?


What, now it is time to tear me down? I was the first to bring up that infringement via the Hardware Claims could have been adjudged in a bench trial. Then I realized because DISH/SATS new software bypasses the Media Switch that there was no use pressing on infringement of those Hardware Claims. TiVo has agreed not to press on the Hardware Claims; that is why Judge Folsom's order for the bench hearing is no longer concentrating on those claims.


jacmyoung said:


> One more thing, I never said TiVo may not appeal, please do not put words in my mouth, you have done so many times.


From your own argument:


> This E*'s *threat of appeal* has already succeeded in verifying E*'s past argument.
> 
> Up to this new modified order, TiVo was saying the judge's injunction meant this, E* was saying he meant that. Now the judge had said what he really meant, was to *disable the old software*.
> 
> He has given us the answer. Whether you like it or not, his answer is his answer, unless TiVo now wishes to challenge the injunction, but it is too late according to TiVo.


"but it is too late" "to challenge the injunction" is a heck of an argument.

No offense, but this is legal diarrhea, thrown up against a wall to see what sticks...

DISH/SATS did not like Judge Folsom's order, so they asked for an emergency stay so they could appeal. Lo and behold, the order has been modified. I suspect TiVo will do the same now that only the software will be adjudged for colorable difference, as the software was not the infringing item in question.


> While Curtis correctly pointed out that TiVo did mention the "index file" and the "media switch" were not in the claims, but TiVo had very short memory, TiVo themselves insisted during the trial that it was those two items that proved E*'s old software infringed.


No, TiVo simply proved to a jury that those two items met the limitations given in the step or component of the claim. And it was the claim that was later overturned by the appeals court.

TiVo also proved that the PID analysis met the limitation of the "parse" claim during the trial, too. Yet everyone here forgets that it is a fact of the case, feeling the need to continually argue the point.


----------



## Curtis52

jacmyoung said:


> While Curtis correctly pointed out that TiVo did mention the "index file" and the "media switch" were not in the claims, but TiVo had very short memory, *TiVo themselves insisted during the trial that it was those two items that proved E*'s old software infringed.*


Those two items are necessary to infringe the *hardware* claims.


> Per Dish: *The "Hardware Claims" of the '389 patent require a Media Switch* that "parses" the incoming television programming data; the Court construed "parse," at TiVo's urging, to mean "analyze." (Claim Construction Order (Docket No. 185) at 17.) As inventor James Barton explained, the Media Switch "analyzes" the television programming data to create a table or *index* that facilitates efficient retrieval of the data when trick-play functions, such as fast-forward, rewind, and pause, are utilized. (Krevans Ex. C (3/30/06 AM Trial Tr.) at 26:5-15; 29:8-22; 47:1-4.) As Mr. Barton testified:
> 
> "Trickplay operations would be very crude, or we would need a very powerful processor." (Id. at 29:23-30:2.)


Dish has apparently chosen the "crude" method which is covered by the software claims.


----------



## Ergan's Toupe

jacmyoung said:


> The "on-the-face" game is over.


Who cares? 

Last time I checked Folsom hasn't ruled either way and that means "game on". In other words, no reason for a "Hail Mary".


----------



## Curtis52

jacmyoung said:


> Curtis correctly pointed out that TiVo did mention the "index file" and the "media switch" were not in the claims


Is that statement in lieu of saying that you were wrong about it?


----------



## Ergan's Toupe

jacmyoung said:


> And how many yeses have you got? None. You seemed to imply that all the above arguments you made were already proven, you must be kidding me. If so where is the contempt ruling?


All hail the great and mighty Jacmyoung. :bowdown:

We are waiting for Folsom to rule on the contempt motion. You're not still saying Folsom ruled "no contempt" are you? :eek2: I thought we were past that 400 posts ago? :nono2:


----------



## jacmyoung

Greg Bimson said:


> What, now it is time to tear me down? I was the first to bring up that infringement via the Hardware Claims could have been adjudged in a bench trial. Then I realized because DISH/SATS new software bypasses the Media Switch that there was no use pressing on infringement of those Hardware Claims. TiVo has agreed not to press on the Hardware Claims; that is why Judge Folsom's order for the bench hearing is no longer concentrating on those claims.


Therefore you were wrong, because the hardware claims are not in the game, and there is no bench trial either. Sounds like three wrongs now.



> From your own argument:"but it is too late" "to challenge the injunction" is a heck of an argument.
> 
> No offense, but this is legal diarrhea, thrown up against a wall to see what sticks...


At least I had one that stuck, come back when you find one of yours that sticks.

BTW, when I said it was too late to challenge it, I meant TiVo should have asked the judge to put such words in the injucntion: To disable the DVR functions under any software, old or new. It is too late to do so now the judge said he really meant to disable the DVR functions under the old software. There is nothing TiVo can do about it.



> DISH/SATS did not like Judge Folsom's order, so they asked for an emergency stay so they could appeal. Lo and behold, the order has been modified. I suspect TiVo will do the same now that only the software will be adjudged for colorable difference, as the software was not the infringing item in question.No, TiVo simply proved to a jury that those two items met the limitations given in the step or component of the claim. And it was the claim that was later overturned by the appeals court.
> 
> TiVo also proved that the PID analysis met the limitation of the "parse" claim during the trial, too. Yet everyone here forgets that it is a fact of the case, feeling the need to continually argue the point.


Oh yeah, according to you, you had absolutely no doubt TiVo had proved E* violated the second order by not disabling the DVR functions. TiVo was wrong, so please wait before you say "TiVo also proved...".


----------



## jacmyoung

Curtis52 said:


> Those two items are necessary to infringe the *hardware* claims.
> 
> Dish has apparently chosen the "crude" method which is covered by the software claims.


The "automatic flow control" in the software claims is performed by the "media switch", and since TiVo seemed not to dispute the media switch is gone, the logical conclusion is the "automatic flow control" in the software claims are gone also, whether TiVo wants to avoid mentioning it or not.


----------



## jacmyoung

Curtis52 said:


> Is that statement in lieu of saying that you were wrong about it?


For the hardware claims only, according to yourself. We are now talking about the software claims, and the only thing TiVo has is this "PID analyzer", again using your own argument.

BTW, I have admitted wrong many times before, you wouldn't find me shy from saying I am wrong


----------



## Greg Bimson

jacmyoung said:


> Therefore you were wrong, because the hardware claims are not in the game, and there is no bench trial either. Sounds like three wrongs now.


There WAS an order for a bench trial which would have evaluated the Hardware Claims. It COULD have been done, but I stated that it wasn't necessary BECAUSE the modification disabled the index file and the Media Switch. Not so wrong.


jacmyoung said:


> BTW, when I said it was too late to challenge it, I meant TiVo should have asked the judge to put such words in the injucntion: To disable the DVR functions under any software, old or new. It is too late to do so now the judge said he really meant to disable the DVR functions under the old software. There is nothing TiVo can do about it.


As you so eloquently state...


jacmyoung said:


> ...so please wait...


Because nothing has been determined as _too late_...


jacmyoung said:


> Oh yeah, according to you, you had absolutely no doubt TiVo had proved E* violated the second order by not disabling the DVR functions. TiVo was wrong, so please wait before you say "TiVo also proved...".


1) There has yet to be a ruling, so TiVo isn't wrong YET.
2) TiVo had "also proved" that PID filtering is analysis. That happened during the original trial.


----------



## jacmyoung

Greg Bimson said:


> There WAS an order for a bench trial which would have evaluated the Hardware Claims. It COULD have been done, but I stated that it wasn't necessary BECAUSE the modification disabled the index file and the Media Switch. Not so wrong.


Could have would have, I said E* could have gotten a no contempt on 9/4, I was wrong, who cares why? A wrong is a wrong.



> As you so eloquently state...Because nothing has been determined as _too late_...1) There has yet to be a ruling, so TiVo isn't wrong YET.


Too late to change the injunction.

TiVo was wrong on the "on-the-face" argument, so were you, suck it up and move on.



> 2) TiVo had "also proved" that PID filtering is analysis. That happened during the original trial.


TiVo got the E* lawyer to admit that PID analyzer also met the "parsing" definition, but the PID analyzer was never used as the evidence to prove E*'s old software met Step One, it was that "indexing method" did E* in, because the indexing method required the MPEG streams be first parsed, then the ID marker information be stored in an index file temporarily, just as what the Step One described.


----------



## Curtis52

jacmyoung said:


> The "automatic flow control" in the software claims is performed by the "media switch"


What media switch? There is no media switch in the software claims.


----------



## Curtis52

jacmyoung said:


> For the hardware claims only, according to yourself. We are now talking about the software claims, and the only thing TiVo has is this "PID analyzer", again using your own argument.


I have read the above several times and I can't parse it to make sense.

Here is what you said:


> TiVo did not mention hey the word "index", or the term "media switch" were not in the software claims.


Was that statement wrong?


----------



## jacmyoung

Curtis52 said:


> What media switch? There is no media switch in the software claims.


Ask the TiVo star witness, don't ask me.

What do you think that was performing "automatic flow control"? Please don't tell me they did not even know what performed the "automatic flow control" in E*'s old software and yet was able to prove the old software did automatic flow control.


----------



## Greg Bimson

jacmyoung said:


> TiVo got the E* lawyer to admit that PID analyzer also met the "parsing" definition, but the PID analyzer was never used as the evidence to prove E*'s old software met Step One...


Of course the PID analyzer was never used to prove DISH/SATS old software met "Step One". That's because the PID analyzer is not software, and it did meet the limitation in "Step One".

Now we are in the "arguing for the sake of arguing" phase.


----------



## jacmyoung

Curtis52 said:


> I have read the above several times and I can't parse it to make sense.
> 
> Here is what you said:
> 
> Was that statement wrong?


Because you said the index method and the media switch were only used in the hardware claims argument, not in the software argument, that was a new thing to me, I admit I was wrong if it is true.

Now please tell me what exactly were the evidence used in the software claims argument again? I am all ears.


----------



## jacmyoung

Greg Bimson said:


> Of course the PID analyzer was never used to prove DISH/SATS old software met "Step One". That's because the PID analyzer is not software, and it did meet the limitation in "Step One".
> 
> Now we are in the "arguing for the sake of arguing" phase.


Not true at all, now the judge said he needs to find if the new *software* is more than colorably different than the old *software*. According to you the reason the PID analyzer was not used in the trial was because it is *not a software*, correct so far?

How in the world do you now expect TiVo to use the PID analyzer to then prove anything on this *software* colorable issue?


----------



## Curtis52

jacmyoung said:


> What do you think that was performing "automatic flow control"?


Was? There is no tense in the claims.

It doesn't matter what performs the automatic flow control. It's a process. The only thing that is specified in the claim is that it is done.


----------



## jacmyoung

Curtis52 said:


> Was? There is no tense in the claims.
> 
> It doesn't matter what performs the automatic flow control. It's a process. The only thing that is specified in the claim is that it is done.


Done by what? Are you suggesting in this country one needs no evidence to find another person guilty of an action? Using your own words: "This ain't Russia." In fact even in Russia it will not work.


----------



## Greg Bimson

jacmyoung said:


> How in the world do you now expect TiVo to use the PID analyzer to then prove anything on this software colorable issue?


Because you have decided to argue rather than read:


Greg Bimson said:


> However, if one compares:
> The old software on DVR's ruled infringing
> to
> the new software on DVR's ruled infringing
> then there is a *difference*.
> 
> The new software does not *analyze*, compared to the old software.
> 
> That's why DISH/SATS has been telling everyone their new *software* does not infringe. It is because is most likely, as software only, does not.
> 
> That's why TiVo has been telling everyone the modifications still infringe, because the *receivers* with modified software still perform the two infringed claims in the patent in practcially the same way as they did before. That is why I expect TiVo to file an emergency motion with Judge Folsom's court on Monday.
> 
> *The modified order from Judge Folsom is dead wrong*; there wasn't "adjudicated software" but there were adjudicated receivers, with software and hardware parts found to infringe each of the primary claims.


----------



## jacmyoung

Greg Bimson said:


> Because you have decided to argue rather than read:


Using Russia's color (ok the past Russia's color) will not help you much unless the so called dead wrong thing is proven dead wrong.

You said it was dead wrong to say modification may avoid violation of the disabling order, you were dead wrong. Care to wage another bet on this new one?


----------



## Greg Bimson

jacmyoung said:


> You said it was dead wrong to say modification may avoid violation of the disabling order, you were dead wrong. Care to wage another bet on this new one?


Can't be proven until it happens, like a ruling on a violation of the disabling order. There has been no ruling on this case to come out of Judge Folsom's court since September, 2006.


----------



## jacmyoung

Greg Bimson said:


> Can't be proven until it happens, like a ruling on a violation of the disabling order. There has been no ruling to come out of Judge Folsom's court since September, 2006.


So what was that "yes" about?

I thought you admitted you were wrong about infringing products may not be modified to be non-infringing?

So why is the judge looking into the new software and the old software now to determine the "on-the-face" contempt? Oh I know, because this time the judge is dead wrong.

Well at least it is not me that is dead wrong this time, what a relief.


----------



## Curtis52

jacmyoung said:


> Because you said the index method and the media switch were only used in the hardware claims argument, not in the software argument, that was a new thing to me, I admit I was wrong if it is true.
> 
> Now please tell me what exactly were the evidence used in the software claims argument again? I am all ears.


Your comment was about what TiVo supposedly (according to you) didn't say. It doesn't matter what I say or don't say. Once again, here is what you said:


jacmyoung said:


> TiVo did not mention hey the word "index", or the term "media switch" were not in the software claims.


Here is what TiVo said:


> TiVo 07-18-08:
> "EchoStar also devotes much attention to "indexing," the "Media Switch," and the concept of separation. Opp. at 3-4 (citing trial testimony relating to claim 1). But claims 31 and 61 do not include limitations requiring indexing, separation, or a Media Switch."


----------



## jacmyoung

Curtis52 said:


> Your comment was about what TiVo supposedly (according to you) didn't say. It doesn't matter what I say or don't say. Once again, here is what you said:
> 
> Here is what TiVo said:


You are avoiding my question, what evidence did TiVo use to prove the software claims steps were met? If not the index method, not the media switch, and according to Greg, also not the PID analyzer, then what?

You don't know or you just do not want to admit it was the same things? Because the software claims and the hardware claims are interconnected, based on the exact same patented DVR technology. The court only separated them into two groups for whatever the reason I don't know.

But if by doing so the court had created a condition that infringement was proven without any evidence at all (since the software claims are the only ones standing), then you can see the problem we are facing can't you?


----------



## Ergan's Toupe

jacmyoung said:


> Using Russia's color (ok the past Russia's color) will not help you much unless the so called dead wrong thing is proven dead wrong.
> 
> You said it was dead wrong to say modification may avoid violation of the disabling order, you were dead wrong. Care to wage another bet on this new one?


Really? When did Folsom rule?


----------



## Ergan's Toupe

jacmyoung said:


> st it is not me that is dead wrong this time, what a relief.


Once again, that's your opinion. :grin:


----------



## Curtis52

jacmyoung said:


> Done by what? Are you suggesting in this country one needs no evidence to find another person guilty of an action? Using your own words: "This ain't Russia." In fact even in Russia it will not work.


I am having a hard time following what you write. The transform object is what provides the automatic flow control.


> "this Court construes the term "transform object" as "a collection of data and operations that transforms the form of data upon which it operates."


----------



## jacmyoung

Curtis52 said:


> I am having a hard time following what you write. The transform object is what provides the automatic flow control.


Really, I do not see anything about "automatic flow control" in there at all, nice try.

Just to help you a little, "automatic flow control"="self-regulating". So go look for those words. While you are at it, please do not forget that word "parse". Just remember the PID analyzer was not the evidence back then.


----------



## Curtis52

jacmyoung said:


> You are avoiding my question, what evidence did TiVo use to prove the software claims steps were met?


Why are you trying to change the subject?

You said TiVo never said that the software claims didn't include the word "index" or the term "media switch":


> *TiVo did not mention* hey the word "index", or the term "media switch" were not in the software claims.


I quoted where TiVo did make such a statement:


> *TiVo 07-18-08*:
> "EchoStar also devotes much attention to "indexing," the "Media Switch," and the concept of separation. Opp. at 3-4 (citing trial testimony relating to claim 1). But claims 31 and 61 do not include limitations requiring indexing, separation, or a Media Switch."


Why not just admit being wrong?


----------



## Ergan's Toupe

jacmyoung said:


> Really, I do not see anything about "automatic flow control" in there at all, nice try..


You wouldn't admit it if you did. :lol:


----------



## Mainer_ayah

vampz26 said:


> your opposite view invalidates what your post validates...
> 
> Ok...
> 
> I'm sorry, but all I can get out of your posted blog is that somebody out there who feels exactly the way I do was actually in the position to do something about it, and made a statement. Good...it needs to be done. Hopefully other states catch on...
> 
> Take if for what you will...but you posted it...all I can say is thank you.


If you read the blog entry, than clearly, from the writers use of present rather than future tense he is relating the ongoing status quo of the courts high standards, and not a recent shift in policy.


----------



## Ergan's Toupe

Curtis52 said:


> Why are you trying to change the subject?
> 
> You said TiVo never said that the software claims didn't include the word "index" or the term "media switch":
> 
> I quoted where TiVo did make such a statement:
> 
> Why not just admit being wrong?


This should be good for a 6000 word, 14 post rant.... :lol:


----------



## Curtis52

jacmyoung said:



> Really, I do not see anything about "automatic flow control" in there at all, nice try.
> 
> Just to help you a little, "automatic flow control"="self-regulating". So go look for those words. While you are at it, please do not forget that word "parse". Just remember the PID analyzer was not the evidence back then.


If you look at claim 31, it states that the transform object provides the automatic flow control:


> wherein said source object is automatically flow controlled *by said transform object*;





> wherein said sink object is automatically flow controlled *by said transform object*;


Those are the only mentions of automatic flow control in the claim. You asked what provides the automatic flow control. The answer is: the transform object.
What is a "transform object"? Here ya go:


> "this Court construes the term "transform object" as "a collection of data and operations that transforms the form of data upon which it operates."


I guess this statement is wrong:


jacmyoung said:


> The "automatic flow control" in the software claims is performed by the "media switch"


----------



## peak_reception

> "this Court construes the term "transform object" as "a collection of data and operations that transforms the form of data upon which it operates."


 I was about to heap scorn on what on first reading looked like gobbledygook until I consulted the online Merriman-Webster dictionary and found this definition of object:


> 6 a: a data structure in object-oriented programming that can contain functions as well as data, variables, and other data structures


 So it's not a perceptible "object" in the normal sense of the word but rather in the realm of programming jargon. Even so, "data and operations that transforms the form of data on which it operates" is beyond most everyone not in the field. No one should expect a jury, no matter how intelligent, to be able to make sense of such technical complexity. Judges too for that matter. Technically proficient law clerks may be a step in the right direction but even they can only plumb the depths of whatever field they have specialized in.


----------



## scooper

peak_reception said:


> I was about to heap scorn on what on first reading looked like gobbledygook until I consulted the online Merriman-Webster dictionary and found this definition of object: So it's not a perceptible "object" in the normal sense of the word but rather in the realm of programming jargon. Even so, "data and operations that transforms the form of data on which it operates" is beyond most everyone not in the field. No one should expect a jury, no matter how intelligent, to be able to make sense of such technical complexity. Judges too for that matter. Technically proficient law clerks may be a step in the right direction but even they can only plumb the depths of whatever field they have specialized in.


And you still want 12 jurrors off the street to decide these ?


----------



## James Long

scooper said:


> Prima Facie was nothing but a "Hail Mary" - when Tivo's council mentioned "Walker Vs. Birmingham" (a civil rights case) it was a non-starter and did nothing but waste time.


And yet the motion remains pending and answering that motion is the basis of the ongoing hearings ...



jacmyoung said:


> The "on-the-face" game is over.


Effectively? Perhaps. That is a matter of opinion.
Literally? No. It isn't over.


----------



## Greg Bimson

And Judge Folsom can still rule that the order to disable that product was ignored, so contempt would be granted, then also rule because infringement no longer exists that the devices do not have to be disabled.

Although I do find that highly unlikely...


----------



## James Long

Greg Bimson said:


> And Judge Folsom can still rule that the order to disable that product was ignored, so contempt would be granted, then also rule because infringement no longer exists that the devices do not have to be disabled.
> 
> Although I do find that highly unlikely...


But possible. And that is the outcome that I expect if DISH can convince the court that the product has been modified. In contempt but with light or no punishment attached because of teh 'spirit' of the injunction.


----------



## James Long

Curtis52 said:


> Why are you trying to change the subject?


He's just throwing more diarrhea up against the wall and see what sticks.


----------



## phrelin

scooper said:


> And you still want 12 jurrors off the street to decide these ?


It appears E* does. Wonder why?:sure:


----------



## jacmyoung

Below are the "evidence" TiVo used to meet Step one:

31. [a] 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;

TiVo's evidence:

The DP501/508/510 includes a physical data source,
wherein the physical data source accepts broadcast
data from an input device, parses video and audio
data from said broadcast data, and temporarily stores
the video and audio data. The DP501/508/510
*includes a tuner, demodulator, and an MPEG
processor*. See, e.g., DP501 schematics, pp. 2, 19,
20; DP508/510 schematics, pp. 2, 19, 20; DP510,
DP508 and DP510 Bills of Materials (see entries for
part designators U11, U17, and U35). *The physical
data source* temporarily stores the video and audio
data in memory[*not on hard drive*]. See, e.g., DP501 schematics, pp. 2,
4; DP508/510 schematics, pp. 2, 4; DP510, DP508
and DP510 Bills of Materials (see entries for part
designators U11 and U21).

*I added [*not on hard drive*] to make a point.

E*'s current response:

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.

*Notice there is no "temporarily stores the video and audio data in memory" part.

Now apparently the evidence of "a physical data source" TiVo cited were "a tuner, demodulator, and an MPEG processor" in the DVRs, which happens to be in any MEPG receivers today, DVR or non-DVR.

E* now is saying such "physical data source" no longer exists.

And TiVo does not dispute that, what TiVo is saying is that the receivers have this thing called a PID filter.

I wonder why TiVo is saying that? Was Tivo wrong for saying the "a tuner, demodulator and an MPEG processor" were the physical data source? Because most certainly all three of them are still around you'd think?

I think TiVo realized calling "a tuner, demodulator and an MPEG processor" as the "physical data source" was a lucky shot back then, and may not stick, so now TiVo is finding another evidence, called the PID filter.

Why didn't they say PID filter last time? Not as if there was no PID filter then. And why are they not saying "a tuner, demodulator and an MPEG processor" today? Not as if they are gone.

Something is really fishy here.

And BTW, TiVo is not saying the A/V data are temporily stored in memory either. Just the PID filter. What am I missing here?


----------



## Curtis52

Are we ready to leave unresolved subjects?


----------



## Bidderman9

Supposedly E* filed some type of appeal today? Anybody got any details?


----------



## CuriousMark

I cannot resist.


jacmyoung said:


> Below are the "evidence" TiVo used to meet Step one:
> 
> 31. [a] 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;
> 
> TiVo's evidence:
> 
> The DP501/508/510 includes a physical data source, wherein the physical data source accepts broadcast data from an input device, parses video and audio data from said broadcast data, and temporarily stores the video and audio data. The DP501/508/510
> *includes a tuner, demodulator, and an MPEG processor*. See, e.g., DP501 schematics, pp. 2, 19, 20; DP508/510 schematics, pp. 2, 19, 20; DP510, DP508 and DP510 Bills of Materials (see entries for part designators U11, U17, and U35). *The physical data source* temporarily stores the video and audio data in memory[*not on hard drive*]. See, e.g., DP501 schematics, pp. 2, 4; DP508/510 schematics, pp. 2, 4; DP510, DP508 and DP510 Bills of Materials (see entries for part designators U11 and U21).
> 
> *I added [*not on hard drive*] to make a point.
> 
> E*'s current response:
> 
> 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.


The Tuner, demodulator and MPEG processor are still there, and must still be used even with the revised software. Otherwise no television data would come in off the satellite antenna. The fact that E* doesn't mention them in their argument or says that they don't exist, simply is not credible. They are welcome, of course, to choose to not call them a physical data source, but that is just grammatical sleight of hand. These pieces are physical and they are a data source for the DVR process. In that MPEG processor is a PID filter. The PID filter parses, or analyzes or *selects* data in the MPEG processor's input "buffer" which is being filled by the fire hose blast of demodulated transponder data and shunts the selected or parsed data to an output of the MPEG processor. 
That data is the video elementary stream (also know as video data) and audio elementary stream ( also known as audio data). So the words were changed, but so far nothing that really happens is different. The data is then written directly to the hard drive for temporary storage until it will be played back. It is true that those streams are not analyzed to produce a table of time codes that would aid in trick play, but so far the step of the patent claim doesn't require that. The code that does this may not require the fetching of an explicit software buffer, as the MPEG processor has internal buffering in hardware that can be used directly if tighter timing restraints are met. Whether that is the case, would require testing the software in a software simulator, something Dish reportedly refused to provide to TiVo when asked. Since grabbing a buffer explicitly in software does not show, it would appear to have disappeared from the source code, but if there is reliance on an underlying hardware buffer, the claim would still appear to be met. That development environment is probably needed to know for sure.



> Now apparently the evidence of "a physical data source" TiVo cited were "a tuner, demodulator, and an MPEG processor" in the DVRs, which happens to be in any MEPG receivers today, DVR or non-DVR.
> 
> E* now is saying such "physical data source" no longer exists.


No, I think E* is saying that a software object called a physical data source is no longer in their source code. The hardware pieces are still there and being used. If they truly "did not exist" then the data would need to be pulled off the microwave signal psychically. However, elimination of such a software construct, does not make the underlying physical data source itself vanish. They are changing the words, but it smells fishy, the stuff is still there and still used.



> And TiVo does not dispute that, what TiVo is saying is that the receivers have this thing called a PID filter.


yes, TiVo does dispute that. They point out the PID filter as an example of the working part of the physical data source that IS still there and IS still being used and DOES parse data. To say that TiVo does not dispute the statement that there is no data source is wrong. It is a lie.



> I wonder why TiVo is saying that? Was Tivo wrong for saying the "a tuner, demodulator and an MPEG processor" were the physical data source? Because most certainly all three of them are still around you'd think?


Because they didn't say that, you are putting those words in their mouths. Those items do exist, they are the physical data source and no one, least of all TiVo, has stipulated otherwise.



> I think TiVo realized calling "a tuner, demodulator and an MPEG processor" as the "physical data source" was a lucky shot back then, and may not stick, so now TiVo is finding another evidence, called the PID filter.


Not a lucky shot, they simply read the block diagram and bill of materials. The PID filter is part of that hardware that TiVo now highlights to show that it is still there, still being used and performs an analysis, one that is unavoidable sans psychic abilities.



> Why didn't they say PID filter last time? Not as if there was no PID filter then. And why are they not saying "a tuner, demodulator and an MPEG processor" today? Not as if they are gone.


Because they didn't see the need to highlight it then.



> Something is really fishy here.


Indeed, Dish's argument stinks to high heaven of rotting fish.


----------



## James Long

Bidderman9 said:


> Supposedly E* filed some type of appeal today? Anybody got any details?


Nothing new at the 11th circuit nor filed in Texas or Delaware at the moment.

The appeal allegedly filed by DISH last week isn't found either.

DISH did promise not to ask for a stay of the order calling for the February hearing until after close of business today.


----------



## Ergan's Toupe

CuriousMark said:


> I cannot resist.
> 
> Because they didn't say that, you are putting those words in their mouths. Those items do exist, they are the physical data source and no one, least of all TiVo, has stipulated otherwise.


I can hardly wait for he 4000 word rebuttal. I'm on pins and needles! :slowgrin:


----------



## Curtis52

Bidderman9 said:


> Supposedly E* filed some type of appeal today? Anybody got any details?


An appeal was filed with the federal circuit on 12-4. That's about all I know.


----------



## Ergan's Toupe

James Long said:


> Nothing new at the 11th circuit nor filed in Texas or Delaware at the moment.
> 
> The appeal allegedly filed by DISH last week isn't found either.
> 
> DISH did promise not to ask for a stay of the order calling for the February hearing until after close of business today.


E* appealed the "bench trial" last week. That comes up.

If Charlie is going to appeal now, what exactly is he going to appeal?


----------



## CuriousMark

Ergan's Toupe;1913266 said:


> I can hardly wait for he 4000 word rebuttal. I'm on pins and needles! :slowgrin:


I am sure it will be long winded.

I am sure Dish and TiVo will have some very good, strong, well worded arguments that will make the back and forth here look like kids fighting in a sandbox. Still, this is fun.

I put that together off the top of my head, it should not be hard for a legal wordsmith to poke holes or twist it into spaghetti. I am technical guy and am only trying to explain my understandings of what is going on with the hardware and software details as best I can so that those not as well trained can understand. While I do believe that the small piece of Dish's argument for this one step is pretty weak, there are other places where their arguments are stronger and I can't poke holes in them very easily. I guess that is why we need a judge, it is not as open and shut as the arguers on either side here would like the reader to believe.


----------



## James Long

Ergan's Toupe;1913276 said:


> E* appealed the "bench trial" last week. That comes up.


Got a case number?



> If Charlie is going to appeal now, what exactly is he going to appeal?


The revised order.


----------



## James Long

CuriousMark said:


> I am sure Dish and TiVo will have some very good, strong, well worded arguments that will make the back and forth here look like kids fighting in a sandbox.


Except the best court filings are sealed (and when this discussion gets wild it will be sealed as well).


----------



## Ergan's Toupe

James Long said:


> Got a case number?


2009-M889



James Long said:


> The revised order.


On what grounds?


----------



## scooper

Unless Tivo is calling the "Tuner, (etc.)" the PID filter ... that's the ONLY way using that construction makes sense.

If both sides are being THAT sloppy - I'd throw BOTH sides out and schedule another date in 6 months after they've had time to prepare their briefs properly, with all T's crossed and I's dotted...


----------



## Ergan's Toupe

CuriousMark said:


> I am sure it will be long winded.


Sure as Death, Taxes etc.....

QUOTE=CuriousMark;1913289]
I am technical guy and am only trying to explain my understandings of what is going on with the hardware and software details as best I can so that those not as well trained can understand. While I do believe that the small piece of Dish's argument for this one step is pretty weak, there are other places where their arguments are stronger and I can't poke holes in them very easily. I guess that is why we need a judge, it is not as open and shut as the arguers on either side here would like the reader to believe.[/QUOTE]

No, It's not open and shut by any means but what the hell, might as well throw some crap at the wall while your here. 

I appreciate the input.


----------



## James Long

Ergan's Toupe;1913318 said:


> 2009-M889


Thanks ... I found it while waiting (I was looking at the wrong court) ...
http://pacer.cafc.uscourts.gov/casesmry.asp?casenum=09-M889 (Login Required)



> On what grounds?


That is DISH's job to figure out. 

DISH asked the court to dismiss 09-M889 on the 5th.
*MOTION:* Entry 9 :by Petitioner - Motion to voluntarily dismiss writ of mandamus.


----------



## jacmyoung

CuriousMark said:


> I cannot resist.
> 
> The Tuner, demodulator and MPEG processor are still there, and must still be used even with the revised software. Otherwise no television data would come in off the satellite antenna. The fact that E* doesn't mention them in their argument or says that they don't exist, simply is not credible. They are welcome, of course, to choose to not call them a physical data source, but that is just grammatical sleight of hand. These pieces are physical and they are a data source for the DVR process. In that MPEG processor is a PID filter. ...


I must say you made a very eloquent argument, until I did a bit more looking into the Appeals Court appeal decision, in which it described what the "physical data source" meant:



> EchoStar points out that TiVo's expert, Dr. Gibson, did not refer to the temporary data storage buffer in the course of his general characterization of the components of the physical data source in the EchoStar DVRs. Instead, he stated that "*the physical data source is on the Broadcom chip*," and he identified a number of circuits on that chip on which the physical data source "relies."


Apparently there was a very good reason why the "a tuner, demodulator and an MPEG processor" was not used again by TiVo, rather the PID filter, because TiVo realized the Broadcom chips are now bypassed, meaning not used anymore.

As a result, the so called "physical data source" is not there anymore. And that is why TiVo is not arguing about such "physical data source" rather trying to divert attention from that to the "parsing" part, hey E* still parses, never mind if there is no such "physical data source" anymore to even do any parsing.

Let's be honest, PID filter parsing has nothing to do with this TiVo's DVR technology, TiVo did not even try to used it in the trial, for a good reason, it would never have flied. But now such "physical data source" is gone, what else can TiVo do?


----------



## jacmyoung

Of course now the "physical data source" is gone (notice TiVo does not dispute that the Boradcom chip is no longer used), the Step 2 is in question also:



> [2] providing a source object, wherein said source object extracts video and audio data from said physical data source;


Since the "physical data source" is gone, the so called "source object" can no longer extract anything from said physical data source.

I don't know if E* ever mentioned that, but it can be a real issue here in a new trial.

Now you can see when E* said under the new software, such "physical data source" no longer existed, they were not avoiding anything.

As scooper said, the so called "physical data source" cannot be so obvious as to infer a tuner, demodulator, an MPEG processor, or PID filter. These items are not related to the DVR operations at all. This patent is about DVR technology patent, not some MPEG receiver patent.


----------



## Curtis52

jacmyoung said:


> Apparently there was a very good reason why the "a tuner, demodulator and an MPEG processor" was not used again by TiVo, rather the PID filter, because TiVo realized the Broadcome chips are now bypassed, meaning not used anymore.


The Broadcom chips are not bypassed. There would not be a picture if they were bypassed. The Broadcom chips contain the tuners and satellite decoders that do the PID filtering (parsing) among other things. Dish only says they don't use the Broadcom chips for indexing. The software claims don't mention indexing.


----------



## Ergan's Toupe

James Long said:


> Thanks ... I found it while waiting (I was looking at the wrong court) ...
> http://pacer.cafc.uscourts.gov/casesmry.asp?casenum=09-M889 (Login Required)
> 
> That is DISH's job to figure out.
> 
> DISH asked the court to dismiss 09-M889 on the 5th.
> *MOTION:* Entry 9 :by Petitioner - Motion to voluntarily dismiss writ of mandamus.


Since E* didn't file for a stay today, can we assume that Charlie can't come up with a reason either?


----------



## Ergan's Toupe

jacmyoung said:


> Apparently there was a very good reason why the "a tuner, demodulator and an MPEG processor" was not used again by TiVo, rather the PID filter, because TiVo realized the Broadcom chips are now bypassed, meaning not used anymore.


That is total BS. Please stop making stuff up. :nono2:


----------



## Ergan's Toupe

jacmyoung said:


> Of course now the "physical data source" is gone (notice TiVo does not dispute that the Boradcom chip is no longer used), the Step 2 is in question also:
> 
> Since the "physical data source" is gone, the so called "source object" can no longer extract anything from said physical data source.
> 
> I don't know if E* ever mentioned that, but it can be a real issue here in a new trial.
> 
> Now you can see when E* said under the new software, such "physical data source" no longer existed, they were not avoiding anything.
> 
> As scooper said, the so called "physical data source" cannot be so obvious as to infer a tuner, demodulator, an MPEG processor, or PID filter. These items are not related to the DVR operations at all. This patent is about DVR technology patent, not some MPEG receiver patent.


Do you realize how small that corner is you're painting yourself into?


----------



## Ergan's Toupe

Curtis52 said:


> The Broadcom chips are not bypassed. There would not be a picture if they were bypassed.


Exactly. It's pretty obvious if you don't have an agenda you're trying to stick too.


----------



## jacmyoung

Curtis52 said:


> The Broadcom chips are not bypassed. There would not be a picture if they were bypassed. The Broadcom chips contain the tuners and satellite decoders that do the PID filtering (parsing) among other things...


Have you not just read what E* said, the new design no longer had this "physical data source"? And since the "physical data source" was on the Broadcom chip, wasn't it the same as saying the Broadcom chip was bypassed when it came to having the "physical data source" residing on them?

Did TiVo dispute E*'s claim that "physical data source" was gone?



> Dish only says they don't use the Broadcom chips for indexing. The software claims don't mention indexing.


E* not only says that, they also said no "physical data source" on the Broadcom chip anymore, your statement seemed very selective.

But wait, TiVo did make a point of the indexing in arguing infringement of the software claims, as an example:

TiVo's contention:



> 31. [a] 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 DP522/625 includes tuners, demodulators, and an MPEG processor, *portions of which are the physical data source*. The MPEG processor works in conjunction with code. The incoming data is composed of packets separated as all video, all audio, or other data. The packets are identified by a packet identification ("PID"). The MPEG processor parses video and audio data. The MPEG processor supports two independent record channels. * Each channel includes a start code detect module that can be used to build a start code table (or frame index)*. The video and audio data is temporarily stored in buffers.


So here it was, the MPEG processor (not the PID filter) parsed the A/V data, for what? To separate A/V into two channels, each channel was used to build a start code table or frame index, then the A/V data [frame indices] were temporarily stored in buffers.

E* is saying the new design no longer parses A/V data, no longer builds those frame index tables for temporary storage in buffers, rather grabs the incoming A/V streams and stores them directly onto the hard drive.

Did TiVo dispute such E*'s claim?

No TiVo does not dispute either of the above, TiVo just says E* still uses that PID filter to parse data, that is it, good enough for TiVo.

Was the PID filter good enough for TiVo last time? No. In fact TiVo did not even say the PID parsing was the infringing part, rather the MPEG processor parsing part. Because again the PID parsing has nothing to do with the DVR patent.

And did I mention that this time around TiVo's standard proof is much higher?

And did I also mention this time, in a summary contempt proceeding, E* does not even have to prove noninfringement, only to establish the doubt?

Are the above differences not good enough to create any doubt at all for you? Especially when you realize TiVo did not even dispute the removal of the "physical data source" and the "frame index table".

Of course once the "physical data source" is gone, the Step 2 is also gone, because the "source object" now cannot possibly extract data from that physical data source which no longer exists.


----------



## jacmyoung

You are correct that the tuners are still there, the demodulators, the PID filter, the MPEG processor.

But the only two things from those components that were related to meeting the software claims, the physical data source, and the MPEG processor parsing A/V into separate channels and building frame index tables for temporary storage, both were gone.

What are left have nothing to do with the software claims Steps 1 and 2.


----------



## James Long

(Have we reached 2000 words yet?  )


----------



## jacmyoung

James Long said:


> (Have we reached 2000 words yet?  )


And I do not even have time to post the fact that E* also said the "automatic flow control" in the software claims are also gone, but that will take another post, though shorter than the one above


----------



## James Long

Consider it done.

BTW: What is your reference for all this ... stuff from way before the September hearing? Got anything new?


----------



## jacmyoung

James Long said:


> Consider it done.
> 
> BTW: What is your reference for all this ... stuff from way before the September hearing? Got anything new?


When Curtis and Greg insisted TiVo did not mention the indexing in the software claims argument, and E* did not mention the removal of the "automatic flow control" in the software claims, I thought it was important to point out they were wrong, or TiVo was wrong.

I found all of them in the E* briefing as exhibits, some from E* side, some from TiVo side.


----------



## jacmyoung

> Neither of the proposed implementation modifications includes a "source object" that is "automatically flow controlled" (i.e., self-regulated). As required by claims 31 and 61. In the proposed modifications, there is no collection of data and operations that obtains a buffer or converts video data into streams to fill the (non-obtained) buffer. Further, there is no collection of data and operations that is "automatically flow controlled" as required by the claims.


Now one can argue all he wants if the evidence is true or not, but one cannot deny that E* did make it clear the new design no longer uses "automatic flow control" required by the software claims.

If TiVo actually said E* did not say they removed the "automatic flow control" in the software claims, TiVo needs to go back and look for more of those papers they left out in the lunch room.


----------



## vampz26

Mainer_ayah said:


> If you read the blog entry, than clearly, from the writers use of present rather than future tense he is relating the ongoing status quo of the courts high standards, and not a recent shift in policy.


yes I did read the blog entry, for what its worth...and clearly, the writers use of the present indeed represents a recent shift in policy BASED on the ongoing status quo and the recognized need for higher standards. It can be nothing else but. This is a recent event, and nothing that has dictated the policies or judicial ineptitude leading up to the fact. Its the result of it, nothing more.

Like I said, its pretty much an attempt to right the wrong, and not an attempt thats going to benefit this trial...

This isn't an action here...its a re-action. and a good one.


----------



## James Long

A reminder that this thread is for the discussion of the TiVo vs Echostar court case and current developments.

*Please stay on that topic.*


----------



## CuriousMark

jacmyoung said:


> Have you not just read what E* said, the new design no longer had this "physical data source"? And since the "physical data source" was on the Broadcom chip, wasn't it the same as saying the Broadcom chip was bypassed when it came to having the "physical data source" residing on them?


Yup, that is what they seem to be saying. In which case it is an outright lie, or an articulate but otherwise clueless lawyer writing something to look good without first checking with someone technical enough to tell him if it is even true. Without a physical data source, parts of the broadcom chip, the only way a picture will get on a screen is psychically.



> Did TiVo dispute E*'s claim that "physical data source" was gone?


Yes they did, covered it above.

You say separate out. but wait, that is what a PID filter does, it separates out an A/V stream. How does it do this? It examines the data packet PID values and if they match the packet is separated out and sent for processing, the packets that don't match are allowed to be lost. If you separate out, you are PID filtering. If you aren't doing it in the Broadcom chip, you are doing it in software, except software is not fast enough to PID filter a full transponder stream. So either the Broadcom chip and its onboard PID filter is being used to separate out the data or the unit is a brick. That is what the hardware is and how it works. If the words say differently, then be careful about trusting those words.


----------



## Curtis52

jacmyoung said:


> E* not only says that, they also said no "physical data source" on the Broadcom chip anymore


No they didn't. They said the physical data source doesn't parse. DVRs don't work without a data source.


----------



## Curtis52

jacmyoung said:


> Have you not just read what E* said, the new design no longer had this "physical data source"? And since the "physical data source" was on the Broadcom chip, wasn't it the same as saying the Broadcom chip was bypassed when it came to having the "physical data source" residing on them?
> 
> Did TiVo dispute E*'s claim that "physical data source" was gone?


Dish didn't say the physical data source is gone. Dish didn't say the Broadcom chip is bypassed. They said it doesn't parse.


----------



## Greg Bimson

jacmyoung said:


> As scooper said, the so called "physical data source" cannot be so obvious as to infer a tuner, demodulator, an MPEG processor, or PID filter. These items are not related to the DVR operations at all. This patent is about DVR technology patent, not some MPEG receiver patent.


In jacmyoung's world, there would be no such thing as a patent. In real life, a patent can include other processes, including processes that are normal to operations of a receiver.

TiVo builds a box, which receives transmitted data, either from terrestrial broacasters, cablers, or satellite. TiVo's _process_ starts when the signal is obtained. What is done to that signal is the second step; receiving the signal is the first.


----------



## Curtis52

jacmyoung said:


> Curtis and Greg insisted TiVo did not mention the indexing in the software claims argument


You have it backwards. *You* are the one that insisted TiVo did not mention indexing in the software claims argument.

Here:


jacmyoung said:


> TiVo did not mention hey the word "index", or the term "media switch" were not in the software claims.


I corrected you with this:


> *TiVo 07-18-08*:
> "EchoStar also devotes much attention to "indexing," the "Media Switch," and the concept of separation. Opp. at 3-4 (citing trial testimony relating to claim 1). But claims 31 and 61 do not include limitations requiring indexing, separation, or a Media Switch."


You have not admitted you were wrong about that. Now you are saying that I'm the one that said it.


----------



## Curtis52

jacmyoung said:


> You are correct that the tuners are still there, the demodulators, the PID filter, the MPEG processor.
> 
> But the only two things from those components that were related to meeting the software claims, the physical data source, and the MPEG processor parsing A/V into separate channels and building frame index tables for temporary storage, both were gone.
> 
> What are left have nothing to do with the software claims Steps 1 and 2.


The physical data source is not gone. Dish did not say it is gone. The parsing is still there. There never was indexing in the software claims. Nothing has changed.


----------



## Greg Bimson

jacmyoung said:


> TiVo's contention:
> 
> 
> 
> 31. [a] 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 DP522/625 includes tuners, demodulators, and an MPEG processor, portions of which are the physical data source. The MPEG processor works in conjunction with code. The incoming data is composed of packets separated as all video, all audio, or other data. The packets are identified by a packet identification ("PID"). The MPEG processor parses video and audio data. The MPEG processor supports two independent record channels. Each channel includes a start code detect module that can be used to build a start code table (or frame index). The video and audio data is temporarily stored in buffers.
Click to expand...

You do realize, except for the configuration, this is what a standard receiver does? This has nothing to do with the index used in conjunction with the Media Switch.

In order for satellite TV to work, the receiver pulls out only the data for the channel you wish to watch, and therefore extracts using PID filtering to build frame indexes and tables simply so the user can receive a picture with audio. This doesn't even have anything to do with the recording process, but it does have to do with the receiving process.


----------



## jacmyoung

Curtis52 said:


> The physical data source is not gone. Dish did not say it is gone. The parsing is still there. There never was indexing in the software claims. Nothing has changed.


The physical data source as described in the claims is gone, how about that? Because if a pyhsical data source does not parse, as described in the claims, then there is no such physical data source. There are other pysical data sources, maybe a hundred of them, all doing their own things, but none does what the claims described, so that physical data source does not exist.

Yes the parsing is still there, but the physical data source identified by TiVo during the trial was the MPEG processor, not the PID filter. The reason the MPEG processor was name as that "physical data source" was because it did exactly as described in the claims step one:

It parsed A/V into separate channels, it then built freme index table for each channel, it then stored such index tables in the temporary memory buffer for later use during the trickplays.

If I am wrong for saying there is the word of index in the software claims, TiVo was wrong for saying the index frame table evidence proved in part the software claims were met, in fact TiVo was wrong for saying the MEPG processor was that physical data source, because no where did the steps metnion an MPEG processor.

Now Tivo wants ot argue E* cannot use the index table to disprove things, even though TiVo was allowed to use the index table to prove before? What the standard of proof for TiVo is much less and much higher for E* now in a summary contempt proceeding?

Did you admit you were wrong for saying E* did not remove the "automatic flow control" steps?

As far as the PID filter, yes it still parses, but if it does not build separate channel frame index tables and does not store such tables in the temporary memory buffer for later use during the trickplays, it is not the "pyhsical data source" we are talking about.


----------



## jacmyoung

Greg Bimson said:


> You do realize, except for the configuration, this is what a standard receiver does? This has nothing to do with the index used in conjunction with the Media Switch.
> 
> In order for satellite TV to work, the receiver pulls out only the data for the channel you wish to watch, and therefore extracts using PID filtering to build frame indexes and tables simply so the user can receive a picture with audio. This doesn't even have anything to do with the recording process, but it does have to do with the receiving process.


No the PID filter does not build any index table, which is precisely why TiVo is arguing there is no "index" in the software claims, trying to get around that one. Except TiVo was compelled to use the index table before to prove the existence of that pyhsical data source.


----------



## Greg Bimson

jacmyoung said:


> No the PID filter does not build any index table, which is precisely why TiVo is arguing there is no "index" in the software claims, trying to get around that one. Except TiVo was compelled to use the index table before to prove the existence of that pyhsical data source.


You really need to stop making untruthful statements.


----------



## James Long

jacmyoung said:


> Yes the parsing is still there,
> As far as the PID filter, yes it still parses,


Are you speaking for yourself or quoting TiVo or DISH without reference?

If you are posting for yourself you are misunderstanding the functions of what you are discussing. If you are quoting TiVo or DISH you are misquoting or misunderstanding.

We're looking for _understanding_ here ... not rehashed misunderstanding from five or six months ago.


----------



## Curtis52

jacmyoung said:


> the Broadcom chips are now bypassed, meaning not used anymore.


I'm still wondering what Dish uses to receive the satellite signal if the Broadcom chip isn't used anymore. That's where the satellite receiver is.


----------



## James Long

The ^infringing portion^ of the Broadcom chips is bypassed.

Good enough? The case of beer is in the car but isn't in use.


----------



## CuriousMark

Curtis52 said:


> I'm still wondering what Dish uses to receive the satellite signal if the Broadcom chip isn't used anymore.


The boxes are Psychic.


----------



## jacmyoung

Greg Bimson said:


> You really need to stop making untruthful statements.


You really need to start to reason. If the PID filter builds that index table, why did TiVo not say it, instead arguing no, indexing did not matter because it was not mentioned in the software claims?

Why did TiVo feel the need to point out the MPEG processor back then built that index table?


----------



## Curtis52

jacmyoung said:


> If the PID filter builds that index table


The PID filter does not create an index file. That is not the function of a PID filter. There is no index table mentioned in the software claims. TiVo has patented a process that does not require an index table.


----------



## jacmyoung

Curtis52 said:


> ...TiVo has patented a process that does not require an index table.


Please pay attention to what TiVo said before:



> According to TiVo's infringement expert, E*'s accused DVRs satisfied the parsing--or analyzing--function by generating what was referred to as a "table or "index" that kept track of where frames started and where audio and video components were stored. On appeal, TiVo's counsel referred to the creation of this index or table as the "genius, the core of this invention" and told the Federal Circuit: "They [E*] build the table, we [TiVo] build the table, and that is the invention here; that is the way in which a low-cost limited CPU device can manipulate these streams the way that they do."


TiVo was not shy of making a huge deal out of that index table, called it the *core of this invention*.

Now you think TiVo can get away with simply brushing off the method of indexing?

Remember, even by the lower infringement standard of equivalents, it says:

*If two things perform substantially the same functions, doing so in substantially the same way, to achieve substantially the same result.*

The PID filter does perform substantially the same function as the "physical data source", by parsing the A/V data into two separate streams, but that is where the similarity ends.

The PID filter does not build frame index tables and then store such index tables in temporary storage buffer, and most importantly the PID filter is not used to achieve the goal of DVR trickplays. As Greg you said yourself, the PID filter is used in all MPEG receivers to allow people to watch live TV, not to play DVR trickplays.



> TiVo's infringement expert, Dr. Gibson, testified that E*'s Broadcom DVRs satisfied the "automatically flow controlled" limitations of Claims 31 and 61. Both Mr. Barton and Dr. Gibson testified that where there is automatic flow control, there are multiple buffers and software (the source object) that fills the buffers with data.
> 
> After the verdict, E*'s engineers developed a single-buffer record method that lacks automatic flow control of the Broadcom DVRs. Because only one buffer is used, the new software does not and cannot stop the flow of incoming data and the buffer.





> TiVo knows these facts. Immediately after the mandate issued in this case, E* voluntarily produced opinions of counsel describing its new, non-infringing products, *as well as the actual software, to TiVo. TiVo analyzed that code*.


TiVo knows E*'s software no longer does automatic flow control, instead, just like TiVo tried to change the subject, by saying "index" is not mentioned in the software claims, the "media switch" is also not mentioned.

Is TiVo ready to throw away their entire infringement verdict from that jury trial?


----------



## Curtis52

jacmyoung said:


> TiVo was not shy of making a hugh deal out of that index table


They were justified in doing so. The trial covered both hardware claims and software claims. The media switch and the index are covered in the hardware claims. They are not a part of the software claims.


----------



## Ergan's Toupe

Curtis52 said:


> They were justified in doing so. The trial covered both hardware claims and software claims. The media switch and the index are covered in the hardware claims. They are not a part of the software claims.


Why is this so difficult for certain people to grasp?


----------



## Greg Bimson

jacmyoung said:


> You really need to start to reason. If the PID filter builds that index table, why did TiVo not say it, instead arguing no, indexing did not matter because it was not mentioned in the software claims?


Because you don't know what the PID filter does. It does NOT create the index table used by the media switch. It DOES create an index table to process MPEG2 signals, based upon the MPEG standards.

The PID filter analyzes the incoming data, indexes the frames and temporarily stores those frames sequentially. You wonder why there is a lag when watching OTA compared to satellite? It isn't just because of bouncing a signal 22,000 miles off of a satellite.


----------



## jacmyoung

Greg Bimson said:


> Because you don't know what the PID filter does. It does NOT create the index table used by the media switch. It DOES create an index table to process MPEG2 signals, based upon the MPEG standards.
> 
> The PID filter analyzes the incoming data, indexes the frames and temporarily stores those frames sequentially. You wonder why there is a lag when watching OTA compared to satellite? It isn't just because of bouncing a signal 22,000 miles off of a satellite.


Was such so called table retrieved by the "source object" in step 2? What is the purpose of that table again? Not for DVR trickplays I don't think so.

You are still not reading the law, and how an infringement may be found, even when I have plastered the words in front of you in bold letters.


----------



## jacmyoung

Ergan's Toupe;1914077 said:


> Why is this so difficult for certain people to grasp?


I wonder did Curtis ever appear that he needed help?


----------



## jacmyoung

Curtis52 said:


> They were justified in doing so. The trial covered both hardware claims and software claims. The media switch and the index are covered in the hardware claims. They are not a part of the software claims.


They were justified in doing so to prove the software claims, not because there were both software claims and hardware claims.

Likewise, E* is justified in doing so by bringing back the evidence TiVo used themselves, because all claims in the patent are interconnected.

But again we are not even talking about the media switch here, E* said no more "automatic flow control" in the software claims, what did TiVo have to respond? Oh there was no media switch in the software claims?


----------



## Curtis52

jacmyoung said:


> Was such so called table retrieved by the "source object" in step 2? What is the purpose of that table again? Not for DVR trickplays I don't think so.


The presence or absence of any kind of table whatsover is irrelevant.


----------



## James Long

DISH disagrees.


----------



## jacmyoung

What the E* needs to do in this contempt proceeding is, to tell the court how their new design differs from their old design.

So far the differences are substantial:

The old design used the MPEG processor as the “physical data source” to parse the A/V data, and build the frame index tables, then stored such tables in temporary memory for use later during DVR trickplays.

The current MPEG processor is different, it no longer does any of the above. The A/V streams are stored directly on the hard drive without the MPEG processor doing such parsing.

The fact there is this PID filter should not even matter, because in the contempt proceeding, the court only needs to look at the difference between the accused device (in this case the current MPEG processor), and the adjudicated device (in this case the old MPEG processor).

The old design used a “source object” to extract data from the physical data source, i.e. that MPEG processor.

The new design does not even have that “source object” anymore, because no index data need to be extracted from the physical data source.

The old design used multiple buffers to achieve the “automatic flow control.”

The new design uses a single buffer, and because of that it cannot even do automatic flow control because multiple buffers are needed to do any automatic flow control.

The judge must decide if the above differences are mere colorable or more than colorable, and his contempt decision will have to be based on just that.


----------



## James Long

jacmyoung said:


> The judge must decide if the above differences are mere colorable or more than colorable, and his contempt decision will have to be based on just that.


Actually it isn't limited to just what we know (actually "what we think we know") about what has changed between the old and new software. That is why arguing over tidbits of information from five or six months ago is really irrelevant.

*Today* filings are due from TiVo and DISH stating "the legal theories and, in general, the factual bases of the disclosing party's claims or defenses."

It is very likely that all the filings today (including witness lists, etc.) will be sealed. I'm sure we will have a lot of junk posted claiming to know exactly what is in those sealed documents and even worst junk posted speculating what should be in those filings.

But this thread is for facts and reality ... we have had too much of the opposite. This forum has hosted several threads of speculation based on the tidbits from the distant past, whether it be May through September of this year or years past. There is no need to repost all of the arguments of prior months.

It is time to move on to TODAY and what is happening TODAY.
Leave the past where it belongs and discuss reality.


----------



## jacmyoung

The PID filter was not adjudicated to have met the claims limitations, therefore in my view it cannot even be used to compare, because the law says in a contempt proceeding, the work of the court is to look at the differences between the accused, and the adjudicated.

TiVo is now accusing the E* PID filter, but it was never adjudicated, the court cannot compare the accused with the not-adjudicated.

Too bad TiVo did not try to adjudicate the PID filter last time, therefore Tivo will have to do it in a new trial. The fact TiVo got E*’s lawyer to admit back then that the PID filter parsed, that evidence may be used in that new trial to prove PID filter also meets the claims limitations.

But not now, IMHO.

Ok, noticed your post after, will stop


----------



## James Long

jacmyoung said:


> TiVo is *now* accusing the E* PID filter, ...


Now? Or many months ago?


> Ok, noticed your post after, will stop


I thought so.


----------



## CuriousMark

There seems to be some misunderstanding of what a PID filter is, and what it can do, so here is a definition from a patent:



> Title:
> PID filter circuit and FIFO circuit
> Document Type and Number:
> United States Patent 6538999
> 
> Abstract:
> A PID (Packet Identifier) filter circuit includes a FIFO (First-in, First-out) memory. Filtering may be performed irrespective of the length of the PID and irrespective of whether the position of the PID is fixed in the packet. The circuit includes a comparison value table for storing therein comparison values, and a comparator for taking comparison values successively from the comparison value table and for comparing value of the PID in the input packet data with the comparison values on a word by word basis. A FIFO memory stores input packet data. The FIFO memory does not implement a read operation until the input packet data is determined to contain desired data based on its PID. If the input packet data is determined not to contain desired data, any portion of the input packet data already stored in the FIFO is superseded.


The PID filter acts as a sort of railroad switch putting matching packets into the siding of a FIFO buffer and letting non-matching packets vanish down the track and into oblivion. It does nothing more, it does not build tables of any kind, it is a clever and relatively complex circuit that does this one job very very fast.


----------



## Curtis52

jacmyoung said:


> TiVo is now accusing the E* PID filter, but it was never adjudicated, the court cannot compare the accused with the not-adjudicated.


As of today, Dish has not disputed trial testimony considered by the jurors that equated PID filtering and parsing. It was totally adjudicated.


> 4/7/06 AM Trial Tr. 110:10-14 (Ex. E) ("Q: Okay. So you'll agree that the EchoStar products do actually parse the MPEG stream? A: Yes. The Court said analyze, and there are PID filters in those products that examine the MPEG transport stream and do a parsing.")


----------



## James Long

As of "today"? No filings yet (and I expect they will be sealed).
Would you like to revise the "as of" date?

Please ... talk about the present ... not months ago.
We're done with the old argument.


----------



## Ergan's Toupe

James Long said:


> DISH disagrees.


Shocking!!! Charlie also jumped up and down, stomped his feet and held his breath the first time TIVO told him he was infringing. How did that work out for him?

Of course they disagree. They HAVE to disagree. They didn't come this far to just admit they did nothing more than change the color of their DVR's.

But Charlie's big day is coming soon. Come Feb 18th Chuckles is going to be in a world of hurt when his "herculean effort" that cost all of $750,000 is exposed for what it is, a "sham".


----------



## peak_reception

Ergan's Toupe;1914377 said:


> But Charlie's big day is coming soon. Come Feb 18th Chuckles is going to be in a world of hurt


 That was supposed to happen September 4th, 2008, remember? I was even one of the ones predicting it.  :blackeye:

The Big Bang (of justice) Theory may fit well for the Birth of the Universe but it certainly never seems to happen in this endless litigation.  I doubt we'll ever see that dramatic Perry Mason moment when Dish is exposed for all to see for fabricating a workaround that never did or never was.

No, this litigation is much more likely (also like the Universe) to end in a whimper than in a Bang....


----------



## Ergan's Toupe

James Long said:


> *Today* filings are due from TiVo and DISH stating "the legal theories and, in general, the factual bases of the disclosing party's claims or defenses."


Are you sure about that? The only thing I see due today is some discovery that the party's are supposed to trade among themselves.


----------



## Ergan's Toupe

peak_reception said:


> That was supposed to happen September 4th, 2008, remember? I was even one of the ones predicting it.  :blackeye:
> 
> I was in the minority of people who knew Folsom wasn't going to do squat on the 4th. Not that I expect this to be over on the 18th either, but I AM sure that Charlie is full of it with this "design around" BS and will be made to pay, eventually. If nothing else we will know the truth on the 18th.


----------



## jacmyoung

Ergan's Toupe;1914424 said:


> ...If nothing else we will know the truth on the 18th.


I remember you said similar things before, just like what happened before, you will almost certainly not know the truth on the 18th


----------



## scooper

Ergan's Toupe;1914424 said:


> peak_reception said:
> 
> 
> 
> That was supposed to happen September 4th, 2008, remember? I was even one of the ones predicting it.  :blackeye:
> 
> I was in the minority of people who knew Folsom wasn't going to do squat on the 4th. Not that I expect this to be over on the 18th either, but I AM sure that Charlie is full of it with this "design around" BS and will be made to pay, eventually. If nothing else we will know the truth on the 18th.
> 
> 
> 
> I wouldn't bet on that either - I am just as positive that it is more than colorably different and almost certain that we won't hear from Judge Folsom right after the hearing or at the conclusion of it, regardless of the findings. He may make up his mind on it, but count on a few days / weeks for him to get the opinion wrote up so it has the best chance at the inevitable appeal.
Click to expand...


----------



## Ergan's Toupe

scooper said:


> Ergan's Toupe;1914424 said:
> 
> 
> 
> I wouldn't bet on that either - I am just as positive that it is more than colorably different and almost certain that we won't hear from Judge Folsom right after the hearing or at the conclusion of it, regardless of the findings. He may make up his mind on it, but count on a few days / weeks for him to get the opinion wrote up so it has the best chance at the inevitable appeal.
> 
> 
> 
> I'm not saying Folsom is going to rule on the 18th. He most certainly isn't. I'm saying we will know the truth from the testimony.
Click to expand...


----------



## jacmyoung

James Long said:


> Thanks ... I found it while waiting (I was looking at the wrong court) ...
> http://pacer.cafc.uscourts.gov/casesmry.asp?casenum=09-M889 (Login Required)
> 
> That is DISH's job to figure out.
> 
> DISH asked the court to dismiss 09-M889 on the 5th.
> *MOTION:* Entry 9 :by Petitioner - Motion to voluntarily dismiss writ of mandamus.


If E* had already filed an appeal on the 5th, and does not intent to withdraw that appeal, it would seem to me E* could have filed the emergency stay request today since today is the earliest day E* may file such motion according to the stipulations between E* and TiVo.


----------



## Curtis52

jacmyoung said:


> If E* had already filed an appeal on the 5th, and does not intent to withdraw that appeal, it would seem to me E* could have filed the emergency stay request today since today is the earliest day E* may file such motion according to the stipulations between E* and TiVo.


Umm...


----------



## dgordo

Yeah, umm is right.


----------



## jacmyoung

dgordo said:


> Yeah, umm is right.


I know what you two are thinking

But if E* decides to withdraw the appeal and proceed with the current modified order, it will show E*'s confidence in its new design, the only problem is if they get a non-infringement ruling from Judge Folsom, the ruling will be vacated on appeal if TiVo wishes to, based on the same principle cited in E*'s case law.

But it will not be a total loss, because non-infringement verdict ensures more than colorable difference, and therefore no contempt. In this case even if TiVo manages to get the non-infringement verdict vacated later, it will be very hard for TiVo to start another trial against E*'s new design.

The umm part is always a possibility, I think you meant a possible settlement? I hope no one automatically sees a settlement only in TiVo's favor though, the devil will be in the detail.


----------



## James Long

Ergan's Toupe;1914506 said:


> I'm not saying Folsom is going to rule on the 18th. He most certainly isn't. I'm saying we will know the truth from the testimony.


So you expect a full transcript of a 10 hour trial the day after?


----------



## James Long

jacmyoung said:


> James Long said:
> 
> 
> 
> DISH asked the court to dismiss 09-M889 on the 5th.
> *MOTION:* Entry 9 :by Petitioner - Motion to voluntarily dismiss writ of mandamus.
> 
> 
> 
> If E* had already filed an appeal on the 5th, and does not intent to withdraw that appeal,
Click to expand...

Uhhh ... perhaps reading what you quote would be good?
*The motion to dismiss the appeal was filed December 5th.*


----------



## scooper

James Long said:


> So you expect a full transcript of a 10 hour trial the day after?


The friday after, maybe - if not, then the next friday at the latest.


----------



## James Long

So February 20th or 27th ... and I assume 30 seconds after it is available we will have posts claiming to have read it completely and completely understand it.  
I can't wait ...


----------



## scooper

James Long said:


> So February 20th or 27th ... and I assume 30 seconds after it is available we will have posts claiming to have read it completely and completely understand it.
> I can't wait ...


I may be a speedreader (1200+ words/minute) - but I don't claim to be able to go through that in a hurry , at least in detail. I could probably distill the highlights in about 30 minutes If I have the time. and another 30 minutes - hour to write them up.


----------



## jacmyoung

James Long said:


> Uhhh ... perhaps reading what you quote would be good?
> *The motion to dismiss the appeal was filed December 5th.*


Thanks for pointing it out. Assume the hearing proceed to the final conclusion.

Scenario #1

The software is more than colorably different, but the DVRs still infringe.

On appeal, E* gets the infringement verdict vacated based on the principle of the case law, retains no contempt finding due to more than colorable decision.

Scenario #2

The software is only colorable, no need to go further, E* is in contempt, if the contempt ruling is upheld on appeal, E* pays big or settle.

Scenario #3

The software is more than colorably different, and the DVRs do not infringe. E* is not in contempt, if the no contempt is upheld on appeal, TiVo can still get the non-infringement verdict vacated just as the case law has demonstrated to us.

No matter what the outcome, the infringement analysis will be a waste of time, unless no one appeals it.


----------



## dgordo

jacmyoung said:


> Thanks for pointing it out. Assume the hearing proceed to the final conclusion.
> 
> Scenario #1
> 
> The software is more than colorably different, but the DVRs still infringe.
> 
> On appeal, E* gets the infringement verdict vacated based on the principle of the case law, retains no contempt finding due to more than colorable decision.
> 
> Scenario #2
> 
> The software is only colorable, no need to go further, E* is in contempt, if the contempt ruling is upheld on appeal, E* pays big or settle.
> 
> Scenario #3
> 
> The software is more than colorably different, and the DVRs do not infringe. E* is not in contempt, if the no contempt is upheld on appeal, TiVo can still get the non-infringement verdict vacated just as the case law has demonstrated to us.
> 
> No matter what the outcome, the infringement analysis will be a waste of time, unless no one appeals it.


But what about Landis vs. N. Am. Co., 299 U.S. 248?


----------



## jacmyoung

dgordo said:


> But what about Landis vs. N. Am. Co., 299 U.S. 248?


What about it?

My above post assumed no current appeal therefore no stay request.

While I argued the infringement verdict (whether yes or no) will be a waste of effort if the decision gets to the hands of the Appeals Court because it will be vacated, nevertheless a non-infringement verdict will deter TiVo from another lawsuit on this matter, and an infringement verdict will get E* to quite the fight much more easily.

Even if the verdict will be vacated on appeal that is.

If E* is willing to go through such infringement hearing in front of Judge Folsom, it supports my past theory that the E*'s DE stunt was not necessarily forum shopping, rather to force TiVo to discuss the software colorable issue. After all, it was TiVo who suggested the judge modify his bench trial order to include colorable difference analysis because of the software change.


----------



## dgordo

jacmyoung said:


> What about it?
> 
> My above post assumed no current appeal therefore no stay request.
> 
> While I argued the infringement verdict (whether yes or no) will be a waste of effort if the decision gets to the hands of the Appeals Court because it will be vacated, nevertheless a non-infringement verdict will deter TiVo from another lawsuit on this matter, and an infringement verdict will get E* to quite the fight much more easily.
> 
> Even if the verdict is vacated on appeal that is.


I guess I don't understand your point then when you say:



jacmyoung said:


> Scenario #1
> 
> The software is more than colorably different, but the DVRs still infringe.
> 
> On appeal, E* gets the infringement verdict vacated based on the principle of the case law, retains no contempt finding due to more than colorable decision.


and



jacmyoung said:


> Scenario #3
> 
> The software is more than colorably different, and the DVRs do not infringe. E* is not in contempt, if the no contempt is upheld on appeal, TiVo can still get the non-infringement verdict vacated just as the case law has demonstrated to us.


What case law are you referring to?


----------



## jacmyoung

dgordo said:


> I guess I don't understand your point then when you say:
> 
> and
> 
> What case law are you referring to?


The case law E* cited in its motion for stay to Judge Folsom, in which the appeals court said in a contempt proceeding, a substantive infringement analysis was premature, as a result while they upheld the no contempt ruling, they also vacated the non-infringement ruling.

BTW, the entire case was quoted by me in post #497.


----------



## dgordo

jacmyoung said:


> The case law E* cited in its motion for stay to Judge Folsom, in which the appeals court said in a contempt proceeding, a substantive infringement analysis was premature, as a result while they upheld the no contempt ruling, they also vacated the non-infringement ruling.
> 
> BTW, the entire case was quoted by me in post #497.


Yes, I know that case. I misunderstood you.

I disagree with you that Folsom has the intent to do any more than hear evidence regarding the threshold issue ('whether infringement should be adjudicated in contempt proceedings' instead of requiring new charges of infringement to be determined in a new full trial) at the same time he hears evidence on the continuing infringement of the accused products.


----------



## Ergan's Toupe

jacmyoung said:


> I know what you two are thinking


Wanna bet? :lol:


----------



## Ergan's Toupe

James Long said:


> So you expect a full transcript of a 10 hour trial the day after?


Transcript? Who said anything about a transcript?

You do realize that the hearing is open to the public, right?


----------



## Ergan's Toupe

scooper said:


> The friday after, maybe - if not, then the next friday at the latest.


Depends on who is doing the transcribing.


----------



## jacmyoung

dgordo said:


> Yes, I know that case. I misunderstood you.
> 
> I disagree with you that Folsom has the intent to do any more than hear evidence regarding the threshold issue ('whether infringement should be adjudicated in contempt proceedings' instead of requiring new charges of infringement to be determined in a new full trial) at the same time he hears evidence on the continuing infringement of the accused products.


If what you are saying is he just wants to hear the evidence not trying to make a decision on the new charge of infringement, I can't argue with that, but you are really pushing it.


----------



## jacmyoung

Ergan's Toupe;1914957 said:


> Depends on who is doing the transcribing.


If last hearing is any indication, notes of some TiVo investor will be the first to arrive to report a contempt ruling will be imminent.


----------



## Ergan's Toupe

jacmyoung said:


> If last hearing is any indication, notes of some TiVo investor will be the first to arrive to report a contempt ruling will be imminent.


Nobody will hold a gun to your head to read my transcript. :eek2:

But I'm sure you'll be the first to comment on it.


----------



## James Long

Ergan's Toupe;1914955 said:


> Transcript? Who said anything about a transcript?
> 
> You do realize that the hearing is open to the public, right?


So you're going to rely on a reporter's biased opinion? I hope they at least get the city where the hearing is being held right this time. 

The answer will come from Judge Folsom. All else is speculation blowing in the wind.



Ergan's Toupe;1915095 said:


> Nobody will hold a gun to your head to read my transcript. :eek2:
> 
> But I'm sure you'll be the first to comment on it.


Save time ... write it right now.


----------



## James Long

jacmyoung said:


> If what you are saying is he just wants to hear the evidence not trying to make a decision on the new charge of infringement, I can't argue with that, but you are really pushing it.


There is no NEW charge of infringement. See previous posts for details.


----------



## jacmyoung

James Long said:


> There is no NEW charge of infringement. See previous posts for details.


Charge of infringement on a modified device is a new charge.

dgordo took that particular quote out of context when he ignored several others in the same text:



> Rather, the modifying party generally deserves the opportunity to litigate the infringement question at a new trial, "particularly if expert and other testimony subject to cross-examination would be helpful or necessary."





> The trial court chose, however, to undertake a substantive infringement analysis. This inquiry was premature.


----------



## jacmyoung

James Long said:


> ...Save time ... write it right now.


He already did. He said Charlie will finally face the music on the 18th.


----------



## James Long

jacmyoung said:


> Charge of infringement on a modified device is a new charge.


This is where you keep failing ... trying to get "new" charges where they don't yet exist. The focus is still on the "old" adjudicated receivers (and software) and deciding whether or not they are different enough to even consider modified.


----------



## jacmyoung

James Long said:


> This is where you keep failing ... trying to get "new" charges where they don't yet exist. The focus is still on the "old" adjudicated receivers (and software) and deciding whether or not they are different enough to even consider modified.


And that is determined by the 1) software colorable difference analysis.

Let me quote all three again to put it in the context:



> whether infringement should be adjudicated in contempt proceedings' instead of requiring new charges of infringement to be determined in a new full trial





> Rather, the modifying party generally deserves the opportunity to litigate the infringement question at a new trial, "particularly if expert and other testimony subject to cross-examination would be helpful or necessary."





> The trial court chose, however, to undertake a substantive infringement analysis. This inquiry was premature.


In the first quote, the term "infringement" is the same as the term ""new charge of infringement", otherwise you have to agree the Appeals Court was changing the subject in the very same sentence when they were asking a "whether...or" question.


----------



## Ergan's Toupe

James Long said:


> So you're going to rely on a reporter's biased opinion?


No. I'm going to rely on MY biased opinion. :grin:

I'm 98% sure I am going to the hearing. As long as I can tie up some personal loose ends, I will attend the hearing and take notes.


----------



## James Long

jacmyoung said:


> In the first quote, the term "infringement" is the same as the term "new charge of infringement", otherwise you have to agree the Appeals Court was changing the subject in the very same sentence when they were asking a "whether...or" question.


And yet you are not quoting TiVo vs Echostar ... so it all comes down to your misapplication of the terms.

The question you quote is one for an appeals court. The question Judge Folsom is asking is NOT that question. This isn't a 'new' charge.


----------



## dgordo

jacmyoung said:


> dgordo took that particular quote out of context


Actually I took it straight from Judge Folsom's ruling. I suppose you could claim Folsom took it out of context. :eek2:


----------



## jacmyoung

dgordo said:


> Actually I took it straight from Judge Folsom's ruling. I suppose you could claim Folsom took it out of context. :eek2:


No, rather Judge Folsom is disputing his boss's opinion, because in the second and third quotes, his boss never said their standard applied to only "new charges of infringement", just infringement analysis itself.

So yes you can say Judge Folsom had taken things out of the context, by construing his boss's "infringement analysis" as "new charges of infringement."

Are you saying Judge Folsom has been always correct? He did not notice the jury's hardware claims verdicts were wrong, he corrected his mistake for not doing the "colorable difference analysis" in his initial order, and he also no longer calls his order a bench trial.

He does not have to admit wrong in order to correct himself.


----------



## Greg Bimson

jacmyoung said:


> Are you saying Judge Folsom has been always correct? He did not notice the jury's hardware claims verdicts were wrong, he corrected his mistake for not doing the "colorable difference analysis" in his initial order, and he also no longer calls his order a bench trial.
> 
> He does not have to admit wrong in order to correct himself.


Needless to say, but someone didn't read what Judge Folsom wrote when the judge modified the order...


----------



## James Long

Greg Bimson said:


> Needless to say, but someone didn't read what Judge Folsom wrote when the judge modified the order...


Presented for those who need to read ...

EchoStar contends that this Court's November 20, 2008 Order was improper because this Court must first "make a threshold determination of 'whether infringement should be adjudicated in contempt proceedings' instead of requiring new charges of infringement to be determined in a new full trial." This threshold determination must consider whether there are "substantial open issues with respect to infringement," that is whether there are "colorable difference" between the adjudged and modified products. If such differences exist, then contempt proceedings are inappropriate.

EchoStar argues that this determination can not be made on the current record before this Court. For exactly this reason, this Court ordered a further hearing on the matter. _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._ *Such was always this Court's intention.*

... defense of raising the hardware claims removed ...

To conclude, this Court finds that its November 20, 2008 order set forth a course of action consistent with the mandate of this case, Federal Circuit precedent, and this Court's continuing power to enforce its own injunction. It will, however, be modified to reflect TiVo's decision not to continue pursuing its hardware claims at this time. All discovery obligations will remain in effect subject to the revised order setting the February hearing.​


----------



## jacmyoung

Greg Bimson said:


> Needless to say, but someone didn't read what Judge Folsom wrote when the judge modified the order...


Are you referring to people not reading the part the judge said about "adjudged software" which you noticed and called the judge, I quote, "*dead wrong*?"

I have yet seen TiVo making a big deal about it.


----------



## jacmyoung

James Long said:


> ... It will, however, be modified to reflect TiVo's decision not to continue pursuing its hardware claims at this time. All discovery obligations will remain in effect subject to the revised order setting the February hearing.[/indent]


Except it was modified much more so than the judge stated above, if you have noticed after reading the modified order:

1) It is no longer a bench trial, and
2) the first thing the judge will look at is the software colorable difference.

The above differences are critical, so much so that Greg is calling the judge "dead wrong" because the above changes make the past TiVo's argument go out of the window.


----------



## James Long

jacmyoung said:


> Except it was modified much more so than the judge stated above, if you have noticed after reading the modified order:
> 
> 1) It is no longer a bench trial, and
> 2) the first thing the judge will look at is the software colorable difference.
> 
> The above differences are critical, so much so that Greg is calling the judge "dead wrong" because the above changes make the past TiVo's argument go out of the window.


Tell it to Judge Folsom ... you can get the contact info off of the court website.

I'll trust HIS interpretations of HIS words over your interpretation any day.
That is why I leave the deciding of what his injunction means in his hands.


----------



## jacmyoung

James Long said:


> Tell it to Judge Folsom ... you can get the contact info off of the court website.
> 
> I'll trust HIS interpretations of HIS words over your interpretation any day.
> That is why I leave the deciding of what his injunction means in his hands.


You don't have to take my word at all and I never expected you to.

When you warned me that I did not read the judge's words carefully by quoting his words, I pointed out how his own words were inconsistent with his own modifications in the order, which you did not notice after reading them.

Those are facts, not meant to change your conviction.

I must confess I tend to read into his bosses' words more so than his own words. What can I say? I learned it the hard way myself with my past bosses


----------



## jacmyoung

I said right after the appeals court reversed the hardware claim verdicts that based on my reading, TiVo was unlikely to try to win back the hardware claim verdicts, no one believed me rather accused me of not knowing the law.

Now it is proven.

When I said it was the software that would determine the contempt issue, again I was ridiculed for not able to read the judge's order, in plain black and white.

Now I am also proven.

I can't wait to see the next one.


----------



## James Long

You say so much, much of it contradictory, just so you can be right?

Much like a broken watch that is right twice a day and wrong the other 1438 minutes.


----------



## Ergan's Toupe

jacmyoung said:


> I must confess I tend to read into his bosses' words more so than his own words. What can I say? I learned it the hard way myself with my past bosses


That's a good way to have ex-bosses.


----------



## Ergan's Toupe

James Long said:


> You say so much, much of it contradictory, just so you can be right?


DING! DING! DING!! WE HAVE A WINNER!!! :goodjob:


----------



## James Long

The history of the appeal ...
12/4/2008 MOTION: Entry 3 :by Petitioners - Petition for Writ of Mandamus. (Confidential and Non-Confidential Versions) SERVICE : by Mail on 12/4/2008

12/5/2008 MOTION: Entry 9 :by Petitioner - Motion to voluntarily dismiss writ of mandamus. SERVICE : by Mail on 12/5/2008

12/10/2008 ACTION: Entry 11 :Motion to dismiss petition for writ of mandamus is granted. 
12/10/2008 ACTION: Entry 12 :Motion granted. Each side shall bear its own costs.

The notice of appeal was posted on PACER in TX today ... only a couple of days after it was received.


----------



## jacmyoung

James Long said:


> You say so much, much of it contradictory, just so you can be right?
> 
> Much like a broken watch that is right twice a day and wrong the other 1438 minutes.


Another "broken record" of mine was when I said the judge was not right to order a bench trial to address the contempt motion, I remember everyone piling on me telling me how little I knew the law and what the judge could do.

The judge no longer calls his order a bench trial, rather an evidentiary hearing.

One can have everything straight and unbroken, but if he is not right in the end, then it is the worst kind of wrong one can get.

I much more prefer an end point that is right, even if on the path there may be many contridictions and broken trails.

I am three out of three so far, and looking forward to the next one.


----------



## James Long

My answer stands. Now, let's get back to TiVo vs Echostar.


----------



## dgordo

jacmyoung said:


> Another "broken record" of mine was when I said the judge was not right to order a bench trial to address the contempt motion, I remember everyone piling on me telling me how little I knew the law and what the judge could do.
> 
> The judge no longer calls his order a bench trial, rather an evidentiary hearing.
> 
> One can have everything straight and unbroken, but if he is not right in the end, then it is the worst kind of wrong one can get.
> 
> I much more prefer an end point that is right, even if on the path there may be many contridictions and broken trails.
> 
> I am three out of three so far, and looking forward to the next one.


You also said this:



jacmyoung said:


> E* motioned for a new trial, Judge Folsom could rightfully arrange that, as long as no one objects to it, it is therefore nothing special.


which is wrong, and this:



jacmyoung said:


> This contempt proceeding is over.


which is wrong, and this:



jacmyoung said:


> The motion is granted by the judge! Only not in the way TiVo asked for.


which is wrong, and this:


jacmyoung said:


> A "complaint" is a common term used by the court to refer to a trial.


which is wrong, and this:



jacmyoung said:


> There is no requirement only TiVo may initiate a complaint, anyone can, E* can, the judge can, you can and I can, as long as the complaint has merit and as long as the party making the complaint has the resources and desire to do so.


which is wrong. Should I go on? By guessing at everything you certainly got something right, but lets not exaggerate your stats.


----------



## vampz26

jacmyoung said:


> I am three out of three so far, and looking forward to the next one.


Since you are the only umpire and the only one keeping score on your behalf, there can be no doubt here.... :lol: :lol: :lol:


----------



## jacmyoung

vampz26 said:


> Since you are the only umpire and the only one keeping score on your behalf, there can be no doubt here.... :lol: :lol: :lol:


Not true, everyone else is more than happy to keep a score card for me, dgordo just did it. Unfortunately no one on the other side is even willing to look at his own score yet

I will say this the fact E* now is ready to go forward with the hearing, after forcing the judge to look at the software colorable difference issue first, a no contempt is almost certain. Because the new software is more than colorably different compared to the old software.

I am also confident the software and the DVRs no longer infringe. The only exception will be if E* was basically lying about the new software in the past few months. But if so, E* would have appealed to avoid the hearing or tried to delay it.

I am even more confident now than before.


----------



## James Long

jacmyoung said:


> .... after forcing the judge to look at the software colorable difference issue first. ...


How arrogant can you be? Echostar forced NOTHING ... read the DENIAL of the stay they asked for. Come join the real world, not jac's fantasyland.

BTW: This thread isn't about *your* score ... this thread is about Tivo vs Echostar.

:backtotop


----------



## vampz26

was he just bragging about dgordo's scorecard?!?!? :eek2: 

All I can say is that when its more about the 'arguing' than the 'argument', than you wind up with situations like this where its more self-contradiction than point.

Seriously...if anyone has any technical specs regarding the software, I'd love to see them and provide my opinion. I have experience in these types of things and would love to add value from a technical perspective, not just a legal one...

Thanks...


----------



## jacmyoung

James Long said:


> ... this thread is about Tivo vs Echostar.
> 
> :backtotop


And that was exactly I said in my last post, E* will win, because a contempt proceeding is about looking at the colorable difference first, and determine if the difference is more than or merely colorable. If merely colorable, a contempt, and if more than colorable, no contempt, period.

Anything else can be addressed later, even if in the same hearing, but first thing first. And the first thing Judge Folsom said he will do is to determine if the new software is more than colorably different or not.

It is my view, based on the new software evidence, it is more than colorably different:

1) The old software used an index table, the new software does not;
2) The old software stored the parsed index info onto a temporary memory buffer for later use in DVR trickplays, the new software does not save such info anywhere because no such index info is generated.
3) The old software had a "source object" to retrieve the temporarily stored info, the new software does not have such "source object" at all.
4) The old softwere used multiple buffers to achieve the "automatic flow control", the new software has only a single buffer, does not and cannot have such automatic flow control.

The above are the differences, TiVo did not dispute those evidence at all.

To say the differences are only colorable, one must prove two are "essentially the same". Based on the above, the new and the old software are almost certainly not essentially the same.

Once the judge has determined more than colorable difference, he must rule no contempt. Because this is the first thing the Circuit Court said a District Court judge needs to do in a contempt proceeding.

And this is also why Greg was very disturbed by the software colorable difference analysis.


----------



## James Long

Repeating stuff that has already been refuted does not make it true.
We passed that point in the discussion months ago ... and actually rehashed it already earlier in this thread.

Got anything new? The only honest answer is NO since Tivo and DISH have not released anything new in an unsealed form in quite a while.


----------



## vampz26

jacmyoung said:


> 1) The old software used an index table, the new software does not;
> 2) The old software stored the parsed index info onto a temporary memory buffer for later use in DVR trickplays, the new software does not save such info anywhere because no such index info is generated.
> 3) The old software had a "source object" to retrieve the temporarily stored info, the new software does not have such "source object" at all.
> 4) The old softwere used multiple buffers to achieve the "automatic flow control", the new software has only a single buffer, does not and cannot have such automatic flow control.
> 
> .


1) how was the index table implemented? was the index table a file on disk, or was it an in memory at run-time? I'm assuming its NOT on disk, given the IO requirements would demand speed, but still...the specifics of an index table vary enough to beg the question.

2) parsed? From where? Memory buffer...ok..I can only assume by your vague testimony that there is some type of index in memory read off a disk. thats nothing new...btw...

3) than how does the 'source object' that is not a 'source' object retrieve the info? A rose by any other name is still a rose. What mechanism is replaceing the source object in the scenario you described?

4) how so? Buffers are funny things. Multiple buffers can be implemented in single buffer model, so long as the pointers to that which get pushed off the queue remain in sync. This could very well be a more efficient model since the syncrhonization is limited to a singly allocated unit of memory, instead of many. What specifically is the technical definition of 'automatic flow control'? I can guess, but why? You have all the answers and I'd love to hear them.


----------



## jacmyoung

vampz26 said:


> 1) how was the index table implemented? was the index table a file on disk, or was it an in memory at run-time? I'm assuming its on disk, given the IO requirements would demand speed, but still...the specifics of an index table vary enough to beg the question.
> 
> 2) parsed? From where? Memory buffer...ok..I can only assume by your vague testimony that there is some type of index in memory read off a disk. thats nothing new...btw...
> 
> 3) than how does the 'source object' that is not a 'source' object retrieve the info? A rose by any other name is still a rose. What mechanism is replaceing the source object in the scenario you described?
> 
> 4) how so? Buffers are funny things. Multiple buffers can be implemented in single buffer model, so long as the pointers to that which get pushed off the queue remain in sync. This could very well be a more efficient model since the syncrhonization is limited to a singly allocated unit of memory, instead of many. What specifically is the technical definition of 'automatic flow control'? I can guess, but why? You have all the answers and I'd love to hear them.


It is undisputed that TiVo received the full software code from E* before the 5/30 meeting, it is undisputed that TiVo's engineers looked at the code, TiVo's Rogers said so himself. It is also undisputed that TiVo did not say, based on their review of the code that the index table was not removed, and the info was still stored on the temp buffer, and there was still this source object and there was still more than one buffer, and there was still automatic flow control.

The only thing TiVo is saying is E* still uses the PID filter, therefore TiVo does not dispute the above differences.

It does not matter what you want, or what I want, what matters is what E* is saying, and what TiVo is saying, and what the judge will say.

If one side is saying your honor here are the differences, and the other side says yes but there is still one thing that is the same, the question is can the judge say well because there is still one thing remains the same, they are the same, regardless all the other differences that are not in dispute?


----------



## vampz26

jacmyoung said:


> It is undisputed that TiVo received the full software code from E* before the 5/30 meeting, it is undisputed that TiVo's engineers looked at the code, TiVo's Rogers said so himself. It is also undisputed that TiVo did not say, based on their review of the code that the index table was not removed, and the info was still stored on the temp buffer, and there was still this source object and there was still more than one buffer, and there was still automatic flow control.
> 
> The only thing TiVo is saying is E* still uses the PID filter, therefore TiVo does not dispute the above differences.
> 
> It does not matter what you want, or what I want, what matters is what E* is saying, and what TiVo is saying, and what the judge will say.
> 
> If one side is saying your honor here are the differences, and the other side says yes but there is still one thing that is the same, the question is can the judge say well because there is still one thing remains the same, they are the same, regardless all the other differences that are not in dispute?


James is right...you do contradict yourself...count the double negatives in your post....its almost like your trying to con your way out of an argument...

but I don't care.

What I do care about is some concrete technical analysis on this piece. Not legal hearsay that can be translated into double negatives for the confused to convey and the doubley-confused to pretend they concur with.

I want to offer my expert opinion. I would like to see some technical specs that model the software in question. If I could see some of that, I could tell you first hand what the differences are with the software in question in a straightforward and non-biased matter. Without that...oh well...I tried.


----------



## Greg Bimson

So let's finally try to use reason on this...


jacmyoung said:


> It does not matter what you want, or what I want, what matters is what E* is saying, and what TiVo is saying, and what the judge will say.
> 
> If one side is saying your honor here are the differences, and the other side says yes but there is still one thing that is the same, the question is can the judge say well because there is still one thing remains the same, they are the same, regardless all the other differences that are not in dispute?


Simple.

DISH/SATS has only stated they've changed the software enough to allow the receivers to avoid one (the 50X DVR's) or two (the Broadcom DVR's) steps of the infringed claims.

If the changes made did not remove all of the pieces which were found to meet step limitations, it is only colorably different.


jacmyoung said:


> It is undisputed that TiVo received the full software code from E* before the 5/30 meeting, it is undisputed that TiVo's engineers looked at the code, TiVo's Rogers said so himself. It is also undisputed that TiVo did not say, based on their review of the code that the index table was not removed, and the info was still stored on the temp buffer, and there was still this source object and there was still more than one buffer, and there was still automatic flow control.
> 
> The only thing TiVo is saying is E* still uses the PID filter, therefore TiVo does not dispute the above differences.


There is no use to dispute the above differences, because the PID filtering was found to meet the "analysis" step during the trial, just like the index table was found to meet the analysis step of the Hardware Claims which were reversed.

And TiVo did bring up the "automatic flow control". The law of this case is that "automatic flow control" is defined as the software self-regulates.

Discussing index tables is useless as that wasn't the only analysis being performed.

Discussing temp buffers is useless because DISH/SATS still use temp buffers.


----------



## jacmyoung

Greg Bimson said:


> ...If the changes made did not remove all of the pieces which were found to meet step limitations, it is only colorably different...


To the contrary, if the changes made removed only one piece, the difference will be more than colorable.

Whether the changes have made it non-infringing is another question.

But you are wrong on the first question of colorable difference.

The PID filter item is not a "difference" rather a "sameness", meaning it did not change, it is the same. During the colorable difference analysis, only the differences will be looked at, not the sameness.

Now after the judge is done with the colorable difference analysis, he can go further to look at the PID filter to decide if mere use of the PID filter still meets all the steps, such as steps 1, 2, 4 and 6, which includes the temporary memory storage, the source object and automatic flow control which E* claims are now gone.


----------



## dgordo

jacmyoung said:


> To the contrary, if the changes made removed only one piece, the difference will be more than colorable.


That's not the standard:



> In determining whether the changes made were merely colorable, and therefore a contempt, it is necessary to apply the doctrine of equivalents. This doctrine has been described by the Supreme Court as follows: " '_f two devices do the same work in substantially the same way, and accomplish substantially the same result, they are the same, even though they differ in name, form, or shape.' "_


----------



## Greg Bimson

jacmyoung said:


> To the contrary, if the changes made removed only one piece, the difference will be more than colorable.
> 
> Whether the changes have made it non-infringing is another question.


I am not going to debate the definition of colorable difference. I am simply going to cite the case we all know and love (_KSM_), by way of _American Foundry v. Josam_, and pay attention to Paragraph 57:


> 54
> The following analysis from American Foundry & Mfg. Co. v. Josam, 79 F.2d at 117, 26 USPQ at 339, indicates again the importance of the initial question:
> 
> 55
> As will be hereinafter shown, all subsequent constructions by a convicted infringer are not triable in contempt proceedings. Only where such constructions are merely "colorably" different from the enjoined device or from the patent is the issue so triable. Such constructions may turn out to be infringements, but if they are more than "colorably" different, the issue of infringement must be otherwise determined than by a contempt proceeding. Therefore, when the issue of infringement is presented in a contempt proceeding, the court must first determine whether it can properly entertain the issue in that proceeding. The propriety of the trial court's determination that it should pass upon the 1933 device in a contempt proceeding is the issue which must be first determined by this court now. This issue is determinable by measuring the facts here by the legal definition of "colorable" as understood in connection with contempt proceedings for violation of a patent infringement injunction order. It is necessary to understand and state such definition.
> 
> 56
> The American Foundry court then defined "colorable" by the "fair ground of doubt" language from California Artificial Stone Paving and endorsed the Second Circuit view that:
> 
> 57
> Where the alteration in the device is "merely colorable" and obviously was made for the purpose of evading the decree without essential change in the nature of the device, the courts will try the question of infringement by the new device in proceedings for contempt for violation of the injunction [Citations omitted.] *But where infringement by the new device is not clear on the face of the matter, and there are substantial issues for the determination of the court, the plaintiff may not have them determined in contempt proceedings, but must bring a supplemental bill for an injunction covering the new device, or institute a wholly new suit for such an injunction.*


"But where infringement by the new device is not clear on the face of the matter".

If the receiver still "analyzes" as was found during the trial, then there is not a substantial issue on that step of the claim.

If the receiver still "self-regulates", the law of the case for the step regarding "automatic flow control", then there is not a substantial issue on that step of the claim.


jacmyoung said:


> The PID filter item is not a "difference" rather a "sameness", meaning it did not change, it is the same. During the colorable difference analysis, only the differences will be looked at, not the sameness.


Right. So you are suggesting that if someone placed a sticker on the box, that is more than colorably different, because the infringing model didn't have a sticker.

If there is no difference between infringing boxes and these modified boxes, there would be no list of differences at all, and these would automatically be merely colorably different.

It isn't only the differences between the devices which are addressed.


----------



## Greg Bimson

jacmyoung said:


> Now after the judge is done with the colorable difference analysis, he can go further to look at the PID filter to decide if mere use of the PID filter still meets all the steps, such as steps 1, 2, 4 and 6, which includes the temporary memory storage, the source object and automatic flow control which E* claims are now gone.


DISH/SATS does not state that 1, 2, 4 and 6 no longer are met. They only state that they no longer meet the "analyze/parse" step and the "automatic flow control/self-regulate" step of the patent claims.


----------



## Ergan's Toupe

dgordo said:


> That's not the standard:


You guys keep spoon feeding him and he just keeps throwing up on your shoulder. :lol:


----------



## CuriousMark

The upcoming hearing is about colorable difference of the software. A summary of positions, even if repeating old discussions may be valuable to new readers.



jacmyoung said:


> It is my view, based on the new software evidence, it is more than colorably different:
> 
> 1) The old software used an index table, the new software does not;


The new software uses a table of statistics values collected by analyzing the video stream as it is read from disk for playback. Similar analysis, just done at a different time.


> 2) The old software stored the parsed index info onto a temporary memory buffer for later use in DVR trickplays, the new software does not save such info anywhere because no such index info is generated.


At playback time the new software stores its statistics table in a temporary memory buffer for potential current use in DVR trick play.


> 3) The old software had a "source object" to retrieve the temporarily stored info, the new software does not have such "source object" at all.


It does have a source object, it is the input sections of the DVR. The contention that such an object no longer even exists is arguably false. The judge will have to determine which position is right about that.


> 4) The old software used multiple buffers to achieve the "automatic flow control", the new software has only a single buffer, does not and cannot have such automatic flow control.


The new software uses hardware buffers, the FIFO in the broadcom chip for example and utilizes tight timing constraints to eliminate the need for a second large software controlled buffer. The FiFO in and of itself provides limited flow control in hardware.

Let the reader be the judge of whether or not he sees those differences as being merely colorable or more than colorable. Dish and TiVo will provide arguments on all those point and more in their upcoming submissions to the court. If they are not sealed, we will get to see them and better understand what is going on in the unit. Then technical people can analyze the arguments and provide fodder for further discussion.

I for one would love to also here Vampz version of this analysis, I am sure it will differ from mine. The fact that knowledgeable technical people can disagree on the details is a strong indication that the legal fight will be even more argumentative.

edit: I see Vampz has replied to some of the same things I did with the essentially the same reasoning. My reasoning is based on Dish's patent disclosure that says why and how their new software is not the same as the old software. A strange way to write a patent disclosure, but that is what they did. In that disclosure they lay out the steps they would take. In my analysis I have to assume that the workaround software matches what was described in the patent disclosure, which could be different.


----------



## Ergan's Toupe

CuriousMark said:


> The new software uses hardware buffers, the FIFO in the broadcom chip for example and utilizes tight timing constraints to eliminate the need for a second large software controlled buffer. The FiFO in and of itself provides limited flow control in hardware.
> 
> Let the reader be the judge of whether or not he sees those differences as being merely colorable or more than colorable.


If it looks like a duck and quacks like a duck....


----------



## James Long

CuriousMark said:


> I for one would love to also here Vampz version of this analysis, I am sure it will differ from mine. The fact that knowledgeable technical people can disagree on the details is a strong indication that the legal fight will be even more argumentative.


The problem is all we have are a few crumbs. The best information is kept under seal with only limited information released.

The most we know about DISH's new software is the patent application ... which makes a lot of claims about what DISH believes they can do without replicating the process in TiVo's process.

There has been ample opportunity to discuss the process in the patent ... one can go back to the threads from May to read that discussion. Is there anything more to be said than "wait for the judge to rule"?


----------



## jacmyoung

CuriousMark said:


> ...The new software uses a table of statistics values collected by analyzing the video stream as it is read from disk for playback. Similar analysis, just done at a different time....


Good point, now you do agree there is a difference? The question is does such difference raise an open issue as whether it still meet the claims step 1 when such table must be established by the physical data source and stored into a temporary memory? If the answer is no, then an open issue is now raised whether the step 1 is still met.



> At playback time the new software stores its statistics table in a temporary memory buffer for potential current use in DVR trick play.


Similar to the above, if such table is not parsed out as described in step 1, and not stored by any of those physical data source in step 1, rather generated in a much later step by something else, is step 1 still met? If there is the doubt (remember E* does not have to prove step 1 is not met, only to create the doubt) whether it is still met, the difference is more than colorable, another open issue has been raised.



> It does have a source object, it is the input sections of the DVR. The contention that such an object no longer even exists is arguably false. The judge will have to determine which position is right about that.


The source object is most definitely not a part of the input section because otherwise is should be called an input section, not a source object, remember the term "input device" is separately defined in the claims.

But regardless, the question is does the removal of such source object raise another open issue as whether step 2 is met or not even if there may be some other things that TiVo can again call a source object that still extract that table in a much later step? If so another open issue has been raised.



> The new software uses hardware buffers, the FIFO in the broadcom chip for example and utilizes tight timing constraints to eliminate the need for a second large software controlled buffer. The FiFO in and of itself provides limited flow control in hardware.


The FIFO buffer resides in the PID filter, stores incoming MPEG A/V streams before sending the streams to the PID filter for parsing. This buffer has nothing to do with the "automatic flow control" in steps 4 and 6. Again the question is not if the FIFO buffer which is still the same as before being the issue, rather the removal of those multiple buffers which served the "self-regulating" function, has raised another open issue as whether steps 4 and 6 are still met.

The judge will decide if E* has raised substantial open issues as whether those claims steps are still met or not. If the answer is yes, the differences are more than colorable, if no, the differences are only colorable.

Notice your analysis is that of an infringement analysis, not a colorable difference analysis. You tried to prove those differences still cause those claim steps to be met. But in a colorable difference analysis, it is only to determine if the differences have created any doubt, raised substantial open issues. There is no further proving those steps are still met, only to demonstrate maybe, just maybe, the steps may no longer be met due to such differences. Once that maybe is confirmed, the more than colorable decision is done.

Now again, as I said, after the colorable difference analysis, the judge can then go further into an infringement analysis, to answer your questions, even if after establish those doubts, do the changes still cause those steps to be met anyway? I have said such next step of infringement analysis is premature in a contempt proceeding, but if E* decides not to object to it, it obviously can proceed to the next step.

But once in the first step the differences are ruled to be more than colorable, there cannot be a contempt, that is the rule.

Where I see the judge making this process work is, after the more than colorable decision, he can say the contempt issue is over because of the no contempt decision, and he immediately follows it with his infringement analysis next, and if the ruling is of infringement again, he can then issue a new injunction, not only to disable those 4 million DVRs, but anyone installed after them, up to the time of the new injunction date.

Now in an infringement analysis, I must disagree with you on your above method of proving the steps are still met. Because each step is analyzed separately, by method of literally meeting it, or meeting it on the equivalents. Therefore each step is examined on its own, for example on step one, does a physical data source exist to parse the incoming A/V data, and if so does it then build a table and save the table in a temporary memory for later use during trickplays? For step two, is there still a source object that does nothing but to extract that table that is stored in that temporary memory? And for steps 4 or 6, are there still multiple buffers that serve the function of automatic flow control, or self-regulation, and that function only?

And if there is only one "no" answer, at least one of the steps will not have been met either literally or by equivalents, and there will be no infringement.


----------



## CuriousMark

James Long said:


> Is there anything more to be said than "wait for the judge to rule"?


Probably nothing of serious value. Attempt to correct misinformation are still of some minor use.


----------



## Curtis52

jacmyoung said:


> The question is does such difference raise an open issue as whether it still meet the claims step 1 when such table must be established by the physical data source and stored into a temporary memory? If the answer is no, then an open issue is now raised whether the step 1 is still met.


What table? There is no mention of a table in the software claims.


----------



## jacmyoung

Curtis52 said:


> What table? There is no mention of a table in the software claims.


You should ask mark, he said there is still a table.


----------



## Curtis52

jacmyoung said:


> You should ask mark, he said there is still a table.


I am talking about the software claims, not what Dish has or doesn't have. There is no table in the claims. I can read. Anyone can read.


----------



## CuriousMark

jacmyoung said:


> You should ask mark, he said there is still a table.


Yes, but it has nothing to do with claim 31. I was talking to the Dish patent filing as it related to your list of comments and only that.

By the way, I think under DOE, the table of statistics would count, even though it is used during play back and not recording. It is essentially the same thing, being used for the same purpose, only the order and details of what is stored has changed. But Curtis is right, it does not matter in a claim 31 DOE. It would matter if we were still discussing the hardware claims. You brought it up and I replied to it simply because it was there.

Curtis has had the clearest most accurate voice in this discussion to date.


----------



## jacmyoung

CuriousMark said:


> Yes, but it has nothing to do with claim 31. I was talking to the Dish patent filing as it related to your list of comments and only that.
> 
> By the way, I think under DOE, the table of statistics would count, even though it is used during play back and not recording. It is essentially the same thing, being used for the same purpose, only the order and details of what is stored has changed. But Curtis is right, it does not matter in a claim 31 DOE. It would matter if we were still discussing the hardware claims. You brought it up and I replied to it simply because it was there.
> 
> Curtis has had the clearest most accurate voice in this discussion to date.


Except Curtis and I had discussed that already, the table was the "core of the invention" as TiVo said to prove E*'s infringement, because "they have the table, we have the table," and without such table the DVR things patented by TiVo simply could not work.

The only response Curtis had was, but TiVo was justified to bring the table in as the evidence to prove infringement on the software claims, but somehow he argues that the same table evidence cannot be used by E* to even create the doubt whether the software claims are still met. If this is how our justice system works, then we might as well conclude with Curtis, this is Russia.


----------



## CuriousMark

jacmyoung said:


> The only response Curtis had was, but TiVo was justified to bring the table in as the evidence to prove infringement on the software claims, but somehow he argues that the same table evidence cannot be used by E* to even create the doubt whether the software claims are still met. If this is how our justice system works, then we might as well conclude with Curtis, this is Russia.


And my point in response to you is that even if you try to include the table to create doubt, it doesn't fly. Dish uses a table of statistics collected by analyzing the video/audio stream during playback from the hard disk. It is the same thing, just in a different order. Under DOE it creates no additional doubt whatsoever.


----------



## jacmyoung

CuriousMark said:


> And my point in response to you is that even if you try to include the table to create doubt, it doesn't fly. Dish uses a table of statistics collected by analyzing the video/audio stream during playback from the hard disk. It is the same thing, just in a different order. Under DOE it creates no additional doubt whatsoever.


Unfortunately it is not described in the TiVo's patent of such method.

Remember, to find infringement, each step in the software claims must be met, literally or by equivalents. By the lower standard of proof of the equivalents, you have to prove the two methods (in each step BTW) serve substantially the same function, in substantially the same way, and to achieve substantially the same result.

If even one of the above three is not substantially the same, there is the doubt, and in fact the step is not met.


----------



## Curtis52

jacmyoung said:


> The only response Curtis had was, but TiVo was justified to bring the table in as the evidence to prove infringement on the *software* claims, but somehow he argues that the same table evidence cannot be used by E* to even create the doubt whether the software claims are still met. If this is how our justice system works, then we might as well conclude with Curtis, this is Russia.


You misspelled "*hardware*".



Curtis52 said:


> The trial covered both hardware claims and software claims. The media switch and the index are covered in the hardware claims. They are *not a part of the software claims*.


----------



## Greg Bimson

jacmyoung said:


> The only response Curtis had was, but TiVo was justified to bring the table in as the evidence to prove infringement on the software claims, but somehow he argues that the same table evidence cannot be used by E* to even create the doubt whether the software claims are still met. If this is how our justice system works, then we might as well conclude with Curtis, this is Russia.


To understand, meeting the "analysis" step limitation happened TWICE.

On two of the Hardware and two of the Software Claims, evidence of the existence of a table by which the receiver analyzes trick plays was shown.

On two of the Hardware and two of the Software Claims, evidence of the PID filter, called a parser, which the receiver uses to analyze incoming data was shown.

Just because the table was removed does not mean the analysis isn't occurring; the analysis of the PID parser still meets that step limitation.


----------



## jacmyoung

Curtis52 said:


> You misspelled "*hardware*".


No you only cared to look at the hardware claims, in proving software claims TiVo also used the frame index table as evidence. I have quoted TiVo's software claims infringement contentions before, read them and you will see them.


----------



## Curtis52

Greg Bimson said:


> In two of the Hardware and two of the Software Claims, evidence of the existence of a table by which the receiver analyzes trick plays was shown.


As you pointed out, it doesn't make a difference, but do you have a quote or a reference for the software claim part of it?


----------



## jacmyoung

Curtis52 said:


> As you pointed out, it doesn't make a difference, but do you have a quote or a reference for the software claim part of it?


They are in one of my previous posts, highlighted too.


----------



## jacmyoung

Greg Bimson said:


> To understand, meeting the "analysis" step limitation happened TWICE.
> 
> On two of the Hardware and two of the Software Claims, evidence of the existence of a table by which the receiver analyzes trick plays was shown.
> 
> On two of the Hardware and two of the Software Claims, evidence of the PID filter, called a parser, which the receiver uses to analyze incoming data was shown.
> 
> Just because the table was removed does not mean the analysis isn't occurring; the analysis of the PID parser still meets that step limitation.


How many times must be mentioned parsing alone cannot meet step one?

Have you read Mark's definition of the PID filter? The PID filter consists the following parts:

1)	An FIFO memory buffer accepts incoming MPEG streams, temporarily stores them.
2)	The PID circuit has a fixed sample frame ID table already built in.
3)	After the A/V streams are passed from the FIFO memory buffer to the PID circuit, the packet IDs of the streams are compared to the IDs in the fixed table, any unmatched packets are thrown away, and any matched packets are then passed along to the next step for further processing to be displayed on TV.

Now tell me how the above process serves substantially the same functions, in substantially the same way, to achieve substantially the same result as the Step One where:

1)	A "physical data source" accepts the incoming MPEG streams (without first passing through a buffer such as FIFO)
2)	That "physical data source" parses the streams into separate A/V streams, builds a frame index table for each A/V streams (unlike the PID filter which has a fixed table built in);
3)	Then the "physical data source" stores such index info onto a temporary memory buffer for later use during DVR trickplays.

The question you need to ask is, are the above two groups of three steps, serve substantially the same function? Doing so in substantially the same way? And to achieve substantially the same result?

If you cannot say yes to even one of the above questions, the step is not met.

Don't just take what TiVo said as truth, because TiVo said the software needed not matter, infringing products were always infringing products, you took that to heart, how did it work out for you?


----------



## Greg Bimson

jacmyoung said:


> The question you need to ask is, are the above two groups of three steps, serve substantially the same function? Doing so in substantially the same way? And to achieve substantially the same result?


Then you are asking the wrong questions.


Curtis52 said:


> As you pointed out, it doesn't make a difference, but do you have a quote or a reference for the software claim part of it?


I can only go by DISH/SATS response to TiVo's motion for contempt. I believe that is what jacmyoung is crowing about:


> Although software claims 31 and 61 do not require the Media Switch, they call for "a physical data source" that "accepts broadcast data from and input device, parses video and audio data from said broadcast data, and temporarily stores said video and audio data." [&#8230;] Thus, *all '389 patent claims required this analysis function.*


Of course, the paragraph from the response continues:


> According to TiVo's infringement expert, EchoStar's accused DVRs satisfied the parsing - or analyzing - function by generating what was referred to as a "table" or "index" that kept track of where frames started and where audio and video components were stored.


So they removed the table, therefore removing analysis.

But not all analysis. The PID filter was also discussed as an analysis. And the receivers still do that...


----------



## Curtis52

Greg Bimson said:


> Although software claims 31 and 61 do not require the Media Switch, they call for "a physical data source" that "accepts broadcast data from and input device, parses video and audio data from said broadcast data, and temporarily stores said video and audio data." [&#8230;] Thus, all '389 patent claims required this analysis function.
> 
> 
> 
> All the claims require analysis of one kind or another. I'll agree with that.
> 
> 
> 
> According to TiVo's infringement expert, EchoStar's accused DVRs satisfied the parsing - or analyzing - function by generating what was referred to as a "table" or "index" that kept track of where frames started and where audio and video components were stored.
> 
> Click to expand...
Click to expand...

What isn't clear is whether TiVo's expert was talking about the software claims or the hardware claims at this point. In any case, as you said, there was more than one type of parsing going on.


----------



## jacmyoung

Greg Bimson said:


> Then you are asking the wrong questions.I can only go by DISH/SATS response to TiVo's motion for contempt. I believe that is what jacmyoung is crowing about:Of course, the paragraph from the response continues:So they removed the table, therefore removing analysis.
> 
> But not all analysis. The PID filter was also discussed as an analysis. And the receivers still do that...


Now I think I have finally see your argument, because E* said all TiVo's claims required such analysis, therefore if such analysis is gone, E* no longer infringes.

But the reverse is not true. Keep in mind the above is not the same as saying "analysis" alone will meet all TiVo's claims. "Parse" is only one of the many functions described in those steps, there are many more functions or constructions, such as "store", "extract", "auto flow control"&#8230;just to name a few. You can still have "parse", but if "store" no longer happens after the "parse", step one is no longer met, if "extract" no longer happens after "store", step 2 is no longer met, and if "auto flow control" no longer happens, steps 4 and 6 are no longer met.


----------



## Curtis52

jacmyoung said:


> You can still have "parse", but if "store" no longer happens after the "parse", step one is no longer met, if "extract" no longer happens after "store", step 2 is no longer met, and if "auto flow control" no longer happens, steps 4 and 6 are no longer met.


There isn't much in the way of chronology in the claims. If an order isn't specifically recited, the steps can be performed in any order.


----------



## Greg Bimson

Curtis52 said:


> The claims don't specify a chronology.


Absolutely correct.


jacmyoung said:


> But the reverse is not true. Keep in mind the above is not the same as saying "analysis" alone will meet all TiVo's claims. "Parse" is only one of the many functions described in those steps, there are many more functions or constructions, such as "store", "extract", "auto flow control"&#8230;just to name a few.


Correct. However, DISH/SATS has only stated they no longer analyze and they no longer flow-control. Therefore, one can assume everything else is still being done until DISH/SATS claims they don't do it... They'd have included it in their response to TiVo's contempt motion.


----------



## CuriousMark

jacmyoung said:


> Have you read Mark's definition of the PID filter? The PID filter consists the following parts:
> 
> 1)	An FIFO memory buffer accepts incoming MPEG streams, temporarily stores them.
> 2)	The PID circuit has a fixed sample frame ID table already built in.
> 3)	After the A/V streams are passed from the FIFO memory buffer to the PID circuit, the packet IDs of the streams are compared to the IDs in the fixed table, any unmatched packets are thrown away, and any matched packets are then passed along to the next step for further processing to be displayed on TV.
> 
> Now tell me how the above process serves substantially the same functions, in substantially the same way, to achieve substantially the same result as the Step One where:
> 
> 1)	A "physical data source" accepts the incoming MPEG streams (without first passing through a buffer such as FIFO)
> 2)	That "physical data source" parses the streams into separate A/V streams, builds a frame index table for each A/V streams (unlike the PID filter which has a fixed table built in);
> 3)	Then the "physical data source" stores such index info onto a temporary memory buffer for later use during DVR trickplays.


Oh my. What you typed is NOT what is posted in the definition. Only the selected packets, whose contents match the ID's in the table stay in the FIFO Nonmatching packets get overwritten. This means you should think of the FIFO as the OUTPUT of the PID filter, not the input. The table of PIDs to match is programmed into the chip by the software and the PIDS correspond to the IDs for the audio and video streams for a particular channel.

Now:
1) The physical data source is the demodulator and PID filter that takes the digital transponder stream from the demodulator writes it into the PID filter FIFO. Yup, we have a physical hardware data source. 
2) The PID filter, which is in the physical data source parses the A/V streams from the transponder stream leaving only the A/V stream for that channel to pass all the way through the FIFO to its output port.
No frame index table is built in this step since it will be done during playback. 
3) Software stores this data to the hard drive for later playback.
4) On playback the data is read from the hard drive and analyzed. The analysis places statistics into a table that can be used similarly to the frame index table (just a little less accurately) to do trick play.

Hmm, they moved part of a step to a later place, but shucks, IT IS STILL THERE. Yup they are substantially the same function. Except for order and accuracy they are substantially the same way. And they achieve substantially the same result, trick play on playback. I see how you could be confused by leaving out the playback step, but that would be cheating. Moving a portion of a step to later does not make it new. Degrading the moved step so that it is less accurate, is that new, well that is up to the judge, but I personally would think not.


----------



## jacmyoung

Curtis52 said:


> There isn't much in the way of chronology in the claims. If an order isn't specifically recited, the steps can be performed in any order.


Each step must be met both literaly or by equivalents. Meaning for each step, you find a bunch of things that perform the same function, in the same way, to achieve the same result.

If in step one, there is parse, but no temp buffer to store such parsed info, the step is not met, even if in another part some other buffer is storing some other info. Because at a minimum, the way of doing it is different for step one to be met.


----------



## Greg Bimson

Curtis52 said:


> If in step one, there is parse, but no temp buffer to store such parsed info, the step is not met, even if in another part some other buffer is storing some other info. Because at a minimum, the way of doing it is different for step one to be met.


Again, DISH/SATS still uses a buffer. There doesn't need to be a temporary buffer to store parsed information, there simply must be a temporary buffer.

And again, DISH/SATS does not argue they no longer have a buffer. They have only argued they no longer analyze pre-storage (where the parse step does not matter where the parsing occurs) and they no longer automatically flow-control. We haven't seen enough of the information on that argument.


----------



## peak_reception

I for one really appreciate the technical discussion and do not recall such depth of analysis from back in May or june (could be I didn't have time or energy to follow it back then if it was done this thoroughly). Now I understand why the "hardware" claims were not pursued by TiVo and am getting a handle on the other technical issues as well. 

Assuming Judge Folsom has the ability to analyze and understand all these issues, I still wonder if he will be up to speed on it by the Feb. hearing.... I guess we'll find out.


----------



## James Long

We have _*not*_ seen a lot of information ... but that doesn't stop the discussion. 
I trust that the highly paid individuals working for TiVo and DISH will look after their client's interests.


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## Curtis52

Greg Bimson said:


> Originally Posted by *Curtis52*
> _If in step one, there is parse, but no temp buffer to store such parsed info, the step is not met, even if in another part some other buffer is storing some other info. Because at a minimum, the way of doing it is different for step one to be met._
Click to expand...

Misattribution. I didn't say it.


----------



## peak_reception

James Long said:


> We have _*not*_ seen a lot of information ... but that doesn't stop the discussion.


 If you're not getting anything out of the discussion you can merely skip over it to see if anyone is violating DBSTalk.com posting guidelines  


> I trust that the highly paid individuals working for TiVo and DISH will look after their client's interests.


  And your point is?


----------



## Ergan's Toupe

peak_reception said:


> Now I understand why the "hardware" claims were not pursued by TiVo .....


Awesome. Could you explain it to me? I can't figure it out for the life of me.


----------



## vampz26

CuriousMark said:


> The upcoming hearing is about colorable difference of the software. A summary of positions, even if repeating old discussions may be valuable to new readers.
> 
> The new software uses a table of statistics values collected by analyzing the video stream as it is read from disk for playback. Similar analysis, just done at a different time.
> 
> At playback time the new software stores its statistics table in a temporary memory buffer for potential current use in DVR trick play.
> 
> It does have a source object, it is the input sections of the DVR. The contention that such an object no longer even exists is arguably false. The judge will have to determine which position is right about that.
> 
> The new software uses hardware buffers, the FIFO in the broadcom chip for example and utilizes tight timing constraints to eliminate the need for a second large software controlled buffer. The FiFO in and of itself provides limited flow control in hardware.
> 
> Let the reader be the judge of whether or not he sees those differences as being merely colorable or more than colorable. Dish and TiVo will provide arguments on all those point and more in their upcoming submissions to the court. If they are not sealed, we will get to see them and better understand what is going on in the unit. Then technical people can analyze the arguments and provide fodder for further discussion.
> 
> I for one would love to also here Vampz version of this analysis, I am sure it will differ from mine. The fact that knowledgeable technical people can disagree on the details is a strong indication that the legal fight will be even more argumentative.
> 
> edit: I see Vampz has replied to some of the same things I did with the essentially the same reasoning. My reasoning is based on Dish's patent disclosure that says why and how their new software is not the same as the old software. A strange way to write a patent disclosure, but that is what they did. In that disclosure they lay out the steps they would take. In my analysis I have to assume that the workaround software matches what was described in the patent disclosure, which could be different.


Actually, my analysis isn't based on much more than common sense and experience. Didn't even look at the patent disclosure. Just went through the steps based on how I would design DVR software and what I already know regarding MPEG datastreams...its really just common sense. I agree, they are similiar...but i give you credit for the greater detail. I put my analysis out there as a question, you put yours out there as an answer.

If I can just comment on your answers:
1) Where and when the new software uses its playback statistics may be considered a colorable difference since it changes the underlying process.

2) Using the hardware buffer vs. software buffers may be considered a colorable difference because it significiantly changes the implementation of a key component.

3) I agree that the 'source object' notion is a crock, and is more than likely language intended to confuse things. I doubt it would confuse the expert witnesses. I won't even comment further on this one...I believe its a bogus claim.

With regards to 1, the argument can be made that this piece changes the process, but given the possiblility that the analysis may be similiar enough behind the scenes, it may be difficult to prove that the new process was not in some way, shape, or form derived from the current process...thereby making it bound by a broad patent, and thus may still be accused of infringing on that basis.

With regards to 2, one could argue that whether or not the buffer implementation changes the process or not, but the implementation is key here. This sounds comparatively like a substantially different implementation 6f a key component, and given how the single hardware buffer is utilized vs. the software buffers, this could be seen as substantially changing the process as well.

I believe that this would be a key component towards a ruling in E*'s favor, just so long as this difference is presented properly to the courts who otherwise just don't know any better...


----------



## Greg Bimson

Curtis52 said:


> Misattribution. I didn't say it.


You're right. Sorry.


Ergan's Toupe said:


> Awesome. Could you explain it to me? I can't figure it out for the life of me.


Think of it this way...

The Hardware Claims contain the use of a "Media Switch". Once reversed and remanded, DISH/SATS had already changed the software so that the Media Switch is no longer in use. Simply put:

If
No more use of "Media Switch"
Then
No more infringement of the Hardware Claims; infringement of those claims non-existent.

Drag up infringment charges in court, and of course infringement will not be found.


----------



## scooper

My understanding after reading Echostar's Patent application was that there were NO statistics being collected - data goes straight from outputs of tuner section to the harddrive for storage, then the "playback" reads it from the harddrive (sufficient "buffers" to keep up). When a "trickplay operation" is requested, Echostar makes a guess as to how far forward or backwards in the file they have to go and then restart the playback function.

Now - I may have missed that Echostar IS keeping statistics to enable their "guess" function to work, but the above paragraph was MY distillation of Echostar's patent application.

And if you think they can't do this without keeping statistics - just remember that in the Satellite DVRs, they control the relevant MPEG pieces - how often a whole frame is sent, as well as how large that frame and all the differences frames are sent. Even in terrestrial MPEG systems (think ATSC) - the standards are in place so they could "calculate" the number of bytes to jump and get pretty close.

Now, to me - that sounds like a totally radically different method / process than what Tivo is doing.


----------



## jacmyoung

CuriousMark said:


> ...Now:
> 1) The physical data source is the demodulator and PID filter that takes the digital transponder stream from the demodulator writes it into the PID filter FIFO. Yup, we have a physical hardware data source.


What you are saying appears to me there are two such "physical data sources", one called the demodulator, the other PID filter, yet you also seem to say the PID filter as one of the physical data sources, takes the MPEG streams from the other physical data source (the demodulator), then writes into the PID filter itself? Now this PID physical data source also contains a memory buffer of its own called FIFO? Then the streams are temporarily stored on the FIFO? No parsing has happened yet. So far so good?



> ...3) Software stores this data to the hard drive for later playback.


I hope you realize this so called "store" is not storing to a "temporary memory buffer" rather storing onto a permanent device called the hard drive?



> On playback the data is read from the hard drive and analyzed. The analysis places statistics into a table that can be used similarly to the frame index table (just a little less accurately) to do trick play.


Now there is the second parse going on, after the permanent storage?



> Hmm, they moved part of a step to a later place, but shucks, IT IS STILL THERE. Yup they are substantially the same function. Except for order and accuracy they are substantially the same way.


Notice first, there is never a storing onto a temporary memory buffer after the first parsing? Notice there is a second parsing? The parsing is not moved, only another parsing is added in the tail end. BTW the first parsing is never followed by an action called "temporarily stored".

The only "temporarily stored" action happened before the first parsing, not after.

Are you still so sure they are the same as described in step one?

Let me try to write your above steps for you if I may:

Step one: A physical data source, accepting MPEG data streams and temporarily stores the streams onto itself, said physical data source then parses the streams, then stores the parsed streams onto a permanent storage device. On playback, the streams stored on the permanent devices are then parsed again (not by the same physical data source is it?), and the parsed info is then stored where?

Step two: A source object (which E* said no longer exists, but let's say they lied, it is still there some where) extracts info from the physical data source, but what info and why? Everything is already done you know, step two is simply no longer needed nor exists.

Need I go on?


----------



## Curtis52

jacmyoung said:


> Notice first, there is never a storing onto a temporary memory buffer after the first parsing? Notice there is a second parsing? The parsing is not moved, only another parsing is added in the tail end. BTW the first parsing is never followed by an action called "temporarily stored".
> 
> The only "temporarily stored" action happened before the first parsing, not after.


The first parsing is the PID filtering. After that there is a buffer.


> Dish patent:
> [0022]The MPEG transport stream outputted from section 120 may be routed to a display section 130 for immediate presentation in real time. Display section 130 contains at least an MPEG video decoder 131 and an MPEG audio decoder 132. Display section 130 may further contain digital-to-analog converters, encoders, additional decoders, video or audio filters, and/or *memory buffers*, as needed for delivery to a television 140 or other display device.
> 
> [0023]The MPEG transport stream outputted from section 120 may also be routed to a storage device, such as hard disk 150, for later presentation or for presentation in other than real time. In a preferred embodiment, program logic uses a single *buffer* for transfer to hard disk 150, without the use of additional buffers.


----------



## Greg Bimson

jacmyoung said:


> What you are saying appears to me there are two such "physical data sources", one called the demodulator, the other PID filter, yet you also seem to say the PID filter as one of the physical data sources, takes the MPEG streams from the other physical data source (the demodulator), then writes into the PID filter itself? Now this PID physical data source also contains a memory buffer of its own called FIFO? Then the streams are temporarily stored on the FIFO? No parsing has happened yet. So far so good?





> 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;


A demodulator simply takes the transmission from the transponder and puts it back into digital form, what we call a digital signal. The demodulator is the physical data source, as that is what takes a signal from the air and makes it "broadcast data".

The PID filtering takes that transponder and strips away data that isn't being used. Therefore, the eleven or so channels that share the transponder are discarded to leave the single channel you wish to watch or record. The *parser* performs the PID filtering. It is analyzing the broadcast data and parsing out the video and audio data for the channel you wish to watch.

When watching "live TV", this "live TV buffer" holds the last hour or so of the channel you have watched. This "live TV buffer" is performed in temporary storage, even if it has recorded to the hard drive.

That is the entire first step of Claims 31 and 61, and nothing has been changed by the software modification.


----------



## vampz26

scooper said:


> My understanding after reading Echostar's Patent application was that there were NO statistics being collected - data goes straight from outputs of tuner section to the harddrive for storage, then the "playback" reads it from the harddrive (sufficient "buffers" to keep up). When a "trickplay operation" is requested, Echostar makes a guess as to how far forward or backwards in the file they have to go and then restart the playback function.
> 
> Now - I may have missed that Echostar IS keeping statistics to enable their "guess" function to work, but the above paragraph was MY distillation of Echostar's patent application.
> 
> And if you think they can't do this without keeping statistics - just remember that in the Satellite DVRs, they control the relevant MPEG pieces - how often a whole frame is sent, as well as how large that frame and all the differences frames are sent. Even in terrestrial MPEG systems (think ATSC) - the standards are in place so they could "calculate" the number of bytes to jump and get pretty close.
> 
> Now, to me - that sounds like a totally radically different method / process than what Tivo is doing.


Differently, yes...Radically? I'm not so sure...

Since we don't have an exact technical specification before us, whats been posted thus far has been technical analysis on the basis of personal experience, individual know-how, and whatever little bits of wisdom we can derive from the legal jargon thrown around ad nauseum....

Anyways, remember that mpeg2 and mpeg4 bytestreams actually contained syncrhonized bytestreams for multi-channel audio and video, (not to mention secondary audio and closed-captioning) Managing an mpeg bitstream is not just managing the flow control, but the synchronization as well. Thats where the whole timewarping thing, trickplay thing, and all these other DVR 'things' get complex. Anyone who's ever done format conversions or driver development knows how tricky the synchronization can be...now picture the same elements handing real-time data in this capacity...wow. Anyways, I believe thats where the statistics come in...the numerical calculations required to effectively manage and synchronize the mpeg bytestream in realtime corresponding to all these 'tricks'... 

Given that the entire patented concept here is based on existing technology no matter how you look at it, and the original implementation thereof, virtually any implmenetation of it can either be seen as an original process or possibly derived from the original. The complexity of it all I fear is beyond what the courts can handle...I just hope the expert witnesses do their job well.

No matter how much faith people put in judges and lawyers, this is still a technology patent, and thus a fair trial can only be based on technical knowledge and skillful communication thereof. Otherwise...fairness just isn't possible...


----------



## scooper

vampz26 said:


> No matter how much faith people put in judges and lawyers, this is still a technology patent, and thus a fair trial can only be based on technical knowledge and skillful communication thereof. Otherwise...fairness just isn't possible...


I don't have any faith in them to do this "right" - in all fairness - I thought it was absurd that Tivo got their patent in the first place.


----------



## vampz26

scooper said:


> I don't have any faith in them to do this "right" - in all fairness - I thought it was absurd that Tivo got their patent in the first place.


+1, I totally agree...

I'm not a very big fan of Tivo. I loved the product and was an investor when they first started, but now I have very little respect for the company or the unethical way they've conducted themselves during all this nonsense...


----------



## jacmyoung

Greg Bimson said:


> ...When watching "live TV", this "live TV buffer" holds the last hour or so of the channel you have watched. This "live TV buffer" is performed in temporary storage, even if it has recorded to the hard drive...


Just like Mark, you were so good until you began to equate a "temporary memory buffer" to a hard drive section that can store up to one hour worth of live TV info for playback. Nice try.

And what about step two, a source object that extracts such parsed data from the physical data source, if such data as you said is stored on the hard drive? When did the hard drive suddenly become the said physical data source? Which is the physical data source? Please make up the mind.

Step one is performed within a thing called "physical data source". Because of that, you can have step two to provide a source object to extract the parsed data from the physical data source in step one.

But I shouldn't even have to defend anything, because TiVo never used any of those above excuses, TiVo only said the PID filter still parses. I wonder why? Was TiVo so stupid that they did not see what you and Mark see? Maybe TiVo is reading and will use your arguments next, maybe their highly paid engineers and lawyers knew nothing.

What I have said has been what E* has said so far, I don't add all the things E* did not say because it will be a waste of time if they do not say the same, no matter how brilliant I think what I am saying.


----------



## vampz26

jacmyoung said:


> Just like Mark, you were so good until you began to equate a "temporary memory buffer" to a dard drive section that can store up to one hour worth of live TV info for playback. Nice try.
> 
> And what about step two, a source object that extracts such stored info from the physical data source, if such info as you said is stored on the hard drive? When did the hard drive suddenly become the said physical data source? Which is the physical data source? Please make up the mind.


he didn't say that...you did...

Ask him to elaborate the details of his argument before you create your own details for him. You do that alot...

Seriously, please detail your claims here since the quote you posted is rather vague. Nothing is mentioned of a source object, and the temp buffer issue needs elaboration.

what 'exactly' are you criticizing from a technical perspective.


----------



## jacmyoung

vampz26 said:


> he didn't say that...you did...
> 
> Ask him to elaborate the details of his argument before you create your own details for him. You do that alot...
> 
> Seriously, please detail your claims here since the quote you posted is rather vague. Nothing is mentioned of a source object, and the temp buffer issue needs elaboration.
> 
> what 'exactly' are you criticizing from a technical perspective.


I was not talking to you so I did not feel compelled to make sure you understand everything I said. As long as Greg knows, or if he does not, he will feel free to ask me.


----------



## vampz26

jacmyoung said:


> I was not talking to you so I did not feel compelled to make sure you understand everything I said. As long as Greg knows, or if he does not, he will feel free to ask me.


There is an option to PM him if this is a private conversation. Just so you know. 

Since we are all contributing to the discussion, I thought this was in reference to the technical discussion taking place due to the question you asked, thats all. I was only hoping to clear up your technical understanding of the situation since its been lacking, which is why I asked for elaboration...

I would like to know what you base your position on regarding the technical issues...


----------



## phrelin

James Long said:


> We have _*not*_ seen a lot of information ... but that doesn't stop the discussion.


 Well, it's pretty clear we're looking at 1000 posts by Monday night, if not before. At the current rate, we easily could see over 3500 posts prior to the February hearing. So obviously information is not the point of the discussion.:sure:


----------



## vampz26

phrelin said:


> Well, it's pretty clear we're looking at 1000 posts by Monday night, if not before. At the current rate, we easily could see over 3500 posts prior to the February hearing. So obviously information is not the point of the discussion.:sure:


No kidding. And when you actually ASK for information...than someone gets offended....


----------



## James Long

For those who are interested in the past ... here is a link to Echostar's defense of their new software from the filings leading up to the May 30th meeting:
http://www.dbstalk.com/showthread.php?p=1614088&postcount=375

To sumarize (from Exhibit 3 referring to the 50x - similar statements were made about other models in other exhibits):


> [T]o determine literal infringement, the relevant inquiry is whether every element and limitation contained in the claim is found in the product under consideration. Under these principles, we conclude that there is no literal infringement of claims 31 and 61, respectively, by the EchoStar 50X DVRs that utilize the proposed implementation modification. In particular, element [a] of claim 31 and element [a] claim 61 are not satisfied by the modified EchoStar DVR
> products.
> 
> Claim 31 recites:
> 
> [a] 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.
> 
> Claim 61 recites substantially the same element:
> 
> [a] 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 Court found that the term "parse" as it is used in claims 31 and 61 means "analyzes." As such, the Court defined "parses video and audio data from said broadcast data" in these claims as "analyzes video and audio data from the broadcast data." Further, "broadcast data" is broadcast programming that is received by the physical data source.
> 
> 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.
> 
> There is also no infringement of claims 31 and 61 under the doctrine of equivalents. As noted above, the modified EchoStar 50X DVRs do not include a physical data source that parses (i.e., analyzes) the incoming stream. Rather, modified Echostar 50X DVRs buffer the received video and audio elementary streams and moves them to the hard disk without any analysis of the data contained within the streams. Because the proposed modification completely lacks structure and fails to perform the step recited in element [a] of claims 31 and 61, the proposed modification is substantially different than the recited physical data source that parses video and audio data from the broadcast data.


I have also attached TiVo's patent and DISH's pending patent for the modification that they have applied to most of the receivers in question (three models have not received modified software).


----------



## Greg Bimson

It's called wordsmithing...


jacmyoung said:


> Just like Mark, you were so good until you began to equate a *"temporary memory buffer"* to a hard drive section that can store up to one hour worth of live TV info for playback. Nice try.





> 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;


Since when does "temporarily stores" equate to a "temporary memory buffer"? Not that it matters, but even DISH/SATS states they have a temporary buffer in this step:

Rather, modified Echostar 50X DVRs buffer the received video and audio elementary streams and moves them to the hard disk without any analysis of the data contained within the streams.​


> *From James Long, citing Exhibit 3 from DISH/SATS opposition to TiVo's motion for contempt:*
> The Court found that the term "parse" as it is used in claims 31 and 61 means "analyzes." As such, the Court defined "parses video and audio data from said broadcast data" in these claims as "analyzes video and audio data from the broadcast data." Further, "broadcast data" is broadcast programming that is received by the physical data source.


Follow the bouncing ball along with me...

The Court defined "parse" as "analyze".
DISH/SATS defined "broadcast data" as "broadcast programming". However, that is not the definition of "broadcast data".

DISH/SATS completely removed PID filtering as the analysis in crafting this response.

Again, DISH/SATS agreed during the trial that PID filtering meets the "parse" element of Step [1] in Claim 31 and 61. This document is a wordsmithing attempt at removing that limitation which is still being met.


----------



## jacmyoung

Greg Bimson said:


> It's called wordsmithing...


Words are very important.

In step one, "A" thing is defined as "a physical data source", not two or three. And this physical data source must perform several functions to qualify itself to be such *one* physical data source, including parsing and then temporarily storing such parsed data in itself.

In step two, there is this "source object" that extracts the end product produced by this one physical data source, from within this one physical data source, not from some other sources at your own random choice, such as a hard drive.

The parsed audio video data are such end product, temporarily stored, within this one physical data source, not stored somewhere else, because only then, that source object may extract such data product from nothing else but this one physical data source.

Who is playing wordsmithing?

Do you still wonder why TiVo did not go your route wildly pulling everthing they could find in the DVR to fit into their one so called physical data source? TiVo at least knew what their own patent meant, for that reason TiVo was only saying that parse still existed.

So please wait to hear what TiVo was saying or may say in the future.


----------



## Greg Bimson

Again, you do realize you are arguing over something that DISH/SATS already has admitted meets this limitation and has not changed?


jacmyoung said:


> In step two, there is this "source object" that extracts the end product produced by this one physical data source, from within this one physical data source, not from some other sources at your own random choice, such as a hard drive.


Since when has DISH/SATS argued they don't have a "source object"?


----------



## Greg Bimson

jacmyoung said:


> In step one, "A" thing is defined as "a physical data source", not two or three. And this physical data source must perform several functions to qualify itself to be such one physical data source, including parsing and then temporarily storing such parsed data in itself.
> 
> In step two, there is this "source object" that extracts the end product produced by this one physical data source, from within this one physical data source, not from some other sources at your own random choice, such as a hard drive.


More wordsmithing. Here is something you quoted:


> The DP522/625 includes tuners, demodulators, and an MPEG processor, portions of which are the physical data source.


How can you argue with yourself?


----------



## CuriousMark

jacmyoung said:


> If in step one, there is parse, but no temp buffer to store such parsed info, the step is not met, even if in another part some other buffer is storing some other info. Because at a minimum, the way of doing it is different for step one to be met.


The FIFO in the broadcom chip is a temp buffer that holds the A/V data until it can be moved to the hard drive. It is more temporary in that smaller chunks have to be moved more often due to the small size of the FIFO, but it is still a buffer.


----------



## CuriousMark

scooper said:


> My understanding after reading Echostar's Patent application was that there were NO statistics being collected - data goes straight from outputs of tuner section to the harddrive for storage, then the "playback" reads it from the harddrive (sufficient "buffers" to keep up). When a "trickplay operation" is requested, Echostar makes a guess as to how far forward or backwards in the file they have to go and then restart the playback function.
> 
> Now - I may have missed that Echostar IS keeping statistics to enable their "guess" function to work, but the above paragraph was MY distillation of Echostar's patent application.


Echostar's patent application says that they generate the statistic during playback after the data is read back from disk. the statistics are continually updated as the data stream goes by so that the guesses remain fairly accurate both during acttion sequences and more stable quiet sequences.


----------



## CuriousMark

vampz26 said:


> +1, I totally agree...
> 
> I'm not a very big fan of Tivo. I loved the product and was an investor when they first started, but now I have very little respect for the company or the unethical way they've conducted themselves during all this nonsense...


I see it oppositely with Dish being the unethical one and TiVo being straightforward throughout. I doubt anything will change either of our minds and I respect your opinion. Still I will be disagreeing with that and think that you have somehow reached a bad conclusion.

To each their own.


----------



## Ergan's Toupe

vampz26 said:


> +1, I totally agree...
> 
> I'm not a very big fan of Tivo. I loved the product and was an investor when they first started, but now I have very little respect for the company or the unethical way they've conducted themselves during all this nonsense...


Tivo's unethical? You have got to be kidding me!!! !rolling

How was Tivo unethical when Charlie snuck his super top secret "design around" past everyone? Then had his lawyers tell Tivo and Folsom they "could have read their SEC filings if they wanted to know?


----------



## James Long

Ergan's Toupe;1918265 said:


> Tivo's unethical? You have got to be kidding me!!! !rolling
> 
> How was Tivo unethical when Charlie snuck his super top secret "design around" past everyone? Then had his lawyers tell Tivo and Folsom they "could have read their SEC filings if they wanted to know?


Point of order ... BOTH companies can be unethical. It isn't a mutually exclusive case where if one is unethical the other cannot be. 

Nor is one company required to be unethical. Both companies can be ethical as well.


----------



## jacmyoung

Greg Bimson said:


> Again, you do realize you are arguing over something that DISH/SATS already has admitted meets this limitation and has not changed?Since when has DISH/SATS argued they don't have a "source object"?


Go read for yourself, I have posted them before, I am tired of posting the same quotes over and over just so some of you want to simply ignore them.

Look Mark and Greg, stop avoiding the issue here.

The step two in the software claims clearly defined the condition in step one, that is the parsed audio and video data must be temporarily stored in a buffer *inside or as a part of* the physical data source, only so, can the source object extract such data from the physical data source, not from something else randomly picked by you two.

Mark if you insist the FIFO serves the function of that buffer, you are wrong because the term "store" after parsing means the data goes from somewhere else and stored into that buffer. In the PID filter, there is not store after the parse, because according to you (which I do not even believe it is so), once the MPEG streams are stored onto FIFO, then parsed, then part of the streams are discarded, other parts are retained then sent out. There is no action of again "storing" anything "tempporarily" one more time.

And as you said yourself, the data are then stored onto the hard drive and analyzed again later, so in step two a source object may extract such data from the hard drive. But you must admit such explanation invalidates step two, in which it says the source object must extract the parsed data from the pyhsical data source itself, not from a third source.

There is just no way you can tie up all the loose ends with you forcing all the unrelated pieces together, TiVo could have tried that had they knew it would work, but they did not, they only said there is still parsing.


----------



## Ergan's Toupe

James Long said:


> Point of order ... BOTH companies can be unethical. It isn't a mutually exclusive case where if one is unethical the other cannot be.


Of course they can but that's not what he said. While not technically "unethical" Charlie's little stunt with the super top secret "design around" certain bordered on it. 

Could you give an example of how Tivo was "unethical" during these proceedings?


----------



## Ergan's Toupe

jacmyoung said:


> Look Mark and Greg, stop avoiding the issue here.
> 
> The step two in the software claims clearly defined the condition in step one, that is the parsed audio and video data must be temporarily stored in a buffer *inside or as a part of* the physical data source, only so, can the source object extract such data from the physical data source, not from something else randomly picked by you two.


Don't take this the wrong way, Jacy, but I hope E* calls you as an expert witness! :lol:


----------



## jacmyoung

Greg Bimson said:


> Again, you do realize you are arguing over something that DISH/SATS already has admitted meets this limitation and has not changed?...


And E*'s lawyer never said parsing alone met *all the limitations* of TiVo's claims, he said yes, the parsing performed by the PID filter met the definition of the term "parse" in the TiVo's claims. There are many other limitations that have to be met too, such as "temporary store" after the parsing, "source object" to "extract" the data "temporarily stored" in the "physical data source", and "source object" being "automatically flow controlled" by a "transform object".


----------



## jacmyoung

Ergan's Toupe;1918501 said:


> Don't take this the wrong way, Jacy, but I hope E* calls you as an expert witness! :lol:


Thank you, only that I cannot possibly match Greg and Mark, at least I am only capable of repteating what E*'s lawyers had said, Greg and Mark are saying things TiVo's lawyers did not even realized they should have said.

Maybe you should call TiVo to enlist the two of them, I thought you had that power?


----------



## Ergan's Toupe

jacmyoung said:


> Maybe you should call TiVo to enlist the two of them, I thought you had that power?


Why would you think that? Or are you making stuff up again? :nono2:


----------



## Greg Bimson

jacmyoung said:


> There are many other limitations that have to be met too, such as "temporary store" after the parsing, "source object" to "extract" the data "temporarily stored" in the "physical data source", and "source object" being "automatically flow controlled" by a "transform object".


DISH/SATS defense in describing the changes made, the first point:


> B. EchoStar Designed Non-Infringing Software
> 1. EchoStar's New Design Eliminated Pre-Storage Analysis and Indexing
> The '389 patent explains that while digital video recording technology was known in 1998, making a low-cost DVR posed a challenge "because the processor requirements for keeping up with the high video rates makes the device expensive and problematic." (Krevans Ex. B ('389 patent) at 1:46-49.) The '389 patent purports to solve that problem by employing a component called the "Media Switch" (also known as a "parser"). (Id. at 2:22-25, 6:16-25, 7:12-18.) The "Hardware Claims" of the '389 patent require a Media Switch that "parses" the incoming television programming data; the Court construed "parse," at TiVo's urging, to mean "analyze." (Claim Construction Order (Docket No. 185) at 17.) As inventor James Barton explained, the Media Switch "analyzes" the television programming data to create a table or index that facilitates efficient retrieval of the data when trick-play functions, such as fastforward, rewind, and pause, are utilized. (Krevans Ex. C (3/30/06 AM Trial Tr.) at 26:5-15; 29:8-22; 47:1-4.) As Mr. Barton testified:
> The media switch analyzed the data coming in to the system; however, it came in as a -- as a digital signal to identify where these frame starts are and where these starts of the beginning pictures are. And it separated out the video parts and the audio parts to create a table of where -- where the frames were. And we associated that table, then, with the video and audio data when we stored it. That allowed us, when we [perform] playback, to know precisely where these frame starts are so that we could properly send the television to the decoder. (Id. at 26:5-15.).​Without such analysis and the resulting indexing, Mr. Barton testified, "Trickplay operations would be very crude, or we would need a very powerful processor." (Id. at 29:23-30:2.)
> 
> Although software claims 31 and 61 do not require the Media Switch, they call for "a physical data source" that "accepts broadcast data from an input device, parses video and audio data from said broadcast data, and temporarily stores said video and audio data." (Krevans Ex. B ('389 patent) at 14:55-58, 18:5-8 (emphasis added).) Thus, all '389 patent claims required thisanalysis function. According to TiVo's infringement expert, EchoStar's accused DVRs satisfied the parsing - or analyzing - function by generating what was referred to as a "table" or "index" that kept track of where frames started and where audio and video components were stored. (Krevans Ex. D (3/30/06 PM Trial Tr.) at 72:12-74:1; 100:16-103:2; 107:1-13.) On appeal, TiVo's counsel referred to the creation of this index or table as the "genius, the core of this invention" and told the Federal Circuit: "[T]hey [EchoStar] build the table, we [TiVo] build the table, and that is the invention here; that is the way in which a low-cost limited CPU device can manipulate these streams the way that they do." (Krevans Ex. E (Transcript of Oral Argument on Appeal, October 4, 2007) at 38-39.) TiVo identified the "start code detector" hardware of the Broadcom chips as the hardware doing the analysis in the Broadcom boxes; it identified software in the 50X family of boxes as performing this analysis. (Krevans Ex. D (3/30/06 PM Trial Tr.) at 101:16-105:19.)
> 
> Post-verdict, EchoStar conceived an approach to develop software that performed DVR functions in a radically different way than the hardware and software that had been found to infringe. EchoStar's engineers conceived of a way to provide DVR functionality without any indexing at all - in other words, without analyzing television data prior to storage. Instead of relying on a "Media Switch" or "physical data source" (or any other hardware or software) to assist the CPU by analyzing data before storage, EchoStar's new DVR software relies on the brute force of the CPU after storage to perform trick-play operations. Such a solution is possible, in part, due to the relatively recent availability of processors that are both powerful and inexpensive. In this "indexless" design, no analysis of the television programming data takes place prior to storage. Instead, the data is stored as it is received, and the new software relies on statistical and probabilistic algorithms, upon playback, to search for and keep track of the program data as needed. During playback, the new software generates statistics that are used to determine the ideal number of frames to skip, the number of bytes to seek, and the read size during trick-play operation. EchoStar has applied for a patent on this novel approach to DVR functionality. (Minnick Decl. ¶¶ 4-6, 14-15, 18, 27.)


That was about parsing, and it appears there is nothing DISH/SATS discusses about the PID filter. The last defense:


> 2. EchoStar's New Design Eliminated Automatic Flow Control in the Broadcom Boxes
> In addition to parsing and indexing by the Media Switch and the physical data source, the '389 patent further explains that the "automatic flow control" feature of the invention helped reduce the costs then associated with DVR technology by limiting the amount of memory that was required. (Krevans Ex. B ('389 patent) at 8:60-65.) The patent describes "automatic flow control" as interplay between software objects (namely the source object, transform object, and sink object) filling and emptying a series of buffers to regulate the use of memory. (Id. at 8:34- 65.) In the absence of automatic flow control, Mr. Barton testified, there was a risk of "losing information, of overriding memory, of not capturing the full television signal as it came in or being able to play it out properly." (Krevans Ex. C (3/30/06 AM Trial Tr.) at 54:2-9.) Mr. Barton explained the drawback of such a design: "[W]e have no flow controls so we're filling up our buffer, and we have now the potential of losing information, because we weren't able to stop the flow in order to wait for the buffer to become available." (Id. at 54:16-20.) TiVo's infringement expert, Dr. Gibson, testified that EchoStar's Broadcom DVRs satisfied the "automatically flow controlled" limitations of Claims 31 and 61. (Krevans Ex. F (3/31/06 AM Trial Tr.) at 47:7-49:23.) Both Mr. Barton and Dr. Gibson testified that where there is automatic flow control, there are multiple buffers and software (the source object) that fills the buffers with data. (Id. at 48:21-23; Krevans Ex. C (3/30/06 AM Trial Tr.) at 51:17-20.)
> 
> After the verdict, EchoStar's engineers developed a single-buffer record method that lacks automatic flow control for the Broadcom DVRs. Because only one buffer is used, the new software does not and cannot stop the flow of incoming data to the buffer. If the rate at which incoming data enters the buffer exceeds the rate at which data from the buffer is written to the hard drive, no second buffer is available to provide relief. Incoming data will keep flowing into the single buffer even when it is full. When this occurs, data is overwritten and lost. The singlebuffe method not only permits data loss; it also lacks a "source object," using hardware rather than software to fill the buffer. (Minnick Decl. ¶¶ 4, 13, 27.)


I don't see any of your additional arguments here other than the two I've been crowing about.


----------



## Curtis52

jacmyoung said:


> The step two in the software claims clearly defined the condition in step one, that is the parsed audio and video data must be temporarily stored in a buffer *inside or as a part of* the physical data source


The appeals court disagrees.


> EchoStar's experts, Drs. Rhyne and Johnson, testified that the data is "pushed" out of the elements on the Broadcom chip to the temporary data storage buffer adjoining, but separate from, the Broadcom chip. Even though EchoStar does not contest that the data is extracted from the temporary data storage buffer, it contends that the temporary storage buffer is not part of the physical data source and therefore that the data is not extracted from the physical data source.





> Based on evidence that the Broadcom chip and the temporary data storage
> buffer operate together in the process of moving data from the physical data source, it
> was reasonable for the jury to find that the temporary data buffer was simply an
> extension of the physical data source where data was stored pending its extraction for
> further processing.


----------



## jacmyoung

Curtis52 said:


> The appeals court disagrees.


Thank you for proving my point Curtis.

E* tried and failed. The court construed the "temporarily stored" action as a part of the "physical data source" to meet step one.

Now some are saying, hey the temp buffer can be somewhere else, who cares?

Except the court said no, it is a part of the physical data source, and E* had such buffer as part of its MPEG processor, so the step one was met.

Now the "temp stored" action no longer exists, and Mark and Greg are saying but the hard drive still has temp buffer to store the data, but if that buffer is not a part of the physical data source, *"where data was stored pending its extraction for further processing [in step two]"*, it does not meet step one.

Unless you now want to say the hard drive is a part of the "physical data source", be my guest, we will just have to see how it goes.


----------



## scooper

What - no comments from the Tivo crowd about what "analysis" is being done in Echostar's new process ? 

Hint - it's nothing more than counting MPEG frames.


----------



## Curtis52

jacmyoung said:


> Except the court said no, it is a part of the physical data source, and E* had such buffer as part of its MPEG processor, so the step one was met.


What is an MPEG processor and what makes you think the buffer is a part of it?


----------



## James Long

Ergan's Toupe;1918496 said:


> Of course they can but that's not what he said.


I wasn't responding to what HE said, I was responding to what YOU said.


----------



## James Long

scooper said:


> What - no comments from the Tivo crowd about what "analysis" is being done in Echostar's new process ?
> 
> Hint - it's nothing more than counting MPEG frames.


Isn't that enough? 

As long as DISH DVRs have the function of being a DVR Tivo and most people who agree with Tivo will consider them infringing. Even if TiVo lost the case they would still think that DISH was infringing.

For those who believe DISH no longer infringes, no proof is necessary. For those who don't believe DISH no longer infringes, no proof is possible. (The opposite also applies.)

(With apologies to Stuart Chase and anyone who doesn't like his quotes modified.)


----------



## Greg Bimson

> Based on evidence that the Broadcom chip and the temporary data storage buffer operate together in the process of moving data from the physical data source, it was reasonable for the jury to find that the temporary data buffer was simply an extension of the physical data source where data was stored pending its extraction for further processing.





jacmyoung said:


> Now the "temp stored" action no longer exists, and Mark and Greg are saying but the hard drive still has temp buffer to store the data, but if that buffer is not a part of the physical data source, "where data was stored pending its extraction for further processing [in step two]", it does not meet step one.


I don't see where "the 'temp stored' action no longer exists".


----------



## scooper

James Long said:


> Isn't that enough?


No - it's doing NONE of that index table building that Tivo made such a big deal out of.



James Long said:


> As long as DISH DVRs have the function of being a DVR Tivo and most people who agree with Tivo will consider them infringing. Even if TiVo lost the case they would still think that DISH was infringing.
> 
> For those who believe DISH no longer infringes, no proof is necessary. For those who don't believe DISH no longer infringes, no proof is possible. (The opposite also applies.)
> 
> (With apologies to Stuart Chase and anyone who doesn't like his quotes modified.)


Truer words were never spoken...


----------



## Greg Bimson

scooper said:


> No - it's doing NONE of that index table building that Tivo made such a big deal out of.


Yet that wasn't the only deal...


----------



## scooper

Greg Bimson said:


> Yet that wasn't the only deal...


Well - then - take your try at describing Tivo's process - I described Echostar's in ONE paragraph - and that was before James reposted the Patent application....


----------



## scooper

Greg Bimson said:


> Yet that wasn't the only deal...


Surely by now you know that I don't accept "PID filtering" as the analysis that you're talking about.

You can also throw any buffering involving disk reads / writes out, as that is also normal background processing.

Do you have something else ?


----------



## James Long

scooper said:


> No - it's doing NONE of that index table building that Tivo made such a big deal out of.


I suppose the question for the Honorable Judge Folsom and all the people that can advise him (including TiVo and DISH lawyers) is what was patented.

While TiVo made a big deal out of how their product worked using an index table and how their product would not work without an index table does their patent REQUIRE an index table?

Pointing out the index table seems to be just another way of showing that Echostar was following TiVo's exact process ... which apparently required more steps than the patent claims 31/61 listed. In that testimony TiVo seemed to claim that although they consider the index table to be integral to their process it would be possible with enough CPU power to overcome the absence of the index table.

So what got patented?


----------



## scooper

That's exactly what I'm asking Greg - "What got patented ?".


----------



## Greg Bimson

scooper said:


> That's exactly what I'm asking Greg - "What got patented ?".


If you'd really like me to repost claims 31 and 61 again...

It appears an index table is not required for the patent.


scooper said:


> Surely by now you know that I don't accept "PID filtering" as the analysis that you're talking about.
> 
> You can also throw any buffering involving disk reads / writes out, as that is also normal background processing.


Therefore, one can also throw out DISH/SATS patent application, as there is MPEG involved, which itself is a patent. 

After all, intermittent windshield wipers can be tossed, because windshield wipers were "prior art".

The telephone should have never been patented, as the telegraph was "prior art".

Patents are granted, even for improving upon other "prior art" or patents. And if that patent includes the normal function of a DBS receiver, so be it.


----------



## scooper

No - I'm asking , in your own words, a 1-5 paragraph description of WHAT GOT PATENTED (for the Tivo '389 patent) ?

Then tell me , again in your own words, what I'm missing that Echostar's new process still violates (avoiding PID Filtering and disk read/write buffers).


----------



## jacmyoung

Greg Bimson said:


> I don't see where "the 'temp stored' action no longer exists".


I hope you realize to even prove "temporarily store" you must first convince the judge such action is a part of the "physical data source"? There are hundreds of "temporarily store" actions going on in a computer you know, only the one that is associated with step one and the "physical data source" can count.

Now let's say you manage to convince the judge that hard disk drive is a part of that "physical data source", therefore the buffer used by the hard drive can qualify to "temporarily store" the parsed data.

First let's understand the data temporarily stored onto a hard drive buffer are removed as soon as the data are saved to the hard drive, so you can see the problem already.

But let's set that aside for a moment, and proceed with our review.

After the programming data are saved onto the hard drive, the user issues a trickplay commend. Some kind of object reads the programming data from the hard drive, then some other object does a statistical analysis (parsing) on the data, and the resulting data are then saved somewhere, maybe on some other buffer.

So far so good?

Now E* said they no longer have any "source object", but let's say E* lied, TiVo can identify such "source object", and it will then "extract" the parsed data for use in the trickplay.

But what data is that "source object" extracting now? Most certainly not the data parsed by the PID filter if you can agree with me on that.

But guess what, in the TiVo's software claims, the "source object" in step two must extract the very same parsed data from the initial parser, that much is without doubt because the quote Curtis just posted above from the Appeals Court said so.

The parsed data from the PID filter no longer exist in the hard drive buffer, therefore the source object can no longer extract such data. What the source object can extract is another set of data that have nothing to do with the original PID parsed data.

And at this point I will stop, if you still want to try to come up with something else, be my guest.


----------



## jacmyoung

Curtis52 said:


> What is an MPEG processor and what makes you think the buffer is a part of it?


Because TiVo said so. I have quoted TiVo's contentions during the jury trial, it is in one of the previous posts of mine, I just don't care to go back and dig it up for you, just like I said I was tired of doing so for Greg.

But they are in this thread.


----------



## CuriousMark

scooper said:


> No - I'm asking , in your own words, a 1-5 paragraph description of WHAT GOT PATENTED (for the Tivo '389 patent) ?
> 
> Then tell me , again in your own words, what I'm missing that Echostar's new process still violates (avoiding PID Filtering and disk read/write buffers).


So he should tell you what was patented but has to leave out things you disagree with in his explanation? It sounds like you are telling him he must tell you how to milk a cow without mentioning milk, cow, stool, hand, or udder. ;-)

More seriously, the precondition you are imposing makes the question a bit unreasonable. If you can lighten up on that a bit you might be able to get an answer. One you probably don't agree with, but them's the breaks.


----------



## vampz26

Ergan's Toupe;1918496 said:


> Of course they can but that's not what he said. While not technically "unethical" Charlie's little stunt with the super top secret "design around" certain bordered on it.
> 
> Could you give an example of how Tivo was "unethical" during these proceedings?


Some would consider corporate extortion and consumer terrorism to be un-ethical, and Tivo is guilty of that.


----------



## scooper

CuriousMark said:


> So he should tell you what was patented but has to leave out things you disagree with in his explanation? It sounds like you are telling him he must tell you how to milk a cow without mentioning milk, cow, stool, hand, or udder. ;-)
> 
> More seriously, the precondition you are imposing makes the question a bit unreasonable. If you can lighten up on that a bit you might be able to get an answer. One you probably don't agree with, but them's the breaks.


Look - if you can prove that PID FIltering is NOT a function of ATSC and DBS transmission - I'm more than willing to let that be included. Until then - it is a RECIEVER function, and not a DVR function.

And anyone who has worked with PCs and understands the relative speeds between harddisks and RAM will understand why Harddrive buffering is a necessary funtionality. Any OTHER buffering is fair game for this purpose.


----------



## CuriousMark

jacmyoung, I don't believe anyone is saying there is a source object or hardware source involved with data being read from the disk for playback. I think you are reaching there. What dish's patent application says they do is read the data and compiles statistics of that data as it goes to the playback decoders. If a trick play command comes in the software looks at the table of statistics and calculates how far forward or back to jump in the data stream. The difference here is that the table of statistics is calculated at playback time and used at playback time. In TiVo's hardware claims the index table is created at receive and store time and is used at playback time. That is very much a different order, there is no question or argument about that. I think getting hung up on the exact wordings of everything is a mistake, but feel free to keep doing so anyway.

Scooper, 31 and 61 turned out to be broader than TiVo's original implementation. The jury and judge constructed those claims in a very broad way. Feel free to be unhappy about that, but don't discount that broadness simply because TiVo's original implementation didn't take advantage of all the options it now seems to cover.


----------



## Greg Bimson

scooper said:


> No - I'm asking , in your own words, a 1-5 paragraph description of WHAT GOT PATENTED (for the Tivo '389 patent) ?
> 
> Then tell me , again in your own words, what I'm missing that Echostar's new process still violates (avoiding PID Filtering and disk read/write buffers).


Simple.

A methodology for DVR's. One that DISH/SATS was found to pretty much copy.


scooper said:


> Look - if you can prove that PID FIltering is NOT a function of ATSC and DBS transmission - I'm more than willing to let that be included. Until then - it is a RECIEVER function, and not a DVR function.


Until you can prove in the late 1800's telephones didn't use the same wires as the telegraph, then there is no point discussing what is a function of a receiver and what is the function of a DVR, which itself is a receiver.


----------



## CuriousMark

scooper said:


> Look - if you can prove that PID FIltering is NOT a function of ATSC and DBS transmission - I'm more than willing to let that be included. Until then - it is a RECIEVER function, and not a DVR function.


PID filtering IS a function of ATSC and DS transmission. No one is arguing differently. They are simply saying that as such it can still be included as a step in a process that includes ATSC or DBS as a portion of what is going on. If you feel that excluding it for those reasons is fair grounds for finding a more than colorable difference, more power to you. Allow others to reasonably disagree. We will know the answer in the spring.


----------



## vampz26

Greg Bimson said:


> It's called wordsmithing...Since when does "temporarily stores" equate to a "temporary memory buffer"? Not that it matters, but even DISH/SATS states they have a temporary buffer in this step:
> 
> Rather, modified Echostar 50X DVRs buffer the received video and audio elementary streams and moves them to the hard disk without any analysis of the data contained within the streams.​Follow the bouncing ball along with me...
> 
> The Court defined "parse" as "analyze".
> DISH/SATS defined "broadcast data" as "broadcast programming". However, that is not the definition of "broadcast data".
> 
> DISH/SATS completely removed PID filtering as the analysis in crafting this response.
> 
> Again, DISH/SATS agreed during the trial that PID filtering meets the "parse" element of Step [1] in Claim 31 and 61. This document is a wordsmithing attempt at removing that limitation which is still being met.


And THIS is why the courts have no credibility what-so-ever...wordsmithing is just a polite synonym for BSing...

Look, it is what it is....like I said, a rose by any other name is still a rose...and any 'wordsmithing' and legal flim-flammery that attempts to cloud an issue in this or any other case is exactly the reason I feel the way I do about the courts.

"Parse" and "Analyze" mean two entirely different things...and the courts equate them as meaning the same?!? :eek2:

So what we have here is confusion...confusion that breeds lies...lies that breed judgements....and judgements that are erroneous. The fact that any court is allowed to continue functioning this way is the REAL crime here. I'm just glad that the state of Texas apparently recognizes the problem and as one poster had point out, has commited to doing something about it. Too bad its too little too late for this trial. For now, we just hope for the least amount of possible damage that could come out of all this 'wordsmithing', since it is intended to confuse a judge and legal personel who are ignorant of the technical issues at hand.


----------



## scooper

The only mistake you have there is that Patent law / trials are a FEDERAL level, not state...


----------



## scooper

CuriousMark said:


> Scooper, 31 and 61 turned out to be broader than TiVo's original implementation. The jury and judge constructed those claims in a very broad way. Feel free to be unhappy about that, but don't discount that broadness simply because TiVo's original implementation didn't take advantage of all the options it now seems to cover.


All I've wanted is a plain english, non-legalese of what is covered by 31 and 61 and a SIMPLE explanation of why.


----------



## vampz26

scooper said:


> The only mistake you have there is that Patent law / trials are a FEDERAL level, not state...


I know...another poster here made reference to the fact that the courts in Texas were going out and hiring clerks with far greater technical skills than in the past. I was only speaking in reference to that...considering that the Texas courts may wind up being the 'graceland' of IP litigation after this nonsense concludes, it makes sense they would finally attempt to beef up their credibility some.


----------



## scooper

OK - so having read '389 - 
Claim 31 just describes the flow of data from tuner to display, using automatic flow control and responding to user commands to perform "trick plays" etc. and/or routing the video to one or more outputs

Claim 61 is the same thing but add the harddrive as a "storage device"

So why can't you "wordsmiths" simply say it ?


----------



## scooper

Now - to give a colorable difference - 

where's Echostar's use of automatic Flow control ?


----------



## Greg Bimson

scooper said:


> where's Echostar's use of automatic Flow control ?


That's where I said there could be a problem, 'cause I don't know...

Except that automatic flow control was defined in the Markman as "self-regulating".


----------



## jacmyoung

vampz26 said:


> I know...another poster here made reference to the fact that the courts in Texas were going out and hiring clerks with far greater technical skills than in the past. I was only speaking in reference to that...considering that the Texas courts may wind up being the 'graceland' of IP litigation after this nonsense concludes, it makes sense they would finally attempt to beef up their credibility some.


Don't hold your breadth. I work with technical people and engineers, and I am kind of one myself, I can tell you technical people are the most argumentitive bunch of SOBs in the world, just take a look at these threads on E* v. TiVo

We are lucky to have the "clueless" jury, and similarly "clueless" judge to settle the differences for us, else nothing can ever be done.


----------



## Ergan's Toupe

vampz26 said:


> Some would consider corporate extortion and consumer terrorism to be un-ethical, and Tivo is guilty of that.


Really? Do tell!!!


----------



## scooper

Greg Bimson said:


> That's where I said there could be a problem, 'cause I don't know...
> 
> Except that automatic flow control was defined in the Markman as "self-regulating".


And there isn't any flow control at all in the Echostar model . It is relying completely on the CPU being fast enough to keep up. No semaphores, etc. If the CPU stumbles, you lose data (i.e you can see / hear problems in the display section).


----------



## jacmyoung

Greg Bimson said:


> That's where I said there could be a problem, 'cause I don't know...
> 
> Except that automatic flow control was defined in the Markman as "self-regulating".


Self-regulation, as TiVo's experts said, is achieved during TV image construction, by the use of multiple buffers, if one can't keep up, the flow through it is automatically stopped by the "transform object", and data get to be held off on another buffer until this one frees up. Without such self-regulation, people will see trashed images.

E* claims they now use only one buffer for TV image construction, therefore self-regulation cannot happen and needs not happen as scooper explained. Again do not confuse these buffers with all the other different buffers.

Where my understanding differs with the scooper's is, if I understood E* correctly, the single buffer now used by E* is much larger, even more so in the HD DVRs. Because of the much larger buffer, it has sufficient space to hold off any data that flows in. Of course the larger buffer is achieved only if the DVRs has much more on-board memory.

I suppose this is another way E* is saying the newer DVRs now have more memories so the "self-regulation" is no longer necessary.


----------



## jacmyoung

CuriousMark said:


> jacmyoung, I don't believe anyone is saying there is a source object or hardware source involved with data being read from the disk for playback. I think you are reaching there. What dish's patent application says they do is read the data and compiles statistics of that data as it goes to the playback decoders. If a trick play command comes in the software looks at the table of statistics and calculates how far forward or back to jump in the data stream. The difference here is that the table of statistics is calculated at playback time and used at playback time. In TiVo's hardware claims the index table is created at receive and store time and is used at playback time. That is very much a different order, there is no question or argument about that. I think getting hung up on the exact wordings of everything is a mistake, but feel free to keep doing so anyway.
> 
> Scooper, 31 and 61 turned out to be broader than TiVo's original implementation. The jury and judge constructed those claims in a very broad way. Feel free to be unhappy about that, but don't discount that broadness simply because TiVo's original implementation didn't take advantage of all the options it now seems to cover.


You are again avoiding the issue here. I have tried to follow your explanation the best I could, and using your explanation, the data parsed by the physical data source that is then saved in a temporary memory buffer in step one, will simply never be used by anything, rather erased after the data is saved onto the hard drive, whether you admit there is a source object or not.

In step two, the patent claims specifythat the data parsed by the physical data source has to be extracted by the source object for use in trickplays. If this step does not happen, step two is no longer met.

All the other steps you described that happened after the storage in the hard drive, those are E*'s invention, not TiVo's invention, TiVo's claims never described such steps.


----------



## scooper

Greg Bimson said:


> Until you can prove in the late 1800's telephones didn't use the same wires as the telegraph, then there is no point discussing what is a function of a receiver and what is the function of a DVR, which itself is a receiver.


Actually they did - what's different between a telephone and a telegraph is their method and frequency of modulation for signal intellegence transmission.

Now - I don't know how telegraphs could route to different locations (I've always understood it to be point-to-point circuits, so you could just have several endpoints co-located), but all of us know that telephones had operators connecting endusers circuits together. That eventually was replaced by the various generations of switch gear (now using computers).

Next ?


----------



## vampz26

Ergan's Toupe;1919380 said:


> Really? Do tell!!!


GASP! :eek2:

I had no idea that you were so poorly informed...

Corporate extortion and consumer terrorism has been the entire litigation model for Tivo this entire case...

Rather than just prove the case in court, they attempted to hold E*s customers hostage and attempt to strong-arm a decision in the trial. Thats about as unethical as it gets...

I have no respect for an unethical company like Tivo that can't keep their negotations on the table where they belong...


----------



## vampz26

jacmyoung said:


> Don't hold your breadth. I work with technical people and engineers, and I am kind of one myself, I can tell you technical people are the most argumentitive bunch of SOBs in the world, just take a look at these threads on E* v. TiVo.


You got that right. Thats what happens when you have the tech folks who know whats going on, and the wanna-be lawyers who think they do. 



jacmyoung said:


> We are lucky to have the "clueless" jury, and similarly "clueless" judge to settle the differences for us, else nothing can ever be done.


I'm not touching this...  

But I can go to bed now a happy man, I assure you...  

you go back to arguing with Greg, I'll go watch this Jim Carrey, Jeff Daniels movie that came out a while back...its a good one...


----------



## Curtis52

jacmyoung said:


> You are again avoiding the issue here. I have tried to follow your explanation the best I could, and using your explanation, the data parsed by the physical data source that is then saved in a temporary memory buffer in step one, will simply never be used by anything, rather erased after the data is saved onto the hard drive, whether you admit there is a source object or not.


I can't tell if you understand that the result of the PID parsing (AKA the video and audio data) is the actual program content data (the TV show) not some kind of table or statistics or whatever. Maybe you know that. I can't tell for sure.


----------



## jacmyoung

scooper said:


> Actually they did - what's different between a telephone and a telegraph is their method and frequency of modulation for signal intellegence transmission.
> 
> Now - I don't know how telegraphs could route to different locations (I've always understood it to be point-to-point circuits, so you could just have several endpoints co-located), but all of us know that telephones had operators connecting endusers circuits together. That eventually was replaced by the various generations of switch gear (now using computers).
> 
> Next ?


Too complicated scooper, all you need to say is, telegraph did not infringe on the telephone patent, even though they both used the same kind of wires.


----------



## Curtis52

scooper said:


> Next ?


The claims mention storage on a hard drive. Is that just as bad as mentioning parsing of broadcast data to obtain video and audio data? I mean, hard drives have been around for awhile.


----------



## vampz26

jacmyoung said:


> Too complicated scooper, all you need to say is, telegraph did not infringe on the telephone patent, even though they both used the same kind of wires.


I believe the inference was with regards to building on and improving on existing technology. Something Tivo failed at and E* succeeded with. After all, your modern analog phone is still nothing more than a telegraph, except that the electromagnet in question that once moved the clicker, now moves a speaker...

...and no...it did not infringe....


----------



## scooper

CuriousMark said:


> jacmyoung, I don't believe anyone is saying there is a source object or hardware source involved with data being read from the disk for playback. I think you are reaching there. What dish's patent application says they do is read the data and compiles statistics of that data as it goes to the playback decoders. If a trick play command comes in the software looks at the table of statistics and calculates how far forward or back to jump in the data stream. The difference here is that the table of statistics is calculated at playback time and used at playback time. In TiVo's hardware claims the index table is created at receive and store time and is used at playback time. That is very much a different order, there is no question or argument about that. I think getting hung up on the exact wordings of everything is a mistake, but feel free to keep doing so anyway.


The Echostar "Table of Statisitics" is somewhere between 10-20 variables and constants.

Count of I-frames
count of all frames (I + G +P)
sizes of each (2 more)
trick play speed
direction of play

There's probably a few more, but trust me - it isn't a very large set. If a trick play function gets called on - the CPU has to use these few items to calculate a file offset and jump /read until it finds an I-frame. There is no precalculation being done.


----------



## jacmyoung

Curtis52 said:


> I can't tell if you understand that the result of the PID parsing (AKA the video and audio data) is the actual program content data (the TV show) not some kind of table or statistics or whatever. Maybe you know that. I can't tell for sure.


That is the whole problem here, the result of the parsed audio/video data in the TiVo's claims is not the actual program content data, rather the frame index info sets, one for the audio, one for the video, built into two index tables. How so? Because the TiVo experts explained so.

The only place the actual programming content is mentioned is in step 3 of both software claims:

[3] providing a transform object, wherein said transform object stores and retrieves *data streams* onto a storage device.

Here the "data streams" depict the actual programming content data streams, being recorded on to the hard drive, and read back, by the "transform object".

That is precisely why it is wrong to construe the data streams coming out of the PID filter as the "audio and video data" in steps one and two.

The "data streams" in step 3 are the ones coming out of the PID filter and being saved onto the hard drive by the "transform object".


----------



## James Long

vampz26 said:


> I have no respect for an unethical company like Tivo that can't keep their negotations on the table where they belong...


If you're defending DISH that probably isn't a good standard to impose. 

Check out the numerous times DISH customers have lost channels or not had channels added to their programming packages when DISH's negotiations leave the table.

Again, one company being "unethical" does not make the other "ethical".

(BTW: I don't consider either company to be "unethical". Nothing personal, just business.)


----------



## vampz26

James Long said:


> If you're defending DISH that probably isn't a good standard to impose.
> 
> Check out the numerous times DISH customers have lost channels or not had channels added to their programming packages when DISH's negotiations leave the table.
> 
> Again, one company being "unethical" does not make the other "ethical".
> 
> (BTW: I don't consider either company to be "unethical". Nothing personal, just business.)


I'm not defending Dish, I'm attacking Tivo...

Dish has its problems, no doubt...but Dish can only blame themselves...Tivo was looking to commit an act of consumer terrorism and use it for corporate extortion. Business or not, there are ethical matters that apply...


----------



## jacmyoung

vampz26 said:


> ...Tivo was looking to commit an act of consumer terrorism and use it for corporate extortion. Business or not, there are ethical matters that apply...


But if such act is legal, you might as well call our Court a terrorist organization. I can't believe I am even saying this.


----------



## vampz26

jacmyoung said:


> But if such act is legal, you might as well call our Court a terrorist organization. I can't believe I am even saying this.


Its obviously not legal...my DVR is functioning quite well, thank you...

whether Tivo would like it too or not...

And secondary...are we to assume that just because its legal, its also ethical?


----------



## jacmyoung

vampz26 said:


> Its obviously not legal...


What is not legal? E* ordered to pay TiVo $105 million?



> my DVR is functioning quite well, thank you...


Finish your sentence by saying, thanks to the design around, another legal act.



> whether Tivo would like it too or not...


An act of terrorism is not conditioned on who likes it or not, it also does not seek legal limitation first.



> And secondary...are we to assume that just because its legal, its also ethical?


I am only referring to your use of the word "terrorism". As for whether it is ethical, I second what James said.


----------



## vampz26

jacmyoung said:


> What is not legal? E* ordered to pay TiVo $105 million?
> 
> Finish your sentence by saying, thanks to the design around, another legal act.
> 
> An act of terrorism is not conditioned on who likes it or not, it also does not seek legal limitation first.
> 
> I am only referring to your use of the word "terrorism". As for whether it is ethical, I second what James said.


Shutting down my DVR obviously wasn't legal...the 105MM is not my problem

No...not at all...my sentence was complete in and of itself. Your putting words in peoples mouth again. Shutting down my DVR was not legal, the courts made certain taht didn't happen...case and point. Its really not that difficult you know...

...and Tivo did not seek a legal limit first...they went for the throat...that was the first thing they sought out of a sense of entitlement...they are still doing it...

And the two words 'consumer terrorism' applies. Not just the one word you choose...(words are important, right?  )

Consumer terrorism, Tivo attempted to hold E* subs hostage to further their gains and extort E* and the courts...that was their goal. Their goal failed...

I repeat, the WORDS "CONSUMER TERRORISM" applies to what Tivo attempted to achieve...they deserve no respect from anyone.


----------



## James Long

TiVo went after DISH (EchoStar) for infringing on their idea, their patent protected idea.
Why are DISH's customers TiVo's responsibility?

TiVo did not go after DISH's customers, they went after DISH to protect their rights under law. A jury agrees that DISH violated TiVo's rights. The punishment is as proscribed by law. DISH cannot continue to infringe. Shutting down the DVRs is a legal and an appropriate method of ending infringement.

It is up to DISH to protect their customers and there are many ways that DISH can do that. One way would be to license TiVo's technology so they would have permission to use it. Another way would be to develop their own technology that does not infringe on TiVo's patent claims.

It isn't TiVo's responsibility to give DISH customer's DVR service ... it is DISH's responsibility.


----------



## vampz26

James Long said:


> TiVo went after DISH (EchoStar) for infringing on their idea, their patent protected idea.
> Why are DISH's customers TiVo's responsibility?
> 
> TiVo did not go after DISH's customers, they went after DISH to protect their rights under law. A jury agrees that DISH violated TiVo's rights. The punishment is as proscribed by law. DISH cannot continue to infringe. Shutting down the DVRs is a legal and an appropriate method of ending infringement.
> 
> It is up to DISH to protect their customers and there are many ways that DISH can do that. One way would be to license TiVo's technology so they would have permission to use it. Another way would be to develop their own technology that does not infringe on TiVo's patent claims.
> 
> It isn't TiVo's responsibility to give DISH customer's DVR service ... it is DISH's responsibility.


But whose choice was it to pursue that direction? To Go after Dish's customers? I know Tivo was pretty firm on the whole 'contempt' thing...

Dish's customers have legal rights too...you know that...

So...do we just blame the courts? Or did Tivo pursue maximum damanges from the start, by holding Dish customer hostage over their DVRs and using it as a basis of extortion? If Tivo legitimately had a case, I doubt such extreme measures were necessary...it was obviously an attempt to force the issue...


----------



## James Long

TiVo has not gone after DISH's customers ... they have gone after DISH.
TiVo wants DISH to stop infringing on their patent ... period.
Payment for past infringement is important, but stopping infringement is the goal.


----------



## Ergan's Toupe

vampz26 said:


> GASP! :eek2:
> 
> I had no idea that you were so poorly informed...
> 
> Corporate extortion and consumer terrorism has been the entire litigation model for Tivo this entire case...
> 
> Rather than just prove the case in court, they attempted to hold E*s customers hostage and attempt to strong-arm a decision in the trial. Thats about as unethical as it gets...
> 
> I have no respect for an unethical company like Tivo that can't keep their negotations on the table where they belong...


So you have a problem with Tivo wanting Charlie to abide by a court ordered injunction but you have no problem with Chuckles sneaking a super top secret "design around" past everyone? 

I'm going to go out on a limb here and guess that you have one (or more) of the infringing DVR's in your possession, right?


----------



## Ergan's Toupe

vampz26 said:


> But whose choice was it to pursue that direction? To Go after Dish's customers? I know Tivo was pretty firm on the whole 'contempt' thing...
> 
> Dish's customers have legal rights too...you know that...


Charlie got caught with his hand in the cookie jar. You should sue him for selling you stolen goods. :lol:


----------



## Ergan's Toupe

vampz26 said:


> Shutting down my DVR obviously wasn't legal...the 105MM is not my problem
> 
> No...not at all...my sentence was complete in and of itself. Your putting words in peoples mouth again. Shutting down my DVR was not legal, the courts made certain taht didn't happen...case and point. Its really not that difficult you know...
> 
> ...and Tivo did not seek a legal limit first...they went for the throat...that was the first thing they sought out of a sense of entitlement...they are still doing it...
> 
> And the two words 'consumer terrorism' applies. Not just the one word you choose...(words are important, right?  )
> 
> Consumer terrorism, Tivo attempted to hold E* subs hostage to further their gains and extort E* and the courts...that was their goal. Their goal failed...
> 
> I repeat, the WORDS "CONSUMER TERRORISM" applies to what Tivo attempted to achieve...they deserve no respect from anyone.


You would change your tune pretty quick if it was *YOUR* patent that was being infringed on and *YOUR* company that was being "irreparably harmed".


----------



## Curtis52

Curtis52 said:


> I can't tell if you understand that the result of the PID parsing (AKA the video and audio data) is the actual program content data (the TV show) not some kind of table or statistics or whatever. Maybe you know that. I can't tell for sure.





jacmyoung said:


> That is the whole problem here, the result of the parsed audio/video data in the TiVo's claims is not the actual program content data, rather the frame index info sets, one for the audio, one for the video, built into two index tables. How so? Because the TiVo experts explained so.


OK. Here is the problem. You apparently don't realize that PID filtering broadcast data produces audio and video content data (the TV show) from the broadcast data and instead believe that it produces an index table even though no index table is mentioned. This is exactly the same "error" that Fish and Richardson make when they say that the Dish physical data source doesn't do parsing (analyzing). They are saying it doesn't produce an index table but aren't saying there isn't PID filtering (parsing). PID filtering is required to produce a watchable program. That's the whole purpose. Witness the fact that even non-DVR satellite boxes do PID filtering (parsing).


----------



## Ergan's Toupe

vampz26 said:


> Consumer terrorism, Tivo attempted to hold E* subs hostage to further their gains and extort E* and the courts...that was their goal. Their goal failed...


Actually, Tivo's goal is to get Charlie to pay for the rights to use their patented process(s). How is that "consumer terrorism"? You're lashing out and blaming the wrong people.

Oh and as far as their goal failing, you do realize that no decision has been reached yet, right? That's what this whole "bench trial" is hoping to sort out.


----------



## James Long

Curtis52 said:


> OK. Here is the problem. You apparently don't realize that PID filtering broadcast data produces audio and video content data (the TV show) from the broadcast data and instead believe that it produces an index table even though no index table is mentioned. This is exactly the same "error" that Fish and Richardson make when they say that the Dish physical data source doesn't do parsing (analyzing). They are saying it doesn't produce an index table but aren't saying there isn't PID filtering (parsing). PID filtering is required to produce a watchable program. That's the whole purpose. Witness the fact that even non-DVR satellite boxes do PID filtering (parsing).


Fish and Richardson explain the difference in the parsing. In court parsing was defined as being a certain type of analysis. An analysis that is no longer done. The 'parsing' that remains is something else - a normal function of a satellite receiver that per the injunction is permitted to continue to function.

The parsing done by non-DVRs and modified DVRs is not the analysis done in the patent.


----------



## James Long

Ergan's Toupe;1919678 said:


> That's what this whole "bench trial" is hoping to sort out.


What "bench trial"? Judge Folsom is holding an "additional evidentiary hearing" on February 17th-18th.


----------



## Greg Bimson

James Long said:


> The parsing done by non-DVRs and modified DVRs is not the analysis done in the patent.


But even according to DISH/SATS, it is...


----------



## James Long

Greg Bimson said:


> But even according to DISH/SATS, it is...


You are looking at the wrong parsing. TiVo does both types, DISH's new software does not.
That is the claim made in the reports and in the pending patent.

It is bad enough that TiVo pushes the idea that any DVR (regardless of design) infringes their patent on DVRs ... are we now to believe that processes found in non-DVRs infringe their DVR patent?

When will we see the suit to shut down the 301/311 series receivers because they parse, buffer and eventually display?


----------



## vampz26

Ergan's Toupe;1919678 said:


> Actually, Tivo's goal is to get Charlie to pay for the rights to use their patented process(s). How is that "consumer terrorism"? You're lashing out and blaming the wrong people.
> 
> Oh and as far as their goal failing, you do realize that no decision has been reached yet, right? That's what this whole "bench trial" is hoping to sort out.


You know, you have replied to EVERY post I made in response to others with teh same commentary. I'm sorry...thats for Mr. Long to decide, but to me it borderlines on spamming. You obviously are much more emotive on the subject, given your very 'handle' is a slam on E*, so if we are dealing with an emotional issue here on your part that needs to be brought to lite now. I have seen way to many conversations digress because someone had an unnatural love for Tivo, a strange perverted hatred for E*, or some religious loyalty towards D*, or whatever. Either way, I am not going to get into an emotional argument over something that to me is a common sense issue.

My point is simple. I have seen enough IP litigations YEARS ago after the dot.com crash. That was when all the economy started failing after 9/11 and the venture capital that many start-ups were relying on to stay in business started drying up. As a last ditch effort to 'live to fight another day', many start-ups took their ideas into the IP courtrooms to either patent, trademark, or copyright to secure their IP before closing the doors. And during that time, almost every case I witnessed was handled in the courtroom, and a genuine intention on the part of the courts and litigators to keep it there. Whatever Tivo tried to do to Dish Customers was extreme and nobody but Tivo should be blamed.

You see, what Tivo realizes here and what many Tivo supporters fail to realize is, is that Tivo was lucky to get that patent, and we could easily have an entire discussion thread just as busy as this one to discuss whether or not Tivo actually deserved one. Tivo knows this. And Tivo knows that a speedy end to this nonsense worked to their benefit, while a delay would work towards their demise...because delays would allow for time expose the holes in the patented process that could be exploited into creating a work-around. And from what I've read here given the input from my technical peers, a work-around is entirely possible. And had given my opinion regarding such as well...

With that being said, my final remarks on the subject are simple enough. Tivo could have handled their issue with E* entirely in the courtrooms and all elements be kept either financial and legal, without forcing their way into E* customer homes. That decision to pursue maximum damage that impacted customers was Tivo's decision to strong-arm a speedy decision here. I'm just grateful that the stopgaps were put in check and this was avoided.

I wouldn't mind a class-action lawsuit here against Tivo by E* subs who were put at risk. I don't know if its possible, given the judge would have been the one to pull the trigger, but its fun to think about. Technically anyone one can sue anyone else for anything....


----------



## jacmyoung

James Long said:


> Fish and Richardson explain the difference in the parsing. In court parsing was defined as being a certain type of analysis. An analysis that is no longer done. *The 'parsing' that remains is something else - a normal function of a satellite receiver that per the injunction is permitted to continue to function.*
> 
> The parsing done by non-DVRs and modified DVRs is not the analysis done in the patent.


You know what you hit the nail right on the head!

The injunction prohibits the DVR functions, but allows the continued use as non-DVRs, meaning the PID filters are allowed to continue to function, period, end of the story.

TiVo needs to come up with something else that will stick. It will be so easy for E* to tell the judge when he permitted the sat boxes to continue be used as non-DVRs, he already was saying PID filtering was fine, he was not prohibiting that part.

Otherwise he would have ordered the boxes completely shut off, as tossed away, in the trash.


----------



## James Long

vampz26 said:


> You know, you have replied to EVERY post I made in response to others with teh same commentary. I'm sorry...thats for Mr. Long to decide, but to me it borderlines on spamming.


We have a post reporting function for such complaints but your reputation isn't exactly the best ... these repeated references to terrorism would also be gone. Most of this thread can be read in previous closed threads - so I suppose it all could be considered "spam". Lets try to be tolerant and not personal (everyone).



> You see, what Tivo realizes here and what many Tivo supporters fail to realize is, is that Tivo was lucky to get that patent, and we could easily have an entire discussion thread just as busy as this one to discuss whether or not Tivo actually deserved one.


Lucky or not they got the patent, the patent was challenged and upheld and DISH's infringement of said patent and the injunction has been upheld by the court system.



> Tivo could have handled their issue with E* entirely in the courtrooms and all elements be kept either financial and legal, without forcing their way into E* customer homes.


TiVo has not entered my home nor have they threatened to do so. After the jury found DISH guilty of infringement there was a negotiation with TiVo, DISH and Judge Folsom to set the penalty. The jury suggested the financial penalty and the judge imposed it without trebling it. DISH told the court that their infringing products could have the DVR functionality disabled remotely and the court (and TiVo) accepted that as part of the punishment.

If you want to get mad at anyone for the "disable the DVR functionality" portion of the injunction that would potentially shut down 4 million placed DVRs point your ire at DISH. They are the ones who infringed and the ones who suggested that the DVRs could be disabled (as opposed to being recalled, replaced by TiVo receivers or be licensed under TiVo's patent).



> I wouldn't mind a class-action lawsuit here against Tivo by E* subs who were put at risk.


So you like frivolous lawsuits? DISH would be the better target if there ever is a shut down. They are the ones who promoted and sold infringing receivers - they are the ones charging a monthly fee for the DVR use.

Of course promoting such action is against the rules of our site ... so if you choose to sue anyone don't try to build your class via DBSTalk.


----------



## scooper

jacmyoung said:


> You know what you hit the nail right on the head!
> 
> The injunction prohibits the DVR functions, but allows the continued use as non-DVRs, meaning the PID filters are allowed to continue to function, period, end of the story.
> 
> TiVo needs to come up with something else that will stick. It will be so easy for E* to tell the judge when he permitted the sat boxes to continue be used as non-DVRs, he already was saying PID filtering was fine, he was not prohibiting that part.
> 
> Otherwise he would have ordered the boxes completely shut off, as tossed away, in the trash.


Yes - if the Tivo supporters would look objectively at the injunction - that IS what it stated - The Infringing Products could continue to be used as DBS receivers, with their DVR function shutdown. That of course implies that PID Filtering is OK - as it would not be considered as part of the "analysis" that Tivo considers necessary. That also implies that the PID filtering is a RECEIVER function, as I have *continously* maintained


----------



## Ergan's Toupe

James Long said:


> What "bench trial"? Judge Folsom is holding an "additional evidentiary hearing" on February 17th-18th.


You say ta-ma-tow, I say two-may-toe, Charlie wanted to call the whole thing off....


----------



## vampz26

James Long said:


> Lucky or not they got the patent, the patent was challenged and upheld and DISH's infringement of said patent and the injunction has been upheld by the court system..


Very rarely does one court overturn the decision of another court. Not unless new evidence comes into light, or there is a major breakthrough. Just going to a another court for a 'second opinion' isn't going to yield very much...



James Long said:


> TiVo has not entered my home nor have they threatened to do so. After the jury found DISH guilty of infringement there was a negotiation with TiVo, DISH and Judge Folsom to set the penalty. The jury suggested the financial penalty and the judge imposed it without trebling it. DISH told the court that their infringing products could have the DVR functionality disabled remotely and the court (and TiVo) accepted that as part of the punishment
> 
> If you want to get mad at anyone for the "disable the DVR functionality" portion of the injunction that would potentially shut down 4 million placed DVRs point your ire at DISH. They are the ones who infringed and the ones who suggested that the DVRs could be disabled (as opposed to being recalled, replaced by TiVo receivers or be licensed under TiVo's patent).


Apologies, I appreciate the background here, but I fail to see the difference between Tivo strong-arming Dish into makeing a decision, or my claim that Tivo had forced the decision. I'm sorry but it still sounds like extortion to me...



James Long said:


> So you like frivolous lawsuits? DISH would be the better target if there ever is a shut down. They are the ones who promoted and sold infringing receivers - they are the ones charging a monthly fee for the DVR use.
> 
> Of course promoting such action is against the rules of our site ... so if you choose to sue anyone don't try to build your class via DBSTalk.


No, I do not 'like' frivilous lawsuits, and nor would I ever disrespect this forum in an attempt to rally support here. I was only commenting on what an amusing turn of events that would be, but certainly not with any intentions beyond that.


----------



## James Long

scooper said:


> Yes - if the Tivo supporters would look objectively at the injunction - that IS what it stated - The Infringing Products could continue to be used as DBS receivers, with their DVR function shutdown. That of course implies that PID Filtering is OK - as it would not be considered as part of the "analysis" that Tivo considers necessary. That also implies that the PID filtering is a RECEIVER function, as I have *continously* maintained


And that is where it could get sticky ...

Under the most TiVo friendly reading of their patent claims 31 & 61 even a 301 or other non-DVR receiver could be found infringing because it fulfills all of the steps.

The injunction applying to the eight named receiver models demands the DVR functionality be disabled and defines said functionality as writing TV data to and reading it from a hard drive. A step not specified in TiVo's patent claims (the storage device isn't specified in claim 31 or 61). A hard drive is the storage device that TiVo uses and DISH also uses in their DVRs but the court cherry picked that particular step as being the one that needed removal instead of ordering DISH to remove software that infringed on TiVo's claims.

The injunction allowed all other steps to remain in place - including those in the hardware claims that were later reversed and remanded.

So now we have a problem ... the one thing DISH was ordered to do was to disable writing television data to the hard drive. Last I checked there is still television data being written to the hard drive on the named receivers. That would place DISH in contempt.

Unless of course there is something that has been over looked ... perhaps common sense? The same common sense that says that if DISH is no longer infringing then their 'contempt' isn't a big problem? The same common sense that will hopefully define the difference between TiVo's process and DISH's new process.


----------



## Ergan's Toupe

vampz26 said:


> You know, you have replied to EVERY post I made in response to others with teh same commentary. I'm sorry...thats for Mr. Long to decide, but to me it borderlines on spamming. You obviously are much more emotive on the subject, given your very 'handle' is a slam on E*, so if we are dealing with an emotional issue here on your part that needs to be brought to lite now.


Asking you to back up your statement that Tivo has been "unethical" seems to have touched a nerve. You can shoot the messenger all you want, but you are 100% wrong. You can whine to the moderators all you want, but when you make over the top statements like "consumer terrorists", expect to be called out.

I now know that your comments come from having a horse in this race and will drop the subject.


----------



## Greg Bimson

James Long said:


> You are looking at the wrong parsing. TiVo does both types, DISH's new software does not.
> That is the claim made in the reports and in the pending patent.
> 
> It is bad enough that TiVo pushes the idea that any DVR (regardless of design) infringes their patent on DVRs ... are we now to believe that processes found in non-DVRs infringe their DVR patent?
> 
> When will we see the suit to shut down the 301/311 series receivers because they parse, buffer and eventually display?





jacmyoung said:


> You know what you hit the nail right on the head!
> 
> The injunction prohibits the DVR functions, but allows the continued use as non-DVRs, meaning the PID filters are allowed to continue to function, period, end of the story.
> 
> TiVo needs to come up with something else that will stick. It will be so easy for E* to tell the judge when he permitted the sat boxes to continue be used as non-DVRs, he already was saying PID filtering was fine, he was not prohibiting that part.
> 
> Otherwise he would have ordered the boxes completely shut off, as tossed away, in the trash.





scooper said:


> Yes - if the Tivo supporters would look objectively at the injunction - that IS what it stated - The Infringing Products could continue to be used as DBS receivers, with their DVR function shutdown. That of course implies that PID Filtering is OK - as it would not be considered as part of the "analysis" that Tivo considers necessary. That also implies that the PID filtering is a RECEIVER function, as I have *continously* maintained


In no particular order:

DISH/SATS agrees that PID analysis meets the limitation for the "parsing" component of the step of the claims.

DISH/SATS new software did not eliminate that analysis.

TiVo has not pushed that any DVR infringes. TiVo has only gone after eight models of DISH/SATS DVR's, which were found infringing. TiVo still believes the modifications made to those eight models still continue to infringe in a manner not much different than what was found.

So what if the PID filters are allowed to remain if DVR functionality is supposed to be disabled? A standard RECEIVER does not infringe as it has no DVR functionality. A DVR RECEIVER infringes if it has the same functionality as patented by TiVo, as TiVo builds DVR RECEIVERS.

Good lord, pay attention: a standard receiver does not have a transform object. Therefore, there is no way for a standard receiver to EVER INFRINGE upon the TiVo Time Warp patent.

Again, DISH/SATS has admitted that PID analysis meets the parsing limitation in the component of the step of the primary claims. If some were _objective_, people would stop arguing about that evidence which has been placed on record, instead of trying to re-create the wheel.


----------



## James Long

The courts are narrowing this down to what does and doesn't infringe ... which is good.

Most people here are either unqualified or too focused on their side to look at the situation fairly. Which is why we have courts, lawyers and expert witnesses who know a hell of a lot more about the specifics than anyone here to handle it all.


----------



## Ergan's Toupe

scooper said:


> Yes - if the Tivo supporters would look objectively at the injunction - that IS what it stated - The Infringing Products could continue to be used as DBS receivers, with their DVR function shutdown. That of course implies that PID Filtering is OK - ....


Of course it's OK for a satellite receiver to use PID filtering, but we're talking about a "satellite recorder" a "DVR" a "TIVO" if you will.

Tivo doesn't have a patent on PID filtering, they have a patent on PID filtering (parsing, analyzing) to a "recorder" "DVR".

Why do you think that Chuckles and his hired guns have gone out of their way not to mention PID filtering in their patent/defense?

Bottom line is the boxes still "parse" parsing = analyzing and analyzing = continued infringement.


----------



## Ergan's Toupe

Greg Bimson said:


> So what if the PID filters are allowed to remain if DVR functionality is supposed to be disabled? A standard RECEIVER does not infringe as it has no DVR functionality. A DVR RECEIVER infringes if it has the same functionality as patented by TiVo, as TiVo builds DVR RECEIVERS.


DING! We have a winner!!!


----------



## James Long

Back to reality ... court filings made late yesterday by DISH. (Sealed)

872 Filed & Entered: 12/12/2008 Sealed Motion
Emergency SEALED MOTION of Defendants to Compel Plaintiff to Comply with Disclosure Order 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) (Krevans, Rachel)​
It looks like TiVo didn't make their disclosure on time and DISH needs to compel the response.


----------



## Ergan's Toupe

Anyone remember what it was that Tivo asked for in discovery after Chuckles had his lawyers announce that he deployed a super top secret "design around" that E* refused to supply?

It wasn't code because Charlie forked that over... I think it was something to do with "real world" testing or something...

One of you guys should be able to read my mind and help me out here...


----------



## vampz26

Ergan's Toupe;1920051 said:


> Asking you to back up your statement that Tivo has been "unethical" seems to have touched a nerve. You can shoot the messenger all you want, but you are 100% wrong. You can whine to the moderators all you want, but when you make over the top statements like "consumer terrorists", expect to be called out.
> 
> I now know that your comments come from having a horse in this race and will drop the subject.


no nerve...just my interpretation of the facts that are just as relevant as anyone elses interpretation of the facts. I know I am right. You like to believe you are right. And you have no basis by which to prove me wrong other than your emotive reasoning and a belief in an authority that I regard as questionable all the way around. Period. You drop the subject for no other reason than because its the smart thing for you to do.

I consider Tivo's conduct in this trial unethical and do not like they way they run their business. So much that I, once being one of thier biggest supporters, turned my back on them. You may just want to consider my position and try to understand it first. It might make more sense to you if you did, and didn't just jump on it and hide behind your purely emotive stance like its some kind of joke....


----------



## Ergan's Toupe

James Long said:


> Back to reality ... court filings made late yesterday by DISH. (Sealed)
> 
> 872 Filed & Entered: 12/12/2008 Sealed Motion
> Emergency SEALED MOTION of Defendants to Compel Plaintiff to Comply with Disclosure Order 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) (Krevans, Rachel)​
> It looks like TiVo didn't make their disclosure on time and DISH needs to compel the response.


If this is true all I can say is LOL!!!

Seriously, I don't care whose side your on, this is getting freaking ridiculous!! :lol:

If I were Folsom I would tell Rogers and Charlie that they are going to fight to the finish in a steel cage match. Winner takes all....

What a joke...


----------



## vampz26

Ergan's Toupe;1920081 said:


> Bottom line is the boxes still "parse" parsing = analyzing and analyzing = continued infringement.


...and in the real world, parsing and analyzing are NOT the same thing.

...which is one of my major point as to why I consider the courts incompetent.


----------



## peak_reception

*JUDGE'S RULING PUTS DEFENDANT OUT OF BUSINESS IN ADDITION TO 100 MILLION IN DAMAGES!!*

Could this be the scorched earth aftermath of a TiVo win over EchoStar/Dish incurring massive damages and millions of DVRs shut down?

Nope. Rather, this was the outcome of Mattel v. MGA Entertainment in a copyright infringement lawsuit finally decided by a jury last July and followed up by Judge Stephan Larson of Riverside California this December 3rd, 2008. Here's the link from Time Magazine online:

http://www.time.com/time/magazine/article/0,9171,1865952,00.html

Mattel v. MGA Entertainment is better known as *Barbie v. Bratz* Barbie just cleaned the floor with Bratz in a sweeping judgment and, according to the article, MGA is to stop making and selling the Bratz dolls shortly after this holiday shopping season. MGA's Chief Executive Issac Larian calls the ruling "shocking and unfair" and plans to appeal.

The article says that the ruling effectively hands control of the popular Bratz brand over to Mattel for them to do what they please with it including the option of shutting the line down, i.e. no more Bratz a distinct possibility.

To understand just how Draconian this ruling is you need to know that Bratz provides HALF the income of family-owned MGA according to the article.

This coming February there will be an additional hearing (sound familiar?) to determine the complete resolution details.

What's not discussed is how this ruling could also devastate millions of little girls who could be shortly and suddenly deprived of the sexy Bratz they've come to love and treasure over the past 8 years!

Is this not tantamount to terrorism and child abuse?! Why would Mattel torture little girls in this way? Why would a jury concur and sanction such abuse? How could a Federal Judge allow such abuse to go forward, even to the point where he makes it possible for Mattel to destroy Bratz forever if they so please (and probably will, such is their hatred for children so evident in this whole shameful affair).

WHO WILL DEFEND THE LITTLE GIRLS? THE INNOCENTS CAUGHT IN MATTEL'S CROSSHAIR'S. SHAME! SHAME!! SHAME!!!


----------



## James Long

peak_reception said:


> What's not discussed is how this ruling could also devastate millions of little girls who could be shortly and suddenly deprived of the sexy Bratz they've come to love and treasure over the past 8 years!


There is a recall? Is there some elven magic that will cause the Bratz already in homes to cease to function? Not quite the same thing.

The court could just order the end of Bratz ... at least there is a hope that they will live on.

Back to topic ... and our own reality.


----------



## Greg Bimson

Ergan's Toupe said:


> Anyone remember what it was that Tivo asked for in discovery after Chuckles had his lawyers announce that he deployed a super top secret "design around" that E* refused to supply?


I think it was the test bench.

You know, DISH/SATS supplied the code, but not the compiler nor the other tools that would probably help understand what the hardware was doing in conjunction with the software.


----------



## Ergan's Toupe

vampz26 said:


> ...and in the real world, parsing and analyzing are NOT the same thing.


http://dictionary.reference.com/browse/parsing

parse (pärs) Pronunciation Key 
v. parsed, pars·ing, pars·es

v. tr.

1. To break (a sentence) down into its component parts of speech with an explanation of the form, function, and syntactical relationship of each part.

2.To describe (a word) by stating its part of speech, form, and syntactical relationships in a sentence.

3. To examine closely or subject to detailed analysis, especially by breaking up into components: "What are we missing by parsing the behavior of chimpanzees into the conventional categories recognized largely from our own behavior?" (Stephen Jay Gould).
To make sense of; comprehend: I simply couldn't parse what you just said.

4. Computer Science To analyze or separate (input, for example) into more easily processed components.


----------



## James Long

The court has it's definition. No other is needed.


----------



## Ergan's Toupe

Greg Bimson said:


> I think it was the test bench.
> 
> You know, DISH/SATS supplied the code, but not the compiler nor the other tools that would probably help understand what the hardware was doing in conjunction with the software.


That was it. Thanks Greg.

Any idea why Charlie wouldn't supply that? It's not like he's hid anything during this whole fiasco. Maybe he was afraid Tivo was going to steal his "herculean" effort? :lol:

You know, the one that took a gazzillion man years at a cost of $750,000? !rolling !rolling


----------



## Ergan's Toupe

James Long said:


> The court has it's definition. No other is needed.


"...and in the real world, parsing and analyzing are NOT the same thing. "


----------



## James Long

Ergan's Toupe;1920143 said:


> "...and in the real world, parsing and analyzing are NOT the same thing. "


The court, specifically Judge Folsom's court, is the real world that matters in this case.


----------



## dgordo

vampz26 said:


> Apologies, I appreciate the background here, but I fail to see the difference between Tivo strong-arming Dish into makeing a decision, or my claim that Tivo had forced the decision. I'm sorry but it still sounds like extortion to me...


It sounds like your complaint is with patent law. If you consider winning a jury trial and choosing to exercise the rights that come with winning strong-arming then I cant argue with your opinion, but is it so unfair that Tivo chose to exercise rights granted under patent law?


----------



## vampz26

Ergan's Toupe;1920134 said:


> http://dictionary.reference.com/browse/parsing
> 
> parse (pärs) Pronunciation Key
> v. parsed, pars·ing, pars·es
> 
> v. tr.
> 
> 1. To break (a sentence) down into its component parts of speech with an explanation of the form, function, and syntactical relationship of each part.
> 
> 2.To describe (a word) by stating its part of speech, form, and syntactical relationships in a sentence.
> 
> 3. To examine closely or subject to detailed analysis, especially by breaking up into components: "What are we missing by parsing the behavior of chimpanzees into the conventional categories recognized largely from our own behavior?" (Stephen Jay Gould).
> To make sense of; comprehend: I simply couldn't parse what you just said.
> 
> 4. Computer Science To analyze or separate (input, for example) into more easily processed components.


Very good, but for your statement too be true, the converse of that statement must also be true...

http://dictionary.reference.com/browse/analyze

It isn't...

While one can include parsing as a means of analysis, or as a means of breaking down data to analyze, parsing in the technical sense (which is all we are applying it to here) is stated in regards to character streams as indicated by your definition, and mpeg bitstreams as referenced here. The term analysis, however, does not necessarily include, nor is it strictly limited to the concept of parsing...so therefore the converse of the statement is NOT true, therefore the two terms are not equivalent.

You see, even if you can find a definition than says Parsing is a way to Analyze, it makes no sense the other way around...to Analyze is not a way to Parse.

Remember, the term 'analyze' here has been used not just in reference to the mpeg bitstreams, but in reference to the statistical information used to gather, navigate, and synchronize those bitestreams. And in no, way, shape, or form can the analysis of such statistical information be regarded as the same as mere 'parsing' the data itself...

Nice try, but I've seen Ph.D. students fail to prove the converse of their theories, so this was nothing new. Clever, but not enough...


----------



## vampz26

dgordo said:


> It sounds like your complaint is with patent law. If you consider winning a jury trial and choosing to exercise the rights that come with winning strong-arming then I cant argue with your opinion, but is it so unfair that Tivo chose to exercise rights granted under patent law?


People use the law to bully and strong-arm other people all the time. Its not a new or unfamiliar concept in the slightest...


----------



## Greg Bimson

...and in the judicial world, which includes reality, the admission that DISH/SATS uses a parser for PID filtering meets the parse/analyze component of the first step of the claim.


----------



## Ergan's Toupe

James Long said:


> The court is the real world that matters in this case.


Do you have a point? Are you saying that parse doesn't = analyze? Or are you just being argumentative?


----------



## Ergan's Toupe

vampz26 said:


> People use the law to bully and strong-arm other people all the time. Its not a new or unfamiliar concept in the slightest...


Give it up, dude. Tivo is well within their rights to protect what is rightfully theirs. If you have a problem with anyone, you have a problem with the person who took it upon himself to infringe on someone else's IP.

I suggest you point your anger at the person who made the decision to infringe.

Your argument is as lame as the blaming the rape victim by saying she dressed provocatively.


----------



## James Long

Ergan's Toupe;1920162 said:


> Do you have a point? Are you saying that parse doesn't = analyze? Or are you just being argumentative?


No, I leave argumentative to others ... and there are at least four others serving that role at this time.

In the original trial parse was defined ... the opinion DISH received on their new software was that the court defined definition of parse is not met in DISH's new software. The "yes it is" / "no it isn't" is a debate for the court.

No outside new definition helps in that debate. In finding infringement the court's definition, right or wrong, was applied. In throwing in some other definition you might as well be talking about another case.

Stick with this one ... TiVo vs Echostar.


----------



## scooper

James Long said:


> And that is where it could get sticky ...
> 
> Under the most TiVo friendly reading of their patent claims 31 & 61 even a 301 or other non-DVR receiver could be found infringing because it fulfills all of the steps.


If they get that one - Judge Folsom should be impeached and removed from the Federal bench. Isn't there patents on DBS receivers already ? As well as other "receiver devices" ?



James Long said:


> The injunction applying to the eight named receiver models demands the DVR functionality be disabled and defines said functionality as writing TV data to and reading it from a hard drive. A step not specified in TiVo's patent claims (the storage device isn't specified in claim 31 or 61). A hard drive is the storage device that TiVo uses and DISH also uses in their DVRs but the court cherry picked that particular step as being the one that needed removal instead of ordering DISH to remove software that infringed on TiVo's claims.


To correct you - claim 31 did not mention said storage device but claim 61 did. In fact, it looked to me like 31 is entirely contained in 61 - sort of making 31 redundant.



James Long said:


> The injunction allowed all other steps to remain in place - including those in the hardware claims that were later reversed and remanded.
> 
> So now we have a problem ... the one thing DISH was ordered to do was to disable writing television data to the hard drive. Last I checked there is still television data being written to the hard drive on the named receivers. That would place DISH in contempt.
> 
> Unless of course there is something that has been over looked ... perhaps common sense? The same common sense that says that if DISH is no longer infringing then their 'contempt' isn't a big problem? The same common sense that will hopefully define the difference between TiVo's process and DISH's new process.


We can only hope that common sense still has a place in patent law trials...


----------



## Ergan's Toupe

vampz26 said:


> Very good, but for your statement too be true, the converse of that statement must also be true...
> 
> http://dictionary.reference.com/browse/analyze
> 
> It isn't...
> 
> While one can include parsing as a means of analysis, or as a means of breaking down data to analyze, parsing in the technical sense (which is all we are applying it to here) is stated in regards to character streams as indicated by your definition, and mpeg bitstreams as referenced here. The term analysis, however, does not necessarily include, nor is it strictly limited to the concept of parsing...so therefore the converse of the statement is NOT true, therefore the two terms are not equivalent.
> 
> You see, even if you can find a definition than says Parsing is a way to Analyze, it makes no sense the other way around...to Analyze is not a way to Parse.
> 
> Remember, the term 'analyze' here has been used not just in reference to the mpeg bitstreams, but in reference to the statistical information used to gather, navigate, and synchronize those bitestreams. And in no, way, shape, or form can the analysis of such statistical information be regarded as the same as mere 'parsing' the data itself...
> 
> Nice try, but I've seen Ph.D. students fail to prove the converse of their theories, so this was nothing new. Clever, but not enough...


You're reaching big time now. :lol:


----------



## James Long

scooper said:


> To correct you - claim 31 did not mention said storage device but claim 61 did. In fact, it looked to me like 31 is entirely contained in 61 - sort of making 31 redundant.


To correct your correction, neither named the storage device as being a hard drive. The storage device could have been anything.

The difference between 31 and 61 is process and apparatus.


----------



## Ergan's Toupe

vampz26 said:


> Very good, but for your statement too be true, the converse of that statement must also be true...
> 
> http://dictionary.reference.com/browse/analyze
> 
> It isn't...
> 
> While one can include parsing as a means of analysis, or as a means of breaking down data to analyze, parsing in the technical sense (which is all we are applying it to here) is stated in regards to character streams as indicated by your definition, and mpeg bitstreams as referenced here. The term analysis, however, does not necessarily include, nor is it strictly limited to the concept of parsing...so therefore the converse of the statement is NOT true, therefore the two terms are not equivalent.
> .


We can argue the definitions of "parse" till the cows come home but let me ask you, do you really think this argument is going to make the "design around" more than colorably different?

I don't.


----------



## scooper

61 didn't mention harddrive by name - rather, just the generic term "storage device".

It looked like most of the others were the proverbial "throw the crap up and see if it sticks".


----------



## vampz26

Ergan's Toupe;1920187 said:


> We can argue the definitions of "parse" till the cows come home but let me ask you, do you really think this argument is going to make the "design around" more than colorably different?
> 
> I don't.


No...my point regarding terminology was more directed at the courts. What you and I have successfully proven, by both of us providing definitions, is that the term "analyze" covers a much wider range of meanings than the term "parse", even in a technical sense. Thus rendering the two terms non-interchangable. My point here that you helped prove, is what I base my opinion on regarding the courts. The fact that they claim that the terms are equivalent, clearly illustrates their ineptitude in handling this case.

In terms of 'colorable difference', the only thing I can see that would make for a legitimate difference is the use of a single buffer implemented in part using hardware, as opposed to the use of many software buffers. That may be a substantial enough difference, the key will be to prove that the design concept is an improved concept that is in no way shape or for derived from the original. And do so in a way that the court can actually understand it, without dummying down the concept to a point where its meaning is lost, just like the meaning of 'analyze' vs. 'parse'...


----------



## vampz26

Ergan's Toupe;1920167 said:


> Give it up, dude. Tivo is well within their rights to protect what is rightfully theirs. If you have a problem with anyone, you have a problem with the person who took it upon himself to infringe on someone else's IP.
> 
> I suggest you point your anger at the person who made the decision to infringe.
> 
> Your argument is as lame as the blaming the rape victim by saying she dressed provocatively.


I wouldn't call it a lame argument...in the courts, this type of argument happens all the time. And sometimes, arguments like your very tasteless analogy illustrates actually get upheld, which is disgraceful. But that goes to show you just how many injustices take place in the court system every day, and why I don't give them much in the way of credibility...

And as for 'rights'. E* customers have rights, E* has rights, and Tivo has rights...thats wonderful. At one point does one entity have the right to deny the rights of another entity? The subject of 'who has what right' is a long standing debate in may circles and also in many court cases. Without denying Tivo's right to protect their rights, I DO NOT believe they had the right to deny anyone else theirs. Including E* customers who have the right to enjoy the product they are paying for. It was E*s problem to settle this issue and should be E*'s problem alone, and the fact that Tivo attempted to take this issue to their customers and make it their problem is what I consider to be in bad form.

And lastly, I have no anger here. I'm not the one with the issues....my moniker vampz26 is based on an old band and a car I used to drive, not a way to vent my anger towards any corporate entity or executive thereof. Cute kid though...


----------



## Greg Bimson

vampz26 said:


> And as for 'rights'. E* customers have rights, E* has rights, and Tivo has rights...thats wonderful. At one point does one entity have the right to deny the rights of another entity?


Since when does DISH/SATS have the right to simply ignore patent law? Talk about a one-sided argument.

In vampz26's world, innovation is no longer to be rewarded with exclusive rights: a patent.


----------



## Curtis52

People that buy stolen goods have no liability. Likewise, the infringers should be let off the hook.


----------



## dgordo

vampz26 said:


> People use the law to bully and strong-arm other people all the time. Its not a new or unfamiliar concept in the slightest...


I'm a lawyer (sort of) so I agree with you. My point was, why blame the people for playing by the rules?


----------



## vampz26

Greg Bimson said:


> Since when does DISH/SATS have the right to simply ignore patent law? Talk about a one-sided argument.
> 
> In vampz26's world, innovation is no longer to be rewarded with exclusive rights: a patent.


Wrong....

in vampz26's world innovation SHOULD be rewarded, and JUSTLY rewarded...

...but if the innovation be improved upon, and a better mousetrap is built...

...than that innovation should be rewarded too. And certainly not punished.

...remember, innovation goes both ways here. If one innovator fails to keep their product current with the trends, oh well...sorry. The market giveth, the market taketh away.


----------



## dgordo

vampz26 said:


> And as for 'rights'. E* customers have rights, E* has rights, and Tivo has rights...thats wonderful. At one point does one entity have the right to deny the rights of another entity? The subject of 'who has what right' is a long standing debate in may circles and also in many court cases. Without denying Tivo's right to protect their rights, I DO NOT believe they had the right to deny anyone else theirs. Including E* customers who have the right to enjoy the product they are paying for. It was E*s problem to settle this issue and should be E*'s problem alone, and the fact that Tivo attempted to take this issue to their customers and make it their problem is what I consider to be in bad form.


E*s customer's rights are contractual. Contracts can not be illegal in nature. So that customer contract cant allow for a customer to use an infringing device.


----------



## vampz26

dgordo said:


> I'm a lawyer (sort of) so I agree with you. My point was, why blame the people for playing by the rules?


Why not? There are plenty of 'rules' that can be exploited to cause harm. Happens all the time. The presence of 'rules' does not automatically dictate by default what may be considered right, wrong, or even fair...not even law can guarantee that...


----------



## vampz26

dgordo said:


> E*s customer's rights are contractual. Contracts can not be illegal in nature. So that customer contract cant allow for a customer to use an infringing device.


I never read anything like that in the contract, your stretching it there to the nth degree here...

and you know as well as I that the legality of any contract anywhere can be disputed one way or another. So yes, a contract CAN be illegal in nature, but is legal until proven otherwise. But determining that one way or another is not an exact science, an entirely separate issue, so to make such a generalization here doesn't make a whole lot of sense...


----------



## dgordo

vampz26 said:


> Why not? There are plenty of 'rules' that can be exploited to cause harm. Happens all the time. The presence of 'rules' does not automatically dictate by default what may be considered right, wrong, or even fair...not even law can guarantee that...


Difference of opinion, IMO if the law allows you to do something it is right.



vampz26 said:


> I never read anything like that in the contract


It doesnt need to be in the contract. Certain terms are read in to all contracts.



vampz26 said:


> your stretching it there to the nth degree here...
> 
> and you know as well as I that the legality of any contract anywhere can be disputed one way or another. So yes, a contract CAN be illegal in nature, but is legal until proven otherwise. But determining that one way or another is not an exact science, an entirely separate issue, so to make such a generalization here doesn't make a whole lot of sense...


We are now way off topic so I'll end with this point.

As I should have said, a contract that is illegal in nature is unenforceable. If the consideration or subject matter of a contract is illegal, the contract is void.


----------



## Greg Bimson

vampz26 said:


> Wrong....
> 
> in vampz26's world innovation SHOULD be rewarded, and JUSTLY rewarded...
> 
> ...but if the innovation be improved upon, and a better mousetrap is built...
> 
> ...than that innovation should be rewarded too. And certainly not punished.
> 
> ...remember, innovation goes both ways here. If one innovator fails to keep their product current with the trends, oh well...sorry. The market giveth, the market taketh away.


What in the hell did DISH/SATS do to innovate? Simply integrate a satellite receiver with a DVR (which DirecTV did with TiVo)?

The Supreme Court even came out against the simple combining of two patents as its own patent if there isn't some additional innovation.

And TiVo did try to come to an agreement back in 1998 with EchoStar. TiVo cannot build a box for EchoStar without an agreement with EchoStar. Something about using DISH/SATS proprietary technology REQUIRES an agreement.


----------



## vampz26

dgordo said:


> Difference of opinion, IMO if the law allows you to do something it is right.
> 
> It doesnt need to be in the contract. Certain terms are read in to all contracts.
> 
> We are now way off topic so I'll end with this point.
> 
> As I should have said, a contract that is illegal in nature is unenforceable. If the consideration or subject matter of a contract is illegal, the contract is void.


The law allows a lot of things that 'aren't right'...very bad argument there...

Second, whether or not a contract is legal is a subject of such complexity, that neither of us is going to make a substantial claim regarding such in the context of a two line post. Lest you forget that consumer rights go beyond that contract as well as anything you want to guess at that is written into it, even if it isn't explicity written. So yes, you are way OT, and you are definitely reaching...


----------



## vampz26

Greg Bimson said:


> What in the hell did DISH/SATS do to innovate? Simply integrate a satellite receiver with a DVR (which DirecTV did with TiVo)?
> 
> The Supreme Court even came out against the simple combining of two patents as its own patent if there isn't some additional innovation.
> 
> And TiVo did try to come to an agreement back in 1998 with EchoStar. TiVo cannot build a box for EchoStar without an agreement with EchoStar. Something about using DISH/SATS proprietary technology REQUIRES an agreement.


Sorry...but whether you like it or not...E* invented the mpeg4 HD-DVR. Tivo has created no such thing. Now maybe that fact can't be proven by a legal definition, but regardless...it is no less a fact. E* invented the mpeg4 HD DVR.

... and now Tivo is trying to prevent innovation rather than encourage it by example...


----------



## dgordo

vampz26 said:


> The law allows a lot of things that 'aren't right'...very bad argument there...


Your opinion.


----------



## vampz26

dgordo said:


> Your opinion.


I wish it was just that...but people hide behind the law every day to commit attrocities in the name of it, and sadly enough that makes it a fact.


----------



## dgordo

I don't care how many times you say it, you'll never convince me right and wrong is anything more than personal opinion.


----------



## James Long

vampz26 said:


> I never read anything like that in the contract, your stretching it there to the nth degree here...


Yet you want to punish TiVo for protecting their patent. Where is the contract between TiVo and all DISH customers where TiVo promises us DVR service?

The contract is between DISH and their customers. DISH is the one that sells and leases their customers DVRs. DISH is the one that promised that one would be able to record programs and do all the trick plays. DISH is the one who charges $5.98 per month per DVR for using a 510 or newer DVR (package rates may reduce that fee). Not TiVo.



vampz26 said:


> Sorry...but whether you like it or not...E* invented the mpeg4 HD-DVR. Tivo has created no such thing.


As long as DISH follows the steps that TiVo outlined that make a DVR work then yes, TiVo invented it. TiVo's patent isn't limited to MPEG2 or "MPEG1".



> Now maybe that fact can't be proven by a legal definition, but regardless...it is no less a fact.


It looks like we have a new thread joker. 

Anyways ... enough of this.
This thread is here to discuss TiVo vs Echostar and this is too much personal banter and not enough discussion of the case. If the personal banter continues it will be deleted to keep the thread on topic.

:backtotop


----------



## jacmyoung

James Long said:


> Back to reality ... court filings made late yesterday by DISH. (Sealed)
> 
> 872 Filed & Entered: 12/12/2008 Sealed Motion
> Emergency SEALED MOTION of Defendants to Compel Plaintiff to Comply with Disclosure Order 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) (Krevans, Rachel)​
> It looks like TiVo didn't make their disclosure on time and DISH needs to compel the response.


Maybe TiVo was still shopping for that star expert to pin E* down for on-going infringement. You know the several experts used before could only do so much, they cannot simply stick to the PID filter and call it a winner can they?

In fact none of them ever used the PID filter as evidence at all. Even though TiVo's lawyer managed to have E*'s lawyer to admit a PID filter still analyzed, therefore the "parse" term was still met in step one, we are now in the expert testimony phase, or naming the experts.

"Hey my dear expert friend, what do you think so far? E* still has the PID filter you know, can you tesify for us? All we need to prove is they still use the PID filter you know, you testified last time they used the PID filter right? It is so simple, just come to the court and tell Judge Folsom E* still uses PID."

"What you nuts?"

Oh well, the search for that star witness goes on. If only there is no Charlie barking at their rear end, it would be so easy to find one in time


----------



## jacmyoung

> 1. Disclosures. To the extent not already disclosed, within 15 days of this Order, each party shall disclose to every other party the following information:
> 
> a. the legal theories and, in general, the factual bases of the disclosing party's claims or defenses;
> 
> b. the name, address, and telephone number of persons having knowledge of relevant facts, a brief statement of each identified persons' connection with the case, and a brief, fair summary of the substance fo the information known by any such person;
> 
> c. for any testifying expert, by the date set by the court below, each party shall disclose to the other party or parties:
> 
> i. the expert's name, address, and telephone number;
> 
> ii. the subject matter on which the expert will testify;
> 
> iii. if the witness is retained or specially employed to provide expert testimony in this case or whose duties as an employee of the disclosing party regularly involve giving expert testimony:
> 
> (a) all documents, tangible things, reports, models, or data compilations that have been provided to, reviewed by, or prepared by or for the expert in anticipation of the expert's testimony; and
> 
> (b) the disclosures required by Fed. R. Civ. P. 26(a)(2)(B) and Local Rule CV-26;
> 
> iv. for all other experts, the general substance of the expert's mental impression and opinions and a brief summary of the basis for them or documents reflecting such information.
> 
> 2. Additional Disclosures. Each party, within 15 days of this Order and without awaiting a discovery request, will provide, to the extent not already provided, every other party a copy of all documents, electronically stored information, and tangible things in the possession, custody, or control of the party that are relevant to the above stated matter.


It seems E* has already done the above, which was why E* was compelling TiVo to do the same, as ordered by Judge Folsom.

I don't think E* was compelling TiVo to respond to E*'s above disclosure, rather compelling TiVo to produce their own similar disclosure on time. Each party should have made their own similar disclosure by now, as outlined above.


----------



## vampz26

James Long said:


> Yet you want to punish TiVo for protecting their patent. Where is the contract between TiVo and all DISH customers where TiVo promises us DVR service?


I don't want to punish anyone, and nor did I do anything to be punished for. I have no problem with Tivo protecting their patent. I have a big problem with the way they went about protecting it. And I described how I view the manner in which they proceeding in exactly the way I see it. I believe it was wrong and I've stated quite clearly as to why. I've also stated there were much more ethical ways it could have been handled and stated what they were. What more do yo want from me? I think Tivo was wrong...I have very valid reasons for feeling that way. As for a contract between Dish subs and Tivo, there isn't one. Why should there be when we aren't doing business with Tivo? Like I said, it was Dish's problem and theirs alone. Thats where it should stop.



James Long said:


> The contract is between DISH and their customers. DISH is the one that sells and leases their customers DVRs. DISH is the one that promised that one would be able to record programs and do all the trick plays. DISH is the one who charges $5.98 per month per DVR for using a 510 or newer DVR (package rates may reduce that fee). Not TiVo.


That we agree on. The problem is between Dish and Tivo...leave the customers out of it. That was just a strong-arm technique by Tivo and nothing more. Like I said, the matter is a financial matter that could be resolved strictly as such without inconveniencing anyone. Tivo pursued the quickest means to end for all the reasons I discribed earlier. I believe they acted unethically in doing so. I also believe there was better way to do things. Is that wrong?



James Long said:


> As long as DISH follows the steps that TiVo outlined that make a DVR work then yes, TiVo invented it. TiVo's patent isn't limited to MPEG2 or "MPEG1".


maybe...but Tivo is. And I'm just curious how the synchronization of the audio and video layers in an mpeg4 datastream is managed here, since it is different than in either mpeg2 or mpeg1. Thats all I'm saying.


----------



## James Long

vampz26 said:


> I don't want to punish anyone, and nor did I do anything to be punished for. I have no problem with Tivo protecting their patent. I have a big problem with the way they went about protecting it.


Your punishment is limiting the legal rights they have to protect their patent. And the threat of a class action suit for attempting to enforce those rights against an infringer who was found guilty in a court of law.



> What more do yo want from me?


Understanding that under the law DISH cannot continue to benefit from a patent they have no right to use. If that means DISH must disable 4 million DVRs in the field so be it. That is DISH's responsibility ... not TiVo's.

TiVo won the case and infringement has been found. They should be able to benefit from that decision.


----------



## vampz26

James Long said:


> Your punishment is limiting the legal rights they have to protect their patent. And the threat of a class action suit for attempting to enforce those rights against an infringer who was found guilty in a court of law.


My punishment?!? Who did I punish?

I'm not talking about limiting anyones legal rights. I'm talking about protecting legal rights. The Dish subs rights, the consumers rights, the rights of the little guy. I've made it perfectly clear that the problem I have with Tivo was not them exercising their rights, but how they chose to excercise them. Thats it.

the class action comment was nothing more than speculation based on a turn of events, nothing else...don't make it mroe than what it is...



James Long said:


> Understanding that under the law DISH cannot continue to benefit from a patent they have no right to use. If that means DISH must disable 4 million DVRs in the field so be it. That is DISH's responsibility ... not TiVo's.


You will not get that understanding because I do not agree with that understanding. I can't see how Tivo would benifit from 4MM DVRs being shut off vs. a court ordered financial settlement and licensing agreement.



James Long said:


> TiVo won the case and infringement has been found. They should be able to benefit from that decision.


I can't see how Tivo would benifit from 4MM DVRs being shut off vs. a court order financial settlement and licensing agreement. I see such a move doing more harm than good in either case...do you see it doing any good? How do you see Tivo benifiting?


----------



## James Long

vampz26 said:


> I'm not talking about limiting anyones legal rights. I'm talking about protecting legal rights. ... I've made it perfectly clear that the problem I have with Tivo was not them exercising their rights, but how they chose to excercise them.


In other words you want to LIMIT TiVo's legal rights to the ones that don't allow them to stop infringement by asking for infringing products to be disabled.



> I can't see how Tivo would benifit from 4MM DVRs being shut off vs. a court ordered financial settlement and licensing agreement.


It is still THEIR CHOICE to make. Unless of course you limit TiVo's legal rights.

A rather moot point anyways since DISH is taking an approach that protects their customers - whether or not DISH's actions harm TiVo.


----------



## vampz26

James Long said:


> In other words you want to LIMIT TiVo's legal rights to the ones that don't allow them to stop infringement by asking for infringing products to be disabled.
> 
> It is still THEIR CHOICE to make. Unless of course you limit TiVo's legal rights.
> 
> A rather moot point anyways since DISH is taking an approach that protects their customers - whether or not DISH's actions harm TiVo.


I repeat: I do not seek to limit Tivo's rights as much as I believe in protecting the rights of Dish subs. I couldn't care less about Dish as a company one way or another...but their subs should not be inconvenienced by a situation they did not cause, nor have any part in. Thats just ridiculous.

And if it is Tivos choice to make, than so be it. It is an unethical choice, none-the-less...for all the reasons I described it, and that's been my only claim thus far regarding this whole thing.

And with all due respect, I must ask again. What would the benifit be for Tivo should 4MM DVRs get disabled? I mean, it hasn't happened so it may be a moot point all the way around...but seriously, what could possibly be the benifit?

I'm just curious...


----------



## Greg Bimson

vampz26 said:


> And with all due respect, I must ask again. What would the benifit be for Tivo should 4MM DVRs get disabled? I mean, it hasn't happened so it may be a moot point all the way around...but seriously, what could possibly be the benifit?


I think you have it backwards...

Why should DISH/SATS fight with the possibility of having to disable four million DVR's which they built as infringing, when they could simply *make it all go away* by licensing? AND THIS CASE ISN'T EVEN ABOUT MPEG4 DVR's.

What, they built an MPEG4 DVR? Just a different chipset than an MPEG2 DVR. Switch a chipset and be called innovative. Invent a way to pause, rewind and fast-forward live TV and protect your patent, and be called "unethical".

Yep. Perfect sense, in a logical Mobius Strip.


----------



## James Long

vampz26, the record of your posts is clear ... you want to limit TiVo's choices.

Forcing a licensing agreement may happen if ongoing infringement is found if February. Judge Folsom has signaled that he wants to go that way by bringing Paice to the forefront. But TiVo has the right to pursue the disabling of the infringing products.

I'd prefer that TiVo pursue licensing ... I believe it would have been in the best long term interest (since DISH is likely to prove colorable difference at some point and get away from the injunction altogether).


----------



## jacmyoung

Since the new deadline for the initial disclosures by both parties to each other was 12/09, and E* filed motion on 12/12 to compell TiVo to disclose, TiVo was at least 4 days past deadline.

The question to the lawyers, how often do such delays happen, and whether such delays ever play into parties' argument of law and procedures?

The reason I ask this question is, ever since after the injunction took effect, which was about the time we began such endless debate, and till most recent time, parties have been following the deadlines to the teeth, such delay has not been an issue until now.


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## Greg Bimson

A re-read of DISH/SATS motion to compel doesn't indicate that TiVo hasn't given DISH/SATS anything. It is possible TiVo didn't include something DISH/SATS wants.


----------



## James Long

Greg Bimson said:


> A re-read of DISH/SATS motion to compel doesn't indicate that TiVo hasn't given DISH/SATS anything. It is possible TiVo didn't include something DISH/SATS wants.


Considering it is a sealed motion it would be hard to say either way what "to Compel Plaintiff to Comply with Disclosure Order" meant. But I agree that it is more likely that "something DISH wanted to see in the disclosure was missing" rather than "no disclosure was made". Completely blowing off disclosure would not be a good thing.


----------



## jacmyoung

James Long said:


> Considering it is a sealed motion it would be hard to say either way what "to Compel Plaintiff to Comply with Disclosure Order" meant. But I agree that it is more likely that "something DISH wanted to see in the disclosure was missing" rather than "no disclosure was made". Completely blowing off disclosure would not be a good thing.


I do not take it as TiVo did not give E* something E* wanted (TiVo is not compelled to give anything E* wants) rather E* was claiming TiVo did not comply with the court order.


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## James Long

Did you forget what you quoted already:
http://www.dbstalk.com/showpost.php?p=1920325&postcount=1072

TiVo is compelled to give DISH two major items (along with witness names and information). The first is "the legal theories and, in general, the factual bases of the disclosing party's claims or defenses; " and the second is "Each party, within 15 days of this Order and without awaiting a discovery request, will provide, to the extent not already provided, every other party a copy of all documents, electronically stored information, and tangible things in the possession, custody, or control of the party that are relevant to the above stated matter."

The second part is so broad that it would be easy for DISH to say that TiVo was witholding something. I'm actually surprised that TiVo isn't filing a motion against DISH since they are usually claiming DISH is withholding.

"All documents, electronically stored information, and tangible things in the possession, custody, or control of the party that are relevant to the above stated matter" is a very broad request.


----------



## jacmyoung

James Long said:


> Did you forget what you quoted already:
> http://www.dbstalk.com/showpost.php?p=1920325&postcount=1072
> 
> TiVo is compelled to give DISH two major items (along with witness names and information). The first is "the legal theories and, in general, the factual bases of the disclosing party's claims or defenses; " and the second is "Each party, within 15 days of this Order and without awaiting a discovery request, will provide, to the extent not already provided, every other party a copy of all documents, electronically stored information, and tangible things in the possession, custody, or control of the party that are relevant to the above stated matter."
> 
> The second part is so broad that it would be easy for DISH to say that TiVo was witholding something. I'm actually surprised that TiVo isn't filing a motion against DISH since they are usually claiming DISH is withholding.
> 
> "All documents, electronically stored information, and tangible things in the possession, custody, or control of the party that are relevant to the above stated matter" is a very broad request.


You just answered my question why I raised this issue. The table seemed turned.

In the past neither parties' counsel of reocrd seemed to have problem communicate among themselves, sure there might be misunderstanding on the procedures but they worked out the differences and then informed the court seeking permission from the court to modify the order or clarify what the court was ordering, or directly protest what the court was ordering.

A very broad request in a court order, if there exists difference of opinions as how each interprets it, a motion to seek clarity is in order, not motion to compell the other to comply with the order.

Besides, the above two items in the order you listed aren't difficult to prepare, TiVo can just offer one expert, and one theory and one other document they believe is left not provided so far, call it the disclosure, there is no way E* can call a very simplistic disclosure ducument a noncompliance of the court order--a rather serious accusation.

In fact the simpler the better I would think, allowing E* to focus on just that one theory, one expert and one document, and try to take them down.

TiVo may have not done any or some of the disclosure items required by the court order, and I also think E* had asked TiVo in private to provide such info and still did not get it. That is usually when you begin to seek help from the court.


----------



## HobbyTalk

peak_reception said:


> *JUDGE'S RULING PUTS DEFENDANT OUT OF BUSINESS IN ADDITION TO 100 MILLION IN DAMAGES!!*


This doesn't surprise me. Here is an example of maybe one of the most unethical companies that there are. Did you know that since they own the copyright to the image of Barbie they at one time were forcing the removal of the picture of Barbie from web sites, even if it was a picture that the took took themselves?


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## Ergan's Toupe

HobbyTalk said:


> This doesn't surprise me. Here is an example of maybe one of the most unethical companies that there are. Did you know that since they own the copyright to the image of Barbie they at one time were forcing the removal of the picture of Barbie from web sites, even if it was a picture that the took took themselves?


Again with the "unethical"? What's with you guys? A company has every right to protect it's IP.

Disney is the same way. As they should be. Gp print up a couple of hundred Mickey Mouse shirts and see how fast they send you a C&D.


----------



## vampz26

Ergan's Toupe;1920798 said:


> Again with the "unethical"? What's with you guys? A company has every right to protect it's IP.
> 
> Disney is the same way. As they should be. Gp print up a couple of hundred Mickey Mouse shirts and see how fast they send you a C&D.


sigh...once again...

There are ethical and unethical approaches to any situation, up to and including protecting IP...for example, shoot somebody for tresspassing and then tell the police how you were ethical in protecting your property...

But of course, there seems to be a little problem with seeing both sides of that...you don't have to agree with it, but at least SEE it...unless your 'toupe' is covering your eyes...:hurah:


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## Greg Bimson

HobbyTalk said:


> This doesn't surprise me. Here is an example of maybe one of the most unethical companies that there are. Did you know that since they own the copyright to the image of Barbie they at one time were forcing the removal of the picture of Barbie from web sites, even if it was a picture that the took took themselves?


Did the website get permission to use copyrighted material, i.e., a picture of Barbie?

I mean, there was only one reason E.T. did not eat M&M's. It was one of the big reasons product placement exploded.

Yet a company is not supposed to enforce their rights, otherwise those companies enforcing their rights are unethical. Some of you probably believe that DISH and SATS should not persecute the FTA'ers for piracy, even though it is from within that community most of the piracy stems.


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## vampz26

Greg Bimson said:


> Did the website get permission to use copyrighted material, i.e., a picture of Barbie?
> 
> I mean, there was only one reason E.T. ate M&M's. It was one of the big reasons product placement exploded.
> 
> Yet a company is not supposed to enforce their rights, otherwise those companies enforcing their rights are unethical. Some of you probably believe that DISH and SATS should not persecute the FTA'ers for piracy, even though it is from within that community most of the piracy stems.


Sure they are supposed too enforce them, but like anything else...there are ethical and unethical ways in doing so...but I do like the way you build a strawman to illustrate your point, thus negating it completely...


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## Greg Bimson

Hmm,
TiVo goes after patent infringement in court and wins
Barbie enforces their rights and prosecutes copyright infringement
Mars didn't allow E.T. to eat M&M's, so Hershey's benefits with Reese's Pieces product placement
DISH and SATS sue FTA distributing companies to obtain lists of customers that purchased equipment, possibly to persecute for piracy

And all of this is unethical? Maybe it is just the strawman of "reality" you don't like.

None of it is "unethical". It is definitely unfriendly.


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## vampz26

Greg Bimson said:


> Hmm,
> TiVo goes after patent infringement in court and wins
> Barbie enforces their rights and prosecutes copyright infringement
> Mars didn't allow E.T. to eat M&M's, so Hershey's benefits with Reese's Pieces product placement
> DISH and SATS sue FTA distributing companies to obtain lists of customers that purchased equipment, possibly to persecute for piracy
> 
> And all of this is unethical? Maybe it is just the strawman of "reality" you don't like.
> 
> None of it is "unethical". It is definitely unfriendly.


Yes, unfortunately many unethical things happen, and that IS a part of reality...

Even if you want to justify the unethical, either legally or whatever, it is still...no matter how you look at it, unethical...

I don't know what more you expect me to say on the subject, and your little list of completely unrelated elements is cute, but pointless...


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## Ergan's Toupe

vampz26 said:


> I don't know what more you expect me to say on the subject, and your little list of completely unrelated elements is cute, but pointless...


Pointless? To who? [Mod Edit: redacted] Funny how your the only one that doesn't get it.

Do you cover your ears and yell LA! LA! LA! LA! LA!!! I CAN'T HEAR YOU!!! :lol:

You're just baiting us, aincha?


----------



## jacmyoung

vampz26 said:


> Yes, unfortunately many unethical things happen, and that IS a part of reality...
> 
> Even if you want to justify the unethical, either legally or whatever, it is still...no matter how you look at it, unethical...
> 
> I don't know what more you expect me to say on the subject, and your little list of completely unrelated elements is cute, but pointless...


Let's face it, E* paid $105 million, it is over, suck it up and move forward.

Whining is not going to help you in any way shape and form to repair the situation, it only gives your opponents fuel to ridicule, who otherwise had not much to say about the prospect of their TiVo winning the next round.

TiVo has nothing moving forward, despite some insisting the use of the PID filter will do. If I were E*, this would be the best case scenario, just tell the judge TiVo is dismissing your judgment, TiVo is now saying anything with a PID filter infringes and should be disabled. Let TiVo and the judge work out their differences.


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## HobbyTalk

Greg Bimson said:


> Did the website get permission to use copyrighted material, i.e., a picture of Barbie?


So, in other words you got a new car and put a picture of it up on your web site. Should GM, ford or whoever demand that you remove it? They would only be protecting their IP? A picture of a product YOU own should not be protected IP and most likely could be fought (and won) in court, but how many can afford to fight a big corp. over a picture of owned property.

I would guess that the picture that Ergan's Toupe is using as an avatar is a copyright violation too.


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## Ergan's Toupe

HobbyTalk said:


> So, in other words you got a new car and put a picture of it up on your web site. Should GM, ford or whoever demand that you remove it? They would only be protecting their IP? A picture of a product YOU own should not be protected IP and most likely could be fought (and won) in court, but how many can afford to fight a big corp. over a picture of owned property.
> 
> I would guess that the picture that Ergan's Toupe is using as an avatar is a copyright violation too.


If said picture is a copyrighted picture, GM, Ford, etc. can in fact demand royalty payments and/or have it removed.

PS: The picture I use as my avatar is not copyrighted.


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## HobbyTalk

Ergan's Toupe;1921031 said:


> If said picture is a copyrighted picture, GM, Ford, etc. can in fact demand royalty payments and/or have it removed.
> 
> PS: The picture I use as my avatar is not copyrighted.


A picture you take of your personal car is NOT copyrighted by the manufacturer, it is copyrighted by the person that took that picture. They may own the IP to the likeness of the said vehicle or vehicle features.

Prove your picture is not copyrighted. Since it was taken originally from a web site that offers pictures of babies with toupees, they would own the copyright to that picture. ALL pictures are copyrighted unless they are specifically put into the public domain.


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## James Long

HobbyTalk said:


> A picture you take of your personal car is NOT copyrighted by the manufacturer, it is copyrighted by the person that took that picture. They may own the IP to the likeness of the said vehicle or vehicle features.


Which is where Mattel apparently protected their IP beyond rational levels by demanding privately taken photos of Barbies they sold to be removed from websites.

I don't know what kind of websites the post is referring to ... if it was some 10 year old's picture of a Barbie she got for Christmas it seems overly harsh. If it was a "let's use Barbie to tell a story" stop frame animation or even photo cartoon it is an infringement on the character Mattel owns. Mattel's protection of Barbie was the topic of this thread further investigation would be needed.

But that isn't the topic ... so let's get back to the topic of THIS thread. TiVo vs Echostar. The court case.

:backtotop


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## HobbyTalk

James Long said:


> I don't know what kind of websites the post is referring to ... if it was some 10 year old's picture of a Barbie she got for Christmas it seems overly harsh. If it was a "let's use Barbie to tell a story" stop frame animation or even photo cartoon it is an infringement on the character Mattel owns. Mattel's protection of Barbie was the topic of this thread further investigation would be needed.


Just to clarify, most were parody websites which in itself is a protected use. OK, back to topic, no more on this subject.


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## Ergan's Toupe

HobbyTalk said:


> A picture you take of your personal car is NOT copyrighted by the manufacturer, it is copyrighted by the person that took that picture.


I'm not trying to start a peeing match with you guys and this will be my last comment on this matter.

The picture is copyrighted by the person who copyrighted it. It doesn't automatically go to me just because I pushed the shutter release. As a matter of fact, it doesn't go to anyone "automatically" you have to file for a copyright.

As an example:

If you are hired to take pictures for someone just because you pushed the button doesn't make you the copyright holder.


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## James Long

Ergan's Toupe;1921097 said:


> If you are hired to take pictures for someone just because you pushed the button doesn't make you the copyright holder.


That would be an example of where a copyright would be assigned to the copyright holder ... although that assignment is NOT automatic. Every time I have had professional photos taken the copyright remained with the photographer. Usually the photos are marked to claim copyright (which is important if one is to ever enforce their copyright). If the photography company hired a photographer to take photos for them the photos would likely have the copyright of the company and not the photographer - with the photographer assigning his rights over to his employer. Not automatic assignment, just the agreement that the individuals have. It makes it easier to deal with "Olin Mills" for reprints than whoever they hired to take the photos this week.

Without assignment the photos WOULD remain the property of the photographer - as with any other item created. Most of diagrams I have of satellite spot beams on my website are my creation ... and should not be used without my permission. Enforcing that isn't easy. Photos and diagrams I have placed on my employer's website have been assigned to my employer - even if not with a legal document.

If you are really interested in copyright law you can find out more elsewhere.
Let's stay with patent law here ... in particular TiVo vs EchoStar.


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## James Long

:backtotop TiVo vs Echostar


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## Ergan's Toupe

James Long said:


> :backtotop TiVo vs Echostar


Where did you see the sealed motion that Tivo has not complied with discovery, James?

The only thing I see is docket #872. All it says is "sealed motion", doesn't even say who filed it.

Nevermind, James. I found it.


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## James Long

Yep ... make sure you "Display docket text" when looking at documents. It costs more (more pages to "print") but it shows you more of what was filed.


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## Ergan's Toupe

James Long said:


> Yep ... make sure you "Display docket text" when looking at documents. It costs more (more pages to "print") but it shows you more of what was filed.


That's exactly what it was. Thanks.


----------



## Bidderman9

Dish filed a motion to voluntarily dismiss thier petition to for a writ of Mandamus. Can anybody help explain this in lay mans terms?  

Thanks!


----------



## dgordo

Bidderman9 said:


> Dish filed a motion to voluntarily dismiss thier petition to for a writ of Mandamus. Can anybody help explain this in lay mans terms?
> 
> Thanks!


A writ of mandamus is basically asking a higher court to command a lower court to do something. Basically DISH thought Judge Folsom was doing something that he was not allowed to do and asked the appellate court to tell him that. DISH later chose to withdraw this motion.


----------



## CuriousMark

scooper said:


> The Echostar "Table of Statisitics" is somewhere between 10-20 variables and constants.
> 
> Count of I-frames
> count of all frames (I + G +P)
> sizes of each (2 more)
> trick play speed
> direction of play
> 
> There's probably a few more, but trust me - it isn't a very large set. If a trick play function gets called on - the CPU has to use these few items to calculate a file offset and jump /read until it finds an I-frame. There is no precalculation being done.


The calculation is to use those constants to figure out how far to jump. I am not sure what a precalulation would be or where it would be used. To what are you referring?


----------



## scooper

A "pre calculation" would be what Tivo does in generating their index file.


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## CuriousMark

scooper said:


> A "pre calculation" would be what Tivo does in generating their index file.


So the distinction is a large static jump table generated before storage and a small dynamically updated table of statistical constants generated and continuously updated from the stream being read from storage.

I think that is clearer than using pre and post.

Whether it even matters will certainly be a central topic of discussion by the parties of this case. I am sure Dish will claim it is central and must be discussed and TiVo will say that it is not referenced in the claims and should not be discussed. Hopefully they will file something not under seal so we can watch the discussion.


----------



## scooper

CuriousMark said:


> So the distinction is a large static jump table generated before storage and a small dynamically updated table of statistical constants generated and continuously updated from the stream being read from storage.
> 
> I think that is clearer than using pre and post.
> 
> Whether it even matters will certainly be a central topic of discussion by the parties of this case. I am sure Dish will claim it is central and must be discussed and TiVo will say that it is not referenced in the claims and should not be discussed. Hopefully they will file something not under seal so we can watch the discussion.


Yes - that's precisely what I meant.

Tivo's indexed file (the way Echostar copied on the infringing S/W) is a different kettle of fish than the "new method" Echostar is using (keeping a few statisitics and calculating jumps when necessary in realtime).

Thank you for clarifying my thoughts there.


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## James Long

That is the way I read it ... TiVo's way is a precise marker system where one can jump to a frame that is right where the user wanted to go for 10 second/30 second skip and other tricks ... DISH's new way is just guesses based on current bitrate (or perhaps file size if the recording is complete).

The difference is obvious to a user ... especially one who hits BACK on a DISH DVR and jumps back way more than 10 seconds. The precise index (which was _very_ precise on DISH equipment before it was removed) is gone. 

(The court will decide if that change is enough.)


----------



## jacmyoung

The point is even if the indexing method is precisely the same, since the claims themselves do not even mention them, the key becomes how such index tables are "extracted", from where and by what.

In TiVo's software claims, the info is first temporarily stored by the "physical data source" itself, then "extracted" by the "source object" from this "physical data source.".

If the new E* software does not meet this two steps, it does not infringe.

You can have the same thing generated after the storage on the hard drive, then extracted later, as long as the hard drive is not part of the "physical data source", as long as the info is not temporarily stored within the "physical data source", and as long as the "source object" dose not "extract" such info from within that "physical data source"...


----------



## Curtis52

jacmyoung said:


> The point is even if the indexing method is precisely the same, since the claims themselves do not even mention them, the key becomes how such index tables are "extracted", from where and by what.
> 
> In TiVo's software claims, the info is first temporarily stored by the "physical data source" itself, then "extracted" by the "source object" from this "physical data source.".


An indexing method and an index table are mentioned the same number of times in the claims: Zero. The data mentioned is what gets sent to the D to A converter for TV display. It's the TV show. An index table would look funny on the TV screen.


----------



## scooper

Curtis52 said:


> An indexing method and an index table are mentioned the same number of times in the claims: Zero. The data mentioned is what gets sent to the D to A converter for TV display. It's the TV show. An index table would look funny on the TV screen.


Who says that "everything" in the file has to be sent to the video section for display ? Or that filtering isn't done in the video section to not display them ?

And I believe the existence of said index was one item that Tivo used to prove infringement. Therefore - the lack of same proves that E* isn't infringing (at least it is an element that helps).


----------



## Curtis52

New court order 

TiVo's Expert Disclosures Due December 24, 2008
EchoStar's Expert Disclosures Due January 7, 2009

Delayed two days. Big woop.


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## James Long

The joint stipulation officially approved ... although the timeline was already modified when the order was re-issued. No real change.


----------



## jacmyoung

Curtis52 said:


> New court order
> 
> TiVo's Expert Disclosures Due December 24, 2008
> EchoStar's Expert Disclosures Due January 7, 2009
> 
> Delayed two days. Big woop.


Yeah the 12/05/08 modified order already contained the two above items, there could be some reason the court felt the need to re-affirm the dates.

As an example, E* motioned the court on 12/12/08 to compell TiVo to comply with the 12/05/08 order for the initial disclosures by 12/09/08. The initial disclosures ordered two things to be disclosed to each other:

1) New facts and legal theories.
2) List of names who have knowledge about 1).

TiVo could have not done both or one of the above two items which made E* to file such motion to compell. It could be that TiVo responded by saying hey the actual date was 12/24/08, which the court affirmed by this new order, or it could be that TiVo in response to E*'s motion, requested more time to prepare the disclosures, and by the new order the court said no more delays.

Or it could be that TiVo said nothing, the court new order was merely responding to E*'s motion to compell, by reinterating the final deadlines on the disclosures.


----------



## James Long

The court was just acknowledging the joint stipulation ... perhaps Judge Folsom's staff forgot that it needed signed (to close the request) when the judge reissued the hearing order. It is just dotting the i's and crossing the t's of the legal process.

EchoStar's motion to compel was a different docket number and has it's own proposed order for Judge Folsom to sign.


----------



## jacmyoung

James Long said:


> The court was just acknowledging the joint stipulation ... perhaps Judge Folsom's staff forgot that it needed signed (to close the request) when the judge reissued the hearing order. It is just dotting the i's and crossing the t's of the legal process.
> 
> EchoStar's motion to compel was a different docket number and has it's own proposed order for Judge Folsom to sign.


That makes sense. But before the judge even signs an order in response to the E* 12/12/08 motion to compel, should there be at least a TiVo's response filed? After all it was an emergency motion. What should be the usual timeline on such type of things?

The last E* emergency motion was filed on 12/01/08, the stipulation (can be considered TiVo's response?) was filed on 12/04/08, and the matter was resolved on 12/05/08, and of course this new order finalized it.


----------



## scooper

jacmyoung said:


> That makes sense. But before the judge even signs an order in response to the E* 12/12/08 motion to compel, should there be at least a TiVo's response filed?


Perhaps none is required ?


----------



## jacmyoung

scooper said:


> Perhaps none is required ?


I don't think it would be fair to bypass TiVo, though an emergency motion might have its own set of deadlines, beyond which the court might rule on it with or without any response.


----------



## James Long

jacmyoung said:


> That makes sense. But before the judge even signs an order in response to the E* 12/12/08 motion to compel, should there be at least a TiVo's response filed? After all it was an emergency motion. What should be the usual timeline on such type of things?
> 
> The last E* emergency motion was filed on 12/01/08, the stipulation (can be considered TiVo's response?) was filed on 12/04/08, and the matter was resolved on 12/05/08, and of course this new order finalized it.


You're missing the timeline.

[*865*] Filed & Entered: 12/01/2008 - *Motion to Stay*
Emergency MOTION to Stay This Court's Order of November 20, 2008 Pending Review By the Court of Appeals by Echostar Satellite LLC, Echostar Communications Corporation, Echostar DBS Corporation, Dish Network Corporation, Echosphere Limited Liability Company.

[*866*] Filed & Entered: 12/04/2008 - *Sealed Patent Response to Sealed Patent Motion*
SEALED PATENT RESPONSE to PATENT MOTION re [865] Emergency MOTION to Stay This Court's Order of November 20, 2008 Pending Review By the Court of Appeals filed by TIVO Inc.
[*867*] Filed & Entered: 12/04/2008 - *Sealed Patent Additional Attachments to Main Document*
SEALED PATENT ADDITIONAL ATTACHMENTS to Main Document: [866] SEALED PATENT RESPONSE to PATENT MOTION re 865 Emergency MOTION to Stay This Court's Order of November 20, 2008 Pending Review By the Court of Appeals filed by TIVO Inc.; Declaration of Alexander C.D. Giza and Exhibits A-G.

And then the separate JOINT stipulation filing:
[*868*] Filed & Entered: 12/04/2008 - *Stipulation*
STIPULATION Joint Stipulation Re: Modification of Schedule and Agreement to Delay Filing Motion for Stay with Federal Circuit by TIVO Inc, Dish Network Corporation, Echostar Satellite LLC, Echostar Communications Corporation, Echostar DBS Corporation, Echosphere Limited Liability Company.

So no, the joint stipulation wasn't TiVo's response to the motion for a stay.

Moving forward ... the judge denies 865 ...
[*869*] Filed & Entered: 12/05/2008 - *Order on Motion to Stay
*ORDER denying [865] Motion to Stay. Signed by Judge David Folsom on 12/5/08.

And the reissued hearing order ...
[*870*] Filed & Entered: 12/05/2008 - *Order*
ORDER re [832] MOTION FOR ECHOSTAR TO BE HELD IN CONTEMPT FOR VIOLATION OF THIS COURT'S PERMANENT INJUNCTION filed by TIVO Inc, ( Evidentiary Hearing set for 2/17-18/2009 09:00 AM in Ctrm 319 (Texarkana) before Judge David Folsom.) Each side will have five (5) hours to present its case, excluding time related to opening, closing, and transition statements. Signed by Judge David Folsom on 12/5/08.

But nothing referring to 868 ... the joint stipulation ... until today's approval ...
[*874*] Filed & Entered: 12/17/2008 - *Order*
ORDER re [868] Stipulation RE MODIFICATION OF SCHEDULE AND AGREEMENTTO DELAY FILING MOTION FOR STAY WITH FEDERAL CIRCUIT; filed by Dish Network Corporation, Echosphere Limited Liability Company, TIVO Inc, Echostar Satellite LLC, Echostar DBS Corporation, Echostar Communications Corporation,. Signed by Judge David Folsom on 12/17/08.


----------



## Ergan's Toupe

Did I miss this?

875	Filed & Entered: 12/17/2008
Sealed Patent Response to Sealed Patent Motion
Docket Text: SEALED PATENT RESPONSE to SEALED PATENT MOTION re [872] Emergency SEALED MOTION of Defendants to Compel Plaintiff to Comply with Disclosure Order filed by TIVO Inc. (Attachments: # (1) Declaration of Perry M. Goldberg, # (2) Exhibit A)(Giza, Alexander)

Looks like Tivo's response. Now all we need is Folsoms.... and why the hell are these sealed anyway? Super top secret correspondence flying back and forth?


----------



## James Long

Yes, that is TiVo's response to the motion to compel ... it wasn't listed yesterday when I checked.


Sealed because they contain documents and data that the parties don't want to be made public. There are facts that the court and opposing parties need to know that really don't need to be made 100% public. Some of it is pretty silly (the number of placed DVRs and description of how software is updated by sending new software then rebooting to run it was redacted when one filing was used in another case). It is just stuff that they don't want everyone else to know.


----------



## Ergan's Toupe

James Long said:


> Yes, that is TiVo's response to the motion to compel ... it wasn't listed yesterday when I checked.
> 
> Sealed because they contain documents and data that the parties don't want to be made public. There are facts that the court and opposing parties need to know that really don't need to be made 100% public. Some of it is pretty silly (the number of placed DVRs and description of how software is updated by sending new software then rebooting to run it was redacted when one filing was used in another case). It is just stuff that they don't want everyone else to know.


I think they're just trying to give this thread a giant FU. :grin:


----------



## jacmyoung

James Long said:


> You're missing the timeline.
> 
> [*865*] Filed & Entered: 12/01/2008 - *Motion to Stay*
> Emergency MOTION to Stay This Court's Order of November 20, 2008 Pending Review By the Court of Appeals by Echostar Satellite LLC, Echostar Communications Corporation, Echostar DBS Corporation, Dish Network Corporation, Echosphere Limited Liability Company.
> 
> [*866*] Filed & Entered: 12/04/2008 - *Sealed Patent Response to Sealed Patent Motion*
> SEALED PATENT RESPONSE to PATENT MOTION re [865] Emergency MOTION to Stay This Court's Order of November 20, 2008 Pending Review By the Court of Appeals filed by TIVO Inc.
> [*867*] Filed & Entered: 12/04/2008 - *Sealed Patent Additional Attachments to Main Document*
> SEALED PATENT ADDITIONAL ATTACHMENTS to Main Document: [866] SEALED PATENT RESPONSE to PATENT MOTION re 865 Emergency MOTION to Stay This Court's Order of November 20, 2008 Pending Review By the Court of Appeals filed by TIVO Inc.; Declaration of Alexander C.D. Giza and Exhibits A-G.
> 
> And then the separate JOINT stipulation filing:
> [*868*] Filed & Entered: 12/04/2008 - *Stipulation*
> STIPULATION Joint Stipulation Re: Modification of Schedule and Agreement to Delay Filing Motion for Stay with Federal Circuit by TIVO Inc, Dish Network Corporation, Echostar Satellite LLC, Echostar Communications Corporation, Echostar DBS Corporation, Echosphere Limited Liability Company.
> 
> So no, the joint stipulation wasn't TiVo's response to the motion for a stay.
> 
> Moving forward ... the judge denies 865 ...
> [*869*] Filed & Entered: 12/05/2008 - *Order on Motion to Stay
> *ORDER denying [865] Motion to Stay. Signed by Judge David Folsom on 12/5/08.
> 
> And the reissued hearing order ...
> [*870*] Filed & Entered: 12/05/2008 - *Order*
> ORDER re [832] MOTION FOR ECHOSTAR TO BE HELD IN CONTEMPT FOR VIOLATION OF THIS COURT'S PERMANENT INJUNCTION filed by TIVO Inc, ( Evidentiary Hearing set for 2/17-18/2009 09:00 AM in Ctrm 319 (Texarkana) before Judge David Folsom.) Each side will have five (5) hours to present its case, excluding time related to opening, closing, and transition statements. Signed by Judge David Folsom on 12/5/08.
> 
> But nothing referring to 868 ... the joint stipulation ... until today's approval ...
> [*874*] Filed & Entered: 12/17/2008 - *Order*
> ORDER re [868] Stipulation RE MODIFICATION OF SCHEDULE AND AGREEMENTTO DELAY FILING MOTION FOR STAY WITH FEDERAL CIRCUIT; filed by Dish Network Corporation, Echosphere Limited Liability Company, TIVO Inc, Echostar Satellite LLC, Echostar DBS Corporation, Echostar Communications Corporation,. Signed by Judge David Folsom on 12/17/08.


There is nothing you said above changes my previous timeline at all, from the date the emergency motion was filed on 12/01/08, it took only 4 days to practically resolve it.

This current emergency motion to compel was filed on 12/12/08, now we know TiVo responded on 12/17/08. If the previous motion is any indication, the court may rule today or tomorrow on it. And the judge's order will likely not be sealed so we could find out what really was E* trying to compel TiVo to do.


----------



## James Long

jacmyoung said:


> There is nothing you said above changes my previous timeline at all, from the date the emergency motion was filed on 12/01/08, it took only 4 days to practically resolve it.


Next time read my message before responding. Your speculation that the joint stipulation was "TiVo's Response" was wrong. That is what the full timeline was addressing.



> This current emergency motion to compel was filed on 12/12/08, now we know TiVo responded on 12/17/08. If the previous motion is any indication, the court may rule today or tomorrow on it. And the judge's order will likely not be sealed so we could find out what really was E* trying to compel TiVo to do.


The only difference TiVo's response makes is that now Judge Folsom does not have to wait for it. The motion for a stay was an easy decision ... we pretty much had the answer in September. The motion to compel could be a bigger question ... especially dependent on TiVo's response (which I expect was a reply saying that the information had been supplied, was irrelevant or would be supplied "soon" explaining the delay).

Disposing of the motion to compel is not the same as disposing of the motion for a stay. Different questions require different thoughts.


----------



## jacmyoung

James Long said:


> ...The only difference TiVo's response makes is that now Judge Folsom does not have to wait for it. The motion for a stay was an easy decision ...


Did you mean the judge did not have to wait for TiVo's response last time? TiVo's response last time was 12/04/08, the judge's order was on 12/05/08, one day after TiVo's response.

This time TiVo responded on 12/17/08, therefore the judge's order could come today or tomorrow. Of course the order can come much later too, I was only using the previous emergency motion as a rough guide.


----------



## Curtis52

There is a new filing by Dish.


----------



## Ergan's Toupe

Looks like someone is getting nervous....


----------



## Curtis0620

Curtis52 said:


> There is a new filing by Dish.


They realize they can't win and have given up.

:icon_da:


----------



## scooper

Curtis0620 said:


> They realize they can't win and have given up.
> 
> :icon_da:


You wish...


----------



## jacmyoung

Based on E*’s 12/18/08 response to TiVo’s opposition to the new emergency motion, my guess was right that TiVo provided E* nothing except a few lines they already used before. But if so, there will be no need for the evidentiary hearing nor the need for such disclosures by 12/09/08.

What both parties must do before 12/10/08 was to provide each other legal theories, facts, documents and names of the witnesses (assume E* had already provided TiVo with such disclosures). The judge, by making such order, clearly sought much more information than what TiVo has listed in a few short paragraphs so far.

The only thing new TiVo brought up is they would provide a “claim chart”, but TiVo is saying E* is obligated to provide a similar chart at the same time, if E* does not, TiVo can delay it too. I can’t wait to see how the judge responds to such argument.

TiVo was clearly ill prepared, they didn’t even have the names of the witnesses yet as I speculated.


----------



## Curtis52

TiVo hasn't given up on the "on the face" contempt argument.

"TiVo's contention that the contempt burden of proof has shifted to EchoStar as an 
"undisputed" contemnor rehashes the same "plain language of the injunction" theory from TiVo's June 2008 contempt motion - the motion that was legally flawed from start to finish because it ignored both colorable differences and whether EchoStar's design-around products still infringe claims 31 and 61. Consistent with Federal Circuit law, the Court has held that it will resolve TiVo's contempt motion based on: "(1) whether the software downloaded to EchoStar's [accused receivers] 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." (Order at 1.) "


----------



## Ergan's Toupe

jacmyoung said:


> TiVo was clearly ill prepared, they didn't even have the names of the witnesses yet.


Then what's with all the whining from E*? They should be glad Tivo is unprepared and shouldn't want to give them any more time. If what you say is true, one would think Charlie would want to have this trial tomorrow. :lol:

Unless of course you don't know what you talking about, and your just throwing more crap at the wall.... :grin:


----------



## jacmyoung

Curtis52 said:


> TiVo hasn't given up on the "on the face" contempt argument...


Because TiVo has nothing else to argue about


----------



## jacmyoung

Ergan's Toupe;1927183 said:


> Then what's with all the whining from E*? They should be glad Tivo is unprepared and shouldn't want to give them any more time. ...


Did you even read your own file? E* argued TiVo should not be given more time, TiVo needed to provide the full disclosures by 12/09/08 already.

E* provided TiVo the required disclosures on time, because TiVo does not say E*'s disclosures are inadequate. TiVo just wants to delay its own full disclosures.


----------



## Ergan's Toupe

jacmyoung said:


> TiVo just wants to delay its own full disclosures.


Remember that super top secret "design around" anyone who read E*'s SEC filings should have known about? Tivo learned from the best! :lol:

WAAHHHHHH.... :icon_cry: We don't have enough time.... WAAAAAHHHHH!!! :icon_cry: Tivo's not playing fair!! :icon_cry: How are we going to change the software this time if we don't know what to change.... :lol:


----------



## jacmyoung

The problem Tivo has, as Curtis pointed out, they can’t come up with anything new. They are stuck on that “on the face” crap, which TiVo should know by the judge’s painstakingly detailed order for the evidentiary hearing, he already told TiVo they needed more than that “on the face” crap, in fact much more.

TiVo got a copy of the E*’s new software code in 05/08, they had their engineers look at the code already. Yet TiVo can’t even provide a list of those engineers as witnesses? Why? Let me guess, maybe those engineers were laid off in the last round of cost-cutting by TiVo.

There is every reason to protest the delay, because E* must first be able to look at what TiVo has to offer, before E* can mount a defense against TiVo’s contentions. There is a good reason the court set those deadlines.

Now TiVo has the disclosures from E* and said they were studying the info carefully, yet TiVo does not believe they need to provide similar disclosures to E* so E* can have time to do the same preparation.

Who is exactly asking for special treatment here?


----------



## Curtis52

jacmyoung said:


> The problem Tivo has, as Curtis pointed out, they can't come up with anything new.


I did not list any problems that TiVo has or that Dish has nor did I state that either one or both of them can't come up with anything new. Stop lying.


----------



## jacmyoung

Curtis52 said:


> I did not list any problems that TiVo has or that Dish has nor did I state that either one or both of them can't come up with anything new. Stop lying.


Misunderstanding is not lying. How about directing your anger at TiVo instead. Has TiVo done anything good lately to put E*'s DVRs out of the business?


----------



## Curtis52

jacmyoung said:


> Misunderstanding is not lying. How about directing your anger at TiVo instead.


There is no anger. There is only correction and admonition.


----------



## jacmyoung

Curtis52 said:


> There is no anger. There is only correction and admonition.


Maybe you can offer TiVo such admonition for a change, maybe they will then be able to do a better job, finally get my 625 turned off, and you might not see me here pointing out how bad TiVo is doing? I can do so only because TiVo has constantly offered me the opportunities.

In fact I said before, I'd love to see my 625 disabled so E* will have to give me a new generation DVR for replacement, maybe I should go tell TiVo they need to do a better job, if none of you guys have the guts to yell at TiVo the emperor has no cloth?


----------



## Ergan's Toupe

jacmyoung said:


> Misunderstanding is not lying.


It is when someone "misunderstands" at least once in every post they write.


----------



## Curtis52

jacmyoung said:


> Maybe you can offer TiVo such admonition for a change


If TiVo mischaracterizes anything I write I will surely offer them "such admonition".


----------



## Ergan's Toupe

jacmyoung said:


> In fact I said before, I'd love to see my 625 disabled so E* will have to give me a new generation DVR for replacement, maybe I should go tell TiVo they need to do a better job, if none of you guys have the guts to yell at TiVo the emperor has no cloth?


Good luck with all that. Maybe Charlie can give you 2 new DVR's! Unless those are found to infringe too. :lol:


----------



## James Long

jacmyoung said:


> ... they didn't even have the names of the witnesses yet as I speculated.


Source?

The reply to the response to the motion did not make that claim. Why are you making it? There are specific claims in DISH's reply ... not providing the names of the witnesses is not one of those claims.

Please provide a source for your claim. Otherwise you are just speculating that you speculated right and reality it is just another false/unproven statement.


Ergan's Toupe;1927183 said:


> Unless of course you don't know what you talking about, and your just throwing more crap at the wall.... :grin:


While there are more elegant ways of saying it I tend to agree.


----------



## jacmyoung

Curtis52 said:


> If TiVo mischaracterizes anything I write I will surely offer them "such admonition".


This is the same as saying you have no guts to call Tivo has no cloth even when you see none, because you know Tivo's lawyer will never come here to argue.



> Quote from E*: TiVo's purported confusion about its burden of proof is easily resolved...


Apparently Tivo still does not know who has the burden of proof here in a contempt proceeding. Tivo still insists E* is already in contempt by Tivo's own standard, not even thinking for a minute why the judge wants to look at the software colorable difference. Tivo is falling behind even the Tivo's supporters in this thread.

The idea that after the judge went through all the trouble to order an evidentiary hearing, and provided so detailed long list of things each party must do in order for him to further analyze two major items, that somehow TiVo thought just rehashing the same old one liner arguments would be enough?

Give me a break.


----------



## James Long

jacmyoung said:


> Maybe you can offer TiVo such admonition for a change,


Tivo has not been making your posts in this thread, have they?

You misstated another poster's opinion, again. You do this often as a way of speaking as a group ... the "royal we" method of making your words sound bigger and more important because you claim to be speaking for two. But you're not.

You owe Curtis an apology for misusing his name in your posts. You owe me an apology for past posts as well where you make unsubstantiated claims and then fail to acknowledge when proven wrong.

Please be civilized ... we'd like to discuss the case truthfully without wasting posts weeding out the unsubstantiated speculation and obvious lies.

BTW: No need to waste your time getting defensive ... a short apology will be enough. Any "defensive" posts will be read as more of the same old same old.



jacmyoung said:


> Give me a break.


That can be arranged.


----------



## tracyball

jacmyoung said:


> Apparently Tivo still does not know who has the burden of proof here in a contempt proceeding. Tivo still insists E* is already in contempt by Tivo's own standard, not even thinking for a minute why the judge wants to look at the software colorable difference. Tivo is falling behind even the Tivo's supporters in this thread.
> 
> The idea that after the judge went through all the trouble to order an evidentiary hearing, and provided so detailed long list of things each party must do in order for him to further analyze two major items, that somehow TiVo thought just rehashing the same old one liner arguments would be enough?
> 
> Give me a break.


An evidentiary burden or burden of leading evidence is an obligation that shifts between parties over the course of the hearing or trial. A party may submit evidence that the court will consider prima facie proof of some state of affairs. This creates an evidentiary burden upon the opposing party to present evidence to refute the presumption Prima facie (PRY-muh-FAY-shee; -shuh) is a Latin expression meaning at first sight, used in common law jurisdictions to denote evidence that is sufficient, if not rebutted, to prove a particular proposition of fact. ...

http://www.nationmaster.com/encyclopedia/Burden-of-proof


----------



## tracyball

If the Judge rules that the evidentiary burden is indeed Echos I believe someone here cited that the standard will be clear and convincing evidence. Is this the case?
Thanks



tracyball said:


> An evidentiary burden or burden of leading evidence is an obligation that shifts between parties over the course of the hearing or trial. A party may submit evidence that the court will consider prima facie proof of some state of affairs. This creates an evidentiary burden upon the opposing party to present evidence to refute the presumption Prima facie (PRY-muh-FAY-shee; -shuh) is a Latin expression meaning at first sight, used in common law jurisdictions to denote evidence that is sufficient, if not rebutted, to prove a particular proposition of fact. ...
> 
> http://www.nationmaster.com/encyclopedia/Burden-of-proof


Clear and convincing evidence

Clear and convincing evidence is the intermediate level of burden of persuasion sometimes employed in the US civil procedure. In order to prove something by "Clear and convincing evidence" the party with the burden of proof must convince the trier of fact that it is substantially more likely than not that the thing is in fact true. This is a lesser requirement than "proof beyond a reasonable doubt" which requires that the trier of fact be all but certain of the truth of the matter asserted, but a stricter requirement than proof by "preponderance of the evidence," which merely requires that the matter asserted seem more likely true than not. Civil procedure is the body of law that sets out the process that courts will follow when hearing cases of a civil nature (a civil action). These rules govern how a lawsuit or case may be commenced, what kind of service of process is required, the types of pleadings or... A trier of fact is the person or group of persons in a trial who make findings of fact as opposed to rulings of law. ...

http://www.nationmaster.com/encyclopedia/Burden-of-proof


----------



## Curtis0620

scooper said:


> You wish...


I think we all wish this was over already.

Either way.


----------



## jacmyoung

In a contempt proceeding, the movant must prove with clear and convincing evidence, the non-movant only needs to establish the doubt. If Judge Folsom does not understand that, his ruling (if adverse to E*) will stand no chance on appeal.

Likewise, if TiVo is given three weeks to prepare their contentions, and E* is only given one week to prepare their response (the holiday week excluded), there will be a clear path for appeal, if the judge's ruling is adverse to E*.

TiVo is again wasting their time, like they have been doing since May.


----------



## jacmyoung

Curtis52 said:


> ...Stop lying.


The start of unkind exchanges, had Curtis simply pointed out he did not say it, there would be no uncivilized conversation to begin with.

But I do apologize for any hard feelings as a result.


----------



## Ergan's Toupe

jacmyoung said:


> The start of unkind exchanges, had Curtis simply pointed out he did not say it, there would be no uncivilized conversation to begin with.


Curtis pointed out (correctly) that you lied (again). How is that an unkind exchange?

If you stop lying, you will stop being called out on it and there will be no "unkind exchanges". Get it?


----------



## tracyball

jacmyoung said:


> In a contempt proceeding, the movant must prove with clear and convincing evidence, the non-movant only needs to establish the doubt.


An evidentiary burden or burden of leading evidence is an obligation that shifts between parties over the course of the hearing or trial.

I think it is the time for the non-movant to establish the doubt....first....then Tivo will respond


----------



## jacmyoung

tracyball said:


> An evidentiary burden or burden of leading evidence is an obligation that shifts between parties over the course of the hearing or trial.
> 
> I think it is the time for the non-movant to establish the doubt....first....then Tivo will respond


Except you ignored the court order.

The order establised a starting point, assume each party followed the order to provide full disclosures to the other.

After that TiVo had 15 days to provide their expert disclosures and contentions.

E* was given 29 days (22 if the holiday week was excluded) to provide their expert disclosures and contentions, and E* had two weeks to respond to TiVo's further contentions on or before the 24th.

That is how the procedures are, the defendant gets the benefit of time to respond.

Now TiVo is saying the initial disclosures were moot, as long as they have it by the 24th. Except if the court agrees with it, TiVo will get three weeks to prepare their responses, after receiving E*'s initial full disclosures, and E* will only have one week (again excluding the holiday week) to respond.

A complete reversal of the court order. A procedure that is certainly appealable.

A compromise might be that the judge gives E* another two weeks to provide their expert disclosures, that could also push back the hearing schedule.


----------



## tracyball

jacmyoung said:


> Except you ignored the court order.
> 
> The order establised a starting point, assume each party followed the order to provide full disclosures to the other.
> 
> After that TiVo had 15 days to provide their expert disclosures and contentions.
> 
> E* was given 29 days (22 if the holiday week was excluded) to provide their expert disclosures and contentions, and E* had two weeks to respond to TiVo's further contentions on or before the 24th.
> 
> That is how the procedures are, the defendant gets the benefit of time to respond.
> 
> Now TiVo is saying the initial disclosures were moot, as long as they have it by the 24th. Except if the court agrees with it, TiVo will get three weeks to prepare their responses, after receiving E*'s initial full disclosures, and E* will only have one week (again excluding the holiday week) to respond.
> 
> A complete reversal of the court order. A procedure that is certainly appealable.
> 
> A compromise might be that the judge gives E* another two weeks to provide their expert disclosures, that could also push back the hearing schedule.


Tivo provided an initial response to the order. It is Echo's opinion that it is deficient.


----------



## Ergan's Toupe

How long has it been since Tivo motioned to dismiss? 4 months? How long does it take to rule? What are they waiting for? Are they going to come to Charlie's rescue or not? Why isn't Charlie whining about the delay?

So many questions, so little time....


----------



## Curtis0620

Ergan's Toupe;1928274 said:


> How long has it been since Tivo motioned to dismiss? 4 months? How long does it take to rule? What are they waiting for? Are they going to come to Charlie's rescue or not? Why isn't Charlie whining about the delay?
> 
> So many questions, so little time....


Charlies's waiting for a Government Bailout.

Everyone else is getting one.


----------



## Ergan's Toupe

Curtis0620 said:


> Charlies's waiting for a Government Bailout.
> 
> Everyone else is getting one.


The way he's bleeding subs he's going to need a bailout. I don't think it will be Uncle Sam doing the bailing though.


----------



## jacmyoung

tracyball said:


> Tivo provided an initial response to the order. It is Echo's opinion that it is deficient.


At a minimum TiVo did not provide the names and info of the witnesses, which are required by the order before 12/10/08. Another deficiency may be a lack of case law again. Because another part of the disclosures are "legal theories" which require citing of case law.

And TiVo's own argument that the initial disclosures were "moot" of course does not help their case either. Even if I may disagree with the judge from time to time, I would never tell the judge his order is moot.


----------



## Ergan's Toupe

jacmyoung said:


> At a minimum TiVo did not provide the names and info of the witnesses, which are required by the order before 12/10/08.


Cite please. Post a link.


----------



## James Long

Ergan's Toupe;1928274 said:


> How long has it been since Tivo motioned to dismiss? 4 months? How long does it take to rule? What are they waiting for? Are they going to come to Charlie's rescue or not? Why isn't Charlie whining about the delay?
> 
> So many questions, so little time....


There was supposed to be a hearing September 11th but it was canceled by Judge Farnan on August 29th:
ORAL ORDER: The Rule 16 Scheduling Conference set for September 11, 2008 is CANCELLED.. Ordered by Judge Joseph J. Farnan, Jr. on 8/29/2008.


----------



## jacmyoung

Ergan's Toupe;1928358 said:


> Cite please. Post a link.


Why did you not read your own PDF file?

According to E*, TiVo's disclosures are comparable, consisting mainly four "empty sentences". Unless you call E* lying about it, which will be a very difficult thing to do because everything is in front of the judge to see.

The above four sentences contained no witness information, no legal theories either because a legal theory requires citing of case law and/or the legal standards themselves.

The law says to find infringement, all of the steps in a patent claim must be met individually, literally or by equivalents. To do so, TiVo should have said:

E*'s new software still infringes on the two software patent claims because:

1)	Step One is still met literally or by equivalents, because&#8230;
2)	Step Two is still met literally or by equivalents, because&#8230;
3)	Step Three is still met literally or by equivalents, because&#8230;
4)	Step Four is still met literally or by equivalents, because&#8230;
5)	Step Five is still met literally or by equivalents, because&#8230;
6)	Step Six is still met literally or by equivalents, because&#8230;
7)	Step Seven is still met literally or by equivalents, because&#8230;
8)	Step Eight is still met literally or by equivalents, because&#8230;
9)	Step Nine is still met literally or by equivalents, because&#8230;, and
10)	Step Ten is still met literally or by equivalents, because&#8230;

That will be TiVo's proper legal theories, and proof by clear and convincing evidence.

Granted, TiVo is saying but by next week TiVo will be able to do so, that missed the point. If next week will be good enough, the judge would have wasted time ordering the simultaneous disclosures by 12/09/08, which specifically included the disclosure of facts, legal theories, documents and witnesses.


----------



## Ergan's Toupe

jacmyoung said:


> Why did you not read your own PDF file?
> 
> According to E*, TiVo's disclosures are comparable, consisting mainly four "empty sentences". Unless you call E* lying about it, which will be a very difficult thing to do because everything is in front of the judge to see.
> 
> The above four sentences contained no witness information, no legal theories either because a legal theory requires citing of case law and/or the legal standards themselves.


You're not serious, are you? I asked you for proof and you gave me your opinion (again).

Show me where it says that "Tivo hasn't provided a list of any witnesses" or admit you're throwing crap at the wall again (lying).


----------



## jacmyoung

BTW, TiVo was also incorrect by saying by the 24th TiVo would be able to provide the initial full disclosures.

The 12/24/08 disclosures are called “expert disclosures”. My interpretation of it is each side to provide its experts’ view of the evidence and facts. These experts will be technical experts to look at the evidence and offer their opinions on the evidence.

There is nothing in the order said TiVo could wait till the 24th to provide the facts and legal theories. Any legal theories are provided by the lawyers, not the technical experts, and such legal theories should have already been provided to each other by 12/09/08.

By TiVo’s argument that such duty to disclose will be moot in a week, TiVo had admitted they did not provide adequate disclosures by 12/09/08, only that TiVo believed it was alright to delay it till the 24th.


----------



## James Long

An artful dodge ...  No response on the issue a cite was requested for.



> BTW, TiVo was also incorrect by saying by the 24th TiVo would be able to provide the initial full disclosures.


You misunderstood. TiVo missed the deadline and was giving an estimate of when they would be able to comply with the court ordered disclosures. Basically "Yes, Judge Folsom, full discovery was due last week - but we'll deliver it by next week on our own timetable. Compelling us to comply will not speed up that overdue disclosure so the motion is moot."

TiVo is arrogant in saying that DISH will have to wait until 12/24 for the due 12/9 discovery ... but the date is correct to the best of their knowledge.


----------



## scooper

So - Dish should get 2 weeks after 12/24 - so they should put a motion in requesting this, which should be rubberstamped approved.


----------



## dgordo

IMO neither party should need more than 3 days to write a brief. If they dont know what the other party is going to argue by now......


----------



## James Long

scooper said:


> So - Dish should get 2 weeks after 12/24 - so they should put a motion in requesting this, which should be rubberstamped approved.


Not really the point ... the Judge made an order - TiVo should follow it to the letter. If TiVo is allowed to ignore the Judge's order then DISH should be able to pick one of the Judge's orders and ignore it. (I'd choose "disable the DVR functionality.)

TiVo is pleading with the court saying that DISH should honor the court's orders and yet they cannot follow the simplest of orders?


----------



## scooper

dgordo said:


> IMO neither party should need more than 3 days to write a brief. If they dont know what the other party is going to argue by now......


Just lawyers argueing what we have been


----------



## jacmyoung

dgordo said:


> IMO neither party should need more than 3 days to write a brief. If they dont know what the other party is going to argue by now......


The question is should the court order be followed, then what is a fair arrangement.

TiVo is now "busy" looking at all the disclosures E* gave them, TiVo has two weeks to work on them and will make their response by the 24th. We then take a week off, E* will have only one week to then go through the TiVo's disclosures and must respond by the 7th.

Writing a brief may take three days, but going through stacks of disclosures can take much more time. Personally I wouldn't mind if TiVo says the four "empty sentences" will be all the disclosures TiVo has, that will be a huge relief for Charlie, but that was not what TiVo said.


----------



## vampz26

I'm just curious...I've been lurking for a few days now...

has the 'hairpiece' contributed anything of value to this discussion other than emotive slams, snide commentary, and arguments from ignorance?

Just asking...does seem to be a trend there...


----------



## dgordo

jacmyoung said:


> The question is should the court order be followed, then what is a fair arrangement.


You obviously took my statement way too seriously. I need to remember to use these:

:lol:


----------



## Ergan's Toupe

vampz26 said:


> I'm just curious...I've been lurking for a few days now...
> 
> has the 'hairpiece' contributed anything of value to this discussion other than emotive slams, snide commentary, and arguments from ignorance?
> 
> Just asking...does seem to be a trend there...


That about covers it all. Thanks for being a fan.


----------



## vampz26

Ergan's Toupe;1929451 said:


> That about covers it all. Thanks for being a fan.


indeed it does...


----------



## jacmyoung

dgordo said:


> You obviously took my statement way too seriously. I need to remember to use these:
> 
> :lol:


Maybe you did, taking everything said as criticism. If you put yourself in my shoes and noticed what I got, my guess is you wouldn't be able to live for yourself

Now back to the topic, can't wait to see TiVo's "claim charts". I have quoted a few items from TiVo's claim charts from the jury trial, and am ready to compare the old with the new, if we ever get the chance to see the new ones.


----------



## James Long

vampz26 said:


> has the 'hairpiece' contributed anything of value to this discussion other than emotive slams, snide commentary, and arguments from ignorance?


He has provided more on topic discussion than you ... but the people posting are not the topic of this thread.

:backtotop TiVo vs EchoStar


jacmyoung said:


> Now back to the topic, can't wait to see TiVo's "claim charts". I have quoted a few items from TiVo's claim charts from the jury trial, and am ready to compare the old with the new, if we ever get the chance to see the new ones.


EchoStar would like to see TiVo's claims as well ... which IS one of their stated reasons that they filed the Motion to Compel.


----------



## jacmyoung

James Long said:


> ...EchoStar would like to see TiVo's claims as well ... which IS one of their stated reasons that they filed the Motion to Compel.


Not so eager IMHO.

In the filing E* described TiVo's suggestion to simultaneously produce each other the claim charts, E* refused. If E* was so eager to see TiVo's claim charts, E* could easily produced their own and exchanged with TiVo. Claim charts are standard forms in a patent suit to prove or disprove infringement. I don't think E* wanted to get drawn too much into the infringement analysis yet. First thing first, establish more than colorable differences, which needs no claim charts.

I think E* was trying to be on the offense. It was clear TiVo was ill prepared, almost one week after TiVo received E*'s full disclosures, all TiVo could offer was (according to E*) four "empty sentences".

Ordinarily if after four days of reviewing other side disclosures one could only produce such weak response, it is time for the other side to rejoice, but E* knew not to let TiVo get away with their failure to disclose. Time to push on aggressively, rather relax.


----------



## James Long

TiVo has FAILED to follow the court ordered timeline and FAILED to produce all of the discovery REQUIRED to be submitted on 12/9. (They may have produced some of it but the complaint is that they have not produced all of it.)

This handicaps DISH and makes it more difficult for DISH to proceed with their defense. TiVo's claim that they are too busy working on the next set of disclosures to comply with the first disclosure date is not a valid excuse. There was a court ordered timeline that TiVo MUST follow.


----------



## jacmyoung

James Long said:


> TiVo has FAILED to follow the court ordered timeline and FAILED to produce all of the discovery REQUIRED to be submitted on 12/9. (They may have produced some of it but the complaint is that they have not produced all of it.)
> 
> This handicaps DISH and makes it more difficult for DISH to proceed with their defense. TiVo's claim that they are too busy working on the next set of disclosures to comply with the first disclosure date is not a valid excuse. There was a court ordered timeline that TiVo MUST follow.


Do not disagree with the above at all because that is what E* is saying. But the real motive IMO is much more longer term.

Because whether TiVo had provided full disclosures can still be argued by TiVo. TiVo can still say hey our four sentences were our initial disclosures, we did not have anything else to say or provide at that time.

The court cannot force TiVo to provide things they simply did not have.

The problem is, TiVo can supplement their disclosures at any time, especially after TiVo read all the E*'s disclosures. I believe E* was trying to first let the court know the situation, then laying the ground for later chances for opposition or appeal, if things do not go E*'s way during actual colorable difference and/or infringement analyses.

Of course TiVo by doing a poor job initially, had opened the door for E* to mount additional justification for defence if necessary.


----------



## Ergan's Toupe

James Long said:


> TiVo has FAILED to follow the court ordered timeline and FAILED to produce all of the discovery REQUIRED to be submitted on 12/9. (They may have produced some of it but the complaint is that they have not produced all of it.)


Jacy could be right. Maybe Tivo gave them all they had. Nothing would surpise me with this never ending soap opera. The only reason I don't think that's true is because Tivo hasn't denied not giving all the information, they said they were too busy.

We'll find out soon enough if Folsom decides to get off the pot and make a ruling.


----------



## jacmyoung

Ergan's Toupe;1930884 said:


> ...We'll find out soon enough if Folsom decides to get off the pot and make a ruling.


Depend on what kind of the ruling you are talking about.

E* devoted a good part of its filing to argue TiVo had failed to prove by clear and convincing evidence. The intent was to have the judge dismiss TiVo's contempt motion, even though on the face it appears E* is asking the judge to compel TiVo to disclose. But E* cannot depend on the judge giving the judge's past actions.

My speculation is if the judge's next response is not very much in favor of E*, meaning giving TiVo again another chance, E* would probably appeal to the Federal Circuit. On appeal TiVo's failure to disclose would only be a part of the argument, rather TiVo's failure to prove by clear and convincing evidence would be E*'s main point, to dismiss the contempt motion, if Judge Folsom refuses to do so himself.

E* has the Federal Circuit on its side, because the next step of "expert disclosures" will be "premature" according to the higher court's past ruling. E* may be able to put the end to TiVo's disclosures before TiVo gets to the next step, leaving only the four sentences, which will be very easy to defeat.


----------



## James Long

jacmyoung said:


> On appeal TiVo's failure to disclose would only be a part of the argument, rather TiVo's failure to prove by clear and convincing evidence would be E*'s main point, to dismiss the contempt motion, if Judge Folsom refuses to do so himself.


DISH cannot appeal the contempt motion until Judge Folsom disposes of it. Judge Folsom MUST grant, deny or dismiss the motion before any appeal of his action can be filed.


----------



## Ergan's Toupe

jacmyoung said:


> Ordinarily if after four days of reviewing other side disclosures one could only produce such weak response, it is time for the other side to rejoice, but E* knew not to let TiVo get away with their failure to disclose.


But one could say Tivo doesn't want to tip their hand. You can't blame them for trying to game the system. We all know Charlie has played Folsom like a fiddle for how many years now? Might as well take any advantage you can get.


----------



## jacmyoung

James Long said:


> DISH cannot appeal the contempt motion until Judge Folsom disposes of it. Judge Folsom MUST grant, deny or dismiss the motion before any appeal of his action can be filed.


Not long ago E* appealed the judge's bench trial order, got most what E* wanted by the judge modifying his order, and E* then decided to withdraw its appeal. E* can do it again, depending on what the judge's next order may be in response to this new motion. And if the new order is not going to help E* this time E* may not withdraw the appeal like the last time.

Not saying this is what will happen, but this time there is more to argue TiVo had failed to prove with clear and convincing evidence than ever before.


----------



## jacmyoung

Ergan's Toupe;1931084 said:


> But one could say Tivo doesn't want to tip their hand. You can't blame them for trying to game the system. We all know Charlie has played Folsom like a fiddle for how many years now? Might as well take any advantage you can get.


If you think this is TiVo not wanting to tip their hand, then TiVo has been trying not to tip their hand since 05/08. Maybe TiVo never had that hand in the first place.


----------



## James Long

jacmyoung said:


> Not long ago E* appealed the judge's bench trial order, got most what E* wanted by the judge modifying his order, and E* then decided to withdraw its appeal. E* can do it again, depending on what the judge's next order may be in response to this new motion. And if the new order is not going to help E* this time E* may not withdraw the appeal like the last time.
> 
> Not saying this is what will happen, but this time there is more to argue TiVo had failed to prove with clear and convincing evidence than ever before.


DISH can appeal this second order for the hearing ... but they cannot, I repeat CANNOT, appeal a ruling that Judge Folsom has not made.


----------



## jacmyoung

James Long said:


> DISH can appeal this second order for the hearing ... but they cannot, I repeat CANNOT, appeal a ruling that Judge Folsom has not made.


They can appeal the judge's order, therefore have the Circuit Court to force the judge to rule on the contempt motion without further "expert disclosures" or "substantive infringement analysis." Given that TiVo only has four "empty sentences" the outcome is almost predictable.


----------



## James Long

DISH can appeal this second order for the hearing ... but they cannot, I repeat CANNOT, appeal a ruling that Judge Folsom has not made.
(That is what you were suggesting a few posts ago.)


----------



## jacmyoung

James Long said:


> DISH can appeal this second order for the hearing ... but they cannot, I repeat CANNOT, appeal a ruling that Judge Folsom has not made.
> (That is what you were suggesting a few posts ago.)


I said if Judge Folsom refuses to dismiss TiVo's motion, even in light of the new disclosures, E* can appeal and have the Circuit to force him to make that ruling, based on the existing evidence.


----------



## James Long

DISH is not asking Judge Folsom to dismiss the motion. DISH wants Judge Folsom to DENY the motion. Try to stay in the real world.


----------



## jacmyoung

James Long said:


> DISH is not asking Judge Folsom to dismiss the motion. DISH wants Judge Folsom to DENY the motion. Try to stay in the real world.


Since when I am put to such high standard that I must apologize at every turn for the use of one word that may not be totally on the mark yet nevertheless points to the same outcome?

I don't mind it though, what I think is dangerous is if the TiVo supporters think the same about the burden of proof on which side in this contempt proceeding. The thinking of them has always been that E* must get everything right on mark, prove to the world without any deficiency, else E* is doomed, and TiVo can just sit back fire a few "empty sentences" Good luck with such belief.


----------



## James Long

jacmyoung said:



> Since when I am put to such high standard that I must apologize at every turn for the use of one word that may not be totally on the mark yet nevertheless points to the same outcome?


You don't have to apologize (although that would be nice). Just get it right and if you can't get it right stop repeating what has been corrected.

Anyways ... enough fantasy ... let's wait on the court's next release.


----------



## Ergan's Toupe

James Long said:


> DISH is not asking Judge Folsom to dismiss the motion. DISH wants Judge Folsom to DENY the motion. Try to stay in the real world.


Either way it looks like Folsom is in no hurry to rule.


----------



## jacmyoung

Ergan's Toupe;1931982 said:


> Either way it looks like Folsom is in no hurry to rule.


Reading four sentences takes only a few minutes, but if E* had provided very extensive disclosures (assume E* also sent the judge the copies), it may take the judge a few days to verify.

It could be the TiVo's four sentences v. a stack of E* disclosures


----------



## Ergan's Toupe

jacmyoung said:


> Reading four sentences takes only a few minutes, but if E* had provided very extensive disclosures (assume E* also sent the judge the copies), it may take the judge a few days to verify.
> 
> It could be the TiVo's four sentences v. a stack of E* disclosures


I'm just saying, if it was such a catastrophe for E* that Charlie is making it out to be, one would think Folsom would want to make it right as soon as possible.


----------



## James Long

jacmyoung said:


> Reading four sentences takes only a few minutes, but if E* had provided very extensive disclosures (assume E* also sent the judge the copies), it may take the judge a few days to verify.


Don't assume ... just ask.

DISH filed their emergency motion with two exhibits and a proposed order attached. While this was sealed it would be fair to say TiVo's "disclosure" was one of the exhibits (and in the spirit of redundancy the hearing order would be the other).

TiVo's response to the emergency motion has two attachments ... one being a declaration of "Perry M. Goldberg" and the other being their Exhibit A. Again, sealed.

DISH's reply to the response to the emergency motion was not sealed and has been posted in full in this thread.

Since the issue is TiVo's compliance and there is no other record I doubt DISH's disclosures have been seen by the court.



> It could be the TiVo's four sentences v. a stack of E* disclosures


Highly doubtful ... the emergency motion is all about TiVo and their complance.


----------



## James Long

Ergan's Toupe;1931982 said:


> Either way it looks like Folsom is in no hurry to rule.


Judge Folsom would rather be doing anything else than dealing with this case at this time. The parties should be able to do all this pre-hearing stuff without bothering him. He does have other cases.


----------



## Ergan's Toupe

James Long said:


> The parties should be able to do all this pre-hearing stuff without bothering him.


!rolling Oh, come on now....

Isn't the court closed for the Holidays this week?


----------



## Ergan's Toupe

Folsom says Tivo gave enough....


----------



## Curtis0620

Ergan's Toupe;1933235 said:


> Folsom says Tivo gave enough....


I'm sure somebody will spin this into a E* win.


----------



## Ergan's Toupe

Curtis0620 said:


> I'm sure somebody will spin this into a E* win.


Ya think? :lol:

All I know it that these attempted stalling tactics are making Charlie look desperate. Looks like Folsom is going to have his little sauree on the 16th with Charlie kicking and screaming the whole way. 

Anyone want to make a wager as to when Chuckles files the next motion to dismiss/postpone. Tivo is due to file their list of experts tomorrow the 24th. I give E* until Monday the 29th to file another motion whining about something.


----------



## jacmyoung

What I said, there is nothing the court can do if TiVo says that was all they could provide in the initial disclosures. The judge dismissed without prejudice, and indicated E* may again motion to compel, he did agree with E* TiVo's disclosures were deficient, but he was giving TiVo another chance to supplement by the 24th. The fact TiVo is on the record to be deficient, makes TiVo's 24th disclosures more imperaitive to meet the standard.

Had the judge’s order come sooner, I would appeal to the Circuit, but the timing right now is not right anymore.

Can’t wait to see TiVo’s “claim Charts” to compare to their old charts.

BTW, I don't see how this is E*'s stall tactic, E* was compelling TiVo not to stall its disclosures. Not only that, if Charlie is to file another motion next time after TiVo's 12/24 disclosures, that motion will be sanctioned by the court, not just initiated by E*, because Judge Folsom said E* may again motion in a later time.


----------



## Ergan's Toupe

jacmyoung said:


> What I said, there is nothing the court can do if TiVo says that was all they could provide in the initial disclosures. The judge dismissed without prejudice, and indicated E* may again motion to compel, he did agree with E* TiVo's disclosures were deficient, but he was giving TiVo another chance to supplement by the 24th. The fact TiVo is on the record to be deficient, makes TiVo's 24th disclosures more imperaitive to meet the standard.


Nice try. Folsom said no such thing. But thanks for playing.... :lol:



jacmyoung said:


> BTW, I don't see how this is E*'s stall tactic, E* was compelling TiVo not to stall its disclosures.


Of course you don't see it. Charlie was trying to stall by saying Tivo was stalling. Look for a lot more of that as the hearing gets closer. Charlie knows the end is near and the truth about his super top secret, "herculean effort" will be exposed for what it is.



jacmyoung said:


> if Charlie is to file another motion next time after TiVo's 12/24 disclosures, that motion will be sanctioned by the court, not just initiated by E*, because Judge Folsom said E* may again motion in a later time.


Since when does Charlie need the courts permission/blessing to file a motion? The last couple of motions where shot down. Anyone can see that Folsom is growing tired of Charlie's BS and mark my words, This hearing will be held on Feb. 16th no matter how much Charlie whines, kicks and screams.


----------



## Ergan's Toupe

jacmyoung said:


> Had the judge's order come sooner, I would appeal to the Circuit, but the timing right now is not right anymore.


If there was a chance that Charlie thought he could pull that off and win, and not piss off Folsom further, he would of.


----------



## jacmyoung

Again you have failed to read your own file.

The judge agreed with E* that TiVo was deficient, but he said TiVo's deficiency will likely be cured after their 12/24 expert disclosures, for that reason the motion was dismissed *without prejudice*, meaning the issue is not settled.

And the judge said, on the record, that E* may renew its motion to compel if E* still thinks TiVo is deficient after the 12/24 disclosures. If E* does it again, it will be a court sanctioned filing, as the judge agreed TiVo was deficient and TiVo will not get chance after chance to be deficient.

Read read read.


----------



## Ergan's Toupe

jacmyoung said:


> Read read read.


Spin, spin, spin.... :lol:


----------



## Curtis52

jacmyoung said:


> The judge agreed with E* that TiVo was deficient


The judge did not express an opinion.


jacmyoung said:


> the motion was dismissed *without prejudice*, meaning the issue is not settled.


"Without prejudice" does not mean "not settled". The motion is closed. It means that the issue can be reopened by filing another motion.


----------



## jacmyoung

Curtis52 said:


> The judge did not express an opinion.


Yes he did, he said the deficiency would likely be cured after 12/24. If TiVo was not deficient, there is no need to cure it.



> "Without prejudice" does not mean "not settled". The motion is closed. It means that the issue can be reopened by filing another motion.


...The *issue* is not settled because it can be reopened, if it is settled it is final, not to be reopened. And the judge does not have to remind the parties that E* can renew its motion either, if he did not believe TiVo was deficient. He clearly also wanted TiVo to know they better *cure* their deficiency by 12/24, else next time he might grant E*'s motion.


----------



## Ergan's Toupe

jacmyoung said:


> Yes he did, he said the deficiency would likely be cured after 12/24. If TiVo was not deficient, there is no need to cure it.
> 
> ...The *issue* is not settled because it can be reopened, if it is settled it is final, not to be reopened. And the judge does not have to remind the parties that E* can renew its motion either, if he did not believe TiVo was deficient. He clearly also wanted TiVo to know they better *cure* their deficiency by 12/24, else next time he might grant E*'s motion.


You're making me dizzy.... :icon_stup


----------



## Curtis0620

Ergan's Toupe;1933684 said:


> You're making me dizzy.... :icon_stup


Don't you know DISH has already won. Even though they have lost every step of the way so far.:hair:


----------



## peak_reception

jacmyoung said:


> The judge agreed with E* that TiVo was deficient, but he said TiVo's deficiency will likely be cured after their 12/24 expert disclosures...
> ...as the judge agreed TiVo was deficient and TiVo will not get chance after chance to be deficient.


 Jac, you've misread what the Judge said. Here is what he said:


> Because TiVo's expert disclosures are due on December 24 and will likely cure any prior deficiency...


 The word "any" means "*IF* any." He's leaving that an open question which he does not pass judgment on. He's simply saying that even *IF* TiVo's disclosures are deficient now, that will probably no longer be the case by December 24th. And if Echo still believes that the disclosures are deficient after that they can file their motion again.


----------



## jacmyoung

peak_reception said:


> Jac, you've misread what the Judge said. Here is what he said: The word "any" means "*IF* any." He's leaving that an open question which he does not pass judgment on. He's simply saying that even *IF* TiVo's disclosures are deficient now, that will probably no longer be the case by December 24th. And if Echo still believes that the disclosures are deficient after that they can file their motion again.


"Any" is not the same as "if any". The judge did not dispute the fact TiVo was deficient, even TiVo did not dispute it, TiVo said by 12/24 the deficiency would be moot. There is no reason for the judge to argue TiVo was sufficient if TiVo admitted they were deficient.

While the judge did seem to agree with TiVo by saying "likely" the deficiency would be moot by 12/24, but if not, E* is well within its right to motion the judge again. In another word, if TiVo is found to be deficient again after 12/24, there is every reason to grant E*'s next motion.

The assumption of course is TiVo will cure its deficiency by tomorrow, we will see.


----------



## jacmyoung

Curtis0620 said:


> Don't you know DISH has already won. Even though they have lost every step of the way so far.:hair:


The point here is you must recognize the kind of rigorous defense E* is determined to mount against TiVo every step of the way. TiVo better do a good job to get something to stick this time, they have failed to do so for the last 8 months. TiVo should give up their wishful thinking by now that E* may cave in and settle.


----------



## peak_reception

jacmyoung said:


> "Any" is not the same as "if any".


 It is in this case. If the Judge meant what you say he means then he would have left out the word "any."



> The judge did not dispute the fact TiVo was deficient..."


 Exactly. He passed no judgment either way on the deficiency question. 


> TiVo said by 12/24 the deficiency would be moot.


 I haven't seen where TiVo said that but if they did then the Judge has agreed with them. 


> While the judge did seem to agree with TiVo by saying "likely" the deficiency would be moot by 12/24, but if not, E* is well within its right to motion the judge again. In another word, if TiVo is found to be deficient again after 12/24, there is every reason to grant E*'s next motion.


 Yes! Echo may motion again if they feel TiVo's disclosures to be insufficent after Dec. 24. 


> The assumption of course is TiVo will cure its deficiency by tomorrow, we will see.


 If there's deficiency or 'still decifiency' after tomorrow then Echo gets to file again, yes.


----------



## Ergan's Toupe

Curtis0620 said:


> Don't you know DISH has already won. Even though they have lost every step of the way so far.:hair:


Well, Folsom denied Charlies latest stall tactic, but he really didn't. You see even though he publicly denied it, privately he didn't.

Of course even though Folsom said "DENIED" he only meant kind of denied. If you read between the lines, he didn't really deny the motion, he just told Charlie to take a hike. But not really, because if Tivo doesn't do what Charlie wants there will be hell to pay and he might have to deny another motion, but not really deny it, just deny it today.


----------



## Ergan's Toupe

peak_reception said:


> It is in this case. If the Judge meant what you say he means then he would have left out the word "any."
> 
> Exactly. He passed no judgment either way on the deficiency question.
> I haven't seen where TiVo said that but if they did then the Judge has agreed with them.
> Yes! Echo may motion again if they feel TiVo's disclosures to be insufficent after Dec. 24.
> If there's deficiency or 'still decifiency' after tomorrow then Echo gets to file again, yes.


So Charlie won right? :uglyhamme


----------



## Ergan's Toupe

peak_reception said:


> Jac, you've misread what the Judge said.


Since when has that ever stopped him?


----------



## Ergan's Toupe

jacmyoung said:


> Again you have failed to read your own file.


PRICELESS!!! !rolling


----------



## jacmyoung

peak_reception said:


> It is in this case. If the Judge meant what you say he means then he would have left out the word "any."
> 
> Exactly. He passed no judgment either way on the deficiency question.
> I haven't seen where TiVo said that but if they did then the Judge has agreed with them.
> Yes! Echo may motion again if they feel TiVo's disclosures to be insufficent after Dec. 24.
> If there's deficiency or 'still decifiency' after tomorrow then Echo gets to file again, yes.


We just have to agree to disagree then.

I would have agreed with you had he said: "...will likely cure prior deficiency, if any...", different from "will likely cure any prior deficiency..."


----------



## Curtis52

No one can doubt whether your post makes _any_ sense.


----------



## jacmyoung

Curtis52 said:


> No one can doubt whether your post makes _any_ sense.


The same people never had doubt what the judge had meant in his big order (the injunction), but they conveniently forgot to ask the judge did he lose his mind? How could he not know what he said when he ordered E* to disable the DVRs?

No one on the Tivo side seem to have the courage to point out the judge had no cloth Now they are too eager to tell me how I have misinterpreted the above judge's words?

By the virtue of the judge's continuing to allow E* to use the DVRs, the TiVo people have proven that they have no ability to read the judge's order.


----------



## Bidderman9

jacmyoung said:


> Again you have failed to read your own file.
> 
> The judge agreed with E* that TiVo was deficient, but he said TiVo's deficiency will likely be cured after their 12/24 expert disclosures, for that reason the motion was dismissed *without prejudice*, meaning the issue is not settled.
> 
> And the judge said, on the record, that E* may renew its motion to compel if E* still thinks TiVo is deficient after the 12/24 disclosures. If E* does it again, it will be a court sanctioned filing, as the judge agreed TiVo was deficient and TiVo will not get chance after chance to be deficient.
> 
> Read read read.


Man, those rose colored glasses look good on you...:new_Eyecr


----------



## jacmyoung

Curtis52 said:


> No one can doubt whether your post makes _any_ sense.


BTW, I was the one who said we just had to agree to disagree, you did not say that.

By saying the above, I have allowed you to disagree with me and therefore doubt me. On the other hand you have yet been willing to say the same.

Instead you decided to accuse me of an offense I did not commit, which you have committed yourself.


----------



## jacmyoung

Bidderman9 said:


> Man, those rose colored glasses look good on you...:new_Eyecr


At least I do not hide behind anything. You on the other hand had tried to pretend to be fair and neutral, I can quote a few of yours if you like


----------



## James Long

:backtotop TiVo vs EchoStar
(not each other)


----------



## Bidderman9

Has anybody heard anything about TiVo's disclosure due on 12/24??


----------



## James Long

Nothing is filed with the court about it. Which means either DISH accepted it or hasn't filed a motion to compel yet.


----------



## jacmyoung

Counsel meet and confer should occur for a few days before filing, if any.


----------



## jacmyoung

TiVo had disclosed one expert witness, James Storer. E* had disclosed one expert witness, Tom Rhyne. Both were involved in the prior jury trial. TiVo agreed to have E* produce their expert discloures by 01/13/09 instead of 01/07/09.

I could not find much about James Storer. Tom Rhyne was the star expert witness against Blackberry, in which Blackberry ended up paying $600 million in their infringement case settlement. Tom Rhyne testified in the TiVo v. E* jury trial that the E* DVRs did not have to convert the incoming streams since they were MPEG2 digital, while TiVo's DVRs had to convert from analog to digital. Apparently that conversion was irrelevant to the TiVo's patent.

We will likely have a quiet month in January, Happy New Year!


----------



## James Long

Here are the documents to back that up.


----------



## Ergan's Toupe

jacmyoung said:


> TiVo had disclosed one expert witness, James Storer. E* had disclosed one expert witness, Tom Rhyne. Both were involved in the prior jury trial. TiVo agreed to have E* produce their expert discloures by 01/13/09 instead of 01/07/09.
> 
> I could not find much about James Storer.


Biographical Sketch and Research Interests

James A. Storer received his B.A. in Mathematics and Computer Science from Cornell University in 1975, his M.A. in Computer Science from Princeton University in 1977, and his Ph.D. in Computer Science from Princeton University in 1979. From 1979 to 1981 he was a researcher (MTS) at Bell Laboratories in Murray Hill, New Jersey.

In 1981 he came to Brandeis University, where he served as Chair of the Computer Science Department from 1992 to 2002 and is currently Full Professor of Computer Science and member of the Brandeis Center for Complex Systems.

Dr. Storer's research interests include computer algorithms, data compression and archiving (including text, images, video, and multi-media), data communications, processing of large data sets, image retrieval, texture analysis, text, image, and video processing, parallel computing, machine learning.

He has obtained U.S. patents, does computing technology and patent related consulting, and has served as Chair of the annual Data Compression Conference (proceedings published by the IEEE Computer Society Press).


----------



## jacmyoung

http://www.cemetery.state.tx.us/pub/user_form.asp?step=1&pers_id=11378

Tom Rhyne Biography:



> RHYNE, VERNON THOMAS (1942 ~ ). The following is a biography for Dr. Vernon Thomas (Tom) Rhyne, husband of Glenda Pevey Rhyne, appointee to the Texas Academy of Mathematics and Science Advisory Board by Governor Anne Richards in 1994. The Texas State Cemetery Committee approved the Rhynes for burial at the Texas State Cemetery for their contributions to Texas education.
> 
> "Dr. Vernon Thomas Rhyne III, recognized professional engineer and educator, was born on February 18, 1942. He earned his Bachelor of Science with Special Honors from Mississippi State University in 1962, his Masters of Electrical Engineering from the University of Virginia in 1964 and his Ph.D. in Electrical Engineering from the Georgia Institute of Technology in 1967. His career in digital design began when, as a high school sophomore in 1956, he won the Mathematics Division of the Texas State Science Fair for building his own digital computer. Upon completing his Ph.D., Rhyne was hired by Texas A&M University to initiate a computer design emphasis within the Electrical Engineering Department. Within a few years he was a full professor and author of a nationally recognized textbook, Fundamentals of Digital System Design.
> 
> Rhyne had a prolific career in both industry and academia. His sixteen-year tenure at Texas A&M included a post as the campus-wide Coordinator of Computing. In addition to teaching at A&M, Rhyne held teaching posts at the Georgia Institute of Technology (1965-67) and the University of Texas (1984-1994). Before graduate school Rhyne had worked at NASA on the lunar landing program. Later, believing that a professor needed to know the industry for which his students were training, he worked for or consulted to Texas Instruments, Control Data Corporation in Minnesota, the Electric Power Research Institute in California, Motorola, AMD, and the Microelectronics and Computer Technology Corporation which Rhyne helped bring to Austin in the early 1980's. Rhyne was involved in early research on GPS navigation. He was a founder of Texas Digital Systems, a successful manufacturer of computer peripherals, as well as being widely published.
> 
> Rhyne is a Fellow and Life Member of the Institute of Electrical and Electronics Engineers. He served as Treasurer of that 300,000 member international organization, as well as sitting on its Board of Directors and on the IEEE Executive Committee. He received the IEEE Millennium Award, the Golden Core Award, and the IEEE Educational Activities Board Award for Meritorious Achievement in Accreditation Activities. He has been named in Who's Who in America and Who's Who in Engineering from 1991 to the present.
> 
> Rhyne's serious dedication to education took him to Japan, Korea, Germany, Saudi Arabia, Kuwait, Turkey, and other countries seeking advice on improving their electrical engineering university programs. Within the U.S. he served as chair of the university accreditation teams for such schools as the University of California at Berkeley, the University of Illinois and Carnegie Mellon. At the local level he was elected to the Eanes School Board in Austin, serving four terms and being recognized in the community as a leading advocate for quality public education. Rhyne and his spouse Glenda Pevey Rhyne have been recognized for their support of the Texas Academy of Mathematics and Science, as well.
> 
> *During Rhyne's retirement years he was much sought after as an expert witness in patent litigation. He traveled coast to coast determining how technological advancements in the use of computer chips or software related to existing patents, a work of which he joyfully said, 'I learn so much.'*...


Now I must state up front that the best expert cannot be much help if the product is indeed an offending product. As I have indicated in the above post Dr. Rhyne's testimony did not benefit E* bacause in the end the issue was not critical to the infringement analysis.

I want to see TiVo's new "claim charts" from their expert disclosures, because TiVo's old claim charts were very good and were instrumental in winning the case. If we can put the old and new side by side it will be much easier to see which way it may go.


----------



## Ergan's Toupe

jacmyoung said:


> Now I must state up front that the best expert cannot be much help if the product is indeed an offending product. As I have indicated in the above post Dr. Rhyne's testimony did not benefit E* bacause in the end the issue was not critical to the infringement analysis.


...Echostar called Stanford Professor Margaret "Maggie" Johnson to refute testimony by TiVo's witness Dr. Jerry Gibson. By analogy to writing novels she testified that TiVo and Echostar used different approaches to writing software to achieve the same end. [Dale's Note: Frankly, I don't understand the point or substance of this testimony - based on the account in the article linked below!]. Moving on &#8230; TiVo next cross-examined Dr. Tom Rhyne. TiVo attempted to discredit Dr. Rhyne by painting him as an expert-for-hire. As Echostar had earlier done with a TiVo expert, Tivo's lawyers ensured that the court learned that Mr. Rhyne was being paid $495 per hour as an expert witness. *Rhyne acknowledged that TiVo inventor Jim Barton "knows more about DVRs" than he. Both Rhyne and Johnson acknowledged that they relied on what they were told by Echostar engineers as the basis for their testimony*


----------



## jacmyoung

Ergan's Toupe;1942993...[B said:


> Rhyne acknowledged that TiVo inventor Jim Barton "knows more about DVRs" than he. Both Rhyne and Johnson acknowledged that they relied on what they were told by Echostar engineers as the basis for their testimony[/B]


But does James Storer know more about DVRs than Tom Rhyne? Or a better question may be, if Jim Barton knows more about DVRs why is he not an expert witness this time, especially he will not be charging TiVo a high fee?

Your second part is the key, it is what E* or TiVo wants to say that will matter, the expert witnesses will only say what E* or TiVo would like them to say, both for themselves, and for the other side during cross examinations.

TiVo did not win the last round because they pointed out how much E* was paying Dr. Rhyne, rather what E* asked DR. Rhyne to say did not matter in the infringement analysis.

Likewise, if the only thing TiVo would ask Mr. Storer to say would be that the new software still "analyzes", TiVo will fail, regardless how reputable Mr. Storer is as an expert.


----------



## Curtis52

jacmyoung said:


> But does James Storer know more about DVRs than Tom Rhyne? Or a better question may be, if Jim Barton knows more about DVRs why is he not an expert witness this time, especially he will not be charging TiVo a high fee?


I can't quite decode the fractured English. Are you saying you know something about fees ?


----------



## Ergan's Toupe

jacmyoung said:


> But does James Storer know more about DVRs than Tom Rhyne? Or a better question may be, if Jim Barton knows more about DVRs why is he not an expert witness this time, especially he will not be charging TiVo a high fee?


What makes you think Jim Barton isn't going to be an expert witness?


----------



## jacmyoung

Curtis52 said:


> I can't quite decode the fractured English. Are you saying you know something about fees ?


No need to be emotional about it and start name calling again Curtis, Jim Barton is part owner of TiVo, that is why, even if he commands a high scale of compensation, that is not going to be an issue of "high fee".

Which leads to my other point, the part where TiVo tried to discredit the expert witnesses by attacking they were highly paid, that of course was to play into the emotion of the jury not into the facts of the infringement analyis. That is why I said hopefully TiVo did not think they won the last round because of that argument. If you read the appeals court decision, it should be very clear no emotional elements were paid attention to, such as who was "for hire" and "my daddy was bigger than yours." Only facts shall prevail.

Of course your friendly poster has always played the emotional card, not factual card, I wasn't surprised of him picking out those elements for entertainment here. It was very entertaining for sure.


----------



## jacmyoung

Ergan's Toupe;1943493 said:


> What makes you think Jim Barton isn't going to be an expert witness?


Because each party only disclosed a single expert witness and he is not on the list?

Of course Jim Barton may be a witness, just not an expert witness.


----------



## Ergan's Toupe

jacmyoung said:


> Which leads to my other point, the part where TiVo tried to discredit the expert witnesses by attacking they were highly paid, that of course was to play into the emotion fo the jury not into the facts of the infringement analyis.


Read it again. Tivo attacked AFTER E* did it first.


----------



## Ergan's Toupe

jacmyoung said:


> Because each party only disclosed a single expert witness and he is not on the list?
> 
> Of course Jim Barton may be a witness, just not an expert witness.


So you think there are only going to be 2 "expert" witnesses? :lol:

Time for a reality check.


----------



## James Long

Ergan's Toupe;1943646 said:


> So you think there are only going to be 2 "expert" witnesses? :lol:
> 
> Time for a reality check.


Please read the PDF attached a few posts ago.

At this point DISH and TiVo will have one expert witness each.


----------



## jacmyoung

Ergan's Toupe;1943643 said:


> Read it again. Tivo attacked AFTER E* did it first.


You brought up the issue of "attack", my point was such "attack" should not work, no matter who started it and who followed, if our legal system is what it supposes to be.

The point of Jim Barton knew DVRs more than Tom Rhyne (or James Storer for that matter) might have some merit, but Mr. Barton is the inventor of the TiVo DVR technology, of course he should know DVRs more than Mr. Rhyne or Mr. Storer.

Similarly, the inventor(s) of the new E* DVR design must also know DVRs more than the above two expert witnesses.

What is your point again?


----------



## Greg Bimson

jacmyoung said:


> Which leads to my other point, the part where TiVo tried to discredit the expert witnesses by attacking they were highly paid, that of course was to play into the emotion of the jury not into the facts of the infringement analyis. That is why I said hopefully TiVo did not think they won the last round because of that argument. If you read the appeals court decision, it should be very clear no emotional elements were paid attention to, such as who was "for hire" and "my daddy was bigger than yours." Only facts shall prevail.





jacmyoung said:


> You brought up the issue of "attack", my point was such "attack" should not work, no matter who started it and who followed, if our legal system is what it supposes to be.


The attacks upon expert witnesses normally play into the emotions of the jury. However, on a factual basis, DISH/SATS did attempt to attack Dr. Gibson in both the jury trial and in the record when appealing, and it failed. TiVo attacked one of the expert witnesses, and the testimony of the witness was thrown out.

There is no use of parading more than one expert witness to give testimony, as this hearing will not play to a jury. This is definitely at the "just the facts" stage.


----------



## jacmyoung

Good to hear you again Greg.


----------



## Mainer_ayah

New docket entry in Texas:
Date Filed #	Docket Text
01/05/2009	880 Emergency SEALED MOTION of Defendants to Amend Scope of Hearing or Continue Hearing Date by Echostar Satellite LLC, Echostar Communications Corporation, Echostar DBS Corporation, Dish Network Corporation, Echosphere Limited Liability Company. (Attachments: # 1 Text of Proposed Order)(Krevans, Rachel) (Entered: 01/05/2009)


----------



## Ergan's Toupe

Mainer_ayah said:


> New docket entry in Texas:
> Date Filed #	Docket Text
> 01/05/2009	880 Emergency SEALED MOTION of Defendants to Amend Scope of Hearing or Continue Hearing Date by Echostar Satellite LLC, Echostar Communications Corporation, Echostar DBS Corporation, Dish Network Corporation, Echosphere Limited Liability Company. (Attachments: # 1 Text of Proposed Order)(Krevans, Rachel) (Entered: 01/05/2009)


Looks like Charlie has another "emergency" issue (sealed of course).

Shocking..... What is he going to appeal if he keeps crying wolf before the hearing has even started?

Poor guy is now officially in full blown panic mode. How long before Folsom tells him to stick it, again?


----------



## Bidderman9

Ergan's Toupe;1947715 said:


> Looks like Charlie has another "emergency" issue (sealed of course).
> 
> Shocking..... What is he going to appeal if he keeps crying wolf before the hearing has even started?
> 
> Poor guy is now officially in full blown panic mode. How long before Folsom tells him to stick it, again?


That is exactly what I was was thinking. Definately looks like he is in panic mode. I think that Charlie thinks the end is near....


----------



## Ergan's Toupe

Bidderman9 said:


> That is exactly what I was was thinking. Definately looks like he is in panic mode. I think that Charlie thinks the end is near....


He is going to this hearing kicking and screaming the whole way.

Charlie isn't showing much faith in that "Herculean" design around, is he? :lol:


----------



## James Long

Wow. A lot of talk about nothing. Imagine what would be said if you guys actually knew what you were talking about.


----------



## jacmyoung

You beat me to it

Being busy discussing the upcoming CES, DirecTV is not even attending this year. Will be interested to see what E* will introduce in terms of their new HD DVRs and new DVR functionalities.

What new DVR gigs will TiVo have at CES this year? Or will they just put up a sign with a big arrow pointing to the E* booth: "By the end of 2009 we will be able to finally shut that new HD DVR off!"


----------



## Bidderman9

jacmyoung said:


> You beat me to it
> 
> Being busy discussing the upcoming CES, DirecTV is not even attending this year. Will be interested to see what E* will introduce in terms of their new HD DVRs and new DVR functionalities.
> 
> What new DVR gigs will TiVo have at CES this year? Or will they just put up a sign with a big arrow pointing to the E* booth: "By the end of 2009 we will be able to finally shut that new HD DVR off!"


Dish is waiting to see TiVo's presentation first. That way they can provide a colorably different presentation.


----------



## jacmyoung

Bidderman9 said:


> Dish is waiting to see TiVo's presentation first. That way they can provide a colorably different presentation.


What if TiVo will have no presentation or its presentation be deficient at CES?

Seriously, I am not surprised E* continues to argue against the current court proceedings, whether it is directed at the court or at TiVo, providing as much ammunition as possible if an appeal will be needed in the future, because the current district court arrangement is an abuse of court discretion, according to the circuit court doctrine.


----------



## kb7oeb

Tivo will probably demo or at least have a mock up of a new DirecTivo, maybe some cable SDV adapters.


----------



## Curtis52

I can't figure out why Dish thinks they need more time. Supposedly they've had their ducks lined up for years. It's not like they need to do a lot of analysis and research like TiVo does.


----------



## Ergan's Toupe

Curtis52 said:


> I can't figure out why Dish thinks they need more time. Supposedly they've had their ducks lined up for years. It's not like they need to do a lot of analysis and research like TiVo does.


I think it's pretty obvious.


----------



## Ergan's Toupe

Bidderman9 said:


> Dish is waiting to see TiVo's presentation first. That way they can provide a colorably different presentation.


Maybe we should start reading Charlie's SEC filings to see what he has in the works for new DVR's. :lol:


----------



## Curtis52

"New Chief Judge - U.S. District Judge David Folsom of Texarkana

Effective January 1, 2009, U.S. District Judge David Folsom of Texarkana has assumed the duties of Chief Judge of the Eastern District of Texas, succeeding Judge Thad Heartfield of Beaumont. Congratulations to Judge Folsom on his new duties and on Judge Heartfield (pictured) on a memorable term. "

link


----------



## James Long

Curtis52 said:


> I can't figure out why Dish thinks they need more time. Supposedly they've had their ducks lined up for years. It's not like they need to do a lot of analysis and research like TiVo does.


What little we know of the sealed filing says "to Amend Scope of Hearing or Continue Hearing Date". It seems that there is just too much happening in one hearing.

If you go back and read what discovery is needed ("everything related to the issue at hand") it is overly broad. It needs to be narrowed down to just what the court needs to understand and decide the issue at hand.


----------



## Ergan's Toupe

James Long said:


> What little we know of the sealed filing says "to Amend Scope of Hearing or Continue Hearing Date". It seems that there is just too much happening in one hearing.


Then why did it take so long to start whining about it? This is nothing but another stalling tactic. Charlie's day in court is coming soon, whether he likes it or not.


----------



## jacmyoung

James Long said:


> What little we know of the sealed filing says "to Amend Scope of Hearing or Continue Hearing Date". It seems that there is just too much happening in one hearing.
> 
> If you go back and read what discovery is needed ("everything related to the issue at hand") it is overly broad. It needs to be narrowed down to just what the court needs to understand and decide the issue at hand.


Or it could be simply to ask the court to scale down the scope of the hearing. After all, both TiVo and E* had only produced a single expert witness each, a large departure from what the judge had ordered, which if one read it from the top to the bottom, asked for a broad range of information, witnesses, documents, and the requests were also vague.

If for example TiVo continues to stick to that four sentences, not adding too much more, why would it be necessary to have two full days of court room hours? Allow the judge to watch two good 1080p movies, one played from a TiVo box, one from a 722, just to kill time?


----------



## Ergan's Toupe

Looks like there is some super top secret trade secrets that Charlie is hiding from us. :lol:

Yea, right! :nono2:


----------



## jacmyoung

Ergan's Toupe;1948819 said:


> Looks like there is some super top secret trade secrets that Charlie is hiding from us. :lol:
> 
> Yea, right! :nono2:


Why not ask TiVo to unseal their few filings recently? What can possibly be any secret on the TiVo's part? How can the four empty sentences be any trade secret?

At least E* is disclosing their new DVR technology and how it has been implemented, which most certainly can contain some trade secrets.


----------



## James Long

Attached is the protective order referred to in the most recent filing that outlines what is and isn't protected.


----------



## jacmyoung

The filing of motions and responses however do not have to be sealed if they do not contain such confidential/protective materials.

If both parties will have to go through the software codes in detail just like they did the last time, and may even have to construct real testing, then the court order may not have given enough time.

By bringing such issue to the attention of the judge may end up prove to him that his infringement analysis order is premature, especially if the judge agrees the court schedule has to be modified and more time, or much more time, is needed.


----------



## jacmyoung

BTW, if anyone can provide a transcript of todays Tom Rogers conference call. I missed the first half hour during which I think this legal case was talked about. My guess is he was using the same line, that he believes the E* design around will not succeed.

He then talked about how the digital transition next month may have a negative impact on their standalone SD DVR churn.

The timeline for the new HD DirecTiVo is now 2010, hopefully.

A question was asked, now that you have won the lawsuit, and pretty much means all other DVR providers infringe too, why is TiVo still holding back on the use of the stick?

While Rogers agreed that E* was a certain win on the infringement case, they have not determined if others also infringe, but if so TiVo will be willing to go after them at all cost.

He totally avoid the question of why wait?

Now that Rogers said they are not saying other DVR providers also infringe on the TiVo's patent, I wonder how he is so certain that the new E* DVR technology will fail? Is he still resting on the "violation on the face" argument?


----------



## HobbyTalk

You would think that at this point they would know if other brands of DVRs infringe. What's it been, 5 years now?


----------



## James Long

They have been busy. Perhaps they will spend the money they get from DISH to investigate and go after others?


----------



## Ergan's Toupe

jacmyoung said:


> A question was asked, now that you have won the lawsuit, and pretty much means all other DVR providers infringe too, why is TiVo still holding back on the use of the stick?
> 
> While Rogers agreed that E* was a certain win on the infringement case, they have not determined if others also infringe, but if so TiVo will be willing to go after them at all cost.
> 
> He totally avoid the question of why wait?


Rogers agreed to nothing of the sort. Only in your little dream world did he say that. Stop making stuff up again. What he said was that as far as he's concerned, E*'s workaround still infringes and they are confident that they can prove it.

He said that they would rather negotiate with content providers, in good faith, on the strength of their product. He said they would litigate as a last resort (unlike Charlie). And is willing to spend whatever it takes to protect TIVO's IP (as he should).

As far as waiting, he said it's their choice not to sign any deals until after the E* litigation runs it's course. Want to take a guess why?

Oh, and Rogers also took a shot at Chuckles and his litigation tactics. Made me laugh.


----------



## Ergan's Toupe

James Long said:


> They have been busy. Perhaps they will spend the money they get from DISH to investigate and go after others?


Rogers didn't rule that out but said he didn't want to take Gemstar's tact of threatening litigation to force people to use their inferior products.

He said he wants to sell TIVO on it's merits of a superior DVR experience and something that TIVO and MSO's can work together on.

He said they are prepared to spend whatever it takes to litigate and protect their IP as a last resort.

He also said (I'm going to paraphrase) that after all the BS that Charlie pulled with the litigation and Charlie's penchant for fighting tooth and nail, the victory is going to make anyone else TIVO decides to sue, a walk in the park.


----------



## Ergan's Toupe

HobbyTalk said:


> You would think that at this point they would know if other brands of DVRs infringe. What's it been, 5 years now?


Oh, they know all right.....


----------



## James Long

Ergan's Toupe;1950329 said:


> He said as a last resort they are prepared to spend whatever it takes to litigate and protect their IP as a last resort.


So he does plan on shutting down TiVo.

Competing on quality is a better path ... this "nobody can make a decent DVR without us" attitude won't last long once any DVR they go after is ruled non-infringing.

The deal for the 2010 DirecTV TiVo is where they should focus. Stay out of court.



> He also said (I'm going to paraphrase) that after all the BS that Charlie pulled with the litigation and Charlie's penchant for fighting tooth and nail, the victory is going to make anyone else TIVO decides to sue, a walk in the park.


Perhaps ... but it will probably be a park that most people would not walk through at night.

Unlicensed receivers found non-infringing is the one thing TiVo MUST avoid.


----------



## jacmyoung

Ergan's Toupe;1950321 said:


> ...He said that they would rather negotiate with content providers, in good faith, on the strength of their product. He said they would litigate as a last resort (unlike Charlie). And is willing to spend whatever it takes to protect TIVO's IP (as he should).
> 
> As far as waiting, he said it's their choice not to sign any deals until after the E* litigation runs it's course. Want to take a guess why?...


First off, when Rogers said he still believes E*'s new software still infringes, it was nothing new, he simply believes the injunction was so broad that no design around would have avoided a contempt, the same old argument.

Secondly, when the question was asked in the audience, the questioner stated that since TiVo had already won the infringement against E*, therefore other DVR providers were all infringing, and it was in that context the questioner wondered why TiVo still is not going after them as well.

Rogers's response was no, TiVo at this time have not determined if the others also infringe. And it is this point of his I used to argue, if the others may not infringe, then why is he so sure this new E* DVR software still infringe?

To me if anything, the new E* software should be less likely to infringe than the other providers' DVR software, because it was designed specifically to avoid infringement. So the question is legit, if TiVo is not certain whether the other providers' DVR software infringe or not, how can be he so sure this new E* DVR software still infringe.

Thirdly, TiVo has no time to wait. Even in the best case scenario that E*'s new software is still infringing, the whole process will take at least another year at a minimum, including the appeals. By the time all is settled, TiVo will have only half of the subs left if they are lucky. TiVo must aggressively go after all the other DVR providers now, not wait for another year, not to mention TiVo can lose the current contempt fight easily too.


----------



## Ergan's Toupe

Folsom wants TIVO to reply..


----------



## jacmyoung

James Long said:


> They have been busy. Perhaps they will spend the money they get from DISH to investigate and go after others?


The win against E* was in my view not an easy one either, the hardware verdicts were reversed, only the software verdicts saved the day. And TiVo knew E* pretty much copied the whole TiVo DVR code back when TiVo foolishly gave E* the full code, even E*'s engineers admitted so in their email, at the time when TiVo's patent was granted. I recall a few email by E* engineers that TiVo obtained basically said, OMG, we were in trouble!

Going after all the other DVR providers will most certainly not going to be as easy since none of them had full access to the TiVo's code, at least not to the extent E* was able to get from TiVo.


----------



## James Long

Ergan's Toupe;1950351 said:


> Folsom wants TIVO to reply..


Either you attached the wrong document or you didn't read it. That is from 2005.


----------



## Ergan's Toupe

James Long said:


> Either you attached the wrong document or you didn't read it. That is from 2005.


DOH!!!

Here we go.


----------



## James Long

Ergan's Toupe;1950379 said:


> Here we go.


No biggie ... (referring to the order). Judge Folsom just wants to deal with the request ASAP.


----------



## jacmyoung

James Long said:


> No biggie ... (referring to the order). Judge Folsom just wants to deal with the request ASAP.


Interesting he wants this done ASAP, even before considering the joint stipulation allowing E* to delay the expert disclosures to 01/13/09.

Today is the deadline for E* to produce their expert disclosures, it should be clear E* will not meet the deadline, yet no response from the judge. Maybe we'll see another order from the judge today.

Unless of course the issue of the 01/07/09 E* deadline is addressed and satisfied in the sealed motion that we do not have access to.


----------



## Ergan's Toupe

jacmyoung said:


> First off, when Rogers said he still believes E*'s new software still infringes, it was nothing new, he simply believes the injunction was so broad that no design around would have avoided a contempt, the same old argument.


That's your opinion. You have no idea what Rogers believes.



> Secondly, when the question was asked in the audience, the questioner stated that since TiVo had already won the infringement against E*, therefore other DVR providers were all infringing, and it was in that context the questioner wondered why TiVo still is not going after them as well.


And Rogers (and I) explained it to you. He wants to sell TiVo on it's merits not force people to buy through litigation. He said he would sue as a last resort. Understand now?



> Rogers's response was no, TiVo at this time have not determined if the others also infringe.


He did not say that. You are making stuff up again.



> And it is this point of his I used to argue, if the others may not infringe, then why is he so sure this new E* DVR software still infringe?


It's his job to have a pretty good idea if it still infringes or not. Since he has been right every time he has had to be, I will take his word over a person on a chat board with a habit of making stuff up to fit his agenda.



> To me if anything, the new E* software should be less likely to infringe than the other providers' DVR software, because it was designed specifically to avoid infringement. So the question is legit, if TiVo is not certain whether the other providers' DVR software infringe or not, how can be he so sure this new E* DVR software still infringe.


Irrelevant. Rogers never said no one else does or does not infringe.



> Thirdly, TiVo has no time to wait. Even in the best case scenario that E*'s new software is still infringing, the whole process will take at least another year at a minimum, including the appeals. By the time all is settled, TiVo will have only half of the subs left if they are lucky. TiVo must aggressively go after all the other DVR providers now, not wait for another year, not to mention TiVo can lose the current contempt fight easily too.


Rogers stated as fact that E* has admitted they are on the hook for a substantial amount of damages either way.

The longer Chuckles stalls, the more those damages will be.


----------



## Ergan's Toupe

James Long said:


> No biggie ... (referring to the order). Judge Folsom just wants to deal with the request ASAP.


Considering the hearing is just about a month away, yea, he should deal with it ASAP.

I'm surprised he gave TIVO 2 days to respond.


----------



## James Long

jacmyoung said:


> Interesting he wants this done ASAP, even before considering the joint stipulation allowing E* to delay the expert disclosures to 01/13/09.


The Order gives TiVo two days ... plenty of time to consider other things (or even go fishing) while waiting for TiVo's response.



> Today is the deadline for E* to produce their expert disclosures, it should be clear E* will not meet the deadline, yet no response from the judge. Maybe we'll see another order from the judge today.


Why should the Judge care? The disclosures go to TiVo ... they don't get them then they can complain to Judge Folsom just like DISH complained about TiVo.



> Unless of course the issue of the 01/07/09 E* deadline is addressed in the sealed motion that we do not have access to.


It would fit the title, somewhat, and since all we know is the title ...


----------



## jacmyoung

James Long said:


> ...Why should the Judge care? The disclosures go to TiVo ... they don't get them then they can complain to Judge Folsom just like DISH complained about TiVo...


Because it should be a piece of cake to grant the joint stipulation so to avoid any possible future dispute on the issue.

The 01/09/09 timing does appear some to do with the 01/13/09 date, in that if TiVo is ordered to respond by 01/09/09, that may give E* enough time to get theirs done by 01/13/09.

I'd like to call it the last chance for TiVo to provide disclosures more than just that four empty sentences


----------



## HobbyTalk

Ergan's Toupe;1950404 said:


> And Rogers (and I) explained it to you. He wants to sell TiVo on it's merits not force people to buy through litigation. He said he would sue as a last resort. Understand now?


I guess my question is TiVo has had 5 years or so to sell TiVo on it's merits but so far has not done so except in a few cases. The majority of DVRs are not running TiVo software. It would seem that 5 years is long enough for this process and it would be in the company's best interest to protect their IP.

IMHO it appears that Tommy Boy is putting all of his eggs in the Dish basket hoping for a grand slam so everyone else will fall in line. Problem with that is if he doesn't get his grand slam the fanchise could be in the league celler.


----------



## James Long

jacmyoung said:


> Because it should be a piece of cake to grant the joint stipulation so to avoid any possible future dispute on the issue.
> 
> The 01/09/09 timing does appear some to do with the 01/13/09 date, in that if TiVo is ordered to respond by 01/09/09, that may give E* enough time to get theirs done by 01/13/09.
> 
> I'd like to call it the last chance for TiVo to provide disclosures in addition to that four empty sentences


I'd like you to ACTUALLY READ THE ORDER.

The order has nothing to do with the disclosure dates ... it has everything to do with DISH's sealed request. Judge Folsom want's TiVo's opinion by Friday so he can deal with DISH's sealed request.


----------



## jacmyoung

HobbyTalk said:


> I guess my question is TiVo has had 5 years or so to sell TiVo on it's merits but so far has not done so except in a few cases. The majority of DVRs are not running TiVo software. It would seem that 5 years is long enough for this process and it would be in the company's best interest to protect their IP.
> 
> IMHO it appears that Tommy Boy is putting all of his eggs in the Dish basket hoping for a grand slam so everyone else will fall in line. Problem with that is if he doesn't get his grand slam the fanchise could be in the league celler.


Because even with very solid evidence, winning that case was not a sure thing. It would be very difficult to duplicate the win going after other providers.

E*'s case was much more obvious, TiVo gave them the full TiVo code, E* engineers admitted they were in trouble when TiVo's patent was granted. None of such appllies to the other providers.


----------



## jacmyoung

James Long said:


> I'd like you to ACTUALLY READ THE ORDER.
> 
> The order has nothing to do with the disclosure dates ... it has everything to do with DISH's sealed request. Judge Folsom want's TiVo's opinion by Friday so he can deal with DISH's sealed request.


I know, since we do not know much about the sealed motion, I can only speculate the timing of those dates. If E* in its sealed motion continues to argue that TiVo failed to provide sufficient disclosures, it certainly would make sense for the judge to order TiVo to respond by 01/09/09, so E* may have enough time to respond by 01/13/09.

All speculations of course.


----------



## Ergan's Toupe

HobbyTalk said:


> I guess my question is TiVo has had 5 years or so to sell TiVo on it's merits but so far has not done so except in a few cases. The majority of DVRs are not running TiVo software. It would seem that 5 years is long enough for this process and it would be in the company's best interest to protect their IP.


Tommy Boy said today that litigation is expensive and he really doesn't want to go that route unless absolutely necessary. He said that he has the top 4 content providers signed to deals and does not want to sign any others until he sees how the E* litigation works out.



HobbyTalk said:


> IMHO it appears that Tommy Boy is putting all of his eggs in the Dish basket hoping for a grand slam so everyone else will fall in line. Problem with that is if he doesn't get his grand slam the fanchise could be in the league celler.


I don't think he has all his eggs in one basket but I agree that a win over DISH makes their IP rock solid and much easier to negotiate favorable terms with other MSO's. He also said that the "war chest" they received from Charlie makes it profitable to go the litigation route if need be.

At this point Tommy Boy might as well wait the month out. Maybe Chuckles comes to his senses and they hammer out some kind of settlement.

Yea, when pigs fly! :lol:


----------



## HobbyTalk

Ergan's Toupe;1950497 said:


> Tommy Boy said today that litigation is expensive and he really doesn't want to go that route unless absolutely necessary. He said that he has the top 4 content providers signed to deals and does not want to sign any others until he sees how the E* litigation works out.


I thought he said that he would win.... what's the holdup?  I haven't taken the time to look up if that is true but if it is it doesn't appear to be baring much fruit since they have lost close to 2 million total subscribers (-800K MSO subscribers) over the past 2 years.


----------



## Bidderman9

James Long said:


> I'd like you to ACTUALLY READ THE ORDER.
> 
> The order has nothing to do with the disclosure dates ... it has everything to do with DISH's sealed request. Judge Folsom want's TiVo's opinion by Friday so he can deal with DISH's sealed request.


I have to agree. I think he is looking for TiVo's response to the sealed request.


----------



## jacmyoung

HobbyTalk said:


> I thought he said that he would win.... what's the holdup?  ...


The holdup is he has yet done anything right to win this round. So far what TiVo said has yet bore any fruit:

1) One week after E* filed the new software patent application, Rogers said in the public the new software still infringed, without even having the chance to have their engineers look at the actual code. And he is still saying the same old today.

2) Infringing products would be infringing products, no matter what E* did to them.

3) E* did not inform the court of the design around, that was enough to get the judge to put the gavel down.

4) It was the DVRs that infringed, software did not matter.

5) E* clearly violated the injunction on the face, that alone should be a contempt.

Oh yes he was right during the last trial alright, but has yet been right once in the contempt proceeding. He has no choice but to wait.

But the investors are anxious, the so called licensing agreements TiVo so far has signed, none of them has helped, while TiVo continues to churn away.

My suggestion? It is not too late to offer Charlie something meaningful to hook up with E*. Something really good so even the stubborn Charlie may see the benefit of a settlement.


----------



## jacmyoung

Bidderman9 said:


> I have to agree. I think he is looking for TiVo's response to the sealed request.


The question is what is in the sealed request.

By simple reading of the title, it appears the request is for modifying the hearing schedule and scope, if so there is no need to force TiVo to respond by 01/09/09, giving them only two days, why not 01/16/09?

But if the sealed request contains E*'s dispute that TiVo's expert disclosures are deficient, then the 01/09/09 date makes total sense, because unless TiVo cures the deficiency by 01/09/09, the 01/13/09 date would be delayed yet again. And if such speculation is correct, it also indicates the Judge agreed with E*'s dispute.

Of course it could be nothing of such above at all, that is why it is speculation.


----------



## scooper

jacmyoung said:


> The holdup is he has yet done anything right to win this round. So far what TiVo said has yet bore any fruit:
> 
> 1) One week after E* filed the new software patent application, Rogers said in the public the new software still infringed, without even having the chance to have their engineers look at the actual code. And he is still saying the same old today.
> 
> 2) Infringing products would be infringing products, no matter what E* did to them.
> 
> 3) E* did not inform the court of the design around, that was enough to get the judge to put the gavel down.
> 
> 4) It was the DVRs that infringed, software did not matter.
> 
> 5) E* clearly violated the injunction on the face, that alone should be a contempt.
> 
> Oh yes he was right during the last trial alright, but has yet been right once in the contempt proceeding. He has no choice but to wait.


I find quite interesting that while they won the initial trial, Tivo has been floundering since.


----------



## HobbyTalk

IMHO, the very survival of TiVo rests on them winning on the new software infringing. Even if they would happen to win, I think that they will be no more then a shell of themselves within a few years. They are bleeding TiVo hardware subscribers at an alarming rate and licensing their software produces very little income&#8230; to note the following analysts report (this is a bit old):

_In a fresh dispatch from Wall Street, for instance, Friedman, Billings, Ramsey & Co. analyst Brian Coyne argues that the Cox pact will generate no more than $3 million in additional annual revenue for TiVo by 2009. "While we recognize the positive aspects of this deal, as it helps ensure the longer-term survival of TiVo's software, we have difficulty seeing how this agreement results in a meaningful new growth opportunity for the company," Coyne writes in a note to investors. Even if all major U.S. MSOs struck similar deals with TiVo, he posts, it would produce no more than $35 million to $40 million in annual revenue for the firm by 2009. _

The above might be optimistic, over the past year TiVo has lost over 400K MSO subs.


----------



## scooper

That does put an interesting spin - 

Even if Tivo completely turns around and wins everything, it's not going to buy them much more than another year or 2 of lifesupport. Even if Echostar completely loses - they will still be around when Tivo is a dead shell.

How much do you think that '389 patent will sell for at auction in 5 years (maybe 3) ?


----------



## dgordo

scooper said:


> That does put an interesting spin -
> 
> Even if Tivo completely turns around and wins everything, it's not going to buy them much more than another year or 2 of lifesupport. Even if Echostar completely loses - they will still be around when Tivo is a dead shell.
> 
> How much do you think that '389 patent will sell for at auction in 5 years (maybe 3) ?


What did directv pay for the replay tv's patents? 15 Million?


----------



## jacmyoung

scooper said:


> That does put an interesting spin -
> 
> Even if Tivo completely turns around and wins everything, it's not going to buy them much more than another year or 2 of lifesupport. Even if Echostar completely loses - they will still be around when Tivo is a dead shell.
> 
> How much do you think that '389 patent will sell for at auction in 5 years (maybe 3) ?


The problem is Rogers has been feeding the public and the investors the notion that TiVo had won the final battle long time ago, and such victory meant it would be easy to prove all other DVR providers likely all infringed, and now TiVo has this pile of money from E*, can and should go after everyone else with ease, especially in light of the fact that no existing licensing agreement seems to work as intended so far, at the same time the digital transition appears will cause even more churn for TiVo's core sub base, the real money cow.

That was why such question was asked during the call: "what was the wait?" The truth however is, TiVo is likely to lose this second round, and if they do, the last win will be a distant memory in a flash.


----------



## HobbyTalk

dgordo said:


> What did directv pay for the replay tv's patents? 15 Million?


Considering that there will be little remaining time left on the TiVo patent and it will be outdated to boot, it may not bring that much. If Echostar's new software is found not to infringe it would be possible for them to license thier software to MSOs at half the price that TiVo is just to put the last nail in their coffin. Sure, at that price it may not make Echostar any money but they have other profitable products to stay in business and it would assure the demise of TiVo. Since Echostar has experence with STBs, they could even offer hardware and software to MSOs, something TiVo hasn't been able to do.

Of course if Tommy Boy's actions causes TiVo to fail I am sure he will give himself a nice exit bonus like he did with Primedia.


----------



## jacmyoung

HobbyTalk said:


> ...Of course if Tommy Boy's actions causes TiVo to fail I am sure he will give himself a nice exit bonus like he did with Primedia.


Not a sure bet anymore in the current environment.


----------



## Ergan's Toupe

HobbyTalk said:


> Considering that there will be little remaining time left on the TiVo patent and it will be outdated to boot, it may not bring that much. If Echostar's new software is found not to infringe it would be possible for them to license thier software to MSOs at half the price that TiVo is just to put the last nail in their coffin. Sure, at that price it may not make Echostar any money but they have other profitable products to stay in business and it would assure the demise of TiVo. Since Echostar has experence with STBs, they could even offer hardware and software to MSOs, something TiVo hasn't been able to do.
> 
> Of course if Tommy Boy's actions causes TiVo to fail I am sure he will give himself a nice exit bonus like he did with Primedia.


This should clear up most of your questions.

http://www.hollywoodreporter.com/hr/content_display/news/e3i41ac0111ebdf301070ed639e62ba4777


----------



## Ergan's Toupe

scooper said:


> That does put an interesting spin -
> 
> Even if Tivo completely turns around and wins everything, it's not going to buy them much more than another year or 2 of lifesupport.


You do realize that Tivo has zero debt and almost 200 million in cash, don't you?



scooper said:


> Even if Echostar completely loses - they will still be around when Tivo is a dead shell.


DISH stock was down 74% for the year. I wouldn't get to cocky if I were you.



scooper said:


> How much do you think that '389 patent will sell for at auction in 5 years (maybe 3) ?


I would guess more than you think after they're awarded some more of Charlies money.

How long do you think it will be before DTV kicks Charlie to the curb after they buy him out for 15 dollars a share?


----------



## Ergan's Toupe

HobbyTalk said:


> I thought he said that he would win.... what's the holdup?


Charlie keeps stalling, that's the "holdup" :lol:



HobbyTalk said:


> I haven't taken the time to look up if that is true but if it is it doesn't appear to be baring much fruit since they have lost close to 2 million total subscribers (-800K MSO subscribers) over the past 2 years.


Speaking of bleeding subs, have you looked at Charlie's last 2 quarters? Maybe he should spend a little less time in litigation and a little more time trying to stop the bleeding?

Just saying....


----------



## jacmyoung

Ergan's Toupe;1951112 said:


> This should clear up most of your questions.
> 
> http://www.hollywoodreporter.com/hr/content_display/news/e3i41ac0111ebdf301070ed639e62ba4777


Yes, the summary above proves TiVo's entire future is hinged on the outcome of this contempt proceeding. Except Rogers never wanted to mention that he has failed in this proceeding every step of the way so far.

E*'s future however is much less dependent on it.


----------



## jacmyoung

Ergan's Toupe;1951184 said:


> Charlie keeps stalling, that's the "holdup" :lol:


It is now Rogers who needs to stall and keep the contempt proceeding alive to continue to feed the misconception that TiVo would win. If the judge decides he would rule today, TiVo is done with that four empty sentences.

Charlie on the other hand has been urging the court to rule on contempt time after time since 9/4/08.



> Speaking of bleeding subs, have you looked at Charlie's last 2 quarters? Maybe he should spend a little less time in litigation and a little more time trying to stop the bleeding?
> 
> Just saying....


What about TiVo? They have lost what 40% of the subs (E* lost a total of 0.13%) so far? What is the wait?

Charlie just unveiled the new 922 HD DVR, the most impressive thing at the CES as far as HD DVR technology goes. Not only is he moving forward, it also shows he is confident he will win this final fight, otherwise you would think he might want to wait to see the outcome of the lawsuit before the next DVR move, just like what Rogers is saying


----------



## scooper

Ergan's Toupe;1951173 said:


> You do realize that Tivo has zero debt and almost 200 million in cash, don't you?


Just how far will that go ? Like I said - couple years of life support



Ergan's Toupe;1951173 said:


> DISH stock was down 74% for the year. I wouldn't get to cocky if I were you.


Echostar started at the same point Tivo did and until the recent downturn, was actually PROFITABLE (even faster than Direct Tv). I'm not worried about Echostar's survival.



Ergan's Toupe;1951173 said:


> I would guess more than you think after they're awarded some more of Charlies money.
> 
> How long do you think it will be before DTV kicks Charlie to the curb after they buy him out for 15 dollars a share?


Assuming they get any more money. And who's this DTV you're referring to ? In my world, DTV means Digital Television.

If you mean Dish Network / Echostar - ain't happening - Charlie, his wife, and Jim deFranco (Executive VP and his original partner) control 90%+ of the voting stock.


----------



## Ergan's Toupe

scooper said:


> Just how far will that go ? Like I said - couple years of life support


I've been hearing that for years now. Bottom line is TIVO is in better shape today than they have ever been, thanks to Chuckles. Tivo will post a profit this year (first time ever) and with no debt and 200 million in cash it's safe to say they're not going out of business. Thanks for your concern though....



scooper said:


> Echostar started at the same point Tivo did and until the recent downturn, was actually PROFITABLE (even faster than Direct Tv). I'm not worried about Echostar's survival.


Key word is *WAS* profitable. My point is Tivo is profitable and DISH is dropping like a rock. Not that either company is in danger of going under, but if I where you, I would worry more about DISH than TIVO. How much did Chuckles turn down from AT&T? $40 a share? How is that working out?



scooper said:


> Assuming they get any more money.


Since Charlie has already admitted to owing a minimum of 16M more, I'd say it's a safe assumption that Tivo is going to get even more of Charlie's money. :lol:



scooper said:


> And who's this DTV you're referring to ? In my world, DTV means Digital Television.


You're kidding right? How's this: DTV = Direct TV. Is that good enough, or do I have to spell "television" too?



scooper said:


> If you mean Dish Network / Echostar - ain't happening - Charlie, his wife, and Jim deFranco (Executive VP and his original partner) control 90%+ of the voting stock.


We've gone over this already. They don't own 90% of the float.


----------



## scooper

Ergan's Toupe;1951332 said:


> I've been hearing that for years now. Bottom line is TIVO is in better shape today than they have ever been, thanks to Chuckles. Tivo will post a profit this year (first time ever) and with no debt and 200 million in cash it's safe to say they're not going out of business. Thanks for your concern though....
> 
> Key word is *WAS* profitable. My point is Tivo is profitable and DISH is dropping like a rock. Not that either company is in danger of going under, but if I where you, I would worry more about DISH than TIVO. How much did Chuckles turn down from AT&T? $40 a share? How is that working out?
> 
> Since Charlie has already admitted to owing a minimum of 16M more, I'd say it's a safe assumption that Tivo is going to get even more of Charlie's money. :lol:
> 
> You're kidding right? How's this: DTV = Direct TV. Is that good enough, or do I have to spell "television" too?
> 
> We've gone over this already. They don't own 90% of the float.


If it hadn't been for that $100 million - Tivo would STILL be looking for that first year of profitablitiy.

As I said - I expect Echostar/Dish to stay in business long after Tivo is a footnote in history

Did you REALLY think Charles would sell Echostar / Dish to AT&T ?

Direct TV ? If you're talking merger - ain't going to happen - been tried already and was rejected by the government. If you're talking sales / profitablility - well - I believe I ALREADY pointed out that Echostar was profitable BEFORE Direct TV when Direct had a couple years head start. I don't expect Direct TV to be profitable for the next couple years either, nor any cable company - I expect most of them will be struggling to keep their heads above water and keep the doors open

90% of the VOTING stock = effective control. The "float" can't do anything without support of the VOTING control.


----------



## James Long

Ergan's Toupe;1951184 said:


> Speaking of bleeding subs, have you looked at Charlie's last 2 quarters? Maybe he should spend a little less time in litigation and a little more time trying to stop the bleeding?


Perhaps you need to look at the figures ... 0.1 % net loss for DISH? It is only a flesh wound.

Charlie is concentrating on what he needs to do to keep Echostar and DISH Network going. Perhaps you missed the press release for the 922 due out THIS SPRING? The next DirecTV TiVo was due out 2nd half 2009 and has been pushed back to 2010. Which company is doing better?

By the time the courts get around to figuring out if DISH's 2nd generation DVR technology (as modified) infringes DISH will have their 4th generation technology in the marketplace. DISH will win by staying ahead of the game.

And no, this isn't an issue of making serial adjustments and continuously claiming a modified product to skirt patent law. This is an issue of completely different products replacing old products in a product development cycle that beats the speed of the court cycle.

Charlie's is doing fine.


----------



## Ergan's Toupe

James Long said:


> Perhaps you need to look at the figures ... 0.1 % net loss for DISH? It is only a flesh wound.


 The OP was kind enough to point out that TIVO is losing subs, I was kind enough to point out the same can be saId for DISH.



James Long said:


> Charlie is concentrating on what he needs to do to keep Echostar and DISH Network going.


More lititgation? 



James Long said:


> Perhaps you missed the press release for the 922 due out THIS SPRING? The next DirecTV TiVo was due out 2nd half 2009 and has been pushed back to 2010. Which company is doing better?


Who said the DTivo was pushed back to 2010? Now your making stuff up, too?



James Long said:


> By the time the courts get around to figuring out if DISH's 2nd generation DVR technology (as modified) infringes DISH will have their 4th generation technology in the marketplace. DISH will win by staying ahead of the game.


We shall see about that. Last I checked, Folsom hasn't ruled either way. Chances are if the 2nd generation infringes, so does the 4th. Just more money for TIVO.



James Long said:


> And no, this isn't an issue of making serial adjustments and continuously claiming a modified product to skirt patent law.


Yea, who would stoop to that level. 



James Long said:


> This is an issue of completely different products replacing old products in a product development cycle that beats the speed of the court cycle.


I guess I should start reading Charlies SEC filings to see what other DVR changes are in the works, huh? :grin:



James Long said:


> Charlie's is doing fine.


Indeed...


----------



## James Long

Ergan's Toupe;1951460 said:


> The OP was kind enough to point out that TIVO is losing subs, I was kind enough to point out the same can be saId for DISH.


There is a difference in scale.



> Who said the DTivo was pushed back to 2010? Now your making stuff up, too?


Read more - post less. There is more on this site than just this thread. And keep your snide accusations to yourself.



> We shall see about that. Last I checked, Folsom hasn't ruled either way. Chances are if the 2nd generation infringes, so does the 4th. Just more money for TIVO.


Eventually ... if they ever prove they infringe and make it through the five year per generation court process.


----------



## Ergan's Toupe

James Long said:


> Read more - post less. There is more on this site than just this thread. And keep your snide accusations to yourself.


Where did you hear that the DTivo is delayed until 2010?

I spoke with TIVO's IR today and they told me they are still on schedule for a mid 2009 release.


----------



## Curtis0620

Ergan's Toupe;1951493 said:


> Where did you hear that the DTivo is delayed until 2010?
> 
> I spoke with TIVO's IR today and they told me they are still on schedule for a mid 2009 release.


They think that Directv is doing the development of this.

Here's a newsflash: TIVO IS DOING THE DEVELOPMENT OF THIS DVR.


----------



## jacmyoung

Ergan's Toupe;1951493 said:


> Where did you hear that the DTivo is delayed until 2010?
> 
> I spoke with TIVO's IR today and they told me they are still on schedule for a mid 2009 release.


Go back read what Rogers said yesterday, he said "hopefully" the situation will improve when the new DirecTiVo comes out next year.

There is also discussion in the TiVo community forums that it is pushed back to 2010.

There is also the fact since the initial press release 6 months ago, DirecTV has not metioned the word "TiVo" even once, in their last three or four investors' conference calls and quarterly report.


----------



## HobbyTalk

Ergan's Toupe;1951493 said:


> Where did you hear that the DTivo is delayed until 2010?
> 
> I spoke with TIVO's IR today and they told me they are still on schedule for a mid 2009 release.


Just goes to show you that the TiVo IR knows about as much as the DirecTV CSR :lol:


----------



## Ergan's Toupe

jacmyoung said:


> Go back read what Rogers said yesterday, he said "hopefully" the situation will improve when the new DirecTiVo comes out next year.
> 
> There is also discussion in the TiVo community forums that it is pushed back to 2010.


Are you saying that TIVO's IR lied to me? :eek2:

Or do you think Rogers mis-spoke when he said "next year"?

PS: Your agenda is pretty obvious....


----------



## HobbyTalk

Ergan's Toupe;1951603 said:


> Are you saying that TIVO's IR lied to me? :eek2:
> 
> Or do you think Rogers mis-spoke when he said "next year"?
> 
> PS: Your agenda is pretty obvious....


LOL, you are tooooo funny, talk about the pot calling the kettle black LOL

Take your pick of line one or two above. Since Tommy Boy never tells stories you can draw your own conclusion.... if that's possible


----------



## Curtis0620

Ergan's Toupe;1951599 said:


> Who thinks DTV is doing the development?


The people who are saying that the Directv cutback in development projects will delay the new DirecTiVo.


----------



## HobbyTalk

Ahhhh, so I may have not been too far off, could be the TiVo killer's first appearance. From EngadgetHD and CNN:

*Echostar to announce SlingLoaded tru2way box this spring*

_Not sure why Echostar had this hidden little gem at the bottom of its Sling press release yesterday, but apparently Echostar intends to leverage its technology from the ViP 922 DuoDVR to produce a tru2way DVR for the cable industry that will not only bring DISH Networks' DVR software to cable subscribers, but will also be SlingLoaded. We sure wish we had more to share with you, but we'll all have to wait together until the spring when Echostar is ready to announce the full plans to trial this box._

_EchoStar will also leverage the features of the 922 by announcing this spring a tru2way SlingLoaded STB for trials for the cable industry. _


----------



## jacmyoung

Curtis0620 said:


> The people who are saying that the Directv cutback in development projects will delay the new DirecTiVo.


Just like the old DirecTiVo, the new DirecTiVo would be a major capital project for DirecTV not for TiVo. DirecTV would be the one who would manufacture the boxes and subsidizing it to the new subs and old.


----------



## Ergan's Toupe

HobbyTalk said:


> _Not sure why Echostar had this hidden little gem at the bottom of its Sling press release yesterday,_


_

Probably because they know it infringes TIVO's patent and couldn't hide it in a SEC filing. :lol:



HobbyTalk said:



but apparently Echostar intends to leverage its technology from the ViP 922 DuoDVR to produce a tru2way DVR for the cable industry that will not only bring DISH Networks' DVR software to cable subscribers, but will also be SlingLoaded. We sure wish we had more to share with you, but we'll all have to wait together until the spring when Echostar is ready to announce the full plans to trial this box.

Click to expand...

Yea, I'm sure the Cable company's are lining up to do business with a convicted infringer who loves to litigate. :lol:_


----------



## jacmyoung

Ergan's Toupe;1951682 said:


> Probably because they know it infringes TIVO's patent and couldn't hide it in a SEC filing. :lol:
> 
> Yea, I'm sure the Cable company's are lining up to do business with a convicted infringer who loves to litigate. :lol:


His point was Charlie will not just stop at winning the current contempt case, but will try to take cable market away from TiVo where TiVo's standalones are relying on right now.

Charlie has made it clear E* will be willing to add the cable QAM capability into his 922c box, and if he does so, then lease it out to his subs, old and new, you can imagine where many TiVo subs may go.


----------



## HobbyTalk

Ergan's Toupe;1951682 said:


> Yea, I'm sure the Cable company's are lining up to do business with a convicted infringer who loves to litigate. :lol:


If the new software is found to not infringe it won't matter to cable companies. What matters to them is if the product will offer something unique to their customers and a price point that allows them to make more money. All TiVo can offer them is some outdated software that has to be integrated into another 3rd party's hardware that can years to implement. Dish will be able to offer a much simpler single supplier solution that is ready use.


----------



## CuriousMark

jacmyoung said:


> Just like the old DirecTiVo, the new DirecTiVo would be a major capital project for DirecTV not for TiVo. DirecTV would be the one who would manufacture the boxes and subsidizing it to the new subs and old.


Well, since DirecTV is reported to be using an existing hardware design for the new box, that argument doesn't hold much water. Rogers did say that it won't be a satellite download though. Mid 2009 still seems possible if it is a software and operating system port onto existing hardware.


----------



## Ergan's Toupe

HobbyTalk said:


> If the new software is found to not infringe it won't matter to cable companies. What matters to them is if the product will offer something unique to their customers and a price point that allows them to make more money. All TiVo can offer them is some outdated software that has to be integrated into another 3rd party's hardware that can years to implement. Dish will be able to offer a much simpler single supplier solution that is ready use.


How many boxes has Chuckles sold to non DISH subs?


----------



## jacmyoung

CuriousMark said:


> Well, since DirecTV is reported to be using an existing hardware design for the new box, that argument doesn't hold much water. Rogers did say that it won't be a satellite download though. Mid 2009 still seems possible if it is a software and operating system port onto existing hardware.


Of course every new DVR is built on the previous design with many new things added. That does not change the fact that DirecTV will be the one to bear the full cost of the manufacturing and subsidizing the new box.

So yes, it is a significant capital project for DirecTV and DirecTV has not uttered a word of it since the initial press release 6 months ago.


----------



## HobbyTalk

Ergan's Toupe;1951831 said:


> How many boxes has Chuckles sold to non DISH subs?


Echostar has sold many thousands of STB to non-Dish subscribers.


----------



## James Long

*----------------------------------------------------------------------------*
Consider the line drawn.

One more reminder that this is a thread about the TiVo vs EchoStar court case.
This is not a thread about all things TiVo or all things EchoStar.
This is not a chat room. This is not usenet.

This being DBSTalk we ask that you have some respect in your posts. This is not a place for name calling ... and that applies even to people who are not members. "Chuckles" and "Tommy Boy" are demeaning terms. Please show some respect for others, regardless of their position.

Stick with the case at hand ... don't drift. Otherwise this will become a read only thread for court postings until February (or whenever the case is next heard).

Thanks in advance for your cooperation.


----------



## Ergan's Toupe

Nothing important. Just an application for an ECHO laywer to appear Pro Hac Vice.


----------



## jacmyoung

> [Charles] represented EchoStar Communications Corporation as respondent in a patent infringement trial before the ITC (International Trade Commision), in which the Administrative Law Judge found all patents not infringed and one patent invalid and unenforceable.


I wonder which case was that, I was thinking the Forgent case but it does not appear so:



> The Douglas County-based satellite- TV provider said Friday that it prevailed in a patent-infringement case filed by Forgent Network Inc. EchoStar said it won $90,000 in court costs after a Texas appellate judge upheld a jury verdict last spring that Forgent's patent claims were invalid.


Interestingly in the same article regarding TiVo v. E*:



> The company has recorded a reserve of $94 million for the litigation and said that amount would increase by $35 million this year if the verdict against EchoStar is upheld.


That seems to indicate E* back in 2007 projected to pay as much as $35 million additional damages during the stay of the injunction while the design around was underway. Maybe the design around had been completed sooner than they expected.

http://www.rockymountainnews.com/drmn/tech/article/0,2777,DRMN_23910_5668541,00.html


----------



## Curtis52

TiVo has filed a response.


----------



## James Long

Curtis52 said:


> TiVo has filed a response.


Good! Just what Judge Folsom ordered.


----------



## Curtis52

TiVo (ouch):


> "Indeed, it is telling that EchoStar has waited so long to seek a longer hearing, counting perhaps on the possibility that at this late date, the Court would not be able to accommodate a longer hearing in mid-February."


----------



## Curtis52

TiVo filing:

"III. CONCLUSION 
EchoStar has already managed to delay the enforcement of the Court's injunction, 
and extend its continued infringement, for almost three years after the jury's verdict, and almost a year after that verdict was upheld on appeal and the stay of the injunction was lifted. As discussed above, there is no reason for the Court to reverse its prior ruling and further delay hearing the issue of infringement in contempt of the injunction. However, the harm to TiVo of such delay would be great. EchoStar's motion should be denied. "


----------



## jacmyoung

TiVo clearly still has only one thing on E*, that the E* DVRs still “parse”. That alone will never be successful. From TiVo’s this most recent filing, it seems clear with the disclosures E* had given to TiVo two weeks ago, presumably including the full new software code, TiVo found nothing new to strengthen their argument, still relying on “the DVRs still parse”, not even after TiVo’s expert disclosures after reviewing the evidence.

It is because of that E* is now arguing that TiVo is attempting to change the patent claim limitations. That is a legal issue needs to be addressed, that is, the court must decide whether E*’s DVRs can be infringing on TiVo’s patent merely because they still analyze the data. Because that is the argument and the only argument TiVo has now.

While I do not believe E*’s motion for the delay will be granted, the current exchange does point to their strategy, that is to accuse TiVo of changing the patent claim limitations. I don’t know if Judge Folsom will be impressed by such approach, maybe, maybe not, but I have no problem E* tried that.

If Judge Folsom has any recollection of what the TiVo's patent limitations were, he should be ready to throw out TiVo's argument already.


----------



## jacmyoung

Curtis52 said:


> TiVo filing:
> 
> "III. CONCLUSION
> EchoStar has already managed to delay the enforcement of the Court's injunction,
> and extend its continued infringement, for almost three years after the jury's verdict, and almost a year after that verdict was upheld on appeal and the stay of the injunction was lifted. As discussed above, there is no reason for the Court to reverse its prior ruling and further delay hearing the issue of infringement in contempt of the injunction. However, the harm to TiVo of such delay would be great. EchoStar's motion should be denied. "


Noticed all the colorful accusations by Tivo in the past 8 months none worked for them and yet TiVo still is repeating the same old hoping maybe they say it these many times the judge will finally give in.

Did TiVo think even for a moment why Judge Folsom went to such trouble to order a lengthy hearing? Just so he can hear TiVo telling him this single empty sentence: "The E* DVRs still parse?"


----------



## James Long

DISH will file will a reply to the response to the motion ... probably not tonight ...


----------



## jacmyoung

James Long said:


> DISH will file will a reply to the response to the motion ... probably not tonight ...


And probably no need to be under seal this time


----------



## James Long

jacmyoung said:


> And probably no need to be under seal this time


It depends on what they quote.


----------



## tracyball

Did TiVo think even for a moment why Judge Folsom went to such trouble to order a lengthy hearing? Just so he can hear TiVo telling him this single empty sentence: "The E* DVRs still parse?"[/QUOTE]

<<Huber v. Marine Midland Bank, 51 F.3d 5, 10 (2d Cir. 1995) (Where violation of an
injunction is established, the contemnor bears the burden of proving why it should not be
liable for failing to obey the court's order)>>


----------



## jacmyoung

tracyball said:


> Did TiVo think even for a moment why Judge Folsom went to such trouble to order a lengthy hearing? Just so he can hear TiVo telling him this single empty sentence: "The E* DVRs still parse?"


<<Huber v. Marine Midland Bank, 51 F.3d 5, 10 (2d Cir. 1995) (Where violation of an
injunction is established, the contemnor bears the burden of proving why it should not be
liable for failing to obey the court's order)>>[/QUOTE]

Yeah as if TiVo has already established the violation and E* is already a "contemnor". May I suggest TiVo first prove a violation, before quoting a case law where the violation had already been established and the issue was then what would be the liability or damages?

Where a violation is not yet proven, the patentee bears the burden of proof with clear and convincing evidence that there is a violation. First thing first please.


----------



## dgordo

Mainer has the full doc on his site if anyone wants to read it:

http://www.southernme.com/DAVY_v_GOLIATH/

tivo_response
884


----------



## peak_reception

Lord help me I just slogged through it. :nono2: Deja-vu all over again. Haven't we all read this before? I feel like I've read the same dense prose, the same arguements, many times before. Because I have! 

Judge Folsom isn't going to grant Echo's motion or he would have done so the first time around. TiVo counsel's reply is the usual ink spill overkill arguing about the whole case when so much less is necessary to repel the motion. 

Echo's counsel sure knows how to yank TiVo counsel's chain it seems to me. Not as a primary goal but they must enjoy it on some level. It reminds me of Bugs Bunny and Elmer Fudd. No matter how mad Elmer gets, or how many times he blasts away with his shotgun, Bugs remains serenely out of reach, enjoying the spectacle: 

"Why You Wascilly Wabbit!!" "BLAM BLAM BLAM" "What's Up Doc?" 

Of course Echo's strategy is to drag everything out as long as possible. It gives them more time to phase out the Infringing Products and has other benefits too. TiVo does point this out which is good, but then all the rest they pile around it is just their usual filing bloat. 

Echo isn't expecting the Judge to grant the delay in this latest motion. IMHO, it's basically just laying groundwork that they are protesting how things are proceeding in order to buttress their eventual appeal. Not the dire, urgent threat to February's hearing that Tivo seems to make of it. Yes it needs to be repelled, but in proportion to the minimal threat it poses. imo.


----------



## Ergan's Toupe

"What could be motivating EchoStar's serial "emergencies" seeking to avoid litigation of the very issues that EchoStar contends must be decided? Has EchoStar no faith in its current alleged design around? Is it planning another software download to try to stay perpetually one step ahead of any enforcement of the injunction? Is it going to file yet another writ petition or another lawsuit in another jurisdiction to seek to further undermine this Court's authority? The currently scheduled February hearing will take place almost three years after the jury verdict and almost a year after that verdict was upheld on appeal and the stay of the injunction was lifted. EchoStar has had more than enough time to prepare for this hearing. No further delay is justified." 

I think that says it all right there. Charlie is desperate. The fact that he's more worried about setting up an appeal speaks volumes of what he thinks of his "Herculean" design around.

Oh, and if all Tivo is going to argue is that PID filtering is parsing (which it is, even one of DISH's expert witnesses admitted it was), why the constant stall tactics? One would think Charlie would want to slap Tivo down tomorrow, and save some legal fees, never mind dragging this out till June.


----------



## Ergan's Toupe

"EchoStar further took advantage of the stay to make the minor changes to its 
software that are the subject of the February hearing, without informing the Court of these changes until after EchoStar lost its appeal and the stay of injunction was lifted. Given an additional four months, EchoStar might seek to vitiate the present proceedings by making further trivial modifications to the infringing products, raising new issues of colorable difference and further depriving TiVo of long-delayed effective injunctive relief. EchoStar should be granted no such further delay."

I hope Folsom is reading Charlie's SEC filings. :lol:


----------



## jacmyoung

peak_reception said:


> ...Echo isn't expecting the Judge to grant the delay in this latest motion. IMHO, it's basically just laying groundwork that they are protesting how things are proceeding in order to buttress their eventual appeal. Not the dire, urgent threat to February's hearing that Tivo seems to make of it. Yes it needs to be repelled, but in proportion to the minimal threat it poses. imo.


I have speculated such from the previous E*'s motions, but this one goes much further IMHO.

To this point the judge has not looked at anything new, he was planning to do that on and after the hearing for the most part. E* was trying to find a way to force him to read all the new disclosures by both E* and TiVo.

To do so E* needs such motion to argue that there are just so many things on the plate from E*, and the fact TiVo is trying to change the patent claim limitations, much more time is needed and a much bigger hearing, or two hearings are needed to resolve such issues. While the request, as TiVo correctly argued, has little merit, but the judge's job is to look at such merit, no matter how little it is, then make the decision.

Therefore Judge Folsom has to look at the new evidence now, not wait till a month from now. The hope is of course after he looks at the new evidence, and realizes TiVo is still saying the very same old, then maybe, just maybe, he would feel he had enough to rule.

Because E* had been arguing over and over, the judge had enough to rule already. Only that E* had not been able to convince the judge that yet, but before the judge never had a chance to look at the new evidence, now the new evidence is available, and if E* succeeds in forcing him to look at them now, he might say hey I am ready to rule, there is no reason to waste the court economy if all TiVo will say is, E*'s DVRs still parse.

It is worth the try certainly.


----------



## Bidderman9

However, do you risk alienating the Judge with repeated long shot emergency motions?


----------



## jacmyoung

Bidderman9 said:


> However, do you risk alienating the Judge with repeated long shot emergency motions?


If this is the concern, the damage was already done, like three years ago Besides, like peak_reception said, another reason is to lay the ground work for appeal, if E* succeeds in annoying the judge to the point the judge loses his cool and make the ruling without been careful, it will be more chance for E* to win on appeal.

I am reminded of one of the cases I cited that involved a food processing patent infringement, in which the court ruled the infringer not in contempt after they modified the egg processing procedure, the argument by Greg Bimson at the time was, the reason the infringer was not in contempt in that case was they filed "a series of motions" repeatedly trying to explain to the court how they modified the process.

Now E* has similarly filed "a series of motions".


----------



## Ergan's Toupe

jacmyoung said:


> If this is the concern, the damage was already done, like three years ago Besides, like peak_reception said, another reason is to lay the ground work for appeal, if E* succeeds in annoying the judge to the point the judge loses his cool and make the ruling without been careful, it will be more chance for E* to win on appeal.


So you think Charlie's master plan should be to anger the judge into making a mistake so after losing the case Charlie will have a strong chance to win an appeal?

I guess you don't have much faith in that "Herculean" design around either.


----------



## jacmyoung

Ergan's Toupe;1954916 said:


> So you think Charlie's master plan should be to anger the judge into making a mistake so after losing the case Charlie will have a strong chance to win an appeal?
> 
> I guess you don't have much faith in that "Herculean" design around either.


You seem to still have trouble understanding the "on alternative" argument, when one accepts his opponent's premise (which he does not agree) and still manages to prove his opponent wrong.

No I do not believe the many motions will "alienate" the judge, as long as what E* is doing is legal, the judge should not be "alienated".

BTW, I also find an interesting quote from our own "Shadow" that may answer a question we touched on a while ago:



Stuart Sweet said:


> The biggest news for me at CES was "no comment."
> 
> I visited the Logitech meeting rooms, and there was no representative available to talk about their remote lines. This was in stark contrast to the UEI and Acoustic Research booths. I guess I know which companies are interested in growth.
> 
> Also in the meeting rooms, TiVo, who had "no comment" about any future projects with DIRECTV.


----------



## Ergan's Toupe

jacmyoung said:


> No I do not believe the many motions will "alienate" the judge, as long as what E* is doing is legal, the judge should not be "alienated".


"Besides, like peak_reception said, another reason is to lay the ground work for appeal, if E* succeeds in annoying the judge to the point the judge loses his cool and make the ruling without been careful, it will be more chance for E* to win on appeal."


----------



## jacmyoung

Ergan's Toupe;1954932 said:


> "Besides, like peak_reception said, another reason is to lay the ground work for appeal, if E* succeeds in annoying the judge to the point the judge loses his cool and make the ruling without been careful, it will be more chance for E* to win on appeal."


Again I personally do not believe E* is trying to annoy the judge, I only accepted his false premise as true, trying to prove that he was still wrong about his conclusion.

The "on alternative" concept is a difficult one, which is why lawyers do not use such tactic in front of a jury, but it is widely used among the lawyers and the judges, next time you read the judge's rulings or court filings, pay attention to the term "on alternative".

I wonder if you noticed in the most recent TiVo's filing TiVo lawyers used this term.


----------



## Ergan's Toupe

Charlie has his lawyers working Sunday. Sealed, of course.....

Filed & Entered: 01/11/2009
Sealed Reply to Response to Motion
Docket Text: SEALED REPLY to Response to Motion re [880] Emergency SEALED MOTION of Defendants to Amend Scope of Hearing or Continue Hearing Date filed by Dish Network Corporation, Echostar Satellite LLC, Echostar Communications Corporation, Echostar DBS Corporation, Echosphere Limited Liability Company. (Attachments: # (1) Exhibit A)(Krevans, Rachel)


----------



## jacmyoung

Krevans, Rachel: http://www.mofo.com/attorneys/295/biography.html

Judging from the kind of high fee lawyers Charlie is willing to pay and not in any way shy about piling on their hours and hours to do the motions after motions, you can forget about Charlie giving in and settle until the judge rules E* is not in contempt.


----------



## Ergan's Toupe

jacmyoung said:


> Krevans, Rachel: http://www.mofo.com/attorneys/295/biography.html
> 
> Judging from the kind of high fee lawyers Charlie is willing to pay and not in any way shy about piling on their hours and hours to do the motions after motions, you can forget about Charlie giving in and settle until the judge rules E* is not in contempt.


What would Charlie settle for if Folsom is going to find E* not in contempt?


----------



## jacmyoung

Ergan's Toupe;1956437 said:


> What would Charlie settle for if Folsom is going to find E* not in contempt?


He still must pay TiVo $16 to $35 million damages?

Not saying he will settle, he might just pay it and then happy to see TiVo die a painful death, or he could want to save that money, give TiVo something to brag about together, which happens to be something I like to see.


----------



## Ergan's Toupe

jacmyoung said:


> He still must pay TiVo $16 to $35 million damages?
> 
> Not saying he will settle, .....


"you can forget about Charlie giving in and settle until the judge rules E* is not in contempt."


----------



## jacmyoung

Ergan's Toupe;1956657 said:


> "you can forget about Charlie giving in and settle until the judge rules E* is not in contempt."


Sigh!

You can forget about Charlie settling *before* he first gets the judge to make that no contempt ruling for him, that is not the same as saying he will settle after a no contempt.


----------



## Ergan's Toupe

jacmyoung said:


> He still must pay TiVo $16 to $35 million damages?
> 
> Not saying he will settle, he might just pay it and then happy to see TiVo die a painful death,


Then why does he keep trying to stall the hearing? One would think he would want to end this today.

Unless.....


----------



## Ergan's Toupe

jacmyoung said:


> Sigh!
> 
> You can forget about Charlie settling *before* he first gets the judge to make that no contempt ruling for him....


You seem to be a lot more confident than Charlie.


----------



## jacmyoung

Ergan's Toupe;1956688 said:


> ...One would think he would want to end this today...


If you have read my previous posts, that is exactly why I speculated he continues to file motion after motion, to force the judge to read the new disclosures by both E* and TiVo, rather wait till a month from now.

The hope is if the judge does so, he would finally see the light and rule a no contempt now, saving his court economy.

I don't think Charlie is holding his breadth for it to happen, but it is certainly worth the try.


----------



## Ergan's Toupe

jacmyoung said:


> The hope is if the judge does so, he would finally see the light and rule a no contempt now, saving his court economy.


Looks a like desperate attempt to stall to me. I guess we'll have to agree to disagree.


----------



## Bidderman9

I vote for a stall tactic with a side of despiration.


----------



## James Long

jacmyoung said:


> If you have read my previous posts, that is exactly why I speculated he continues to file motion after motion, to force the judge to read the new disclosures by both E* and TiVo, rather wait till a month from now.


Judge Folsom will not be making a decision on contempt until after the February 17-18th hearing ... assuming there is one (DISH has filed to delay that hearing). How does DISH's request for a delay fit into your theory that they want to get this done with ASAP?


----------



## Ergan's Toupe

James Long said:


> Judge Folsom will not be making a decision on contempt until after the February 17-18th hearing ... assuming there is one (DISH has filed to delay that hearing). How does DISH's request for a delay fit into your theory that they want to get this done with ASAP?


Jedi mind trick?


----------



## Ergan's Toupe

Bidderman9 said:


> I vote for a stall tactic with a side of despiration.


I honestly don't see how anyone can spin this into anything other than a stall tactic. Charlie has been just about begging for his chance to prove he no longer infringes and now that he has his chance he keeps trying to put if off.


----------



## jacmyoung

James Long said:


> Judge Folsom will not be making a decision on contempt until after the February 17-18th hearing ... assuming there is one (DISH has filed to delay that hearing). How does DISH's request for a delay fit into your theory that they want to get this done with ASAP?


Remember when E* filed the previous motion accusing TiVo of deficient disclosures? The judge said he would dismiss E*'s motion without prejudice, assuming TiVo would then cure the deficiency after their expert disclosures.

Now after TiVo's expert disclosures, E* filed another motion to delay the hearing citing that TiVo was trying to change the patent claim limitations, and because of that, it will have to take a lot of more hearing to re-define the TiVo patent claim limitations, at least that is a part of E*'s argument.

But there might a hidden motive behind this approach, that is to demonstrate that TiVo is only arguing that the term "parse" alone can prove infringement.

And in the effort to dismiss E*'s such "delay effort", TiVo was forced to confirm that yes, they view the "parse" as one and the only claim limitation needed to be met, and that would be enough.

Now E* can say, no, "parse" alone is insufficient disclosure, if the judge do not see the merit to delay the hearing, at least he will be forced to consider if "parse" alone may constitute sufficient disclosures.

If the answer is no, he can end the proceeding now and deny TiVo's contempt motion, citing TiVo's failure to cure its difficiency.

Again a strategy I have alluded to earlier, not saying it will work but most certainly worth a try.

One other point I was making was to strenghten such speculation. When the judge orderd TiVo to respond to E*'s filing by 01/09/09, giving TiVo only two days, I saw that as a sign the judge saw merit in E*'s filing, otherwise there would be no justification to force TiVo to respond in such a short time. It appeared to me the judge did view TiVo's disclosures as deficient even after its expert disclosures, and wanted TiVo to cure it before E* could provide their own expert disclosures by 01/13/09.

Of course I also said it could be none of the above, it is only speculation.


----------



## jacmyoung

Look I agree it appears E* is seeking a delay of the hearing, but on what ground? In part E* said TiVo is trying to change the patent claim limitations, from 10 down to one, in fact down to 1/3, because the term "parse" appears in the first limitation, and is only one of the three key terms in it.

TiVo in response say yes we have "parse" only and we are not changing the patent claim limitations, because we believe "parse" alone is enough.

The judge needs to decide which way to go. If he agrees with E*, he will likely grant a delay, but if he agrees with TiVo, he must make a decision, does "parse" alone cure TiVo's disclosure deficiency as E* had previous accused them of?

After all, the judge did say he would allow E* to challenge TiVo again if TiVo was still difficient, meaning he was willing to make another judgment on the difficiency issue.

If the difficiency is confirmed, TiVo's contempt motion can be denied.


----------



## Ergan's Toupe

jacmyoung said:


> Look I agree it appears E* is seeking a delay of the hearing, but on what ground?


Sometimes you just have to accept the fact that if it quacks, walks and looks like a duck, it's a duck.


----------



## jacmyoung

Ergan's Toupe;1957103 said:


> Sometimes you just have to accept the fact that if it quacks, walks and looks like a duck, it's a duck.


Unfortunately it only "appears" this way because we do not get to see E*'s filings, only TiVo's response, and based on TiVo's response, I believe E* had successfully managed to get TiVo to admit, that they have only one "empty sentence" they are holding on to.

Recall last time when E* accused TiVo of disclosure deficiency because TiVo had only four empty sentences? The judge did not dispute that, he only said TiVo was likely to cure the deficiency after their expert disclosures.

Now after the TiVo's expert disclosures, they are down to only one of the four sentences.

What do you think whether TiVo is deficient or not now?


----------



## Ergan's Toupe

Filed & Entered: 01/12/2009
Order on Sealed Motion
Docket Text: ORDER granting in part and denying in part [880] Sealed Emergency Motion to Amend Scope of Hearing or Continue Hearing Date. Each side shall be granted an additional 2.5 hours to present their case. All other requested relief is denied. Signed by Judge David Folsom on 1/12/09. (mrm, )


----------



## Ergan's Toupe

Folsom gave Charlie another 2.5 hours to hang himself.


----------



## jacmyoung

So he granted the "or continue the hearing date" and added extra hours requested?

TiVo most certainly did not mention that part of E*'s request did they? All TiVo was saying E* wanted to delay by 4 months, it turned out E* asked "or continue the hearing date" and add more hours.



> EchoStar's design around efforts have been in place since at least October
> 2006. See Dkt. No. 839 at 8. EchoStar has also received an opinion of counsel, which asserted that
> EchoStar's design around no longer infringed TiVo's '389 Patent, as early as August 2006. Id. at
> Ex. B. Moreover, the colorable differences issue was initially brought to this Court's attention by
> EchoStar in its responsive contempt briefing of June 30, 2008. Id. at 13. Because EchoStar has had
> this information in its possession for such a long period of time, this Court finds that EchoStar has
> had a sufficient opportunity to prepare a case on all issues before the Court in February.


The question is did TiVo have enough time to do the same? If so why still no contempt?

Unfortunately TiVo is still saying the exact same thing, why should the outcome change?

The only thing I see why the judge ordered the hearing was because he was giving TiVo more time to offer something new, he was not looking for anything more from E* because according to him above, E* had presented all they had in the past and no more time is needed for E*.

What is new that TiVo is offering right now, that is what I'd like to see. From TiVo's latest filing, none what's so ever, the same old before and on 9/4/08.


----------



## Ergan's Toupe

jacmyoung said:


> So he granted the "or continue the hearing date" and added extra hours requested?
> 
> TiVo most certainly did not mention that part of E*'s request did they?


Why should they care if the hearing is going to be another 2.5 hours?

Tivo won what they needed to win no matter how you spin it.

See ya in February.


----------



## Ergan's Toupe

"Finally, this Court finds that a four month continuance is not in the interest of justice and will unduly prejudice TiVo. EchoStar’s design around efforts have been in place since at least October 2006. See Dkt. No. 839 at 8. EchoStar has also received an opinion of counsel, which asserted that EchoStar’s design around no longer infringed TiVo’s ’389 Patent, as early as August 2006. Id. at Ex. B. Moreover, the colorable differences issue was initially brought to this Court’s attention by EchoStar in its responsive contempt briefing of June 30, 2008. Id. at 13. Because EchoStar has had this information in its possession for such a long period of time, this Court finds that EchoStar has had a sufficient opportunity to prepare a case on all issues before the Court in February. As such, further delay is not warranted."


----------



## CuriousMark

jacmyoung said:


> So he granted the "or continue the hearing date" and added extra hours requested?


No.

He did not grant the request to continue (it means delay) the hearing for 4 months as requested by Dish/Echostar.

He did not grant the request to further reduce the scope of the hearing so that it ONLY covered colorable differences and skipped over discussion of infringement via DOE.

He did partially grant more time at the currently scheduled hearing. Dish asked for 5 more hours, they were given 2.5.


----------



## Ergan's Toupe

CuriousMark said:


> No.
> 
> He did not grant the request to continue (it means delay) the hearing for 4 months as requested by Dish/Echostar.
> 
> He did not grant the request to further reduce the scope of the hearing so that it ONLY covered colorable differences and skipped over discussion of infringement via DOE.
> 
> He did partially grant more time at the currently scheduled hearing. Dish asked for 5 more hours, they were given 2.5.


You'll see, Charlie has Folsom right where he wants him. !rolling


----------



## jacmyoung

Let me try again by quoting the judge again first:



> EchoStar's design around efforts have been in place since at least October 2006. See Dkt. No. 839 at 8. EchoStar has also received an opinion of counsel, which asserted that EchoStar's design around no longer infringed TiVo's '389 Patent, as early as August 2006. Id. at Ex. B. Moreover, the colorable differences issue was initially brought to this Court's attention by EchoStar in its responsive contempt briefing of June 30, 2008. Id. at 13. Because EchoStar has had this information in its possession for such a long period of time, this Court finds that EchoStar has had a sufficient opportunity to prepare a case on all issues before the Court in February.


This is new information, this information gives us the insight to the judge's frame of mind even before 9/4/08.

Remember what E* is asking now is more time, in fact much more time, because E* argued they have a lot more to discuss. But the judge disagreed without even looking at what the additional arguments were, not only that, the judge said E* had pretty much done its argument by 06/30/08, long before even the last hearing. E* does not need more time and therefore it is the same as saying E* needs no more arguments.

The question then is, why did not the judge find E* in contempt at the last hearing, when he thought E* had made all the arguments E* could possibly make at that time? The only answer has to be that TiVo did not do their job right. And by ordering this next hearing the judge was giving TiVo another chance to offer their new arguments.

Because if the judge after the last hearing had thought both E* and TiVo had done all the arguemnts they could possible make, he would not have ordered another hearing, he does not play around wasting time.

Since the only reason for the next hearing is for TiVo to offer more arguments, that is why I kept asking the question, what's new that TiVo is offering?

If TiVo is still saying the same old, one cannot believe the outcome of the next hearing will be any different than that of the last hearing, which was, the judge did not find a contempt.

By making the above statement, the judge revealed that he had recognized E*'s design around from long time ago, and believes E* had provided all E* could by 6/30/08 already. That is the part that is new to us.


----------



## dfd

jacmyoung said:


> The only answer has to be that TiVo did not do their job right.


You mean the only answer YOU can imagine right?

You're untruths and assumptions are simply amazing.


----------



## Ergan's Toupe

dfd said:


> You mean the only answer YOU can imagine right?
> 
> You're untruths and assumptions are simply amazing.


You'll see, This is all part of Charlie's master plan. Charlie has Folsom and Tivo right where he wants them. :lol:


----------



## jacmyoung

dfd said:


> You mean the only answer YOU can imagine right?
> 
> You're untruths and assumptions are simply amazing.


Why don't you offer me another reason instead of insult?


----------



## Ergan's Toupe

jacmyoung said:


> Let me try again by quoting the judge again first:


Allow me to help.....

"Finally, this Court finds that a four month continuance is not in the interest of justice and will unduly prejudice TiVo. EchoStar's design around efforts have been in place since at least October 2006. See Dkt. No. 839 at 8. EchoStar has also received an opinion of counsel, which asserted that EchoStar's design around no longer infringed TiVo's '389 Patent, as early as August 2006. Id. at Ex. B. Moreover, the colorable differences issue was initially brought to this Court's attention by EchoStar in its responsive contempt briefing of June 30, 2008. Id. at 13. Because EchoStar has had this information in its possession for such a long period of time, this Court finds that EchoStar has had a sufficient opportunity to prepare a case on all issues before the Court in February. As such, further delay is not warranted."

You're welcome.


----------



## Ergan's Toupe

jacmyoung said:


> Why don't you offer me another reason instead of trash?


If it looks like a duck, walks like a duck, quacks like a duck.....


----------



## jacmyoung

Ergan's Toupe;1957407 said:


> You'll see, This is all part of Charlie's master plan. Charlie has Folsom and Tivo right where he wants them. :lol:


No he failed at each motion, but each time he managed to gain some more of the judge's frame of mind, and he can use such information to decide his next move.

Based on the judge's statement, his lawyers can form their strategy accordingly before and during the next hearing.


----------



## Mainer_ayah

It is obvious that Folsom has grown weary of the E* legal team and their shenanigans. Granting them 2.5 hours is Folsoms way of keeping the appearance of being fair and reasonable, while delivering a ***** slap square to the faces of the E* team in what has been denied. I'm afraid there is just no way that this can be viewed any other way despite the desperate and shallow attempts by jacmeyang.


----------



## jacmyoung

Ergan's Toupe;1957413 said:


> If it looks like a duck, walks like a duck, quacks like a duck.....


If TiVo looked "on the face", walked "on the face", screamed about "the face", and failed...


----------



## Mainer_ayah

jacmyoung said:


> Based on the judge's statement, his lawyers can form their strategy accordingly before and during the next hearing.


Indeed. I am anxious to see the strategy they develop now that there is no question whatsoever that they are completely screwed.


----------



## jacmyoung

Mainer_ayah said:


> It is obvious that Folsom has grown weary of the E* legal team and their shenanigans. Granting them 2.5 hours is Folsoms way of keeping the appearance of being fair and reasonable, while delivering a ***** slap square to the faces of the E* team in what has been denied. I'm afraid there is just no way that this can be viewed any other way despite the desperate and shallow attempts by jacmeyang.


Thank you, I am more than ever willing to bet big on a no contempt.


----------



## Mainer_ayah

jacmyoung said:


> If TiVo looked "on the face", walked "on the face", screamed about "the face", and failed...


Oh, but "on the face" is the strategy they developed for their first round after hearing what the judge had to say.


----------



## jacmyoung

Mainer_ayah said:


> Indeed. I am anxious to see the strategy they develop now that there is no question whatsoever that they are completely screwed.


I will not be surprised if E* files another motion, but at this point, E* should just as satisfied to sit through the next hearing do nothing because the judge had told E* they had done enough. I only need to make sure TiVo still does nothing.


----------



## jacmyoung

Mainer_ayah said:


> Oh, but "on the face" is the strategy they developed for their first round after hearing what the judge had to say.


Maybe, but it did not work so where is the next strategy?


----------



## Mainer_ayah

jacmyoung said:


> I will not be surprised if E* files another motion, but at this point, E* should just as satisfied to sit through the next hearing do nothing because the judge had told E* they had done enough. I only need to make sure TiVo still does nothing.


The only thing the judge told E* was that they had enough time already to build their case. It is only in your warped analysis that it seems they have done enough. If they, as you say, sit back and do nothing they will be eaten alive.


----------



## Mainer_ayah

jacmyoung said:


> Maybe, but it did not work so where is the next strategy?


It worked as well as any of the strategies employed by E*.


----------



## jacmyoung

Mainer_ayah said:


> The only thing the judge told E* was that they had enough time already to build their case. It is only in your warped analysis that it seems they have done enough. If they, as you say, sit back and do nothing they will be eaten alive.


But by 6/30/08 already, which the judge had read them all by 9/4/08.

The question you need to answer is, why didn't the judge find E* in contempt then?

The truth is neither E* and TiVo has more to say than before 9/4/08, and more importantly the judge had seen all of it on 9/4/08 too. The next hearing will be a repeat of 9/4/08, only more boring expert testimony repeating the same old.

If he did not rule E* in contempt, why do you think he will do so next time if the next hearing will just confirm what he knew on 9/4/08?


----------



## Mainer_ayah

jacmyoung said:


> But by 6/30/08 already, which the judge had read them all by 9/4/08.
> 
> The question you need to answer is, why didn't the judge find E* in contempt then?


Obviously, the judge wants to be sure that he cannot be overturned on appeal. Contempt is still on the table, and I, more than ever, would bet that contempt it will be.


----------



## Mainer_ayah

jacmyoung said:


> The question you need to answer is, why didn't the judge find E* in contempt then?


The question you have to answer is why hasn't the judge denied the contempt motion?


----------



## dfd

jacmyoung said:


> Why don't you offer me another reason instead of insult?


I am not insisting that my answer is the only answer - you are.

I am pointing out the flaw in your reasoning. When you make wild assumptions anything predicated upon them is hard to believe.

You are the one that is always referencing logical arguments - so in a way I'm helping you


----------



## jacmyoung

Mainer_ayah said:


> Obviously, the judge wants to be sure that he cannot be overturned on appeal. Contempt is still on the table, and I, more than ever, would bet that contempt it will be.


The difference between the last and the next hearing is the expert testimony, nothing more, and expert testimony do not solve legal issues, only to verify facts around the design around. The legal theories from both sides will not change.

Therefore if the judge had doubt about the contempt last time from the legal standpoint, he will have the same doubt this time.


----------



## jacmyoung

dfd said:


> ...I am pointing out the flaw in your reasoning...


No you did not, you only say my reasoning is flawed, but you did not point out where. All you can say is I am good at imagining, that yes I am guilty of.

Through my countless imaginations, I have been correct in the following so far:

1) The hardware claims would not be brought back by TiVo again.

2) Violation on the face is not enough, colorable difference must be looked at.

3) Not telling the judge about the design around is not enough of a violation, the design around must be looked at.

4) Colorable difference must first be looked at, the judge later modified his order to reflect just that.

5) There is enough on the E* side to argue their case, the judge confirmed this now.

6) There is nothing new from TiVo, in fact TiVo is saying less than before 9/4/08.


----------



## Ergan's Toupe

jacmyoung said:


> If TiVo looked "on the face", walked "on the face", screamed about "the face", and failed...


HUH?


----------



## scooper

Quote:
Originally Posted by jacmyoung View Post
If TiVo looked "on the face", walked "on the face", screamed about "the face", and failed...
HUH? 


"If it walks like a duck, talks like a duck, swims / flies like a duck, ...."

Come on - keep up man - if you're going to make fun of someone's arguements - then you better understand them....


----------



## Ergan's Toupe

scooper said:


> Quote:
> Originally Posted by jacmyoung View Post
> If TiVo looked "on the face", walked "on the face", screamed about "the face", and failed...
> HUH?
> 
> "If it walks like a duck, talks like a duck, swims / flies like a duck, ...."
> 
> Come on - keep up man - if you're going to make fun of someone's arguements - then you better understand them....


HUH?


----------



## the judge

jacmyoung said:


> Let me try again by quoting the judge again first:
> 
> This is new information, this information gives us the insight to the judge's frame of mind even before 9/4/08.


Having read all the motions, there is nothing new in Folsom's order and certainly no special insight. All he said was we're going to do this in February as planned, and E* can present their case - which according to Tivo now includes their frame of mind and a rehash of the standards for infringement - in their alloted time. That gives Rachel K. 7.5 hours in front of Folsom, more than any man deserves.


----------



## Ergan's Toupe

the judge said:


> Having read all the motions, there is nothing new in Folsom's order and certainly no special insight. All he said was we're going to do this in February as planned, and E* can present their case - which according to Tivo now includes their frame of mind and a rehash of the standards for infringement - in their alloted time. That gives Rachel K. 7.5 hours in front of Folsom, more than any man deserves.


What is with this whole "frame of mind" defense?


----------



## jacmyoung

Ergan's Toupe;1957894 said:


> What is with this whole "frame of mind" defense?


The Art of Poker - Know Your Opponents and Know Yourself, and of course know the person who can decide the outcome. How they behave, how they think, how they operate.

Even if in the process of knowing and poking around, you may look foolish, as long as knowing more gives you a better winning odds in the end.

Through these motions, the strategies of both TiVo and Judge Folsom had been further revealed, even if by very little, the slightest gain in the knowledge of their strategies will give E* increasing odds of winning each time.


----------



## the judge

Ergan's Toupe;1957894 said:


> What is with this whole "frame of mind" defense?


According to Tivo Response to E* emergency motion:

"EchoStar nevertheless suggests that a full hearing on the factors relevant to a contempt finding needs to be avoided because such a hearing would involve too many issues, specifically identifying "good faith" and validity as such additional issues. (Mot. at 3, 4). Neither state of mind nor validity, however, are properly at issue at the February hearing. It is well established that good faith is not a defense to civil contempt and willfulness is irrelevant to civil contempt liability."


----------



## jacmyoung

the judge said:


> According to Tivo Response to E* emergency motion:
> 
> "EchoStar nevertheless suggests that a full hearing on the factors relevant to a contempt finding needs to be avoided because such a hearing would involve too many issues, specifically identifying "good faith" and validity as such additional issues. (Mot. at 3, 4). Neither state of mind nor validity, however, are properly at issue at the February hearing. It is well established that good faith is not a defense to civil contempt and willfulness is irrelevant to civil contempt liability."


That is the precise point E* has tried to say, because TiVo had continued to argue E* had conducted this whole design around in bad faith, not telling the judge, playing tricks, trying to delay the process.

Now TiVo bought into E*'s argument, that good faith or bad faith does not matter, it lays the ground for E* to counter with the same argument, that TiVo's past argument about whether E* did the design around in good faith or not should not matter, the only thing matters is if the modified DVRs still infringe.

This is another proof that when you continue to poke at your opponent, to push his buttons, you gleam more into his mind, get more out of him that can be used against him. A poker game playing out right in front of us.


----------



## Ergan's Toupe

jacmyoung said:


> The Art of Poker - Know Your Opponents and Know Yourself, and of course know the person who can decide the outcome. How they behave, how they think, how they operate.


Ah, yes, Charlie the professional poker player story, I forgot about that.



jacmyoung said:


> Even if in the process of knowing and poking around, you may look foolish, as long as knowing more gives you a better winning odds in the end.
> 
> Through these motions, the strategies of both TiVo and Judge Folsom had been further revealed, even if by very little, the slightest gain in the knowledge of their strategies will give E* increasing odds of winning each time.


Of course....


----------



## Ergan's Toupe

the judge said:


> According to Tivo Response to E* emergency motion:
> 
> "EchoStar nevertheless suggests that a full hearing on the factors relevant to a contempt finding needs to be avoided because such a hearing would involve too many issues, specifically identifying "good faith" and validity as such additional issues. (Mot. at 3, 4). Neither state of mind nor validity, however, are properly at issue at the February hearing. It is well established that good faith is not a defense to civil contempt and willfulness is irrelevant to civil contempt liability."


So E* is arguing that trying to design around the patent is good enough?


----------



## Ergan's Toupe

jacmyoung said:


> That is the precise point E* has tried to say, because TiVo had continued to argue E* had conducted this whole design around in bad faith, not telling the judge, playing tricks, trying to delay the process.
> .


This is my favorite part of yesterdays order.

"In its latest Emergency Motion," !rolling


----------



## the judge

jacmyoung said:


> Now TiVo bought into E*'s argument, that good faith or bad faith does not matter, it lays the ground for E* to counter with the same argument, that TiVo's past argument about whether E* did the design around in good faith or not should not matter, the only thing matters is if the modified DVRs still infringe.


My apologies if English isn't your native language, but many, actually most, of your idioms and analogies are tortured. Perhaps that's why your reading of legal briefs is so far off. In layman's terms:

Echostar argued they needed a lot more time to argue their frame of mind when they made their workaround, and that they did it in good faith, and that the standards for infringing Tivo's patent have changed. Tivo did not buy into any of it and argued against Echostar. Folsom agreed with Tivo almost entirely, but gave Echostar another 2 1/2 hours to argue at the hearing. Echostar will undoubtedly add these three things issues to their arguments, but we know Folsom already has the case law that says they're invalid arguments in a contempt hearing.


----------



## scooper

To listen to Jac's arguements may seem like watching madness - 

BUT -

If we were to listen to only the TIvo fans here, this contempt hearing would have been over last May - at the latest in September. I'd say he's got some insight on what's going on, even if he goes off to neverland every once in awhile. At least he puts more thought into his posts than a certain member who's posts are mostly one-line zingers denigerating jac.


----------



## jacmyoung

the judge said:


> My apologies if English isn't your native language, but many, actually most, of your idioms and analogies are tortured. Perhaps that's why your reading of legal briefs is so far off. In layman's terms:
> 
> Echostar argued they needed a lot more time to argue their frame of mind when they made their workaround, and that they did it in good faith, and that the standards for infringing Tivo's patent have changed. Tivo did not buy into any of it and argued against Echostar. Folsom agreed with Tivo almost entirely, but gave Echostar another 2 1/2 hours to argue at the hearing. Echostar will undoubtedly add these three things issues to their arguments, but we know Folsom already has the case law that says they're invalid arguments in a contempt hearing.


Remember insult does not raise your credibility.

TiVo has all this time argued mainly on two points, that E* is in violation on the face, and E*' design around was done in bad faith. They don't have any other legal theory to go by. The "on the face" argument is already pretty much over, done with.

Now what I am saying is E*'s trying to argue that they need to prove they did so in good faith in response to TiVo's such continued bad faith accusation, but to do so E* needs more time. As several of us said even before the judge's order, E* would not get the delay request granted, we all knew that, but then why even try it?

The strategy is to get TiVo to come out say that good faith, bad faith, does not matter, now TiVo has said it, E* can use this in all the later debate, that TiVo itself may also not continue to argue that E* did the design around in bad faith.

This motion succeeded in depriving TiVo of another one of their two arguments, practically leaving TiVo with nothing to argue about.


----------



## the judge

jacmyoung said:


> Remember insult does not raise your credibility.
> 
> TiVo has all this time argued mainly on two points, that E* is in violation on the face, and E*' design around was done in bad faith. They don't have any other legal theory to go by. The "on the face" argument is already pretty much over, done with.
> 
> Now what I am saying is E*'s trying to argue that they need to prove they did so in good faith in response to TiVo's such continued bad faith accusation, but to do so E* needs more time. As several of us said even before the judge's order, E* would not get the delay request granted, we all knew that, but then why even try it?
> 
> The strategy is to get TiVo to come out say that good faith, bad faith, does not matter, now TiVo has said it, E* can use this in all the later debate, that TiVo itself may also not continue to argue that E* did the design around in bad faith.
> 
> This motion succeeded in depriving TiVo of another one of their two arguments, practically leaving TiVo with nothing to argue about.


No insult intended jac, just a heads up that the words aren't making sense.

Do you understand that the hearing is on two completely separate issues?

Do you understand that the hearing started as a contempt hearing, and Folsom has not yet determined if Echostar is in contempt of his order?

Do you understand that Tivo is arguing that the workaround is no more than colorably different from the devices that have been legally determined to infringe? If Tivo is right, Echostar is in contempt.

Do you understand that Folsom decided to expand the hearing to decide that regardless of whether the difference is merely colorable, whether the new devices infringe the patent on their own? I they do, Echostar is in contempt.

Tivo's legal theories (plural) all revolve around the fact that Echostar has been proven to infringe, they've been ordered to stop infringing which is why they're in contempt, and they continue to infringe by a number of different measures. Echostar's state of mind (good or bad faith) has no bearing on infringement, but it could have bearing on damages.


----------



## dfd

jacmyoung said:


> Remember insult does not raise your credibility.
> 
> TiVo has all this time argued mainly on two points, that E* is in violation on the face, and E*' design around was done in bad faith. They don't have any other legal theory to go by. The "on the face" argument is already pretty much over, done with.
> 
> Now what I am saying is E*'s trying to argue that they need to prove they did so in good faith in response to TiVo's such continued bad faith accusation, but to do so E* needs more time. As several of us said even before the judge's order, E* would not get the delay request granted, we all knew that, but then why even try it?
> 
> The strategy is to get TiVo to come out say that good faith, bad faith, does not matter, now TiVo has said it, E* can use this in all the later debate, that TiVo itself may also not continue to argue that E* did the design around in bad faith.
> 
> This motion succeeded in depriving TiVo of another one of their two arguments, practically leaving TiVo with nothing to argue about.


You are incorrectly stating what Tivo's argument is and then promptly knocking it down.

Hello strawman.

Tivo's argument is that E* did not comply with the order.

E* states that they did by deploying new software.

Tivo responded that E*'s new software still infringes.

The judge will determine who is right.


----------



## the judge

the judge said:


> Do you understand that the hearing is on two completely separate issues?


jac, could you just answer this one question so we can all determine your level of credibility?


----------



## peak_reception

jacmyoung said:


> Remember insult does not raise your credibility.
> 
> TiVo has all this time argued mainly on two points, that E* is in violation on the face, and E*' design around was done in bad faith. They don't have any other legal theory to go by. The "on the face" argument is already pretty much over, done with.
> 
> Now what I am saying is E*'s trying to argue that they need to prove they did so in good faith in response to TiVo's such continued bad faith accusation, but to do so E* needs more time. As several of us said even before the judge's order, E* would not get the delay request granted, we all knew that, but then why even try it?
> 
> The strategy is to get TiVo to come out say that good faith, bad faith, does not matter, now TiVo has said it, E* can use this in all the later debate, that TiVo itself may also not continue to argue that E* did the design around in bad faith.
> 
> This motion succeeded in depriving TiVo of another one of their two arguments, practically leaving TiVo with nothing to argue about.


 I have to agree. It _looks_ like EchoStar counsel successfully baited TiVo counsel into abandoning one of the supporting legs of their case which was that Echo is/was acting in bad faith.

Remember TiVo's motion for Contempt last June which detailed all of Echo's prior court maneuverings/antics which --TiVo claimed -- revealed the kind of mischief Echo was also up to in this case with the "design-around" and all the rest. Bad Faith was never the main argument (that was "prima facie") but it was certainly an important supporting leg.

It _looks_ like an overreaction for TiVo to so easily cave in on "state of mind." bad faith. It _looks_ like Echo is the mover and TiVo is the shaker at most every turn in this case. Every time Echo says "boo," TiVo counsel jumps (too far). For all the silly-seeming motions and maneuvers It l_ooks_ like Echo counsel is running circles around TiVo counsel.

Maybe it's just me and TiVo is actually carrying through on a masterful grand strategy. After all, they've won every important battle so far except for "prima facie" contempt which is presumably still up in the air though I agree with jac that it's actually a dead letter now. TtVo does still seem supremely confident. Over-confident perhaps? I think so. If their case was so bullet-proof they would have won on/after 9-4-08. Judge Folsom carried that ruling over to this next hearing in February but why? I think it was because if he'd ruled in TiVo's favor he'd been overturned on appeal and he knew that. Just my opinion


----------



## HobbyTalk

peak_reception said:


> After all, they've won every important battle so far except for "prima facie" contempt ...


Let's not forget they also lost on the hardware claims (ok, maybe not "lost" but surely wasn't a win) in the beginning which was half of the case.


----------



## Jhon69

Ergan's Toupe;1957960 said:


> Ah, yes, Charlie the professional poker player story, I forgot about that.
> 
> Of course....


It makes a interesting read,hope the judge does not read it.

http://www.answers.com/topic/charlie-ergen


----------



## scooper

I'm sure that Judge Folsom is well aware of the backgrounds of the litigants in the cases in front of him.


----------



## Bidderman9

Very interesting reading. I think his sattellite truck is about to get blown off the road again. He needs to learn when to hold em and when to fold em.


----------



## Ergan's Toupe

Jhon69 said:


> It makes a interesting read,hope the judge does not read it.
> 
> http://www.answers.com/topic/charlie-ergen


"Ergen, the onetime professional gambler, was often described by friend and foe as unpredictable, wily, mercenary, renegade, daring, dueling, combative, ironfisted, or scrappy."

They left out "stubborn".

"If people won't deal with him at the table one on one, they'll deal with him in front of their shareholders or in the courtroom" (Time, August 20, 2001)"

Yea, how did that work out for him with TIVO?


----------



## Ergan's Toupe

Bidderman9 said:


> Very interesting reading. I think his satellite truck is about to get blown off the road again. He needs to learn when to hold em and when to fold em.


That was just another part of Charlie's Master Plan. Just like his last HD satellite that can't even be used as a doorstop.

Who do you think gets sued for that fiasco?


----------



## Ergan's Toupe

scooper said:


> I'm sure that Judge Folsom is well aware of the backgrounds of the litigants in the cases in front of him.


Would that be from Folsom reading Charlies SEC filings? :lol:


----------



## Herdfan

peak_reception said:


> I For all the silly-seeming motions and maneuvers It l_ooks_ like Echo counsel is running circles around TiVo counsel.


That may be true, but look at the current score. So far TiVo is winning. If you watched the Titans/Ravens game Saturday you saw the Titans superior in almost every phase (except turnovers), yet they lost. The best team does not always win.


----------



## Ergan's Toupe

scooper said:


> At least he puts more thought into his posts than a certain member who's posts are mostly one-line zingers denigerating jac.


"In its latest Emergency Motion, EchoStar requests that this Court take three actions:"

I love that first line!!! :lol:

"1) limit the hearing scheduled in February (see Dkt. No. 870) to the predicate question of whether EchoStar's design around efforts are no more than colorably different from the adjudicated products;

DENIED!!!

"(2) allow each side an additional five hours to present its case;"

DENIED!!!

"(3) continue the hearing until June 2009. "

DENIED!!!

Tell me which one of these points are debatable? How exactly can you or anyone spin this into anything but a total loss for Charlie? Or was this just an excuse for a personal attack?


----------



## James Long

Ergan's Toupe;1958328 said:


> "(2) allow each side an additional five hours to present its case;"
> 
> DENIED!!!


Not totally denied ... each side is getting an additional 2.5 hours.

NOT a total loss.


----------



## Ergan's Toupe

James Long said:


> Not totally denied ... each side is getting an additional 2.5 hours.
> 
> NOT a total loss.


They asked for 5 hours each. 5 hours each was denied. Did they get more time? Yes, but so did TIVO, without even asking for it, I might add. Did E* get what they asked for (5 hours)? No. Hence, DENIED!!!

I speculate that the only reason Folsom gave them the 2.5 hours was to throw some cold water on Charlie's appeal by seeming to be reasonable.


----------



## the judge

Giving both sides another 2 1/2 hours was about the least Folsom could do prevent Echostar from running off to the Appeals court again with a writ of mandamus.

You gotta know how much the District Court judges love to have parties cry to the Appeals court every time they make a decision, or even better have the Appeals court tell them to redo the entire exercise (like the hardware claims) on a technicality. Folsom is just making it nice and tidy.


----------



## jacmyoung

the judge said:


> jac, could you just answer this one question so we can all determine your level of credibility?


You need to spend some time to read all the posts we have made in the past. Not only do I understand each and every point you were asking, I was the one who predicted what the correct hearing format should have been, and later was proven after the judge modified his order.

I am not going to waste my time going through all this over again with you just because all the sudden you decided to come in to start a round of debate, go read the thousands of posts from the last 8 months, you will get all the answers you had asked, including why E* is not in contempt and why TiVo will fail. There are many prior cases I cited and legal theories analyzed to death.

And this much I can say and people on the other side cannot, E* is not in contempt as of today. Yes people had said, but you just wait, they said so on 5/30, on 9/4, and both failed, of course you can continue to say in 02/09 all you want.

All I care is, nothing, absolutely nothing new is on the table from TiVo, compared to 5/30, and 9/4. Show me something new or go dream the little dream while there is still time. The dream had been broken twice, can the mere act of keep dreaming the same dream alone, doing absolutely nothing else, make the dream come true? Of course, anything is possible, never say never.


----------



## dfd

This I agree with:



jacmyoung said:


> And this much I can say and people on the other side cannot, E* is not in contempt as of today.


But...

Are they infringing today? If so, they'll be found in contempt in the future.


----------



## jacmyoung

dfd said:


> This I agree with:
> 
> But...
> 
> Are they infringing today? If so, they'll be found in contempt in the future.


Again go back to read all you want the arguments why they no longer infringe, if I ever try to rehash any of those arguments, I am afraid James will finally kick me to the curb


----------



## CuriousMark

the judge said:


> Giving both sides another 2 1/2 hours was about the least Folsom could do prevent Echostar from running off to the Appeals court again with a writ of mandamus.


Watch, Dish may just do that today or tomorrow anyway. Nothing Folsom does is likely to stop them if they feel they can get some advantage out of it.


----------



## Ergan's Toupe

jacmyoung said:


> All I care is, nothing, absolutely nothing new is on the table from TiVo,


And you know this how?



jacmyoung said:


> compared to 5/30, and 9/4. Show me something new or go dream the little dream while there is still time.


Last time I looked, the hearing didn't happen so we have no transcript to read yet. All we would be doing is making stuff up "showing you something new". Unless of course you know for a fact what was in the sealed documents. If that's the case by all means, tell us! Otherwise you are just guessing like the rest of us.



jacmyoung said:


> The dream had been broken twice, can the mere act of keep dreaming the same dream alone, doing absolutely nothing else, make the dream come true? Of course, anything is possible, never say never.


Didn't you say that TIVO was never going to win the original trial either. Or the appeal, or the Patent re-examination or the Supreme Court appeal, etc.


----------



## jacmyoung

CuriousMark said:


> Watch, Dish may just do that today or tomorrow anyway. Nothing Folsom does is likely to stop them if they feel they can get some advantage out of it.


Maybe, and if E* is to do so I think they will have to go above Judge Folsom. Because the judge had already said E* had enough time to address all the issues they needed to address.

There is really not anything more he needs to hear from E* anyway. It is TiVo that needs to step up to the plate and offer something new, else why do people think the outcome will be any different than 5/30, or 9/4?


----------



## Ergan's Toupe

jacmyoung said:


> There is really not anything more he needs to hear from E* anyway. It is TiVo that needs to step up to the plate and offer something new,


You keep saying this. You do realize that is what this whole Feb. hearing is about, don't you?

Why do you expect TIVO to fight their case through motions designed to do nothing but stall for time?

I wouldn't worry about what TIVO has to say before Feb. 17 if I were you.


----------



## Albie

Ergan's Toupe;1958309 said:


> That was just another part of Charlie's Master Plan. Just like his last HD satellite that can't even be used as a doorstop.
> 
> Who do you think gets sued for that fiasco?


Might want to stick to the TIVO case as you obviously have no idea whose satellite it actually was. As for who gets sued try ILS.


----------



## Ergan's Toupe

jacmyoung said:


> There is really not anything more he needs to hear from E* anyway. It is TiVo that needs to step up to the plate and offer something new.....


Then why has Charlie been begging for more time if he has nothing more to say?

I hate to tell you this but If Charlie needs more than 5 hours to dispute "4 little sentences" as you like to say, I wouldn't be very confident if I were you. As a matter of fact I would say that Charlie is acting quite the opposite.

Maybe you should give him a call and ease his mind.


----------



## peak_reception

the judge said:


> Giving both sides another 2 1/2 hours was about the least Folsom could do prevent Echostar from running off to the Appeals court again with a writ of mandamus.
> 
> You gotta know how much the District Court judges love to have parties cry to the Appeals court every time they make a decision, or even better have the Appeals court tell them to redo the entire exercise (like the hardware claims) on a technicality. *Folsom is just making it nice and tidy.*


 You think this case is nice and tidy now??


----------



## scooper

Ergan's Toupe;1958468 said:


> You keep saying this. You do realize that is what this whole Feb. hearing is about, don't you?
> 
> Why do you expect TIVO to fight their case through motions designed to do nothing but stall for time?
> 
> I wouldn't worry about what TIVO has to say before Feb. 17 if I were you.


If Tivo DOESN'T bring up any new points NOW, they won't get to on Febuary 17th either.


----------



## Ergan's Toupe

Albie said:


> Might want to stick to the TIVO case as you obviously have no idea whose satellite it actually was.


Wow, you guys are so touchy! Ok, whose satellite is it that can't be used as a doorstop?



Albie said:


> As for who gets sued try ILS.


Hey, imagine that! Charlie is going to sue someone!! Thanks for proving my point.


----------



## jacmyoung

Ergan's Toupe;1958460 said:


> ...Didn't you say that TIVO was never going to win the original trial either. Or the appeal, or the Patent re-examination or the Supreme Court appeal, etc.


Really? I had always maintained that E*'s old software was infringing and they were unlikely to win on appeals but their rigorous defense would buy them time for the design around, are you sure you are talking about the same person?

TiVo has nothing new because if you read TiVo's latest filing, which is not sealed (not much from TiVo's general filings were sealed anyway), it talked about pretty much all the TiVo's contentions, nothing I read was new, all talked about already on 5/30 or at least on 9/4.

You are welcome to show us something new. As I said, E*'s only job now is to make sure to pay attention to what TiVo may say that will be new, if any.

TiVo continues to devote much of their space to cry victim, how they had lost the market shares as the result of the delays, but they failed to realize that the delays were all caused by the judges, E* was only doing any defendent would do to excercise their legal rights.

So if TiVo has any beef with anyone, they need to call the judges on it.

Or maybe, just maybe, TiVo has not done its job. Who knows, anything is possible.


----------



## the judge

Ergan's Toupe;1958468 said:


> You keep saying this. You do realize that is what this whole Feb. hearing is about, don't you?


I asked jacm the same question, it was a simple yes or no, and he rambled on for several paragraphs without answering it.

Here's an example of the twisted logic:
1. Folsom injuncts Echostar from providing DVR services, then
2. Echostar says OK we'll change the DVRs, so
3. Tivo says hey it looks like the same DVR to me, and asks Folsom to find them in contempt, so
4. Folsom says let me see, I need to know more then I'll decide

Jacm therefore concludes Echostar is NOT in contempt!

Does he mean not yet? or
Does he know all the facts and has verifiable proof they are not? or
Is he invoking the syllogism that until Folsom says they are in contempt they are not - which is a meaningless proof.


----------



## Ergan's Toupe

scooper said:


> If Tivo DOESN'T bring up any new points NOW, they won't get to on Febuary 17th either.


Did you ever think that maybe they don't have too bring up anything new? Charlie sure is acting like they don't have to.

Besides, how do you guys know what TIVO is going to bring up? Do you have a cite you can share with us?


----------



## the judge

the judge said:


> jac, could you just answer this one question so we can all determine your level of credibility?


Jacm, could you just answer the question? Do you understand that the hearing is on two completely separate issues?


----------



## Greg Bimson

scooper said:


> If Tivo DOESN'T bring up any new points NOW, they won't get to on Febuary 17th either.


New points? Publicly, the only current belief by TiVo is that DISH/SATS still infringe almost in the exact same manner as before. There isn't a "new point" that needs to be addressed; the old ones still need to be adressed and adjudged.

The arguments to those points may have changed slightly, but I do not see where TiVo must bring up any new points. TiVo laid out in their points about the new software up to and including the 4 September 2008 hearing. Judge Folsom has decided he needs to determine the status of infringment and an evaluation of colorable difference in order to determine contempt.


----------



## Ergan's Toupe

the judge said:


> I asked jacm the same question, it was a simple yes or no, and he rambled on for several paragraphs without answering it.


Do yourself a favor and don't go there. Just trust me on this. 

Here's an example of jacm's the twisted logic:
1. Folsom injuncts Echostar from providing DVR services, then
2. Echostar says OK we'll change the DVRs, so
3. Tivo says hey it looks like the same DVR to me, and asks Folsom to find them in contempt, so
4. Folsom says let me see, I need to know more then I'll decide



the judge said:


> Jacm therefore concludes Echostar is NOT in contempt!
> 
> Does he mean not yet? or
> Does he know all the facts and has verifiable proof they are not? or
> Is he invoking the syllogism that until Folsom says they are in contempt they are not - which is a meaningless proof.


I would think that if Jacy has verifiable proof he should contact Charlie with it and save all of us time and money and end this stupid soap opera.

That being said, I've given up long ago trying to figure out Jacy's "theories".


----------



## jacmyoung

scooper said:


> If Tivo DOESN'T bring up any new points NOW, they won't get to on Febuary 17th either.


They can, if E* does not protest. The judge has so far not been willing to look at the disclosures, and he of course is not obligated nor has time to look at them until on of after the hearing.

The only way to force him to look at the differences between the old and new software, *without* going through the hearing, is if E* appeals to the Circuit Court.

That is why I think there is still a chance we will see another motion, but to go above the judge himself. But E* may well just decides to go through the hearing process without additional objections.


----------



## jacmyoung

Greg Bimson said:


> ...Judge Folsom has decided he needs to determine the status of infringment and an evaluation of colorable difference in order to determine contempt.


But according to you TiVo had already addressed them before 9/4, there is nothing more to address?

Or are you saying it is now the judge's job to prove E* is in contempt? It is always the mover in a summary proceeding to prove with clear and convicing evidence why the defendent is in contempt, not the judge.

Had TiVo proven so, the judge would have ruled a contempt after 9/4.

The question is, even after the judge had given TiVo another chance, and a real good chance to go over all the new disclosures provided by E*, TiVo is still saying the exact same, why do people believe all the sudden the outcome will change?


----------



## Ergan's Toupe

jacmyoung said:


> That is why I think there is still a chance we will see another motion, but to go above the judge himself. But E* may well just decides to go through the hearing process without additional objections.


So you're giving another motion a 50/50 chance.

Way to go out on a limb! 

I guarantee Charlie will file at *least* one more filing and like all the others will get shot down.


----------



## jacmyoung

Ergan's Toupe;1958524 said:


> Do yourself a favor and don't go there. Just trust me on this.
> 
> Here's an example of jacm's the twisted logic:
> 1. Folsom injuncts Echostar from providing DVR services, then
> 2. Echostar says OK we'll change the DVRs, so
> 3. Tivo says hey it looks like the same DVR to me, and asks Folsom to find them in contempt, so
> 4. Folsom says let me see, I need to know more then I'll decide
> 
> I would think that if Jacy has verifiable proof he should contact Charlie with it and save all of us time and money and end this stupid soap opera.
> 
> That being said, I've given up long ago trying to figure out Jacy's "theories".


Keep in mind TiVo will not gain any points just have their own lawyers talking among themselves And please don't respond to this post with an Huh? again.

If you can't understand, you can't.


----------



## Albie

Ergan's Toupe;1958501 said:


> Wow, you guys are so touchy! Ok, whose satellite is it that can't be used as a doorstop?
> 
> Not touchy, not even a Dish customer for that matter. Right now it is our (yours, mine and every other U.S. citizen's) satellite. Fact is it was never Charlie's satellite either.
> 
> Hey, imagine that! Charlie is going to sue someone!! Thanks for proving my point.


Surprisingly, Charlie isn't suing anyone over it. Now SES Americom might be suing ILS or their insurance company over the failed launch.

Sorry about the highjack, back to the regular discussion about Charlie, TIVO and Judge Folsom.


----------



## Herdfan

jacmyoung said:


> And this much I can say and people on the other side cannot, E* is not in contempt as of today.


They may very well be in contempt *today*. What they haven't been is adjudicated to be in contempt *today*.

If in the February hearing the judge finds that they are in contempt, it will be retroactive back to the original date and damages calculated through the date of the hearing which will include *today*.

If I commit a crime today, I am guilty of that crime today. I may not have been found guilty by a court today, but I am still guilty.


----------



## Ergan's Toupe

jacmyoung said:


> The question is, even after the judge had given TiVo another chance, and a real good chance to go over all the new disclosures provided by E*, TiVo is still saying the exact same, why do people believe all the sudden the outcome will change?


What outcome? Was there a contempt ruling I didn't hear about?


----------



## Ergan's Toupe

Albie said:


> Surprisingly ,Charlie isn't suing anyone over it. Now SES Americom might be suing ILS or their insurance company over the failed launch.


Honestly, I'm shocked! I would have bet my house that Charlie would have been involved in some kind of litigation after that fiasco.



Albie said:


> Sorry about the highjack, back to the regular discussion about Charlie, TIVO and Judge Folsom.


No problem, I'm just trying to stay on topic for a change. :grin:


----------



## Herdfan

jacmyoung said:


> Again go back to read all you want the arguments why they no longer infringe, if I ever try to rehash any of those arguments, I am afraid James will finally kick me to the curb


I can read them until I am blue in the face. What you, Curtis, James, Peak, ET, Greg or I think about those areguments doesn't mean squat. Neither does what DISH or TiVo say. It is what Judge Folsom says that matters. You seem to be forgetting that sometimes.


----------



## jacmyoung

Ergan's Toupe;1958559 said:


> What outcome? Was there a contempt ruling I didn't hear about?


The outcome from 5/30 and 9/4 was TiVo failed to use their argument to convince the judge that E* was in contempt, the question is why do you think the outcome will be different after the next date, if TiVo is still making precisely the same argument?


----------



## jacmyoung

Herdfan said:


> I can read them until I am blue in the face. What you, Curtis, James, Peak, ET, Greg or I think about those areguments doesn't mean squat. Neither does what DISH or TiVo say. It is what Judge Folsom says that matters. You seem to be forgetting that sometimes.


Then why are you here? You seem to come here from time to time to say a few things people here had no interest in, and you still have not learned that after all this time?


----------



## HobbyTalk

Ergan's Toupe;1958296 said:


> Yea, how did that work out for him with TIVO?


Since we don't know the final outcome it may very well come out very good. Seeing that Charlie is a gambler, the $100+ million spend on this case could very well be money well spent if it eliminates or marginalizes the major competition. Face it, if TiVo loses, they are in big trouble. They have very few income producing subscribers and a few licensing agreements that have produced little to no income. If the final outcome is that the new software does not infringe I would suspect that SATS will quickly move into the cable STB arena as announced with their superior software/hardware/sling technology.


----------



## dgordo

jacmyoung said:


> The outcome from 5/30 and 9/4 was TiVo failed to use their argument to convince the judge that E* was in contempt, the question is why do you think the outcome will be different after the next date, if TiVo is still making precisely the same argument?


Couldn't one say that Dish failed to use their argument to convince the judge that they were not in contempt? And the question would be, why do you think the outcome will be different after the next hearing?


----------



## Herdfan

jacmyoung said:


> Then why are you here? You seem to come here from time to time to say a few things people here had no interest in, and you still have not learned that after all this time?





Ergan's Toupe;1958605 said:


> Oh..... My...... God....... :bang
> 
> Speak for yourself. When you become moderator let me know, I'll never post here again.
> 
> Not for nothing but I'm interested in what he has to say. Along with Greg, Curtis, James, Peak, Curious, Mainer, The Judge etc.


In all fairness, I did give him grief for posting in a DirecTV forum.

Though if you like his work, check this out starting at post 301.:lol:

Edit: WTF is wrong with the software that it no longer highlights links. I had to go "color" them manually.


----------



## Ergan's Toupe

HobbyTalk said:


> Since we don't know the final outcome it may very well come out very good. Seeing that Charlie is a gambler, the $100+ million spend on this case could very well be money well spent if it eliminates or marginalizes the major competition.


Good points. I agree.



HobbyTalk said:


> Face it, if TiVo loses, they are in big trouble.


Tivo has been in big trouble since the day they opened their doors. Nothing has changed since then other than they have 200 million in cash and no debt. They can last a very long time with status quo.



HobbyTalk said:


> They have very few income producing subscribers and a few licensing agreements that have produced little to no income.


Lets hold off on the death knell until the Comcast, Cox and DTV deals have had a chance to mature.



HobbyTalk said:


> If the final outcome is that the new software does not infringe I would suspect that SATS will quickly move into the cable STB arena as announced with their superior software/hardware/sling technology.


What makes you think the Cable companies are going to line up to deal with Charlie? He can't sue to make them buy his boxes. Ask Tivo. Hell, Charlie just has to ask himself.


----------



## James Long

Ergan's Toupe;1958380 said:


> They asked for 5 hours each. 5 hours each was denied. Did they get more time? Yes, but so did TIVO, without even asking for it, I might add. Did E* get what they asked for (5 hours)? No. Hence, DENIED!!!


You said total loss ... getting a few more hours to argue is a partial victory. Even Judge Folsom admits that by saying "granted in part".


----------



## James Long

Guys, don't forget that this thread is for the discussion of the case ...
Not for trolling, one liners or zingers. The focus MUST remain the case.


----------



## jacmyoung

dgordo said:


> Couldn't one say that Dish failed to use their argument to convince the judge that they were not in contempt? And the question would be, why do you think the outcome will be different after the next hearing?


You will not ask this question if you are a lawyer And of course the question is flawed even if asked that way because the best you can say is if the outcome will be the same there will never be a ruling. If so nothing Tivo can do while E* does as they please.

The reason the question is only one-sided is because the proceeding in front of us is called a summary proceeding, and TiVo is the moving party in this proceeding, E* is the non-moving party:



> 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 [the moving party] on a summary judgment motion can produce the evidence of "a dozen bishops", and the other side [the non-moving party] only has the testimony of a known liar, then summary judgment is not appropriate [no contempt]. Deciding on the relative credibility of witnesses is a question for trial [not for the summary proceeding].


The above description will give some insight to what TiVo needs to do and what E* needs to do in this summary contempt proceeding.

If TiVo can produce "a dozen reputable experts" to testify that E* did not do enough in their design around, and E* only has the testimony of "a known-liar" expert testifying that E*'s design around did enough, then a dispute of facts exists, and a summary contempt judgment will be inappropriate.

Because to decide who is truthful who is not will require a trial, it cannot be done in a summary contempt proceeding.

If one accepts the above interpretation of the law, then the question is, what has TiVo been saying about the design around and by how much, and what E* has been saying and by how much.

TiVo has been saying, the modified DVRs still "parse".

E* has been saying, their new design no longer has that "physical data source" and do not "temporary store" anything, and there is no "source object" to "extract" the "stored data" from that "physical data source", additionally, because the new design is using only a single buffer, there is no more "automatic flow control".

Keep in mind, all of the above highlighted terms are contained in the patent claim limitations. And we all agree that all of the terms must be met to prove an infringement.

Now it seems to me from the above, E* has produced "a dozen bishops" and TiVo had only one "known liar", how can you say from a legal standpoint a summary contempt judgment may be appropriate, especially when you realize, even if the table is turned, that TiVo has "a dozen bishops" and E* has "one known liar", a summary contempt judgment may still not be appropriate?

Now I know the terms "bishops" and "known liar" used in the original paragraph were referring to the strength of the evidence not the quantity, but still I applied them to E* and TiVo's claim limitations just to have a little bit of fun at it.


----------



## Greg Bimson

jacmyoung said:


> If TiVo can produce "a dozen reputable experts" to testify that E* did not do enough in their design around, and E* only has the testimony of "a known-liar" expert testifying that E*'s design around did enough, then a dispute of facts exists, and a summary contempt judgment will be inappropriate.
> 
> Because to decide who is truthful who is not will require a trial, it cannot be done in a summary contempt proceeding.
> 
> If one accepts the above interpretation of the law, then the question is, what has TiVo been saying about the design around and by how much, and what E* has been saying and by how much.


Ahh, but then there is this important piece...

If a summary contempt judgment is inappropriate even if expert testimony is given, then why is Judge Folsom even bothering with finding contempt?

Although a contempt proceeding is summary in nature, it is not the same as asking for the granting of a contempt motion. It is not the same as your example, which only discusses a summary judgment in lieu of a trial setting, not a contempt proceeding.


----------



## Greg Bimson

Greg Bimson said:


> ...Judge Folsom has decided he needs to determine the status of infringment and an evaluation of colorable difference in order to determine contempt.





jacmyoung said:


> But according to you TiVo had already addressed them before 9/4, there is nothing more to address?
> 
> Or are you saying it is now the judge's job to prove E* is in contempt? It is always the mover in a summary proceeding to prove with clear and convicing evidence why the defendent is in contempt, not the judge.
> 
> Had TiVo proven so, the judge would have ruled a contempt after 9/4.
> 
> The question is, even after the judge had given TiVo another chance, and a real good chance to go over all the new disclosures provided by E*, TiVo is still saying the exact same, why do people believe all the sudden the outcome will change?


There hasn't been an outcome, yet.

Besides, that is not what I am saying.

Judge Folsom requires the determination of infringement and the status of colorable difference before he can rule on contempt. The technical evidence was given by DISH/SATS regarding the workaround, but it was not the key evidence of the motion as TiVo was never given discovery to view all of what it wanted from DISH/SATS.

Besides, TiVo ended up asking for DISH/SATS to pay additional damages, as well as to be found in contempt of the injunction in two ways: "prima facie" for failure to disable and ongoing infringement of receivers sold since the injunction went into effect. There has not been one ruling from the bench on the damages nor the contempt motion.

Judge Folsom may not have been able to rule on "prima facie" contempt because that was not the only issue regarding contempt.


----------



## the judge

jacmyoung said:


> The reason the question is only one-sided is because the proceeding in front of us is called a summary proceeding, and TiVo is the moving party in this proceeding, E* is the non-moving party:...


Jacm, I can't even get past your opening assertion that it's a Summary Judgment hearing (commonly referred to as a Rule 56 Motion). It's clearly not, and your cite from wiki is not relevant.

According to Folsom's December 5 Order it's an evidentiary hearing:
"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."

Furthermore, the standard of law for deciding whether a party is in contempt rests squarely with the court and not a jury.


----------



## dgordo

jacmyoung said:


> You will not ask this question if you are a lawyer And of course the question is flawed even if asked that way because the best you can say is if the outcome will be the same there will never be a ruling. If so nothing Tivo can do while E* does as they please.
> 
> The reason the question is only one-sided is because the proceeding in front of us is called a summary proceeding, and TiVo is the moving party in this proceeding, E* is the non-moving party:
> 
> The above description will give some insight to what TiVo needs to do and what E* needs to do in this summary contempt proceeding.
> 
> If TiVo can produce "a dozen reputable experts" to testify that E* did not do enough in their design around, and E* only has the testimony of "a known-liar" expert testifying that E*'s design around did enough, then a dispute of facts exists, and a summary contempt judgment will be inappropriate.
> 
> Because to decide who is truthful who is not will require a trial, it cannot be done in a summary contempt proceeding.
> 
> If one accepts the above interpretation of the law, then the question is, what has TiVo been saying about the design around and by how much, and what E* has been saying and by how much.
> 
> TiVo has been saying, the modified DVRs still "parse".
> 
> E* has been saying, their new design no longer has that "physical data source" and do not "temporary store" anything, and there is no "source object" to "extract" the "stored data" from that "physical data source", additionally, because the new design is using only a single buffer, there is no more "automatic flow control".
> 
> Keep in mind, all of the above highlighted terms are contained in the patent claim limitations. And we all agree that all of the terms must be met to prove an infringement.
> 
> Now it seems to me from the above, E* has produced "a dozen bishops" and TiVo had only one "known liar", how can you say from a legal standpoint a summary contempt judgment may be appropriate, especially when you realize, even if the table is turned, that TiVo has "a dozen bishops" and E* has "one known liar", a summary contempt judgment may still not be appropriate?
> 
> Now I know the terms "bishops" and "known liar" used in the original paragraph were referring to the strength of the evidence not the quantity, but still I applied them to E* and TiVo's claim limitations just to have a little bit of fun at it.


This is all irrelevant, see below:



the judge said:


> Jacm, I can't even get past your opening assertion that it's a Summary Judgment hearing (commonly referred to as a Rule 56 Motion). It's clearly not, and your cite from wiki is not relevant.
> 
> According to Folsom's December 5 Order it's an evidentiary hearing:
> "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."
> 
> Furthermore, the standard of law for deciding whether a party is in contempt rests squarely with the court and not a jury.


Exactly, nice to have another (I'm guessing?) lawyer here to correct his numerous inaccurate civil procedure points.


----------



## jacmyoung

Greg Bimson said:


> Ahh, but then there is this important piece...
> 
> If a summary contempt judgment is inappropriate even if expert testimony is given, then why is Judge Folsom even bothering with finding contempt?


If there is no dispute of facts. There are two part of this sentence, first a dispute, second facts. He knew the dispute exsited, and based on the dispute he could not find a contempt, but he wanted to also make sure the facts are in fact facts. If they are true as E* said, then the dispute will be enough to find a no contempt.



> Although a contempt proceeding is summary in nature, it is not the same as asking for the granting of a contempt motion. It is not the same as your example, which only discusses a summary judgment in lieu of a trial setting, not a contempt proceeding.


The burden of proof is the same.


----------



## jacmyoung

Greg Bimson said:


> ...but it was not the key evidence of the motion as TiVo was never given discovery to view all of what it wanted from DISH/SATS.


Now they do, and based on the fact TiVo is still saying the same, my conclusion is E*'s evidence are indeed true. Otherwise TiVo would have said, look, after we looked at the full new disclosures, here is where E* has lied about the facts on 5/30 and 9/4. Remember TiVo has already produced their expert disclosures, and still saying the same.



> Judge Folsom may not have been able to rule on "prima facie" contempt because that was not the only issue regarding contempt.


He needed not rule on both issue, he could do each separately. And in fact he is doing only one issue now.


----------



## jacmyoung

dgordo said:


> This is all irrelevant, see below:
> 
> Exactly, nice to have another (I'm guessing?) lawyer here to correct his numerous inaccurate civil procedure points.


Of course the court will ultimately decide the contempt issue, but only if the mover has proven it with clear and convincing evidence, so the decision can be a contempt, and on the other hand, if the non-mover may offer any dispute of facts, the decision can be a no contempt.

That is why the burden of proof is on the mover, not on the non-mover, nor on the judge.


----------



## Jason Nipp

*DISH Network and EchoStar Statement Regarding Tivo*​
*ENGLEWOOD, Colo. - Jan. 13, 2009* - DISH Network Corporation (NASDAQ: DISH) and EchoStar Corporation (NASDAQ: SATS) issued the following statement regarding recent developments in the Tivo Inc. v. EchoStar Communications Corp. lawsuit:
"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."

# # #
​
*About DISH Network Corporation*
DISH Network Corporation (Nasdaq: DISH), the nation's third largest pay-TV provider and the leader in digital television, provides approximately 13.78 million satellite TV customers as of Sept. 30, 2008 with industry-leading customer satisfaction which has surpassed major cable TV providers for eight consecutive years. DISH Network also provides customers with award-winning HD and DVR technology including the ViP722™ HD DVR, which received the Editors' Choice awards from both CNET and PC Magazine. In addition, subscribers enjoy access to hundreds of video and audio channels, the most International channels in the U.S., industry-leading Interactive TV applications, Latino programming, and the best sports and movies in HD. DISH Network offers a variety of package and price options including the lowest all-digital price in America, the DishDVR Advantage Package, high-speed Internet service, and a free upgrade to the best HD DVR in the industry. DISH Network is included in the Nasdaq-100 Index (NDX) and is a Fortune 300 company. Visit www.dishnetwork.com/aboutus New Roman] or call 1-800-333-DISH (3474) for more information. 

*About EchoStar Corporation*
EchoStar Corporation (Nasdaq: SATS) provides equipment sales, digital broadcast operations, and fixed satellite services. EchoStar has 25 years of experience designing, developing and distributing advanced award-winning set-top boxes and related products for pay television providers. The company includes a network of 10 full-service digital broadcast centers and leased fiber optic capacity with points of presence in approximately 150 cities. EchoStar also delivers fixed satellite services from nine owned and leased in-orbit satellites and related FCC licenses. Visit www.echostar.com[/URL] for more information.


----------



## Herdfan

HobbyTalk said:


> If the final outcome is that the new software does not infringe I would suspect that SATS will quickly move into the cable STB arena as announced with their superior software/hardware/sling technology.





Ergan's Toupe;1958687 said:


> What makes you think the Cable companies are going to line up to deal with Charlie? He can't sue to make them buy his boxes. Ask Tivo. Hell, Charlie just has to ask himself.


First, does anyone think the cablecos would enter a business transaction with DISH who 1) is run by Charlie who seems to be one of the most difficult people in the world to deal with, and 2) is one of their top competitors?

Now, there is that little law that will allows consumers to own their own cable boxes, so maybe Charlie has an in there.


----------



## dgordo

jacmyoung said:


> Of course the court will ultimately decide the contempt issue, but only if the mover has proven it with clear and convincing evidence, so the decision can be a contempt, and on the other hand, if the non-mover may offer any dispute of facts, the decision can be a no contempt.
> 
> That is why the burden of proof is on the mover, not on the non-mover, nor on the judge.


So why hasn't Folsom dismissed the motion seeking contempt if Tivo has failed to prove contempt?


----------



## dgordo

Jason Nipp said:


> "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."


interesting :lol:


----------



## Mainer_ayah

dgordo said:


> interesting :lol:


Can you spell DESPERATION MOVE.

But I'm sure Jac will spin it into a perfectly logical and strategically sound tactic.


----------



## Ergan's Toupe

Mainer_ayah said:


> Can you spell DESPERATION MOVE.
> 
> But I'm sure Jac will spin it into a perfectly logical and strategically sound tactic.


Why would Charlie even announce this? Shouldn't he have just announced the results afterwards?

Besides, didn't he pull this stunt last year?


----------



## GrumpyBear

Herdfan said:


> Now, there is that little law that will allows consumers to own their own cable boxes, so maybe Charlie has an in there.


Charlie "may" have an in, but you will only see EchoStar on any co-branded product with Telco's or Cable companies. For us, yes EchoStar and Dish go hand and hand, but for the avg Telco, or Cable person, Echostar wont mean much. NO Way will you see Dish anything on a co-branded product.


----------



## James Long

Mainer_ayah said:


> Can you spell DESPERATION MOVE.
> 
> But I'm sure Jac will spin it into a perfectly logical and strategically sound tactic.


Perhaps requesting a reexamination of the patent would be a "desperation move" ... but getting a reexamination granted? Genius!


----------



## scooper

I find it it an interesting move. If The PTO actually does re-examine it and nullifies the existing '389 patent, what happens to this whole case ?

Conversely - what happens if they let it stand as it is ? - This one I believe we just stay where we are right now.


----------



## Mainer_ayah

James Long said:


> Perhaps requesting a reexamination of the patent would be a "desperation move" ... but getting a reexamination granted? Genius!


Or perhaps wealth rather than genius!!


----------



## James Long

GrumpyBear said:


> Charlie "may" have an in, but you will only see EchoStar on any co-branded product with Telco's or Cable companies. For us, yes EchoStar and Dish go hand and hand, but for the avg Telco, or Cable person, Echostar wont mean much. NO Way will you see Dish anything on a co-branded product.


No problem. Echostar brand will do. It is money for the company.


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## James Long

Mainer_ayah said:


> Or perhaps wealth rather than genius!!


Please leave any claims of corruption outside of the forums.


----------



## Ergan's Toupe

scooper said:


> I find it it an interesting move. If The PTO actually does re-examine it and nullifies the existing '389 patent, what happens to this whole case ?
> 
> Conversely - what happens if they let it stand as it is ? - This one I believe we just stay where we are right now.


http://arstechnica.com/news.ars/pos...tivo-patent-at-issue-in-echostar-lawsuit.html


----------



## Jason Nipp

scooper said:


> I find it it an interesting move. If The PTO actually does re-examine it and nullifies the existing '389 patent, what happens to this whole case ?


What I find interesting, and note that this is pure hypothetical babbling of my mind, what if they win it???

Does that give them right to get the whole thing overturned/reversed?

Didn't E* already pay the settlement on the original software infringment suit?


----------



## GrumpyBear

Jason Nipp said:


> What I find interesting, and note that this is pure hypothetical babbling of my mind, what if they win it???
> 
> Does that give them right to get the whole thing overturned/reversed?
> 
> Didn't E* already pay the settlement on the original software infringment suit?


Wasn't the money put in holding or Trust until the lawsuit was over?


----------



## James Long

The initial penalty HAS been paid to TiVo (at the time of the Supreme Court decision not to hear the case, ending all appeals of the original verdict). That money was in a trust for a brief time but has now been turned over to TiVo.

What is being haggled over now is payment for infringement for the period the injunction was stayed ... payment for infringement post injunction and a penalty assuming DISH is in contempt for not disabling the DVR functionality as ordered.

Of course if DISH is no longer infringing the math changes ... payment for infringement is only for when DISH is infringing.


----------



## scooper

I thought all the PTO stuff was over and done with - this is like a bolt from the blue.


----------



## dgordo

Mainer_ayah said:


> Can you spell DESPERATION MOVE.
> 
> But I'm sure Jac will spin it into a perfectly logical and strategically sound tactic.


I agree it was a hail mary, but the PTO has agreed to hear the case. They dont just agree to hear a case for the fun of it.

For those wondering, if the PTO rules the patent invalid, and that is obviously a big if, that would not alter the damages *already* paid to Tivo. At the time of the decision the patent was valid, that is all that matters.


----------



## the judge

From ars technicha:

*Patent Office upholds key TiVo patent at issue in EchoStar lawsuit By Eric Bangeman,
Published: November 29, 2007 - 03:31PM CT*

TiVo appears to have won a decisive victory in its patent infringement lawsuit against satellite TV provider EchoStar. Today, the US Patent and Trademark Office issued a final and unappealable decision on TiVo's patent 6,233,389 for a "multimedia time warping system," ruling that the patent was valid and enforceable.

*Out of options, DISH finally pays TiVo $104 million judgment*
TiVo wins on appeal; Dish Networks DVRs could be turned off DISH tries to validate patent workaround, sues TiVo Court smacks down DISH Network appeal in TiVo patent case TiVo sued EchoStar in 2005 over the DVRs the satellite company manufactures and sells for its Dish Network. In April 2006, a jury found EchoStar liable for patent infringement and awarded TiVo $73 million in damages. In August of that year, TiVo obtained an injunction against EchoStar, ordering it to stop selling DVRs and disable the DVR functionality on its products within 30 days. The judge also upped the damage award to $90 million.

EchoStar filed a countersuit challenging the validity of the '389 patent, but a federal judge put that suit on hold until the USPTO ruled on the patent. EchoStar was, however, able to win a stay of the injunction allowing it to continue manufacturing and selling DVRs while the patent reexamination process played out.

"We are extremely pleased that the PTO has now found all claims of the Time Warp Patent to be valid after conducting a reexamination of the patent requested by EchoStar," said TiVo in a statement. "We are hopeful that the United States Court of Appeals for the Federal Circuit will uphold the district court judgment of patent infringement and reinstate the injunction."

Now that the USPTO has ruled decisively in TiVo's favor, the case will go before the US Court of Appeals for the Federal Circuit. The decision will strengthen TiVo's hand in negotiations with other DVR makers, and makes it more likely that the appeals court will reinstate the injunction, forcing EchoStar to pay damages for the infringement and shut off their customers' DVRs. EchoStar may now attempt to settle the case with TiVo to avoid having the permanent injunction reinstated.


----------



## scooper

That does NOT cover this re-exam.


----------



## Mainer_ayah

James Long said:


> Please leave any claims of corruption outside of the forums.


I made no such claim. In this country, wealth can be viewed by certain individuals, with undue respect and admiration. A wealthy person can get his way without a corrupt nickle changing hands.

But now that you have pointed it out, perhaps corruption did have something to do with it. Your word, not mine.


----------



## Bidderman9

the judge said:


> From ars technicha:
> 
> *Patent Office upholds key TiVo patent at issue in EchoStar lawsuit By Eric Bangeman,
> Published: November 29, 2007 - 03:31PM CT*
> 
> TiVo appears to have won a decisive victory in its patent infringement lawsuit against satellite TV provider EchoStar. Today, the US Patent and Trademark Office issued a *final and unappealable* decision on TiVo's patent 6,233,389 for a "multimedia time warping system," ruling that the patent was valid and enforceable.


I remember allot of discussion around this "Final and Unappealable" statement. How can they "revisit" it if it is "Final and unappealable"???


----------



## James Long

The Determination ... read in a little ways and you will see that EchoStar is attacking claims 31 and 61 showing two prior filed patents that were not considered in the previous reexamination.


----------



## Curtis52

Any adverse reexamination result can be appealed by TiVo all the way to the Supreme Court. That would take years. This case will be over before then.


----------



## James Long

http://investor.tivo.com/releasedetail.cfm?ReleaseID=359047


> TiVo Inc. (Nasdaq: TIVO), the creator of and a leader in television products and services for digital video recorders (DVR), offered the following statement today regarding the decision by the United States Patent and Trademark Office to reexamine the software claims of TiVo's Time Warp Patent:
> 
> "EchoStar filed its latest request for reexamination after TiVo asked the United States District Court to hold EchoStar in contempt of the Court's injunction requiring EchoStar to disable its DVR functionality. An evidentiary hearing on the contempt issues is scheduled to be held on February 17 and 18, 2009.
> 
> "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

Bidderman9 said:


> I remember allot of discussion around this "Final and Unappealable" statement. How can they "revisit" it if it is "Final and unappealable"???


What was final and not appealable was that judgment, not whether the patent itself is an admitted patent by the PTO or not.

dgordo is right on that even if E* manages to have PTO invalidate the TiVo's patent, E* will not be able to revisit that judgment and try to get the money back.

At the time of determining infringement, the patent in question must be granted/admitted first, but that does not mean it is enough. The court must determine whether the patent, even though already admitted, is valid or not (enforceable or not). If the court determines the patent is invalid, the case (not the patent) is thrown out, even though the patent is still admitted. The court does not care what the PTO's opinoin about the patent, only that whether the patent is admitted or not. The court will determine for itself the validity of the patent.

But if at the time the patent is admitted, and also validated to be enforceable by the court, and if infringement is also found, the judgment can be made against the act of infringing on such patent.

Whether the PTO later uphold or invalidate the patent or not, is a separate action from the court's action. As long as throughout the entire course of the trial the patent is an admitted patent.

There is no final and unappealable patent from a legal standpoint, it is up to the PTO.


----------



## jacmyoung

Curtis52 said:


> Any adverse reexamination result can be appealed by TiVo all the way to the Supreme Court. That would take years. This case will be over before then.


However, this case may not go beyond the current 8 models of DVRs anymore. And TiVo may not file a new lawsuit until they get the patent re-validated by the court.


----------



## James Long

jacmyoung said:


> However, this case may not go beyond the current 8 models of DVRs anymore. And TiVo may not file a new lawsuit until they get the patent re-validated by the court.


Always a step ahead? The patent remains valid until the PTO says otherwise.


----------



## Bidderman9

jacmyoung said:


> What was final and not appealable was that judgment, not whether the patent itself is an admitted patent by the PTO or not.
> ...
> 
> There is no final and unappealable patent from the PTO standpoint.


OK, I understand that they are saying that the judgement is final and not appealable, but the Patent itself is is subject to review and appeal. But in essence aren't they appealing the last (final) judgement?


----------



## jacmyoung

James Long said:


> Always a step ahead? The patent remains valid until the PTO says otherwise.


I was responding to Curtis' "any adverse reexamination result [two months from now]".


----------



## James Long

Bidderman9 said:


> OK, I understand that they are saying that the judgement is final and not appealable, but the Patent itself is is subject to review and appeal. But in essence aren't they appealing the last (final) judgement?


No. That appeal would be along the lines of saying that the past decision was made wrong and asking that the decision be reviewed.

This new action against the patent is using that evidence that the last reviewer did not have to reevaluate the patent. It is a separate claim (although similar as both claims desire the same result).


----------



## jacmyoung

Bidderman9 said:


> OK, I understand that they are saying that the judgement is final and not appealable, but the Patent itself is is subject to review and appeal. But in essence aren't they appealing the last (final) judgement?


I corrected my last post a little, there is no final and unappealable patent as far as the trial courts that deal with such related patent lawsuit are concerned, it is up to the PTO to decide the patent validity itself, whether final, or appealable, according to the legal standards governing the PTO's own rules.

The legal standards governing an infringement trial is separate from the legal standards governing how the PTO deny or admit a patent. The PTO does not care about infringement, it only cares about if the patent should be admitted.

Likewise the trial courts do not care about the PTO's opinions, only that the patent is admitted by the PTO at the time of the trial. That is why despite the fact the patent is admitted by the PTO at the time of the trial, the trial court must still conduct its own Markman Hearing and then the jury must first determine the validity of the patent.


----------



## jacmyoung

> ...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.


The quote above by TiVo left out a big fact, that even though both art references were considered last time, they were not considered together. Now after putting the two together to compare with the TiVo's patent claims 31 and 61, the PTO found substantial new evidence raising the question about the validity of the TiVo patent claims 31 and 61.

And for TiVo to say the PTO "made no substantive findings" is of course correct, the PTO will not make any finding until two months from now. But the PTO's reasoning behind the granting of the reexamination was very substantive, just read James' attached file, it talks about all the claim limitations described by the above two prior patent claims, how they match the claim limitations of TiVo's 31 and 61.


----------



## dgordo

Tivo said:


> The USPTO grants most patent reexamination requests.


Its been a while since I interned there, but unless something has changed this is not true. I didn't know many people there who wanted to do more than the minimum necessary work.


----------



## jacmyoung

dgordo said:


> Its been a while since I interned there, but unless something has changed this is not true. I didn't know many people there who wanted to do more than the minimum necessary work.


Not to mention the last such E*'s request was actually denied.

And if your assertion is correct, then it may be easier to have a favorable finding for the petitioner once the reexamination request is granted. What a waste of the final work if the previous work of granting is for nothing


----------



## jacmyoung

dgordo said:


> So why hasn't Folsom dismissed the motion seeking contempt if Tivo has failed to prove contempt?


I can now expand on my explanation to Greg on this question because of the judge's latest order. In it he stated that E* had a lot of time to prepare for their argument against a future possible contempt motion brought up by TiVo, in fact since 10/06 when E* began its design around, that is about a nearly two years of head start in preparation.

TiVo on the other hand had only a little over 3 months, from 5/30 to 9/4 to consider the issue of the design around, more accurately not to consider it because TiVo was saying the design around did not matter. While there was a limited discovery between E* and TiVo before 5/30, not much was known about the facts surrounding the design around other than what E* was telling TiVo.

Of course right before the 9/4 hearing TiVo did start to talk about the new design and made their own limited argument on that issue.

"If you wanted fairness", I still remember what the judge said to E*'s lawyer on 9/4, it seemed reasonable and necessary to give TiVo equitable chance at taking a complete stab at the design around evidence.

Now the judge said both parties are ready, fair and square, to talk about the design around in the Feb hearing, whether the new design is more than colorable, and if the new design still infringes.

The question of course is, did TiVo take the full advantage of such opportunity, if TiVo is still saying the same old about the design around right before the 9/4 hearing, that it still "parses", and nothing more?


----------



## nobody99

I've been in hiding, biting my lip, trying to just ignore the, well, I won't even say it.

But I just can't let this absolute fallacy go without comment



jacmyoung said:


> the PTO found substantial new evidence raising the question about the validity of the TiVo patent claims 31 and 61.
> ...
> But the PTO's reasoning behind the granting of the reexamination was very substantive


It is absolutely positively hilarious to me that you think the PTO "found substantial new evidence." or that the the PTO reasoned about _anything_. You took DISH's bait hook, line, and sinker. You took their spin so hard you're probably having a hard time standing up.

Let's visit, for a moment, a September 2008 "Legal News and Updates" page on Morrison & Foerster's web site, shall we? Don't know who Morrison & Foerster is? Oh, that's DISH's legal counsel. Mofo.com. Hilarious.



mofo.com said:


> In its September 4, 2008 ruling in In re Swanson, the Federal Circuit affirmed a decision of the Board of Patent Appeals and Interferences, in which the Board invalidated patent claims in a reexamination proceeding based on a prior art reference that had been considered in the original examination as well as earlier phases of the litigation. * The ruling clarified the scope of the "substantial new question of patentability" requirement used in reexamination proceedings since a 2002 amendment of 35 U.S.C. § 303(a). * Specifically, the Federal Circuit held that consideration of a prior art reference in the previous litigation and in the original examination does not preclude a finding of a new question of patentability based on the same prior art reference in reexamination.


Gee, does that sound familiar to you?

Let's look at DISH's press release



DISH said:


> 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.


Sound familiar?

Just to make it easy for you:

mofo: substantial new question of patentability
DISH: substantial new question of patentability

Yup, same exact text.

Let's look at the end of the "Legal Updates" page from mofo, just for giggles:



mofo.com said:


> By endorsing the PTO's broad view of what qualifies as a substantial new question, the Federal Circuit has reinforced the attractiveness of reexamination as an alternative or supplement to district court invalidity challenges.


Hmm, that sounds awfully gosh-darn familiar, doesn't it?

So, let me see if I can wrap this all up in an easy-to-digest wrapping:

mofo reads a particular decision in an unrelated case and recognizes that they now have a new tool in their legal arsenal. Not just for DISH, but for anyone.

It's like they went to Sears and saw a new RoboGrip wrench on the shelf and bought it for future use.

Like any good little money-grubbing scumbag lawyers (with all due respect to lawyers on this forum, of course), they recognize that the new RoboGrop wrench might just fit the screw that TiVo is putting to DISH. If you are getting pummeled, you throw up everything you can find on defense.

It reeks of desperation. The fact that they worded their press release to make it look like the PTO actually even looked at the merits of the case says they are spinning this thing wildly. "Appear to render TiVo's '389 patent invalid?" Who said that, the PTO? No! DISH says it! You really don't think that's spin?

Hilarious. Jacmyoung, does that hook in your cheek hurt? How's the bait taste? :hurah::hurah:

No need to respond - I am returning to my incognito ways.


----------



## James Long

The lawyers I deal with are constantly looking at the results others in their field are getting. If the company lawyers are not actively doing the best they can for their clients then they need to be replaced. I too watch for precedents being set and policy changes that could help the company I work for ... then run it past the lawyers to make sure I understood the change. You have to do everything to protect the business, or someone else will do what you missed and you'll end up out of luck.

Citing precedents and prior cases should not be surprising. What would be surprising would be if "MoFo" failed to act and do the best for their client, EchoStar/DISH Network.

I'll wait for the court rulings to stick a fork in TiVo's attempts to keep DISH from offering a DVR free of royalties to TiVo. The stalemate seems the same ... TiVo firmly believes DISH infringes ... DISH firmly believes they don't.

TiVo really doesn't have an option as any admission of possible non-infringement confirms that DVRs can be built without TiVo. The best they can hope for (other than a ruling of infringement) is a ruling of colorable difference so they can continue to claim the DVRs infringe while they work to prove it once again. If there is ever a ruling of no infringement or the patent is overturned get the fork out for TiVo. They will have to compete with quality and features instead of threats and manipulation.

EchoStar is one of the few companies who not only CAN create a DVR free of TiVo's software, but has the tenacity to defend their designs.

There is still that lingering contempt motion out there ... but without infringement at most it will be a slap on the wrist for not going about the change "in the right way". TiVo needs infringement to win.


----------



## the judge

James Long said:


> EchoStar is one of the few companies who not only CAN create a DVR free of TiVo's software, but has the tenacity to defend their designs.


You've got to be kidding.

Echostar is a proven patent infringer. The ONE thing that's been proven so far is they can't create a DVR free of Tivo's software. They have shown tenacity in defending a design (not their design) that has cost them at least $120,000,000 in damages plus tens of millions more in legal fees. I would have chosen another word besides "tenacity" - any help out there?

Your statement lacks foundation. Let's wait until Echostar actually produces a DVR free of Tivo software before we proclaim their superiority.


----------



## jacmyoung

http://www.uxmatters.com/MT/archives/000210.php



> The controversy surrounding the issuance of software patents had already led many to begin questioning the US patent system in the early 1990s. Then the US patent system seriously went off the rails in the late 1990s when Congress reduced funding for the USPTO and required the USPTO to submit 10% of all revenues from patent filing and issuance fees to the US Treasury-effectively taxing the USPTO-while at the same time, the pace of filings increased. A perfect storm for the patent system. So like any good self-perpetuating bureaucracy, the leaders at the patent office decided to make up for the funding gap by increasing their reliance on fees from patent applications and issuances.
> 
> Not surprisingly, this created a strong incentive within the USPTO to accept more patent applications. This has increased the workload on individual patent examiners. In past decades, a patent examiner would carry out a fairly comprehensive, independent search for prior art when evaluating a patent application-not simply rely on the applicant to describe and report any prior art in the application. Searching for prior art obviously takes time. Today, it is less and less likely that a patent examiner will conduct anything more than a cursory search for prior art.
> 
> By the beginning of this decade, the USPTO was essentially granting patents to anyone who asked nicely. The decline of the US patent system and the USPTO is almost laughable...


Now since E* has finally succeeded (their last request for reexamination was denied I believe) in having the USPTO to grant the reexamination, maybe in this rare instance "a patent examiner would carry out a fairly comprehensive, independent search for prior art when evaluating a patent application-not simply rely on the applicant to describe and report any prior art in the application."

Ok I have given the patent examiners too much credit already, they never carried out a fairly comprehensive, indpendent earch for prior art in this case, but now E* did the work for them, maybe they will at least do the next part of their job carefully.


----------



## Curtis0620

the judge said:


> You've got to be kidding.
> 
> Echostar is a proven patent infringer. The ONE thing that's been proven so far is they can't create a DVR free of Tivo's software. They have shown tenacity in defending a design (not their design) that has cost them at least $120,000,000 in damages plus tens of millions more in legal fees. I would have chosen another word besides "tenacity" - any help out there?
> 
> Your statement lacks foundation. Let's wait until Echostar actually produces a DVR free of Tivo software before we proclaim their superiority.


Even if they can prove to no longer infringe, the fact is they started with the TiVo design. Their software will always be based on the TiVo basic software.


----------



## CuriousMark

James Long said:


> Please leave any claims of corruption outside of the forums.


Not corruption, the filing for a re-examination is expensive and is a tactic that is therefore usually reserved to those with deep pockets. The process itself can take YEARS.

It appears from posters I trust on other forums that PTO grants most of these requests as a matter of course. So the phrase "substantial New Question" which sounds big, may not in fact be quite so important. But it sure reads well in a press release, which may have been Dish's primary reason for pursuing this course. Trial in the court of public opinion matters since there are so many customers who might bail if they fear their DVRs could be turned off. (Even though that is extremely unlikely no matter what happens)

Edit: I see a post later than the one I responded too saying that these requests are not granted as a matter of course. As I don't know which poster is right I will just state that since re-examinations are funded by the requester they may tend to be more likely to accept them than not, but that I do not know that as a fact.


----------



## jacmyoung

nobody99 said:


> I've been in hiding, biting my lip, trying to just ignore the, well, I won't even say it.


I suggest you go back in hiding and here is why:



> It is absolutely positively hilarious to me that you think the PTO "found substantial new evidence." or that the the PTO reasoned about _anything_. You took DISH's bait hook, line, and sinker. You took their spin so hard you're probably having a hard time standing up.
> 
> Let's visit, for a moment, a September 2008 "Legal News and Updates" page on Morrison & Foerster's web site, shall we? Don't know who Morrison & Foerster is? Oh, that's DISH's legal counsel. Mofo.com. Hilarious.


You started out with a lavish statement of accusation that I did not interpret the USPTO's decision to grant reexamination correctly, yet you went on to talk about something else entirely different than the very USPTO decsion in front of us today.

Who cares about what was said before? I was talking about the latest USPTO's decision and their justification for granting the request. Why dont you read the USPTO's decision, James has already done the work for you, all you need to do is to read my friend, if you do, you will find out:

The USPTO has determined that in light of the new information by combining the two prior art references, which they failed to do in the last reexamination, substantive new evidence exist that the TiVo's claims 31 and 61 are now made "obvious" by such "prior art".

First, the prior art described the object oriented approach, next the USTPO touched on the various claim constructions relevant to this issue:

A physical data source
A source object, a transform object, a control object, a sink object
A temporary stored in the memory action
An automatic stop and later-retrieval function among several buffers (automatic flow control)
A storage device (hard drive)
An indexing method, and last but not the least
Parsing of data

And because of the above, the validity of the TiVo's claims 31 and 61 are in question.


----------



## jacmyoung

Curtis0620 said:


> Even if they can prove to no longer infringe, the fact is they started with the TiVo design. Their software will always be based on the TiVo basic software.


And believe it or not, such act are *encouraged* by our patent system, because the whole idea of our patent system is to encourage the inventors to publicly disclose their inventions, in detail, rather to keep them as trade secret, so others can use the information and the ideas, to come up with their own imitations, as long as the imitations do not infringe.


----------



## James Long

the judge said:


> Your statement lacks foundation. Let's wait until Echostar actually produces a DVR free of Tivo software before we proclaim their superiority.


Your statement lacks foundation. You don't KNOW that every possible design of DVR _*MUST*_ infringe on TiVo technology. You and anyone else who says it must are believing and repeating the arrogance that TiVo puts forth. You and the posse would like to paint DISH with the "once an infringer, always an infringer" brush but it is not true.

If you don't believe that every possible design of DVR _*MUST*_ infringe then you must accept that DISH could now be using a design that doesn't. It is like saying that a teenager who ran a stop sign five years ago is forever incapable of stopping at stop signs. Behaviors can change.


----------



## James Long

CuriousMark said:


> It appears from posters I trust on other forums that PTO grants most of these requests as a matter of course.
> 
> Edit: I see a post later than the one I responded too saying that these requests are not granted as a matter of course.


Perhaps the reexamination request is granted as a matter of course but declaring a patent invalid is not granted as a matter of course? It is quite possible that the posters are talking about two different things.

The petition for rexamination process seems to be straightforward. I'd expect that all except the most frivolous of requests to review would be granted. All the petitioner would need to do is raise what appears to be a new question. There is even a specific timetable for the process ... not the same as the court delaying and extending decisions seemingly forever.

Declaring the patent invalid would be a less common event.


----------



## dgordo

CuriousMark said:


> Edit: I see a post later than the one I responded too saying that these requests are not granted as a matter of course. As I don't know which poster is right I will just state that since re-examinations are funded by the requester they may tend to be more likely to accept them than not, but that I do not know that as a fact.


If other say opposite of me I would take their word over mine, as I said, it was a long time ago that I worked there. It sounds like the examiners are more interested in working these days.


----------



## jacmyoung

James Long said:


> ...Declaring the patent invalid would be a less common event.


Not as rare as one might think, in reading all the prior cases, often times I would find patents invalidated by the PTO.

However from "a case by case" approach, as the USPTO stated in this case, in the previous reexamination, they did invalidate many TiVo's claims but left the 31 and 61 standing, the reason was they did not look at the two prior art references in concert, as E* asked them to.

Then E* tried again, now the PTO has decided there is substantive new light raising the question of the claims 31 and 61's validity when the PTO finally decided to view both prior art references together.


----------



## HobbyTalk

Curtis0620 said:


> Even if they can prove to no longer infringe, the fact is they started with the TiVo design. Their software will always be based on the TiVo basic software.


And all IC engines will always be based on Nikilaus Otto's original design. What does that prove?


----------



## jacmyoung

dgordo said:


> If other say opposite of me I would take their word over mine, as I said, it was a long time ago that I worked there. It sounds like the examiners are more interested in working these days.


I doubt so Have you ever seen any defendent as persistent as E* in the past? As lazy as the examiners might be (assume you are correct), the most squeaky wheels always get the grease first.


----------



## scooper

dgordo said:


> If other say opposite of me I would take their word over mine, as I said, it was a long time ago that I worked there. It sounds like the examiners are more interested in working these days.


Corporate memory is set in stone. It's probably only the fact that Echostar (MoFo) has done their work for them that they will re-examine it again.


----------



## jacmyoung

What is unknown to me is if this USPTO's decision was a part of the E*'s last sealed motion, by E*'s statement the answer appears a no, if so, I will not be surprised to see another motion from E* to seek a delay of the current court proceeding.


----------



## CuriousMark

scooper said:


> Corporate memory is set in stone. It's probably only the fact that Echostar (MoFo) has done their work for them that they will re-examine it again.


Which is yet another example of deep pockets being able to open doors that are otherwise often closed.


----------



## jacmyoung

CuriousMark said:


> Which is yet another example of deep pockets being able to open doors that are otherwise often closed.


There are ample exceptions, we hear people with little resources yet were so determined to seek justice that they went at it alone and finally revail.

I am not saying this is a good sign our system is working as intended. The system clearly needs reform and it goes both ways.


----------



## Curtis0620

Why is it that some people here take E*s spin as Gospel and totally ignore TiVo's view?


----------



## CuriousMark

dgordo said:


> If other say opposite of me I would take their word over mine, as I said, it was a long time ago that I worked there. It sounds like the examiners are more interested in working these days.


Apparently so. It appears from the stats that 92% of re-examination requests are granted. This is from a posting by Curtis on another forum that I hope he will also post here presently.


----------



## jacmyoung

Curtis0620 said:


> Why is it that some people here take E*s spin as Gospel and totally ignore TiVo's view?


It is up to the TiVo supporters to spin TiVo's view, if there is any


----------



## jacmyoung

CuriousMark said:


> Apparently so. It appears from the stats that 92% of re-examination requests are granted. This is from a posting by Curtis on another forum that I hope he will also post here presently.


And I hope he will also point out in the last reexamination many TiVo's claims were invalidated by the PTO, the reason why the 31 and 61 were left standing was because the PTO failed to examine them by combining the two prior art references together, as E* asked them to


----------



## dgordo

CuriousMark said:


> Apparently so. It appears from the stats that 92% of re-examination requests are granted. This is from a posting by Curtis on another forum that I hope he will also post here presently.


Interesting, it was closer to 15% when I was there.


----------



## Curtis52

reexamination statistics

http://www.uspto.gov/web/patents/documents/ex_parte.pdf


----------



## HDRoberts

Curtis52 said:


> reexamination statistics
> 
> http://www.uspto.gov/web/patents/documents/ex_parte.pdf


Interesting statitics. More intersting:


> 10. Reexam claim analysis - requester is patent owner or 3rd party; or Comm'r initiated.
> ...
> b. Certificates - 3rd PARTY REQUESTER &#8230;&#8230;&#8230;&#8230;&#8230;&#8230;&#8230;&#8230;&#8230;&#8230;&#8230;&#8230;&#8230;&#8230;&#8230;&#8230;..3588
> (1) All claims confirmed 995 28%
> (2) All claims canceled 476 13%
> (3) Claim changes 2117 59%


Only 28% of the times are claims confirmed. Well they are less likely to be canceled entirely, the best odds are for a change, perhaps to Dish's liking.


----------



## the judge

James Long said:


> You don't KNOW that every possible design of DVR _*MUST*_ infringe on TiVo technology. You and anyone else who says it must are believing and repeating the arrogance that TiVo puts forth. You and the posse would like to paint DISH with the "once an infringer, always an infringer" brush but it is not true.


James, you need to read more carefully. I did not claim that every possible design of DVR must infringe on Tivo's patents. All I claimed was that as of today, every one of Echostar's DVR's that has been adjudicated infringes Tivo patents. That is a simple, undeniable fact. Until such time as Echostar invents their own DVR design, one which survives in court, I think it lacks common sense to tout Echostar's superiority.

While no one disagrees it could happen someday, no one can state that is has happened yet.

And by the way, once you have been proven to infringe, and exhausted all your appeals, and paid hundreds of million in damages, and tens of millions in legal fees, you will still always be an infringer. Regardless of whether the products you design in the future also infringe!


----------



## jacmyoung

the judge said:


> ...While no one disagrees it could happen someday, no one can state that is has happened yet...


E* says so and they say so with substantial evidence for support, I am not going to repeat them, they have been mentioned many times before.

If the court agrees with E*, E* would not be an infringer since as early as 10/06.

If the USPTO invalidates the TiVo claims 31 and 61, E* will never have been an infringer at all, at least in the minds of reasonable people.


----------



## gully_foyle

jacmyoung said:


> It is up to the TiVo supporters to spin TiVo's view, if there is any


OK, here goes: Echostar has filed a specious and strained claim based on two prior patents that have no bearing on the current patent other than terminology, solely to delay court proceedings yet again at the 11th hour.

I have to hand it to Charlie's lawyers -- they're pretty good, assuming the goal is to put off the day of reckoning. But that makes that day, which is inevitable, worse for Echostar when it rolls around. Of course, Charlie hopes that will be on the 12th of Never.

Still, the burden of proof remains with Echostar as to why the hammer should not fall, and the court may not choose to wait this time.


----------



## Curtis0620

http://www.fool.com/investing/general/2009/01/14/stop-struggling-echostar.aspx


----------



## jacmyoung

Curtis0620 said:


> http://www.fool.com/investing/general/2009/01/14/stop-struggling-echostar.aspx


Yes these guys have been advising the investors TiVo's stock would be at $22 target, then $18, then $12. What else do you expect them to say?


----------



## jacmyoung

kcmurphy88 said:


> OK, here goes: Echostar has filed a specious and strained claim based on two prior patents that have no bearing on the current patent other than terminology, solely to delay court proceedings yet again at the 11th hour...


Not much of a spin, rather reciting to me, the rest is your opinion, not spin. Want to see a spin of substance?



> The USPTO has determined that in light of the new information by combining the two prior art references, which they failed to do in the last reexamination, substantive new evidence exist that the TiVo's claims 31 and 61 are now made "obvious" by such "prior art".
> 
> First, the prior art described the object oriented approach, next the USTPO touched on the various claim constructions relevant to this issue:
> 
> A physical data source
> A source object, a transform object, a control object, a sink object
> A temporary stored in the memory action
> An automatic stop and later-retrieval function among several buffers (automatic flow control)
> A storage device (hard drive)
> An indexing method, and last but not the least
> Parsing of data
> 
> And because of the above, the validity of the TiVo's claims 31 and 61 are in question.


----------



## James Long

the judge said:


> James, you need to read more carefully. I did not claim that every possible design of DVR must infringe on Tivo's patents.


You need to write more carefully ...


the judge said:


> The ONE thing that's been proven so far is they can't create a DVR free of Tivo's software.


There you go ... saying DISH cannot create a non-infringing DVR. Glad to be of service. 



> All I claimed was that as of today, every one of Echostar's DVR's that has been adjudicated infringes Tivo patents.


See actual claim quoted above. Proving that the software on eight models of their DVRs infringed at one point in time does not prove that all models ever will always infringe and, in your words, "DISH can't create a DVR free of TiVo's software". TiVo only proved that those eight models infringed at that point in time ... nothing more.



> That is a simple, undeniable fact. Until such time as Echostar invents their own DVR design, one which survives in court, I think it lacks common sense to tout Echostar's superiority.


Guilty until proven innocent? Must be one of those TiVo fans.


----------



## the judge

jacmyoung said:


> E* says so and they say so with substantial evidence for support, I am not going to repeat them, they have been mentioned many times before.


Echostar says they have produced DVR's that do not infringe Tivo patents which have been adjudicated to not infringe?

Could you please cite this reference?


----------



## the judge

James Long said:


> Guilty until proven innocent?


Actually, it's guilty once proven guilty.

And the way our legal system works, the burden of proof is now on them to prove that their new DVR's do not infringe. It's a beautiful thing!


----------



## scooper

the judge said:


> Echostar says they have produced DVR's that do not infringe Tivo patents which have been adjudicated to not infringe?
> 
> Could you please cite this reference?


Surely a netsavvy person such as yourself can do a search on relevant topic threads for the past year. Echostar did release a document to the court outlining their new , patent applied for process, which had been posted on this board at least, maybe some others (check mainer-ayah's board as well).


----------



## scooper

James Long said:


> Guilty until proven innocent? Must be one of those TiVo fans.


I made that determination a couple of his posts ago....


----------



## scooper

the judge said:


> Actually, it's guilty once proven guilty.
> 
> And the way our legal system works, the burden of proof is now on them to prove that their new DVR's do not infringe. It's a beautiful thing!


Not in an infringement hearing. The patent owner has to provide "clear and convincing evidence" that the <whatever> is still infringing, and all that the alleged infringer must do is raise substantial doubt.


----------



## jacmyoung

Yes for anyone who decides to jump right in, they should first understand this debate has been going on for the last 8 months here, and there is no stone left unturned. Please read before one asks people to cite them some info that had been discussed here many times.


----------



## James Long

the judge said:


> Echostar says they have produced DVR's that do not infringe Tivo patents which have been adjudicated to not infringe?


EchoStar claims they have produced DVRs not adjudicated to infringe.


----------



## scooper

James Long said:


> EchoStar claims they have produced DVRs not adjudicated to infringe.


And they also claim to have modified the ones in the original infringement trial so they are no longer infringing via software updates.


----------



## the judge

James Long said:


> EchoStar claims they have produced DVRs not adjudicated to infringe.


At least James gets the semantics of the question.


----------



## the judge

scooper said:


> Not in an infringement hearing. The patent owner has to provide "clear and convincing evidence" that the <whatever> is still infringing, and all that the alleged infringer must do is raise substantial doubt.


Sorry scooper, you got it wrong. The DVR models at issue in the infringement hearing have been adjudicated to infringe already. Tivo has already met their burden and prevailed in a trial by jury that these devices infringe the Tivo patents.

Now Echostar's must prove, on the standard of clear and convincing evidence, that the changes they made no longer infringe. If they can't prove they don't infringe, then the default is they still do.

That's what a contempt hearing is. They were ordered to do something, they did not do it for reasons they think are valid, and now they must convince the judge their reasons are valid.


----------



## the judge

jacmyoung said:


> E* says so and they say so with substantial evidence for support, I am not going to repeat them, they have been mentioned many times before.


I'll ask again, because you refuse to read the whole statement and provide an answer that satisfies the premise. Could you please cite one example to refute my statement that:

"While no one disagrees it could happen someday, no one can state that it has happened yet."

"It" refers to Echostar making a DVR that has been adjudicated not to infringe Tivo patents.


----------



## scooper

the judge said:


> Sorry scooper, you got it wrong. The DVR models at issue in the infringement hearing have been adjudicated to infringe already. Tivo has already met their burden and prevailed in a trial by jury that these devices infringe the Tivo patents.
> 
> Now Echostar's must prove, on the standard of clear and convincing evidence, that the changes they made no longer infringe. If they can't prove they don't infringe, then the default is they still do.
> 
> That's what a contempt hearing is. They were ordered to do something, they did not do it for reasons they think are valid, and now they must convince the judge their reasons are valid.


You sound like the same thing Greg Bimson says - the infringing devices have been modified (per Echostar) to no longer infringe.

No infringement - no contempt. GO read back the last 8 months and 10,000 posts.


----------



## the judge

scooper said:


> You sound like the same thing Greg Bimson says - the infringing devices have been modified (per Echostar) to no longer infringe.
> 
> No infringement - no contempt. GO read back the last 8 months and 10,000 posts.


So we agree to agree. Now the question is once a device has been adjudicated to infringe, which these Echostar devices are, who's burden is it to prove they no longer do? The law of the case today is that they infringe.

How can a party adjudicated to infringe then claim "not no more!" and that be sufficient to reverse four years of litigation? Think about it. Echostar has to do more than create reasonable doubt, they have to prove to the judge that these devices, which have been tried and convicted, are no longer infringing Tivo's patents.


----------



## scooper

the judge said:


> So we agree to agree. Now the question is once a device has been adjudicated to infringe, which these Echostar devices are, who's burden is it to prove they no longer do? The law of the case today is that they infringe.
> 
> How can a party adjudicated to infringe then claim "not no more!" and that be sufficient to reverse four years of litigation? Think about it. Echostar has to do more than create reasonable doubt, they have to prove to the judge that these devices, which have been tried and convicted, are no longer infringing Tivo's patents.


Prove your claim. But go read first. Like Jac said - we have over 8 months of this.

Anyone who picks a moniker of "the judge" with a location of "usa" has about zero credibility with me, especially with a shown Tivo bias.


----------



## jacmyoung

the judge said:


> So we agree to agree. Now the question is once a device has been adjudicated to infringe, which these Echostar devices are, who's burden is it to prove they no longer do? The law of the case today is that they infringe.
> 
> How can a party adjudicated to infringe then claim "not no more!" and that be sufficient to reverse four years of litigation? Think about it. Echostar has to do more than create reasonable doubt, they have to prove to the judge that these devices, which have been tried and convicted, are no longer infringing Tivo's patents.


Yes we should stop arguing on these points because as scooper said these had been argued over and over and the answers can be found if only you are willing to read back.

Greg was holding exactly the same arguments, once infringing, always an infringing device. Go back to read all the case law we cited please. It will take a while but it will help you to become a better judge.

BTW I am not just talking about this thread, do a search and you will find about 5 or 6 of such similar threads


----------



## scooper

the judge said:


> So we agree to agree. Now the question is once a device has been adjudicated to infringe, which these Echostar devices are, who's burden is it to prove they no longer do? The law of the case today is that they infringe.
> 
> How can a party adjudicated to infringe then claim "not no more!" and that be sufficient to reverse four years of litigation? Think about it. Echostar has to do more than create reasonable doubt, they have to prove to the judge that these devices, which have been tried and convicted, are no longer infringing Tivo's patents.


Actually - we do not agree AT ALL. I firmly believe that the DVRs CAN be made non-infringing through software updates, Echostar has said they did it. Now we get to the point where the change has to be judged whether it truly is non-infringing. *That's* what this whole contempt hearing is about. If Tivo cannot show that this new S/W is merely colorably different - they have lost. If it is proven to be non-infringing - they are up the creek without a paddle.


----------



## HobbyTalk

Please go back and read the past 8 months of posts. I think people here will soon get tired of answering questions that have already been addressed many many times before.

In short, the previous verdict can not be changed or overturned, that process is done (and paid for by E*). What is at question now if the adjudicated DVRs that have been modified continue to infringe and in light of that what to do with contempt and with further damages. E* modifed the DVRs with new software and all they have to do is raise substantial doubt that the modified DVRs infringe. TiVo now has to prove that the modified DVRs continue to infringe.

This has ALL been explained many times over the past 8 months or so.


----------



## Jason Nipp

scooper said:


> I made that determination a couple of his posts ago....


 I knew that when I saw his email address.....


----------



## jacmyoung

HobbyTalk said:


> ...TiVo now has to prove *[with clear and convincing evidence]* that the modified DVRs continue to infringe...


Very important! In a summary contempt proceeding, the burden of proof for TiVo (the mover) is not only much higher than E* (non-mover), but even higher than what TiVo had to do in the previous jury trial.


----------



## James Long

the judge said:


> James Long said:
> 
> 
> 
> EchoStar claims they have produced DVRs not adjudicated to infringe.
> 
> 
> 
> At least James gets the semantics of the question.
Click to expand...

I'm good at semantics. It is fair to note that the decision against DISH on eight models says NOTHING about any unnamed model. If TiVo wants to claim that the newer models also infringe they need to bring a new suit or get Judge Folsom to declare that the ViP DVR line is only colorably different than the adjudicated receivers.

BTW: Prior threads ...
*The Tivo vs Echostar (mostly speculation) Thread* 854 posts
*TiVo vs Echostar ... June 30th-July 18th Filings * 2437 posts
*TiVo vs Echostar ... Discussion leading to September 4th Hearing* 2548 posts
*Tivo vs EchoStar ... September 4th Hearing (w/transcript)* 1181 posts
(I may have missed a thread too!)

As you can see, we have been over this and over this. If there is anything NEW to be added (and not just an echo of arguments past) great. But I doubt if some great legal theory has been missed over the past year.

Please, keep the conversation FRESH, if possible. Anything new out of Texas, Delaware (which seems to be waiting on Texas) or now the Patent Office is good.


----------



## the judge

jacmyoung said:


> Very important! In a summary contempt proceeding, the burden of proof for TiVo (the mover) is not only much higher than E* (non-mover), but even higher than what TiVo had to do in the previous jury trial.


Jacy, get it straight. This is NOT a summary judgment hearing. You got it totally wrong. You are so far off base with your theories about burden of proof, while they are correct for summary judgment hearings, have NO BEARING on this evidentiary hearing.

Here it is in simple form if you're not likely to read it all:

It's not a SUMMARY JUDGMENT HEARING. It's an EVIDENTIARY HEARING.


----------



## dgordo

the judge said:


> Jacy, get it straight. This is NOT a summary judgment hearing. You got it totally wrong. You are so far off base with your theories about burden of proof, while they are correct for summary judgment hearings, have NO BEARING on this evidentiary hearing.
> 
> Here it is in simple form if you're not likely to read it all:
> 
> It's not a SUMMARY JUDGMENT HEARING. It's an EVIDENTIARY HEARING.


It's also not a summary contempt hearing, but good luck convincing him of that.


----------



## James Long

the judge said:


> jacmyoung said:
> 
> 
> 
> Very important! In a summary contempt proceeding, the burden of proof for TiVo (the mover) is not only much higher than E* (non-mover), but even higher than what TiVo had to do in the previous jury trial.
> 
> 
> 
> Jacy, get it straight. This is NOT a summary judgment hearing. You got it totally wrong. You are so far off base with your theories about burden of proof, while they are correct for summary judgment hearings, have NO BEARING on this evidentiary hearing.
> 
> Here it is in simple form if you're not likely to read it all:
> 
> It's not a SUMMARY JUDGMENT HEARING. It's an EVIDENTIARY HEARING
Click to expand...

Be nice. Besides, he said "summary contempt proceeding" not "summary judgment hearing".


----------



## the judge

James Long said:


> Be nice. Besides, he said "summary contempt proceeding" not "summary judgment hearing".


The standard he quoted is from wiki, go check for yourself, for a SUMMARY JUDGMENT. And it has no relevance whatsoever to this hearing.


----------



## Zero327

the judge said:


> The standard he quoted is from wiki, go check for yourself, for a SUMMARY JUDGMENT. And it has no relevance whatsoever to this hearing.


The point is moot as the goal of E* at this point isn't to win the case, it's just to keep appealing until they get a breadcrumb. Once Charlie wins one point on the patent, Tivo will be forced to appeal to PTO on their backend to invalidate that point.

Tivo is hoping for a court ruling stating infringement which is enforced. E*is just keeping Tivo on it's toes until they go out of business (inevitable at this point) and has enough resources to wait them out during this period. Tivo's stock survives solely on this lawsuit. And god help Tivo if E* wins, the court fees alone would finish them off.

Tivo isn't running a business at this point. They haven't been for over five years. They're chasing an ambulance, one I personally think will back over them sooner or later. The goal of Tivo's board has been for nearly five years to sue E*, get all the money they can and call it a day.


----------



## jacmyoung

the judge said:


> The standard he quoted is from wiki, go check for yourself, for a SUMMARY JUDGMENT. And it has no relevance whatsoever to this hearing.


Again you need to go back to read many quotes we cited from many patent infringement cases involving summary contempt proceedings, not the "wiki" quote I used lately, that was of course relevant but also to poke a little fun at TiVo.


----------



## the judge

jacmyoung said:


> Again you need to go back to read many quotes we cited from many patent infringement cases involving summary contempt proceedings, not the "wiki" quote I used lately, that was of course relevant but also to poke a little fun at TiVo.


I've been following this thread and every other one for many years, and many other boards, so stop telling me to go back and read. When you make baseless statements I will continue to ask you to cite credible references, as I do. Saying you said it before doesn't qualify as a credible reference.

But which is it jacy? Was the "wiki" quote you used lately "relevant" or was it used to poke a little fun at TiVo? It isn't both.


----------



## dfd

the judge said:


> I've been following this thread and every other one for many years, and many other boards, so stop telling me to go back and read. When you make baseless statements I will continue to ask you to cite credible references, as I do. Saying you said it before doesn't qualify as a credible reference.
> 
> But which is it jacy? Was the "wiki" quote you used lately "relevant" or was it used to poke a little fun at TiVo? It isn't both.


Good luck with this one. When asked to cite sources Jac seems to have a problem responding.


----------



## jacmyoung

the judge said:


> I've been following this thread and every other one for many years, and many other boards, so stop telling me to go back and read. When you make baseless statements I will continue to ask you to cite credible references, as I do. Saying you said it before doesn't qualify as a credible reference.
> 
> But which is it jacy? Was the "wiki" quote you used lately "relevant" or was it used to poke a little fun at TiVo? It isn't both.


You never quoted anything to prove yours, I only asked you to go back to find our quotes, many from Judge Folsom's bosses (Federal Circuit).

The quotes you provided from Judge Folsom none of them had to do with addressing who carries the burden of proof. He only said what needs to be proven, he never said who must prove it and by what standard, don't put words in his mouth.

The question again is, did E* prove they are not in violation by raising substantial open issues as whether their new design still infringes?

Did TiVo prove with clear and convincing evidence that the new design still is an infringement?

Now this is my opinion, what E* should do next is to file a motion to dismiss TiVo's current contempt motion, citing one of the biggest open issue of all, that is the issue of whether TiVo even has a valid patent.

What the judge should do is to grant such motion but dismiss the TiVo's motion without prejudice, so that TiVo may again bring back the contempt issue, if and only if the USPTO again leaves the Claims 31 and 61 standing.


----------



## jacmyoung

dfd said:


> Good luck with this one. When asked to cite sources Jac seems to have a problem responding.


On the other hand I do recall whenever the Federal Circuit case law was cited in the past, the TiVo supporters simply managed to ignore it or managed to say it did not apply, because this case is historical, one of a kind, no quotes should apply, the only thing you TiVo supporters care is what TiVo said, so why bother?


----------



## the judge

jacmyoung said:


> You never quoted anything to prove yours, I only asked you to go back to find our quotes, many from Judge Folsom's bosses (Federal Circuit).
> 
> The quotes you provided from Judge Folsom none of them had to do with addressing who carries the burden of proof. He only said what needs to be proven, he never said who must prove it and by what standard, don't put words in his mouth.


I cited the Order entered by Judge Folsom, the words came out of his mouth. Order's don't typically cite the rules of civil procedure with respect to burdens of proof.

Once again, you can't cite any examples to back up your theory of the burden of proof in the upcoming evidentiary hearing.



jacmyoung said:


> The question again is, did E* prove they are not in violation by raising substantial open issues as whether their new design still infringes?
> 
> Did TiVo prove with clear and convincing evidence that the new design still is an infringement?


Do you understand they haven't had the hearing yet. The hearing is in February, and we're still in January. The two sides are in the process of trading expert disclosures and taking expert depositions and preparing their cases. Then they will present their cases in front of Folsom. Then he will decide two things.

Jacy, do you have any idea what those two things are?


----------



## jacmyoung

On the other hand, I realize some of you are late in the debate, so I have decided to quote a case I provided before, this one is one of the shortest, and also I have highlighted some words to make the reading easier for you.

I can't wait for you to come back and tell me but it is irrelevant

Now towards the end of the ruling, the Federal Circuit raised the issue whether the current Judge Folsom's infringement analysis is even appropriate, E* argued on that to the Federal Circuit in one of their previous motions, but later dropped it after Judge Folsom modified his hearing order. I wouldn't be surprised if E* again raises such issue to the Appeals Court.



jacmyoung said:


> Below is the case E* cited in its filing, I wanted to quote a few from it but thought it may be better just to post the whole thing because each and every paragraph seemed very telling, and the whole doc is not very long, I have highlighted some and will use them later:
> 
> 55 F.3d 1567
> 
> 34 U.S.P.Q.2d 1670
> 
> ARBEK MANUFACTURING, INC., Plaintiff-Appellant,
> v.
> Sasan MOAZZAM, Defendant-Appellee.
> 
> No. 94-1484.
> 
> United States Court of Appeals,
> Federal Circuit.
> 
> May 8, 1995.
> Robert A. Sheldon, Sheldon & Scillieri, Santa Monica, CA, argued for plaintiff-appellant. With him on the brief was John A. Scillieri.
> 
> Sasan Moazzam, Oak Land Co., Chula Vista, CA, argued pro se.
> 
> Before PLAGER, RADER, and SCHALL, Circuit Judges.
> 
> RADER, Circuit Judge.
> 
> In 1991, the United States District Court for the Southern District of California enjoined Sasan Moazzam from infringing Arbek Manufacturing, Inc.'s design patent. In 1994, Arbek requested the district court to hold Moazzam in contempt, contending that a new Moazzam design violated the injunction. The trial court denied Arbek's motion and made a finding of noninfringement. Arbek Mfg., Inc. v. Moazzam, No. 90-1814 (S.D.Cal. July 26, 1994) (Arbek ). Because the trial court, in effect, found substantial open issues about whether Moazzam's new design infringed Arbek's patent, it could not find noninfringement in a summary contempt proceeding. Accordingly, this court affirms the denial of the contempt motion and vacates the noninfringement finding.
> 
> BACKGROUND
> 
> Arbek and Moazzam make and sell furniture. Arbek owns U.S. design patent No. 313,323 (the '323 patent), titled "Cabinet or Similar Article." The '323 patent claims "the ornamental design for a cabinet or similar article, as shown and described" in eight figures. Two figures show the patented design: NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE
> 
> The cabinet is called a "pier" in the furniture art. Usually a pier rests on either side of a bed's headboard. Arbek's patented design features a slanted top.
> 
> In 1990, Moazzam sold piers that Arbek claimed infringed the '323 patent. On April 4, 1991, the parties filed a stipulated Consent Judgment and Order, in which Moazzam admitted to infringing the '323 patent. Arbek Mfg., Inc. v. Moazzam, No. 90-1814 (S.D.Cal. Apr. 8, 1991) (Order). The Order enjoined Moazzam from any future infringement.
> 
> In March 1994, Arbek learned that Moazzam was marketing a second pier that Arbek believed infringed the '323 patent. Moazzam's second pier is a modification of the first. The top of the second pier is not entirely slanted. Instead, Moazzam's new pier features a horizontal portion which extends across approximately half of the top. Neither the first Moazzam pier nor the claimed design has a horizontal top portion. The Arbek design has two rounded angles separating the top and sides of the pier; the new Moazzam pier has three sharp angles separating the sides, the horizontal top portion, and the slanted top portion.
> 
> Arbek filed a contempt motion to enforce the Order. The motion accused Moazzam of again infringing the '323 patent. The trial court denied the motion. The trial court found: "defendant's design DOES NOT infringe on plaintiff's patented pier design." Arbek, slip op. at 2. Arbek appeals.
> 
> DISCUSSION
> 
> In KSM Fastening Systems, Inc. v. H.A. Jones Co., 776 F.2d 1522, 227 USPQ 676 (Fed.Cir.1985), *this court sets forth a standard for deciding whether an accused infringer is in contempt of an injunction prohibiting infringement. To show contempt, the patent owner must prove by clear and convincing evidence that "the modified device falls within the admitted or adjudicated scope of the claims and is, therefore, an infringement."* Id. at 1530.
> 
> A trial court may decide contempt motions "on affidavits and exhibits without the formalities of a full trial." Id. at 1524. Additionally, in summary proceedings, an accused infringer may face fines, damages, or even imprisonment. Accordingly, this court counsels caution in contempt proceedings.
> 
> In sum, contempt is a shield protecting the patentee against an infringer's flagrant disregard for court orders. Contempt, however, is *not a sword for wounding a former infringer who has made a good-faith effort to modify a previously adjudged or admitted infringing device to remain in the marketplace*. See id. at 1525-26. *Rather, the modifying party generally deserves the opportunity to litigate the infringement question at a new trial, "particularly if expert and other testimony subject to cross-examination would be helpful or necessary."* Id. at 1531.
> 
> In balancing protections for the patentee and the former infringer, this court stated:
> 
> *If there are substantial open issues with respect to infringement to be tried, contempt proceedings are inappropriate.* The presence of such disputed issues creates a fair ground for doubt that the decree has been violated.
> 
> Id. at 1532 (citation omitted). This safeguard, the KSM court reasoned, accommodates due process with "the usual summary nature of contempt proceedings." Id. Thus, during summary contempt proceedings, before reaching the ultimate question of "whether an injunction against infringement has been violated," the trial court must first consider a threshold question, namely whether "substantial open [infringement] issues must be litigated." Id.
> 
> The district court in this case found that Moazzam's second, modified pier does not infringe the '323 patent. Thus, in the words of KSM, the trial court in effect discerned "a fair ground for doubt" that Moazzam violated the order. See id. In other words, the trial court, in effect, detected substantial open infringement issues to be litigated before reaching the question of whether Moazzam had violated the 1991 injunction. This court reviews the trial court's finding for an abuse of discretion. Id.
> 
> Design patent infringement only occurs when "the accused design is substantially the same as the claimed design." L.A. Gear, Inc. v. Thom McAn Shoe Co., 988 F.2d 1117, 1124, 25 USPQ2d 1913, 1918 (Fed.Cir.), cert. denied, --- U.S. ----, 114 S.Ct. 291, 126 L.Ed.2d 240 (1993). That is, "if the resemblance is such as to deceive ... an [ordinary] observer, inducing him to purchase one supposing it to be the other, the first one patented is infringed by the other." Gorham Co. v. White, 81 U.S. (14 Wall) 511, 528, 20 L.Ed. 731 (1871). The accused product must also "appropriate the novelty in the patented device which distinguishes it from the prior art." Litton Sys., Inc. v. Whirlpool Corp., 728 F.2d 1423, 1444, 221 USPQ 97, 109 (Fed.Cir.1984) (quoting Sears, Roebuck & Co. v. Talge, 140 F.2d 395, 396, 60 USPQ 434, 434-35 (8th Cir.1944)).
> 
> As the trial court observed, the top of the Arbek pier is a continuous slope, while the top of the Moazzam pier is part sloped and part horizontal. In addition, the Arbek pier contains two rounded angles at the top of the pier, while the Moazzam pier contains three sharp angles at the top. These differences support what was, in effect, a finding by the trial court of substantial open infringement issues. In sum, substantial record evidence supports the trial court's finding.
> 
> With substantial open issues of infringement on the record, "contempt proceedings are inappropriate." KSM, 776 F.2d at 1532. The trial court properly denied Arbek's motion for contempt. This court affirms that denial.
> 
> *The trial court chose, however, to undertake a substantive infringement analysis. This inquiry was premature*. Once the trial court found the modified pier substantially different on its face from the patented design, KSM required denial of the motion and dismissal of the case because there could be no "finding that the modified [Moazzam pier fell] within the admitted ... scope of the ['323 patent]." Id. at 1530. *On a summary record, the district court could proceed no further. Accordingly, this court vacates the noninfringement finding*.
> 
> CONCLUSION
> 
> This court affirms the denial of the contempt motion and vacates the noninfringement finding. COSTS
> 
> Each party shall bear its own costs.
> 
> AFFIRMED-IN-PART and VACATED-IN-PART.


----------



## dfd

jacmyoung said:


> You never quoted anything to prove yours, I only asked you to go back to find our quotes, many from Judge Folsom's bosses (Federal Circuit).
> 
> The quotes you provided from Judge Folsom none of them had to do with addressing who carries the burden of proof. He only said what needs to be proven, he never said who must prove it and by what standard, don't put words in his mouth.
> 
> The question again is, did E* prove they are not in violation by raising substantial open issues as whether their new design still infringes?
> 
> Did TiVo prove with clear and convincing evidence that the new design still is an infringement?
> 
> Now this is my opinion, what E* should do next is to file a motion to dismiss TiVo's current contempt motion, citing one of the biggest open issue of all, that is the issue of whether TiVo even has a valid patent.
> 
> What the judge should do is to grant such motion but dismiss the TiVo's motion without prejudice, so that TiVo may again bring back the contempt issue, if and only if the USPTO again leaves the Claims 31 and 61 standing.


You have to be kidding. What you propose would destroy the entire IP patent process.

You propose that once a company/person has been found to infringe by the court and ordered to stop infringing that the court (and the infringed) should just take the infringer's word that they aren't infringing anymore without proving it.

In addition, if the infringer gets the USPTO to re-examine the valid patent for a second time after many years that the court should just dismiss the contempt complaint until the lengthy review process is complete.

Are you serious? Why would anyone apply for a patent in this scenario?

If there is no protection offered by a patent then nobody in their right mind would apply for one.

If we lose the patent system then we slow down the rate of innovation (IMO).

As an aside - I cannot help but think of E* as the Black Knight, "merely a flesh wound".


----------



## the judge

Jacm, Did you actually read the case you posted?

Did you notice (but forgot to highlight): "A trial court may decide contempt motions "on affidavits and exhibits without the formalities of a full trial." In Tivo's case, Folsom is having an evidentiary hearing at which time he will hear expert witnesses and review affidavits and exhibits, after which he will make two decisions, either of which could conclude that Echostar is in contempt. You still have not demonstrated that you have any idea what those two decisions are.

Do you think this little tidbit had any bearing on the Appeals court decision? Some might consider it to be the most important premise in their ruling: "The district court in this case found that Moazzam's second, modified pier does not infringe the '323 patent."


----------



## scooper

dfd said:


> You have to be kidding. What you propose would destroy the entire IP patent process.
> 
> You propose that once a company/person has been found to infringe by the court and ordered to stop infringing that the court (and the infringed) should just take the infringer's word that they aren't infringing anymore without proving it.
> 
> In addition, if the infringer gets the USPTO to re-examine the valid patent for a second time after many years that the court should just dismiss the contempt complaint until the lengthy review process is complete.
> 
> Are you serious? Why would anyone apply for a patent in this scenario?
> 
> If there is no protection offered by a patent then nobody in their right mind would apply for one.
> 
> If we lose the patent system then we slow down the rate of innovation (IMO).
> 
> As an aside - I cannot help but think of E* as the Black Knight, "merely a flesh wound".


Not at all - The change has to be shown that it also infringes. THAT is what he is saying.

Just what good is the Patent and Trademark process doing us anymore anyway ? I think we would be just fine without it.... Disney keeps getting Congress to extend trademarks into infinity , thereby allowing them to sue grandmothers...


----------



## the judge

scooper said:


> Just what good is the Patent and Trademark process doing us anymore anyway ? I think we would be just fine without it.... Disney keeps getting Congress to extend trademarks into infinity , thereby allowing them to sue grandmothers...


Without the Patent Office the last drug ever invented would have been aspirin, the average life span would be less than 50 years and nearly every innovation you enjoy today would not exist - no ipods, no Intel processors, no computers, no cellphones, no HDTV's and especially no DVRs.


----------



## scooper

the judge said:


> Without the Patent Office the last drug ever invented would have been aspirin, the average life span would be less than 50 years and nearly every innovation you enjoy today would not exist - no ipods, no Intel processors, no computers, no cellphones, no HDTV's and especially no DVRs.


Right - just go over to China and you'll see right away how little good they're doing.

I've got a friend who got his PHd in Chemical Engineering. As part of his research, he came up with a process for which he now holds a patent for. Just ask him how much good that patent is doing him....


----------



## dfd

scooper said:


> Right - just go over to China and you'll see right away how little good they're doing.
> 
> I've got a friend who got his PHd in Chemical Engineering. As part of his research, he came up with a process for which he now holds a patent for. Just ask him how much good that patent is doing him....


If his patent was for a process that had commercial value and somebody used it w/o his permission how would he feel then?


----------



## HobbyTalk

Do we have to go over these same points every time someone new comes into these threads? :sure:


----------



## jacmyoung

the judge said:


> Jacm, Did you actually read the case you posted?
> 
> Did you notice (but forgot to highlight): "A trial court may decide contempt motions "on affidavits and exhibits without the formalities of a full trial." In Tivo's case, Folsom is having an evidentiary hearing at which time he will hear expert witnesses and review affidavits and exhibits, after which he will make two decisions, either of which could conclude that Echostar is in contempt. You still have not demonstrated that you have any idea what those two decisions are.
> 
> Do you think this little tidbit had any bearing on the Appeals court decision? Some might consider it to be the most important premise in their ruling: "The district court in this case found that Moazzam's second, modified pier does not infringe the '323 patent."


First thing first, are you willing to drop your argument that it is E* who needs to prove with clear and convincing evidence, instead of the other way around?

Secondly, you claimed you have read it all, all those posts, court rulings we cited, and hundreds of filings for the last 8 months, apparently you failed, because there are now hundreds of "affidavits and exhibits" available from both E* and TiVo, right in front of the judge for him to see, in fact they were there before 9/4.

Thirdly, I never said the judge should not conduct the next hearing, he of course can, but the next hearing should be just that, to review those "affidavits and exhibits", not to hear expert testimony and cross examinations. Because according to his boss, if expert testimony and cross examinations are necessary and helpful, then the defendant should deserve a new trial.

While there is no problem if the judge ordered both E* and TiVo to exchange their disclosures, what may constitute an abuse of the judge's discretion is when he also ordered them to produce expert disclosures, and ordered those experts to be cross examined and to be on the witness stand during the hearing.

This tidbit information in that case law you totally ignored, that the lower court also made two decisions, one regarding the contempt, the other regarding the infringement, that the boss vacated its lower court's infringement decision altogether, called it "premature", and only upheld its contempt decision.

Now you tell me if Judge Folsom does the same, making two decisions, one regarding the contempt, one regarding the infringement, why do you think his ruling should face a different fate upon appeal?


----------



## jacmyoung

HobbyTalk said:


> Do we have to go over these same points every time someone new comes into these threads? :sure:


I know, but sometimes it is the arrogance of those TiVo supporters, coming into an E* forum trying to tell us how much we do not know, when they are the ones who are clueless and refuse to read.

And it is this kind of arrogance that keeps me going and wanting to respond in kind


----------



## James Long

Those that respond to arrogance only draw attention to themselves.

Too much non-Tivo vs EchoStar in this thread today -- don't forget that this thread is about the case at hand, not general complaints about TiVo or EchoStar or the patent system and specifically not about each other.

Stay on topic.


----------



## the judge

jacmyoung said:


> First thing first, are you willing to drop your argument that it is E* who needs to prove with clear and convincing evidence, instead of the other way around?


There is no question that Echostar's devices have been adjudicated to infringe Tivo's patent. There is therefore no question that Echostar has the burden to prove they no longer infringe. They can't just claim "not no more!" and expect Folsom to rule for them. They have to prove it.



jacmyoung said:


> Secondly, you claimed you have read it all, all those posts, court rulings we cited, and hundreds of filings for the last 8 months, apparently you failed, because there are now hundreds of "affidavits and exhibits" available from both E* and TiVo, right in front of the judge for him to see, in fact they were there before 9/4.


Well here's the thing. Folsom doesn't want to review any old affidavits and exhibits to make up his mind, he'd prefer to read ones that actually pertain to the issue he's deciding. So that's why the two sides are going thorough the effort to prepare affidavits and exhibits, take depositions and argue at this EVIDENTIARY HEARING.



jacmyoung said:


> Thirdly, I never said the judge should not conduct the next hearing, he of course can, but the next hearing should be just that, to review those "affidavits and exhibits", not to hear expert testimony and cross examinations. Because according to his boss, if expert testimony and cross examinations are necessary and helpful, then the defendant should deserve a new trial.


According to the case you cited, defendants are entitled to a new trial "when there are substantial open issues of infringement on the record." You failed to notice that the "substantial open issue of infringement" on the record in that case was that the district court found that they no longer infringed! Yup, that would do pretty much do it. That's pretty substantial.

You are dead wrong that Folsom is not within his right to conduct an EVIDENTIARY HEARING on the matter, complete with expert testimony and cross examinations. Dead wrong.



jacmyoung said:


> While there is no problem if the judge ordered both E* and TiVo to exchange their disclosures, what may constitute an abuse of the judge's discretion is when he also ordered them to produce expert disclosures, and ordered those experts to be cross examined and to be on the witness stand during the hearing.


Dead wrong.



jacmyoung said:


> This tidbit information in that case law you totally ignored, that the lower court also made two decisions, one regarding the contempt, the other regarding the infringement, that the boss vacated its lower court's infringement decision altogether, called it "premature", and only upheld its contempt decision.


They called it premature because the lower found it didn't infringe! How do you think they did that? Rock, scissors paper?



jacmyoung said:


> Now you tell me if Judge Folsom does the same, making two decisions, one regarding the contempt, one regarding the infringement, why do you think his ruling should face a different fate upon appeal?


Because if he finds infringement, the case you cited doesn't apply!


----------



## James Long

the judge said:


> There is no question that Echostar's devices have been adjudicated to infringe Tivo's patent. There is therefore no question that Echostar has the burden to prove they no longer infringe. They can't just claim "not no more!" and expect Folsom to rule for them. They have to prove it.


SOME of their devices have been adjudicated but there is an open issue as to if the current devices infringe or not.

The burden of proof is on both parties. Neither can walk in to court and assume they have nothing to prove. TiVo must prove that DISH is in contempt ... that DISH continues to infringe on their patent. DISH must prove that their devices have changed at least enough to be more than colorably different. Nobody gets a free pass on February 17th/18th.


----------



## jacmyoung

the judge said:


> There is no question that Echostar's devices have been adjudicated to infringe Tivo's patent. There is therefore no question that Echostar has the burden to prove they no longer infringe. They can't just claim "not no more!" and expect Folsom to rule for them. They have to prove it.


You can say it a thousand times, but you cannot cite it from any case law. The case law I cited said the Federal Circuit *established the standard* that the patent owner must prove by clear and convincing evidence, not the defendant. Show me one quote the is not yours, and not TiVo's to say otherwise.



> Well here's the thing. Folsom doesn't want to review any old affidavits and exhibits to make up his mind, he'd prefer to read ones that actually pertain to the issue he's deciding. So that's why the two sides are going thorough the effort to prepare affidavits and exhibits, take depositions and argue at this EVIDENTIARY HEARING.


I already said I have no problem if the judge wants to hear them more, why are you still arguing it? I was only to point out how little did you know about this case when you tried to cite that particular section of the case I give you, that somehow there were no affidavits and exhibits.



> They called it premature because the lower found it didn't infringe! How do you think they did that? Rock, scissors paper?


Did you actually read? Please read it again, the reason they vacated the non-infringement verdict was because the lower court took on an substantive infringement analysis, and the *effort* was premature, not because the decision was of a no infringement.



> Because if he finds infringement, the case you cited doesn't apply!


Again go back and read carefully, the *effort* to take on an infringement analysis will be ruled as premature, regardless an infringement decision or not.


----------



## the judge

jacmyoung said:


> Again go back and read carefully, the *effort* to take on an infringement analysis will be ruled as premature, regardless an infringement decision or not.


After the sentence that says the inquiry was premature, it explains why the inquiry was premature. Did you read that? Did you see that it explicitly affirms the trial courts finding?

It does not, for example, claim the *effort* to take on an infringement analysis was ruled as premature. It says there could be no "finding that the modified [Moazzam pier fell] within the admitted scope"


----------



## Herdfan

James Long said:


> The burden of proof is on both parties. Neither can walk in to court and assume they have nothing to prove. TiVo must prove that DISH is in contempt ... that DISH continues to infringe on their patent. DISH must prove that their devices have changed at least enough to be more than colorably different. Nobody gets a free pass on February 17th/18th.


So who do you think has the easier road here. I think it has to be TiVo from a legal standpoint because if DISH continues to infringe, then getting to contempt from that point is easy. But can DISH convince Judge Folsom that they no longer infringe?


----------



## jacmyoung

Herdfan said:


> So who do you think has the easier road here. I think it has to be TiVo from a legal standpoint because if DISH continues to infringe, then getting to contempt from that point is easy. But can DISH convince Judge Folsom that they no longer infringe?


In a summary contempt proceeding, the non-mover, because E* only needs to demonstrate (prove) that substantial open issues now exist to question whether the modified DVRs still infringe on the patent or not, TiVo on the other hand must prove with clear and convincing evidence that the modified DVRs still infringe on the patent.


----------



## jacmyoung

the judge said:


> After the sentence that says the inquiry was premature, it explains why the inquiry was premature. Did you read that? Did you see that it explicitly affirms the trial courts finding?
> 
> It does not, for example, claim the *effort* to take on an infringement analysis was ruled as premature. It says there could be no "finding that the modified [Moazzam pier fell] within the admitted scope"
> 
> [personal comment]


The effort was premature, therefore it was an inappropriate effort, that did not mean the information out of the effort could not be used to rule a no contempt , because that effort did demonstrate at a minimum, substantial open issues now existed, so there was no contempt.

But the effort that led to the decision whether the modified devices were an infringement or not was not ready to be made in a contempt proceeding. The decision whether the modified devices indeed infringe on the patent or not must be resolved in a new trial.

Again I can cite another one of many cases to further clarify such logic but as I said it will not change anyone's mind so I digress.


----------



## CuriousMark

James Long said:


> The burden of proof is on both parties. Neither can walk in to court and assume they have nothing to prove. TiVo must prove that DISH is in contempt ... that DISH continues to infringe on their patent. DISH must prove that their devices have changed at least enough to be more than colorably different. Nobody gets a free pass on February 17th/18th.


With permission I am copying and pasting a post from another forum. I think it will provide some illumination on the burden of proof arguments from a person I believe to be a patent attorney.



> Re: ? for Ques
> 
> IMHO. Echostar has an initial "burden of production," i.e., Echostar must, at a minimum, demonstrate that they have in fact changed the software.
> 
> The "burden of proof" is on TiVo, after Echostar has complied with burden of production, TiVo has to explain how the DVRs still infringe.
> 
> As far as the standard for contempt being higher, that is somewhat true. However, this case will ultimately boil down to claim construction. If Folsom finds that Echostar's DVRs still literally infringe based on what is required by the claims then he will likely hold Echostar in contempt.
> 
> If Folsom finds that Echostar infringes under the doctrine of equivalents, I think A finding of contempt would be less likely.
> 
> To simply prove infringement (w/o a finding of contempt), TiVo's burden is exactly the same as it was at trial (i.e., by a preponderance of the evidence).


So, If I am reading that right, the finding of more than merely colorable differences matches what jacmyoung has been saying all along. But the finding of infringement via DOE, which Dish is fighting tooth and nail, only requires the simpler preponderance of evidence.

It is clear to me, based on that, why Dish would want the scope reduced or be given more time, since they weren't originally expecting to have to work as hard to clear themselves. It is also clear that given the combined hearing format now instead of later, for the convenience of the court, Dish may found infringing and faced with a new injunction much sooner than they had originally wished.

I speculate that now that dish has a relatively good chance of escaping contempt, but a similarly relatively poor chance of escaping a finding of infringement on at least some of the previously adjudicated DVR models, and a new injunction that will probably be more tightly worded than the last. Of course if that happens, Dish will appeal.

So February is definitely cracked up to be VERY interesting.


----------



## peak_reception

CuriousMark said:


> With permission I am copying and pasting a post from another forum. I think it will provide some illumination on the burden of proof arguments from a person I believe to be a patent attorney.
> 
> So, If I am reading that right, the finding of more than merely colorable differences matches what jacmyoung has been saying all along. But the finding of infringement via DOE, which Dish is fighting tooth and nail, only requires the simpler preponderance of evidence.
> 
> It is clear to me, based on that, why Dish would want the scope reduced or be given more time, since they weren't originally expecting to have to work as hard to clear themselves. It is also clear that given the combined hearing format now instead of later, for the convenience of the court, Dish may found infringing and faced with a new injunction much sooner than they had originally wished.
> 
> I speculate that now that dish has a relatively good chance of escaping contempt, but a similarly relatively poor chance of escaping a finding of infringement* on at least some of the hardware*, and a new injunction that will probably be more tightly worded than the last. Of course if that happens, Dish will appeal.
> 
> So February is definitely cracked up to be VERY interesting.


 Hardware? Again?? TiVo isn't even pursuing hardware any longer.


----------



## CuriousMark

peak_reception said:


> Hardware? Again?? TiVo isn't even pursuing hardware any longer.


Sorry, my mistake. I am going back to correct the post.


----------



## Herdfan

peak_reception said:


> Hardware? Again?? TiVo isn't even pursuing hardware any longer.


Do we know for sure they have abandoned it? Or are they keeping it in their back pocket to be able to start the process all over again if for some reason things don't go their way?


----------



## Herdfan

jacmyoung said:


> In a summary contempt proceeding,.


I think I am going to go with the notion that it is an Evidentiary Hearing.


----------



## jacmyoung

Herdfan said:


> I think I am going to go with the notion that it is an Evidentiary Hearing.


This evidentiary hearing is part of the contempt proceeding, therefore the same rules apply.


----------



## jacmyoung

CuriousMark said:


> With permission I am copying and pasting a post from another forum. I think it will provide some illumination on the burden of proof arguments from a person I believe to be a patent attorney.
> 
> So, If I am reading that right, the finding of more than merely colorable differences matches what jacmyoung has been saying all along. But the finding of infringement via DOE, which Dish is fighting tooth and nail, only requires the simpler preponderance of evidence.
> 
> It is clear to me, based on that, why Dish would want the scope reduced or be given more time, since they weren't originally expecting to have to work as hard to clear themselves. It is also clear that given the combined hearing format now instead of later, for the convenience of the court, Dish may found infringing and faced with a new injunction much sooner than they had originally wished.
> 
> I speculate that now that dish has a relatively good chance of escaping contempt, but a similarly relatively poor chance of escaping a finding of infringement on at least some of the previously adjudicated DVR models, and a new injunction that will probably be more tightly worded than the last. Of course if that happens, Dish will appeal.
> 
> So February is definitely cracked up to be VERY interesting.


Except if you agree with the above case law I cited, regardless what the end result of the second part of the hearing, that is to determine the infringement issue, E* should be confident that they can appeal and have that decision vacated, whether the decision is an infringement, or a no infringement.

And it is precisely of that reason, E* wanted that part removed, because it will be a waste of time and effort to go through the second part when you know the appeals court will vacate the decision from such effort. As the appeals court said, once substantial open issues (more than colorable differences) are found, there must be a no contempt, and the proceeding cannot go further, it must end.


----------



## James Long

Herdfan said:


> peak_reception said:
> 
> 
> 
> Hardware? Again?? TiVo isn't even pursuing hardware any longer.
> 
> 
> 
> Do we know for sure they have abandoned it? Or are they keeping it in their back pocket to be able to start the process all over again if for some reason things don't go their way?
Click to expand...

Not pursuing is not the same as abandoned.

TiVo has enough to pursue for now.


----------



## scooper

Herdfan said:


> Do we know for sure they have abandoned it? Or are they keeping it in their back pocket to be able to start the process all over again if for some reason things don't go their way?


If they try to bring it up in Febuary, Echostar will protest and it will get shot down. Unless it was disclosed to Dish already...

If Tivo wants to start the whole process over again (and this time include the VIP series ) then they could include the H/W claims.


----------



## the judge

jacmyoung said:


> This evidentiary hearing is part of the contempt proceeding, therefore the same rules apply.


You are making this up from whole cloth. Show the cite that an evidentiary hearing is equivalent to a summary contempt proceeding.

You are dead wrong.


----------



## jacmyoung

Also I do not necessary agree with what that attorney said about if the judge determines the modified DVRs still infringe on the equivalents, a contempt is less likely, because infringement on the equivalents also proves infringement, therefore a contempt. Though I certainly do not want to question his knowledge, he may know from experience that in such case, judge may try to find a less punishing remedy.

It is of course true proving infrigement requires lower standard of proof, just like TiVo did during the jury trial, and that is also precisely why such effort is inappropriate during the contempt proceeding, because in a summary contempt proceeding, the standard of proof is higher.

One does not get to try a difficult method, but if it fails, he then just get to use the next less difficult method in the same proceeding and try again.

To do so, he needs to start a new trial, and in a trial, the less difficult method is the method of choice.


----------



## jacmyoung

the judge said:


> You are making this up from whole cloth. Show the cite an evidentiary hearing is equivalent to a summary contempt proceeding.
> 
> You are dead wrong.


Go read the judge's order, in which he said, in front of him was this TiVo's motion to find E* in contempt, in response, he was ordering this evidentiary hearing...

Anything he does in response to a motion seeking a contempt proceeding is a part of that proceeding.


----------



## Greg Bimson

I believe that TiVo did abandon the hardware claims on the "adjudged" devices. By responding to DISH/SATS emergency motion (the writ of mandamus for the Court of Appeals), TiVo has stated the changes made to the receivers bypass infringement from the "hardware claims", there is no use to go after infringement of the hardware claims. That was the point TiVo granted, so it is dismissed, unless of course DISH/SATS turns around and restarts their old software.


----------



## jacmyoung

Greg Bimson said:


> ... unless of course DISH/SATS turns around and restarts their old software.


For now that cannot be totally ruled out anymore, if you know what I mean


----------



## the judge

jacmyoung said:


> Go read the judge's order, in which he said, in front of him was this TiVo's motion to find E* in contempt, in response, he was ordering this evidentiary hearing...
> 
> Anything he does in response to a motion seeking a contempt proceeding is a part of that proceeding.


So you agree the judge ordered an EVIDENTIARY HEARING, and you're arguing that since it relates to the motion for contempt it's actually a SUMMARY CONTEMPT PROCEEDING, which applies burdens of proof that you quoted from wiki for SUMMARY JUDGMENT PROCEEDINGS?

I think that clears up how ridiculous your argument is.


----------



## jacmyoung

the judge said:


> So you agree the judge ordered an EVIDENTIARY HEARING, and you're arguing that since it relates to the motion for contempt it's actually a SUMMARY CONTEMPT PROCEEDING, which applies burdens of proof that you quoted from wiki for SUMMARY JUDGMENT PROCEEDINGS?
> 
> I think that clears up how ridiculous your argument is.


No I said this hearing has to be a part of the contempt proceeding, and the rules as quoted from that case law above, not "wiki", shall apply.

Did you not read what I said the "wiki" thing was mainly to poke fun at TiVo?

BTW, did you also hear what I posted before that the new DirecTiVo development had been pretty much cancelled? What do you think if the TiVo patent claims 31 and 61 are also "cancelled" soon?

Huh the prospect of those TiVo boxes becoming door stops, while the 8 E* DVR models still kicking, unthinkable just 8 months ago isn't it?

If only they had thought about letting Charlie keep a good part of the $120 million in exchange for a cooperative agreement to share the DVR technologies. How hard the TiVo supporters here laughed at that idea when I said it.

All for a little bit of fun of course.


----------



## CuriousMark

I think what we have is an evidentiary hearing that is combining both summary contempt procedures and new trial procedures into the same hearing for the convenience of the court. Those issues relating to mere colorable difference will be applied to any summary contempt rulings and those issues relating to infringement under the doctrine of equivalents can be handled as the go forward case if more than mere colorable difference is found. After all, it is the same claim constructions needed for both. Saying that the judge cannot be efficient and must handle DOE in a separate meeting as jacmyoung keeps repeating, just doesn't make as much sense as what is happening here.

If that assessment is correct, and it is my personal opinion that it is, then more than merely colorable would get Dish off the hook summary contempt. They will have not done anything contemptible. They may still infringe and that will certainly allow the judge to address damages and a possible new injunction without having to wait months for a separate action. It is judicial efficiency of the kind our country needs to see more of.


----------



## jacmyoung

CuriousMark said:


> I think what we have is an evidentiary hearing that is combining both summary contempt procedures and new trial procedures into the same hearing for the convenience of the court. Those issues relating to mere colorable difference will be applied to any summary contempt rulings and those issues relating to infringement under the doctrine of equivalents can be handled as the go forward case if more than mere colorable difference is found. After all, it is the same claim constructions needed for both. Saying that the judge cannot be efficient and must handle DOE in a separate meeting as jacmyoung keeps repeating, just doesn't make as much sense as what is happening here.
> 
> If that assessment is correct, and it is my personal opinion that it is, then more than merely colorable would get Dish off the hook summary contempt. They will have not done anything contemptible. They may still infringe and that will certainly allow the judge to address damages and a possible new injunction without having to wait months for a separate action. It is judicial efficiency of the kind our country needs to see more of.


Now you are putting your hope on an infringement finding, but the question you must ask is did TiVo even try to prove an infringement? You, Greg, Curtis and a few others have done far more to argue continued infringement than TiVo has done itself it seems. Because all TiVo had said and is still saying, those modified DVRs still parse.

I know the standard of proof on an infringement analysis is a little less, but it is still a fully developed standard. If you read the appeals court's ruling when they reversed the two hardware claim verdicts, all it took was for the jury to overlook one single word, an "a" in the claim constructions, to allow E* to be off the hook.

How many words is E* saying that they have changed? Five or six, and how many words is TiVo saying it is still the same? One!


----------



## CuriousMark

jacmyoung said:


> Now you are putting your hope on an infringement finding, but the question you must ask is did TiVo even try to prove an infringement? You, Greg, Curtis and a few others have done far more to argue continued infringement than TiVo has done itself it seems. Because all TiVo had said and is still saying, those modified DVRs still parse.


We don't know, no one has seen TiVo's arguments. As I said before, it all makes watching what happens in February very interesting. When it is all said and done, then we will know if there is infringement, merely colorable changes, or full on contempt. From the tone of your post, it sounds like you believe Dish will skate free cleanly. Although I think you are attempting to put words in TiVo's mouth that have yet to be, or not to be, spoken. Let's just see what happens shall we?


----------



## Herdfan

jacmyoung said:


> Go read the judge's order, in which he said, in front of him was this TiVo's motion to find E* in contempt, in response, he was ordering this evidentiary hearing...
> 
> Anything he does in response to a motion seeking a contempt proceeding is a part of that proceeding.


Someone stop me if I am wrong, but the judge seems to want this evidentiary hearing to help him decide if E* still infringes so he can decide on the motion for contempt.

Is there a requirement for him to even have a hearing on the motion for contempt or can he not rule on it at his will?

So he is going to have this hearing to collect evidence which he will use at some point in the future to make a ruling on the motion for contempt which he may or may not do at a formal court proceeding?

Where did I go wrong?


----------



## James Long

Herdfan said:


> Someone stop me if I am wrong, but the judge seems to want this evidentiary hearing to help him decide if E* still infringes so he can decide on the motion for contempt.


Yes ... even though the motion for contempt was based on the "face" of the injunction, not on continued infringement.



> Is there a requirement for him to even have a hearing on the motion for contempt or can he not rule on it at his will?


The September hearing should have been enough ... but it appears that the presentations left him with more unanswered questions. Hence the further hearing.



> So he is going to have this hearing to collect evidence which he will use at some point in the future to make a ruling on the motion for contempt which he may or may not do at a formal court proceeding?


There will not be a decision at close of business on February 18th. Judge Folsom make that decision based on all of the evidence he has seen. Hopefully the two day "trial" will be enough to answer the remaining questions.

My feeling is that Judge Folsom is looking beyond the simple questions and is trying to resolve the conflict between the parties. Instead of giving "one line" responses such as finding DISH in contempt for not following the letter of the injunction and ignoring any progress DISH may have made toward not infringing he'd rather find the deeper truth. And perhaps get to a resolution.


----------



## scooper

James Long said:


> There will not be a decision at close of business on February 18th. Judge Folsom make that decision based on all of the evidence he has seen. Hopefully the two day "trial" will be enough to answer the remaining questions.


That I can agree on.



James Long said:


> My feeling is that Judge Folsom is looking beyond the simple questions and is trying to resolve the conflict between the parties. Instead of giving "one line" responses such as finding DISH in contempt for not following the letter of the injunction and ignoring any progress DISH may have made toward not infringing he'd rather find the deeper truth. And perhaps get to a resolution.


Any idea on what he could be looking for ? Maybe Tivo feeling "ripped off / violated" when they left a demo unit at Echostar ?


----------



## jacmyoung

CuriousMark said:


> We don't know, no one has seen TiVo's arguments. ...


Of course no one can say for sure, but in the TiVo's latest filing arguing against E*'s motion to modify the scope of hearing, TiVo said part of the reason a delay must not be granted was because TiVo's infringement argument was simple, the DVRs still parse, and that need not another 4 months to prepare.

Now E* has that argument from TiVo, guess what may happen if TiVo later come up with a lot more to say? Yes, ground for relief. Not as clear cut as I am saying, just that TiVo is confident their one sentence proof is enough.

But recall during the jury trial, TiVo had pages after pages of contentions covering every construction in every limitation of every claim. Take Claim 31 for example, on average there are three constructions in each limitation, for a total of about 30 key constructions that must be at least all touched on to prove infringement, granted only about 6 of them are changed according to E*, the fact of matter is, one change can certainly prove literal non-infringement, and two or three together can easily prove non-infringement on the equivalents.

TiVo needs to argue that all of those alleged changed constructions are indeed still there. But they do not and in fact cannot say that because E* did modify the software to remove them.


----------



## jacmyoung

Correction.

After some simple digging, I learned even if the patent is invalidated by the USPTO, as Curtis said TiVo can appeal and that can take years, while the patent continues to be enforceable.

Therefore even though I am not totally wrong for saying TiVo will be limited to go after only the 8 named E* DVRs, not those newer ones, if the patent is invalidated. It is however incorrect to expect that E* can seek a dismissal of the current TiVo's contempt motion based on this new USPTO decision. In another word this new development should have no legal bearing on the current proceeding.


----------



## dgordo

jacmyoung said:


> Correction.
> 
> After some simple digging, I learned even if the patent is invalidated by the USPTO, as Curtis said TiVo can appeal and that can take years, while the patent continues to be enforceable.
> 
> Therefore even though I am not totally wrong for saying TiVo will be limited to go after only the 8 named E* DVRs, not those newer ones, if the patent is invalidated. It is however incorrect to expect that E* can seek a dismissal of the current TiVo's contempt motion based on this new USPTO decision. In another word this new development should have no legal bearing on the current proceeding.


In other words


----------



## jacmyoung

dgordo said:


> In other words


Thank you. I was wondering why you have been so quite lately There finally was another lawyer (quoted by CuriousMark) decided to speak out

Forgot to mention one interesting side note, while looking into the USPTO issue, apparently in 2006 soon after the jury returned the willful infringement verdict, the USPTO granted E*'s first patent re-examination request. While discussing TiVo's victory, one patent law professor said but if the USPTO only invalidated some of the TiVo's claims, that could undermine TiVo's licensing leverage in the future.

Later the USPTO did invalidate some of the claims, and left some standing. TiVo had a tough time getting other DVR providers to license its technology in the years followed, and even when successful licensing agreements were signed, the licensees were not actively implementing those agreements.

In other words (thank you again dgordo), the professor might be right, even when it appears a patent owner maybe a clear winner, the lawsuit can bring about unintended cancelling effect.


----------



## vampz26

jacmyoung said:


> Correction.
> 
> After some simple digging, I learned even if the patent is invalidated by the USPTO, as Curtis said TiVo can appeal and that can take years, while the patent continues to be enforceable.
> 
> Therefore even though I am not totally wrong for saying TiVo will be limited to go after only the 8 named E* DVRs, not those newer ones, if the patent is invalidated. It is however incorrect to expect that E* can seek a dismissal of the current TiVo's contempt motion based on this new USPTO decision. In another word this new development should have no legal bearing on the current proceeding.


That would be up to the judge if there is any obvious legal bearing or not, there is enough lateral room for Dish to at least pose the argument and delay things further...which is what I really think they intend to do...


----------



## the judge

jacmyoung said:


> Correction.
> 
> After some simple digging, I learned even if the patent is invalidated by the USPTO, as Curtis said TiVo can appeal and that can take years, while the patent continues to be enforceable.
> 
> *Therefore even though I am not totally wrong* for saying TiVo will be limited to go after only the 8 named E* DVRs, not those newer ones, if the patent is invalidated.


Another correction, thank you. Could you explain how this statement was NOT 100% dead wrong?


----------



## the judge

jacmyoung said:


> Did you not read what I said the "wiki" thing was mainly to poke fun at TiVo?


Again, could you please clarify for everyone whether you still believe the burden of proof for this evidentiary hearing is the SUMMARY JUDGMENT standard?


----------



## the judge

jacmyoung said:


> BTW, did you also hear what I posted before that the new DirecTiVo development had been pretty much cancelled?


Any chance of citing a reference to this breaking news? Or did you make that up too?


----------



## Greg Bimson

This sounds a bit like lawyering:


jacmyoung said:


> Later the USPTO did invalidate some of the claims, and left some standing. TiVo had a tough time getting other DVR providers to license its technology in the years followed, and even when successful licensing agreements were signed, the licensees were not actively implementing those agreements.


The end result was ALL CLAIMS were left standing. PTO invalidated a few, and those few were reinstated.

The main reason no one is implementing agreements with TiVo is because DISH/SATS has not settled the suit. Everyone is waiting to see how this plays out.


----------



## Greg Bimson

jacmyoung said:


> TiVo needs to argue that all of those alleged changed constructions are indeed still there. But they do not and in fact cannot say that because E* did modify the software to remove them.


Isn't that the topic for the two-day hearing in late February? Therefore, TiVo does not need to make those arguments until then.


----------



## jacmyoung

Greg Bimson said:


> Isn't that the topic for the two-day hearing in late February? Therefore, TiVo does not need to make those arguments until then.


Not true, the judges order parties in the dispute to provide disclsoures to one another, including facts, documents, legal theories, witnesses and *all* related information , parties must obey the order, if any one of them hides anything from the other, it will be in serious trouble.

The only thing you can say is well we have not seen the disclosures yet, true but we have seen some of the filings and the accusations brought up by each other, and when E* accused TiVo of providing only "four empty sentences", TiVo did not dispute that, and later TiVo said themself they only need that one sentence.

They cannot then go to the judge at the hearing say oh BTW your honor we have a lot more to say now but we did not tell E*. TiVo will be kicked out of the courtroom if they do that.


----------



## jacmyoung

vampz26 said:


> That would be up to the judge if there is any obvious legal bearing or not, there is enough lateral room for Dish to at least pose the argument and delay things further...which is what I really think they intend to do...


Can't say I disagree with you but it is unlikely E* will use this argument since it has no legal bearing on the current proceeding, but that certainly may not stop them from making other arguments.


----------



## the judge

jacmyoung said:


> But recall during the jury trial, TiVo had pages after pages of contentions covering every construction in every limitation of every claim. Take Claim 31 for example, on average there are three constructions in each limitation, for a total of about 30 key constructions that must be at least all touched on to prove infringement, granted only about 6 of them are changed according to E*, the fact of matter is, one change can certainly prove literal non-infringement, and two or three together can easily prove non-infringement on the equivalents.


Dead Wrong again. The reason Tivo argued every claim construction they could is because infringement can be found if ANY of the dependent claims are violated.

You have it exactly backwards. Echostar has to avoid infringing ALL of Tivo's independent claims and dependent claims (embodiments), which are articulated through claim construction.


----------



## jacmyoung

the judge said:


> Dead Wrong again. The reason Tivo argued every claim construction they could is because infringement can be found if ANY of the dependent claims are violated.
> 
> You have it exactly backwards. Echostar has to avoid infringing ALL of Tivo's independent claims and dependent claims (embodiments), which are articulated through claim construction.


Look I do not know where you are coming from but please do not call others "dead wrong" before you even know what you are talking about or what others are talking about.

To find infringement on a paticular patent claim, each and every one of the claim limitations must be met, and in each claim limitation, there are multiple constructions, each must be touched on in order to prove that such particular limitation is met.

Therefore to prove infringement, TiVo had to use pages and pages of claim charts to list their each contention for each limitation, and address each construction that appear in that limitation.

Now all TiVo is addressing is the single construction called "parse", which is only one of the multiple constructions in one of the ten limitations of the Claim 31.

Try to prove infringement on that? In their dreams.


----------



## James Long

jacmyoung said:


> Now all TiVo is addressing is the single construction called "parse", which is only one of the multiple constructions in one of the ten limitations of the Claim 31.


Isn't DISH admitting to all of the other constructions? It seems that the two parties agree that TiVo's patented process and DISH's patent pending process are nearly identical. TiVo is just focusing on the point that DISH claims is different from the TiVo process and saying "no it isn't".


----------



## the judge

jacmyoung said:


> To find infringement on a paticular patent claim, each and every one of the claim limitations must be met, and in each claim limitation, there are multiple constructions, each must be touched on in order to prove that such particular limitation is met.


Jacy, have you ever applied for and received a patent, and then defended it against infringement?

Do you understand that there are many types of claims in a patent, some of which are dependent on others? If you violate an independent claim, then you violate all of the claims dependent on that claim. Those dependent claims are often articulated through claim construction, but often not as vigorously as the underlying independent claims. All the patent owner has to show is infringement of either any independent claims or any dependent claims.

You can't just argue that you built it out of a different material, or painted it with a different color, and say you got around all the claims. Put another way, you can't just change one step in a process and claim non-infringement if the other steps in the process are part of the patent.


----------



## jacmyoung

James Long said:


> Isn't DISH admitting to all of the other constructions? It seems that the two parties agree that TiVo's patented process and DISH's patent pending process are nearly identical. TiVo is just focusing on the point that DISH claims is different from the TiVo process and saying "no it isn't".


That is the problem, TiVo is still living in the past, before the design around.

The reason E* lost was they could not dispute the existence of all the constructions, only to dispute the definitions of them. TiVo was successful in proving E*'s old design contained all the necessary steps that met the definitions of those constructions. "Parse" was the only thing E* said they did not do, and they had hoped if they could prove they did not parse, it would be fine, but TiVo proved E* did parse. But the reason the infringement was found was because E* had all the others too, the "physical data source", the "temproary", the "store", the "source object", the "extract from the physical data source", and the "automatic flow control", just to name a few.

Now E* says, we have removed those above constructions from our new design, as they no longer exist! What TiVo needs to do is to prove that no, those above constructions still exsit in the new design, they are not gone.

Instead, TiVo is saying but E* in the past said "parse" was the key, so we now go by what E* was saying before, never mind what E* is saying now, "parse" it is then.

But guess what, E* lost with that "parse" argument you know. So how can TiVo now use the same lost cause and hope they can win on that alone?

On a second read, I understand you were referring to E*'s comment of the difference between their new patent and the TiVo's patent, saying the difference was they no longer "parsed". Yes E* might have said that, but only in the context of no longer parse the way as described in the TiVo patent.

But even if TiVo was correct, they still cannot simply use E's past logic for proof, because E*'s current logic is different. E*'s past logic may be flawed, and if you only try to attack an already flawed logic hoping to win, it is called "begging the question", a flawed way of arguing.

E*'s current logic is we do not do all of the above, therefore TiVo must respond in kind, argue that no you still do all of the above. But TiVo cannot say that, because E* indeed no longer do all of the above, so the only thing TiVo can do is beg the old question which had been proven flawed, and attack that one.

TiVo needs to argue that E*'s current logic is flawed, not living in the past.


----------



## Herdfan

jacmyoung said:


> Now E* says, we have removed those above constructions from our new design, as they no longer exist!


E* *said* they never infringed in the first place. Can you give me one good reason we should believe them now? Would you be willing to bet your own money on what they say? Just asking?


----------



## jacmyoung

Herdfan said:


> E* *said* they never infringed in the first place. Can you give me one good reason we should believe them now? Would you be willing to bet your own money on what they say? Just asking?


But E* had never said they did not have all those constructions before, E* admitted they were there, only that they did not believe some of them, for example the "parse", was the same kind of "parse".

Now they say we do not have them, what you need to do is to prove no, you still have them, if you say but you were wrong before therefore you must be wrong now, regardless what you say now, you have just committed the exact same fallacy as I described above


----------



## the judge

jacmyoung said:


> That is the problem, TiVo is still living in the past, before the design around.


Tivo is living with their patent which was invented and filed long before Echostar infringed it and long before they claimed they designed around it.



jacmyoung said:


> The reason E* lost was they could not dispute the existence of all the constructions, only to dispute the definitions of them.


Echostar argued and lost BOTH that they did not infringe the four independent claims, AND that they did not infringe the claim constructions. They argued a lot more than they didn't "parse" or that they didn't infringe based on Tivo's definition of "parse" .



jacmyoung said:


> Now E* says, we have removed those above constructions from our new design, as they no longer exist!.


Do you have access to the sealed motion where Echostar cites they have removed all the patented constructions? Could you please cite it, or qualify this statement as "just your opinion".



jacmyoung said:


> But guess what, E* lost with that "parse" argument you know. So how can TiVo now use the same lost cause and hope they can win on that alone?


Tivo will be making the same basic arguments they made at the trial, that Echostar is infringing their independent patent claims and/or infringing the dependent claims.



jacmyoung said:


> E*'s past logic may be flawed, and if you only try to attack an already flawed logic hoping to win, it is called "begging the question", a flawed way of arguing.


This isn't English and makes no sense.



jacmyoung said:


> E*'s current logic is we do not do all of the above, therefore TiVo must respond in kind, argue that no you still do all of the above. But TiVo cannot say that, because E* indeed no longer do all of the above, so the only thing TiVo can do is beg the old question which had been proven flawed, and attack that one.


Again, could you cite the reference where Echostar claims they "do not do all of the above". Again, Tivo will look at each attempt that Echostar makes to claim they no longer infringe the patent and compare it to the patent's claims.

And Folsom has actually given Tivo three independent theories to attack. One is that the specific changes Echostar made in the workaround are merely colorably different, i.e. they don't amount to a new process. Two, regardless of the workaround, there are other claims on the patent that Echostar continues to infringe, i.e. that the have not "worked around" all of the findings of infringement. And three, that even with the workaround(s), the process still meets infringement under the doctrine of equivalents, i.e. the process does not fall within the literal scope of a patent claim, but nevertheless is equivalent.

Tivo is living with the definition and descriptions of the patents they filed a long time ago. You better believe Tivo is living and thriving in the past.


----------



## jacmyoung

I will respond to you just one last time, go read all the filings by E* where they said over and over what are the things they have removed in their new design. They are not sealed, and TiVo's response to them are not sealed.

And why TiVo may only argue on this one "empty sentence" when they go into the hearing? Because they cannot go into the courtroom and suddenly start to talk about all the things they have done during the jury trial, they must first do so in their disclosures to E* already, and they did not do so, because E* said they only disclosed "four empty sentences", and TiVo's response is TiVo only needs one such sentence.

Therefore TiVo must only argue on that one sentence at the hearing, anything more than that needs to be fully disclosed to E* before the hearing. The disclosures are already over, both had done so, next step is cross examination of the expert witnesses, besically to verify what is said in the expert disclosures, not to offer any new legal theories.


----------



## the judge

jacmyoung said:


> And why TiVo may only argue on this one "empty sentence" when they go into the hearing? Because they cannot go into the courtroom and suddenly start to talk about all the things they have done during the jury trial, they must first do so in their disclosures to E* already, and they did not do so, because E* said they only disclosed "four empty sentences", and TiVo's response is TiVo only needs one such sentence.


First, you misread the motion to compel. Echostar referred to Tivo's "empty sentence*s*". Which means more than one, or many. Therefore, more than one, or many, issues were generally detailed.

Second, you have never seen the expert disclosures Tivo produced for this hearing, because they are not filed with the court. Yet here you go again quoting from them. And then you claim Tivo didn't make certain disclosures because Echostar said so?

Dead wrong again. The truth is that Echostar complained that Tivo's preliminary disclosures (which you have never seen) "provided conclusory assertions revealing nothing", and referenced Tivo's "insufficient" arguments related to limitations requiring frame indexing, alleged changes to the DP-50X products which were insubstantially different from the claims, manipulating data during playback, and infringement of the 'parses' limitation literally and/or under the doctrine of equivalents (that's clearly a lot more than just one issue).

The truth is that the Court rejected Echostar's whining, and dismissed their motion to compel, stating the obvious that Tivo's expert disclosures "will likely cure any prior deficiency". Which must have happened, because Tivo made those disclosures on December 24 and Echostar has shut up.



jacmyoung said:


> Therefore TiVo must only argue on that one sentence at the hearing, anything more than that needs to be fully disclosed to E* before the hearing. The disclosures are already over, both had done so, next step is cross examination of the expert witnesses, besically to verify what is said in the expert disclosures, not to offer any new legal theories.


Wrong yet again. You base these absolute conclusions on your faulty foundation that since Echostar said it therefore it must be true, along with your misreading of the documents that have been produced. Most of what Echostar has said has been proven by a judge and jury to be wrong, and by adopting their arguments as fact and misinterpreting documents, you are developing the same reputation.


----------



## jacmyoung

the judge said:


> ...Tivo's expert disclosures "will likely cure any prior deficiency". Which must have happened, because Tivo made those disclosures on December 24 and Echostar has shut up...


Do you have evidence that TiVo had cured its deficiency? E* outlined TiVo's four "empty sentences" as its argument that TiVo was deficient, did you read those four empty sentences?

Who said E* had shut up? After TiVo's expert disclosures, E* files a motion to delay the hearing by 4 months or 5 more hours. Not only was E* not shut up, E* had a lot more to say about TiVo's deficiency, not only that, E* added another accusation that because TiVo was only saying that single empty sentence, TiVo now is trying to change the patent claim limitations. Because of that a lot more time is needed to reexamine the claim limitations.

While there are a lot of info under seal, we can still gleam from the two open filings from both E* and TiVo, and in TiVo's latest response objecting to E*'s delay request, TiVo again confirmed what E* said, that TiVo is saying only one of that four sentences, and because of that there was no need to delay. If having 4 sentence was deficient, how can only a single sentence from that 4 possilbly had cured the deficiency?

And the judge said the reason there is no need to delay is E* had sufficient time and should be able to address "all the issues" at the hearing. He did not say TiVo had cured its deficiency, only that E* needs no more time to cure any of E*'s own issues, E* will be able to address all issues, and with that you can also say E* has no deficiency to be concerned about.

Now that is not to say the judge believed TiVo was still deficient, only that you cannot find anything to indicate he thought TiVo had cured its deficiency, only that he told E*, stop thinking you need more time, you have said all you need to say, you are not deficient.

And that is what we do know today. And I am going by what we do know, while it is true there may be something more under seal we do not know, the central issues are on the table.

You can of course continue to argue that I am doing the spin still, and that much I do not deny, I have been doing the spin for the last 8 months, or I like to call it speculating, the only problem you folks have is, you have nothing to spin, and you have still nothing to say for yourself other than but next time, you just wait for the next time.

I on the other hand have been proven correct on at least 5 or 6 issues which I will not waste time to list them again, you can find them from the past posts.

Go ahead wish for the next time, because that is all you had been doing, and is all you will do, to wish for it.

I do not wish for anything, I state my reasoning based on my speculations from exactly what have been said, not what might have been said. And this much I have been saying, the judge's "substantive infringement analysis" is premature, if, and only if he rules an infringement on the new design, his ruling will be vacated on appeal.

Therefore, half of this next hearing will be a waste of time, just like Curtis52 said before that the 9/4 hearing was a waste of time too.


----------



## the judge

jacmyoung said:


> Do you have evidence that TiVo had cured its deficiency? E* outlined TiVo's four "empty sentences" as its argument that TiVo was deficient, did you read those four empty sentences?


So now you understand it was four sentence*s*, and not one, so you admit you were wrong there. We believe that Tivo cured any alleged deficiency because Echostar has not gone back to Folsom and whined about that since December.



jacmyoung said:


> Who said E* had shut up? After TiVo's expert disclosures, E* files a motion to delay the hearing by 4 months or 5 more hours. Not only was E* not shut up, E* had a lot more to say about TiVo's deficiency, not only that, E* added another accusation that because TiVo was only saying that single empty sentence, TiVo now is trying to change the patent claim limitations. Because of that a lot more time is needed to reexamine the claim limitations.


Again, we know that Echostar has shut up because we can see every time they whine to the Court. We can't always read it, but we know the subject. As a matter of fact, how do you know that Echostar had a lot more to say about TiVo's deficiency when their filing was sealed? You don't, you're making it up. Echostar's last filing had nothing to do with Tivo deficiencies, the Court DENIED all of Echostar's requests, and gave both sides 2.5 more hours to argue.

Could you explain again your *single empty sentence* theory, because the only reference to "empty sentence*s*" is from Echostar's motion to compel, which was DENIED. So your theory based on some single empty sentence is a farce.



jacmyoung said:


> TiVo is saying only one of that four sentences, and because of that there was no need to delay. If having 4 sentence was deficient, how can only a single sentence from that 4 possilbly had cured the deficiency?


Again, please use English - this is truly an example of a "single empty sentence". Echostar quoted four of Tivo's arguments in their motion to compel, and further disparaged other Tivo disclosures. That would mean that Tivo raised at least six (four plus other*s*) issues, and not just one as you wrongly conclude.



jacmyoung said:


> He did not say TiVo had cured its deficiency, only that E* needs no more time to cure any of E*'s own issues, E* will be able to address all issues, and with that you can also say E* has no deficiency to be concerned about.


The judge never said Tivo had any deficiencies, he only stated that *if* Tivo had any they would likely be cured in the expert response. There is no mention anywhere that Echostar had any deficiencies to cure, by the judge or by Tivo. So that whole theory is is complete garbage.



jacmyoung said:


> I on the other hand have been proven correct on at least 5 or 6 issues which I will not waste time to list them again, you can find them from the past posts.


All we know jacy is every issue I have challenged you over you have lost. And you now admit your theories are speculation and spin. Neither of those have much value on a board like this which should be more focused on examining real facts and circumstances and applying real law so we can all understand the case a little better.


----------



## jacmyoung

the judge said:


> So now you understand it was four sentence*s*, and not one, so you admit you were wrong there. We believe that Tivo cured any alleged deficiency because Echostar has not gone back to Folsom and whined about that since December.


Who is we? TiVo? If you represent TiVo, I have even less to be worried about

Of course it was 4 sentences before, only that E* succeeded in getting TiVo to admit they only now have one sentence left. What do you mean E* did not whine? What was this big whine about needing a delay?

I just said this new delay motion, while failing to succeed by itself, which no one thought it would fly anyway, got TiVo to say on the record they only have one sentence.



> Could you explain again your *single empty sentence* theory, because the only reference to "empty sentence*s*" is from Echostar's motion to compel, which was DENIED. So your theory based on some single empty sentence is a farce.


Because TiVo said so, in trying to defeat E*'s motion for the delay, TiVo said there is no need for more time from TiVo, because TiVo is only saying one thing. How many times do I have to explain this to you?

And this motion also succeeded in another issue, that is TiVo for all that time was also arguing that E*'s design around effort was in bad faith. In this E* motion, E* said since TiVo was making the good faith/bad faith an issue, E* needed more time to prove their good faith effort.

What was TiVo's response? TiVo said good faith/bad faith, did not matter. So E* now got TiVo to fall in the trap, and TiVo can no longer argue next time that E*'s design around was in bad faith, because TiVo said themselves, good faith/bad faith, didn't matter.


----------



## the judge

jacmyoung said:


> Who is we? TiVo? If you represent TiVo, I have even less to be worried about.


"We" refers to everyone who reads and contributes to this forum.



jacmyoung said:


> Of course it was 4 sentences before, only that E* succeeded in getting TiVo to admit they only now have one sentence left.
> 
> I just said this new delay motion, while failing to succeed by itself, which no one thought it would fly anyway, got TiVo to say on the record they only have one sentence.
> 
> Because TiVo said so, in trying to defeat E*'s motion for the delay, TiVo said there is no need for more time from TiVo, because TiVo is only saying one thing. How many times do I have to explain this to you?


Wrong again. Here's a direct quote from Tivo's opposition to Echostar futile attempt to delay the hearing: "The issue*s* for the upcoming February hearing are narrow and *involve a handful of modest (indeed, no more than colorable) changes* to a defined set of products that implicate only a *few claim limitations*."



jacmyoung said:


> And this motion also succeeded in another issue, that is TiVo for all that time was also arguing that E*'s design around effort was in bad faith. In this E* motion, E* said since TiVo was making the good faith/bad faith an issue, E* needed more time to prove their good faith effort.
> 
> What was TiVo's response? TiVo said good faith/bad faith, did not matter. So E* now got TiVo to fall in the trap, and TiVo can no longer argue next time that E*'s design around was in bad faith, because TiVo said themselves, good faith/bad faith, didn't matter.


This is a senseless argument. From Tivo's opposition "It is well established that good faith is not a defense to civil contempt and willfulness is irrelevant to civil contempt liability." This hearing is about infringement and contempt of the court's injunction, and good faith has no bearing on those issues.

Furthermore, it is stupid to suggest that bad faith has any relevance if there is no infringement. The bad faith argument matters as to damages if Echostar is found to infringe.


----------



## James Long

the judge said:


> "We" refers to everyone who reads and contributes to this forum.


Speak for yourself ... there are a lot of "we" that do not agree with you and the TiVo friendly view of the situation.


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## the judge

James Long said:


> Speak for yourself ... there are a lot of "we" that do not agree with you and the TiVo friendly view of the situation.


So are saying that you do not believe that Tivo cured any alleged deficiency because Echostar has not gone back to Folsom and whined about that since December? If so, then you are part of "we". If not, state your case.


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## scooper

the judge said:


> So are saying that you do not believe that Tivo cured any alleged deficiency because Echostar has not gone back to Folsom and whined about that since December? If so, then you are part of "we". If not, state your case.


I got a better idea - why don't YOU explain to US how Tivo cured their alleged deficiency ?


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## dgordo

scooper said:


> I got a better idea - why don't YOU explain to US how Tivo cured their alleged deficiency ?


I think this is a simple argument to make; there never were any deficiencies to cure because Folsom never ruled that there were any deficiencies.


----------



## the judge

scooper said:


> I got a better idea - why don't YOU explain to US how Tivo cured their alleged deficiency ?


First, there is no evidence that Tivo even had a deficiency except Echostar's whining that it existed. Second, Folsom told Echostar to shut up, and that if there is any deficiency it would likely be cured in the expert disclosure due two days later. Third, since Tivo served that expert disclosure last December Echostar has not whined about deficiencies again. Ipso facto, whatever Echostar wanted they now have or you would have likely heard a fourth emergency motion.


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## James Long

the judge said:


> So are saying that you do not believe that Tivo cured any alleged deficiency because Echostar has not gone back to Folsom and whined about that since December? If so, then you are part of "we". If not, state your case.


The point is that when you pretend to speak for the "we" on this website you are ABSOLUTELY POSITIVELY WRONG. Speak for yourself only. You know only as much if not less than anyone else here.



the judge said:


> Second, Folsom told Echostar to shut up, and that if there is any deficiency it would likely be cured in the expert disclosure due two days later.


And now you're speaking for Judge Folsom? If you cannot speak for yourself please don't bother.

The court filings are included in these threads for a reason ... for people to read the truth ... the words Judge Folsom _*actually*_ spoke in his orders as well as TiVo's and DISH's pleadings on the matter (when not sealed). I don't believe anyone here is incapable of reading ... please don't insult people by pretending that you can read any better than anyone else.

Thanks for your opinions ... just make sure you keep them YOUR opinions. You don't speak for "we".


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## jacmyoung

dgordo said:


> I think this is a simple argument to make; there never were any deficiencies to cure because Folsom never ruled that there were any deficiencies.


Of course E* never violated the injunction because Folsom never said they did;

E* never was in contempt because Folsom never ruled that E* was in contempt;

E*'s design around effort was never in bad faith because Folsom never said it was;

E* never had the burden of proof their new design no longer infringe because Folsom never said E* carries the burden of proof;

E* never lied because Folsom had never said E* lied before...

BTW, TiVo's disclosures are deficient because TiVo had failed to prove the new design is still an infringement by clear and convincing evidence. All TiVo is saying is the new design still parses. That is deficient from the legal standpoint of proving an infringement.

There is no need to continue to insist that TiVo cure the deficience, it is up to E* to decide what kind of motions they want to file and when.

The initial motion to compel was to try to point out TiVo had all the time to review E*'s full disclosures, and E* did not get the same opportunity, because E* did not know what TiVo was going to say in their expert disclosures, so the protest was to lay the gournd work for a future appeal, if necessary, that E*'s due process right to defend itself was violated.

The second motion was different because after receiving the supposedly "cured" TiVo disclosures, E* still saw the same argument from TiVo, this time E* knew TiVo still had nothing and would not have another chance to add anything new. Why point out TiVo's deficiency this time when they knew TiVo could not even cure it, the chance for disclosures were done already? Let TiVo be deficient, the more the better. Therefore this second motion was to lay two traps for TiVo to fall into, one to have TiVo to say on the record they only needed one sentence, the other was to have TiVo say on the record bad faith/good faith, did not matter.

Now E* knows TiVo not only is defficient, but more so than the last time, and the TiVo's good faith/bad faith crap is also refuted by TiVo themself.

E* had just done the best I can think of to lay the best conditions for their own future debate, not just for the next hearing, but after that, if Judge Folsom turns out really has no respect for the standards established by the Appeals Court.


----------



## jacmyoung

the judge said:


> "We" refers to everyone who reads and contributes to this forum...


I just realized I have given you a little too much credit.


----------



## dgordo

jacmyoung said:


> Of course E* never violated the injunction because Folsom never said they did;
> 
> E* never was in contempt because Folsom never ruled that E* was in contempt;
> 
> E*'s design around effort was never in bad faith because Folsom never said it was;
> 
> E* never had the burden of proof their new design no longer infringe because Folsom never said E* carries the burden of proof;
> 
> E* never lied because Folsom had never said E* lied before...


Exactly. These are all true. Unless/until a judge rules on something, it didn't happen.



jacmyoung said:


> BTW, TiVo's disclosures are deficient because TiVo had failed to prove the new design is still an infringement by clear and convincing evidence. All TiVo is saying is the new design still parses. That is deficient from the legal standpoint of proving an infringement.


I didn't realize that Folsom had made that ruling yet. Silly me, I thought thats what the evidenciary hearing was going to resolve.


----------



## the judge

James Long said:


> The point is that when you pretend to speak for the "we" on this website you are ABSOLUTELY POSITIVELY WRONG. Speak for yourself only.


Excuse me, I'll requalify my response. When I said "we", I meant myself and the other people in this forum I spoke with who agreed with my point regarding Tivo no longer being deficient. I didn't get your answer before, but are you one of those who believes Tivo remains (allegedly) deficient?



James Long said:


> You know only as much if not less than anyone else here.


How do you have any idea what I know, or who I work for, or what my profession is that might contribute to me being the most knowledgeable person in the Forum. Perhaps you should read my posts a little more carefully before making such a judgment. If you want to moderate, you ought to examine jacy's inane logic with the same enthusiasm as you do mine.



James Long said:


> And now you're speaking for Judge Folsom? If you cannot speak for yourself please don't bother.


Well, I have no idea where this accusation comes from, unless it's the colorful rhetoric that's implied in citing Judge Folsom's Orders. You and many others have cited Tivo, Echostar and Folsom's filings without being accused of "speaking for them", and we (again, myself the other people in this forum I spoke with) expect the same courtesy.


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## James Long

the judge said:


> Well, I have no idea where this accusation comes from


See the quote in my post. Then point to where Judge Folsom said "shut up". Otherwise, colorful or not, you are misrepresenting Judge Folsom.

If you have any further problems with the directions I give please send a PM. This thread is for discussing TiVo vs Echostar. Stay focused on the case.


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## the judge

James Long said:


> See the quote in my post. Then point to where Judge Folsom said "shut up". Otherwise, colorful or not, you are misrepresenting Judge Folsom.


I presume the quote in your post is the bolded word *actually*. My euphemistic reference to Judge Folsom telling Echostar to "shut up" is a combination of his two statements:

1. "Because TiVo's expert disclosures are due on December 24 and will likely cure any prior deficiency", and

2. "This Court DISMISSES WITHOUT PREJUDICE EchoStar's Motion to Compel."

Those are direct quotes from Judge Folsom. I referred to the sum of the two as a judicial "shut up" to Echostar's "emergency motion to compel". In my experience, Judges do not like to be bothered with emergency motions unless they are actual emergencies. This one obviously wasn't.


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## scooper

the judge said:


> How do you have any idea what I know, or who I work for, or what my profession is that might contribute to me being the most knowledgeable person in the Forum. Perhaps you should read my posts a little more carefully before making such a judgment. If you want to moderate, you ought to examine jacy's inane logic with the same enthusiasm as you do mine.


There's been plenty of comments on jac's posts. As James said, this thread is about Tivo vs Echostar, and not anything else. Personally, sometimes he's a bit out there, other times he's been pretty spot on.


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## the judge

scooper said:


> But I am very good at reading and ferreting out shills and trolls...I'm also very good at identifying people from their writing if I have seen them before - you don't match out with anyone else that I've read here before.


Start by answering the essential question: Do you believe that Tivo cured any alleged deficiency based on the fact that Echostar has not gone back to Folsom and whined about it since December?

If you answer "yes", you are part of "we". If not, which I respect, please explain your case.


----------



## scooper

the judge said:


> Start by answering the essential question: Do you believe that Tivo cured any alleged deficiency based on the fact that Echostar has not gone back to Folsom and whined about it since December?
> 
> If you answer "yes", you are part of "we". If not, which I respect, please explain your case.


I asked you first. Show where they DID.

But I am NOT part of your "we".


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## Greg Bimson

jacmyoung said:


> Of course E* never violated the injunction because Folsom never said they did;
> 
> E* never was in contempt because Folsom never ruled that E* was in contempt;
> 
> E*'s design around effort was never in bad faith because Folsom never said it was;
> 
> E* never had the burden of proof their new design no longer infringe because Folsom never said E* carries the burden of proof;
> 
> E* never lied because Folsom had never said E* lied before...


Basically correct, then...


jacmyoung said:


> BTW, TiVo's disclosures are deficient because TiVo had failed to prove the new design is still an infringement by clear and convincing evidence.


Hmm. The above sentences regarding what DISH/SATS legal status is correct, yet somehow "TiVo's disclosures are deficient", yet Judge Folsom never said they were.

By inference, this means that if TiVo were able to prove in their disclosures that the new designs are infringements there would be no reason to have this hearing.


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## the judge

scooper said:


> I asked you first. Show where they DID.
> But I am NOT part of your "we".


The only "evidence" is that Echostar complained that Tivo did not meet Judge Folsom's original order, yet Echostar has not complained since Tivo filed their expert disclosures. So what does the "preponderance of evidence" tell you?

You can refute being part of "we", but the bigger question is do you agree with the essential point that Tivo is no longer deficient? Or not? Please state your case!


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## jacmyoung

Greg Bimson said:


> Basically correct, then...Hmm. The above sentences regarding what DISH/SATS legal status is correct, yet somehow "TiVo's disclosures are deficient", yet Judge Folsom never said they were.
> 
> By inference, this means that if TiVo were able to prove in their disclosures that the new designs are infringements there would be no reason to have this hearing.


Too much inference, the above statement should be considered just that, it is my view TiVo is deficient. I did not list that statement as one of the bullets did I?


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## jacmyoung

the judge said:


> The only "evidence" is that Echostar complained that Tivo did not meet Judge Folsom's original order, yet Echostar has not complained since Tivo filed their expert disclosures. So what does the "preponderance of evidence" tell you?
> 
> You can refute being part of "we", but the bigger question is do you agree with the essential point that Tivo is no longer deficient? Or not? Please state your case!


Your argument is begging the question, just because E* in the second motion did not accused TiVo of deficient does not mean TiVo is now sufficient.

As I said above, during the first motion to compel, E* did not know if anything more TiVo would say in the expert disclosures. When later they saw the TiVo's expert disclosures, They no longer had to insist TiVo to cure any deficiency, because TiVo had run out of any chance to cure any deficiency, in fact at that point, E* should be glad TiVo's deficiency continued and actaully got worse, from 4 sentences down to one.

When E* goes to the courtroom, they want TiVo be as deficient as they possibly can be. In fact as I said, E* after the second motion had managed to make TiVo even more deficient by getting TiVo to refute one of its own arguments that E* was in bad faith, because as TiVo finally said, good faith, bad faith, does not matter.


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## jacmyoung

A quote from a patent litigation strategies session:



> The patent litigant faced with a deficient expert report may have a dilemma. If the goal is to file a motion to exclude undisclosed evidence at trial, then filing a motion to compel during discovery may not be wise. For instance, a motion to compel may alert the opponent to the deficiencies and give it and the expert an opportunity to correct the deficiency or further bolster their arguments. On the other hand, absent filing a motion to compel, the party runs the risk that a judge later will deem the nondisclosures harmless or justified. Accordingly, in deciding how to deal with deficient disclosures, the litigant should consider whether avoiding surprise at trial is the goal, or whether it is worth the risk to wait and move to have the expert's testimony excluded or limited.


(BTW I was told the author of the session permitted free quote of limited sections such as this one.)

The above section talked about expert disclosure deficiency, a little different than the disclosures E* sought to compel. But it explains how motion to compel may or may not be used in the litigation.

During the first round of disclosures, E* motioned to compel arguing that TiVo's initial disclosures (not the expert disclosures) were deficient. If one reads the above, E* wanted to make sure:

1) There was no surprises from TiVo, because TiVo was still preparing their additional disclosures, and

2) E* wanted the judge to know E* believed TiVo was deficient. Because likely E* believed had they not done so, the judge might say later that E* did not object, so it must not matter that much.

During the second motion, E* did not try to compel TiVo to cure deficiency, that did not mean E* believed TiVo had cured its deficiency. E* raised the issue once already, the motion to compel had served its purpose, that is the judge later cannot ignore such deficiency, if any.

Once that goal was reached, further motion to compel might actually harm E*, E* may not want to further alert TiVo of any deficiency to get TiVo to better prepare themselves.


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## Greg Bimson

But let's just remember that simply because DISH/SATS claims there is a deficiency doesn't mean there actually is one.


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## HobbyTalk

But let's also remember that simply because DISH/SATS no longer claims there is a deficiency doesn't mean there isn't one.


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## James Long

But let's also remember that the rain in Spain falls mainly in the plains (or so I hear).

Hopefully there will be something real to talk about soon ... no court postings since the 12th. I believe the only item outstanding is the joint stipulation [879] to extend the filing dates. The signed version hasn't hit the court website yet.


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## Greg Bimson

HobbyTalk said:


> But let's also remember that simply because DISH/SATS no longer claims there is a deficiency doesn't mean there isn't one.


The courts can only rule on motions in front of it. There is no motion pending for deficient disclosures. Therefore, there is no "deficiency". There cannot be a "deficiency" until there is first a motion filed requesting the courts to compel action to cure a deficiency.

Although one motion to compel had been filed, it was summarily denied.

TiVo's legal arguments are that the devices still infringe and are merely colorably different. That has not changed.

It seems DISH/SATS wanted to get every legal detail from TiVo about how and what they would argue. However, TiVo's expert disclosures weren't due until later. It is difficult to understand why a technical discussion regarding infringement should be provided before expert analysis and disclosure.


----------



## jacmyoung

Greg Bimson said:


> The courts can only rule on motions in front of it. There is no motion pending for deficient disclosures. Therefore, there is no "deficiency". There cannot be a "deficiency" until there is first a motion filed requesting the courts to compel action to cure a deficiency...


Of course you ignored the legal strategic section I just quoted which explains when and why a motion to compel should be used or not.

When the judge denied the first motion to compel, *without prejudice*, it was an inference that he did see deficiency but believed it would likely be cured in the TiVo's expert disclosures.

But when E* filed the second motion after the expert disclosures, there was a good strategic reason not to continue to compel, if you read the above section I quoted.

The reason I think TiVo continued to be deficient, and even more so, was because in trying to defeat E*'s second motion to delay, TiVo was forced to disclose their final legal theory, that was too points:

1) We do not need more time because our point is simple, one and only, that the new design still parses. (one of the 4 empty sentences).

2) Good faith, bad faith, it should not have any bearing on the legitimacy of E*'s design around effort.

Or let me put it this way, the two E*'s motions had succeeded in forcing TiVo to take on an argument that is now *less sufficient* than the one before? If so, then can you tell me why, if TiVo did not convince the judge to find a contempt last time, that somehow TiVo should prevail this time?


----------



## Bidderman9

James Long said:


> But let's also remember that the rain in Spain falls mainly in the plains (or so I hear).


That is hearsay... It isn't true until the court say so...
Sorry I could not resist.



James Long said:


> Hopefully there will be something real to talk about soon ... no court postings since the 12th. I believe the only item outstanding is the joint stipulation [879] to extend the filing dates. The signed version hasn't hit the court website yet.


Lets hope we have something real to talk about soon! :grin:


----------



## Greg Bimson

jacmyoung said:


> When the judge denied the first motion to compel, without prejudice, it was an inference that he did see deficiency but believed it would likely be cured in the TiVo's expert disclosures.


No, the inference was that expert disclosures would cure any possible DISH/SATS-perceived deficiency from the earlier disclosures.


jacmyoung said:


> Or let me put it this way, the two E*'s motions had succeeded in forcing TiVo to take on an argument that is now less sufficient than the one before? If so, then can you tell me why, if TiVo did not convince the judge to find a contempt last time, that somehow TiVo should prevail this time?


The "four empty sentences" were legal points. In finding either or both infringement or mere colorable difference, there is no need to determine "good faith" or "bad faith".

And the likely story is that the expert disclosures made TiVo's arguments *more* sufficient, as all of a sudden DISH/SATS appealed to Judge Folsom for either a delay in the proceedings or extra time during the hearing.


----------



## jacmyoung

Greg Bimson said:


> ...And the likely story is that the expert disclosures made TiVo's arguments *more* sufficient, as all of a sudden DISH/SATS appealed to Judge Folsom for either a delay in the proceedings or extra time during the hearing.


The only problem with your speculation is it does not agree with TiVo's argument, because when TiVo argued against E*'s motion to delay, TiVo's points were their was no delay needed from TiVo's end because TiVo's argument was simple, in fact even simpler than the one before, meaning less than before.

Therefore if TiVo in fact later changes their argument, makes it "sufficient" again, or at least as sufficient as the one before, there will be good justification to delay again, or even have any additional points from TiVo *excluded* (see my above quoted section for "exclusion").

It would be unfair for one side to say we only have this little to say therefore more time is not need, then later come back say oh guess what we do have a lot more to say after all.

In an effort to defeat E*'s motion to have more time, TiVo was forced to committing themselves to an argument that is less than before, and they are now bind to that more simpler argument, anything else they say will be used against them to point out look TiVo lied when they tried to demonstrate that no more time was needed.


----------



## dgordo

jacmyoung said:


> Of course you ignored the legal strategic section I just quoted which explains when and why a motion to compel should be used or not.
> 
> When the judge denied the first motion to compel, *without prejudice*, it was an inference that he did see deficiency but believed it would likely be cured in the TiVo's expert disclosures.
> 
> But when E* filed the second motion after the expert disclosures, there was a good strategic reason not to continue to compel, if you read the above section I quoted.
> 
> The reason I think TiVo continued to be deficient, and even more so, was because in trying to defeat E*'s second motion to delay, TiVo was forced to disclose their final legal theory, that was too points:
> 
> 1) We do not need more time because our point is simple, one and only, that the new design still parses. (one of the 4 empty sentences).
> 
> 2) Good faith, bad faith, it should not have any bearing on the legitimacy of E*'s design around effort.
> 
> Or let me put it this way, the two E*'s motions had succeeded in forcing TiVo to take on an argument that is now *less sufficient* than the one before? If so, then can you tell me why, if TiVo did not convince the judge to find a contempt last time, that somehow TiVo should prevail this time?


You don't have any idea what E*s motion based on deficiency means do you? Hint: It has nothing to do with the validity of legal theories or the chance of success on the merits.


----------



## jacmyoung

dgordo said:


> You don't have any idea what E*s motion based on deficiency means do you? Hint: It has nothing to do with the validity of legal theories or the chance of success on the merits.


Of course I am not as good as you in terms of understanding every legal aspect of the law, I am no lawyer, you are.

Unfortunately you have yet once, if I recall, used your legal expertise to explain why TiVo did not do their job badly, all you were able to do was trying to belittle me for sometimes not able to have a full breadth of legal understanding.

I don't mind if such comes from another non-lawyer person, but from you?

Do me a favor, tell us what it is first for a change.


----------



## dgordo

jacmyoung said:


> Of course I am not as good as you in terms of understanding every legal aspect of the law, I am no lawyer, you are.
> 
> Unfortunately you have yet once, if I recall, used your legal expertise to explain why TiVo did not do their job badly, all you were able to do was trying to belittle me for sometimes not able to have a full breadth of legal understanding.
> 
> I don't mind if such comes from another non-lawyer person, but from you?
> 
> Do me a favor, tell us what it is first for a change.


I did in fact explain why tivo did not do "their job badly." It is very simple; Folsom did not rule that they did "their job badly."

The motion by E* was claiming that tivo did not provide enough information. The American legal system is based upon both sides knowing the legal theories/witnesses, etc. the other side will use, not surprise. All E* was claiming was that tivo did not provide enough information to allow them to prepare for the hearing.


----------



## jacmyoung

dgordo said:


> I did in fact explain why tivo did not do "their job badly." It is very simple; Folsom did not rule that they did "their job badly."
> 
> The motion by E* was claiming that tivo did not provide enough information. The American legal system is based upon both sides knowing the legal theories/witnesses, etc. the other side will use, not surprise. All E* was claiming was that tivo did not provide enough information to allow them to prepare for the hearing.


Correct, and according to E*, the reason TiVo did not provide enough information was because TiVo only provided that 4 sentences. And TiVo did not dispute that, only that they said they needed more time to go over E*'s full disclosures first.

The judge agreed with TiVo that TiVo was likely to cure any deficiency after their expert disclosures, meaning after that they should have at least 5 sentences.

Now this much we learned, in TiVo's latest response to argue that no more time was needed, they said in part because TiVo only needed one sentence, and in addition, TiVo had also "voluntarily" withdrawn their "bad faith" argument.

Now you have always been good at your oneliners, mainly to belittle the other side. What I am asking is at a minimum, if you believe we lack legal understanding, contribute a little more than just a few oneliners so we can all benefit.

For example, tell us how "motion to compel" and "motion to delay" are often used in a legal proceeding and for what strategic reasons. I am sure in your line of work you have tried such strategies once in a while too.

Did you do so simply to "whine"?


----------



## dgordo

jacmyoung said:


> Correct, and according to E*, the reason TiVo did not provide enough information was because TiVo only provided that 4 sentences. And TiVo did not dispute that, only that they said they needed more time to go over E*'s full disclosures first.
> 
> The judge agreed with TiVo that TiVo was likely to cure any deficiency after their expert disclosures, meaning after that they should have at least 5 sentences.
> 
> Now this much we learned, in TiVo's latest response to argue that no more time was needed, they said in part because TiVo only needed one sentence, and in addition, TiVo had also "voluntarily" withdrawn their "bad faith" argument.


Folsom made no judgment on tivo's disclosures. He said, ill wait until later to make a judgment.



jacmyoung said:


> Now you have always been good at your oneliners, mainly to belittle the other side. What I am asking is at a minimum, if you believe we lack legal understanding, contribute a little more than just a few oneliners so we can all benefit.


I didn't realize that there was "the other side." I don't have the time to follow this a closely as you do, when I interject it seems you are the only one who cant grasp the legal aspects of this case. I guess the other side would be the people who talk without knowing what they are saying?



jacmyoung said:


> For example, tell us how "motion to compel" and "motion to delay" are often used in a legal proceeding and for what strategic reasons. I am sure in your line of work you have tried such strategies once in a while too.
> 
> Did you do so simply to "whine"?


I don't actively practice anymore but I often used every tactic you could think off, especially when I needed to rack up billable hours. :lol:

Certainly these motions have legitimate uses, and I don't dispute that E* saw these 4 sentences from tivo and thought, what the **** is this? I once was asked for my legal theory in a case and responded with one sentence. The other side said I didn't provide enough info, the judge disagreed. Its not the length of the disclosure, its the content.


----------



## jacmyoung

dgordo said:


> Folsom made no judgment on tivo's disclosures. He said, ill wait until later to make a judgment.


No he said any deficiency would likely be cured by TiVo after their expert disclosures, and he did not say he would wait until later to make a judgment, though technically you are correct that the judge will of course ultimately make such judgment in his final ruling.



> I didn't realize that there was "the other side." I don't have the time to follow this a closely as you do, when I interject it seems you are the only one who cant grasp the legal aspects of this case. I guess the other side would be the people who talk without knowing what they are saying?


So you are saying the other side at least has been all making good legal sense? I couldn't help but wondering your lawyer credentials



> I don't actively practice anymore but I often used every tactic you could think off, especially when I needed to rack up billable hours. :lol:


Should I have sent you a bill?



> Certainly these motions have legitimate uses, and I don't dispute that E* saw these 4 sentences from tivo and thought, what the **** is this? I once was asked for my legal theory in a case and responded with one sentence. The other side said I didn't provide enough info, the judge disagreed. Its not the length of the disclosure, its the content.


Of course you are correct on that, I never said one must always speak more than one sentence to be proven. But in this case, at a minimum, you should understand the legal standard in proving patent infringement, and the burden of proof on each side, and make an educated judgment whether the four sentences, or just that one, is likely to prevail.


----------



## dgordo

jacmyoung said:


> No he said any deficiency would likely be cured by TiVo after their expert disclosures, and he did not say he would wait until later to make a judgment, though technically you are correct that the judge will of course ultimately make such judgment in his final ruling.


He said, any, meaning if there are any. In other words, he didn't rule on if there were any deficiencies.



jacmyoung said:


> So you are saying the other side at least has been all making good legal sense? I couldn't help but wondering your lawyer credentials


Both side are engaged in wild speculation over the outcome. You are the only one that makes legal statements without understanding the meaning of important legal terms and procedures. Perhaps because you make wild guesses about everything?



jacmyoung said:


> Of course you are correct on that, I never said one must always speak more than one sentence to be proven. But in this case, at a minimum, you should understand the legal standard in proving patent infringement, and the burden of proof on each side, and make an educated judgment whether the four sentences, or just that one, is likely to prevail.


We didn't see the the 4 sentences, how do you know what they said? These sentences don't need to include much of what you mentioned anyway.


----------



## jacmyoung

dgordo said:


> ...Both side are engaged in wild speculation over the outcome. You are the only one that makes legal statements without understanding the meaning of important legal terms and procedures. Perhaps because you make wild guesses about everything?


I wouldn't say wild guesses, any guess I make usually has some basis, otherwise I could not have been right so many times, I have at least 6 listed earlier. Did I miss some? Of course, I never expected to be perfect. But did you find any guesses proven true from the other side?



> We didn't see the the 4 sentences, how do you know what they said? These sentences don't need to include much of what you mentioned anyway.


We did see them because E* quoted them from TiVo's initial disclosures, and TiVo did not dispute them.

Whether these sentences need to include anything is not the point. The point is E* quoted those sentences as the basis for their opinion that TiVo was deficient, the judge looked at them and said he believed any deficinecy would likely be cured by TiVo's next expert disclosures.

The question is did TiVo cure it as the judge had thought they would likely do, when later TiVo insisted they only needed one of the 4 sentences, therefore there was no need for more time?

Let me put it this way, if TiVo were your client, at this juncture, would you have felt you had done everything right and you only needed to sit back and read a contempt ruling coming down on E*?

I am asking you this question considering you a lawyer, not one of those TiVo supporters.


----------



## dgordo

jacmyoung said:


> I wouldn't say wild guesses, any guess I make usually has some basis, otherwise I could not have been right so many times, I have at least 6 listed earlier. Did I miss some? Of course, I never expected to be perfect. But did you find any guesses proven true from the other side?


Congratulations, you were right 6 out of 100 times. When I was in my last semester of law school I tutored 1Ls for extra money. You are a lot like them, they guessed at everything and wanted a pat on the back on the rare occasion when they were correct. And, yes other people have been correct too.



jacmyoung said:


> We did see them because E* quoted them from TiVo's initial disclosures, and TiVo did not dispute them.
> 
> Whether these sentences need to include anything is not the point. The point is E* quoted those sentences as the basis for their opinion that TiVo was deficient, the judge looked at them and said he believed any deficinecy would likely be cured by TiVo's next expert disclosures.
> 
> The question is did TiVo cure it as the judge had thought they would likely do, when later TiVo insisted they only needed one of the 4 sentences, therefore there was no need for more time?


I never said they didn't need to include anything, only enough to provide the opposing party with the the legal theories you intend to present.

As long as tivo mentioned somewhere in those statements that the new software is the same or no more than colorable different and that the software accomplishes the same or substantially the same function done in the same or substantially the same way to obtain the same result and how they intend to prove that, I would say their disclosures are sufficient.



jacmyoung said:


> Let me put it this way, if TiVo were your client, at this juncture, would you have felt you had done everything right and you only needed to sit back and read a contempt ruling coming down on E*?
> 
> I am asking you this question considering you a lawyer, not one of those TiVo supporters.


I am not a supporter of tivo.

I am not qualified to answer whether tivo has done enough to prove contempt. I don't know enough about software to make that judgment.


----------



## jacmyoung

dgordo said:


> Congratulations, you were right 6 out of 100 times.


Care to list a few of them out of 100? I just want to see how good you are with your math.



> I never said they didn't need to include anything, only enough to provide the opposing party with the the legal theories you intend to present.


I said including anything or not was not the point.



> As long as tivo mentioned somewhere in those statements that the new software is the same or no more than colorable different and that the software accomplishes the same or substantially the same function done in the same or substantially the same way to obtain the same result and how they intend to prove that, I would say their disclosures are sufficient.


I am sure you are aware that E* said a whole lot during the jury trial, were their disclosures sufficient to prove no infringement?



> I am not a supporter of tivo.


I said I did not consider you one, did you not read that part?



> I am not qualified to answer whether tivo has done enough to prove contempt. I don't know enough about software to make that judgment.


But since you are a lawyer, I am sure you do know what is needed to prove infringement and/or contempt, and who has what kind of burden of proof in which situation?

And assume TiVo is only saying that the modified DVRs still parse, do you think TiVo has met its burden of proof of a contempt and/or an infringement? It is a very simple question, no need to know anything about the software.


----------



## James Long

:backtotop *?*


----------



## dgordo

jacmyoung said:


> Care to list a few of them out of 100? I just want to see how good you are with your math.


I don't have time to track down all 100, he is a post with several I already pointed out:

http://www.dbstalk.com/showpost.php?p=1916168&postcount=876



jacmyoung said:


> I am sure you are aware that E* said a whole lot during the jury trial, were their disclosures sufficient to prove no infringement?


This is the last time I will explain this to you, those were not disclosures, they were legal and factual arguments. If you can not understand the difference there is no point in going on with this topic.



jacmyoung said:


> I said I did not consider you one, did you not read that part?


I don't see where you said that.



jacmyoung said:


> But since you are a lawyer, I am sure you do know what is needed to prove infringement and/or contempt, and who has what kind of burden of proof in which situation?
> 
> And assume TiVo is only saying that the modified DVRs still parse, do you think TiVo has met its burden of proof of a contempt and/or an infringement? It is a very simple question, no need to know anything about the software.


It is not a simple question for me. If parsing is an important part of tivo's patent, and they claim that it is, then I am not qualified to answer the question. Tivo is claiming that E*s software is the same or not colorably different, does that mean that they can't parse? I dont know. I couldn't even explain what parsing means.


----------



## Herdfan

dgordo said:


> When I was in my last semester of law school I tutored *1L*s for extra money.


I read that book my senior year of college _after_ I took the LSAT. Made me not want to go to law school any more. Those hours/days spent studying for the LSAT are hours/days I will never get back.

Edit: Sorry James :backtotop


----------



## Herdfan

dgordo said:


> It is not a simple question for me. If parsing is an important part of tivo's patent, and they claim that it is, then I am not qualified to answer the question.


Obviously there is a skill set that is required if someone wants to be a judge and supposedly mastery of that skill set to become a federal judge. There is also a unique skill set required to write a program that will run DVR's.

How do these skill sets meet. How does the judge become learned with all the minutia regarding this case. Not only does he have to know how to apply any existing case law, but will he really know in detail how all this works? I know judges have clearks that do legal research, but will they also have outside technical experts to advise them as well?


----------



## jacmyoung

dgordo said:


> This is the last time I will explain this to you, those were not disclosures, they were legal and factual arguments. If you can not understand the difference there is no point in going on with this topic.


You need to tell this to the E* attorneys and the judge, not me, because it was E* who accused TiVo of deficient disclosures by arguing that TiVo has only 4 empty sentences, and the judge did not say, hey you had no clue what you are talking about, that was not a part of their disclosures.



> I don't see where you said that.


Then why the urge to proclaim innocence when no one was accusing you of any such guilt?



> ...I dont know. I couldn't even explain what parsing means.


The jury did not seem to have any problem understanding that word because the court had construed it the same as "analyze".

This question is very much on topic because you are an attorney, claiming years of experience and having a lot of problem with me, a lay person, sometimes do not have a full understanding of your so called legal standard.

Yet at the same time, you refuse to even display the least bit of your own understanding of the standards in proving a contempt in a patent case, all you can do is playing dumb, that you do not know what the word "analyze" mean, and you do not know how to count from 1 to 100.

If Rogers (TiVo's CEO) today decides to hire you to add to his legal team, and he asks you this question, so far my legal team has said the modified E* DVRs still parse (analyze data), but not much else, do you think it's enough or should we try to say more? What will be your asnwer?

A very valid and on topic question.


----------



## James Long

:backtotop TiVo vs EchoStar ...


----------



## Greg Bimson

Here is the problem with "spinning" arguments:


jacmyoung said:


> The jury did not seem to have any problem understanding that word because the court had construed it the same as "analyze".





jacmyoung said:


> If Rogers (TiVo's CEO) today decides to hire you to add to his legal team, and he asks you this question, so far my legal team has said the modified E* DVRs still parse (analyze data), but not much else, do you think it's enough or should we try to say more? What will be your asnwer?


The problem is that there are three distinct classes of DVR's among the eight models found infringing:

Those which were not modified (the 721, 921 and 942)
Those which had one modification (the 501 and 508, the "50X DVR's")
Those which had more than one modification (the 510, 522 and 625, the "Broadcom DVR's"

I have seen that one of TiVo's main arguments is that the 501 and 508 still "parse", because they still analyze. That point was discussed during the trial and confirmed by DISH/SATS of fulfilling that component of the step of TiVo's patent claim.

If that was DISH/SATS argument that is all that has changed on the 50X DVR's, then they are merely colorably different than the unmodified receivers.

I don't understand why anyone would hang their hat on this argument.


----------



## HobbyTalk

Greg Bimson said:


> If that was DISH/SATS argument that is all that has changed on the 50X DVR's, then they are merely colorably different than the unmodified receivers.


That is your opinion, I don't believe the judge has ruled on that issue.


----------



## Greg Bimson

HobbyTalk said:


> That is your opinion, I don't believe the judge has ruled on that issue.


Of course it is my opinion. DISH/SATS claims only one modification made to the 501 and 508: the receivers no longer analyze pre-storage. Yet the parse step is still being met by the same PID filtering which was also a limitation presented and met during trial.

However, if a modification of a product or process still meets the limitations of the components and steps of the infringed claims in the same manner as it did before, I reiterate that the product or process will be found merely colorably different. It is the definition of "colorable difference".

Then again, if you took your keen eye to arguments by others, perhaps you'd repeat that same sentence to a single poster over a dozen times analyzing a single post.


----------



## the judge

Greg Bimson said:


> Here is the problem with "spinning" arguments:The problem is that there are three distinct classes of DVR's among the eight models found infringing:
> 
> Those which were not modified (the 721, 921 and 942)
> Those which had one modification (the 501 and 508, the "50X DVR's")
> Those which had more than one modification (the 510, 522 and 625, the "Broadcom DVR's"


Nice detail, but I think the 510 was actually considered a 50X DVR in the Fish and Richardson opinion letter.


----------



## the judge

Greg Bimson said:


> Of course it is my opinion. DISH/SATS claims only one modification made to the 501 and 508: the receivers no longer analyze pre-storage. Yet the parse step is still being met by the same PID filtering which was also a limitation presented and met during trial.


More specifically, according to Fish & Richardson:

_The Court found that the term "parse" as it is used in claims 31 and 61 means "analyzes." As such, the Court defined "parses video and audio data from said broadcast data" in these claims as "analyzes video and audio data from the broadcast data." Further, "broadcast data" is broadcast programming that is received by the physical data source.

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._


----------



## dgordo

jacmyoung said:


> You need to tell this to the E* attorneys and the judge, not me, because it was E* who accused TiVo of deficient disclosures by arguing that TiVo has only 4 empty sentences, and the judge did not say, hey you had no clue what you are talking about, that was not a part of their disclosures.


I will try one last time to explain this to you. E* claimed that Tivo did not provide a sufficient amount of information. This is not the same as passing judgment on any legal theories or factual claims. That will occur in the hearing. Get it? 



jacmyoung said:


> Then why the urge to proclaim innocence when no one was accusing you of any such guilt?


Because, as usual, your English skills are deficient and it was impossible to understand your point.



jacmyoung said:


> The jury did not seem to have any problem understanding that word because the court had construed it the same as "analyze".
> 
> This question is very much on topic because you are an attorney, claiming years of experience and having a lot of problem with me, a lay person, sometimes do not have a full understanding of your so called legal standard.
> 
> Yet at the same time, you refuse to even display the least bit of your own understanding of the standards in proving a contempt in a patent case, all you can do is playing dumb, that you do not know what the word "analyze" mean, and you do not know how to count from 1 to 100..


I have a perfect understanding of the legal standard, but not of the facts. Unlike you I will nor pretend to know all. Having an understanding of the legal standards is only half the battle, the facts must also be know. Again, if you knew what you were talking about you would understand that without knowing the facts of how the software works and what the patent covers this question is impossible to answer and I could only make guesses like you.

You want math? You have over 3000 posts. How many are on this topic? Lets say half. You say you were right six times. So you were wrong; 3000/2=1500 1500-6= 1494. You were wrong 1494 times. Not only can I count but I can do division and subtraction.



jacmyoung said:


> If Rogers (TiVo's CEO) today decides to hire you to add to his legal team, and he asks you this question, so far my legal team has said the modified E* DVRs still parse (analyze data), but not much else, do you think it's enough or should we try to say more? What will be your asnwer?
> 
> A very valid and on topic question.


I will assume that Tivo is correct in saying that if a dvr parses that it violates their patent, otherwise I can not answer the question. I do not know if that is correct. If that is correct, then yes, the E* dvrs would not be more than colorably different.

On a final note to you, you are now on my ignore list. As usual you have succeeded in your strategy of driving away anyone who has any knowledge on this topic because these are the people who dare have the audacity to correct you. This kills your entire strategy. I realize this is ad hominem, but you are nothing more than the jester of this thread. You lack the ability to write in basic English, you can't spell and you have an even worse understanding of the law.


----------



## dgordo

Herdfan said:


> I read that book my senior year of college _after_ I took the LSAT. Made me not want to go to law school any more. Those hours/days spent studying for the LSAT are hours/days I will never get back.
> 
> Edit: Sorry James :backtotop


The book is a great exaggeration. I am convinced it was written to keep people from going to law school and lessen our competition. :lol:


----------



## dgordo

Herdfan said:


> Obviously there is a skill set that is required if someone wants to be a judge and supposedly mastery of that skill set to become a federal judge. There is also a unique skill set required to write a program that will run DVR's.
> 
> How do these skill sets meet. How does the judge become learned with all the minutia regarding this case. Not only does he have to know how to apply any existing case law, but will he really know in detail how all this works? I know judges have clearks that do legal research, but will they also have outside technical experts to advise them as well?


Certainly to be a federal judge requires much more legal skill, but also the ability to learn other subjects quickly. In a case like this the court would have independent technical experts but also would hear from experts from both parties.


----------



## jacmyoung

Greg Bimson said:


> Here is the problem with "spinning" arguments:The problem is that there are three distinct classes of DVR's among the eight models found infringing:
> 
> Those which were not modified (the 721, 921 and 942)
> Those which had one modification (the 501 and 508, the "50X DVR's")
> Those which had more than one modification (the 510, 522 and 625, the "Broadcom DVR's"
> 
> I have seen that one of TiVo's main arguments is that the 501 and 508 still "parse", because they still analyze. That point was discussed during the trial and confirmed by DISH/SATS of fulfilling that component of the step of TiVo's patent claim.
> 
> If that was DISH/SATS argument that is all that has changed on the 50X DVR's, then they are merely colorably different than the unmodified receivers.
> 
> I don't understand why anyone would hang their hat on this argument.


E* said *all* their 8 named DVRs have *at least* the following things removed:

Physical data source
Parse
Temporary store
Source object
Extract
Automatic flow control

The only thing TiVo is saying is they still found "parse", and all others do not matter, the removal of them makes no more than colorable difference.

The above are facts, not fiction, a person who has years and years of legal experience and understands the standard of proof in a contempt proceeding should be able to at least tell use, based on those facts and those facts alone, whether in his opinion TiVo has done enough.


----------



## the judge

jacmyoung said:


> E* said *all* their 8 named DVRs have *at least* the following things removed:
> 
> Physical data source
> Parse
> Temporary store
> Source object
> Extract
> Automatic flow control
> 
> The only thing TiVo is saying is they still found "parse", and all others do not matter, the removal of them makes no more than colorable difference.
> 
> The above are facts, not fiction, a person who has years and years of legal experience and understands the standard of proof in a contempt proceeding should be able to at least tell use, based on those facts and those facts alone, whether in his opinion TiVo has done enough.


Maybe the problem is we don't understand what a "fact" is.

In actual fact, Echostar has admitted that:
The 721, 921 and 942 were NOT MODIFIED AT ALL
The 501, 508 and 510 (the "50X DVR's") were modified to not "parse" the streams as required by an element of claims 31 and 61, and 
The 522 and 625 (as well as the 622 and 942) (the "Broadcom DVR's") were modified using two other implementation modifications which do not infringe the claims.

Were those the 8 named DVRs you were referring to? So, in fact, they do not have at least those things removed, and the speculation that followed is [bleep].


----------



## Herdfan

dgordo said:


> The book is a great exaggeration. I am convinced it was written to keep people from going to law school and lessen our competition. :lol:


It worked. B-school was easier anyway.



> Certainly to be a federal judge requires much more legal skill, but also the ability to learn other subjects quickly. *In a case like this the court would have independent technical experts *but also would hear from experts from both parties.


That's what I was wondering. Thanks.


----------



## dgordo

Herdfan said:


> It worked. B-school was easier anyway.


I didn't think so. I have a joint JD/MBA. For me the law classes were much easier. But many of my classmates agreed with you.



Herdfan said:


> That's what I was wondering. Thanks.


No problem.


----------



## CuriousMark

the judge said:


> More specifically, according to Fish & Richardson:
> 
> _The Court found that the term "parse" as it is used in claims 31 and 61 means "analyzes." As such, the Court defined "parses video and audio data from said broadcast data" in these claims as "analyzes video and audio data from the broadcast data." Further, "broadcast data" is broadcast programming that is received by the physical data source.
> 
> 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._


In the above quote the word select is used for the act of PID filtering. If select is PID filtering, it is therefore parsing according to TiVo, and the whole paragraph suddenly looks like an attempt to mask the existing behavior behind new words. A PID Filter can be said to "parse" or "select" a data substream from a larger input stream. In this context, the words have identical meaning to me.

Since the PID filter is a hardware construct that is physical and is the data source for the element streams that are saved to disk, it certainly sounds like a "physical data source" to me. It is simply being portrayed as a physical data source that selects instead of parses.

Others here believe that selection should be excluded from the definition of parsing. Their argument being that selection is a basic function outside the "scope" of a DVR. So this is likely to be the basis for Dish's argument to the court. In the end it will come down to whether the experts and the judge see "selection" as "parsing" or not.


----------



## jacmyoung

CuriousMark said:


> ...Others here believe that selection should be excluded from the definition of parsing. ...


Not at all. Others argue that the PID filter cannot be viewed as the "physical data source" as described in the patent, because the PID filter does not "parse" then "temporarily store" such "parsed" data in a buffer as a part of PID filter, and as such, there cannot be a "source object" to "extract" the "temporarily stored" "parsed" data from the PID filter.

What the PID filter does is, to "parse" the incoming data, then send the parsed data out for display on TV or stored permanently on the hard drive, or both.

Therefor E* contends that there is no "physical data source", no "temporary stored", no "source object" and no "extract" of the parsed data from any physical data source (as described in the patent).

What TiVo had seized on was that one paragraph from very earlier on when E*'s outside patent lawyer contended the 50Xs no longer "parsed" as described in the TiVo's patent. But TiVo did not and still refuse to acknowledge what all the things E* said later, that those above things were all gone too.

TiVo's response to what E* said later was, those removals were not important, the changes are only colorable. No different than saying nothing. TiVo cannot just brush off the differences and call them only colorable, TiVo must explain why the differences are only colorable, why the removal of them does not change whether the claim limitations are still met or not.

Becasue as you quoted from an attorney who actually cared to share his or her knowledge, that E* has the "burden of production" and TiVo has the "burden of proof".


----------



## HobbyTalk

Greg Bimson said:


> Then again, if you took your keen eye to arguments by others, perhaps you'd repeat that same sentence to a single poster over a dozen times analyzing a single post.


I don't need to do that, you take care of that part well enough yourself 

Just pointing out that if you accuse someone of doing something and then turn around and do the exact same thing thing yourself it weakens any arguement that you have. Or maybe you just want to parent someone - do as I say, not as I do


----------



## Greg Bimson

jacmyoung said:


> What the PID filter does is, to "parse" the incoming data, then send the parsed data out for display on TV or stored permanently on the hard drive, or both.
> 
> Therefor E* contends that there is no "physical data source", no "temporary stored", no "source object" and no "extract" of the parsed data from any physical data source (as described in the patent).


A DVR without a "physical data source". What's next? 


HobbyTalk said:


> Just pointing out that if you accuse someone of doing something and then turn around and do the exact same thing thing yourself it weakens any arguement that you have. Or maybe you just want to parent someone - do as I say, not as I do


Not quite.

The reality is in this case, infringement is a checklist, numbered 1 to 10. Check boxes 1 and 2 have two checkmarks while the rest only have one. If I simply remove one check mark from check box 2, I still have check marks on all ten check boxes. Those are all the claim limitations still being met.

Somehow some believe that the PID filtering doesn't count as a limitation met by the "parse" component of the step of the claim. Yet in court, it was introduced by TiVo and accepted by DISH/SATS as meeting the limitation of the "parse" component of the claim. This is a *fact of this case*. Yet people are still trying to dismiss it. And I am not arguing against the facts of this case.


----------



## the judge

Greg Bimson said:


> A DVR without a "physical data source". What's next? Not quite.


Again someone's having a translation problem. Echostar claimed that *"they do not include any structure that is "a physical data source" that parses (i.e., analyzes) the "broadcast data."*

They are not saying they do not have "*a physical data source*". They are not saying "*they do not parse*", or that they don't "*analyze*", nor are they saying they don't process "*broadcast data*".

It's actually a compound sentence that has to be read from left to right, and each qualification has to be taken into account in the whole to understand what Echostar says they "don't have".

Actually, this only applies to the 50X DVRs. There is another lengthy and complicated analysis regarding the Broadcom DVRs infringement based on other claim limitations which, if Tivo is going to challenge, would have been detailed in their expert disclosures we haven't seen. So it's likely that Tivo has more than "one sentence" in their expert disclosures citing continued infringement, unless it's a really, really, really long sentence.


----------



## jacmyoung

Greg Bimson said:


> A DVR without a "physical data source". What's next? Not quite...


Don't change the words, without a "physical data source" as described by the patent.

E* can have its own "physical data source" all they can, as long as such "physical data source" does not perform the same function, or does not do so in the same way, or does not achieve the same results, that "physical data source" (the PID filter) is not the "physical data source" patented by TiVo.

The "physical data source" TiVo identified in the E* old DVRs was the "MPEG Processor". While that MPEG Processor's main function was to process the MPEG streams for display, it was also taking the data from the PID filter, parsing the data, then "temporarily stored" the "parsed data".

Today, the"MPEG processor" no longer dose that, it still does the MPEG processing though, for display. The data from the PID filter goes straight to the hard drive for permanent storage, without the MPEG Processor "parsing" it first, and also without the MPEG Processor storing it temporarily.


----------



## Bidderman9

James Long said:


> :backtotop TiVo vs EchoStar ...


I would say that your message is falling of deaf ears, but since it is a sign, I guess they are blind too...


----------



## Greg Bimson

jacmyoug said:


> E* can have its own "physical data source" all they can, as long as such "physical data source" does not perform the same function, or does not do so in the same way, or does not achieve the same results, that "physical data source" (the PID filter) is not the "physical data source" patented by TiVo.


The "physical data source" is not patented by TiVo. The "physical data source" is simply a component of a step in the claim of a patent. If it exists, it meets the limitation of the component.

If DISH/SATS has a "physical data source", then...


> 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 cannot accept broadcast data from an input device, parse video and audio data from the broadcast data, and temporarily store that video and audio data...

When doing trick plays on live TV, the physical data source grabs broadcast data, pushes it through the PID filter to parse the channel from the transponder, and temporarily stores the data both in a temporary buffer to be written to hard drive and the hard drive itself is a temporary buffer to enable trick plays on live TV.

Either that or DISH/SATS DVR's don't have a physical data source, which means they should be bricks...


----------



## jacmyoung

Greg Bimson said:


> ...When doing trick plays on live TV, the physical data source grabs broadcast data, pushes it through the PID filter to parse the channel from the transponder, and temporarily stores the data both in a temporary buffer to be written to hard drive and the hard drive itself is a temporary buffer to enable trick plays on live TV...


Now we are getting somewhere, if you read what you just said, the "physical data source" by your definition is not the "PID filter", because in your view the "physical data source" grabs and pushes data to the PID filter for parsing. But TiVo is saying now the PID filter *is* the physical data source in question.

If your physical data source only grabs and pushes data, not parsing it, it is not the physical data source described in the patent. The physical data source must do all the things described in the first limitation, you do not get to find *multiple* of them to prove infringement, because the limitation says provide "a" physical data source, not "several" or "many".

Additionally, the PID filter after parsing the data, does not temporarily store the data in a buffer, rather sends it out for decoding and encoding for display, or pushes the data directly to the hard drive for permanent storage.

Therefore there cannot be a "source object" there to then "extract" the "temporarily stored" "parsed data" from the PID filter, because there is nothing of the kind for the "source object" to "extract" from the "said physical data source" (i.e. the PID filter).


----------



## Curtis52

> 3 Q. Okay. What would you identify as the
> 4 physical data source in this same chip?
> 5 A. I think parsing is a key part of it, so I
> 6 went immediately to the left of what Dr. Gibson
> 7 identified, and I identified the three parsers that are
> 8 shown right there. Okay. And I also identified where
> 9 we were in exact agreement, the input buffer, which was
> 10 part of it.
> 11 So if you look at that, you can kind of
> 12 see that we had a part we agreed on and some parts we
> 13 disagreed on, but the thing we do agree on is that
> 14 wherever the physical data source is, it's in the
> 15 Broadcom chip and the Broadcom products, and *it's in the
> 16 STMicrochip in the STMicro products or 50Xs. *
> 17 Q. And I take it you agree that there is one in
> 18 the product?
> 19 A. Absolutely.


Here (Link) is the data sheet for the ST Micro device containing the physical data source in the 50X DVRs.

From page 15.9 of that data sheet:


> The PES parser is situated between the ST20 arbiter/bus and the compressed data FIFOs of the video/audio core. It has a 100Mbits/sec (max burst) bit rate, and allows the following input streams:
> • Packetized PES (MPEG-2), ISO 13818-1
> • MPEG-1 system layer (ISO 11172-1)
> 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. For program stream data or MPEG-1 systems stream data, the audio and video packets are complete so that a single parser (MPEG2 PES & MPEG1 system parser) can be used. The packets are internally separated into video and audio streams. If required, the two parsers can still be used but the packets must be separated by the ST20 (recommended mode). See the figure below.


----------



## Greg Bimson

jacmyoung said:


> If your physical data source only grabs and pushes data, not parsing it, it is not the physical data source described in the patent.





> 3 Q. Okay. What would you identify as the
> 4 physical data source in this same chip?
> 5 A. *I think parsing is a key part of it*, so I
> 6 went immediately to the left of what Dr. Gibson
> 7 identified, and I identified the three parsers that are
> 8 shown right there. Okay. And I also identified where
> 9 we were in exact agreement, the input buffer, which was
> 10 part of it.





> 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.


Hmm. The PID filter, which appears to be part of the Broadcom chip in the Broadcom DVR's, and the STMicro chips in the 50X DVR's, is considered part of the physical data source. After all, parsing a transport stream is PID filtering.


----------



## jacmyoung

Greg Bimson said:


> Hmm. The PID filter, which appears to be part of the Broadcom chip in the Broadcom DVR's, and the STMicro chips in the 50X DVR's, is considered part of the physical data source. After all, parsing a transport stream is PID filtering.


Of course "parse" is a key part, so is the word "a" and "temporary store".

So are the words in the next limitation: "source object", "extract", and "from the said physical data source".

Again what TiVo is trying to do now is arguing against the man, a fallacy in debate. What TiVo needs to do is to argue against its own patent limitations, and find all the elements in the new design that meet its own patent limitations, not based on what E* had said before.

Becasue:



> To show contempt, the patent owner must prove by clear and convincing evidence that "the modified device falls within the admitted or adjudicated scope of the claims and is, therefore, an infringement.


Not "to show contempt, the patent owners must prove by clear and convincing evidence that "the modifying party may have contradicted what they said before or admitted something that now can be used to prove that, the modifying party did not know what they were talking about and are, therefore, idiots"


----------



## jacmyoung

Here again I will try to explain how TiVo managed to prove infringement last time, and folks can use this to compare what TiVo has done this time around, and keep in mind TiVo's burden of proof is higher than the last time around.

During the jury trial, TiVo identified the "MPEG processor" in the E*'s old design as the said "physical data source" because the MPEG processor "accepted" the "broadcast data" from the PID filter, "parsed" such data and built a frame index table out of such parsed data, then saved such index info in one of its own buffers (temporarily stored).

TiVo then identified a "source object" in the old design, which TiVo said was an "MEM copy function" that received (extracted) the index info (parsed data) from the MPEG processor (the said physical data source) for further use in the trickplays, and the "MEM copy function" (source object) was "automatically flow controlled" by a "transform object" which was identified as a "DVR write commend" of the sort, to control the flow in and out of the "MEM copy function", and the reason the flow control could take place was because, the old design had multiple buffers used by the "MEM copy function", just like how the TiVo DVRs did.

Of course TiVo also identified all the other elements in the old design too, but since E* is only saying the above items are removed, TiVo only needs to address such above items this time.

The question is, did TiVo do as good a job as they did last time to identify all the elements still there, which E* said their new design no longer uses? Of course not, the only thing TiVo is saying is, the new design still uses the PID filter, and the PID filter still parses.


----------



## Greg Bimson

jacmyoung said:


> The question is, did TiVo do as good a job as they did last time to identify all the elements still there, which E* said their new design no longer uses? Of course not, the only thing TiVo is saying is, the new design still uses the PID filter, and the PID filter still parses.


Yet the disclosure prompted DISH/SATS to request a delay in the proceedings, or additional time for arguments.

If all TiVo is saying is that the DVR's still parse, requesting more time in front of Judge Folsom is the dumbest move ever.

Or perhaps there is simply a disconnect between what TiVo has actually stated for the record and what you believe is on the record in TiVo's expert disclosure.


----------



## jacmyoung

Greg Bimson said:


> ...Or perhaps there is simply a disconnect between what TiVo has actually stated for the record and what you believe is on the record in TiVo's expert disclosure.


Anything is possible, but you cannot point that out because you don't know either. The best you did was to use what you had already known what TiVo said, and I just pointed out why what TiVo had said did not meet their burden of proof.

Now what I also said was, it is very likely TiVo did not say anything more, because TiVo in arguing why there was no need to delay or for more time, they said it was because TiVo's argument was very simple, the new design still parsed, no more no less, that was why TiVo said they needed no more time either.

I am more than happy to wait and see if indeed TiVo had more to say. Though if TiVo later decided to say a lot more than just the new design still parses, I think E* can use that against TiVo, contending that TiVo was lying when they tried to argue there was no need for more time because TiVo's argument was one and a simple one.

And that is why I said the motion to delay is a strategy to get TiVo to say two things:

1) TiVo is only saying the new design still parses, and
2) Good faith, bad faith (one of the other TiVo's arguments) should not matter.

Recall up until the latest motion, TiVo was still accusing the E* design around a bad faith effort? E* argued that in order to prove TiVo wrong, that their design around was indeed a good faith one, E* needed more time. That forced TiVo to say, good faith, bad faith, did not matter. One more argument of TiVo's was defeated.


----------



## Greg Bimson

jacmyoung said:


> Now what I also said was, it is very likely TiVo did not say anything more, because TiVo in arguing why there was no need to delay or for more time, they said it was because TiVo's argument was very simple, the new design still parsed, no more no less, that was why TiVo said they needed no more time either.


It would acutually help to read the response...


> For example, TiVo's position *in regard to the 50X products* is that there is only a single term at issue - "parsing" - and that this limitation is met by PID filtering, a process that is identical in the 50X products before and after EchoStar's modifications.





> Given that the "redesign" at issue involves a *small number of modifications*, and that there are only two patent claims at issue, five hours for each side is sufficient.


First quote, there is only a single term at issue. Unless, of course, DISH/SATS has changed its position in their expert disclosures given to TiVo. There is nothing about a source object or flow control, i.e., the only issue we've ever seen with the 50X DVR's is the parsing definition.

And this is only TiVo's position on the 50X DVR's. TiVo did not disclose any issues with the Broadcom DVR's. TiVo certainly has issues with those.

The second quote simply proves it. A "handful of modifications" is simply all that will need to be address in the February hearing. Sure, both sides must disclose their arguments to each other prior to that hearing, but neither side needs to publicly argue it now.


----------



## Curtis52

It looks to me like Dish only listed TiVo's comments about the 50X DVRs as an example in their 12-18-08 complaint about disclosure and didn't bother to list TiVo's comments on the other DVRs. Dish covered those with this comment: "TiVo’s other disclosures are comparable."


----------



## jacmyoung

Curtis52 said:


> It looks to me like Dish only listed TiVo's comments about the 50X DVRs as an example in their 12-18-08 complaint about disclosure and didn't bother to list TiVo's comments on the other DVRs. Dish covered those with this comment: "TiVo's other disclosures are comparable."


Good point, the question is are TiVo's other disclosures comparable, or was E* exaggerating? Unfortunately E* and TiVo's disclosures are not available to us, but TiVo's response is available, in it TiVo did not dispute the notion that TiVo's other disclosures are comparable.

The same question can be asked, does E* still hold the view that the only thing matters about the 50Xs is parsing? Or is TiVo simply ignoring what E* said recently and tries to dig up what E* said a long time ago and attack a view E* held at that time, which has since been changed by E*? That answer is yes.


----------



## CuriousMark

jacmyoung said:


> Or is TiVo simply ignoring what E* said recently and tries to dig up what E* said a long time ago and attack a view E* held at that time, which has since been changed by E*? That answer is yes.


Would that new view be the part where E* now calls "parsing" by the PID filter a "selection"? No matter which word E* uses, the hardware is doing the same thing it always did, nothing physical has changed at all.


----------



## jacmyoung

CuriousMark said:


> Would that new view be the part where E* now calls "parsing" by the PID filter a "selection"? No matter which word E* uses, the hardware is doing the same thing it always did, nothing physical has changed at all.


No the new view that the new design no longer has a physical data source that parses the data then store the parsed data temporarily in a buffer, and therefore there is no longer a source object to extract such temporarily stored parsed data from such physical data source.

The new view also includes the assertion that since the new design no longer uses multiple buffers, rather a single buffer, it can no longer nor does it need to do "automatic flow control."


----------



## jacmyoung

The truth is, none of those are new views, all the views had been expressed by E* in different times in the past, only that one of E*'s views was, since the new design no longer parsed as described in the patent, it no longer infringed.

TiVo only picked out this particular view to attack, TiVo ignored all the other views on the record.

There was in fact another view by E*, that since the new design only uses a single buffer, it cannot meet several other limitations related to the functions of the "source object", where it must obtain, extract, receive commands, and be controlled...by various "transform object", "control object", "sink object"...

Now I don't know how much merit there is in this last one, but regardless, it is one of E*'s assertions, TiVo cannot simply brush it off and call it minor, unimportant, and only colorable. TiVo needs to prove why.


----------



## CuriousMark

Yes, but that view is an extension of the belief that selecting is not parsing. Without the rewording to selection, all those subordinate statements are no longer valid.


----------



## jacmyoung

CuriousMark said:


> Yes, but that view is an extension of the belief that selecting is not parsing. Without the rewording to selection, all those subordinate statements are no longer valid.


None of the veiws is "subordinate" to one another, they are all equal. The fact of the matter is TiVo only sticks to one view, and tries to play word games with E* on that one. Who knows, E* might be just playing the game back at TiVo, so TiVo only focuses its energy on that card, and forgets about all the other cards. Sounds like a poker game to me

Though I think the truth is more like TiVo cannot dispute all the other views, so they are forced to put their bets all on this one.


----------



## Greg Bimson

jacmyoung said:


> No the new view that the new design no longer has a physical data source that parses the data then store the parsed data temporarily in a buffer, and therefore there is no longer a source object to extract such temporarily stored parsed data from such physical data source.
> 
> The new view also includes the assertion that since the new design no longer uses multiple buffers, rather a single buffer, it can no longer nor does it need to do "automatic flow control."


But that only applies to the Broadcom DVR's, not the 50X DVR's.

Remember, in your very first sentence, the only point DISH/SATS made was that the 50X DVR's no longer "parse" or "analyze". No modification has been stated by DISH/SATS about the 50X's capability to employ a temporary buffer, a source object or "automatic flow control". In other words, they are still present in the 50X series.


----------



## jacmyoung

Greg Bimson said:


> But that only applies to the Broadcom DVR's, not the 50X DVR's.
> 
> Remember, in your very first sentence, the only point DISH/SATS made was that the 50X DVR's no longer "parse" or "analyze". No modification has been stated by DISH/SATS about the 50X's capability to employ a temporary buffer, a source object or "automatic flow control". In other words, they are still present in the 50X series.


Now exactly which of the 8 DVR models are in question here? Only the 50Xs? First off I don't even know who are still using those DVRs, of course it is not the point. But has TiVo abandoned the other DVR models such as the Broadcom DVRs? Is my 625 safe now? Damn it I thought they could force E* to shut off my 625 so I could get a 722 as a free replacement

E* is saying those 50Xs now no longer parse the data *as described in the claims 31 and 61*, because there is no longer such "physical data source" to parse then temporarily store the parsed data, the data are selected then directly stored onto the hard drive, without any such parsing *as described in the claims 31 and 61*. Because of that the source object cannot extract any parsed data from such physical data source which no longer exists.

TiVo's response is, now the physical data source is the PID filter, because it still parses the incoming data. That is good enough. But 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.

The data that is parsed now is not the same data as described in the patent, and also the parsed data is processed differently (not temporarily stored), and the data is used to achieve different results too. Because in TiVo's patent, the parsed data was used to build a frame index table, so the source object can later extract such table for DVR trickplay. But now no such table exists because the PID filter cannot and will not build any of such table, the PID filter is not designed to do any DVR functions, it only filters out the raw incoming data, throw out any bad A/V bits, and keeps the good bits flowing down the stream, either to be displayed on TV or permanently stored on the hard drive.


----------



## Greg Bimson

jacmyoung said:


> TiVo's response is, now the physical data source is the PID filter, because it still parses the incoming data. That is good enough. But 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.


That doesn't look like TiVo's response.


----------



## the judge

jacmyoung said:


> TiVo's response is, now the physical data source is the PID filter, because it still parses the incoming data. That is good enough. But 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.


The sooner you stop responding to these inane "facts" comprised of highly technical terms regurgitated in a jumbled babble, the sooner you stop giving it any credibility. The patents speak for themselves, and this jumbled nonsense has nothing to do with February's hearing.


----------



## Mainer_ayah

It appears Dish is trying to convince the court that TiVo's patent is invalid. A bit premature, I'd say. TiVo is justifiably objecting.
Another example of a desperate move?

01/21/2009	887 SEALED PATENT MOTION TO STRIKE "INVALIDITY" CONTENTIONS FROM EXPERT REPORT AND TO EXCLUDE EVIDENCE AND ARGUMENT CONCERNING "INVALIDITY" AT FEBRUARY 2009 HEARING by TIVO Inc. (Attachments: # 1 Text of Proposed Order, # 2 Declaration of Christine Byrd, # 3 Exhibit A, # 4 Exhibit B, # 5 Exhibit C, # 6 Exhibit D, # 7 Exhibit E, # 8 Exhibit F)(Byrd, Christine) (Entered: 01/21/2009)


----------



## James Long

Mainer_ayah said:


> It appears Dish is trying to convince the court that TiVo's patent is invalid. A bit premature, I'd say. TiVo is justifiably objecting.
> Another example of a desperate move?
> 
> 01/21/2009	887 SEALED PATENT MOTION TO STRIKE "INVALIDITY" CONTENTIONS FROM EXPERT REPORT AND TO EXCLUDE EVIDENCE AND ARGUMENT CONCERNING "INVALIDITY" AT FEBRUARY 2009 HEARING by TIVO Inc. (Attachments: # 1 Text of Proposed Order, # 2 Declaration of Christine Byrd, # 3 Exhibit A, # 4 Exhibit B, # 5 Exhibit C, # 6 Exhibit D, # 7 Exhibit E, # 8 Exhibit F)(Byrd, Christine) (Entered: 01/21/2009)


Patent questions would be a good reason why DISH would want the extra 5 hours (and got 2.5 hours each side) to argue the case.

I'm surprised that it took this long for the recent patent action to get mentioned. It looks like TiVo finally got to that point in reading DISH's disclosures.


----------



## Curtis52

Some relevant quotes from TiVo's 01-09-09 response:


> It appears clear that EchoStar does not want the issues for the hearing narrowed, but expanded to include matters irrelevant to contempt, including validity and EchoStar's state of mind. EchoStar's desire to litigate matters not relevant to contempt cannot justify adding four months of delay to the ongoing irreparable harm TiVo has already suffered. The hearing should go forward on February 17 and 18, as planned.





> As for validity, the Federal Circuit held in KSM that where the validity of a patent has been adjudicated at trial, an infringer will not be permitted to challenge the validity of the patent in contempt proceedings in the same case. KSM Fastening Sys., Inc. v. H.A. Jones Co., Inc., 776 F.2d 1522, 1529 (Fed. Cir. 1985) ("The validity of the patent is the law of the case in such [contempt] proceedings."). See also Additive Controls & Measurement Systems, Inc. v. Flowdata, Inc., 154 F.3d 1345 (Fed. Cir. 1998) ("The findings concerning validity and infringement of Flowdata's patent were binding in the case in which they were entered.").





> If EchoStar believes that TiVo is trying to change the scope of the claims (which it is not), it needs to oppose that effort in the context of colorable differences and infringement, and not validity, which is not properly at issue on contempt. KSM, 776 F.2d at 1529. EchoStar's efforts to litigate validity now is not a proper grounds for delaying the hearing or expanding its length.


----------



## the judge

James Long said:


> Patent questions would be a good reason why DISH would want the extra 5 hours (and got 2.5 hours each side) to argue the case.
> 
> I'm surprised that it took this long for the recent patent action to get mentioned. It looks like TiVo finally got to that point in reading DISH's disclosures.


The recent action with the USPTO has absolutely no bearing on the case. Until the patent is overturned, and then survives that appeal, it remains an enforceable right.

However, the remand of the hardware claims by the Appeals Court and their advice on claim construction certainly does muck up the waters a bit. While the so-called software claims survived appeal, Tivo will have to be careful they don't require support from the claims that were reversed. Those claims are under review in this hearing as Folsom said he would consider continued infringement under the doctrine of equivalents.

There's also this little matter in Delaware that seems to be stuck in the mud which Echostar might be claiming trumps Texas' jurisdiction and will address patent validity.

You gotta give them credit, their fighting like a sea bass who knows their fate.


----------



## CuriousMark

Curtis52,
Since this evidentiary hearing addressing both colorable differences and infringement via DOE has that opened the door enough for Echostar/Dish to bring these issues in? After all, at first they wanted the scope held to just colorable differences and contempt. Now with infringement via DOE on the table, they seem to feel they can use that wider scope to bring up other things too. Obviously, from your quotes, TiVo is saying that since both scopes still fall under the overall heading of a contempt procedure, that the scope can't be widened in this way by bringing up state of mind and validity. Is E* trying to trap the judge into picking between limited scope and only discussing colorability, or wider scope, including DOE, that allows for validity to be brought into play?

I am curious what you think of the strategic implications.


----------



## Greg Bimson

James Long said:


> Patent questions would be a good reason why DISH would want the extra 5 hours (and got 2.5 hours each side) to argue the case.


Except "patent questions" are to determine validity of a patent, which is not a defense against a motion for contempt. At that point, the patent has been adjudged as valid and the defendant has been found to infringe said patent.

Imagine if TiVo's motion here is granted. An expert report 40 pages long may be reduced in half if half of the report is trying to reopen questions of validity.


----------



## Curtis52

CuriousMark said:


> I am curious what you think of the strategic implications.


I don't think software DOE consideration would bring in questions of patent validity. TiVo is just saying that the patent validity is irrelevant in a contempt hearing and the only thing that matters is colorable difference from the unmodified DVRs.

The hardware DOE question isn't a part of this hearing. This hearing is only about the software claims.

If TiVo's motion is granted, Dish may finally realize that the end is near.


----------



## James Long

DISH network has a major question on the patent - "*What does it cover?*"

DISH has produced a design around software that apparently also avoids use of the offending hardware. They believe that this design around avoids the claim of the patent. TiVo believes that it does not.

That is a summary of the infringement issue in a nutshell, and perhaps a re-litigation of what the patent actually patents is in order to decide if what DISH does with their new software violates the patent. What line did DISH cross to violate the patent and have they uncrossed that line in their new design?

I see two questions of validity ... the first question being whether the patent is valid at all, that will be answered by the USPTO's reviews and is irrelevant to the case (until and unless the patent is overturned it is valid). The second question is what does the patent cover. That is the question of continued infringement of claims 31 and 61.


----------



## the judge

You also have to love the timing of this motion. Folsom has ordered the Parties’ Proposed Findings of Fact and Conclusions of Law due on February 10, that's a mere 19 days from now.

Every day it takes him to decide this issue takes a day away from Echostar's filing. So their Findings of Fact and Conclusions had better be able to stand with or without the invalidity issue. This is a desperate move. But not as desperate as when Echo files their next emergency motion claiming they need more time. 

Tick tock.


----------



## Herdfan

> As for validity, the Federal Circuit held in KSM that where the validity of a patent has been adjudicated at trial, an infringer will not be permitted to challenge the validity of the patent in contempt proceedings in the same case. KSM Fastening Sys., Inc. v. H.A. Jones Co., Inc., 776 F.2d 1522, 1529 (Fed. Cir. 1985) ("The validity of the patent is the law of the case in such [contempt] proceedings."). See also Additive Controls & Measurement Systems, Inc. v. Flowdata, Inc., 154 F.3d 1345 (Fed. Cir. 1998) ("The findings concerning validity and infringement of Flowdata's patent were binding in the case in which they were entered.").


Are either of these cases binding on the 5th Circuit?


----------



## Greg Bimson

James Long said:


> What line did DISH cross to violate the patent and have they uncrossed that line in their new design?


Depending on the point of view, the good/bad news is simply that there now exists a record and inventory of what processes meet limitations of components for steps of the claims. That means whatever modification has been made simply needs to be addressed. What has not been modified is considered meeting the steps of the claim.


James Long said:


> I see two questions of validity ... the first question being whether the patent is valid at all, that will be answered by the USPTO's reviews and is irrelevant to the case (until and unless the patent is overturned it is valid). The second question is what does the patent cover. That is the question of continued infringement of claims 31 and 61.


The first question has no bearing on the case until all appeals are exhausted and the patent has been overturned. That is years down the road, if it happens at all.

The second question is somewhat valid. But that has no bearing on "the validity of the patent", it only has bearing whether or not the modifications meet the limitations of the patent claims.


----------



## the judge

James Long said:


> DISH network has a major question on the patent - "*What does it cover?*"


The law of the case has been established that the '389 patent is valid and that Echostar infringed it. Echostar can not possibly go into court saying "we don't know what the patent covers, but we're sure we're not infringing it anymore!".

The patent is fully detailed in the patent filings, and it's up to Echostar to determine what it says and avoid infringement. The Court cannot instruct them as to what they can and can't do. All the Court can say is either "no, you don't infringe today", or "yes, you infringe today".



James Long said:


> DISH has produced a design around software that apparently also avoids use of the offending hardware. They believe that this design around avoids the claim of the patent. TiVo believes that it does not.


The hardware issues are off the table for this hearing. That infringement was reversed. Besides, I don't see anywhere Echostar says they worked around the hardware infringement.



James Long said:


> That is a summary of the infringement issue in a nutshell, and perhaps a re-litigation of what the patent actually patents is in order to decide if what DISH does with their new software violates the patent. What line did DISH cross to violate the patent and have they uncrossed that line in their new design?


All the Court can do is answer the yes/no question: does it infringe today or not.



James Long said:


> I see two questions of validity ... the first question being whether the patent is valid at all, that will be answered by the USPTO's reviews and is irrelevant to the case (until and unless the patent is overturned it is valid). The second question is what does the patent cover. That is the question of continued infringement of claims 31 and 61.


The patent covers exactly what it says, as amended to meet requirements set by the USPTO. In other words, it is what it is. The Court will interpret it and determine like King Solomon whether the devices continue to infringe.


----------



## Curtis0620

http://biz.yahoo.com/ap/090121/dish_network_ratings.html?.v=1

This is why they need to stop this and settle already. Charlie's pride is hurting them.


----------



## jacmyoung

Curtis52 said:


> I don't think software DOE consideration would bring in questions of patent validity. TiVo is just saying that the patent validity is irrelevant in a contempt hearing and the only thing that matters is colorable difference from the unmodified DVRs...


Agreed, and then TiVo seems to agree with E* that the "substantive infringement analysis" is premature?

Because in an infringement analysis, the patent validity issue must first be addressed.


----------



## Greg Bimson

jacmyoung said:


> Because in an infringement analysis, the patent validity issue must first be addressed.


Correct me if I am wrong, but this is the first time an infringement analysis must be undertaken against the same devices that were already found to infringe? Therefore, validity is not a question as a trial has already determined the patent is valid.

I'd be happy to see if there is case law supporting the question of patent validity in a contempt setting.


----------



## jacmyoung

Greg Bimson said:


> Correct me if I am wrong, but this is the first time an infringement analysis must be undertaken against the same devices that were already found to infringe? Therefore, validity is not a question as a trial has already determined the patent is valid.
> 
> I'd be happy to see if there is case law supporting the question of patent validity in a contempt setting.


Of course you continue to hold that the modified products are the *same* as the adjudicated, no, they are "accused", not "adjudicated." I though we had cleared that up already.



> ...*infringement analysis* is a two-step inquiry. First, the Court must determine the scope and meaning of the claim(s) at issue as a matter of law . Second, the finder of fact must compare the accused product to the properly construed claim to determine whether there has been an infringement. The patent holder bears the burden of proof by a preponderance of the evidence that each of the claim's limitations are found either literally or equivalently in the accused product. Each element of a claim is material and essential. In order for a court to find infringement, the plaintiff must show the presence of every element or its substantial equivalent in the accused device. If the accused product lacks one or more of the claim's limitations, either literally or equivalently, the product cannot infringe.


----------



## Greg Bimson

From jacmyoung:


> ...infringement analysis is a two-step inquiry. First, the Court must determine the scope and meaning of the claim(s) at issue as a matter of law .


But that is what a Markman hearing is. That already took place I believe in January, 2006. The scope and meaning of the claim(s) haven't changed since then. Therefore, the first step does not have to be redone, as the scope and meaning of the claims are already facts of this case.


jacmyoung said:


> Of course you continue to hold that the modified products are the same as the adjudicated, no, they are "accused", not "adjudicated." I though we had cleared that up already.


Uh, that cannot possibly be cleared up, as a hearing has been ordered to find the continuing infringement and colorable difference determination on the devices already found to infringe. There has been no ruling regarding the motion for contempt at all.


----------



## the judge

jacmyoung said:


> Of course you continue to hold that the modified products are the *same* as the adjudicated, no, they are "accused", not "adjudicated." I though we had cleared that up already.


Wrong again. They have been adjudicated and found to infringe. If they were not, then there would be no reason for a contempt hearing. The Court will first determine whether the devices continue to infringe because the differences are no more than colorable.

If the answer is no, the Court will determine whether the devices continue to infringe under the doctrine of equivalents.

If that answer is no, then Tivo can then "accuse" the new devices of infringement (of course after lots of legal gobbledygook and appeals) and the party starts over again. Of course, any products Tivo has not covered in this litigation will have to be addressed in another party anyway, but one would expect that Tivo is waiting for a final finding of liability before starting any new litigation.

Now it's cleared up.


----------



## jacmyoung

Greg Bimson said:


> From jacmyoung:But that is what a Markman hearing is. That already took place I believe in January, 2006. The scope and meaning of the claim(s) haven't changed since then. Therefore, the first step does not have to be redone, as the scope and meaning of the claims are already facts of this case.Uh, that cannot possibly be cleared up, as a hearing has been ordered to find the continuing infringement and colorable difference determination on the devices already found to infringe. There has been no ruling regarding the motion for contempt at all.


Regardless, the judge had ordered *an infringement analysis* as the second order of his hearing, I have provided a quote to explain what steps must be taken in an infringement anaylsis.

You need to do the same hard work to find evidence that there might be different kind of infringement analysis that may skip the first step, for whatever the good reason.

I am not saying you will not be able to find one, just that you need to do your leg work rather than relying on your own belief.


----------



## jacmyoung

the judge said:


> Wrong again. They have been adjudicated and found to infringe. If they were not, then there would be no reason for a contempt hearing. The Court will first determine whether the devices continue to infringe because the differences are no more than colorable.


No, go back and read again, the court will first determine if the new software is only colorably different than the old software or not.



> If the answer is no, the Court will determine whether the devices continue to infringe under the doctrine of equivalents.


No, go back and read again, the second order is not dependent on the outcome of the first order. The second order seeks to determine if the 8 named DVRs still infringe.



> If that answer is no, then Tivo can then "accuse" the new devices of infringement (of course after lots of legal gobbledygook and appeals) and the party starts over again.
> 
> Now it's cleared up.


No, go back and read again, there is no third item.


----------



## dgordo

Herdfan said:


> Are either of these cases binding on the 5th Circuit?


Any appeal in a case involving a patent goes to the Federal Circuit. Yes, these cases are binding.


----------



## Greg Bimson

jacmyoung said:


> Regardless, the judge had ordered an infringement analysis as the second order of his hearing, I have provided a quote to explain what steps must be taken in an infringement anaylsis.


Fine. Then cite the source of your quote. That looks like an infringement analysis during a trial for patent infringement. The contempt hearing (and current evaluation for patent infringement) simply relies upon the information on record: the law of the case.


jacmyoung said:


> I am not saying you will not be able to find one, just that you need to do your leg work rather than relying on your own belief.


TiVo did a good enough job. The only reason for this "infringement analysis" is to determine contempt, at least according to Judge Folsom. Therefore, because this is regarding contempt, validity of the patent is off limits. You can see all of TiVo's arguments and citations for that.


----------



## the judge

jacmyoung said:


> No, go back and read again, the court will first determine if the new software is only colorably different than the old software or not.


"If the new software is only colorably different than the old software" then, ipso facto, the devices continue to infringe.



jacmyoung said:


> No, go back and read again, the second order is not dependent on the outcome of the first order. The second order seeks to determine if the 8 named DVRs still infringe.


I didn't mean to imply they would stop the hearing and not assess the doctrine of equivalents. I expect the Court will rule on both independently. But again, "if the 8 named DVRs still infringe" then, ipso fact, the devices continue to infringe.



jacmyoung said:


> No, go back and read again, there is no third item.


Hmmmm. So you're saying that Tivo can't exercise other rights because Folsom didn't say they could? That defies an understanding of the legal system.


----------



## jacmyoung

Greg Bimson said:


> ...TiVo did a good enough job. ...


Did you even read carefully what TiVo said in aruging the patent validity issue must be excluded? Curtis52 had just quoted it.

TiVo said the reason the patent validity issue should be excluded was because the contempt hearing seeks to only determine the colorable difference between the accused and the adjudicated.

TiVo completely left out the fact that there is a second order, called infringement analysis. Guess why TiVo failed to mention it? You call that a good enough job?


----------



## jacmyoung

the judge said:


> "If the new software is only colorably different than the old software" then, ipso facto, the devices continue to infringe.
> 
> I didn't mean to imply they would stop the hearing and not assess the doctrine of equivalents. I expect the Court will rule on both independently. But again, "if the 8 named DVRs still infringe" then, ipso fact, the devices continue to infringe.
> 
> Hmmmm. So you're saying that Tivo can't exercise other rights because Folsom didn't say they could? That defies and understanding of the legal system.


We are discussing the agenda in the next hearing, I was simply pointing out you again did not read that order.


----------



## the judge

jacmyoung said:


> We are discussing the agenda in the next hearing, I was simply pointing out you again did not read that order.


I read the Order just fine. You apparently did not read and understand the complete sentences I wrote, where I stated of course after lots of legal gobbledygook and appeals, which obviously implies something well beyond this hearing.


----------



## Greg Bimson

jacmyoung said:


> TiVo said the reason the patent validity issue should be excluded was because the contempt hearing seeks to only determine the colorable difference between the accused and the adjudicated.


Nope.


> The validity of the patent is the law of the case in such [contempt] proceedings





> 01/21/2009 887 SEALED PATENT MOTION TO STRIKE "INVALIDITY" CONTENTIONS FROM EXPERT REPORT AND TO EXCLUDE EVIDENCE AND ARGUMENT CONCERNING "INVALIDITY" AT FEBRUARY 2009 HEARING by TIVO Inc. (Attachments: # 1 Text of Proposed Order, # 2 Declaration of Christine Byrd, # 3 Exhibit A, # 4 Exhibit B, # 5 Exhibit C, # 6 Exhibit D, # 7 Exhibit E, # 8 Exhibit F)(Byrd, Christine) (Entered: 01/21/2009)





jacmyoung said:


> TiVo completely left out the fact that there is a second order, called infringement analysis. Guess why TiVo failed to mention it? You call that a good enough job?


There is a motion to grant contempt filed by TiVo sitting in front of Judge Folsom. Judge Folsom has decided he needs to understand the colorable difference of those devices found infringing against the modifications made to those devices, and see if the modifications still make the receivers infringe.

Then Judge Folsom will issue his ruling, and if contempt is granted, will issue another order.

The patent in question has already passed its validity test when DISH/SATS was found guilty of infringement. DISH/SATS does not get another crack at relitigating validity.

Besides, I'm still waiting for your citation regarding infringement analysis. Even KSM points out that validity of the patent is not a question.


----------



## jacmyoung

Greg Bimson said:


> Nope.
> There is a motion to grant contempt filed by TiVo sitting in front of Judge Folsom. Judge Folsom has decided he needs to understand the colorable difference of those devices found infringing against the modifications made to those devices, and see if the modifications still make the receivers infringe.
> 
> Then Judge Folsom will issue his ruling, and if contempt is granted, will issue another order.
> 
> The patent in question has already passed its validity test when DISH/SATS was found guilty of infringement. DISH/SATS does not get another crack at relitigating validity.
> 
> Besides, I'm still waiting for your citation regarding infringement analysis. Even KSM points out that validity of the patent is not a question.


A contempt proceeding only seeks to address the colorable difference issue. If only colorable, a contempt, if more than colorable, no contempt, and the proceeding must stop. If the patentee wants to go further to prove infringement, they must do so in a new trial.

But unfortunately for E*, the judge also said he will have another order to determine if the 8 named DVRs still infringe or not, that this second analysis is called an infringement analysis, and because of that E* argued the patent validity must be a part of it.

In other words, if TiVo insists that patent validity may not be addressed in this contempt hearing, then TiVo must also agree with E* the second order should be removed.

Remember, the judge modified his original order of a bench trial, under protest by E*, and he modified his order in accordance to what TiVo requested, that 1) colorable difference analysis, 2) infringement analysis.

TiVo, wants to do your infringement analysis? Let the patent validity issue in, TiVo, does not want the patent validity issue in? Drop the second item.

Or, like what I asked you to do, TiVo needs to cite case law where it demonstrates an infringement analysis may skip the first step of patent validity issue.


----------



## Curtis52

> Under the standard we adopt, a judgment of contempt against an enjoined party for violation of an injunction against patent infringement by the making, using or selling of a modified device may not be upheld without a finding that the modified device falls within the admitted or adjudicated scope of the claims and is, therefore, an infringement. KSM


Finding out whether the modified devices fall under the adjudicated scope of the claims does not require revisiting validity. The key words are "adjudicated scope". The scope of the claims has already been determined. "Scope" doesn't mean "validity" anyway. Scope means how broad or narrow it is. Dish wants to narrow the definition of "parse" to mean only certain kinds of analysis favorable to them. That is not allowed. If a claim is invalid, it has no scope. Validity is addressed elsewhere in KSM.


> As for validity, the Federal Circuit held in KSM that where the validity of a patent
> has been adjudicated at trial, an infringer will not be permitted to challenge the validity of the patent in contempt proceedings in the same case. KSM Fastening Sys., Inc. v. H.A. Jones Co., Inc., 776 F.2d 1522, 1529 (Fed. Cir. 1985) ("The validity of the patent is the law of the case in such [contempt] proceedings.").


----------



## Greg Bimson

jacmyoung said:


> A contempt proceeding only seeks to address the colorable difference issue. If only colorable, a contempt, if more than colorable, no contempt, and the proceeding must stop. If the patentee wants to go further to prove infringement, they must do so in a new trial.


Incorrect. In _ Walker v. Birmingham_, a direct violation of a court's order was enough. Of course, that case wasn't relating to contempt of an order against patent infringement. And colorable difference is not the only determination regarding contempt (see _KSM_).


jacmyoung said:


> But unfortunately for E*, the judge also said he will have another order to determine if the 8 named DVRs still infringe or not, that this second analysis is called an infringement analysis, and because of that E* argued the patent validity must be a part of it.


DISH/SATS has not argued whether patent validity must be part of the infringement analysis. DISH/SATS has presented in expert disclosures that they will be arguing patent validity. TiVo has requested DISH/SATS patent validity testimony be removed from the record (and therefore, the disclosures). One of three things will happen:

a) DISH/SATS will be required to respond to an order from Judge Folsom requiring DISH/SATS to answer the motion to strike, which would then lead to...
b) TiVo's motion will be granted (DISH/SATS cannot argue patent validity)
c) TiVo's motion will be denied (DISH/SATS can argue patent validity)


jacmyoung said:


> In other words, if TiVo insists that patent validity may not be addressed in this contempt hearing, then TiVo must also agree with E* the second order should be removed.


Citation, please.


jacmyoung said:


> TiVo, wants to do your infringement analysis? Let the patent validity issue in, TiVo, does not want the patent validity issue in? Drop the second item.
> 
> Or, like what I asked you to do, TiVo needs to cite case law where it demonstrates an infringement analysis may skip the first step of patent validity issue.


Curtis52 just did this, thanks to _KSM_ and the "admitted or adjudicated scope of the claims".

And TiVo placed plenty of ammunition against revisiting that which has already been decided, including _KSM_ and _Additive Controls_.


----------



## jacmyoung

Curtis52 said:


> Finding out whether the modified devices fall under the adjudicated scope of the claims does not require revisiting validity. The key words are "adjudicated scope". The scope of the claims has already been determined. "Scope" doesn't mean "validity" anyway. Scope means how broad or narrow it is. Dish wants to narrow the definition of "parse" to mean only certain kinds of analysis favorable to them. That is not allowed. If a claim is invalid, it has no scope. Validity is addressed elsewhere in KSM.


True, but only in the context of a colorable difference analysis, because a colorable difference analysis may also consists of proving the modified products still fall within the admitted or adjudicated scope of the patent limitations, and therefore an infringement. How so you ask? By proving the differences are only colorable.

If you noticed all the contempt cases TiVo cited, none included an infringement analysis, only colorable difference analyses, in fact in the case E* cited, which I have quoted in its entirety before, KSM was cited to make this point, that in a contempt proceeding, an infringement analysis was premature.

Now I hope we can also understand why patent validity issue cannot be a part of a contempt proceeding, that is because an infringement analysis cannot be a part of a contempt proceeding.

TiVo was right in saying that patent validity cannot be addressed in the contempt proceeding, E* was right that an infringement analysis cannot be part of the contempt proceeding. Two arguments come from different perspectives, but nevertheless agree with each other.

TiVo may not ask the judge for an infringement analysis in this contempt proceeding, nor should the judge have granted TiVo's such request, because in an infringement analysis, the patent validity issue must be the first step taken, and since such step cannot happen in a contempt proceeding, therefore the second order of the hearing (the infringement analysis) should be withdrawn.


----------



## James Long

the judge said:


> James Long said:
> 
> 
> 
> DISH network has a major question on the patent - "*What does it cover?*"
> 
> 
> 
> The law of the case has been established that the '389 patent is valid and that Echostar infringed it. Echostar can not possibly go into court saying "we don't know what the patent covers, but we're sure we're not infringing it anymore!".
Click to expand...

The "law of the case" established that at ONE point in time EIGHT specific models of receiver infringed on the "software claims" of the TiVo patent. While one can infer that the focused on elements were the only important elements the ruling was only that the named products infringed ... there was no ruling that the named products less a particular element was non-infringing. This leave DISH right were I said they are ... believing that their modified product no longer infringes and asking the court for a ruling.

DISH is not walking into court and claiming they don't know what the patent covers. They are walking into court with a claim that they have modified the product in a way that _*IS*_ no longer covered by the patent (or at least is different enough that a separate case would be needed to adjudicate the new software).



the judge said:


> All the Court can say is either "no, you don't infringe today", or "yes, you infringe today".


Exactly. They are asking the court "what does it cover?" in relation to their modified product. In other words - "So, we've modified our product. We believe it no longer infringes. What say you, Judge Folsom?"



the judge said:


> James Long said:
> 
> 
> 
> DISH has produced a design around software that apparently also avoids use of the offending hardware. They believe that this design around avoids the claim of the patent. TiVo believes that it does not.
> 
> 
> 
> The hardware issues are off the table for this hearing. That infringement was reversed. Besides, I don't see anywhere Echostar says they worked around the hardware infringement.
Click to expand...

Don't freak out because I mentioned the hardware ... my statement is about _all_ the changes DISH has claimed. If you missed where they claimed that go back to last May and start reading. I believe it was mentioned recently as well.



the judge said:


> James Long said:
> 
> 
> 
> That is a summary of the infringement issue in a nutshell, and perhaps a re-litigation of what the patent actually patents is in order to decide if what DISH does with their new software violates the patent. What line did DISH cross to violate the patent and have they uncrossed that line in their new design?
> 
> 
> 
> All the Court can do is answer the yes/no question: does it infringe today or not.
Click to expand...

The question of "what infringes?" is tied closely to "does today's product infringe?".


----------



## Greg Bimson

jacmyoung said:


> *If you noticed all the contempt cases TiVo cited, none included an infringement analysis, only colorable difference analyses,* in fact in the case E* cited, which I have quoted in its entirety before, KSM was cited to make this point, that in a contempt proceeding, an infringement analysis was premature.


The part I bolded is incorrect, as in totally wrong:


> Moreover, the Court's determination to hear the colorable difference and infringement issues together is consistent with the routine practice of courts addressing this issue. See, e.g., Additive Controls & Measurement Sys., Inc. v. Flowdata, Inc., 154 F.3d 1345, 1348-49 (Fed. Cir. 1998) (affirming contempt citation against two defendants where district court "issued an opinion characterizing the [modified product] as a mere colorable variation of the [infringing product and i]n the same opinion . . . compared the [modified product] to the patent claims and found infringement"); Litecubes, L.L.C. v. N. Light Prods., Inc., No. 4:04CV00485-ERW, 2007 WL 892459, at *2-3 (E.D. Mo. Mar. 21, 2007) (holding that there were no colorable differences and that defendant was in contempt based on plaintiff's single expert report); Aero Prods. Int'l Inc. v. Intex Recreation Corp., No. 02 C 2590, 2005 WL 1182430, at *3-6 (N.D. Ill. May 11, 2005) (reviewing colorable differences and infringement simultaneously); Brine, Inc. v. STX, L.L.C., 367 F. Supp. 2d 61, 67-70 (D. Mass. 2005) (holding summary proceedings appropriate and finding infringement in single decision); Dentsply Int'l, Inc. v. Kerr Mfg. Co., 42 F. Supp. 2d 385, 400-17 (D. Del. 1999) (holding contempt proceedings appropriate based on lack of colorable differences and finding literal infringement in same decision).
> 
> EchoStar does not cite to a single case supporting a contrary procedure. KSM Fastening Sys., Inc. v. H.A. Jones Co., Inc., 776 F.2d 1522 (Fed. Cir. 1985), for example, holds that colorable difference is a predicate question in contempt proceedings, but neither KSM nor any other Federal Circuit decision holds that a district court must or even should hold a separate hearing on colorable differences.


Next strawman...


----------



## Curtis52

Judge Folsom's order says nothing about an infringement analysis.

Here is the way the ruling could go:

1. The modified DVRs are not more than colorably different.
2. Since there is not more than a colorable difference in the context of the claims, the modified DVRs continue to infringe.

Dish is in contempt.


----------



## James Long

the judge said:


> The Court will first determine whether the devices continue to infringe because the differences are no more than colorable.


No, the court will first determine colorable difference. Please read the order of the court regarding this hearing.



the judge said:


> "If the new software is only colorably different than the old software" then, ipso facto, the devices continue to infringe.


No. If the new software makes the product MORE than colorably different this court is done and a new case is required. If it is only colorably different then the ball remains in Judge Folsom's court and he can decide if the software remains infringing as a continuing part of this case.


----------



## James Long

the judge said:


> I read the Order just fine. You apparently did not read and understand the complete sentences I wrote, where I stated of course after lots of legal gobbledygook and appeals, which obviously implies something well beyond this hearing.


Let's stop the personal attacks and discuss the next step in the case .. the next hearing.

Getting too far ahead just confuses things.


----------



## James Long

Greg Bimson said:


> In _ Walker v. Birmingham_, a direct violation of a court's order was enough.


Correct. That ruling is why I *expect* that DISH will be held in contempt of the injunction on it's face.

What penalty there will be is what I consider to be solely dependent on continued infringement or not. If DISH has stopped infringement I expect that the contempt penalty will be sternly worded but no real punishment. If DISH still infringes I expect a greater penalty.

Damages is still on the table as well. Judge Folsom still has some work to do.


----------



## Greg Bimson

James Long said:


> No, the court will first determine colorable difference. Please read the order of the court regarding this hearing.


No, there is no "first" determining colorable difference in the evidentiary hearing..


> 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.


There are two points which will be addressed according to Judge Folsom. One is not dependent upon the other, although once the ruling is issued, one may be dependent upon the other.


James Long said:


> That ruling is why I *expect* that DISH will be held in contempt of the injunction on it's face.
> 
> What penalty there will be is what I consider to be solely dependent on continued infringement or not. If DISH has stopped infringement I expect that the contempt penalty will be sternly worded but no real punishment. If DISH still infringes I expect a greater penalty.
> 
> Damages is still on the table as well. Judge Folsom still has some work to do.


Then you and I are in lock-step agreement, other than the fact that if DISH/SATS has stopped infringement, the only remaining step for TiVo is damages during the contempt phase.

If DISH/SATS still infringes, then I believe granting contempt and the order which follows will be an extreme penalty, once TiVo files for damages during contempt.


----------



## jacmyoung

Greg Bimson said:


> The part I bolded is incorrect, as in totally wrong:Next strawman...


Did you actaully read those cases? I did, and the courts did not order any infringement analyses in those cases at all, only colorable difference analyses. Noticed how the term was used? Not "infringement analysis" but "infringement issue". Of course infringement issue can be answered in an colorable difference analysis, see my above post to Curtis52 as how.

Go read those cases first.


----------



## Greg Bimson

jacmyoung said:


> Noticed how the term was used? Not "infringement analysis" but "infringement issue".


Funny, I don't see where "infringement analysis" in Judge Folsom's evidentiary hearing order.


----------



## the judge

James Long said:


> No, the court will first determine colorable difference. Please read the order of the court regarding this hearing.


So when I claimed that the "the Court will first determine whether the devices continue to infringe because the differences are no more than colorable", you had to correct it to say "the court will first determine colorable difference". What the hell is the difference????



James Long said:


> No. If the new software makes the product MORE than colorably different this court is done and a new case is required. If it is only colorably different then the ball remains in Judge Folsom's court and he can decide if the software remains infringing as a continuing part of this case.


Dead wrong, for two reasons.

First, if Folsom concludes that the software is no more than colorably different then the adjudicated devices are deemed to continue to infringe. Period. Anyone want to argue that point?

Second, Judge Folsom Ordered that the evidentiary hearing will also address "(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", a totally separate standard from "colorably different". The case is absolutely not done and a new case is not necessarily required. Anyone want to argue that point?


----------



## James Long

the judge said:


> So when I claimed that the "the Court will first determine whether the devices continue to infringe because the differences are no more than colorable", you had to correct it to say "the court will first determine colorable difference". What the hell is the difference????


Your way portrays the decision as a done deal. Your statement is that the court will look at infringement first BECAUSE the differences are no more than colorable. Not to DETERMINE if they are no more than colorable but BECAUSE you apparently assume they are. (If you did not mean that, don't write that.)



> First, if Folsom concludes that the software is no more than colorably different then the adjudicated devices are deemed to continue to infringe.


Again you are assuming apple equals orange. The court wouldn't be asking the second question if the answer is assumed by the first. Writing "are deemed" sounds very much like there is no other option. And yet there is.



> Second, Judge Folsom Ordered that the evidentiary hearing will also address "(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", a totally separate standard from "colorably different".


And yet IF Judge Folsom rules that the software is colorably different it leads right into saying that the adjudicated product that the software was installed on is non-infringing. The second question is more of "is changing the software enough?". Especially in the light of the injunction that doesn't specifically allow for a software change.

If the software is no more than colorably different I don't see how the product it is installed on can cease infringing. But I've been surprised by this court before.


----------



## jacmyoung

Greg Bimson said:


> Funny, I don't see where "infringement analysis" in Judge Folsom's evidentiary hearing order.


To determine whether an accused device is an infringement against the patent claims or not is to conduct an infringement analysis.

If you do not believe me, go read those cases, you will not find two orders in those contempt hearings, only one, the colorable difference analysis.

If the judge's second order had said to determine if the modified 8 named DVRs were only colorably different than the adjudicated 8 named DVRs or not, I don't think there would be much E* could argue against it.


----------



## CuriousMark

the judge said:


> Second, Judge Folsom Ordered that the evidentiary hearing will also address "(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", a totally separate standard from "colorably different". The case is absolutely not done and a new case is not necessarily required.


If that happens Dish will almost certainly appeal and demand that they get a retrial with a jury for the finding of infringement after a finding of more than colorable differences. But that is getting ahead.


----------



## the judge

James Long said:


> Your way portrays the decision as a done deal. Your statement is that the court will look at infringement first BECAUSE the differences are no more than colorable. Not to DETERMINE if they are no more than colorable but BECAUSE you apparently assume they are. (If you did not mean that, don't write that.)


I wrote it the way I meant it "...the Court will first determine *whether* the devices continue to infringe...". The "because" clause refers to the reason they might find for infringement, if any, as in "on the basis of".



James Long said:


> Again you are assuming apple equals orange. The court wouldn't be asking the second question if the answer is assumed by the first. Writing "are deemed" sounds very much like there is no other option. And yet there is.


Wrong again. It's formal logic: if...then..., as in "if Folsom concludes that the software is no more than colorably different"... then..."the adjudicated devices are deemed to continue to infringe". There is no other option if Folsom concludes the software is no more than colorably different. Period.



James Long said:


> And yet IF Judge Folsom rules that the software is colorably different it leads right into saying that the adjudicated product that the software was installed on is non-infringing.


Wrong. There is still the second test Folsom will decide based on his analysis under the DOE.



James Long said:


> If the software is no more than colorably different I don't see how the product it is installed on can cease infringing. But I've been surprised by this court before.


It can't. It's a definition established by the CAFC.


----------



## jacmyoung

Though I found it funny some TiVo supporters still called this E*’s desperate attempt, when in fact this motion was TiVo’s motion.

In the last E*’s motion, E* argued on the patent validity issue, TiVo argued against such argument, the judge looked at the arguments from both sides, he did not agree with TiVo and say E*’s patent validity argument was without merit did he?

No, what he said was, I did not see merit in E* you asking for 5 more hours, so I would give you 2.5 more hours, and of course TiVo would also get 2.5 more hours, and both of you could use your new found 2.5 hours to argue on the patent validity issue, or any other issues in question.

Since Judge Folsom did not in particular see any problem of E* trying to address the patent validity issue, TiVo is now trying to tell the judge no, E* may not address such issue at all.

Who is desperate this time?


----------



## Greg Bimson

jacmyoung said:


> Though I found it funny some TiVo supporters still called this E*'s desperate attempt, when in fact this motion was TiVo's motion.


Uh, because for some reason TiVo's read of DISH/SATS' expert report contains arguments which challenge the validity of the patent.


jacmyoung said:


> In the last E*'s motion, E* argued on the patent validity issue, TiVo argued against such argument, the judge looked at the arguments from both sides, he did not agree with TiVo and say E*'s patent validity argument was without merit did he?


Nor did he agree with DISH/SATS validity argument. It is a strawman. Now that TiVo has motioned for the validity argument to be stricken from the record, Judge Folsom will have to take a stance and render a decision whether the patent validity argument is allowed as evidence.


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## James Long

the judge said:


> Wrong again. It's formal logic:


Your logic is flawed logic. I look forward to the real judge coming up with a real ruling.


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## jacmyoung

Greg Bimson said:


> Uh, because for some reason TiVo's read of DISH/SATS' expert report contains arguments which challenge the validity of the patent.


For some reason TiVo read of E*'s such challenge already last time and made the argument against it in TiVo's last response.



> ...It is a strawman...


We will just have to find out if the judge agrees with this opinion or not.

Still it is TiVo's desperate attempt this time.

Look I never believed any of the motions are "whining" or "desperate attempt", parties are only trying to exercise their legal rights. It has been the other side that kept up with such accusation, all I am saying is if you wish to throw such accusation around, at least find the right target first.


----------



## jacmyoung

James Long said:


> Your logic is flawed logic. I look forward to the real judge coming up with a real ruling.


What is a "formal logic" anyway? The rest of his logics were informal?


----------



## the judge

James Long said:


> Your logic is flawed logic. I look forward to the real judge coming up with a real ruling.


I'm the first one to admit when I'm wrong, but I just can't find the mistake in my claim that: "if Folsom concludes that the software is no more than colorably different"... then..."the adjudicated devices are deemed to continue to infringe".

What am I missing? Are you suggesting that Folsom could conclude the software is not more than colorably different and then conclude that the adjudicated devices do not infringe? Anybody want to clarify this for me or James?


----------



## the judge

jacmyoung said:


> What is a "formal logic" anyway? The rest of his logics were informal?


Formal logic is the study of inference with purely formal content, where that content is made explicit. Wiki "logic".


----------



## jacmyoung

the judge said:


> I'm the first one to admit when I'm wrong, but I just can't find the mistake in my claim that: "if Folsom concludes that the software is no more than colorably different"... then..."the adjudicated devices are deemed to continue to infringe"...


No one is saying your above statement is wrong, what was wrong of your "formal logic" was when you said the judge would first determine if the DVRs still infringe on the patent claims in his next hearing.


----------



## the judge

jacmyoung said:


> No one is saying your above statement is wrong, what was wrong of your "formal logic" was when you said the judge would first determine if the DVRs still infringe on the patent claims in his next hearing.


Sorry for the misunderstanding. I think you and James were confused by my phrasing, which stated the conclusion then the premise instead of the premise then the conclusion.


----------



## HobbyTalk

the judge said:


> I'm the first one to admit when I'm wrong, but I just can't find the mistake in my claim that: "if Folsom concludes that the software is no more than colorably different"... then..."the adjudicated devices are deemed to continue to infringe".
> 
> What am I missing? Are you suggesting that Folsom could conclude the software is not more than colorably different and then conclude that the adjudicated devices do not infringe? Anybody want to clarify this for me or James?


You said, to quote:



> The Court will first determine whether the devices continue to infringe because the differences are no more than colorable.


Each part will be found as separate items. They could be found to continue to infringe and be found to be more then colorable. So if the 2nd part is true (colorable difference), the 1st will also be true (infringement) as you said. But the 1st part could be true (infringement) while the 2nd part is not true (colorable difference). They could also be found not to infringe because they are more then colorable different. So while what you said could be the outcome, there are at least two other outcomes.


----------



## scooper

HobbyTalk said:


> You said, to quote:
> 
> Each part will be found as separate items. They could be found to continue to infringe and be found to be more then colorable. So if the 2nd part is true (colorable difference), the 1st will also be true (infringement) as you said. But the 1st part could be true (infringement) while the 2nd part is not true (colorable difference). They could also be found not to infringe because they are more then colorable different. So while what you said could be the outcome, there are at least two other outcomes.


Actually - the "colorable difference" should be covered first, then any infringement considerations.


----------



## the judge

HobbyTalk said:


> Each part will be found as separate items. They could be found to continue to infringe and be found to be more then colorable. So if the 2nd part is true (colorable difference), the 1st will also be true (infringement) as you said. But the 1st part could be true (infringement) while the 2nd part is not true (colorable difference). They could also be found not to infringe because they are more then colorable different. So while what you said could be the outcome, there are at least two other outcomes.


What I said:
"The Court will first determine whether the devices continue to infringe because the differences are no more than colorable."

What I could have said that means the same thing:
"First, the Court will determine if the differences are no more than colorable, and if they do the devices continue to infringe."


----------



## HobbyTalk

the judge said:


> What I said:
> "The Court will first determine whether the devices continue to infringe because the differences are no more than colorable."
> 
> What I could have said that means the same thing:
> "First, the Court will determine if the differences are no more than colorable, and if they do the devices continue to infringe."


Guess you are the only one that thinks those two statements means the same thing :sure:


----------



## jacmyoung

the judge said:


> What I said:
> "The Court will first determine whether the devices continue to infringe because the differences are no more than colorable."
> 
> What I could have said that means the same thing:
> "First, the Court will determine if the differences are no more than colorable, and if they do the devices continue to infringe."


The first sentence is illogical because you cannot ask "whether..." when you have already concluded with "because..."

The second sentence is now correct. However the question is, if the difference is merely colorable, the device is still infringing, then what is the point of the second order to again find if the device is still infringing or not?

On the other hand, if the difference is more than colorable, there cannot be a contempt, meaning the contempt motion must be denied, so again what is the point of the second order? The motion should be over by then.

Now you see why E* said the second order is not appropriate.


----------



## the judge

jacmyoung said:


> The first sentence is illogical because you cannot ask "whether..." when you have already concluded with "because..."


Now you're giving the Forum English lessons? I explained the "because" clause quite clearly that it was a supporting premise and not a conclusion. Can you explain why you and Hobby choose to remain befuddled?



jacmyoung said:


> On the other hand, if the difference is more than colorable, there cannot be a contempt, meaning the contempt motion must be denied, so again what is the point of the second order? The motion should be over by then.
> 
> Now you see why E* said the second order is not appropriate.


Wrong again. If the changes are more than colorable, but nonetheless are still found to infringe under the doctrine of equivalents, then Echostar will be found in contempt. There could be millions of permutations of steps in a process as complex as this patent that do not fall within the literal scope of the patent claim, but nevertheless are equivalent. You can't defy the injunction with a workaround that continues to infringe. Period.


----------



## jacmyoung

the judge said:


> Now you're giving the Forum English lessons? I explained the "because" clause quite *clearly* that it was a supporting premise and not a conclusion. Can you explain why you and Hobby choose to remain befuddled?


There is no way others could have "clearly" interpreted it that way, even after you tried to explained it that way. So a better alternative would have been to admit it was a wrong sentence, and used the second corrected sentence instead, and there would not have been any argument from the other side.



> Wrong again. If the changes are more than colorable, but nonetheless are still found to infringe under the doctrine of equivalents, then Echostar will be found in contempt. There could be millions of permutations of steps in a process as complex as this patent that do not fall within the literal scope of the patent claim, but nevertheless are equivalent. You can't defy the injunction with a workaround that continues to infringe. Period.


Yes you can, because once the differences are determined more than colorable, there cannot be a contempt, if the patentee wishes to again find the modified device an infringement, they need to do so in a new trial.

Again, stop using your own belief as basis to say I am "dead wrong". The term "dead wrong" is a very serious accusation, and a serious accusation requires serious proof. At a minimum you need to cite case law to prove that I am dead wrong, not just what you believe, or what TiVo wants you to believe.

I have cited case law after case law that said, once more than colorable differences are found, there cannot be a finding of contempt, period.

Why don't you go read them, then show me your own case law to refute my case law.

A judge never rules on his own personal belief, a judge always cite case law to support his ruling. "the judge", have you not learned that?


----------



## the judge

jacmyoung said:


> Yes you can, because once the differences are determined more than colorable, there cannot be a contempt, if the patentee wishes to again find the modified device an infringement, they need to do so in a new trial.


What you are proposing as settled law is anarchy. You propose that an adjudicated infringer of a complex patented process can make more than colorable changes knowing full well they continue to infringe, perpetually staying an entire full-blown trial ahead of the infringee, avoiding contempt and any enforcement of a patent? That is a massive misreading and misinterpretation of the law.

District Court judges have broad powers to shut down adjudicated infringers, obviously subject to their rights to appeal.


----------



## the judge

jacmyoung said:


> Again, stop using your own belief as basis to say I am "dead wrong". The term "dead wrong" is a very serious accusation, and a serious accusation requires serious proof.


Actually this time I just said "Wrong again", not "dead wrong". I agree that "dead wrong" should be reserved for times when you are 100% wrong, and "wrong again" for times when you're more than 99.9% wrong.


----------



## the judge

Here's an interesting case that calls into question the argument that you can't enforce an injunction unless the changes are merely colorably different:

Judge Rules Intex in Contempt in Aero Patent Suit

Friday, May 13, 2005
by: IPFrontline 
CHICAGO -- On May 11, 2005, Judge John W. Darrah of the U.S. District Court for the Northern District of Illinois ruled that Intex Recreation Corporation was in contempt of a post-trial injunction, which prohibited further infringement of Aero Products International's patent, due to Intex's sale of a similar product to that found to infringe. In September 2004, the Court entered a permanent injunction enjoining Intex from further infringement of Aero's '726 patent relating to the AeroBed® inflatable air mattress. Aero is represented by the intellectual property firm Brinks Hofer Gilson & Lione.

*Intex claimed that this second product was sufficiently different in design as to warrant a separate lawsuit, thus subjecting Aero to the expense of an additional lengthy trial. However, the Court disagreed and ruled that the second product also infringed Aero's patent rights and that Intex was in contempt of the permanent injunction. Damage calculations are pending.
*
"We were surprised that Intex sold the product it did in the wake of a jury's finding of willful infringement and are pleased that Judge Darrah agreed with Aero and found Intex in contempt," said William H. Frankel, lead counsel for Aero and a litigator at Brinks. Other members of the legal team from Brinks include Michael Chu, Mark Remus and David Bluestone.

The case, Aero Products International, Inc. v. Intex Recreation Corporation; Quality Trading, Inc; and Wal-Mart Stores, Inc., involved technology that allows a user to quickly inflate an air mattress and easily adjust its firmness using a unique comfort control feature that Aero, of Wauconda, Illinois, promotes with its ONE TOUCH® trademark. In February 2004, a jury found that Intex willfully infringed Aero's patent and trademark rights and awarded Aero damages of $2.95 million for patent infringement and $1 million for trademark infringement. In July 2004, the judge doubled the patent damages award to $5.9 million based on the jury's finding of willful infringement and also awarded Aero its attorneys' fees.


----------



## Greg Bimson

jacmyoung said:


> To determine whether an accused device is an infringement against the patent claims or not is to conduct an infringement analysis.


Yet this is the rub, from Judge Folsom:


> The Court will hold an additional evidentiary hearing on this matter on February 17-18, 2009 to determine [...] 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 devices in question were adjudged as infringements. Therefore, to "continue to infringe" simply implies there already is a standard upon which to measure infringement. There is no need for an in-depth analysis regarding the validity or definition of claims of the patent as those definitions exist on record from the Markman hearings.


jacmyoung said:


> Yes you can, because once the differences are determined more than colorable, there cannot be a contempt, if the patentee wishes to again find the modified device an infringement, they need to do so in a new trial.


So let me see if I have this straight:

Joe Blow's four year old 501 DVR was found to infringe on the Time Warp patent. If modifications to Joe's DVR are more than colorable, TiVo would have to file suit again on said DVR? That's impossible, as the same device cannot be tried twice. After all, this evidentiary hearing is simply to determine whether or not the devices in question "continue to infringe". It means those devices are subject to Judge Folsom's court and no other.

It appears there is too much dependence upon case law to bring this issue to closure. Anyone want to find the "case law" regarding continuing infringement?

Once the Supreme Court stopped entitlement automatic injunctions for patent infringement, it is Judge Folsom that created new standards regarding automatic licensing and royalty payments in lieu of an injunction. It is _Paice v. Toyota_ which is being cited in this current round of litigation.

So, isn't it extremely possible that Judge Folsom is deciding to create a new standard regarding "continuing infringement"? After all, I seem to recall that Judge Folsom was made Chief of his district, more than likely for his creation of a new standard and being a forward-thinking judge.


----------



## jacmyoung

the judge said:


> Here's an interesting case that calls into question the argument that you can't enforce an injunction unless the changes are merely colorably different:
> 
> Judge Rules Intex in Contempt in Aero Patent Suit
> 
> Friday, May 13, 2005
> by: IPFrontline
> CHICAGO -- On May 11, 2005, Judge John W. Darrah of the U.S. District Court for the Northern District of Illinois ruled that Intex Recreation Corporation was in contempt of a post-trial injunction, which prohibited further infringement of Aero Products International's patent, due to Intex's sale of a similar product to that found to infringe. In September 2004, the Court entered a permanent injunction enjoining Intex from further infringement of Aero's '726 patent relating to the AeroBed® inflatable air mattress. Aero is represented by the intellectual property firm Brinks Hofer Gilson & Lione.
> 
> *Intex claimed that this second product was sufficiently different in design as to warrant a separate lawsuit, thus subjecting Aero to the expense of an additional lengthy trial. However, the Court disagreed and ruled that the second product also infringed Aero's patent rights and that Intex was in contempt of the permanent injunction. Damage calculations are pending.
> *
> "We were surprised that Intex sold the product it did in the wake of a jury's finding of willful infringement and are pleased that Judge Darrah agreed with Aero and found Intex in contempt," said William H. Frankel, lead counsel for Aero and a litigator at Brinks. Other members of the legal team from Brinks include Michael Chu, Mark Remus and David Bluestone.
> 
> The case, Aero Products International, Inc. v. Intex Recreation Corporation; Quality Trading, Inc; and Wal-Mart Stores, Inc., involved technology that allows a user to quickly inflate an air mattress and easily adjust its firmness using a unique comfort control feature that Aero, of Wauconda, Illinois, promotes with its ONE TOUCH® trademark. In February 2004, a jury found that Intex willfully infringed Aero's patent and trademark rights and awarded Aero damages of $2.95 million for patent infringement and $1 million for trademark infringement. In July 2004, the judge doubled the patent damages award to $5.9 million based on the jury's finding of willful infringement and also awarded Aero its attorneys' fees.


Sorry, too late, this is one of the cases we had touched on before, the reason a contempt was found was that the judge had determined the modified product was only colorably different than the adjudicated product.


----------



## jacmyoung

Greg Bimson said:


> Yet this is the rub, from Judge Folsom:The devices in question were adjudged as infringements. Therefore, to "continue to infringe" simply implies there already is a standard upon which to measure infringement. There is no need for an in-depth analysis regarding the validity or definition of claims of the patent as those definitions exist on record from the Markman hearings.So let me see if I have this straight:
> 
> Joe Blow's four year old 501 DVR was found to infringe on the Time Warp patent. If modifications to Joe's DVR are more than colorable, TiVo would have to file suit again on said DVR? That's impossible, as the same device cannot be tried twice. After all, this evidentiary hearing is simply to determine whether or not the devices in question "continue to infringe". It means those devices are subject to Judge Folsom's court and no other.
> 
> It appears there is too much dependence upon case law to bring this issue to closure. Anyone want to find the "case law" regarding continuing infringement?
> 
> Once the Supreme Court stopped entitlement automatic injunctions for patent infringement, it is Judge Folsom that created new standards regarding automatic licensing and royalty payments in lieu of an injunction. It is _Paice v. Toyota_ which is being cited in this current round of litigation.
> 
> So, isn't it extremely possible that Judge Folsom is deciding to create a new standard regarding "continuing infringement"? After all, I seem to recall that Judge Folsom was made Chief of his district, more than likely for his creation of a new standard and being a forward-thinking judge.


You are rehashing all the old arguments, I will just wait and see what is Judge Folsom's next move.

I do have one question for the TiVo supporters, we know now that TiVo is only going after the 50X DVRs, I consider the E* 50Xs "prehistoric" non-Broadcom DVRs that very few people are still using today.

All newer E* DVRs, including the 522s/625s are Broadcom based. If TiVo is now only limited to those prehistoric DVRs, can't you see TiVo is doomed?


----------



## the judge

jacmyoung said:


> Sorry, too late, this is one of the cases we had touched on before, the reason a contempt was found was that the judge had determined the modified product was only colorably different than the adjudicated product.


I did a search across all of DBS and found a few scarce references to Intex, and no detailed discussion.

Could you please do us all a favor and cite a definitive reference where "the reason a contempt was found was that the judge had determined the modified product was only colorably different."


----------



## the judge

jacmyoung said:


> You are rehashing all the old arguments, I will just wait and see what is Judge Folsom's next move.
> 
> I do have one question for the TiVo supporters, we know now that TiVo is only going after the 50X DVRs, I consider the E* 50Xs "prehistoric" non-Broadcom DVRs that very few people are still using today.
> 
> All newer E* DVRs, including the 522s/625s are Broadcom based. If TiVo is now only limited to those prehistoric DVRs, can't you see TiVo is doomed?


Dead wrong again. Tivo has not limited their argument to the 50X DVRs, nor has the Court:

"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 DP-501, DP-508, DP-510, DP-522, DP-625, DP-721, DP-921, and DP-942 receivers continue to infringe claims 1, 5, 21, 23, 32, 36, 52, 31, and 61 of U.S. Patent No. 6,233,389, either literally or under the doctrine of equivalents."


----------



## Greg Bimson

jacmyoung said:


> All newer E* DVRs, including the 522s/625s are Broadcom based. If TiVo is now only limited to those prehistoric DVRs, can't you see TiVo is doomed?


It is another strawman...

Judge Folsom's original order was to revisit the models found infringing and determine whether or not those devices (the 50X and Broadcom DVR's) continue to infringe both the software and hardware claims of the Time Warp patent. TiVo _abandoned_ the need to continue to press against the hardware claims. TiVo _did not abandon_ finding infringement on the Broadcom DVR's; TiVo has addressed the claims of modification on the Broadcom DVR's by DISH/SATS already.


----------



## James Long

the judge said:


> You propose that an adjudicated infringer of a complex patented process can make more than colorable changes knowing full well they continue to infringe, perpetually staying an entire full-blown trial ahead of the infringee, avoiding contempt and any enforcement of a patent? That is a massive misreading and misinterpretation of the law.


No, it isn't. It is just part of the patent system. Perhaps a flawed part of the system, but part of the system nonetheless.

I'm not saying that it is LIKELY that a "more than colorably different" ruling would be made on an infringing product with only minor modifications ... but the way the law is set up, IF that ruling was made it would require a new trial.



the judge said:


> Here's an interesting case that calls into question the argument that you can't enforce an injunction unless the changes are merely colorably different:
> 
> Intex claimed that this second product was sufficiently different in design as to warrant a separate lawsuit, thus subjecting Aero to the expense of an additional lengthy trial. However, the Court disagreed and ruled that the second product also infringed Aero's patent rights and that Intex was in contempt of the permanent injunction. Damage calculations are pending.


Where do you read that THE COURT considered the new product more than colorably different? A party in the case can claim anything they want ... the sky is green and the ocean is red! That does not make it so. What you need to find to support your premise is where the COURT said that the new product WAS more than colorably different AND the colorably different product infringed (and the decision wasn't simply tossed out on appeal).


----------



## James Long

the judge said:


> Dead wrong again. Tivo has not limited their argument to the 50X DVRs, nor has the Court:
> 
> "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 DP-501, DP-508, DP-510, DP-522, DP-625, DP-721, DP-921, and DP-942 receivers continue to infringe claims 1, 5, 21, 23, 32, 36, 52, 31, and 61 of U.S. Patent No. 6,233,389, either literally or under the doctrine of equivalents."


Don't confuse the statements of Judge Folsom with the focus of TiVo or you run the risk of being "dead wrong".


----------



## Curtis52

"Contempt is a shield protecting the patentee against an infringer’s flagrant disregard for court orders,” not “a sword for wounding a former infringer who has made a good-faith effort to modify a previously adjudged or admitted infringing device to remain in the marketplace.” Arbek Mfg., 55 F.3d at 1570.

More than colorably different would seem to meet the "Good faith" test.


----------



## the judge

James Long said:


> No, it isn't. It is just part of the patent system. Perhaps a flawed part of the system, but part of the system nonetheless.
> 
> I'm not saying that it is LIKELY that a "more than colorably different" ruling would be made on an infringing product with only minor modifications ... but the way the law is set up, IF that ruling was made it would require a new trial.


Sorry, you are wrong. The District Court has broad authority to put an end to continuing infringement without calling for a new trial.



James Long said:


> Where do you read that THE COURT considered the new product more than colorably different? A party in the case can claim anything they want ... the sky is green and the ocean is red! That does not make it so. What you need to find to support your premise is where the COURT said that the new product WAS more than colorably different AND the colorably different product infringed (and the decision wasn't simply tossed out on appeal).


There is nothing I can find except the words of the article that say the court found that the new device, not the one found to infringe originally, was in contempt of the permanent injunction. It raises an interesting question: does the injunction apply to the infringing products or to the company that makes the products, or both?


----------



## the judge

James Long said:


> Don't confuse the statements of Judge Folsom with the focus of TiVo or you run the risk of being "dead wrong".


I am not confused at all. I was addressing all sides of jacy's baseless claim that "we know now that TiVo is only going after the 50X DVRs". Folsom allowed Tivo to pursue all of the infringing devices, and Tivo is pursing all of the infringing devices.


----------



## scooper

the judge said:


> What you are proposing as settled law is anarchy. You propose that an adjudicated infringer of a complex patented process can make more than colorable changes knowing full well they continue to infringe, perpetually staying an entire full-blown trial ahead of the infringee, avoiding contempt and any enforcement of a patent? That is a massive misreading and misinterpretation of the law.
> 
> District Court judges have broad powers to shut down adjudicated infringers, obviously subject to their rights to appeal.


What will happen in such a case is that the court would then require the infringer to clear such changes through the court before allowing them to be made , so as to prevent the continuing "revolving door" in and out of court.

But we are not at that stage yet either. This is only the first iteration of Echostar's attempts to get around the patent.

See, the court system can't keep up with modern technology.


----------



## James Long

the judge said:


> Sorry, you are wrong. The District Court has broad authority to put an end to continuing infringement without calling for a new trial.


I'm not sorry to report that YOU are wrong. You set up a premise, you were incorrect, and now you have abandoned that premise.

READING what you previously wrote my statement is accurate. Perhaps there was a flaw in your premise? Perhaps pigs would fly before your premise would come true? Nevertheless, assuming your premise the outcome would be as I stated.

Changing your premise to something more rooted in reality is a good thing. Perhaps less fiction would be a good route to take? Especially if you're going to ignore your own premise.



> There is nothing I can find except the words of the article that say the court found that the new device, not the one found to infringe originally, was in contempt of the permanent injunction. It raises an interesting question: does the injunction apply to the infringing products or to the company that makes the products, or both?


Perhaps you can rely more on the documents of the courts than summaries written by the media? In court documents you will find the actual wording of injunctions.

For example, the wording of the injunction in the TiVo vs EchoStar case that SHOULD be the focus of this thread applies the "do not manufacture or sell" limits specified in the injunction to the eight named adjudicated infringing products _and_ products that are no more than colorably different. The colorably different language is common for injunctions requiring defendants to cease the manufacture and sale of infringing products.

You're assuming that because some newspaper reporter didn't report that the new products were ruled only colorably different that they were not and that the language isn't in the injunction?


----------



## the judge

James Long said:


> I'm not sorry to report that YOU are wrong. You set up a premise, you were incorrect, and now you have abandoned that premise.
> 
> READING what you previously wrote my statement is accurate. Perhaps there was a flaw in your premise? Perhaps pigs would fly before your premise would come true? Nevertheless, assuming your premise the outcome would be as I stated.


I have no idea what you are talking about.



James Long said:


> Perhaps you can rely more on the documents of the courts than summaries written by the media? In court documents you will find the actual wording of injunctions.
> 
> For example, the wording of the injunction in the TiVo vs EchoStar case that SHOULD be the focus of this thread applies the "do not manufacture or sell" limits specified in the injunction to the eight named adjudicated infringing products _and_ products that are no more than colorably different. The colorably different language is common for injunctions requiring defendants to cease the manufacture and sale of infringing products.
> 
> You're assuming that because some newspaper reporter didn't report that the new products were ruled only colorably different that they were not and that the language isn't in the injunction?


I'm not assuming anything. I posted an article and suggested it "called into question the argument that you can't enforce an injunction unless the changes are merely colorably different". I looked but can't find more detail on the underlying injunction or the reason it was refound to infringe.

Most rational people would not fly off the handle making baseless accusations about my assumptions so they can argue it to death, but rather see it as opening a topic highly relevant to this thread for further discussion.


----------



## James Long

the judge said:


> James Long said:
> 
> 
> 
> Don't confuse the statements of Judge Folsom with the focus of TiVo or you run the risk of being "dead wrong".
> 
> 
> 
> I am not confused at all. I was addressing all sides of jacy's baseless claim that "we know now that TiVo is only going after the 50X DVRs". Folsom allowed Tivo to pursue all of the infringing devices, and Tivo is pursing all of the infringing devices.
Click to expand...

Being allowed to do something and doing something are two entirely different things. For example, I have a driver's license that allows me to drive on interstate highways. It does not require me to drive on interstate highways nor should one infer that I will be driving on interstate highways at any particular point in time simply because I have a license that allows it.

Judge Folsom's license to go after all eight named models does not require that TiVo use that license to go after all eight named models. If you want to counter what jacmyoung stated about TiVo's intentions you should refer to TiVo's statements of intent, not to their "license".


----------



## James Long

the judge said:


> Most rational people would not fly off the handle making baseless accusations about my assumptions so they can argue it to death, but rather see it as opening a topic highly relevant to this thread for further discussion.


Some would consider what you have done trolling.
But I'd rather discuss the case at hand than the actions of the posters.


----------



## the judge

James Long said:


> Being allowed to do something and doing something are two entirely different things. For example, I have a driver's license that allows me to drive on interstate highways. It does not require me to drive on interstate highways nor should one infer that I will be driving on interstate highways at any particular point in time simply because I have a license that allows it.
> 
> Judge Folsom's license to go after all eight named models does not require that TiVo use that license to go after all eight named models. If you want to counter what jacmyoung stated about TiVo's intentions you should refer to TiVo's statements of intent, not to their "license".


Again, you missed the point, but the good news is we agree on some things. We agree that Folsom allowed Tivo to pursue all 8 models. Had he not, jacy's statement might have held water. Second, we agree that Tivo has every right to pursue or not to pursue all 8 models, any combination of them, or even none.

We know from Echostar filings that they believe that Tivo was deficient in their disclosures relative to the 50X DVRs. Can we agree, therefore, that until Tivo announces otherwise, they are still pursing them? Or are you arguing that Tivo could have dropped their argument on those models and not made a public announcement and therefore no ones can really knows???

Regarding the Broadcom DVRs, from TIVO'S REPLY RE: MOTION FOR ECHOSTAR TO BE HELD IN CONTEMPT FOR VIOLATION OF THIS COURT'S PERMANENT INJUNCTION, Tivo states that: "Second, with respect to the Broadcom boxes (but not the 50X boxes), EchoStar argues that its modified software does not have "automatic flow control" because it "does not and
cannot stop the flow of incoming data to the buffer." Opp. at 5. Under the Court's claim construction, however, the term "automatic flow control" does not demand stopping the flow of incoming data. It means only "self-regulated." Claim Construction Order at 24. EchoStar does not dispute that its data pipelines are "self-regulated." Moreover, the opinions of its outside counsel demonstrate that the data flow continues to be self-regulated. 8/24/06 opinion letter at 23 (Dckt. No. 826 Ex. 1) ("The EchoStar software . . . must keep up with the incoming data . . . .").8 Thus, even the analysis of EchoStar's own counsel demonstrates that EchoStar's alleged design-around lacks substance. These units are not more than colorably different from
the Adjudicated Receivers and they continue to infringe."

Once again, can we agree, therefore, that until Tivo announces otherwise, they are still pursing these? Or are you arguing that Tivo could have dropped their argument on those models and not made a public announcement and therefore no ones really knows???

Let's agree that we all go with the facts as they are last known.


----------



## jacmyoung

Greg Bimson said:


> ... TiVo has addressed the claims of modification on the Broadcom DVR's by DISH/SATS already.


You have every right to continue to hold on to that belief, and BTW, TiVo is still holding on to the argument that E* violated the order on the face.

Good luck.


----------



## jacmyoung

the judge said:


> Again, you missed the point, but the good news is we agree on some things. We agree that Folsom allowed Tivo to pursue all 8 models. Had he not, jacy's statement might have held water. Second, we agree that Tivo has every right to pursue or not to pursue all 8 models, any combination of them, or even none.
> 
> We know from Echostar filings that they believe that Tivo was deficient in their disclosures relative to the 50X DVRs. Can we agree, therefore, that until Tivo announces otherwise, they are still pursing them? Or are you arguing that Tivo could have dropped their argument on those models and not made a public announcement and therefore no ones can really knows???
> 
> Regarding the Broadcom DVRs, from TIVO'S REPLY RE: MOTION FOR ECHOSTAR TO BE HELD IN CONTEMPT FOR VIOLATION OF THIS COURT'S PERMANENT INJUNCTION, Tivo states that: "Second, with respect to the Broadcom boxes (but not the 50X boxes), EchoStar argues that its modified software does not have "automatic flow control" because it "does not and
> cannot stop the flow of incoming data to the buffer." Opp. at 5. Under the Court's claim construction, however, the term "automatic flow control" does not demand stopping the flow of incoming data. It means only "self-regulated." Claim Construction Order at 24. EchoStar does not dispute that its data pipelines are "self-regulated." Moreover, the opinions of its outside counsel demonstrate that the data flow continues to be self-regulated. 8/24/06 opinion letter at 23 (Dckt. No. 826 Ex. 1) ("The EchoStar software . . . must keep up with the incoming data . . . .").8 Thus, even the analysis of EchoStar's own counsel demonstrates that EchoStar's alleged design-around lacks substance. These units are not more than colorably different from
> the Adjudicated Receivers and they continue to infringe."
> 
> Once again, can we agree, therefore, that until Tivo announces otherwise, they are still pursing these? Or are you arguing that Tivo could have dropped their argument on those models and not made a public announcement and therefore no ones really knows???
> 
> Let's agree that we all go with the facts as they are last known.


The problem with TiVo's whole argument is that, it was TiVo who insisted that the use of the "index table" proved that E* DVRs "*parsed* as described in the patent claims", and it was also because the data flow could not be stopped that proved E* also had "automatica flow control" that met the "self-regulating" construction.

Now all the sudden, Tivo is saying, who cares about the "index table"? And who cares about "not able to stop the data flow"? It was that other thing!

Well you see, if it were the other thing, TiVo would not have proven infringement in the first place, would it?

Why? Because those "things" (index table, stopping data flow) were the very *evidence* that TiVo found in E*'s old design that proved those "parse" and "automatic flow control" limitations were met.

Remove those evidence, then at a minimum, TiVo must do there homework to find other evidence to again prove it.


----------



## Greg Bimson

jacmyoung said:


> The problem with TiVo's whole argument is that, it was TiVo who insisted that the use of the "index table" proved that E* DVRs "parsed as described in the patent claims", and it was also because the data flow could not be stopped that proved E* also had "automatica flow control" that met the "self-regulating" construction.





jacmyoung said:


> Why? Because those "things" (index table, stopping data flow) were the very evidence that TiVo found in E*'s old design that proved those "parse" and "automatic flow control" limitations were met.
> 
> Remove those evidence, then at a minimum, TiVo must do there homework to find other evidence to again prove it.


That isn't TiVo's whole argument. That is your argument, since the index table wasn't the only argument proving infringement.

You can believe the strawman you propose all you want, but that doesn't make it a fact.


----------



## Curtis52

From claim 31:


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


From the ST micro STi5518 (chip 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*.


It sounds identical to me.


----------



## Curtis52

Court testimony:

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.


----------



## jacmyoung

Curtis52 said:


> From claim 31:
> 
> From the ST micro STi5518 (chip used in the DVRs) data sheet:
> 
> It sounds identical to me.


Did TiVo identify the source object that later extract such parsed data?

That is why the parse must be the same kind of parse *as described in the patent claims*. If the data was parsed to perform a different function, in a different way, and to achieve a different result, there is no infringement.

Besides, the PID filter does not have buffers to hold the parsed data for extraction later, it has buffers to hold the raw data prior to parsing, and the raw data and the parsed data gets placed in such buffers so the parsing can take place.


----------



## jacmyoung

Curtis52 said:


> Court testimony:
> 
> 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.


Again TiVo cannot argue against the man. To prove infringement, TiVo must compare the accused new design, to that of the patent claim limitations, and prove that each element still exists, and is still performing substantially the same function, in substantially the same way, and to achieve substantially the same result.

TiVo identified the MPEG Processor as the "physical data source" as described in the claim limitations, not the PID filter. The fact during the jury trial TiVo also got E* to admit that PID also parsed was irrelevant, unless TiVo can now prove that the PID filter not only parses data, but also temporarily stores such parsed data so that later a "source object" may extract such parsed data.


----------



## Curtis52

Court testimony:

6 Q. Sir, we're talking about parses. 
7 A. Right. So I'm trying to explain the answer, 
8 that this -- this -- we've even heard testimony from 
9 Dr. Polish, and I agree with it, this entire card, when 
10 you have it put together, this corresponds to the input 
11 section. This does these functions you just described, 
12 starting from the satellite signal, coming out the MPEG 
13 stream for internal transfer and manipulation. 
14 So to answer your question, that *PID 
15 filtering is part -- is part of this process of the MPEG 
16 conversion process. *
17 Q. Do you agree that the MRX1 LSI-64007 chip 
18 does a PID filtering operation that selects the 
19 particular channel that the viewer wants to watch? 
20 A. Oh, I do agree with that, yes. 
21 *Q. And is that parsing, sir? 
22 A. And as I said, I agree that that is parsing, 
23 sure.*


----------



## Curtis52

Here is mention of that pesky ST Micro device that contains the PID filter again:

3 Q. Okay. What would you identify as the 
4 physical data source in this same chip? 
5 A.  I think parsing is a key part of it, so I 
6 went immediately to the left of what Dr. Gibson 
7 identified, and I identified the three parsers that are 
8 shown right there. Okay. And I also identified where 
9 we were in exact agreement, the input buffer, which was 
10 part of it. 
11 So if you look at that, you can kind of 
12 see that we had a part we agreed on and some parts we 
13 disagreed on, but the thing we do agree on is that 
14 wherever *the physical data source is, it's in the 
15 Broadcom chip and the Broadcom products, and it's in the 
16 STMicrochip in the STMicro products or 50Xs.* 
17 Q. And I take it you agree that there is one in 
18 the product? 
19 A. Absolutely.


----------



## jacmyoung

Greg Bimson said:


> ...since the index table wasn't the only argument proving infringement...


But it was the only evidence that proved the "parse" performed by the MEPG processor met the "parse" in the claim limitation, because TiVo later contended that such parsed data, in the form of the index table, was then "extracted" by a "source object" for the purpose of DVR trickplays.

The "parse" by the PID filter admitted in the jury trial was not the parse used to prove infringement.

I want to again point out though TiVo can only hinge its bet on the PID filter right now, because during the trial E* admitted the PID filter parsed. TiVo is limited to attack the 50Xs only for that reason, and there isn't many of them around a few months ago to even make a difference anyway.


----------



## CuriousMark

jacmyoung said:


> But it was the only evidence that proved the "parse" performed by the MEPG processor met the "parse" in the claim limitation, because TiVo later contended that such parsed data, in the form of the index table, was then "extracted" by a "source object" for the purpose of DVR trickplays.
> 
> The "parse" by the PID filter admitted in the jury trial was not the parse used to prove infringement.
> 
> I want to again point out though TiVo can only hinge its bet on the PID filter right now, because during the trial E* admitted the PID filter parsed. TiVo is limited to attack on the 50Xs for that reason, and there isn't many of them around even a few months ago to even make any difference anyway.


Nevertheless, nowhere in claims 31 or 61 does the parse step say that it must be done for the sole purpose of building an index table. So you are trying to add to the step a new limitation which is not really there. During the Markman hearings Dish certainly had the opportunity to push for wording that the parsing must be done for the specific purpose of building an index table, and perhaps they even tried to do so, but in the end, they did not get that limitation. Trying to back that into the patent now may sound good to you, but it is in conflict with the reality of the situation.


----------



## Curtis52

CuriousMark said:


> Nevertheless, nowhere in claims 31 or 61 does the parse step say that it must be done for the sole purpose of building an index table.


Yep. The word "analyze" is fairly nondescript. There are an infinite types of analysis. One type of analysis can be done in one claim and an entirely different type of analysis can be done in another claim. It's just a verb. "Run" is a verb too. There are all kinds of different ways to run. You can run up a hill and you can run down a hill. You can run fast or slow. It's all running. Likewise, it's all parsing.


----------



## jacmyoung

CuriousMark said:


> Nevertheless, nowhere in claims 31 or 61 does the parse step say that it must be done for the sole purpose of building an index table.


But it must be "temporarily stored" in the "physical data soruce" and then later be "extracted" by a "source object", and BTW, that source object's purpose was to work with the "transform object", the "control object" and the "sink object", guess to do what? Yes for DVR trickplays.



> So you are trying to add to the step a new limitation which is not really there.


I did not try to add any step, all I said was the "index table" was used by TiVo as *the evidence*, that the index table was that "parsed data" because that index table was "temporarily stored" in the MPEG processor, and then later was extracted by the "source object" to help perform DVR trickplays.

Now E* says the evidence is gone.



> During the Markman hearings Dish certainly had the opportunity to push for wording that the parsing must be done for the specific purpose of building an index table, and perhaps they even tried to do so, but in the end, they did not get that limitation. Trying to back that into the patent now may sound good to you, but it is in conflict with the reality of the situation.


E* did not and could not do so during the Markman hearing, as you said, the term "index table" is not a part of the claim limitations. It was only *the evidence* used to prove the first and the second limitations were met, therefore when the evidence is now removed, E* has established the *doubt* whether the new design still infringe, and as such, there cannot be a contempt.


----------



## jacmyoung

Let me try it another way, what TiVo needs to do is not just to say the PID filter still parses, but what is the parsed data? In what form and where does it go? Where is this parsed data temporarily stored, and is it later extracted by what, and to perform what functions?

Remember to prove infringement, even by the lesser standard of equivalents, one needs to prove that the elements are found in the accused devices that perform substantially the same function, in substantially the same way, and to achieve substantially the same result.


----------



## Curtis52

Claim construction:



> Claims 31 and 61
> 1. "parses video and audio data from said broadcast data" TiVo argues these terms should be construed to mean "analyzes video and audio data." See TiVo's Opening Br. at 9-11; TiVo's Op. Br. at 11-13; '389 patent at cols. 5:3- 6, 5:33-36, 6:36-58, & Fig. 6; TiVo's Markman Slides at 135-39; see also id. at col. 12:48-50 (". . . parses said MPEG stream . . .").
> 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." See '389 patent at Fig. 3 & col. 4:23-29; EchoStar's Opening Br. at 11-12; EchoStar's Response Br. at 7-10; EchoStar's Slide Presentation at 76-98, 123-24.
> As was the Court's analysis of the term "parses" in the context of claims 1 and 32, the Court similarly finds that "parse" as it is used in claims 31 and 61 means "analyzes." These terms are recited clearly by claims 31 and 61 and understood by persons of ordinary skill in the art. See '389 patent at cols. 14:55-58, 18:5-8. This definition is consistent with the use of the term in claims 31 and 61 and the context of the specification. See, e.g., '389 patent at col. 4:23-33 & Fig. 3 (describing the analysis of interleaved video and audio streams from an incoming MPEG stream).
> Therefore, the court defines "parses video and audio data from said broadcast data" as "analyzes video and audio data from the broadcast data."


----------



## CuriousMark

jacmyoung said:


> But it must be "temporarily stored" in the "physical data soruce" and then later be "extracted" by a "source object", and BTW, that source object's purpose was to work with the "transform object", the "control object" and the "sink object", guess to do what? Yes for DVR trickplays.


It is temporarily stored in the output FIFO buffer of the PID filter. Software must copy it from the buffer to the hard drive. So whatever software does that copy is a de facto source object. There is software that later copies the streams from the hard drive, perhaps it is an equivalent source object. I am not saying it is, but you can't say that it isn't either. Both sides of that may be argued. That software will certainly interact with a control source or object and feed a sink object, that in this case is the decoders. So certainly it is notarguable that non-infringement is clear cut or a given. It is up to the court, but it certainly will be interesting to see the arguments, or at least the pieces we will get to see when it happens.


----------



## scooper

CuriousMark said:


> It is temporarily stored in the output FIFO buffer of the PID filter. Software must copy it from the buffer to the hard drive. So whatever software does that copy is a de facto source object. There is software that later copies the streams from the hard drive, perhaps it is an equivalent source object. I am not saying it is, but you can't say that it isn't either. Both sides of that may be argued. That software will certainly interact with a control source or object and feed a sink object, that in this case is the decoders. So certainly it is notarguable that non-infringement is clear cut or a given. It is up to the court, but it certainly will be interesting to see the arguments, or at least the pieces we will get to see when it happens.


Do you need a short description of Tivo's process vs. Echostar's new process ? It wouldn't take too long - certainly not as long as some of Jacmyoung's posts .


----------



## CuriousMark

scooper said:


> Do you need a short description of Tivo's process vs. Echostar's new process ? It wouldn't take too long - certainly not as long as some of Jacmyoung's posts .


If I am that far off, just shoot me! :eek2:


----------



## Greg Bimson

jacmyoung said:


> I did not try to add any step, all I said was the "index table" was used by TiVo as *the evidence*, that the index table was that "parsed data" because that index table was "temporarily stored" in the MPEG processor, and then later was extracted by the "source object" to help perform DVR trickplays.
> 
> Now E* says the evidence is gone.


No, from all we have seen, the only argument from DISH/SATS regarding DVR's is that pre-storage analysis is gone. TiVo's response has always been that the pre-storage analysis is done by the PID parser.

DISH/SATS went the extra step to identify that they also removed the "automatically flow-controlled" limitation in the Broadcom DVR's.

There was no mention of any other step limitations that were removed, especially...


jacmyoung said:


> The fact during the jury trial TiVo also got E* to admit that PID also parsed was irrelevant, unless TiVo can now prove that the PID filter not only parses data, but also temporarily stores such parsed data so that later a "source object" may extract such parsed data.


DISH/SATS has yet to make that argument as a defense, and we don't know if your argument was discussed during the trial, so there is no sense in arguing a point which does not exist.

I don't have access to the transcript, but it is entirely possible that TiVo did also prove the PID filter (which is included in the physical data source) also temporarily stores parsed data and a "source object" extracts such parsed data.


----------



## scooper

Greg Bimson said:


> No, from all we have seen, the only argument from DISH/SATS regarding DVR's is that pre-storage analysis is gone. TiVo's response has always been that the pre-storage analysis is done by the PID parser.


If Tivo is going to say this, I'd like to see what are they calling a "PID parser".

I'd intrepret the PID Parser to be part and parcel of a satellite receiver, and the indexing function is the actual start of the Tivo process. If Tivo is calling the whole thing a "PID Parser", well then, in the famous words of Cool Hand Luke - "What we have here is a failure to communicate".


----------



## Greg Bimson

> 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;
> 
> providing a source object, wherein said source object extracts video and audio data from said physical data source;
> 
> providing a transform object, wherein said transform object stores and retrieves data streams onto a storage device;
> 
> wherein said source object obtains a buffer from said transform object, said source object converts video data into data streams and fills said buffer with said streams;
> 
> wherein said source object is automatically flow controlled by said transform object;
> 
> providing a sink object, wherein said sink object obtains data stream buffers from said transform object and outputs said streams to a video and audio decoder;
> 
> wherein said decoder converts said streams into display signals and sends said signals to a display;
> 
> wherein said sink object is automatically flow controlled by said transform object;
> 
> providing a control object, wherein said control object receives commands from a user, said commands control the flow of the broadcast data through the system; and
> 
> wherein said control object sends flow command events to said source, transform, and sink objects.





scooper said:


> I'd intrepret the PID Parser to be part and parcel of a satellite receiver, and the *indexing function* is the actual start of the Tivo process.


Too bad an "indexing function" is not part of the "TiVo process", nor especially part of Claim 31 of the TiVo Time Warp patent.


----------



## Curtis52

scooper said:


> If Tivo is going to say this, I'd like to see what are they calling a "PID parser".
> 
> I'd intrepret the PID Parser to be part and parcel of a satellite receiver, and the indexing function is the actual start of the Tivo process. If Tivo is calling the whole thing a "PID Parser", well then, in the famous words of Cool Hand Luke - "What we have here is a failure to communicate".


What indexing function? Perhaps you are thinking of a different claim.


----------



## scooper

Greg Bimson said:


> Too bad an "indexing function" is not part of the "TiVo process", nor especially part of Claim 31 of the TiVo Time Warp patent.


Mr. Bimson - WHAT is a PID Parser ? 
Straight question - straight answer. Where does it start, where does it end, and what does it do ?

After you give your answer - I'll give you mine, and outline differences (if any) between the two.


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## jacmyoung

Greg Bimson said:


> ...There was no mention of any other step limitations that were removed, especially...DISH/SATS has yet to make that argument as a defense, and we don't know if your argument was discussed during the trial, so there is no sense in arguing a point which does not exist...


Along the same line scooper asked, E* as the defendent only needs to create the doubt, because in the colorable difference analysis, there is only the need to point out what the differences are, and whether such differences may establish the doubt.

In order to prove infringement the first time, the "index table" and the "stop the flow of the data" were used as the very evidence, and now E* can prove that both such evidence are gone, that by itself creates the doubt whether infringement still exists, and when there is the doubt, it is also the same as saying the differences are more than colorable, and therefore contempt cannot be found.

Beyond that, the simple question to ask is does a PID filter perform substantially the same function (DVR frame info analysis), in substantially the same way (temporarily store the frame info), and achieve substantially the same result (to do DVR trickplays)?


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## scooper

I think I just hit the salient point of the arguement - "What is a PID Parser ? Where does it start, where does it end, and what does it do ?"


----------



## Greg Bimson

scooper said:


> I think I just hit the salient point of the arguement - "What is a PID Parser ? Where does it start, where does it end, and what does it do ?"


It analyzes a data stream to select data, parse out an audio and video component of MPEG data.

What, TiVo doesn't make a "receiver"?


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## Curtis52

Here is what the PID parser in the ST Micro device within the physical data source does:


> 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.


Here is the court record of what Dish thought the "parse" in claim 31 meant:


> 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."


Notice the similarity?


----------



## jacmyoung

Curtis52 said:


> Here is what the PID parser in the ST Micro device within the physical data source does:
> 
> Here is the court record of what Dish thought the "parse" in claim 31 meant:
> 
> Notice the similarity?


I have a patent where a physical data source parses the incoming data, then temporarily stores the data, then a source object extracts such data...

It turns out the data parsed is the data read by robotic arm sensors, the patent relates to an invention where a user uses a remote control to control the robotic arm to repeat, move forward, or backward to get the guy a drink.

The whole patent claim "1660" can read the same as the TiVo's patent claims 31, but there cannot be infringement from one another.

This TiVo's patent is about DVR trickplay functions, there is no way TiVo can possibly prove the PID filter is there to make the DVR trickplays happen, that is, according to the patent, to create "a process for the simultaneous storage and playback of multimedia data"--the result it seeks to achieve.

The PID filter serves no DVR functions, it is available in all receivers where MPEG data needed to be processed.

Another point to make is, if PID filter were ever a part of the DVR functions and therefore had contributed to the patent infringement, the judge's injunction would have ordered E* to disable the "receiver functionalities" not the "DVR functionalities."

For that reason, even if TiVo can possibly convince the judge that the PID filter is the culprit, TiVo still cannot prove that E* violated the injunction, because TiVo had failed to ask the judge to disable the receiver functions, only the DVR functions.

So TiVo needs to go back to the drawing board and ask for a new injunction, this time make sure the injunction says to disable the receiver functions, not the DVR functions.

Since the PID filter has nothing to do with "the DVR functionalities"--the only things the injunction seeks to disable, having a working PID filter in the DVR in no way violates the injunction.


----------



## scooper

Greg Bimson said:


> It analyzes a data stream to select data, parse out an audio and video component of MPEG data.
> 
> What, TiVo doesn't make a "receiver"?


I was expecting more detail, but OK - at this level - I'd say the same thing.

I was also expecting that Tivo is considering the "parsing" to create their index file / indices as part of this.

So we're in agreement that parsing STOPS when the A/V streams are presented to the next stage. And if this is what Tivo means - they've lost this arguement. Echostar should be able to argue that this is prior art.

In Tivo's / old Echostar software case - this is where the indices for trick play are generated. From there, it goes onto the storage medium (memory buffers implied for the speed differences).

In the new Echostar software - it goes straight to storage medium (essentially with today's tech - the harddrive)(memory buffers implied for the speed differences).

I think we have our "more than colorably difference" .

OK - now you're thinking - "what about displaying the streams previously created ?"

Tivo / old SW - read a chunk of file off the storage medium, collect the index information in our table, strip it out and send to the display circuitry. Again - 
memory buffers implied for the speed differences.

New SW - read a chunk of file off the storage medium. Run it through the "counters" for frame types, then pass on to the display circuitry. Again - 
memory buffers implied for the speed differences.

For summary - 
'389 patent

PID parser => custom silicon for analysis/indexing => storage => custom silicon to strip out / place in table => display circuits

New Echostar

PID Parser => storage => frame count function => display circuits.


----------



## Curtis52

scooper said:


> Echostar should be able to argue that this is prior art.


Echostar knew what it meant. They had their chance with the USPTO during the reexamination they instigated and again at trial and during their appeals with the Federal Circuit and to the Supreme Court.. They can't argue patent invalidity during the contempt hearing. The patent is the law of the case.


----------



## scooper

Curtis52 said:


> Echostar knew what it meant. They had their chance with the USPTO during the reexamination they instigated and again at trial and during their appeals with the Federal Circuit and to the Supreme Court.. They can't argue patent invalidity during the contempt hearing. The patent is the law of the case.


Fine - it still doesn't prove infringment either. The PID Parsing is just a strawman put up by Tivo.

I just showed you the plain language essentials of how each DVR method works. They look pretty different to me.


----------



## jacmyoung

Curtis52 said:


> Echostar knew what it meant. They had their chance with the USPTO during the reexamination they instigated and again at trial and during their appeals with the Federal Circuit and to the Supreme Court.. They can't argue patent invalidity during the contempt hearing. The patent is the law of the case.


Actually they can, in the infringement analysis, and the USPTO will also re-examine the validity of the TiVo's patent in two months. E* will have another chance.

Yes it is too late for the previous judgment, but not too late for all the new DVRs. My question again is, can you see the writing on the wall if TiVo can only attack the old "pre-historic" E* DVRs?

As for the PID filter, E* will be able to argue it is a prior art if TiVo insists that the PID filter meets the patent limitations. The reason E* failed on the "prior art" argument last time was because TiVo did not use the PID filter to prove infringement, it was the MPEG processor.

And let me say this again, if TiVo thinks the PID filter argument may work, TiVo needs to first prove the PID filter is a part of the DVR functionalities, because this injunction only seeks to disable the DVR functionalities, not the receiver functionalities.


----------



## Curtis52

Oh my gosh. The patent includes storing data on a storage device and using buffers. People have been doing that for years. TiVo is in trouble.


----------



## scooper

Curtis52 said:


> Oh my gosh. The patent includes storing data on a storage device and using buffers. People have been doing that for years. TiVo is in trouble.


And just WHY do you think I've been saying that Tivo shouldn't have gotten that patent in the first place ?

When you break it down to its essentials - the whole '389 patent has been done before...


----------



## the judge

scooper said:


> And just WHY do you think I've been saying that Tivo shouldn't have gotten that patent in the first place ?
> 
> When you break it down to its essentials - the whole '389 patent has been done before...


If that's how the patent system worked, no one would ever get a patent that used a wheel, and the innovation the system protects would never exist.


----------



## Curtis52

scooper said:


> I just showed you the plain language essentials of how each DVR method works. They look pretty different to me.


The whole lesson of KSM was that the similarities and differences must be analyzed in the context of the patent claims. Since an index table is not mentioned in the claims, the presence or absence of an index table is irrelevant.


----------



## jacmyoung

Curtis52 said:


> Oh my gosh. The patent includes storing data on a storage device and using buffers. People have been doing that for years. TiVo is in trouble.


Maybe they will be soon, what do you think?


----------



## jacmyoung

Curtis52 said:


> The whole lesson of KSM was that the similarities and differences must be analyzed in the context of the patent claims. Since an index table is not mentioned in the claims, the presence or absence of an index table is irrelevant.


Wrong, the whole lesson of KSM is that *in a contempt proceeding*, the similarities and differences must *not* be compared in the context of the patent claims (which is done in an infringement analysis), rather only compared between the old and the new, to determine if the differences are only colorable.

If you read those appeals court cases where they overturned the lower courts' contempt rulings, because the lower courts failed to do their colorable difference analyses right, you will find out how the appeals court told the lower courts to do the colorable difference analysis, and you will realize the analysis, as the appeals court lectured the lower courts, has nothing to do with the specific mentioning of the patent claim limitations, only the differences between the adjudicated and the accused.

This is exactly what E* had do, to demonstrate the differences, that the old design had the "index table" and "could stop the flow of data", the new design does not have either, here lies the differences. The question the judge must answer is, are those differences more than colorable or not. I say yes, because the two things above were the every reasons E* was found to infringe, therefore the removal of them most certainly makes the differences more than colorable.


----------



## the judge

jacmyoung said:


> Wrong, the whole lesson of KSM is that *in a contempt proceeding*, the similarities and differences must *not* be compared in the context of the patent claims (which is done in an infringement analysis), rather only compared between the old and the new, to determine if the differences are only colorable.


When are you going to understand that this EVIDENTIARY HEARING is going to address *both* colorable differences *and* continuing infringement under the doctrine of equivalents? Ever?


----------



## scooper

the judge said:


> When are you going to understand that this EVIDENTIARY HEARING is going to address *both* colorable differences *and* continuing infringement under the doctrine of equivalents? Ever?


Because it's not - it's going to stop after more than colorable difference is found.

If Tivo thinks Echostar's work around still infringes - then they have to get a new trial - On a greatly reduced '389 patent - that might even be declared invalid before that trial gets started.

If Folsom goes on the continuing infringement under DOE - it will be tossed at Appeal if more than colorable difference is found first.

The Bench should not be doing Tivo's job for them.


----------



## the judge

scooper said:


> Because it's not - it's going to stop after more than colorable difference is found.


Do you have any idea how this whole thing works? Do you actually believe that each side will present their arguments on the colorable differences issue and then Folsom will stop and rule from the bench? And then you say he will stop the hearing he ordered on continuing infringement?

Both sides will present their cases in their entirety on both issues. The Plaintiff will direct, the Defendants will redirect, then vice versa. Each side has a set time to argue. Then they will summarize, and Folsom will go off for days or weeks to think and write up an Order.



scooper said:


> If Tivo thinks Echostar's work around still infringes - then they have to get a new trial - On a greatly reduced '389 patent - that might even be declared invalid before that trial gets started.


Who's going to declare it invalid before the trial starts? Folsom? The USPTO, before Tivo even has an opportunity to reply to the reexam request? Obama maybe? The USPTO will take at least a year reviewing the reexam, and Tivo can make it take years in appeal all the while having an enforceable patent.



scooper said:


> If Folsom goes on the continuing infringement under DOE - it will be tossed at Appeal if more than colorable difference is found first.
> 
> The Bench should not be doing Tivo's job for them.


Dead wrong, and a complete lack of understanding of our legal system.


----------



## jacmyoung

the judge said:


> Do you have any idea how this whole thing works? Do you actually believe that each side will present their arguments on the colorable differences issue and then Folsom will stop and rule from the bench? And then you say he will stop the hearing he ordered on continuing infringement?
> 
> Both sides will present their cases in their entirety on both issues. The Plaintiff will direct, the Defendants will redirect, then vice versa. Each side has a set time to argue. Then they will summarize, and Folsom will go off for days or weeks to think and write up an Order.
> 
> Who's going to declare it invalid before the trial starts? Folsom? The USPTO, before Tivo even has an opportunity to reply to the reexam request? Obama maybe? The USPTO will take at least a year reviewing the reexam, and Tivo can make it take years in appeal all the while having an enforceable patent.
> 
> Dead wrong, and a complete lack of understanding of our legal system.


E* and TiVo will present all that they can, but the judge will first determine colorable difference issue, and if his answer is more than colorable, he cannot find a contempt, therefore must deny TiVo's contempt motion, therefore should not go further.

Can he go further? Yes he has the latitude to do so, but if he goes further, whether he finds an infringement or not, on appeal (by E* or by TiVo or both), the decision on infringement will be tossed out, we have shown you how the appeals court did so before.

Again your so called "dead wrong" is only your "dead belief" without any legal basis, you have yet cited one single case to support your theory, do us a favor and find one for us first. Don't take what TiVo is saying as the law, because we did not take what E* said as the law, we did our part to show what the law actually is.


----------



## jacmyoung

the judge said:


> When are you going to understand that this EVIDENTIARY HEARING is going to address *both* colorable differences *and* continuing infringement under the doctrine of equivalents? Ever?


And BTW don't hold your breadth this is how the hearing will end up with, the judge had made modifications of his hearing several times already, my speculation is E* (and TiVo for that matter) will not rest until they get the kind of hearing they want through motion after motion.


----------



## CuriousMark

Scooper,

If your attempt weren't so biased, it might be a little more believable.



scooper said:


> For summary -
> '389 patent
> 
> PID parser => custom silicon for analysis/indexing => storage => custom silicon to strip out / place in table => display circuits
> 
> New Echostar
> 
> PID Parser => storage => frame count function => display circuits.


Looking at claim 31



> 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;
> 
> providing a source object, wherein said source object extracts video and audio data from said physical data source;
> 
> providing a transform object, wherein said transform object stores and retrieves data streams onto a storage device;
> 
> wherein said source object obtains a buffer from said transform object, said source object converts video data into data streams and fills said buffer with said streams;
> 
> wherein said source object is automatically flow controlled by said transform object;
> 
> providing a sink object, wherein said sink object obtains data stream buffers from said transform object and outputs said streams to a video and audio decoder;
> 
> wherein said decoder converts said streams into display signals and sends said signals to a display;
> 
> wherein said sink object is automatically flow controlled by said transform object;
> 
> providing a control object, wherein said control object receives commands from a user, said commands control the flow of the broadcast data through the system; and
> 
> wherein said control object sends flow command events to said source, transform, and sink objects.


Demodulated transponder stream =>PID parser extracts program to FIFO temporary storage => Source object retrieves data from FIFO under control of transform object => Transform object stores data to HD under control of control object => Transform object reads data from hard drive under control of control object and buffers it => sink object prepares data for display and feeds decoders under control of transform object =>display circuits

Now the new way, but using the patent language so as not to add needless confusion

Demodulated transponder stream => PID parser extracts program to FIFO temporary storage => Source and transform object (DMA) moves data directly from FIFO to HD under control of transform or control object (note 1) => Transform object reads data from the hard drive under control of the control object and buffers it => Transform or sink object creates statistics table for trick play and prepares data for display under control of the transform or control object (note 2) => sink object feeds decoders under control of the transform object => display circuits.

Note 1: While Dish says there is no source object, that is a semantic argument. Something moves that data off of the FIFO to the hard drive. Let's call it a source object for clarity of comparison. IN fact it might be combination of source and transform, but the purpose is the same, get the data out of the FIFO and to the hard drive. So steps were combined here, although Dish portrays it as removing a step.

Note 2: This is a new step. It's purpose is the same as the index table you bring up but is not mentioned in the claim. This new step is a difference.

In this more detailed and hopefully a bit more accurate portrayal, it is NOT clear to me that the differences are more than colorable. This portrayal is still way to high level to be able to make such a determination. At best it shows the issues that will be discussed, but little more.

If anyone reaches a conclusion of more than colorable or merely colorable from either your first portrayal, or the one above, they are stretching.

The whole point of using expert witnesses is to get past the semantic arguments of the lawyers and to the facts of the real hardware and software operation clear of legalese. Many here are arguing the legalese of the briefs, but as arguments, those are not necessary reflective of the actual physical performance of the device. It is the latter that really matters here. So getting hung up on the wording of the legal documents can lead to misunderstandings of what is really going on.

Now I don't believe that this will change your mind or mine about how either of us wishes this will go down, but at least we can try to be as accurate and unbiased as we are able.


----------



## jacmyoung

A decision on colorable difference is reached without addressing the patent claim limitations.

What we have done mostly was infringement analysis, not colorable difference analysis.


----------



## the judge

jacmyoung said:


> E* and TiVo will present all that they can, but the judge will first determine colorable difference issue, and if his answer is more than colorable, he cannot find a contempt, therefore must deny TiVo's contempt motion, therefore should not go further.


Have you ever actually read the injunction? It clearly states "IT IS FURTHER ORDERED THAT Each Defendant...is hereby restrained and enjoined 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.*".

The Order is clear and unambiguous, Echostar is estopped from challenging scope of the injunction, and the District Court has broad authority to enforce its Orders. It is crystal clear that Contempt can be found if Echostar is found "to infringe or induce others to infringe the Infringed Claims".



jacmyoung said:


> Again your so called "dead wrong" is only your "dead belief" without any legal basis, you have yet cited one single case to support your theory, do us a favor and find one for us first. Don't take what TiVo is saying as the law, because we did not take what E* said as the law, we did our part to show what the law actually is.


Again, dead wrong. You have no idea who you're arguing with so don't tell me what my legal basis is of my opinions. And you're dead wrong that I haven't cited cases, and case law, and motions, and briefs and Orders in this case, so go back and read before you spout that nonsense.


----------



## the judge

CuriousMark said:


> Now I don't believe that this will change your mind or mine about how either of us wishes this will go down, but at least we can try to be as accurate and unbiased as we are able.


Thanks Mark, that was probably the clearest explanation of the technical details in an unbiased, non-semanticly abusive way. Nice job.


----------



## the judge

jacmyoung said:


> And BTW don't hold your breadth this is how the hearing will end up with, the judge had made modifications of his hearing several times already, my speculation is E* (and TiVo for that matter) will not rest until they get the kind of hearing they want through motion after motion.


Neither Tivo nor Echostar will get to decide the kind of hearing they want. Are you aware that there is another guy in the room who's job it is to make exactly those decisions? He wears a black robe.

And I won't hold my breadth, by which I assume you mean not to gain any more weight.


----------



## the judge

For those that haven't read KSM lately, here's a nice cite that certainly clarifies Echostar's burden at the upcoming hearing and Folsom's authority to deal with it:

_The preservation of judicial authority requires that "[t]he burden of avoiding infringement at the risk of contempt falls on the one enjoined", Smith Int'l, Inc. v. Hughes Tool Co., 718 F.2d 1573, 1581 n. 8, 219 USPQ 686, 691 n. 8 (Fed.Cir.1983). "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." Calculagraph Co. v. Wilson, 136 Fed. 196, 199 (C.C.D.Mass.1905). Substantial discretion must be permitted to the trial court to determine the extent of further proceedings._


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## jacmyoung

the judge said:


> Have you ever actually read the injunction? It clearly states "IT IS FURTHER ORDERED THAT Each Defendant...is hereby restrained and enjoined 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.*".


Don't change the subject, the next hearing has nothing to do with the above, only the 8 named DVRs. The above is about anything *other than* the 8 named DVRs. Again know what you are talking about else you keep getting off the topic.



> The Order is clear and unambiguous, Echostar is estopped from challenging scope of the injunction,


E* never challenged the injunction nor is E* doing so now, again know what you are talking about, not what TiVo is telling you.



> ...and the District Court has broad authority to enforce its Orders. It is crystal clear that Contempt can be found if Echostar is found "to infringe or induce others to infringe the Infringed Claims".


Again this hearing has nothing to do with ths subjuct.



> Again, dead wrong. You have no idea who you're arguing with so don't tell me what my legal basis is of my opinions. And you're dead wrong that I haven't cited cases, and case law, and motions, and briefs and Orders in this case, so go back and read before you spout that nonsense.


See the above.


----------



## jacmyoung

the judge said:


> Neither Tivo nor Echostar will get to decide the kind of hearing they want. Are you aware that there is another guy in the room who's job it is to make exactly those decisions? He wears a black robe.


E* had already managed to change the "bench trial" to an "evidentiary hearing", and managed to have the "colorable difference analysis" added as the first order of the hearing, and also managed to have the judge add 2.5 more hours to argue about the claim invalidity issue.



> And I won't hold my breadth, by which I assume you mean not to gain any more weight.


Not to turn blue.


----------



## jacmyoung

the judge said:


> For those that haven't read KSM lately, here's a nice cite that certainly clarifies Echostar's burden at the upcoming hearing and Folsom's authority to deal with it:
> 
> _The preservation of judicial authority requires that "[t]he burden of avoiding infringement at the risk of contempt falls on the one enjoined", Smith Int'l, Inc. v. Hughes Tool Co., 718 F.2d 1573, 1581 n. 8, 219 USPQ 686, 691 n. 8 (Fed.Cir.1983). "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." Calculagraph Co. v. Wilson, 136 Fed. 196, 199 (C.C.D.Mass.1905). Substantial discretion must be permitted to the trial court to determine the extent of further proceedings._


What is the point? It did not say the burden of proof, rather the burden of *avoiding infringement* and the risk of such act. Of course the infringer carries the risk of continued infringement if he tries to modify the devices to avoid a contempt, no one is arguing about that.

We are arguing what if the infringer takes on such risk and modifies the devices to avoid infringement, who carries the burden of proof that whether the modifying party is still in violation or not.

BTW, next time, try not to cite anything more than 100 years old. And preferably, try to cite cases post the KSM era, because KSM set the new standard and supersedes all the previous ones.


----------



## James Long

Guys ... try to keep the tone civil or we'll be waiting for the next court document/decision without discussion.


----------



## Greg Bimson

jacmyoung said:


> E* had already managed to change the "bench trial" to an "evidentiary hearing"...


That is actually bad news for DISH/SATS. Now, because this is not a trial, analysis of the patent is off the record.


jacmyoung said:


> ...and managed to have the "colorable difference analysis" added as the first order of the hearing,...


Added as an order of the hearing. The hearing has two components: to find the status of colorable difference and to find the status of infringement.


jacmyoung said:


> ...and also managed to have the judge add 2.5 more hours to argue about the claim invalidity issue.


The judge simply added another two and a half hours to argue. If DISH/SATS tries to argue the patent invalidity issue, then there may be an issue, as TiVo has already motioned to have invalidity stricken from the record.


----------



## the judge

jacmyoung said:



> Don't change the subject, the next hearing has nothing to do with the above, only the 8 named DVRs. The above is about anything *other than* the 8 named DVRs. Again know what you are talking about else you keep getting off the topic.


Dead wrong. The subject of the next hearing is contempt of *this injunction*.



jacmyoung said:


> E* never challenged the injunction nor is E* doing so now, again know what you are talking about, not what TiVo is telling you.


Dead wrong again. Tivo didn't tell me anything, nor did I claim that Echostar was challenging anything. If you can read, I simply stated that Echostar is estopped (do you even know what the word means?) from challenging the injunction.



jacmyoung said:


> Again this hearing has nothing to do with ths subjuct.


And wrong again, it's exactly on topic.


----------



## the judge

jacmyoung said:


> BTW, next time, try not to cite anything more than 100 years old. And preferably, try to cite cases post the KSM era, because KSM set the new standard and supersedes all the previous ones.


*THIS IS KSM!* Unbelievable.


----------



## jacmyoung

the judge said:


> *THIS IS KSM!* Unbelievable.


Which one, the two cases you just cited? No they were pre-KSM.


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## jacmyoung

the judge said:


> Dead wrong. The subject of the next hearing is contempt of *this injunction*.


You cited another part of the injunction which is none of the business this next hearing is trying to address, the hearing will address one thing and one thing only, whether E* had violated the "second order" of this injunction, that is the order to "disable the DVR functionalities" in the 8 named DVRs.



> Dead wrong again. Tivo didn't tell me anything, nor did I claim that Echostar was challenging anything. If you can read, I simply stated that Echostar is estopped (do you even know what the word means?) from challenging the injunction.


I knew perfectly what it means. Now you are saying E* did not try to challenge the scope of the injunction, then why did you even bring that point up in the first place?


----------



## jacmyoung

Greg Bimson said:


> That is actually bad news for DISH/SATS. Now, because this is not a trial, analysis of the patent is off the record.


The fat lady has yet sung, so I suggest we all wait to see what the judge will do next.



> Added as an order of the hearing. The hearing has two components: to find the status of colorable difference and to find the status of infringement.


My point was initially the judge did not want to do any colorable difference analysis, he simply ordered a bench trial to try the infringement. After E*'s objection, he added the colorable difference anaylsis and called it an evidentiary hearing.

The ground is now laid for E*, if the judge finds more than colorable difference, he must find no contempt, if he refuses and still tries to find an infringement and a contempt, E* can now appeal to have that overturned, because once the difference is more than colorable, the contempt motion must be denied.



> The judge simply added another two and a half hours to argue. If DISH/SATS tries to argue the patent invalidity issue, then there may be an issue, as TiVo has already motioned to have invalidity stricken from the record.


We don't know E*'s response yet, and do not know judge's response after that either. All we know at this time is the judge allowed 2.5 more hours for E* to talk about the claim invalidity.


----------



## the judge

jacmyoung said:


> You cited another part of the injunction which is none of the business this next hearing is trying to address, the hearing will address one thing and one thing only, whether E* had violated the "second order" of this injunction, that is the order to "disable the DVR functionalities" in the 8 named DVRs.


You claim that "the hearing will address one thing and one thing only".

But according to Folsom: The Court will hold an additional evidentiary hearing ...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...; and (2) whether these receivers continue to infringe claims 31 and 61...either literally or under the doctrine of equivalents.

Clearly the hearing will address two things and two things only.

Once again you are dead wrong.



jacmyoung said:


> I knew perfectly what it means. Now you are saying E* did not try to challenge the scope of the injunction, then why did you even bring that point up in the first place?


I brought it up to establish that Echostar is foreclosed from trying to argue the validity of the injunction, like they are trying to challenge the validity of the patent.

Although after further reflection, they could still try to argue the validity of the Eastern District of Texas, the validity of the State of Texas itself, the validity of the USPTO, the validity of the United States of America, the validity of democracy and capitalism, the validity of the solar system, the milky way galaxy and the universe. And if that all fails they might argue the validity of space/time itself.


----------



## the judge

jacmyoung said:


> The ground is now laid for E*, if the judge finds more than colorable difference, he must find no contempt, if he refuses and still tries to find an infringement and a contempt, E* can now appeal to have that overturned, because once the difference is more than colorable, the contempt motion must be denied.


What part of the CAFC ruling in KSM where they stated that "Substantial discretion must be permitted to the trial court to determine the extent of further proceedings" do you not understand?

It's almost unbelievable that you are arguing that you are more informed on patent law than Judge Folsom himself, a man who was just appointed Chief Justice of the Eastern District of Texas. For my money, Folsom is the smartest man in the room.


----------



## jacmyoung

the judge said:


> You claim that "the hearing will address one thing and one thing only".
> 
> But according to Folsom: The Court will hold an additional evidentiary hearing ...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...; and (2) whether these receivers continue to infringe claims 31 and 61...either literally or under the doctrine of equivalents.
> 
> Clearly the hearing will address two things and two things only.
> 
> Once again you are dead wrong.


No, both items in the hearing are to address only one thing in the injunction, the second order in the injunction (disabling the DVR functions in the 8 named DVRs), not the other part you quoted.



> I brought it up to establish that Echostar is foreclosed from trying to argue the validity of the injunction, like they are trying to challenge the validity of the patent.


Wrong, while E* may not challenge the scope of the injunction, whether E* may address the validity of the patent is still unknown, please wait to hear from the judge, not just take what TiVo is saying. TiVo said a lot, they still has not gotten anything yet.


----------



## jacmyoung

the judge said:


> What part of the CAFC ruling in KSM where they stated that "Substantial discretion must be permitted to the trial court to determine the extent of further proceedings" do you not understand?
> 
> It's almost unbelievable that you are arguing that you are more informed on patent law than Judge Folsom himself, a man who was just appointed Chief Justice of the Eastern District of Texas. For my money, Folsom is the smartest man in the room.


If I understand you correctly, you are saying that 1983 case you cited was regarding KSM? Well the KSM case we have been talking about was issued in 1985 by the appeals court, which *overturned* the previous KSM decision by the lower court.

Now you know why I told you it is preferable to cite the cases post KSM, meaning post the 1985 KSM ruling by the Federal Circuit?

Besides, what was the point were you making anyway? Of course the district judge is given wide latitude to frame his decisions and his proceedings. My point was, in doing so, Judge Folsom has so far modified his hearing format according to what E* has asked him to:

1) Initially, he ordered a "bench trial", E* objected, saying a "bench trial" was not proper, he could not order a bench trial in a contempt proceeding and he must order a colorable difference analysis instead, later he modified his bench trial to the current "evidentiary hearing" and added the colorable difference analysis as the first order of his hearing.

2) In response to E*'s latest motion, he added 2.5 more hours to allow E* to discuss the TiVo patent invalidity issue.

The above was to dispute your notion that E* nor TiVo could do anything to change the judge's mind, that somehow the judge will do whatever he wishes.


----------



## Greg Bimson

jacmyoung said:


> All we know at this time is the judge allowed 2.5 more hours for E* to talk about the claim invalidity.


No, all we know is Judge Folsom granted another two and a half hours for arguments. We do not know if Judge Folsom will allow a challenge to the validity of the patent.


----------



## Greg Bimson

jacmyoung said:


> No, both items in the hearing are to address only one thing in the injunction, the second order in the injunction (disabling the DVR functions in the 8 named DVRs), not the other part you quoted.


Actually, we don't know that, either. Because TiVo is accusing ALL of the eight models that were originally found infringing, including all of those which have been sold since modifications were made and the injunction became active, the information from this hearing can also make the determination of say, whether or not the 625's currently being sold are infringing and merely colorably different or not.


----------



## the judge

jacmyoung said:


> No, both items in the hearing are to address only one thing in the injunction, the second order in the injunction (disabling the DVR functions in the 8 named DVRs), not the other part you quoted.


The Order portion of the injunction has three parts:

"IT IS THEREFORE ORDERED THAT Plaintiff shall have and recover from Defendants, jointly and severally, the total sum of $73,991,964.00, together with prejudgment interest at the rate of prime, said prejudgment interest in the total sum of $5,367,544.001, together with supplemental damages in the amount of $10,317,108.00, together with post-judgment interest on the entire sum calculated pursuant to 28 U.S.C. § 1961. The amounts awarded in this judgment shall bear interest from the date of judgment at the lawful federal rate."

"IT IS FURTHER ORDERED THAT Each Defendant, its officers, agents, servants, employees and attorneys, and those persons in active concert or participation with them who receive actual notice hereof, are hereby restrained and enjoined, pursuant to 35 U.S.C. § 283 and Fed. R. Civ. P. 65(d), from making, using, offering to sell, selling, or importing in the United States, the Infringing Products, either alone or in combination with any other product and all other products that are only colorably different therefrom in the context of the Infringed Claims, whether individually or in combination with other products or as a part of another product, and from otherwise infringing or inducing others to infringe the Infringed Claims of the' 389 patent."

Defendants are hereby FURTHER ORDERED to, within thirty (30) days of the issuance of this order, disable the DVR functionality (i.e., disable all storage to and playback from a hard disk drive of television data) in all but 192,708 units of the Infringing Products that have been placed with an end user or subscriber. The DVR functionality, i.e., disable all storage to and playback from a hard disk drive of television data) shall not be enabled in any new placements of the Infringing Products.
Defendants shall forthwith provide written notice of this judgment, and the injunction ordered herein, to: their officers, directors, agents, servants, representatives, attorneys, employees, subsidiaries and affiliates, and those persons in active concert or participation with them, including any and all manufacturers, distributors, retailers, and service providers who have been involved in the making, using, selling, offering for sale or importing of any Infringing Products; and to all other persons or entities involved in any way with the making, using, selling, offering for sale or importing of any Infringing Products. Defendants shall take whatever means are necessary or appropriate to ensure that this order is properly complied with."

So there it is, all three parts. Yet you claim that both "items" in the hearing are to address only one thing in the injunction, the second order in the injunction (disabling the DVR functions in the 8 named DVRs).

It goes without saying that you're dead wrong that the "disable the DVR functionality" is in the second order, it's in the third.

And you are dead wrong that the hearing will address only one thing in the injunction. Clearly the hearing will address Order part 2: "making, using...the Infringing Products...and all other products that are only colorably different therefrom in the context of the Infringed Claims...and from otherwise infringing or inducing others to infringe the Infringed Claims of the' 389 patent." *AND* Order Part 3: "within thirty (30) days of the issuance of this order, disable the DVR functionality...in all but 192,708 units of the Infringing Products that have been placed with an end user or subscriber. The DVR functionality...shall not be enabled in any new placements of the Infringing Products.

Looks like you didn't even read it.


----------



## the judge

jacmyoung said:


> The above was to dispute your notion that E* nor TiVo could do anything to change the judge's mind, that somehow the judge will do whatever he wishes.


I didn't say "that Echostar nor Tivo could do anything to change the judge's mind".

I said "Neither Tivo nor Echostar will get to decide the kind of hearing they want."

Do you understand the difference, or do you just want to have inane arguments?


----------



## the judge

jacmyoung said:


> Besides, what was the point were you making anyway? Of course the district judge is given wide latitude to frame his decisions and his proceedings.


Yet yesterday you claimed that:


jacmyoung said:


> E* and TiVo will present all that they can, but the judge will first determine colorable difference issue, and if his answer is more than colorable, he cannot find a contempt, therefore must deny TiVo's contempt motion, therefore should not go further.
> 
> Can he go further? Yes he has the latitude to do so, but if he goes further, whether he finds an infringement or not, on appeal (by E* or by TiVo or both), the decision on infringement will be tossed out, we have shown you how the appeals court did so before.


So today you're agreeing that the district court is given wide latitude to frame his decision and proceedings. But yesterday you said whatever he does if he finds more than colorable differences, any" decision on infringement will be tossed out".

So which it? Wide latitude to frame his decisions or no latitude to frame his decisions? For everyone's sake, pick one and stick with it.


----------



## tracyball

Thanks for everyone's input.

It seems to me that the Judge HAS to determine the infringement status of Echos DVRs both past present and future, in order to do the damage calculation. Could someone address this issue for those of us interested, and inexperienced in the law.

Also, I get the impression that Tivo's strategy is brilliant to "stick to" the simply request for the finding of contempt "on the face", and to resist getting drawn into a game of semantics and technicalities that could weaken their case before the "hearing".

Comments?


----------



## Greg Bimson

tracyball said:


> It seems to me that the Judge HAS to determine the infringement status of Echos DVRs both past present and future, in order to do the damage calculation. Could someone address this issue for those of us interested, and inexperienced in the law.


That is correct.

However, let's throw out some scenarios...

Judge Folsom's original order for additional information regarding contempt mentions nothing about finding the status of colorable difference. It simply was to be a bench trial to find continuing infringement. So it is definite that Judge Folsom felt that the infringement test was key to having the contempt issue draw to a close.

However, because TiVo had asked to find contempt for sales of modified yet still infringing receivers (in TiVo's mind) within both the technical arguments and the damages, colorable difference would have to be determined. Judge Folsom mentioned during the emergency motion filed by DISH/SATS that it was always his intent to test colorable difference.

The following is my opinion: I seem to recall that a few cases where a workaround on enjoined products was available that some judges had mentioned they expected their order to be followed while the workaround was evaluated. In other words, Judge Folsom most likely expected that DISH/SATS would disable the DVR's as listed in his order, until DISH/SATS was able to prove that their workaround no longer infringed. Therefore, I believe that Judge Folsom will find DISH/SATS in contempt for the violation of the injunction on its face. The problem is what Judge Folsom can then order:

DISH/SATS, you did not shut down the receivers like I said. Therefore I'll order you to disable them again.

The problem is specifically that Judge Folsom cannot order a device disabled without testing for infringement (thanks to KSM). So that is why these devices are being evaluated again. If they infringe, they will be ordered disabled again. If not, DISH/SATS may still be in violation of the injunction on its face, but the status of non-infringement will allow those devices to remain in service.


tracyball said:


> Also, I get the impression that Tivo's strategy is brilliant to "stick to" the simply request for the finding of contempt "on the face", and to resist getting drawn into a game of semantics and technicalities that could weaken their case before the "hearing".


I am one of the few here that would say this. TiVo seems to have most, if not all, of their bases covered. Their main argument has been the violation of the injunction on its face. Their next argument is that the modified devices still infringe, and are merely colorably different.

Now they must concentrate on the second argument. The only issue TiVo has had with the evidentiary hearing (besides possibly being a bit deficient on their disclosures) is that DISH/SATS is trying to question the validity of the patent within their expert testimony. The time for patent validity evaluations is during a trial. This is no trial, but an evidentiary hearing, to determine the outcome of a contempt motion using an evaluation of colorable difference and infringement.

TiVo has mentioned a few times the technicality that these devices cannot be "retried" and that the trial and all appeals are "the record of the case" while DISH/SATS attempt to relitigate what is already on record. So TiVo is also trying to use technicalities to have DISH/SATS found in contempt.


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## tracyball

"It seems to me that the Judge HAS to determine the infringement status of Echos DVRs both past present and future, in order to do the damage calculation. Could someone address this issue for those of us interested, and inexperienced in the law."

"That is correct."

So there is no argument from jacy that this is indeed what is going to happen?

The Judge will examine all of Echo's DVRs both past, present, and future, and determine if they infringe or continue to infringe the 389 patent, and use that determination to send the damages bill to Echo?


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## tracyball

by future DVRs I should say I mean a pre-liminary injunction placed upon any new DVRs until they are cleared by the court


----------



## Curtis52

Interesting Federal Circuit ruling in Hallco v. Foster:



> On remand, the district court should compare the Hallco I and the Hallco II, and if it concludes that that the two devices are essentially the same or only colorably different, it should find that Hallco is precluded from challenging validity and infringement. Such a finding would also necessitate a judgment for Foster on the counterclaim, requiring Hallco to pay royalties on the Hallco II, since it is the same as the Hallco I for which the license agreement requires payment. If the district court concludes that the two devices are not essentially the same, and that Hallco is therefore free to challenge validity and infringement, it may then reconsider its determinations regarding validity and infringement, and reinstate those verdicts if it deems such action warranted.


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## Greg Bimson

tracyball said:


> by future DVRs I should say I mean a pre-liminary injunction placed upon any new DVRs until they are cleared by the court


That would not happen for a while. DISH/SATS would have to be found in contempt for making infringing DVR's at least twice. DISH/SATS has yet to be found in contempt (or not).


----------



## Greg Bimson

Curtis52 said:


> Interesting Federal Circuit ruling in Hallco v. Foster


Cool find.

At issue in the Court of Appeals decision is claim preclusion. Within that decision is simply the colorable difference test. If Hallco I and Hallco II were merely colorably different, claim preclusion applies, and of course a finding of merely colorable difference would be a win for Foster.

Of course, applying that here, TiVo would be free to file contempt motions on any of the newer DVR's not subject to this current suit.


----------



## James Long

the judge said:


> The Order portion of the injunction has three parts:


Have you bothered to read the past threads as requested? We all know the injunction ... likely better than you do.

The February 17th-18th hearing is being held to assist Judge Folsom with gathering information to decide a Motion that is before him. That Motion asks Judge Folsom to decide ONE SIMPLE ISSUE ... whether Echostar is in contempt of the injunction for not disabling the DVR functionality.

That's it ... nothing else. There is no other Motion for Contempt in front of the court.



> Looks like you didn't even read it.


That sounds more like an admission than an accusation. We've been over this all before. Do try to keep up.


----------



## James Long

Greg Bimson said:


> tracyball said:
> 
> 
> 
> Also, I get the impression that Tivo's strategy is brilliant to "stick to" the simply request for the finding of contempt "on the face", and to resist getting drawn into a game of semantics and technicalities that could weaken their case before the "hearing".
> 
> 
> 
> I am one of the few here that would say this. TiVo seems to have most, if not all, of their bases covered. Their main argument has been the violation of the injunction on its face. Their next argument is that the modified devices still infringe, and are merely colorably different.
Click to expand...

I wouldn't give Tivo credit for sticking to the "on the face" request. Last May they tried to do everything, laying out the multiple steps, but were stopped by Judge Folsom who decided to take it one step at a time. Tivo had trouble staying on that focus in their filings (always setting up the next step - or drifting ahead of the court).

I can see where DISH would file to keep the February 17th-18th hearing focused on the issue at hand (step 1 - contempt on the face) instead of drifting into further issues (a negative ruling beyond failure to disable would not be good) and why Tivo would file to keep the hearing away from challenging the patent. A ruling against their patent would be devastating.

Neither party wants to lose ... both would accept a win beyond their requests ... but they do not want to lose more than the issue at hand.

The best loss for Tivo would be a simple "they're not in contempt ... DISH obeyed the spirit of the injunction by changing the DVR functionality" without ruling the new functionality non-infringing. A long shot but the "best loss". I expect that if Tivo loses they would lose more.

Just like for DISH ... the best loss for DISH would be being found in contempt based on Walker vs Birmingham and have no ruling on infringement against them. Again a long shot (I don't believe Judge Folsom would waste 15 hours in court and not rule on the infringement issues) but still DISH's "best loss".

It is a weird poker game ... both sides want to win based on more than they bet but not lose any more than they bet.


----------



## jacmyoung

the judge said:


> ...So which it? Wide latitude to frame his decisions or no latitude to frame his decisions? For everyone's sake, pick one and stick with it.


Again if you had listened to our advice and read our past posts, you would have already gotten the answer, rather continued to waste our time to do the answer for you.

The Federal Circuit gives the district court judges wide latitude to frame their orders and proceedings, meaning the appeals court will not inferfere how Judge Folsom conducts his business.

However whatever Judge Folsom's ruling, if the party who is subject to such ruling appeals the ruling on the ground that Judge Folsom has abused his discretion, it will be the Federal Circuit's job to determine if the district court did in fact abuse its discretion or not, if the answer is a yes, the ruling will be overturned by the higher court.


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## jacmyoung

Curtis52 said:


> Interesting Federal Circuit ruling in Hallco v. Foster:


The above ruling you quoted further confirmed what I have said, which has been what the Federal Circuit has been saying since KSM.

In a contempt proceeding, the only thing the court needs to do is to conduct a colorable difference analysis, which is to compare the old devices to the modified devices, and to determine if the differences are only colorable.

If the differences are only colorable, the defendant is in contempt, end of story.

But if the differences are more than colorable, there is no contempt. But why the Court then say the defendant was then allowed to challenge the claim validity? Only because after a no contempt, the plaintiff can still file a *"new action"* to continue to ask the district court to determine if the modified devices are still an infringement or not. In that new action, an infringement analysis will be conducted, and therefore the claim validity can be challenged, because claim validity determination is one of the two steps in an infringement analysis.

In this case, TiVo is trying to do two actions in one shot, and the judge has so far allowed both actions to take place in one hearing. This is actually an abuse of the court's discretion, because the appeals court has said many times, the two actions must be separate, independent of each other.

But at a minimum, if you want to do the two things together, for sake of court economy, then you need to allow E* to challenge TiVo's claim validity.

This is exactly what the judge did, allowing E* another 2.5 hours to challenge TiVo's claim validity. And that was exactly what E* did in its expert disclosures, after the judge gave E* the extra 2.5 hours, to disclose to TiVo that how E* intended to challenge TiVo's claim validity in the hearing.

Of course TiVo did not like that idea, therefore TiVo is motioning the judge to disallow E* from doing the extra 2.5-hour work the judge had just allowed E* to do previously.


----------



## dgordo

Curtis52 said:


> Interesting Federal Circuit ruling in Hallco v. Foster:


And KSM holds that colorable difference is a predicate question in contempt proceedings, but neither KSM nor any other Federal Circuit decision holds that a district court must or even should hold a separate hearing on colorable differences.


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## Greg Bimson

jacmyoung said:


> The above ruling you quoted further confirmed what I have said, which has been what the Federal Circuit has been saying since KSM.
> 
> In a contempt proceeding, the only thing the court needs to do is to conduct a colorable difference analysis, which is to compare the old devices to the modified devices, and to determine if the differences are only colorable.


Uh, _KSM_ states that a device accused of infringement against an injunction against infringements must be evaluated for both its infringement status and its colorable difference status.


jacmyoung said:


> In that new action, an infringement analysis will be conducted, and therefore the claim validity can be challenged, because claim validity determination is one of the two steps in an infringement analysis.


No, this is an evidentiary hearing to determine contempt, and the evaluation is whether or not the devices found infringing are continuing to infringe and the status of the colorable difference between the old and modified devices. And there is plenty of case law to back that up provided by TiVo if you care to read it.


jacmyoung said:


> In this case, TiVo is trying to do two actions in one shot, and the judge has so far allowed both actions to take place in one hearing. This is actually an abuse of the court's discretion, because the appeals court has said many times, the two actions must be separate, independent of each other.


Your opinion, which is incorrect. See above.


jacmyoung said:


> But at a minimum, if you want to do the two things together, for sake of court economy, then you need to allow E* to challenge TiVo's claim validity.


The challenge to the claim validity cannot happen. It is already a basis for the devices found to infringe and a part of this case.


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## the judge

James Long said:


> Have you bothered to read the past threads as requested? We all know the injunction ... likely better than you do.


Well let's see. I just posted the three orders in the injunction, so I must have read it, so you're dead wrong on that attack.

If you believe the injunction has two orders and the second one is the order to shut off the 8 DVRs like jacy, then you are dead wrong again, and you might go back and read it again, or you could read the post you are quoting to attack me (against Forum rules I might add).

So oddly, while I properly corrected jacy's ridiculous claims that "the second order in the injunction (disabling the DVR functions in the 8 named DVRs)" is in fact, the third order, and "that the hearing will address only one thing in the injunction" when in fact it will address two very different things, you have chosen to launch a baseless attack on my response rather than weigh in on jacy's statements. It's bewildering.



James Long said:


> That's it ... nothing else. There is no other Motion for Contempt in front of the court.


At this moment, there are three motions before the Court. One of them is Tivo's Motion for Contempt. Do you have any idea what the other two even are?


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## the judge

jacmyoung said:


> The Federal Circuit gives the district court judges wide latitude to frame their orders and proceedings, meaning the appeals court will not inferfere how Judge Folsom conducts his business.
> 
> However whatever Judge Folsom's ruling, if the party who is subject to such ruling appeals the ruling on the ground that Judge Folsom has abused his discretion, it will be the Federal Circuit's job to determine if the district court did in fact abuse its discretion or not, if the answer is a yes, the ruling will be overturned by the higher court.


Excellent! We finally agree, although it took a little while. Thank you for conceding that it's not true that "if [Folsom] refuses [to find colorable differences] and still tries to find an infringement and a contempt, E* can now appeal to have that overturned, because once the difference is more than colorable, the contempt motion must be denied."

We now agree that Folsom has wide discretion, that Echostar will always have it's right to appeal, but that the appeals court will not automatically deny the motion for contempt. I think this is a breakthrough!


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## James Long

the judge said:


> Well let's see. I just posted the three orders in the injunction, so I must have read it, so you're dead wrong on that attack.


It isn't an attack ... you quoted portions of the injunction. You show no proof of reading the THREADS discussing this issue which is what I specifically referred to. In that, you have failed to prove that you even read the post you responded to ... you just clipped a quote and shouted what you wanted to say. Please read before responding.



> If you believe the injunction has two orders and the second one is the order to shut off the 8 DVRs like jacy, then you are dead wrong again, and you might go back and read it again, or you could read the post you are quoting to attack me (against Forum rules I might add).


I'll leave forum rules to PMs, infractions and the notice one sees when banned. If you have any questions feel free to PM me.

The use of the phrase "dead wrong" is insulting ... especially when you are more wrong than the person you accuse. Please cease immediately. End public warning.



> At this moment, there are three motions before the Court. One of them is Tivo's Motion for Contempt. Do you have any idea what the other two even are?


Yes I do. Neither of them change the February 17th-18th hearing to be any more than I have stated. That hearing is focused on the Motion for Contempt on the face of the injunction and damages during the stay of the injunction. Judge Folsom asked for more information, initially "in the form of a bench trial" (not a bench trial but following that format) but in his clarifying order he removed that term.

Numbering the parts of the injunction is minor problem ... sensible people know what were talking about and are not hung up on minor errors. Claiming that the February 17th-18th hearing is about more than the Motion for Contempt and calculating damages is major. This is where fabrication, falsification and intellectual dishonesty come in. Or not. I'd prefer to talk about what *IS* on the schedule for February 17th-18th rather than what someone's fantasy of what is on the schedule is.

Enough said ... if you are confused as to what the hearing is about you can read the order again. Not just quote it, but read it. Then read the Motion for Contempt that it refers to. Not just quote it, but read it.

Back to topic.


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## the judge

James Long said:


> It isn't an attack ... you quoted portions of the injunction. You show no proof of reading the THREADS discussing this issue which is what I specifically referred to. In that, you have failed to prove that you even read the post you responded to ... you just clipped a quote and shouted what you wanted to say. Please read before responding.


I quoted VERBATIM the Orders contained in the injunction. That trumps the THREADS that yak about what it says.



James Long said:


> I'll leave forum rules to PMs, infractions and the notice one sees when banned. If you have any questions feel free to PM me.


Let's agree that means you will give me a "point" if I disagree with you.



James Long said:


> The use of the phrase "dead wrong" is insulting ... especially when you are more wrong than the person you accuse. Please cease immediately. End public warning.


If you would read the Forum, you would know that "dead wrong" means at least 100% wrong. It's not an insult at that level, it's a fact.



James Long said:


> Enough said... if you are confused as to what the hearing is about you can read the order again. Not just quote it, but read it. Then read the Motion for Contempt that it refers to. Not just quote it, but read it. Back to topic.


So what you're saying is "quoting the Order" offers less credibility than your "regurgitation of the Order" and thereafter offering your baseless, unsubstantiated interpretation of what Folsom "meant to say". I prefer to go with the "facts" of the case. How about we agree to base our arguments on the *facts*? I doubt I'll get an agreement on that.


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## jacmyoung

Greg Bimson said:


> Uh, _KSM_ states that a device accused of infringement against an injunction against infringements must be evaluated for both its infringement status and its colorable difference status...


You need to quote KSM to support the above assertion.


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## James Long

the judge said:


> So what you're saying is "quoting the Order" offers less credibility than your "regurgitation of the Order" and thereafter offering your baseless, unsubstantiated interpretation of what Folsom "meant to say". I prefer to go with the "facts" of the case. How about we agree to base our arguments on the *facts*? I doubt I'll get an agreement on that.


The point is that you are often not reading what you're posting or replying to. The comprehension level is low. You're making statements that in your words would be "totally wrong" and being insulting while making them. We can discuss the topic without those comments.

As long as you understand that the February 17th-18th hearing is about the Motion for Contempt on the face of the injunction you'll do fine. If you don't understand the basics then anything else you say is worth less.

If you have any other comments on the forum or moderation use PMs. Back to topic. Tivo vs Echostar. The actual case.


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## dgordo

All from KSM

"contempt proceedings should be conducted and contempt found where an enjoined device and an accused device were "merely colorably different," and that in order to determine whether two devices are "merely colorably different," the accused device must be compared to the adjudged device under a "doctrine of equivalents":

_f two devices do the same work in substantially the same way, and accomplish substantially the same result, they are the same, even though different in name, form or shape."

"a judgment of contempt against an enjoined party for violation of an injunction against patent infringement by the making, using or selling of a modified device may not be upheld without a finding that the modified device falls within the admitted or adjudicated scope of the claims and is, therefore, an infringement."

"the initial question to be answered in ruling on a motion for contempt is whether contempt proceedings are appropriate. That question is answered by the trial court's judging whether substantial disputed issues must be litigated. The second question, whether an injunction against infringement has been violated, requires, at a minimum, a finding that the accused device is an infringement."_


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## jacmyoung

dgordo said:


> All from KSM
> 
> "contempt proceedings should be conducted and contempt found where an enjoined device and an accused device were "merely colorably different," and that in order to determine whether two devices are "merely colorably different," the accused device must be compared to the adjudged device under a "doctrine of equivalents":


The above describes how "colorable difference analysis" is performed, notice no patent claim limitations are mentioned, only comparing two devices:



> _f two devices do the same work in substantially the same way, and accomplish substantially the same result, they are the same, even though different in name, form or shape."_


_

Again no mentioning of patent infringement issue at all, only to compare how different the two devices.




"a judgment of contempt against an enjoined party for violation of an injunction against patent infringement by the making, using or selling of a modified device may not be upheld without a finding that the modified device falls within the admitted or adjudicated scope of the claims and is, therefore, an infringement."

Click to expand...

This above statement seems to support your assertion, until you realize it is based on first answering the question below:




"*the initial question to be answered* in ruling on a motion for contempt is whether contempt proceedings are appropriate. That question is answered by the trial court's judging whether substantial disputed issues must be litigated.

Click to expand...

If the answer is that substantial disputed issues must be *litigated* (meaning the differences are more than colorable), the contempt proceeding will be *inappropriate*, i.e. the contempt motion will be denied.

However if no substantial disputed issues (meaning the difference is only colorable) must be litigated (meaning a new trial will be unneccessary), then:




The second question, whether an injunction against infringement has been violated, requires, at a minimum, a finding that the accused device is an infringement."

Click to expand...

It takes a lawyer to read the above to make correct sense out of them_


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## James Long

jacmyoung said:


> It takes a lawyer to read the above to make correct sense out of them


Perhaps you should leave it to the lawyers then?


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## Greg Bimson

jacmyoung said:


> The above ruling you quoted further confirmed what I have said, which has been what the Federal Circuit has been saying since KSM.
> 
> In a contempt proceeding, the only thing the court needs to do is to conduct a colorable difference analysis, which is to compare the old devices to the modified devices, and to determine if the differences are only colorable.





Greg Bimson said:


> Uh, KSM states that a device accused of infringement against an injunction against infringements must be evaluated for both its infringement status and its colorable difference status.





> From _KSM_:
> "the initial question to be answered in ruling on a motion for contempt is whether contempt proceedings are appropriate. That question is answered by the trial court's judging whether substantial disputed issues must be litigated. The second question, whether an injunction against infringement has been violated, requires, at a minimum, a finding that the accused device is an infringement."





jacmyoung said:


> It takes a lawyer to read the above to make correct sense out of them


Yes, but it didn't take a lawyer to prove you wrong...


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## the judge

James Long said:


> Neither of them change the February 17th-18th hearing to be any more than I have stated. That hearing is focused on the Motion for Contempt on the face of the injunction and damages during the stay of the injunction. Judge Folsom asked for more information, initially "in the form of a bench trial" (not a bench trial but following that format) but in his clarifying order he removed that term.
> 
> Numbering the parts of the injunction is minor problem ... sensible people know what were talking about and are not hung up on minor errors. Claiming that the February 17th-18th hearing is about more than the Motion for Contempt and calculating damages is major. This is where fabrication, falsification and intellectual dishonesty come in. Or not. I'd prefer to talk about what *IS* on the schedule for February 17th-18th rather than what someone's fantasy of what is on the schedule is.


So we finally agree that jacy's numbering in the injunction order was an error, minor or otherwise it detracted from his credibility.

But now we have two people declaring what the upcoming hearing is about, and both are wrong:

Jacy claims the hearing is "to address only one thing in the injunction, the second order in the injunction (disabling the DVR functions in the 8 named DVRs)." I've shown that to be wrong.

James now claims the "hearing is focused on the Motion for Contempt on the face of the injunction and damages during the stay of the injunction." This too is wrong, as there will be no discussion, argument, debate or even the slightest mention of dollar amounts of damages during the hearing. While Echostar has admitted they owe Tivo at least $16,000,000 more, the focus on damages can not take place until Folsom decides the issues related to continuing infringement and both sides can assess damages from the same starting point.

So we've shown once again that neither jacy nor James know what's going on at this hearing, or their just making it up as they go along to incite argument.


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## jacmyoung

James Long said:


> Perhaps you should leave it to the lawyers then?


That was my point, he is a lawyer, hence the comment, Greg is not a lawyer, I don't blame him for reading it wrong


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## the judge

James Long said:


> Please read the Motion to see what the Motion is asking Judge Folsom to do. Thanks.
> Hopefully after the 15 hours of argument on February 17th-18th Judge Folsom will have enough information to answer all of the questions in the Motion.
> Again? Please read the Motion. An apology will be accepted when you offer it.


It's now clear that you don't understand that the Court determines what it will hear and not the movants. The movants get to ask whatever they want, but the Court gets to decide what will happen and when. So for example while Tivo asked for a few things, the Court said first we'll address the question of infringement (colorable or otherwise). That would make the most sense because you can't calculate damages until you answer that question. And while both Echostar and Tivo have briefed Folsom on damages, they both made different assumptions and it's likely that both will have to go back and brief him again AFTER he makes a ruling on whether there is continued infringement. He will absolutely NOT have "enough information to answer all of the questions in the Motion".

So when you claimed that the "hearing is focused on the Motion for Contempt on the face of the injunction and damages during the stay of the injunction", you guessed it, you were dead wrong.

Here's the entire freakin Order from the Court. If you would be kind enough to show us where this hearing refers to damages I'll apologize. If it doesn't, I hope you are big enough to apologize to us.

O R D E R
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 hearing will be held in Texarkana and begin each morning at 9 a.m.. Each side will have five (5) hours to present its case, excluding time related to opening, closing, and transition statements.

IT IS ORDERED that the following discovery limitations shall apply to this matter.
1. Disclosures. To the extent not already disclosed, by December 9, 2008, each party shall disclose to every other party the following information:
a. the legal theories and, in general, the factual bases of the disclosing party's claims or defenses;
b. the name, address, and telephone number of persons having knowledge of relevant facts, a brief statement of each identified persons' connection with the case, and a brief, fair summary of the substance fo the information known by any such person;
c. for any testifying expert, by the date set by the court below, each party shall disclose to the other party or parties:
i. the expert's name, address, and telephone number;
ii. the subject matter on which the expert will testify;
iii. if the witness is retained or specially employed to provide expert testimony
in this case or whose duties as an employee of the disclosing party regularly involve giving expert testimony:
(a) all documents, tangible things, reports, models, or data compilations that have been provided to, reviewed by, or prepared by or for the expert in anticipation of the expert's testimony; and (b) the disclosures required by Fed. R. Civ. P. 26(a)(2)(B) and Local Rule CV-26;
iv. for all other experts, the general substance of the expert's mental impression and opinions and a brief summary of the basis for them or documents reflecting such information.
2. Additional Disclosures. By December 9, 2008, each party, without awaiting a discovery request, will provide, to the extent not already provided, every other party a copy of all documents, electronically stored information, and tangible things in the possession, custody, or control of the party that are relevant to the above stated matter.
3. Discovery Limitations. In addition to the disclosure listed in Paragraphs 1 and 2 above, the each side may serve 10 interrogatories, 10 requests for admission on the opposing side. In addition, each side may take 15 hours of fact witness depositions and the depositions of experts.
4. Pre-hearing disclosure. Each party shall provide to every other party within 7 days of the trial the following:
a. the name and, if not previously provided, the address and telephone number, of each witness, separately identifying those whom the party expects to call and those whom the party may call if the need arises;
b. the designation of those witnesses whose testimony is expected to be present by means of a deposition and, if not taken stenographically, a transcript of the pertinent portions of the deposition testimony;
c. an appropriate identification of each document or other exhibit, including summaries of other evidence, separately identifying those that the party expect to offer and those which the party may offer if the need arises;
d. an copy of each demonstrative that the party expects to present, separately identifying those that the party expects to present and those which the party may present if the need arises.
5. Duty to Supplement. After disclosure is made pursuant to this order, each party is under a duty to supplement or correct its disclosures immediately if the party obtains information that a disclosure was incomplete or incorrect when made, or is no longer complete or true.
IT IS FURTHER ORDERED that the following deadlines shall apply to this case.
Date Event
December 24, 2008 TiVo's Expert Disclosures Due
January 7, 2009 EchoStar's Expert Disclosures Due
February 10, 2009 Parties' Proposed Findings of Fact and Conclusions of Law due


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## James Long

The MOTION FOR CONTEMPT refers to damages, although not the damages that were discussed (and not decided) at the previous hearing. Damages during the stay ARE still on the table. They were discussed during the last hearing but not decided.

Without knowning WHEN DISH ceased infringing (since DISH claims to have ceased infringing during the stay) the court will need to figure out a timeline as well as set the damages for the during stay period. That is assuming that it is found (by the court) DISH ceased infringing. 

BTW: I mention document A and you quote document C. Reading A would have been a better response.


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## dgordo

jacmyoung

Someone emailed me to let me know that you have responded to one of my posts. I don't know why. I have not and will not respond to any of your posts. Since I have you on ignore I can't see what you said and I like it that way. So I don't know why you are responding to my posts but know that nothing I have said is in response to you.


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## jacmyoung

dgordo said:


> jacmyoung
> 
> Someone emailed me to let me know that you have responded to one of my posts. I don't know why. I have not and will not respond to any of your posts. Since I have you on ignore I can't see what you said and I like it that way. So I don't know why you are responding to my posts but know that nothing I have said is in response to you.


I hope that someone gets this to you as well, if you have problem with how I post, use PM to James or me, not to question me here.

Just because you decided to ignore me, does not give you the right to stop me from responding to you. Because your post quoted KSM, something I asked Greg to do which he has yet to do, so it was most certainly on topic to respond to your KSM quote, if nothing else, to address Greg's issue.


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## jacmyoung

James Long said:


> The MOTION FOR CONTEMPT refers to damages, although not the damages that were discussed (and not decided) at the previous hearing. Damages during the stay ARE still on the table. They were discussed during the last hearing but not decided.
> 
> Without knowning WHEN DISH ceased infringing (since DISH claims to have ceased infringing during the stay) the court will need to figure out a timeline as well as set the damages for the during stay period. That is assuming that it is found (by the court) DISH ceased infringing.
> 
> BTW: I mention document A and you quote document C. Reading A would have been a better response.


The bottom line is, this hearing, as it stands now without any more change, will address two issues:

1) Whether the new software is only colorably different than the old software, and

2) Whether the 8 named DVRs are still infringing the patent, literally or by equivalents.

The outcome of the two above will answer if E* had violated the order to disable the DVR functionalities in these 8 named DVRs.

No more no less. If he refuses to admit it, then either he cannot understand it, or simply refuse to admit wrong.


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## Jason Nipp

Dear God!!

I can't believe how much speculation and bantering can extend the life of a thread.

How do you guys keep the argument going with no events to trigger daily rebuttals? 

Seems like arguments to arguments to me?

Am I incorrect, or am I correct?

Careful how you answer that, I am itching to close the thread until the next actual event occurs to dictate discussion.


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## HobbyTalk

Jason Nipp said:


> Am I incorrect, or am I correct?


You have that wrong. It should be "Am I correct, or incorrect?"

Now, there is your reason to close it


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## Jason Nipp

HobbyTalk said:


> You have that wrong. It should be "Am I correct, or incorrect?"
> 
> Now, there is your reason to close it


 You busted me :lol:


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## nobody99

I'm temporarily decloacking because I sure hate to see someone so blatantly contradict himself :lol:

Saturday's post here



jacmyoung said:


> The ground is now laid for E*, if the judge finds more than colorable difference, he must find no contempt, if he refuses and still tries to find an infringement and a contempt, E* can now appeal to have that overturned, because once the difference is more than colorable, the contempt motion must be denied.


Today's post here 



jacmyoung said:


> The bottom line is, this hearing, as it stands now without any more change, will address two issues:
> 
> 1) Whether the new software is only colorably different than the old software, and
> 2) Whether the 8 named DVRs are still infringing the patent, literally or by equivalents.
> The outcome of the two above will answer if E* had violated the order to disable the DVR functionalities in these 8 named DVRs.


So on Saturday, you said that only colorably difference matters. That's the only thing that matters. Today you said that either colorable difference (#1) or still infringing either literally or by DOE (#2).

So which is it jacy? So how long is your interpretation-of-the-day valid for, two days? Will you change your mind again on Wednesday? Just wondering.


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## Jason Nipp

And having said that....

That seems like a punch to me....

I am locking this thread.

A new one may be opened only after the next real event occurs.

Jason


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## James Long

Agreed ... thanks Jason.


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