# Supreme Court Denies Dish appeal on Tivo Case



## geoff (Jan 3, 2004)

WASHINGTON - The Supreme Court is refusing to disturb a $74 million judgment against Dish Network Corp. for violating a patent held by TiVo Inc. involving digital video recorders.

The justices denied Englewood, Colo.-based Dish's appeal Monday without comment.

Whole article Here: http://news.yahoo.com/s/ap/20081006/ap_en_ot/scotus_tivo_patent_4

Geoff


----------



## Shellback X 23 (Sep 19, 2004)

What is this going to do to my old leased 508 running P407 s/w? Was the new compliant s/w included in downloads or do I have to trade it in?

Inquiring minds want to know!


----------



## Islandguy43 (Oct 2, 2007)

This is just another reason Directv is doing my install on the 14th.


----------



## Curtis52 (Oct 14, 2003)

Shellback X 23 said:


> What is this going to do to my old leased 508 running P407 s/w? Was the new compliant s/w included in downloads or do I have to trade it in?
> 
> Inquiring minds want to know!


The Supreme Court ruling really wasn't about the injunction. The ruling from the district court judge on the failure of Dish to disable the DP-501, DP-508, DP-510, DP-522, DP-625, DP-721, DP-921, and DP-942 is due any time. It may be November before there is a ruling. Whatever the ruling is, there could be an appeal and a stay.


----------



## Link (Feb 2, 2004)

I've never understood what this case is about with Dish and Tivo. When Dish introduced their DVRs, they basically were receivers that could do timer recordings like a VCR, they didn't have name based recording like Tivo, nor did Dish charge their customers a fee for the service. Tivo was far more advanced with name based recording and season pass features, etc.

Does this lawsuit have to do with then Dish introduced their name based recording receivers? Again, I don't see what the big deal is when cable boxes and directv receivers do the same thing now.

Tivo's independent service is too expensive at $12.99 a month when Directv customers were paying $4.99 for it. I've had Tivo and it was ok, but don't really care for their menus, guides, or remote.


----------



## scooper (Apr 22, 2002)

Link - the whole issue is HOW Dish was doing the recording / trick play functions.

If Tivo gets a final, you can bet they will be going after the cable box makers as well.

DirectTv has a licensing agreement with Tivo.


----------



## Curtis52 (Oct 14, 2003)

Press Release	Source: DISH Network Corporation; EchoStar Corporation

DISH Network and EchoStar Statement Regarding Tivo
Monday October 6, 11:33 am ET

ENGLEWOOD, Colo., Oct. 6 /PRNewswire-FirstCall/ -- DISH Network Corporation (Nasdaq: DISH - News) and EchoStar Corporation (Nasdaq: SATS - News) issued the following statement regarding today's ruling by the United States Supreme Court in EchoStar Communications Corporation vs. Tivo:

"As expected, the Supreme Court denied our petition for certiorari today.

The Supreme Court's decision, however, does not impact our software design-around, which has been placed in DISH DVRs subject to the district court's injunction, and our customers can continue using their DISH DVRs. We believe that the design-around does not infringe Tivo's patent and that Tivo's pending motion for contempt should be denied. We look forward to that ruling in the near future.

Because of the Supreme Court's decision, we will pay Tivo approximately $104 million (the amount the jury awarded in 2006 plus interest). The money is in an escrow account and will be released to Tivo in the next few days."


----------



## BrianB (Jul 13, 2003)

Islandguy43 said:


> This is just another reason Directv is doing my install on the 14th.


This has nothing to do with that.


----------



## Curtis0620 (Apr 22, 2002)

Curtis52 said:


> Press Release	Source: DISH Network Corporation; EchoStar Corporation
> 
> DISH Network and EchoStar Statement Regarding Tivo
> Monday October 6, 11:33 am ET
> ...


Strike 1.

Contempt rulling soon.


----------



## James Long (Apr 17, 2003)

Shellback X 23 said:


> What is this going to do to my old leased 508 running P407 s/w?


Absolutely nothing. This is status quo ... the only thing this ruling means is that DISH has reached the end of the road in the original infringement case - the appeals court verdict stands and payment up through 2006 must be made.


----------



## jacmyoung (Sep 9, 2006)

The fact E* stated this SC decision was expected, underscores their determination to go all the way with the contempt proceeding too, even if the lower court issues a contempt ruling. E* "expected" the court reactions.

As I said before, by paying TiVo the money, one and probably the only incentive for E* to have a settlement with TiVo is removed. As long as E* is not in contempt of the injunction, this will be the end of it, there will be no benefit of any license agreement with TiVo, the damage during the stay will be minor compared to the $74 million.

No DVRs will be impacted, not unless there is a contempt and the appeals court upholds the contempt ruling, and again the SC refuses to hear the contempt petition. The whole process will again take a year or so.

But according to all case law, E* will not be in contempt because of the design around.


----------



## James Long (Apr 17, 2003)

jacmyoung said:


> But according to all case law, E* will not be in contempt because of the design around.


Let's stick with reality and not continue the closed 7500 post unending debate.

You are not a lawyer. You are not Judge Folsom. You are not the sole arbitrator of "case law". This thread is on a short leash. Don't make me put that mod hat on.


----------



## Ergan's Toupe (Aug 21, 2008)

jacmyoung said:


> The fact E* stated this SC decision was expected, underscores their determination to go all the way with the contempt proceeding too, even if the lower court issues a contempt ruling. E* "expected" the court reactions.
> 
> As I said before, by paying TiVo the money, one and probably the only incentive for E* to have a settlement with TiVo is removed. As long as E* is not in contempt of the injunction, this will be the end of it, there will be no benefit of any license agreement with TiVo, the damage during the stay will be minor compared to the $74 million.
> 
> ...


This was posted by stkhawk on the IV board.

"With the Supreme Court's refusal to accept Echostar's appeal, this means Judge Folsom's injunction order is now FINAL and is cast in stone. I do not believe it can even be changed by Judge Folsom himself.

In my opinion, Echostar failing to appeal the terms of Judge Folsom's Injunction order was a huge legal mistake. Where in Judge Folsom's injunction order does it allow Echostar to download new software to convert infringing boxes into (allegedly) non-infringing boxes? This issue should have been appealed to the CAFC in my opinion, but Echostar decided not to appeal the terms of the injunction, or inform the court of a potential workaround. If Judge Folsom or the CAFC had known this, they might have adjusted the injunction terms accordingly, but Echostar remained silent.

So now, Echostar faces the enormous risk that Judge Folsom that will find contempt, and simply order Echostar to comply with the terms of the injunction, which they chose NOT to appeal.

And who thinks the Federal Circuit will be sympathetic when Echostar comes crying to them requesting a stay of an injunction order, that Echostar already had a chance to appeal, but did not?

I think Echostar's silence to the courts was a huge mistake which they will end up regretting."


----------



## phrelin (Jan 18, 2007)

James Long said:


> Let's stick with reality and not continue the closed 7500 post unending debate.
> 
> You are not a lawyer. You are not Judge Folsom. You are not the sole arbitrator of "case law". This thread is on a short leash. Don't make me put that mod hat on.


:goodjob:


----------



## jacmyoung (Sep 9, 2006)

Ergan's Toupe;1823201 said:


> This was posted by stkhawk on the IV board.
> 
> "With the Supreme Court's refusal to accept Echostar's appeal, this means Judge Folsom's injunction order is now FINAL and is cast in stone. I do not believe it can even be changed by Judge Folsom himself.
> 
> ...


No need to be sympathetic at all, the injunction needs not changed, because even E* believes the injunction is correct. The SC petition was not about the injunction, the SC did not uphold the injunction, they just did not want to disturb the final judgment.

E* did not petition the SC to hear the injunction, because E* believes the injunction was correct, and they are in full compliance of the injunction.

Whether you beleive E* is correct is your right, when you continue to misquote E* as if E* was wrong for not appealing the injunction, no, E* believes the injunction is correct, let's get that record straight before those analysts or whoever they are to begin analyzing.


----------



## Islandguy43 (Oct 2, 2007)

BrianB said:


> This has nothing to do with that.


Yes it does. I am sick and tired of E* fighting with programers, fighting with equiptment supplies, pulling programing to supposedly save us money, and fighting with their own retailers; instead of catering to their client base.

I am tired of the off shore reps; tired of the canned lines when you ask anyone from dish a question and tired of waiting for programing that the competition offers today.

Charlie and his companies, have forgotten that customer service should be their Number 1 priority, and that is why many of us "stop feeding the cable pig" to come to his service.


----------



## Ergan's Toupe (Aug 21, 2008)

Islandguy43 said:


> Yes it does. I am sick and tired of E* fighting with programers, fighting with equiptment supplies, pulling programing to supposedly save us money, and fighting with their own retailers; instead of catering to their client base.
> 
> Amen.


----------



## Ergan's Toupe (Aug 21, 2008)

jacmyoung said:


> E* did not petition the SC to hear the injunction, because E* believes the injunction was correct, and they are in full compliance of the injunction.
> 
> The injunction that the Appeals Court upheld (and as of today the Supreme court just agreed with) said to shut the boxes off for the life of the patent. Who told them they could turn them back on?


----------



## Ergan's Toupe (Aug 21, 2008)

"DISH Network (DISH) and EchoStar (SATS) issued the following statement regarding today's ruling by the United States Supreme Court in EchoStar Communications Corporation vs. Tivo: "As expected, the Supreme Court denied our petition for certiorari today. The Supreme Court's decision, however, does not impact our software design-around, which has been placed in DISH DVRs subject to the district court's injunction, and our customers can continue using their DISH DVRs. We believe that the design-around does not infringe Tivo's patent and that Tivo's pending motion for contempt should be denied. We look forward to that ruling in the near future. Because of the Supreme Court's decision, we will pay Tivo approx $104 mln (the amount the jury awarded in 2006 plus interest). The money is in an escrow account and will be released to Tivo in the next few days."

"As expected"?

I guess losing 104 million is ok if you "expect" it? :lol: 

What would Charlie have said if the SCOTUS had TAKEN the case? "Well, we were just wasting time and money, you know we totally expected the SCOTUS to tell us to take a hike! Imagine our surprise when we able to con the Supreme court too!! :lol:


----------



## James Long (Apr 17, 2003)

Ergan's Toupe;1823463 said:


> What would Charlie have said if the SCOTUS had TAKEN the case? "Well, we were just wasting time and money, you know we totally expected the SCOTUS to tell us to take a hike!"


They would have said "we are glad to see the Supreme Court take an interest in our case". I expect a lot of things that I don't want to happen.


----------



## Ergan's Toupe (Aug 21, 2008)

James Long said:


> I expect a lot of things that I don't want to happen.


I think Charlie is playing with fire. I agree that it is pointless for him to settle now, but it is going to get really, REALLY UGLY in a couple of weeks.

As much as Charlie would like everyone to believe the SCOTUS decision was "expected" and is no big deal, he has just doubled TIVO's cash. He can spin it anyway he wants he is 104 million dollars poorer today and IMHO will be a lot poorer in a couple of weeks when Folsom upholds his injunction and tells Charlie to shut 3 million DVR's off.

He can (and will) appeal, but he is running out of ways to spin this. If Folsom rules contempt, Charlie better get on his knees and start begging for a stay.

NO STAY = GAME OVER.


----------



## phrelin (Jan 18, 2007)

Surely everyone knows "Charlie" is simply delaying the inevitable so that by the time everything has been resolved at all levels, including the new code, most of the listed receivers will be irrelevant, as non-MPEG4 receivers are on the way out.

Yeah, it will cost some money, but in his case "a billion here, a billion there, and the first thing you know you have some real money".


----------



## Curtis0620 (Apr 22, 2002)

MPEG 2 or 4 has nothing to do with this.


----------



## Ergan's Toupe (Aug 21, 2008)

Curtis0620 said:


> MPEG 2 or 4 has nothing to do with this.


I think that is the first thing we have ever agreed on.


----------



## Greg Bimson (May 5, 2003)

This will probably be my only post on this issue, as I do not want the thread to go off topic. However, the last sentence does put this squarely on topic:


jacmyoung said:


> The SC petition was not about the injunction, the SC did not uphold the injunction, they just did not want to disturb the final judgment.


The petition to SCOTUS was to address any issues in this case up to and including the Final Judgment and Injunction Order. Since SCOTUS did not listen to the case, as was mentioned in the IV board post cited by Ergan's Toupe, "With the Supreme Court's refusal to accept Echostar's appeal, this means Judge Folsom's injunction order is now FINAL and is cast in stone. I do not believe it can even be changed by Judge Folsom himself." Everything relating to this case as of 8 September, 2006, is now off limits.


jacmyoung said:


> Whether you beleive E* is correct is your right, when you continue to misquote E* as if E* was wrong for not appealing the injunction, no, E* believes the injunction is correct, let's get that record straight before those analysts or whoever they are to begin analyzing.


While this sentence is a bit difficult to read, let's get an understanding here:

DISH/SATS is claiming that the injunction is correct and that they are in full compliance with the injunction. Of course, to get the record straight, one has to understand how DISH/SATS is analyzing that they are in compliance...


> Mr. McElhinny: The last thing that i want to address is this argument about the _Walker_ and the, you know, you have to challenge the language of the injunction. That's a circular, nonsensical argument. In order to get there, you have to read your original injunction as having ordered us to take action against noninfringing products. And as you know from _Paice_, as you know directly from the federal circuit, district courts cannot enjoin noninfringing products. So there was nothing erroneous about your order. Your order was exactly right. It was written exactly as the federal circuit tells you to do it to enjoin the use or the continued use of infringing products. But what _KSM_ teaches is you can modify those products such as they are no longer infringing, you are entitled -- unless it's a sham, you are entitled to a trial on the question of whether these new products infringe.


The problem here is that the *receivers* found infringing are still active. A change in the software does not change that the receiver was found infringing. After all, there was never a finding that the software infringed; the jury returned a verdict that four million receivers infringed upon the software claims (claims 31 and 61) of the Time Warp patent.

DISH/SATS is simply trying to argue that the injunction cannot enjoin non-infringing products. The problem is that the injunction can easily be read to enjoin what may now be non-infringing products. And the time to argue that the injunction (which could enjoin non-infringing products) is over-reaching has passed.

Arguing the language within the injunction cannot enjoin non-infringing products is a collateral attack on the injunction. The injunction can no longer be attacked, as everything in the case up to 8 September 2006 is now in stone.


----------



## Ergan's Toupe (Aug 21, 2008)

http://www.tvpredictions.com/dishtivo100608.htm

"Commentary:
Okay, this has gone on long enough. Dish Network and TiVo should settle this thing once for and all. And the way to do that is for Dish to either pay TiVo a licensing fee for its DVR software -- or begin offering TiVo as a DVR alternative service, as DIRECTV plans to do next year. The latter makes more sense and probably will save Dish money in the long run. Dish subscribers could choose Dish's DVR service or TiVo's DVR service when signing up.

By now, it should be clear to even Dish's top executives that they are not going to win this battle in court -- and their contention that its current DVRs are not in patent violation will likely lose, too.

So just settle this thing, guys. Settle it now."

Again, Charlie has gone too far to settle now, but the writing is on the wall.

Now that the SCOTUS has kicked Charlie to the curb, Folsom has all the backing he needs to finally end this soap opera.


----------



## Paul Secic (Dec 16, 2003)

Link said:


> I've never understood what this case is about with Dish and Tivo. When Dish introduced their DVRs, they basically were receivers that could do timer recordings like a VCR, they didn't have name based recording like Tivo, nor did Dish charge their customers a fee for the service. Tivo was far more advanced with name based recording and season pass features, etc.
> 
> Does this lawsuit have to do with then Dish introduced their name based recording receivers? Again, I don't see what the big deal is when cable boxes and directv receivers do the same thing now.
> 
> Tivo's independent service is too expensive at $12.99 a month when Directv customers were paying $4.99 for it. I've had Tivo and it was ok, but don't really care for their menus, guides, or remote.


I agree with you Link. I had a VCR back in 1984. I'm no genius but VCRS & DVRS do the same thing. But you cannot duplicate media from DVRS to DVDS.


----------



## phrelin (Jan 18, 2007)

Ergan's Toupe;1823812 said:


> http://www.tvpredictions.com/dishtivo100608.htm
> 
> "Commentary:
> Okay, this has gone on long enough. Dish Network and TiVo should settle this thing once for and all. And the way to do that is for Dish to either pay TiVo a licensing fee for its DVR software -- or begin offering TiVo as a DVR alternative service, as DIRECTV plans to do next year. The latter makes more sense and probably will save Dish money in the long run. Dish subscribers could choose Dish's DVR service or TiVo's DVR service when signing up.
> ...


Not too aware commentary. "Dish's top executives" are also the top executives of Echostar, you remember them though now they area a company that makes and derives income from selling DVR's to Dish. License fees, perhaps, but TiVo's at Dish, never.


----------



## Ergan's Toupe (Aug 21, 2008)

phrelin said:


> Not too aware commentary. "Dish's top executives" are also the top executives of Echostar, you remember them though now they area a company that makes and derives income from selling DVR's to Dish. License fees, perhaps, but TiVo's at Dish, never.


Not to mention that whole "better than Tivo" thing.... :lol:


----------



## Ergan's Toupe (Aug 21, 2008)

Paul Secic said:


> I'm no genius but VCRS & DVRS do the same thing.


But VCR's DO NOT do the same thing a Tivo does. Actually a VCR can't even do half the things a DVR does. :eek2:


----------



## jacmyoung (Sep 9, 2006)

Greg Bimson said:


> ...Arguing the language within the injunction cannot enjoin non-infringing products is a collateral attack on the injunction. The injunction can no longer be attacked, as everything in the case up to 8 September 2006 is now in stone.


Here is the shocker, it will not be an attack if the judge agrees with him Again according to all case law he was right, the question is whether the judge will agree with him, or agree with TiVo.

Now on this SC case, I think it is bad for TiVo, the timing of it, I know many of you have the opposite view. This decision makes a license agreement less likely because after E* pays the money, there will be little benefit for E* to settle before the next ruling.

To say that now is the time to settle is not knowing what had happened in the past. E* will gain nothing, compared to if they wait for the Judge Folsom's ruling. The mistake to link this SC decision to the anticipated contempt decision is totally wrong.

That is not to say Charlie will not give in and decide to take the worst deal now. Not likely but never say never.


----------



## man_rob (Feb 21, 2007)

*Out of options, DISH finally pays TiVo $104 million judgment*

By Jacqui Cheng | Published: October 06, 2008 - 01:56PM CT

DISH Network parent EchoStar has announced that it plans to pay $104 million to TiVo as part of a long-running legal dispute. DISH and EchoStar have reassured customers, however, that their DVRs will continue to function normally and that the patent-infringement finding would not affect the current DVR software the satellite TV provider is using.

http://arstechnica.com/news.ars/pos...h-finally-pays-tivo-104-million-judgment.html


----------



## peak_reception (Feb 10, 2008)

Curtis0620 said:


> MPEG 2 or 4 has nothing to do with this.





Ergan's Toupe;1823757 said:


> I think that is the first thing we have ever agreed on.


 You've got the wrong Curtis. Think Wizard of Oz: There's the good Curtis, Witch of the East (#0620 -- the one you replied to) and the bad Curtis, Wicked Witch of the West (#52 -- the one who has you on ignore, along with the Wizard, Judge Folsom).

I could reallly have some fun casting more roles but I'll leave it at that. Most of the rest of us are like those little griffins swooping about in the air around the castle trying to guess what comes next. There still might be a role for the Judge as the Cowardly Lion depending on how things turn out.


----------



## Chihuahua (Sep 8, 2007)

Ergan's Toupe;1823379 said:


> Islandguy43 said:
> 
> 
> > Yes it does. I am sick and tired of E* fighting with programers, fighting with equiptment supplies, pulling programing to supposedly save us money, and fighting with their own retailers; instead of catering to their client base.
> ...


----------



## phrelin (Jan 18, 2007)

Curtis0620 said:


> MPEG 2 or 4 has nothing to do with this.





Ergan's Toupe;1823757 said:


> I think that is the first thing we have ever agreed on.


Something odd here. I agree also and I'm the one who said "non-MPEG4 receivers are on the way out" which is also true.

Of course, the significant word was "receivers" and what I meant and said was "most of the listed receivers will be irrelevant" which is also true if enough time drags on.

But yes, the use of MPEG4 and MPEG2 per se don't have anything to do with this. It's just he reason most of the listed receivers are on there way out.

And this silliness is indicative of the reason why I so agree with James Long in post #12 about the other threads with 7,500 posts.

My post and point was about my thought that Charlie will, if he can get away with it, drag this on and on until the listed receivers are irrelevant and DBSTalk will have 15,000 posts on the subject.


----------



## Herdfan (Mar 18, 2006)

Curtis52 said:


> Because of the Supreme Court's decision, we will pay Tivo approximately $104 million (the amount the jury awarded in 2006 plus interest). The money is in an escrow account and will be released to Tivo in the next few days."


What about money for continued infringement from the 2006 date until either 1) now and future, or 2) the date any new software was downloaded assuming DISH wins that argument?


----------



## Ergan's Toupe (Aug 21, 2008)

phrelin said:


> My post and point was about my thought that Charlie will, if he can get away with it, drag this on and on until the listed receivers are irrelevant and DBSTalk will have 15,000 posts on the subject.


I agree with you 100%, except that Charlie really can't drag this on much longer.

Again, there is nothing stopping Folsom from ruling contempt. The SCOTUS just wrote his injunction in stone. Nowhere in that injunction does it say you can turn the boxes back on to download new software. It says turn them off for the life of the patent.

The way I see it is Folsom rules contempt and tells Charlie to shut them off, Charlie asks Folsom for a stay while he appeals, who promptly laughs in his face. Charlie then goes to the exact same court he got his stay from last time, except I don't see how that court is going welcome him back with open arms. They nix the stay and Charlie won't like the stalling, delaying tactics he gets from Tivo when the clock is ticking against him. He will settle before he has to turn the boxes off.

Of course, if he really wants to play hardball, in the meantime Tivo has 104 million reasons to go after the new boxes which would really put Charlie behind the 8 ball.

The way I see it is Folsom rules contempt, Charlie appeals, Folsom denies stay, Court of appeals denies stay, Tivo files suit against the VIP's, DE throws case out, and Charlie finally does what he should have done years (and hundreds of millions of dollars ago), He settles with Tivo thus avoiding dragging the VIP's into this whole mess and avoiding a mass exit to his main competitor.

All my opinion, of course.


----------



## DustoMan (Jul 16, 2005)

Islandguy43 said:


> Yes it does. I am sick and tired of E* fighting with programers, fighting with equiptment supplies, pulling programing to supposedly save us money, and fighting with their own retailers; instead of catering to their client base.
> 
> I am tired of the off shore reps; tired of the canned lines when you ask anyone from dish a question and tired of waiting for programing that the competition offers today.
> 
> Charlie and his companies, have forgotten that customer service should be their Number 1 priority, and that is why many of us "stop feeding the cable pig" to come to his service.


Oh brother.


----------



## Bill R (Dec 20, 2002)

Source: http://www.reuters.com/article/rbssTechMediaTelecomNews/idUSN0639211720081006

_Dish Network Corp and EchoStar Corp will pay $104 million in damages to TiVo Inc after the U.S. Supreme Court on Monday denied Dish's appeal of a patent infringement case.

The court's decision not to review an appellate court's ruling follows years of legal wrangling over TiVo's "Time Warp" software that allows users to record one television program while watching another via a digital video recorder.

"Because of the Supreme Court's decision, we will pay Tivo approximately $104 million (the amount the jury awarded in 2006 plus interest)," Dish said in a statement. "The money is in an escrow account and will be released to Tivo in the next few days."_


----------



## James Long (Apr 17, 2003)

DustoMan said:


> Oh brother.


He has a right to the opinion ... now let's just keep it ON TOPIC ... DISH denied a writ at the Supreme Court. Not a rehash of 7500 other posts that all who have interest have already read and posted ... the current event.

:backtotop


----------



## Bidderman9 (May 23, 2008)

man_rob said:


> *Out of options, DISH finally pays TiVo $104 million judgment*
> 
> By Jacqui Cheng | Published: October 06, 2008 - 01:56PM CT
> 
> ...


$104 Million is not the total bill correct? Isn't that a part of the injunction argument right now? Trying to figure out the remainder of the bill.


----------



## Ergan's Toupe (Aug 21, 2008)

Bidderman9 said:


> $104 Million is not the total bill correct? Isn't that a part of the injunction argument right now? Trying to figure out the remainder of the bill.


Correct. But the good news is that E* and Tivo are close.

Tivo is asking for 220 million and E* is offering 16 million. :grin:

I think these two companies would argue what color the sky is if given the chance. :nono2:


----------



## James Long (Apr 17, 2003)

Bidderman9 said:


> $104 Million is not the total bill correct? Isn't that a part of the injunction argument right now? Trying to figure out the remainder of the bill.


Correct. $104 million is for infringement through 2006. Damages from 2006 through 2008 were part of the September 4th hearing.


----------



## CuriousMark (May 21, 2008)

Bidderman9 said:


> $104 Million is not the total bill correct? Isn't that a part of the injunction argument right now? Trying to figure out the remainder of the bill.


Yes it is. Dish says they owe an additional 16 Million, TiVo says it is 220 Million. Both used assumptions in their calculations that may not hold water. If the supposed non-infringing software is eventually proven to be non-infringing, then that number will be closer to the low end. If the software is proven to infringe or is found to be no more than colorably different than the old software, the number will probably be near the middle or could with continued litigation even exceed the TiVo amount.

Suffice it to say, we won't know that number for quite some time to come.

Of course if Dish and TiVo settle, all bets are off and the amount of the settlement will govern.


----------



## jacmyoung (Sep 9, 2006)

CuriousMark said:


> ...Of course if Dish and TiVo settle, all bets are off and the amount of the settlement will govern.


Of course, but if E* pays the $104 million in a few days, which has been in the escrow account since two years ago, there will be less incentive for E* to want a settlement, until the contempt ruling is final.

Another thing to note, on 9/4, Judge Folsom only laid out one single reason to find E* in contempt, that is if the extent of the E* design around is only colorable. Believe it or not, that is in fact the only reason he cited on 9/4 to find E* in contempt.

You will not be able to find another reason cited by the judge on 9/4 to find E* in contempt, as shocking as it may sound.

This SC decision was expected by pretty much everyone, no one seriously gave E* much chance, not even E* themselves.


----------



## James Long (Apr 17, 2003)

For Reference: Tivo's Statement


> "We are extremely pleased that the United States Supreme Court has denied EchoStar's petition to review the United States Court of Appeals for the Federal Circuit unanimous ruling that upheld the District Court judgment of willful patent infringement, full award of damages, and a permanent injunction against EchoStar's infringing DVR products. We look forward to the expeditious receipt of damages awarded by the District Court covering the period through September 8, 2006 and remain confident that the District Court will enforce the injunction and award further damages from EchoStar's continued infringement of our Time Warp patent."


http://biz.yahoo.com/prnews/081006/aqm080.html?.v=58


----------



## James Long (Apr 17, 2003)

jacmyoung said:


> Another thing to note, on 9/4, Judge Folsom only laid out one single reason to find E* in contempt, that is if the extent of the E* design around is only colorable. Believe it or not, that is in fact the only reason he cited on 9/4 to find E* in contempt.


I choose not ... since I've read the transcript.


> You will not be able to find another reason cited by the judge on 9/4 to find E* in contempt, as shocking as it may sound.


Well YOU may not be able to find another reason to find DISH in contempt ... but that is only because you're hung up on this being an "infringement" case and can't see contempt of the court order in any other light.


----------



## Herdfan (Mar 18, 2006)

jacmyoung said:


> Of course, but if E* pays the $104 million in a few days, which has been in the escrow account since two years ago, there will be less incentive for E* to want a settlement, until the contempt ruling is final.


Somebody correct me if I am wrong, but this money will be released by the court to TiVo and not paid by E*. E* already paid it to the court two years ago.

Seems this would bolster TiVo and give TiVo less incentive to settle, not the other way around.


----------



## Bidderman9 (May 23, 2008)

jacmyoung said:


> Of course, but if E* pays the $104 million in a few days, which has been in the escrow account since two years ago, there will be less incentive for E* to want a settlement, until the contempt ruling is final.


Actually isn't it the opposite? The $104 was paid a long time ago and sitting in an escrow fund. Isn't there an incentive to settle before folsom rules on futher damages? They might come out ahead if they settle before the ruling.


----------



## Bidderman9 (May 23, 2008)

I could be wrong, but wasn't there an interview with Charlie a few months back where he indicated that he might be willing to settle once the Supreme Court ruled on their appeal?


----------



## James Long (Apr 17, 2003)

Herdfan said:


> Somebody correct me if I am wrong, but this money will be released by the court to TiVo and not paid by E*. E* already paid it to the court two years ago.


The money has been in a special account at DISH for the past few years ... recently it was placed in escrow with the winner getting the payout (Tivo if SCOTUS denied the appeal or ruled in Tivo's favor or DISH if they won the appeal). Now someone gets a check. 


Bidderman9 said:


> I could be wrong, but wasn't there an interview with Charlie a few months back where he indicated that he might be willing to settle once the Supreme Court ruled on their appeal?


All I can remember are quite the opposite ... no settlement - Mr Ergen wants to prove that his products do not infringe. That is now limited to current products/currently infringing instead of proving DISH never infringed but a ruling of "no infringement" is still the loudest stated goal.


----------



## Greg Bimson (May 5, 2003)

The $104 million was sitting in an escrow account, for the damages by infringement up to 8 September 2006. That is money already owed to TiVo, per the final judgment issued on 8 September 2006.

The pending damages motion by TiVo only accounts for the period from the time after the final judgment was issued up until the injunction went into full force and effect. Therefore, the term for which TiVo is now requesting *additional* damages is from 9 September 2006 until 18 April 2008.

TiVo is arguing for $220 million during this period, while DISH/SATS is stating they only owe $16 million.

TiVo has broken their $220 million calculation into three parts:
First category: Adjudicated DVR's (TiVo states $55M; DISH states $16M) until the new software implemented; TiVo is including lost profits since they believe they'd sign up new customer if the injunction was not stayed
Second category: $113M - Adjudicated DVR's with new software
Third category: $52M - placements of the new, modified DVR's (remember that TiVo has pointed out that the modified versions of the Infringing Products still infringe, so if Judge Folsom goes the extra mile and determines the modifications still infringe then this is in play)

Within these figures, TiVo is upping their per receiver royalty rate from $1.25 to $2.25 per month; DISH/SATS is simply using the $1.25 royalty rate until the date they changed the software.

And let's remember, none of this includes the period from 19 April 2008 onward (defined as the Contempt Period). If the $2.25 per month royalty is accepted, imagine what it will be if contempt is found. That rate goes much higher, and attorney's fees and court costs would definitely be awarded during the Contempt Period.


----------



## jacmyoung (Sep 9, 2006)

James Long said:


> I choose not ... since I've read the transcript.
> Well YOU may not be able to find another reason to find DISH in contempt ... but that is only because you're hung up on this being an "infringement" case and can't see contempt of the court order in any other light.


You choose not to respond to my post, I asked if anyone could cite another reason the judge said on 9/4 that he might find E* in contempt. The only reason he said he could still find E* in contempt was if the "extent of the design around" was only colorable. That was the only point I was making, you can of course attack other issues I said, but my above post was not about anything other than what he actually said. You did not dispute that fact what he said or not.

I choose to read what the judge said, not what the judge might be thinking, because I am not a mind reader.

There is of course nothing wrong for the TiVo fans to try to read the judge's mind.


----------



## jacmyoung (Sep 9, 2006)

Bidderman9 said:


> I could be wrong, but wasn't there an interview with Charlie a few months back where he indicated that he might be willing to settle once the Supreme Court ruled on their appeal?


He did indicate his willingness to talk to TiVo after a no contempt, and that was before 9/4, which everyone, from TiVo to E*, was expecting a ruling soon after 9/4, if not on 9/4. It was not about the SC case, because at the time it was assumed the contempt decision would come before the SC decision.

Now it turned out the SC decision came before the contempt decision, which was why I said an agreement would be less likely, because when Charlie made his comment, he meant once a no contempt ruling was out, they could talk about a deal where TiVo would let him keep some of the money in the escrow, in exchange for a license agreement. Such scenario appears gone, since E* said they will release the money in a few days.

Now it is of course possible before this "a few days" is over, we might hear an agreement. But I just don't think it is likely.

Just because the money is in the escrow, does not mean E* can no longer have it, TiVo can certainly decide to let E* keep the money, or some of it in exchange for something else.

But that particular chance appears gone. I am not saying there are no other reasons to settle, in fact I can find many other reasons to settle, but from E*'s standpoint, there is simply no advantage I can see to talk to TiVo before the contempt decision is made by Judge Folsom, the $104 million will be gone by then anyway, no need to think about it any longer, just focus on the next ruling for now.


----------



## James Long (Apr 17, 2003)

And so it begins again ... not even 24 hours of thread about the SCOTUS decision. Back to the same old same old.


----------



## nobody99 (May 20, 2008)

jacmyoung said:


> the judge said on 9/4 that he might find E* in contempt. The only reason he said he could still find E* in contempt was if the "extent of the design around" was only colorable.


Can you quote, word for word, where he says this? (hint: I know you can't, but let's play along. As a long-time Red Sox fan, I'm in a good mood tonight. Even better when you consider I'm also a Vikings fan )


----------



## phrelin (Jan 18, 2007)

James Long said:


> And so it begins again ... not even 24 hours of thread about the SCOTUS decision. Back to the same old same old.


Maybe they did start a contest to see who could post the most words on this subject before there is a final decision in 2010? Only they didn't tell you about it. My guess is 15,000 total posts.


----------



## jacmyoung (Sep 9, 2006)

nobody99 said:


> Can you quote, word for word, where he says this? (hint: I know you can't, but let's play along. As a long-time Red Sox fan, I'm in a good mood tonight. Even better when you consider I'm also a Vikings fan )


Sorry not much of a baseball fan nor Football fan, so did not know what you were talking about

But I am not going to fall for that still, it is off topic, go read for yourself.


----------



## HDRoberts (Dec 11, 2007)

Greg Bimson said:


> TiVo is arguing for $220 million during this period, while DISH/SATS is stating they only owe $16 million.
> 
> TiVo has broken their $220 million calculation into three parts:
> First category: Adjudicated DVR's (TiVo states $55M; DISH states $16M) until the new software implemented; TiVo is including lost profits since they believe they'd sign up new customer if the injunction was not stayed
> ...


Number one is a load of crap. Are they so cocky that they honestly believe that everyone who had a Dish DVR would immediately flock to Tivo? I certainly would not.

I'm no lawyer, but how can a judge rule new new software, and worse, new DVRs infringe without a new trial. And I also believe that if there is a new trial, the judge should recuse himself as he has no doubt been influenced by round one.


----------



## Curtis52 (Oct 14, 2003)

HDRoberts said:


> Number one is a load of crap. Are they so cocky that they honestly believe that everyone who had a Dish DVR would immediately flock to Tivo? I certainly would not.


No, only a percentage based on a market penetration rate analysis. Where did you get "everyone"?


----------



## Ergan's Toupe (Aug 21, 2008)

jacmyoung said:


> Just because the money is in the escrow, does not mean E* can no longer have it, TiVo can certainly decide to let E* keep the money, or some of it in exchange for something else.


!rolling


----------



## Ergan's Toupe (Aug 21, 2008)

HDRoberts said:


> I'm no lawyer, but how can a judge rule new new software, and worse, new DVRs infringe without a new trial.


Basically there is no such thing as a "new DVR". The injunction (which was just upheld by the Supreme Court) said to turn the boxes off for the life of the patent. (2015)

It didn't say turn them off for a split second then turn them back on and download new software and make them "new DVR's". They are the very same DVR's that should have been disabled back in April when the stay ran out.

The boxes are still working which means that they are still infringing (not to mention in contempt of court). There already was a trial, E* lost and the SCOTUS just told Charlie to take a hike so there is nothing left to go to trial. That part of this soap opera is over. We are now waiting for the ruling of contempt.


----------



## Ergan's Toupe (Aug 21, 2008)

HDRoberts said:


> Are they so cocky that they honestly believe that everyone who had a Dish DVR would immediately flock to Tivo? I certainly would not.


You can always get one of those awesome DTV boxes....


----------



## nobody99 (May 20, 2008)

> the judge said on 9/4 that he might find E* in contempt. The only reason he said he could still find E* in contempt was if the "extent of the design around" was only colorable.





> But I am not going to fall for that still, it is off topic, go read for yourself.


Well, jacmyoung's finally worn me out with his complete refusal to hold a reasonable debate. Good luck everyone, I'm out of this discussion. I'll be back to gloat after contempt is found :lol:


----------



## HDRoberts (Dec 11, 2007)

Ergan's Toupe;1825461 said:


> Basically there is no such thing as a "new DVR". The injunction (which was just upheld by the Supreme Court) said to turn the boxes off for the life of the patent. (2015)


I was thinking they might be referring to the 622 and 722 when arguing that they deserve money for the placement of new DVRs.


----------



## jacmyoung (Sep 9, 2006)

nobody99 said:


> Well, jacmyoung's finally worn me out with his complete refusal to hold a reasonable debate.


It is unreasonable to insist we continue to talk about something when the subject was already ruled to be off the topic.



> ...Good luck everyone, I'm out of this discussion. I'll be back to gloat after contempt is found :lol:


You did not get to gloat on 6/1, did not get to gloat on 9/5, nor did you get to gloat a few weeks after 9/4, as you predicted a settlement would occur.

But there is always the next time.


----------



## jacmyoung (Sep 9, 2006)

Curtis52 said:


> No, only a percentage based on a market penetration rate analysis. Where did you get "everyone"?


What the judge could not get it was that how in the world TiVo managed to come up with a damage that was three times of what the jury awarded, for a period that was only 1/3 of what the jury had covered, for the exact same number of DVRs. And even the judge under-estimated how bad TiVo's math was, because the jury only awarded TiVo $36 million (or something like that) for the 4 million DVRs, the rest of the $74 million was for those 197,000 units that are no longer in the picture. In another word how in the world did TiVo come up with 6 times of the damage, for a period that was only 1/3 of the period the jury covered, for the same number of the DVRs?

Charlie should be relieved, in a sense now that the SC had set the petition aside and the $104 million will finally be in TiVo's hand, TiVo might be able to hire a few real mathmeticians to do the math right.


----------



## scooper (Apr 22, 2002)

nobody99 said:


> Well, jacmyoung's finally worn me out with his complete refusal to hold a reasonable debate. Good luck everyone, I'm out of this discussion. I'll be back to gloat after contempt is found :lol:


Goodbye forever...


----------



## Ergan's Toupe (Aug 21, 2008)

HDRoberts said:


> I was thinking they might be referring to the 622 and 722 when arguing that they deserve money for the placement of new DVRs.


Those models are not included in the list of infringing models. But if Chuckles keeps playing Russian Roulette and refuses to settle you can bet the house that Tivo will drag those models along with the VIP's into this too.


----------



## Ergan's Toupe (Aug 21, 2008)

scooper said:


> Goodbye forever...


Once again, Folsom is ruling on a contempt charge, not an infringement charge. That was decided already and confirmed all the way to SCOTUS. The injunction that Folsom wrote is now written in stone and probably can't even be changed by Folsom himself.

Charlie was ordered to turn the boxes off for the life of the patent. Since the boxes are still working he ignored a court order. How is this not contempt?


----------



## CuriousMark (May 21, 2008)

HDRoberts said:


> Number one is a load of crap. Are they so cocky that they honestly believe that everyone who had a Dish DVR would immediately flock to Tivo? I certainly would not.


No, their number assumes that a fraction of those people would have shopped for TiVo instead, not all of them. The fraction comes from market research based on similar situations and was provided by a marketing expert. That fact may not change your opinion, but at least you know that they are not expecting everyone, or even close to everyone to have become their customer. Dish's assumption is that NO ONE would have chosen TiVo as an alternative. Do you believe that assumption is any less of a load of crap?


----------



## Greg Bimson (May 5, 2003)

Time to expand on a few mistakes...


HDRoberts said:


> I'm no lawyer, but how can a judge rule new new software, and worse, new DVRs infringe without a new trial.


Simple.

Already in the record for this trial is the claim construction from the Markman hearings, the trial, a guilty verdict regarding infringement by eight models of DVR, and an injunction forbidding ongoing infringement for those models and other models merely colorably different.

So all the judge needs to do is evaluate the difference between the models. If they are really different, then Judge Folsom cannot do anything with them as they are more than colorably different.

Judge Folsom will never rule on the new software, as the "new software" will never be discussed. The receiver with new modifcations will be discussed, but not only the software. The "new software" is what is being discussed in Delaware.


Ergan's Toupe said:


> Basically there is no such thing as a "new DVR". The injunction (which was just upheld by the Supreme Court) said to turn the boxes off for the life of the patent. (2015)


The Time Warp patent expires 30 July 2018, in almost ten years.


HDRoberts said:


> I was thinking they might be referring to the 622 and 722 when arguing that they deserve money for the placement of new DVRs.


Nope. Only the eight models named in the original suit. The "new" here is the new placements of those eight models found infringing, but TiVo is discussing those that never had the old software in the third category of damages.

And let's rememeber that the $100 million that will be paid and the $16-$220 million in dispute right now does not include the any of the ViP series of DVR's.


jacmyoung said:


> I think what the judge could not get it was that how in the world TiVo managed to come up with a damage that was three times of what the jury awarded, for a period that was only 1/3 of what the jury had covered, for the exact same number of DVRs.


The period was from 9 September 2006 to 18 April 2008, a period of 19 months.

The $100 million in damages just awarded by SCOTUS' denial to hear the case is from 8 January 2004 until 8 September 2006, a period of about 32 months.

Costs go up; DISH/SATS raised the rates on their DVR products sometime in 2007, so TiVo can definitely ask for a rate increase in their royalty payment.


jacmyoung said:


> The only reason he (_Judge Folsom_) said he could still find E* in contempt was if the "extent of the design around" was only colorable.


Not really. Because later in the transcript:

Mr. McElhinny: And in defining the middle ground, what the Federal Circuit has told us is that if the nature of the design around is such that it is any kind of a substantial change such that it requires discovery --
Judge Folsom: But you are accepting -- you are basically asking me to accept that with nothing more.

And DISH/SATS did not attempt to move the court to remove the receivers that are within the scope of the injunction. Even if there is a question of infringement now because of the modification, there is no question about the legal status of the receivers: they have been found infringe on the Time Warp patent and are subject to the disable order in the injunction.


----------



## jacmyoung (Sep 9, 2006)

Greg Bimson said:


> ...And DISH/SATS did not attempt to move the court to remove the receivers that are within the scope of the injunction. Even if there is a question of infringement now because of the modification, there is no question about the legal status of the receivers: they have been found infringe on the Time Warp patent and are subject to the disable order in the injunction.


Of course E* did not attempt to remove the receivers, because after the design around they no longer were within the scope of the injunction, you of course disagree, but the judge will tell us if you are correct or not.

I am saying you are wrong, because the standards have said over and over, the infringer can modify the *adjudicated devices* in order to work around the patent. Unless you can somehow tell me how those eight models are not adjudicated devices, then you have no ground to stand to argue that the above standard does not apply to them, whether they are already in the hands of the end users or not, as long as they are adjudicated devices, then the above rule applies, because the above rule says about one thing and one thing only, the *adjudicated devices*, not the adjudicated devices already sold or not.

Remember, the law must be clear as what they may or may not prohibit, if it does not say it does not apply to devices already sold, then it must be interpreted as it did not say so, therefore all *adjudicated devices* must be subject to the above rule, sold or not.

If no contempt, the damages will be calculated up to the point E* changed to the new software, and according to E*, and agreed by TiVo, that it started at the end of 10/06, not 04/08. The judge himself had problem with TiVo's claim that regardless if contempt or not, the damages should cover up to 04/08.

Even if taking your time periods, the question still remains, what kind of math did it allow TiVo to calculate 6 times of the damages for a 19 months period, compared to the damages calculated by the jury, and finalized by the judge, for a 32 months period, for the same number of the DVRs.

Yes the 4 million number of DVRs did not change, some left, some were added, but the total numbers of the 8 models that had been at the end users did not change much.

When the judge asked TiVo how did they come up with such damages, one can say he might be thinking hey was TiVo telling me the jury, and I myself for that matter, did not know how to do our math?

You mean to tell me the price suddenly had gone up 10 times right after the jury awarded TiVo the $36 million for the 4 million DVRs? What kind of water was TiVo's accountants drinking when they did such math?


----------



## jacmyoung (Sep 9, 2006)

The rules for calculating the damages did not change, when the jury calculated the damages, they used the exact same model, considered the percentage of those that could have gone to TiVo, and the rest of the probabilities.

The same rules applied to the second damage period. The only thing the judge said he might consider was to change the unit rate, because he has the power to do so. While he did not say he would raise the rate to what TiVo was asking, but let’s say he will raise the rate from $1.25 to $2.25, as TiVo asked.

And for the 4 million DVRs, and a 19 month period, if my math is right the damages should come to about $35 million, if I am correct the jury awarded about $36 million for a 39 months period at $1.25 per unit. Even if I give you another inch, we call the second period the same 39 months period as the first period, it would still just be $64 million.

Again I ask where did they come up with that $220 million?


----------



## Greg Bimson (May 5, 2003)

jacmyoung said:


> Of course E* did not attempt to remove the receivers, because after the design around they no longer were within the scope of the injunction, you of course disagree, but the judge will tell us if you are correct or not.


And when you find a piece of case law that supports where an adjudicated device in the hands of end users can be modified so it is no longer in the scope of the injunction, then I'll agree with you.

For example, if DISH/SATS did actually disable the DVR functionality of the receivers in question, they would both no longer infringe and still be in the scope of the injunction as compliant. Any functionality restored to those receievers in question is most likely in contempt of the court's order, unless the court says those devices can have their functionality restored.


jacmyoung said:


> And for the 4 million DVRs, and a 19 month period, if my math is right the damages should come to about $35 million, if I am correct the jury awarded about $36 million for a 39 months period at $1.25 per unit.


Umm...

4 million receivers times
$1.25 per month times
19 months

Total is $95 million ALONE for this figure. Move that to $2.25 per month and you get $171 million.

Your math, just like your belief that DISH/SATS is winning easily, is way off.


----------



## ggulch (Jul 25, 2007)

Setting aside the legal wrangling involved in this case, what I'm primarily interested in right now is how this is going to affect the two 622s I have, how I can (or can't) use them, and when?


----------



## phrelin (Jan 18, 2007)

ggulch said:


> Setting aside the legal wrangling involved in this case, what I'm primarily interested in right now is how this is going to affect the two 622s I have, how I can (or can't) use them, and when?


Probably no impact, but we'll know sooner or later, most likely later.


----------



## scooper (Apr 22, 2002)

The case hasn't gotten that far, but probably no effect..


----------



## Greg Bimson (May 5, 2003)

There wouldn't be an effect for some time. However...

If there is a finding of contempt and that the modified receivers incorporating new software infringe, then it is only a matter of time for a settlement.

I think this turkey is far enough along that Dish Network management wouldn't risk their ViP series DVR customers.


----------



## jacmyoung (Sep 9, 2006)

Greg Bimson said:


> And when you find a piece of case law that supports where an adjudicated device in the hands of end users can be modified so it is no longer in the scope of the injunction, then I'll agree with you.
> 
> For example, if DISH/SATS did actually disable the DVR functionality of the receivers in question, they would both no longer infringe and still be in the scope of the injunction as compliant. Any functionality restored to those receievers in question is most likely in contempt of the court's order, unless the court says those devices can have their functionality restored.Umm...


First off you have to understand, in this summary proceeding, it is TiVo who must prove, not E*, that an adjudicated devices already in the field may not be modified. If TiVo cannot find a case law to prove that, E* wins. I know you cannot accept that, but it is actually how the law works, even though I am no lawyer, I did read enough cases to be sure of that. Because from reading all cases, it was clear once there is a design around, the design around must be looked at, no exceptions. TiVo wishes to have an exception, that somehow products already in the field shall not apply, and they have yet found a single case to support that.

I have found two cases, the Footprint2.0 and the egg processing case, both were infringing and in the field, modified while in the field, to avoid contempt.

Again please do not come back tell me oh those cases were different, the court allowed it, or the infiringer made "a series of motions", no, your question was if there were cases where the infringement already in the field was modified to avoid a contempt, that was it, and we have two cases for you, and that is from me who is not a lawyer, and also do not have access to the vast law library, only skimmed on the surface on the Web, to give you two cases.

TiVo has yet found one to demonstrate that the products already in the field are not subject to the same standards established by the higher court. In fact TiVo did not even try to find such case law, they knew there is no such case that said products already in the field may not be modified to avoid a contempt. So the only thing TiVo is betting on is this so called "violation on the face", even when the judge asked, but what if I did not find E* in violation on the face of the order? What did that leave you? No answer to that.



> 4 million receivers times
> $1.25 per month times
> 19 months
> 
> ...


If your math is correct, then 4 million DVRs at $1.25 for 39 months, should be $195 million, why did the jury only award TiVo $36 million, and BTW the judge finalized that award. Are you saying the judge and his jury were both stupid that they did not know how to count?

Before slamming my math, should have thought about that

We are talking straight comparison here, both periods had the same number of DVRs, both used the same cost models and analyses, and both had the same rate, there is simply no logic to say the second period, which followed the first period immediately and with a much shorter time span, somehow may command 6 to 10 times the damage.

But let's me check, no, I do not recall anything earth shaking happened in 10/06, certainly do not recall a 600% to 1000% inflation rate back then.


----------



## Curtis52 (Oct 14, 2003)

jacmyoung said:


> If your math is correct, then 4 million DVRs at $1.25 for 39 months, should be $195 million, why did the jury only award TiVo $36 million, and BTW the judge finalized that award. Are you saying the judge and his jury were both stupid that they did not know how to count?


Dish didn't start the period with 4 million DVRs. Also, the jury didn't start counting a particular model until the patent number was marked on the box.


----------



## jacmyoung (Sep 9, 2006)

Curtis52 said:


> Dish didn't start the period with 4 million DVRs. Also, the jury didn't start counting a particular model until the patent number was marked on the box.


How about you spell out precisely how the $36 million was decided by the jury, and I will do the math for the second period using the same method, and if it turns out the damage is even close to what TiVo had made out, I will personally call Judge Folsom and ask him why did he question TiVo's number on 9/4, when he said he could not figure out how TiVo came up with three times the damages for a much shorter time period


----------



## Curtis52 (Oct 14, 2003)

jacmyoung said:


> How about you spell out precisely how the $36 million was decided by the jury, and I will do the math for the second period using the same method, and if it turns out the damage is even close to what TiVo had made out, I will personally call Judge Folsom and ask him why did he question TiVo's number on 9/4, when he said he could not figure out how TiVo came up with three times the damages for a much shorter time period


I'm still wondering where you got the $36 million. That's incorrect. Anyway, the royalty award was based on $1.25 per DVR per month.


----------



## Ergan's Toupe (Aug 21, 2008)

jacmyoung said:


> And for the 4 million DVRs, and a 19 month period, if my math is right the damages should come to about $35 million, if I am correct the jury awarded about $36 million for a 39 months period at $1.25 per unit. Even if I give you another inch, we call the second period the same 39 months period as the first period, it would still just be $64 million.


Oh, for cripes sake... Well there's ya problem right there!!! :uglyhamme


----------



## James Long (Apr 17, 2003)

Greg Bimson said:


> If there is a finding of contempt and that the modified receivers incorporating new software infringe, then it is only a matter of time for a settlement.


That is two ifs and only one question has been put before Judge Folsom ... unless he decides to jump ahead and rule on the new software without discovery (very unlikely) DISH is only looking at contempt. The only question would be how big the slap on the wrist will be for not following the court's order.

Tivo has not filed a motion to find DISH in contempt of infringing the patent with the alleged new software. Tivo filed a motion to find DISH in contempt for not obeying the injunction.



jacmyoung said:


> Because from reading all cases, it was clear once there is a design around, the design around must be looked at, no exceptions.


We're not to that point. The current pending ruling in Texas is all about disobedience, not about design or infringement. (Delaware is about a new product that DISH would like declared non-infringing.)


----------



## jacmyoung (Sep 9, 2006)

Curtis52 said:


> I'm still wondering where you got the $36 million. That's incorrect. Anyway, the royalty award was based on $1.25 per DVR per month.


What is your number then? The total was $74 million, and a big part of it was for the 197,000 units. Only the other part was for the 4 million DVRs.

The judge had big problem with TiVo coming up with three times of the $74 million for damages in the stay period which was much shorter than the jury and the judge's awarded period, and BTW only a part of that $74 million accounted for the same damages we are talking about now.

I know you know the numbers much better than I do, why not tell us.


----------



## jacmyoung (Sep 9, 2006)

James Long said:


> ...We're not to that point. The current pending ruling in Texas is all about disobedience, not about design or infringement. (Delaware is about a new product that DISH would like declared non-infringing.)


Yes, and again according to all my readings of the past relevant cases, if the infringer no longer infringed, he was in compliance, no longer a question of disobeying any more. Yes, it did not matter what the order said any more.

Infringement is the sin qua non of a violation of an injunction on infringement, without infringement, a violation of an injunction on infringement simply is not possible.

Mere violation of the injunction is not enough, infringement must also be found...

I can go on but I know we are going circular on this one.


----------



## James Long (Apr 17, 2003)

From the Final Judgement/Injunction:
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.​
The initial $73,991,964.00 was calculated by the jury ... $32,663,906 for lost profits on 192,708 units TiVos didn't sell and $41,328,058 for reasonable royalty on 4,179,253 receivers.


----------



## jacmyoung (Sep 9, 2006)

James Long said:


> From the Final Judgement/Injunction:
> 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.​
> The initial $73,991,964.00 was calculated by the jury ... $32,663,906 for lost profits on 192,708 units TiVos didn't sell and $41,328,058 for reasonable royalty on 4,179,253 receivers.


Thank you, it is $41 million not $36 million then. Not changing the picture much though.


----------



## farmdog (Jan 24, 2004)

Sorry if this is a stupid question, but I have a 522 and I see that it is covered by the injunction. If I upgrade to a 722, which does not appear to be included in the injunction am I good to go? Is the 722 something that has been released since the original trial and could be added to the injunction later? Just exploring options here to keep my DVR service should this all go down hill for E.


----------



## James Long (Apr 17, 2003)

In order to expand the injunction to cover additional models, Tivo would have to demonstrate that those models are "only colorably different" from the named models or run through an entire new case against those receivers. At best (for Tivo) an "only colorably different" ruling wouldn't be made until next year (courts are slow). More likely even longer. If anything is ever shut off it will be named models first ... but the likelyhood of any shut off (other than the normal process of receivers becoming obsolete) ... not likely.

There are too many other choices than DISH actually disabling receivers.


----------



## CuriousMark (May 21, 2008)

James Long said:


> ... unless he decides to jump ahead and rule on the new software without discovery (very unlikely) DISH is only looking at contempt. The only question would be how big the slap on the wrist will be for not following the court's order.
> 
> Tivo has not filed a motion to find DISH in contempt of infringing the patent with the alleged new software. Tivo filed a motion to find DISH in contempt for not obeying the injunction.
> 
> We're not to that point. The current pending ruling in Texas is all about disobedience, not about design or infringement. (Delaware is about a new product that DISH would like declared non-infringing.)


At the hearing the judge asked Dish if they had provided enough information for him to decide colorability without further discovery or expert testimony and they said yes. TiVo said they didn't agree as I recall. (I am not quoting, just going from memory so I could be off)

So it sounds like perhaps the judge was thinking about the possibility of doing both based on the information at hand. If he does, he would have to do it very carefully. If he finds it not more than colorably different, I think TiVo would not object to a finding of contempt even though they had previously said full discovery and expert testimony is required. Dish would have to backpedal on their agreeing that he could do this in their appeal, which would be interesting to see.

Anyway, this path is not out of the realm of possibility, although your points make it clear it may be unlikely.


----------



## Bidderman9 (May 23, 2008)

jacmyoung said:


> But that particular chance appears gone. I am not saying there are no other reasons to settle, in fact I can find many other reasons to settle, but from E*'s standpoint, there is simply no advantage I can see to talk to TiVo before the contempt decision is made by Judge Folsom, the $104 million will be gone by then anyway, no need to think about it any longer, just focus on the next ruling for now.


Couldn't the reason to settle be the additional money due Tivo from Sept 06 to present day? Potentially that sum of money could be significantly larger than the $104 Million. I am not saying that TiVo is going to be granted their request of $200+ million, but at least there is that potential. Just based upon the potential alone, isn't that worth the negotiation? The inital $104 was already spent (in escrow). I am not so sure that the next $100 - $200 will be so easy to come by. Also, now that the apeal process is final, won't there be additional legal fees on top of the disputed licensing fees? Once again, just more reason to negotiate a settlement.


----------



## Greg Bimson (May 5, 2003)

Here we go again...


jacmyoung said:


> First off you have to understand, in this summary proceeding, it is TiVo who must prove, not E*, that an adjudicated devices already in the field may not be modified.


Wrong. You have to understand that TiVo only has to prove disobedience of the order. If DISH/SATS can cite sufficient case law that the products which were found infringing in customers' hands subject to a disable order can be left with their functionality intact, then that is a defense.

And again, there hasn't been one citation of case law from the DISH/SATS legal team that meets the above requirement.

Then again, TiVo did find case law that a valid injunction must be followed. And in this case it has not been.


jacmyoung said:


> I have found two cases, the Footprint2.0 and the egg processing case, both were infringing and in the field, modified while in the field, to avoid contempt.


In the "Footprint 2.0" case, the offending product was removed. Meanwhile, when you tell me how a customer which has "infringing eggs" in their refrigerator had them modified, I'll let you know.

I won't even bother with the damages amounts, as Curtis52 is correct. The damages in the case started from the date the lawsuit was filed, on 8 January 2004. There weren't four million DVRs in service at that time.


Greg Bimson said:


> If there is a finding of contempt and that the modified receivers incorporating new software infringe, then it is only a matter of time for a settlement.





James Long said:


> That is two ifs and only one question has been put before Judge Folsom ... unless he decides to jump ahead and rule on the new software without discovery (very unlikely) DISH is only looking at contempt. The only question would be how big the slap on the wrist will be for not following the court's order.
> 
> Tivo has not filed a motion to find DISH in contempt of infringing the patent with the alleged new software. Tivo filed a motion to find DISH in contempt for not obeying the injunction.





CuriousMark said:


> At the hearing the judge asked Dish if they had provided enough information for him to decide colorability without further discovery or expert testimony and they said yes. TiVo said they didn't agree as I recall. (I am not quoting, just going from memory so I could be off)
> 
> So it sounds like perhaps the judge was thinking about the possibility of doing both based on the information at hand. If he does, he would have to do it very carefully. If he finds it not more than colorably different, I think TiVo would not object to a finding of contempt even though they had previously said full discovery and expert testimony is required. Dish would have to backpedal on their agreeing that he could do this in their appeal, which would be interesting to see.
> 
> Anyway, this path is not out of the realm of possibility, although your points make it clear it may be unlikely.





> From TiVo's response to DISH/SATS opposition on motion for contempt:
> 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. *The Court is well within its discretion to find EchoStar in contempt on this ground as well.* Stryker Corp. v. Davol Inc., 234 F.3d 1252, 1260 (Fed. Cir. 2000) (decision to proceed via contempt reviewed for abuse of discretion).


The request to find contempt on the new software is right there. I agree the possibility is slim, but the mistake here is that if the information given still produces an evaluation regarding infringement, DISH/SATS may have opened up a door they wish to keep shut.

TiVo didn't argue about this. They wanted the back door to be left alone. It was precisely after DISH/SATS counsel laid out that the modification must be evaluated that the rebuttal came back, and Judge Folsom asked TiVo counsel whether or not they agree with DISH/SATS position. TiVo only responded that they disagree with the position DISH/SATS had taken. Judge Folsom then questioned what TiVo's next step would be if the court denied the contempt motion on the condition the modification must be evaluated.


----------



## tommiet (Dec 29, 2005)

Islandguy43 said:


> This is just another reason Directv is doing my install on the 14th.


Is this your high school team?

Crying over missing sports.... Waaaaaaaaaaaaaa


----------



## farmdog (Jan 24, 2004)

James Long said:


> In order to expand the injunction to cover additional models, Tivo would have to demonstrate that those models are "only colorably different" from the named models or run through an entire new case against those receivers. At best (for Tivo) an "only colorably different" ruling wouldn't be made until next year (courts are slow). More likely even longer. If anything is ever shut off it will be named models first ... but the likelyhood of any shut off (other than the normal process of receivers becoming obsolete) ... not likely.
> 
> There are too many other choices than DISH actually disabling receivers.


Just to be clear - the 722 is not currently covered and if I upgrade it is even less likely that this model will be shut off than my 522? So all I have to do to make this go away is upgrade to a 722? If it is that easy, why doesn't Dish just roll out a bunch of new "non-named" receivers, charge every DVR customer $100 upgrade charge (who among us would not pay $100 to keep their DVR), and be done with all this.


----------



## Islandguy43 (Oct 2, 2007)

tommiet said:


> Is this your high school team?
> 
> Crying over missing sports.... Waaaaaaaaaaaaaa


I wouldn't expect you to know anything about hockey, when you can't wear your wife beater and carry a can a bud into the arena.:grin:


----------



## Greg Bimson (May 5, 2003)

farmdog said:


> Just to be clear - the 722 is not currently covered and if I upgrade it is even less likely that this model will be shut off than my 522? So all I have to do to make this go away is upgrade to a 722? If it is that easy, why doesn't Dish just roll out a bunch of new "non-named" receivers, charge every DVR customer $100 upgrade charge (who among us would not pay $100 to keep their DVR), and be done with all this.


Because there will be plenty of people that don't want to give up what they have...

The issue isn't that DISH "just roll out a bunch of new non-named receivers", because with the software upgrades to the infringing models, they are only selling non-named receivers. The issue here is the just over 3 million receivers still in use which were found infringing in April of 2006.

I'm pretty sure DISH doesn't have 3 million DVR's lying around to replace those receivers. And even assuming the receiver and labor to remove the old receivers, that would cost at least $450 million to do the swap (assuming $150 per receiver for cost and labor).


----------



## farmdog (Jan 24, 2004)

Greg Bimson said:


> Because there will be plenty of people that don't want to give up what they have...
> 
> The issue isn't that DISH "just roll out a bunch of new non-named receivers", because with the software upgrades to the infringing models, they are only selling non-named receivers. The issue here is the just over 3 million receivers still in use which were found infringing in April of 2006.
> 
> I'm pretty sure DISH doesn't have 3 million DVR's lying around to replace those receivers. And even assuming the receiver and labor to remove the old receivers, that would cost at least $450 million to do the swap (assuming $150 per receiver for cost and labor).


I'm sorry, I got a bit off topic on my last post. I guess my real question is, if I upgrade to a 722 (and commit to the 2 year contract that goes along with the Dishin it up promo) am I good to go? Meaning am I highly likely to have DVR service through the life of my commitment to Dish?


----------



## Greg Bimson (May 5, 2003)

farmdog said:


> I'm sorry, I got a bit off topic on my last post. I guess my real question is, if I upgrade to a 722 (and commit to the 2 year contract that goes along with the Dishin it up promo) am I good to go? Meaning am I highly likely to have DVR service through the life of my commitment to Dish?


You should be. It will take a few steps for TiVo to even have a chance to have the 722 disabled.


----------



## farmdog (Jan 24, 2004)

Greg Bimson said:


> You should be. It will take a few steps for TiVo to even have a chance to have the 722 disabled.


Thank you Greg. Much appreciated.

Anybody agree or disagree with this strategy (just upgrade from the named 522 to an unnamed 722) to get around the possibility of having my DVR shut off? The $75 charge seems to me like a small price to pay for the peace of mind. Not to mention I get a bigger hard drive and an HD reciever which I was planning to get once my locals were available in HD (supposedly soon, but that is a rant for another thread).


----------



## Ergan's Toupe (Aug 21, 2008)

I've been assuming that Charlie is going to appeal a contempt charge if Folsom rules that way.

The more I'm thinking about it though something doesn't make sense....

What exactly is Charlie going to appeal? On what grounds? Can someone even appeal contempt?

I'm thinking if I get a traffic ticket I can go to court and tell the judge to go "F" himself. If he holds me in contempt and sentences me to a day in jail, I can appeal it? I can just walk out of the courtroom?


----------



## Ergan's Toupe (Aug 21, 2008)

farmdog said:


> Thank you Greg. Much appreciated.
> 
> Anybody agree or disagree with this strategy (just upgrade from the named 522 to an unnamed 722) to get around the possibility of having my DVR shut off? The $75 charge seems to me like a small price to pay for the peace of mind. Not to mention I get a bigger hard drive and an HD reciever which I was planning to get once my locals were available in HD (supposedly soon, but that is a rant for another thread).


Makes sense if you don't mind signing a two year contract. If you switched to DTV you would have to sign a two year contract anyway.

And it will take years for Tivo to get around to shutting off the 722's and VIP's if they get shut off at all.


----------



## Greg Bimson (May 5, 2003)

Ergan's Toupe said:


> What exactly is Charlie going to appeal? On what grounds? Can someone even appeal contempt?
> 
> I'm thinking if I get a traffic ticket I can go to court and tell the judge to go "F" himself. If he holds me in contempt and sentences me to a day in jail, I can appeal it? I can just walk out of the courtroom?


Hard to appeal that, because it is the standard for that type of contempt is disresepcting the court.

The question here is standards. Yes, contempt rulings are appealable. KSM is one such appeal.

So the question in an appeal is if standards are met. If contempt is granted, it will be because the use of KSM as a standard is ignored, so DISH would appeal. If contempt is denied, it will be because somehow KSM was applied to this contempt motion, and TiVo would appeal because that standard (IMO) should not be considered.


----------



## James Long (Apr 17, 2003)

farmdog said:


> Thank you Greg. Much appreciated.
> 
> Anybody agree or disagree with this strategy (just upgrade from the named 522 to an unnamed 722) to get around the possibility of having my DVR shut off? The $75 charge seems to me like a small price to pay for the peace of mind. Not to mention I get a bigger hard drive and an HD reciever which I was planning to get once my locals were available in HD (supposedly soon, but that is a rant for another thread).


I wouldn't worry about the 522 ... but yes, worst case scenario (for DISH) it will be much longer before a 722 is shut off than a 522. Personally, if I were you, I'd only upgrade if I wanted the 722 for other reasons.


----------



## jacmyoung (Sep 9, 2006)

Bidderman9 said:


> Couldn't the reason to settle be the additional money due Tivo from Sept 06 to present day? Potentially that sum of money could be significantly larger than the $104 Million. I am not saying that TiVo is going to be granted their request of $200+ million, but at least there is that potential. Just based upon the potential alone, isn't that worth the negotiation? The inital $104 was already spent (in escrow). I am not so sure that the next $100 - $200 will be so easy to come by. Also, now that the apeal process is final, won't there be additional legal fees on top of the disputed licensing fees? Once again, just more reason to negotiate a settlement.


Very valid question, it depends on how confident E* is about their design around.

Keep in mind no matter what TiVo is saying, as long as E* is confident based on all case law that the "extent of the design around", as the judge put it himself on 9/4, is the key, then only E* can know for sure if the "extent of the design around" is solidly in the "more than colorable" category. If so, E* has no fear, even if the judge says but we still need a discovery, it will make little difference.

E* is apparently ready to pay $16 million more, though as the judge said, is a minimum. But as long as E* is confident they are not in contempt, the damages will not be too much higher, even if the judge uses the $2.25 rate, beause E* will only have to pay up to the time the new software replaced the old, and that process started in 10/06, as all parties agreed. Keep in mind 10/06 was only a month after 9/06, which was the end of the last damage period assessed by the jury.

Is there still reason to settle? Of course, in my view, even if E* is not in contempt and does not have to pay any more damages, there is still reason to work with TiVo, but the problem is TiVo will not settle for anything less than the maximum, therefore only a no contempt will even the field.

That was why I said at this point there is no benefit to settle, the $104 million as a reason for settlement, is now off the table after the SC decision.

And I will say it again why E* should be confident the judge will look at the design around, because if you had read the 9/4 transcript, you would agree the only reason stated by the judge to find E* in contempt, was if the extent of the design around was not meaningful, or in E* lawyer's word, as sham, or to put it appropriately by the judge, only colorable.

Many other questions by the judge also pointed to that direction, when he *repeatedly* asked TiVo's lawyers what if E* is not in violation on the face of his order, what did that leave you? He also was very troubled by TiVo's dismissal of KSM, if you only read his questioning on that issue you will agree. Because no matter what TiVo wants to tell us, the fact is KSM is the standard of which *all* comtempt cases are based on when design around is an issue, no exception. I have not read a single such case where KSM was not used as the guide. TiVo is trying to tell the judge this case is exceptional and KSM shall not apply, but the problem is the judge in the past had already told TiVo this case was not exceptional, when he denied TiVo's treble and attorney fee requests.

And he was most certainly also very troubled by TiVo's math on the damages, and not only because the amount is as he stated, three times (in reality it should be 5.4 times as I demonstrated above, but the judge only used the total $74 million for comparison, not the $41 million) higher than what the jury's, and therefore his assessment how much TiVo should be awarded for the same 4 million DVRs during a much longer time period.

And not only that, but he also asked how TiVo could think E* must pay the damages after 10/06, even if he found E* not in contempt after E*'s design around started in 10/06.

All the above questions were what the judge actually said in the hearing, they offer E* a look at the judge's frame of mind at that time. Of course the TiVo people simply dismiss any of those judge's questioning as he was trying to appear to play fair. TiVo's people would rather imagine what the judge was really thinking but just did not say it, like what the judge was really thinking was to agree with TiVo 100%.

As I said TiVo can certainly choose to think for the judge, and E* can read what the judge actually said, and each is trying to guess what the judge will likely do accordingly.

There is risk on each side for how they guess what the judge might do based on what he said on 9/4 or what he did not say. You can decide if you are a betting person which side you like to put the money on

And when you do so, please also consider all the case law, and higher court's standards established for such occasion too. I will not bore you with listing them again, but only to point out, all the things I listed above what the judge actuall said on 9/4 in his court room, if you consider his frame of mind based on those questions he asked, you will realize those questions were perfectly in line with the standard views by the higher court, on how the design around must be judged in a contempt setting.

Now again armed with the information, consider yourself a betting man, trying to decide where to put your money on how the judge might rule. It is your call.


----------



## farmdog (Jan 24, 2004)

James Long said:


> I wouldn't worry about the 522 ... but yes, worst case scenario (for DISH) it will be much longer before a 722 is shut off than a 522. Personally, if I were you, I'd only upgrade if I wanted the 722 for other reasons.


Thank you James. I have been planning to upgrade to the 722 for the HD, but have been waiting for my locals in HD and for this Tivo stuff to get sorted out. Didn't want to get wrapped up in a 2 year agreement on the 722 and then lose my DVR a few months later. Since I now understand that the 722 is not covered by this lawsuit, it seems that to err on the side of caution, upgrading to the 722 a few months early is a no brainer.


----------



## Herdfan (Mar 18, 2006)

jacmyoung said:


> Keep in mind no matter what TiVo is saying, as long as E* is confident based on all case law that the "extent of the design around", as the judge put it himself on 9/4, is the key, then only E* can know for sure if the "extent of the design around" is solidly in the "more than colorable" category.


For once I agree with you.

However, given all that has transpired so far, how is E* doing in regards to its thoughts and beliefs? Not very well.


----------



## James Long (Apr 17, 2003)

Ergan's Toupe;1827476 said:


> What exactly is Charlie going to appeal? On what grounds? Can someone even appeal contempt?


I'm sure the lawyers will find some reason to appeal ... probably "misapplication of standards" or failure to apply any mentioned case in the ruling. (Another reason why it takes time fo a ruling, the judge has to cover all the bases ... "I have considered KSM and ..." "I have considered Walker and ..." . Anything he doesn't consider or applies in a non-standard way is grounds for appeal. 


> I'm thinking if I get a traffic ticket I can go to court and tell the judge to go "F" himself. If he holds me in contempt and sentences me to a day in jail, I can appeal it? I can just walk out of the courtroom?


It depends on the judge and the rules of the court. If there is a rule that allows immediate incarceration then you're going to jail. You can be held without charges in most jurisdictions (for a limited amount of time). You could appeal under whatever law holds you. The result may turn out to be an "oops, sorry" long after the day has passed.

The rules are different in this kind of case but I do agree with the line of thinking ... contempt of court being the closest to what DISH is being accused of. The court has made a reasonable order ... disable the DVRs ruled infringing. Instead of protesting that order DISH apparently disobeyed it. They showed contempt of the court. In your example there is likely a court rule about decorum that you violated with the way you addressed the judge. Perhaps if you protested that rule via the legal system you would be able to get around the rule (perhaps using free speech rights) and use the language of choice. But by simply ignoring the rule you are showing contempt for the court and contempt for the court process.

Walker is the Supreme Court example of where contempt of the court process can lead. Dr MLK was right in knowing that the law he didn't follow was unconstitutional. Dr MLK was wrong in the way he handled the problem. Dr MLK was found in contempt and said contempt was upheld because of his contempt of the court process. That's the biggest risk facing DISH Network ... that they could be found in contempt of the process regardless of current infringement.

Contempt or not does not immediately clear the infringement issue nor set it in stone.


----------



## jacmyoung (Sep 9, 2006)

Herdfan said:


> For once I agree with you.
> 
> However, given all that has transpired so far, how is E* doing in regards to its thoughts and beliefs? Not very well.


Well thank you, and I hope I am finally on a winning streak with you here as far as gaining your approval so my response is:

First let's make one thing clear, "all that has transpired so far" was only the first game which TiVo should have won two years ago.

Now yes you are correct about your second half of the statement if you are not a poker player.

But if you are a betting person, one thing you know is the odds of each game is the same, the outcome of the previous game has absolutely no bearing on the odds of your next game.

And if you are a poker player and you believe you have the bast hand this time, yet somehow you were thinking hey TiVo turned out having the upper hand in the last game so let's just fold and give TiVo whatever they want this time.

Then you are not a poker player. Agreed?

Now whether Charlie is a poker player or not may be debatable, even though most people agree he is one, in fact he was a poker player before he got in this business.

But if he folds now, he should not have been playing in the first place. Not that there is anything wrong with that, I personally know some people who had given up their poker habit before, but not in between the games though But hey if Charlie decides to given up his habit in between the games that is fine with me too.


----------



## dfd (Aug 29, 2008)

jac,

No Contempt and more than colorably different do not equate to not infringing but rather the possibility of a new trial. If E* does prevail on both points do you think Tivo will just take their $ and walk away? Wouldn't they be even more interested in using some of this new money to go double or nothing with E*?

E* losing their SC appeal did not strengthen their position but rather their opponent's. Tivo with more money and a track record of cleaning E*'s clock is why E* would consider settling.

What I would like to know is if E*'s attorneys are advising then that, 'we can win the next one' or is it Charlie insisting upon fighting despite all the previous losses.

d


----------



## dfd (Aug 29, 2008)

jacmyoung said:


> But if you are a betting person, one thing you know is the odds of each game is the same, the outcome of the previous game has absolutely no bearing on the odds of your next game.


Not true.

The odds of a coin coming up heads or tails has nothing to do with the past.

The odds of winning a poker hand are very much tied to the poker player, not just the cards. Those guys with bracelets aren't just lucky.

If I were a betting man I'd bet on poker player with a winning record or in this case the legal team continues to prevail.


----------



## phrelin (Jan 18, 2007)

James Long said:


> That's the biggest risk facing DISH Network ... that they could be found in contempt of the process regardless of current infringement.
> 
> Contempt or not does not immediately clear the infringement issue nor set it in stone.


That clearly describes the situation.

(1) The big immediate issue is what the judge is going to do with Dish's failure to comply with his order and, absent something like the judge ordering the execution of Charlie, realizing that the appeals courts are going to be loath to interfere with his decision and are likely to reject any appeals. The only important question is will he shutoff the listed boxes which he could, but might not, order. Since money isn't a problem for Charlie, a shutoff order would be the most punitive by throwing Dish into chaos in the middle of a national economic crisis forcing Charlie to settle with TiVo or face shareholder class action lawsuits. It's what I'd do if I were the judge.

(2) Some court is going to have to resolve the new software issue if TiVo and Dish can't settle and which is going to involve alot of money for legal system, alot of technical information, and a trial or hearings, at the conclusion of which will come more appeals.

There, I've added to the count towards 15,000 posts.


----------



## Greg Bimson (May 5, 2003)

phrelin said:


> (2) Some court is going to have to resolve the new software issue if TiVo and Dish can't settle and which is going to involve alot of money for legal system, alot of technical information, and a trial or hearings, at the conclusion of which will come more appeals.


As there are many different things going on at the same time, it is apparent that if TiVo does manage to get rulings to corner DISH/SATS into disabling the DVR's, DISH/SATS would be stuck in a corner, and seconds away from falling like Kimbo Slice.

At that point, only one party will dictate the terms of a settlement. And I can guarantee it won't be pretty. For example, TiVo would most likely demand ALL DVR's are to be licensed (including all never before the court) and a dismissal of all litigation between the two companies.

Nothing like arguing so hard that you allow the other party to dictate the negotiation, but that is the track this litigation is heading.


----------



## Ergan's Toupe (Aug 21, 2008)

James Long said:


> Walker is the Supreme Court example of where contempt of the court process can lead. Dr MLK was right in knowing that the law he didn't follow was unconstitutional. Dr MLK was wrong in the way he handled the problem. Dr MLK was found in contempt and said contempt was upheld because of his contempt of the court process. That's the biggest risk facing DISH Network ... that they could be found in contempt of the process regardless of current infringement.


Charlie should be held in contempt just for the simple fact that he has been gaming the system for going on 5 years now.

I have no doubt now that Chuckles will be held in contempt. It really is the only way Folsom can rule. How can anyone think Charlie followed the court order to shut the boxes down for the life of the patent?

I also have no doubt that Charlie will get his day in court to argue the workaround but not until the named boxes have long gone dark. Unless of course, he gets a stay, but that would be a total kick in the pants for Tivo.

Charlie already got one stay, I don't see the same court falling for his BS a second time.

Plus what exactly would Charlie base his request for a stay on? Can you get a stay for a contempt charge?


----------



## scooper (Apr 22, 2002)

phrelin said:


> That clearly describes the situation.
> 
> (1) The big immediate issue is what the judge is going to do with Dish's failure to comply with his order and, absent something like the judge ordering the execution of Charlie, realizing that the appeals courts are going to be loath to interfere with his decision and are likely to reject any appeals. The only important question is will he shutoff the listed boxes which he could, but might not, order. Since money isn't a problem for Charlie, a shutoff order would be the most punitive by throwing Dish into chaos in the middle of a national economic crisis forcing Charlie to settle with TiVo or face shareholder class action lawsuits. It's what I'd do if I were the judge.
> 
> ...


Shareholder classaction lawsuit will not do any good in this situation - Charlie, his wife, and Jim deFranco hold 90%+ of the voting shares of Echostar / Dish.
Better rethink that one...


----------



## Greg Bimson (May 5, 2003)

Ergan's Toupe said:


> Charlie already got one stay, I don't see the same court falling for his BS a second time.
> 
> Plus what exactly would Charlie base his request for a stay on? Can you get a stay for a contempt charge?


If the contempt motion is granted, Judge Folsom will issue another order, this time ordering DISH/SATS to comply with the injunction, most likely within seven days.

DISH/SATS is counting on a stay of that order, which Judge Folsom stated if there is an order he more than likely wouldn't stay it. So that stay would have to come from the Court of Appeals.

The question is if contempt is granted will the Court of Appeals stay the order?


----------



## Curtis52 (Oct 14, 2003)

Dish-TiVo Partnership Seen As Spat Winds Down >TIVO DISH Last update: 10/8/2008 3:25:41 PM
By Ben Charny and Roger Cheng 
Of DOW JONES NEWSWIRES 
SAN FRANCISCO (Dow Jones)--With four years of litigation between TiVo Inc. (TIVO) and Dish Network Corp. (DISH) winding down, the relationship between the companies might be entering a less-contentious phase: partnership. 
Earlier this week, the U.S. Supreme Court refused to hear an appeal of a 2006 verdict that found Dish had infringed on several of TiVo's patents. The high court's decision effectively ended an original lawsuit filed against Dish by Alviso, Calif.-based TiVo in 2004. 
With the lawsuit behind them, the two companies will now figure out a way to work together, many analysts say. They say the two companies have complementary technology that could enhance their respective business models. 
"We continue to believe the case could lead to a licensing deal with Dish," noted BMO Capital Markets analyst Leland Westerfield, who holds an outperform rating on Tivo shares and a $20 price target. He doesn't rate Dish. 
A deal would likely focus on licensing TiVo's recording technology, which allows users to record programs and watch them at their leisure, to Dish. That would help Dish market its satellite television service, which is falling behind competitors including DirecTV Group Inc. (DTV). It would also give TiVo access to the Englewood, Colo.-based company's 13.7 million subscribers, possibly opening a new and large stream of revenue. 
TiVo and Dish representatives declined to comment for this report. But TiVo executives have previously suggested the company, which is in the midst of changing its business model to one stressing partnerships rather than direct sales, would consider some sort of deal with Dish. 
etc.


----------



## jacmyoung (Sep 9, 2006)

dfd said:


> ...No Contempt and more than colorably different do not equate to not infringing but rather the possibility of a new trial. If E* does prevail on both points do you think Tivo will just take their $ and walk away? Wouldn't they be even more interested in using some of this new money to go double or nothing with E*?...


Maybe, maybe not, it all depends on the judge's ruling, in making the ruling, while the judge may not rule that the design around is no longer infringing, he will rule on how many substantial open issues have been raised by the design around, and based on the strength of the issues the judge will decide, TiVo will make their decision what to do next. In another word, as a poker player, TiVo must look at the next round of house cards to determine what will be its next move.



dfd said:


> Not true.
> 
> The odds of a coin coming up heads or tails has nothing to do with the past.
> 
> ...


I also want to make another thing clear if I have not done so, it is not really which player do you want to bet on, or who do I want to bet on, rather consider yourself as a poker player, yes you have lost the last game, any yes you realize now you have the best hand, do you quit just because you did not have the best hand last time?

Of course you can bet on TiVo to win the next game because they won the last one, even if E* might have the best hand this time, why? Because you are not a poker player. You are only an observer who is trying to bet on who you like to bet on, not who has the best hand.

So as I speak to you as a non poker player, my question to you should be, Charlie has been a poker player all his life, as a result of his poker playing he is now one of the richest persons in the world, yes he lost a few games lately, in fact he has lost a whole bunch and is much poorer in the last few months. He also won a few too, you know so far this year he has actually done well in the courts, he got a no contempt on the distant case, he got the judge to deny VOOM's injunction request after he removed all VOOM channels. And of course he has won a lot games before (otherwise how do you think he has become a billionare?), and of course he also lost many before, it is part of poker playing.

Now you are looking at him and Rogers, two poker players, yes Rogers has won the last round, but Charlie has made himself a whole lot of money playing all this years. The question is are you going to bet against him just because he lost the last round? It is your call.

I have no problem whichever the way you bet, as long as you realize you are not a poker player, only an observer who is betting on who is the best player. I just hope you do not consider Rogers the best player based on just the last round he won. That is not to say Rogers is a bad poker face though, he may be a very good one too. But what you cannot say is Charlie is a bad poker face, his record says otherwise.


----------



## jacmyoung (Sep 9, 2006)

Curtis52 said:


> Dish-TiVo Partnership Seen As Spat Winds Down >TIVO DISH Last update: 10/8/2008 3:25:41 PM
> By Ben Charny and Roger Cheng
> Of DOW JONES NEWSWIRES
> SAN FRANCISCO (Dow Jones)--With four years of litigation between TiVo Inc. (TIVO) and Dish Network Corp. (DISH) winding down, the relationship between the companies might be entering a less-contentious phase: partnership.
> ...


As I said it is possible a settlement can be reached, but only if it benefits E* too, such as TiVo lets E* keep some of the $104 million in exchange of a meaningful (as not like the one with D* or with Comcast, just for show) license agreement.

I don't see it happening at this time, but never say never.


----------



## phrelin (Jan 18, 2007)

scooper said:


> Shareholder classaction lawsuit will not do any good in this situation - Charlie, his wife, and Jim deFranco hold 90%+ of the voting shares of Echostar / Dish.
> Better rethink that one...


My point was simply that if the judge is feeling rather punitive he could order an immediate shutdown of the listed boxes which include the 501, 508, 510, 522, 625, 721, 921 and the 942. The 721, 921, and 942 are being replaced by Dish, and for many customers replaced with the other listed models.

If the judge did order the shutdown with no stay and the appeals courts refused to hear an appeal offering no stays, Dish would face having to either:

settle with TiVo or 
comply with the order facing
a potential subscriber revolt and 
Dish stock becoming a penny stock in this market situation, unless Charlie buys up the remaining stock and takes the company private to avoid a settlement with TiVo.

And if I were the judge, I would issue such an order.


----------



## scooper (Apr 22, 2002)

I would think LONG AND HARD if I wanted to be the target of the next Oklahoma City before I ordered that ....


----------



## phrelin (Jan 18, 2007)

scooper said:


> I would think LONG AND HARD if I wanted to be the target of the next Oklahoma City before I ordered that ....


Nah, we Dish subscribers are pacifists.


----------



## Ergan's Toupe (Aug 21, 2008)

Greg Bimson said:


> If the contempt motion is granted, Judge Folsom will issue another order, this time ordering DISH/SATS to comply with the injunction, most likely within seven days.
> 
> DISH/SATS is counting on a stay of that order, which Judge Folsom stated if there is an order he more than likely wouldn't stay it. So that stay would have to come from the Court of Appeals.
> 
> The question is if contempt is granted will the Court of Appeals stay the order?


This very injunction has already been in front of the Court of Appeals who upheld it in it's entirety. Why would they decide to look at it again? Why should they? What has changed? I find it hard to believe they will give Chuckles a stay. They already went down that road. I doubt they are going to be as sympathetic this time around.

Charlie may have a right to an appeal, but he doesn't have the right to a stay.

And no stay=game over.


----------



## Ergan's Toupe (Aug 21, 2008)

phrelin said:


> Nah, we Dish subscribers are pacifists.


I thought you guys were gluttons for punishment. :grin:


----------



## James Long (Apr 17, 2003)

Ergan's Toupe;1828001 said:


> Charlie should be held in contempt just for the simple fact that he has been gaming the system for going on 5 years now.


Nothing that DISH Network has done in this case is illegal. Do you really want to punish DISH for something that isn't a crime? If so, it pretty much ends the potential for rational discussion.


> Plus what exactly would Charlie base his request for a stay on? Can you get a stay for a contempt charge?


Yes ... stays are often issued. Judge Folsom could issue a stay if he wished (although he has indicated that isn't likely). The appeals court could also issue a stay (as they did on the injunction itself, which Judge Folsom refused to stay in 2006).


----------



## James Long (Apr 17, 2003)

jacmyoung said:


> As I said it is possible a settlement can be reached, but only if it benefits E* too, such as TiVo lets E* keep some of the $104 million in exchange of a meaningful (as not like the one with D* or with Comcast, just for show) license agreement.


TiVo "letting DISH keep" any of the $104 million?

Sorry, I'll have to get back to you with a reply. I'm too busy laughing my arse off at the thought of TiVo letting DISH have anything that isn't a larger bill than that already presented. TiVo would probably settle for DISH paying them $104 million every six months in royalties. There is no way they would accept less than full payment for the penalties already awarded.


----------



## Greg Bimson (May 5, 2003)

Ergan's Toupe said:


> This very injunction has already been in front of the Court of Appeals who upheld it in it's entirety. Why would they decide to look at it again? Why should they? What has changed? I find it hard to believe they will give Chuckles a stay. They already went down that road. I doubt they are going to be as sympathetic this time around.
> 
> Charlie may have a right to an appeal, but he doesn't have the right to a stay.
> 
> And no stay=game over.


It isn't the injunction that the Court of Appeals would review. It would be the order Judge Folsom signs if contempt is granted. The order will give a specified amount of days for DISH/SATS to comply with the injunction if contempt is granted.

What would be reviewed would be the finding of contempt. There is a difference.


scooper said:


> I would think LONG AND HARD if I wanted to be the target of the next Oklahoma City before I ordered that ....


That's a bit vicious, isn't it?

I mean, a judge would knowingly ignore law for fear of his own safety? And comparing it to one of the worst acts of American terrorism as a statement upon government intrusion to one where a party simply breaks a law?


----------



## phrelin (Jan 18, 2007)

Ergan's Toupe;1828201 said:


> I thought you guys were gluttons for punishment. :grin:


Yeah, masochists all.:sure:


----------



## James Long (Apr 17, 2003)

Ergan's Toupe;1828194 said:


> And no stay=game over.


No stay=DISH remains in contempt until the appeal is heard and resolved.

Tivo will just file another complaint with the court that DISH didn't follow the court's orders. Unless someone is planning on raiding DISH's headquarters and forcing the techs to send the "shutdown code" (perhaps armed marshals with guns) DISH remains in firm control over their DVRs.

There will be a penalty for remaining in contempt (if DISH is found in contempt) but that penalty is just a cost. DISH will decide whether or not the cost is a "reasonable" cost of continuing business and act accordingly. Balancing further penalties that could be waved if they win an appeal against potential customer losses if a real shutdown occured.

But we're way ahead of reality here. At last check Judge Folsom has not ruled. No need to worry about DVR shutdowns or courthouse bombings.


----------



## Herdfan (Mar 18, 2006)

scooper said:


> Shareholder classaction lawsuit will not do any good in this situation - Charlie, his wife, and Jim deFranco hold 90%+ of the voting shares of Echostar / Dish.
> Better rethink that one...


That is just voting stock. There are lots of Class A shareholders who can and would sue. There are 318 institutional holders with a value today of around $3.3B with the stock at a 52-week low. I would guess they don't want to see their shares go any lower based on Charlie's ego.


----------



## Herdfan (Mar 18, 2006)

James Long said:


> There will be a penalty for remaining in contempt (if DISH is found in contempt) but that penalty is just a cost.


Folsom can put the execs in jail if he chooses.


----------



## phrelin (Jan 18, 2007)

Herdfan said:


> Folsom can put the execs in jail if he chooses.


That would be interesting.


----------



## Greg Bimson (May 5, 2003)

James Long said:


> There will be a penalty for remaining in contempt (if DISH is found in contempt) but that penalty is just a cost. DISH will decide whether or not the cost is a "reasonable" cost of continuing business and act accordingly.


And that is one of the reasons I keep stating DISH/SATS should settle. Whenever, they should. But the longer they wait, the more it will cost. For example:

2004 January - 2006 September: $1.25 per receiver per month (paid shortly)

2006 September - 2008 April: TiVo wants $2.25 per receiver per month; DISH/SATS only agrees to $1.25 per receiver per month. If TiVo gets their way and contempt is granted...

2008 May - 2008 November: TiVo will ask for an even higher rate during contempt
2008 December onward: If DISH/SATS ignores the order from Judge Folsom to comply with the injunction, ANOTHER even higher rate

And this doesn't even count ANY of the ViP series of receivers, of which there was a software change, most likely to take them out of infringement, but using the same modified software that TiVo claims still infringes.

So of course TiVo will simply say the starting point for a settlement and a royalty is the last amount granted by the court. So even the settlement will get more expensive as this drags on.

Yes, DISH/SATS may have a good shot in the Delaware court, depending how the arguments are structured for the motion to dismiss that suit. But it is risky...


----------



## James Long (Apr 17, 2003)

Greg Bimson said:


> .... TiVo wants ...
> ... TiVo will ask ...
> ... TiVo claims ...


Fortunately for DISH Tivo isn't guaranteed to get what they ask for nor is it guaranteed their claims will be granted.

The penalty Tivo has asked for is to have the named receivers shut down within 10 days. They have stated that they want to be able to name the financial penalty after contempt is found.

(The current money squabble is over infringement from 2006 through early 2008. Not infringement since the injunction took effect nor contempt.)


----------



## Ergan's Toupe (Aug 21, 2008)

Greg Bimson said:


> It isn't the injunction that the Court of Appeals would review. It would be the order Judge Folsom signs if contempt is granted. The order will give a specified amount of days for DISH/SATS to comply with the injunction if contempt is granted.
> 
> What would be reviewed would be the finding of contempt.


I understand what you are saying, but why would the Court of Appeals stay a contempt charge for disregarding an injunction that has already been reviewed by said court?

The COA is going to look at the injunction and do what? Change their mind?

I would think the line of reasoning would go something like, you were found in contempt for disregarding a court order. Dish will claim that they no longer infringe because of a "design around". They cant possibly claim that they obeyed the injunction. But this ruling has nothing to do with a "design around" It is about disobeying a court order to shut the boxes off.

Again, Lets say I go to court to fight a speeding ticket. I tell the judge that not only am I not going to pay the ticket but I think your wife is ugly too. When the judge finds me in contempt, I appeal. I then go before a higher judge and explain to the Appellate Judge that I can't be in contempt because I wasn't speeding. :grin:


----------



## Ergan's Toupe (Aug 21, 2008)

Herdfan said:


> I would guess they don't want to see their shares go any lower based on Charlie's ego.


Ego? I thought he was just "stubborn" :lol:


----------



## Ergan's Toupe (Aug 21, 2008)

phrelin said:


> That would be interesting.


I love a good "perp walk"


----------



## jacmyoung (Sep 9, 2006)

James Long said:


> ... I'm too busy laughing my arse off at the thought of TiVo letting DISH have anything that isn't a larger bill than that already presented. ...


I don't know if you will continue to laugh if a no contempt ruling is down? TiVo's luck will end. The stake is much higher for TiVo than E* on the outcome of the ruling. E* will live for another day either way.

Think about it, if no contempt, even if you are correct the judge will then look at the design around, it should be fairly easy to say TiVo will need a new suit to go after the new design around. Yes TiVo may keep the $104 million, but how much of that good news has in tha past few days really excited the investors?

A meaningful long term license agreement with E* will far out-weight the $104 million in the long term.

On the other hand, my point was if TiVo does not compromise any, why would E* settle at this juncture? That was really the point of my last post. As long as E* is confident their new design around is no longer infringing.


----------



## Ergan's Toupe (Aug 21, 2008)

James Long said:


> There will be a penalty for remaining in contempt (if DISH is found in contempt) but that penalty is just a cost. DISH will decide whether or not the cost is a "reasonable" cost of continuing business and act accordingly. Balancing further penalties that could be waved if they win an appeal against potential customer losses if a real shutdown occured.


Do you think Charlie is really "stubborn" enough to ignore a contempt finding too? :eek2:


----------



## Ergan's Toupe (Aug 21, 2008)

jacmyoung said:


> I don't know if you will continue to laugh if a no contempt ruling is down? TiVo's luck will end. The stake is much higher for TiVo than E* on the outcome of the ruling. E* will live for another day either way.


You think Tivo has been "lucky"? 

Have you taken a look at DISH's stock price lately? :icon_cry:


----------



## jacmyoung (Sep 9, 2006)

Greg Bimson said:


> And that is one of the reasons I keep stating DISH/SATS should settle. Whenever, they should. But the longer they wait, the more it will cost. For example:...


I did not go back that far on this case, but my guess is you had thought E* should settle back two years ago? They waited for two years, did the cost go up? No, the $104 million was from back the money already put in the escrow. The past two years had allowed them to design around the patent, and give them a real shot of putting this whole thing behind them, and for you to think after all the effort made just for this moment, somehow E* whould just quit? If so they should never have tried.

Your notion that somehow if all the sudden E* does not settle at this very moment something earth shaking will happen, like E* will have to pay a billion damages as you predicted.

Please, you know and I know the TiVo's $220 million holds no water.

On the other hand, if there is a no contempt ruling, it will be practically over for TiVo, so what is the logic for E* to settle now?

Yes the only reason I see a settlement now is if TiVo can also let E* keep some of the money, and James can continue to laugh at that idea, I am happy I have made him laugh. A good laugh is always a good thing

Let me put it this way, before we even talk about huge damages to come, why not wait to see if there is a contempt? That will really make all the difference how much the damages will be.


----------



## Ergan's Toupe (Aug 21, 2008)

jacmyoung said:


> They waited for two years, did the cost go up? No, the $104 million was from back the money already put in the escrow.


Wrong again.

The orginal verdict was for 73 million. The extra 31 million was interest for not paying two years ago.

So to answer your question, YES the cost to DISH DID go up.


----------



## James Long (Apr 17, 2003)

Ergan's Toupe;1828336 said:


> I understand what you are saying, but why would the Court of Appeals stay a contempt charge for disregarding an injunction that has already been reviewed by said court?


They might disagree that DISH's actions were contempt. A lot of it depends on what the actual ruling is. It comes down to what Judge Folsom uses as his basis for finding contempt.

The appeals court does not have to immediately pre-judge the case and say "yeah, this decision won't stand" when issuing a stay. They just have to decide that no great harm will occur if their is a stay or a greater harm would occur if a stay isn't issued.


> The COA is going to look at the injunction and do what? Change their mind?


No ... they are going to look at the contempt ruling - whatever that ruling may be. BTW: They were never asked to look at the injunction last time. They looked at the case.



> Again, Lets say I go to court to fight a speeding ticket. I tell the judge that not only am I not going to pay the ticket but I think your wife is ugly too. When the judge finds me in contempt, I appeal. I then go before a higher judge and explain to the Appellate Judge that I can't be in contempt because I wasn't speeding. :grin:


If there is a court rule that does not allow you to insult the judge and/or his wife then you're likely still in trouble. Is there some legal avenue where you can inform the Judge of your opinion of his wife? If so use that legal method and you won't be in contempt.

This side issue is strange ... your contempt of the judge for swearing or insults may lead to a contempt charge but it is under different rules. The rules of the court are not followed if you swear or insult. It the real case we're discussing here, DISH is accused of disobeying an explicit order made by the judge connected to the case.

It would be like you being found guilty of speeding and have the court order you to turn your license over to the court. You refuse this legitimate order of the court and are charged with contempt for not relinquishing the license. It doesn't matter if you have stopped speeding or even if you have stopped driving completely (which would be the goal of taking your license - to prevent you from driving). The order was to turn over your license.

If you believe jacmyoung you would not have to turn over your license even though ordered by the court if you stopped driving. Perhaps stopping speeding would be enough. But that isn't the court's order.


----------



## scooper (Apr 22, 2002)

If you think taking people's driver's licenses away stops them from driving - have I got news for you....


----------



## Ergan's Toupe (Aug 21, 2008)

jacmyoung said:


> Please, you know and I know the TiVo's $220 million holds no water.


Let me guess.... You think the 16 million Charlie is offering is fair, right? :lol:

Maybe Charlie can convince Tivo to give some of the 104 million back since he has them right where he wants them! !rolling


----------



## James Long (Apr 17, 2003)

Ergan's Toupe;1828380 said:


> Wrong again.
> 
> The orginal verdict was for 73 million. The extra 31 million was interest for not paying two years ago.


"Wrong." DISH was charged 10 million in additional damages when the injunction was issued ... and 5 million in interest on the 73 million. The rest was interest over the next less than two years.


----------



## jacmyoung (Sep 9, 2006)

But I am interested to know Greg, let's suppose you want a settlement, even I do not mind a settlement now, so how about you spell out the details of your proposed settlement? Let's have some fun, instead of going circles on the old issues.


----------



## Ergan's Toupe (Aug 21, 2008)

scooper said:


> If you think taking people's driver's licenses away stops them from driving - have I got news for you....


I don't understand. What does a losing a drivers license have to do with contempt of court?


----------



## Ergan's Toupe (Aug 21, 2008)

James Long said:


> "Wrong." DISH was charged 10 million in additional damages when the injunction was issued ... and 5 million in interest on the 73 million. The rest was interest over the next less than two years.


Well, as long as the cost to Dish didn't go up....


----------



## James Long (Apr 17, 2003)

scooper said:


> If you think taking people's driver's licenses away stops them from driving - have I got news for you....


I didn't say it was effective ... only that the intent of taking one's license is preventing them from driving.



Ergan's Toupe;1828400 said:


> I don't understand. What does a losing a drivers license have to do with contempt of court?


Try reading the post. You're the speeder who was found guilty and was instructed to relinquish his license.


----------



## James Long (Apr 17, 2003)

Ergan's Toupe;1828406 said:


> Well, as long as the cost to Dish didn't go up....


Not yet ... but that was part of the discussion at the September 4th hearing ... how much to charge DISH for 2006 though early 2008. There will be more charges for additional periods IF DISH's equipment is found to continue infringing.


----------



## Ergan's Toupe (Aug 21, 2008)

James Long said:


> It would be like you being found guilty of speeding and have the court order you to turn your license over to the court. You refuse this legitimate order of the court and are charged with contempt for not relinquishing the license. It doesn't matter if you have stopped speeding or even if you have stopped driving completely (which would be the goal of taking your license - to prevent you from driving). The order was to turn over your license.


Exactly. That is my whole argument. E* was told to turn the boxes off and thought they could get away with "modifying" them.


----------



## Ergan's Toupe (Aug 21, 2008)

James Long said:


> I didn't say it was effective ... only that the intent of taking one's license is preventing them from driving.
> 
> Try reading the post. You're the speeder who was found guilty and was instructed to relinquish his license.


I thought Scooper was talking to me. My bad.


----------



## James Long (Apr 17, 2003)

Ergan's Toupe;1828423 said:


> Exactly. That is my whole argument.


No. Your argument was being a jerk to a judge ... not specifically disobeying an order of the court that resulted from finding you guilty of a specific crime.


----------



## scooper (Apr 22, 2002)

Greg Bimson said:


> .That's a bit vicious, isn't it?


I don't think so. - What gives judges the right to "take people's personal property" ?
I don't think that order to shutdown the Named Products should have been allowed in the first place.



Greg Bimson said:


> I mean, a judge would knowingly ignore law for fear of his own safety? And comparing it to one of the worst acts of American terrorism as a statement upon government intrusion to one where a party simply breaks a law?


You're looking at 4,000,000 DVRs - surely you aren't naive enough to think that someone else wouldn't consider the same idea ?

Surely - what would Tivo do if the shoe was on the other foot ? Send someone out to each and every customer telling them that "we have to take your DVR away because we stole the idea that makes it work "? From what I hear about Tivo fanatics - a few dead /wounded door ringers would not surprise me.


----------



## Herdfan (Mar 18, 2006)

jacmyoung said:


> But I am interested to know Greg, let's suppose you want a settlement, even I do not mind a settlement now, so how about you spell out the details of your proposed settlement? Let's have some fun, instead of going circles on the old issues.


I'll play.

All past infringement paid to date. Then $1.25 royalty per DVR customer including those with not yet adjudicated devices for the life of the patent.

This is about a 30% premium over what D* pays but there needs to be a penalty.


----------



## Curtis52 (Oct 14, 2003)

scooper said:


> I don't think so. - What gives judges the right to "take people's personal property" ?
> I don't think that order to shutdown the Named Products should have been allowed in the first place.


Stolen property is confiscated every day.


----------



## James Long (Apr 17, 2003)

We interrupt this thread for court activity.

Tivo has filed an unopposed motion noting the split of Echostar into two corporations. This is basically the same filing as was made last week, except now it is a motion. DISH and SATS will both be responsible parties in the case.

Boring legal document attached. I expect the granting of this motion will be the next activity in the case.

That is all!


----------



## Jason Nipp (Jun 10, 2004)

scooper said:


> I would think LONG AND HARD if I wanted to be the target of the next Oklahoma City before I ordered that ....


Good God!!!!!!!!!!!!!!!!!!!!!!!!!!!!!


----------



## Jason Nipp (Jun 10, 2004)

Ergan's Toupe;1828369 said:


> Have you taken a look at DISH's stock price lately? :icon_cry:


Have you looked at the market as a whole lately? It's not just Dish stock.


----------



## Ergan's Toupe (Aug 21, 2008)

Jason Nipp said:


> Have you looked at the market as a whole lately? It's not just Dish stock.


Agreed, but DISH has been in a death spiral for a long time now.


----------



## phrelin (Jan 18, 2007)

Ergan's Toupe;1828619 said:


> Agreed, but DISH has been in a death spiral for a long time now.


Gee you mean because on Valentine's Day SATS closed at $40.16 and today $22.27, a 45% loss, you think its a death spiral?

By that same logic, what do you think of T (AT&T) which closed at $41.09 on December 28 and is now at $24.73, a 40% loss? Of course on December 28 the Dow was at 13,359.61 and is now at 9,258.10, a 31% loss. So maybe the whole market is in a death spiral. My stock portfolio looks like it is.:icon_cry:


----------



## Ergan's Toupe (Aug 21, 2008)

James Long said:


> No. Your argument was being a jerk to a judge ... not specifically disobeying an order of the court that resulted from finding you guilty of a specific crime.


We have differing opinions on what a jerk is. :grin:

My argument is a contempt hearing is not the time to argue the original charge. That ship has sailed. If Charlie wanted to argue the terms of the injunction, he had plenty of time to do it before it got to a contempt hearing.

Keeping with the drivers license analogy, lets say say a judge finds me guilty of drunk driving and gives me 30 days to turn in my license. 31 days later when I don't turn my license in the judge tells me that I have 5 more days to turn it in or I'm going to jail. 6 days later I appeal on the grounds and ask for a stay because I wasn't driving drunk, I was driving under the influence of prescription medicine. What exactly do you think the Appellate Court is going to tell me?


----------



## Ergan's Toupe (Aug 21, 2008)

phrelin said:


> So maybe the whole market is in a death spiral. My stock portfolio looks like it is.:icon_cry:


I feel your pain. My 401K is now a 201K.

Maybe you should buy some Tivo. Rumor has it they are going to sign a deal with another Sat provider soon.


----------



## Greg Bimson (May 5, 2003)

scooper said:


> I don't think so. - What gives judges the right to "take people's personal property" ?
> I don't think that order to shutdown the Named Products should have been allowed in the first place.


Yet DISH/SATS didn't argue that the injunction was in error.


Charles Ergen said:


> Having said that - I mean obviously, at some point, I believe we'll prevail. But TiVo - we're going to have conversations with TiVo one way or the other about how we work together. And again, its - I'm just stubborn. I know this case inside and out, I've sat through trials, I've sat through the engineering models, I've sat and have the best and the brightest explain this - and I'm just stubborn. We don't violate their intellectual property today and I want to prove that. And so, we're going to go to the September 4th hearing and see who's right.


Become unstubborn and settle, and no one's DVR functionality will be disabled.

Believing that DISH/SATS will prevail in the end will be an expensive proposition if DVR functionality is disabled. But stubborness may just allow that to happen...

Blaming the courts is far from the problem here.


----------



## jacmyoung (Sep 9, 2006)

James Long said:


> ...If you believe jacmyoung you would not have to turn over your license even though ordered by the court if you stopped driving. Perhaps stopping speeding would be enough. But that isn't the court's order.


Almost missed that one. The problem is the analogy does not really apply to the patent case, because for the analogy to work one must assume a few conditions here, for one, the car goes to 100 MPH once it exceeds 45 MPH so it would always be a speeding car on the freeway, and there is also a rule that once you paid the fine, and have your driving record shown the point, you will not be able to be found in contempt, unless you are cited a speeding ticket again next time.

Now at the meantime, after the judge had fined the driver, added a point on his driving record, he might also order the driver to turn in the car because the car was built that it would cause the driver to speed next time on the freeway no matter what, in another word it was an illegal car.

Now instead of turning in the car, the driver had it modified to make it a legal car, and shows the judge the proof he now can drive the car at 65 MPH on the freeway.

The question the judge must answer is, should I found the driver in contempt of my order for not turning in the car, or did the driver make a good faith effort to demonstrate that he will not speed again? And not only that, when he tries to make such decision, he also knows that in the past cases, as long as the cars were modified to be legal, the drivers had always avoided a contempt

I know it is a very odd situation, but the truth is in a patent infringement case, it is exactly what the scenario is, if you seriously want to make the analogy comparable.


----------



## jacmyoung (Sep 9, 2006)

Herdfan said:


> I'll play.
> 
> All past infringement paid to date. Then $1.25 royalty per DVR customer including those with not yet adjudicated devices for the life of the patent.
> 
> This is about a 30% premium over what D* pays but there needs to be a penalty.


Very well, and I can almost assure you Charlie will not take that deal. Why? Because once there is no contempt, he would only have to pay up to between 10/06 and 07/07 during which the new software replaced the old, not to pay up to date, and will not have to pay the $1.25 from now on ever. I know you want to ask, but what if there is a contempt? Well as I said if Charlie knows his design around is as good as he says it is, he should be confident there will not be a "what if"

And more importantly why he will not take the deal is because even if it turns out that he is in contempt, your deal will be the deal anyway, because the court will simply ask him to disable the DVRs and to pay damages to date. And if he and Rogers will settle at that point the rate will be $1.25 anyway because there is also law to prohibit unfair rate charging. Yes a reasonable premium but not much more to be unreasonable, once E* has already paid the damages to TiVo.

Put it this way, your deal is not much of a deal at all

And I am still waiting for Greg to offer his deal for Charlie


----------



## Curtis52 (Oct 14, 2003)

jacmyoung said:


> there is also law to prohibit unfair rate charging.


This law?



> 35 United States Code 271
> 
> "(d) *No patent owner otherwise entitled to relief for infringement or
> contributory infringement of a patent shall be denied relief or deemed
> ...


----------



## James Long (Apr 17, 2003)

phrelin said:


> My stock portfolio looks like it is.:icon_cry:


I got my retirement account statement today ... the value is down 25% from what it was January 1st (and it would be down 34% if I had not funded it this year).



Ergan's Toupe;1828675 said:


> My argument is ...


constantly changing?


----------



## James Long (Apr 17, 2003)

jacmyoung said:


> I know it is a very odd situation, but the truth is in a patent infringement case, it is exactly what the scenario is, if you seriously want to make the analogy comparable.


No, it isn't. You have added too many false complications.


----------



## Greg Bimson (May 5, 2003)

jacmyoung said:


> And I am still waiting for Greg to offer his deal for Charlie


When you have already won one case and have more applicable case law than your adversary to back up a contempt hearing, why bother playing the game?

This is detente until brinksmanship. No offer by either party will be good enough, until one party is thoroughly thrashed by a ruling.


----------



## jacmyoung (Sep 9, 2006)

James Long said:


> No, it isn't. You have added too many false complications.


Of course I can say the same, your analogy left out too many things relevant to this case.


----------



## jacmyoung (Sep 9, 2006)

Greg Bimson said:


> When you have already won one case and have more applicable case law than your adversary to back up a contempt hearing, why bother playing the game?
> 
> This is detente until brinksmanship. No offer by either party will be good enough, until one party is thoroughly thrashed by a ruling.


What have you won so far? Please don't tell me that SC decision was your win, no one, not even E* expected anything different. I am almost sure you thought TiVo could have gotten the treble damages and attorney fees back then, did you win that one? You predicted sparks would fly around 5/30, how did that go so far? You said design around would not be mentioned on 9/4 because it was not on the judge's agenda, how did that go so far? You almost seemed to suggest that the judge had already find E* in contempt, if so please pinch yourself.

And it was precisely you who repeatedly suggested E* to settle NOW, so it is reasonable to ask you what kind of settlement do you have in mind, if you have no clue what a reasonable settlement may be then why suggest it in the first place? But wait, now you seem to say no settlement is good enough for either party, please make up your mind if anyone should settle now or not.

It is you who is refusing to play the game. You are not serious in playing the game when you kept telling E* they need to settle now yet refuse to say what is in it for E* to settle. Oh BTW, please save that one: if E* does not settle now they would end up paying TiVo one billion dollars, not a serious threat you know it. Why? If so you would not have suggested E* to settle, what kind of TiVo's supporter are you to suggest E* to settle now so TiVo will not have the chance to make that $1 billion?


----------



## jacmyoung (Sep 9, 2006)

Curtis52 said:


> This law?


I was expecting you to post this

First off, I said if there should be a license agreement, TiVo cannot unreasonably over-charge, there are laws to prohibit such practice.

Now let's review the proposition that TiVo will refuse to license to E*, and force E* to turn off all DVRs. That is certainly their right, but for what? People will just go to D*, and make D* a lot of money but none for TiVo, and TiVo cannot even sue D* remember? They have their agreement not to sue each other, and that agreement had just been extended. The problem of course is D* subs are dropping DirecTivos like flies, and upgrading to D*'s own MPEG4 DVRs.

How about cable you say? Do you really want to go there? How many of the E* DVR subs will like to go back to cable?

Oh yeah, they will just go out and spend $200/each to buy a few TiVo standalone DVRs and hook them up and pay $12/month fee to watch a few OTA channels. Of course TiVo would want you to believe this is what's going to happen, but I doubt even you believe TiVo's such crap.

Let's face it, the only good thing for TiVo is to have E* sign a license agrement with them. The best thing to happen is to keep E*'s DVRs going so TiVo can collect the $1.25 per DVR fee from them. Threatening Charlie that TiVo will not sign an agreement with him will not work, TiVo knows it, that is why TiVo continues to tell the world they will work with anyone to reach resonable deals for using their technology.

The only problem here is so far Charlie has refused to an agreement. Whether he will change his mind is anyone's guess, what I am saying is he might, but if so, it is likely going to be after the next ruling, not now.


----------



## Greg Bimson (May 5, 2003)

Oooh. Now there is a reverse psychology degree. Or maybe just plain psycho.

I invite everyone else to reread the thousands of posts on here:

1) Never mentioned anything about the trebled damages, but since it appears DISH/SATS obtained an opinion from outside counsel, that was an attempt to avoid willful infringement, and therefore not exceptional to award trebled damages.
2) I said the design around would not be EVAULATED on 9/4. It is immaterial to the proceeding.
3) I never said that DISH/SATS should settle NOW, but did state the longer this is drawn out, the worse it is in terms of both damages and a settlement.
4) Do you have to pick a fight with everyone?


----------



## jacmyoung (Sep 9, 2006)

And I will say this, the reason everyone on TiVo's side, including those TiVo analysts, are suggesting E* to settle now, is because deep down they are afraid the judge may find E* not in contempt, as the delay of the decision continues.

Because if they are confident that E* will be in contempt, there is no good reason to suggest E* to settle now. It will only serve TiVo better if they wait for that contempt ruling they so sure they will get, because with that ruling will come the real money.

The only reason I can see to suggest E* to settle now is that they don't want to see a no contempt ruling, because if so it would not be pretty for TiVo at all.


----------



## jacmyoung (Sep 9, 2006)

Greg Bimson said:


> ...3) I never said that DISH/SATS should settle NOW, but did state the longer this is drawn out, the worse it is in terms of both damages and a settlement...


Good then now you are on the record that you did not say E* should settle now, but you only said if E* did not settle E* would regret it. Are you seriously thinking you can explain it away this way so easily

I am not picking a fight with everyone, just you


----------



## James Long (Apr 17, 2003)

jacmyoung said:


> I am not picking a fight with everyone, just you


History has shown you pick a fight with yourself ... but once again, it isn't about you ... it is about Tivo vs Echostar.

Looks like it's time to close another thread, since it's gone circular again.


----------



## jacmyoung (Sep 9, 2006)

James Long said:


> History has shown you pick a fight with yourself ... but once again, it isn't about you ... it is about Tivo vs Echostar.
> 
> Looks like it's time to close another thread, since it's gone circular again.


My bad, I honestly did not think I was talking to myself, I thought I was talking to you, Greg and Curtis52, and occasionally a few others.


----------



## Curtis52 (Oct 14, 2003)

jacmyoung said:


> I was expecting you to post this
> 
> First off, I said if there should be a license agreement, TiVo cannot unreasonably over-charge, there are laws to prohibit such practice.


Setting an agreeable price is part of the decsion to license a patent. If there is an agreement, the price is agreeable.

Beyond that, please quote the law you are referring to. I'd like to read this law.


----------



## jacmyoung (Sep 9, 2006)

Curtis52 said:


> Setting an agreeable price is part of the decsion to license a patent. If there is an agreement, the price is agreeable.
> 
> Beyond that, please quote the law you are referring to. I'd like to read this law.


I am short on time right now, but a quick google search:

http://ipgeek.blogspot.com/2007/02/you-thought-paying-sisvel-ended-your.html

Look for "RAND" and do a search, I am sure we will get somewhere:

"...The license fee must be against RAND (reasonable and non discriminatory) conditions, but still, when hundreds of consumer electronics companies take the license, you are in for a more then lucrative license outcome..."


----------



## Greg Bimson (May 5, 2003)

RAND/FRAND is not a law.


----------



## Herdfan (Mar 18, 2006)

jacmyoung said:


> Put it this way, your deal is not much of a deal at all


My deal doesn't put millions of DVR's at risk of being shut down.


----------



## Curtis52 (Oct 14, 2003)

ALVISO, Calif., Oct 09, 2008 /PRNewswire-FirstCall via COMTEX News Network/ -- TiVo Inc. (Nasdaq: TIVO), the creator of and a leader in television products and services for digital video recorders (DVRs), offered the following statement today on receipt of damages from EchoStar Communications Corporation: 

"We are pleased to have received $104,600,472 from EchoStar on October 8, 2008, which includes the initial $74 million in damages awarded by the United States District Court for EchoStar's willful patent infringement as well as supplemental damages covering the period through September 8, 2006 and interest. We remain confident that the District Court will enforce the injunction and award further damages from EchoStar's continued infringement of our Time Warp patent."


----------



## Ergan's Toupe (Aug 21, 2008)

Curtis52 said:


> ALVISO, Calif., Oct 09, 2008 /PRNewswire-FirstCall via COMTEX News Network/ -- TiVo Inc. (Nasdaq: TIVO), the creator of and a leader in television products and services for digital video recorders (DVRs), offered the following statement today on receipt of damages from EchoStar Communications Corporation:
> 
> "We are pleased to have received $104,600,472 from EchoStar on October 8, 2008, which includes the initial $74 million in damages awarded by the United States District Court for EchoStar's willful patent infringement as well as supplemental damages covering the period through September 8, 2006 and interest. We remain confident that the District Court will enforce the injunction and award further damages from EchoStar's continued infringement of our Time Warp patent."


Huh, I thought for sure that Tivo was going to tell Charlie to forget about it, just put it towards a settlement.

Go figure. !rolling


----------



## jacmyoung (Sep 9, 2006)

Curtis52 said:


> ALVISO, Calif., Oct 09, 2008 /PRNewswire-FirstCall via COMTEX News Network/ -- TiVo Inc. (Nasdaq: TIVO), the creator of and a leader in television products and services for digital video recorders (DVRs), offered the following statement today on receipt of damages from EchoStar Communications Corporation:
> 
> "We are pleased to have received $104,600,472 from EchoStar on October 8, 2008, which includes the initial $74 million in damages awarded by the United States District Court for EchoStar's willful patent infringement as well as supplemental damages covering the period through September 8, 2006 and interest. We remain confident that the District Court will enforce the injunction and award further damages from EchoStar's continued infringement of our Time Warp patent."


Sounded to me the last game finally ended, will see how the next game goes, hopefully not going to be another two years.

Notice what TiVo is saying: "..from E*'s continued infringement of our Time Warp patent." This is precisely what the judge will decide, as TiVo is saying themself, whether E* continues to infringe the patent or not. Remember the district court next ruling will be all about the 4 million DVRs, nothing else.


----------



## James Long (Apr 17, 2003)

jacmyoung said:


> Sounded to me the last game finally ended, will see how the next game goes, hopefully not going to be another two years.


I agree. We don't need another 15k posts on the matter.


> Notice what TiVo is saying: "..from E*'s continued infringement of our Time Warp patent." This is precisely what the judge will decide, as TiVo is saying themself, whether E* continues to infringe the patent or not. Remember the district court next ruling will be all about the 4 million DVRs, nothing else.


Judge Folsom will EVENTUALLY decide whether DISH continues to infringe ... but that is not the question before him now.


----------



## jacmyoung (Sep 9, 2006)

James Long said:


> ...Judge Folsom will EVENTUALLY decide whether DISH continues to infringe ... but that is not the question before him now.


That has been your opinion, which I do not agree. And both E* and TiVo also seem to agree with me, that the issue now is whether infringement is continuing or not.


----------



## Ergan's Toupe (Aug 21, 2008)

jacmyoung said:


> Sounded to me the last game finally ended, will see how the next game goes, hopefully not going to be another two years.


If it takes two years, it takes two years. Charlie will just have to lay out even more money. No need to worry about Tivo. They have 104 million reasons to wait it out now.


----------



## jacmyoung (Sep 9, 2006)

Greg Bimson said:


> RAND/FRAND is not a law.


It is a standard companies like E* and TiVo that are regularly involved in licensing negotiations all must agree to stand by.

In fact in some of the many patent cases I read, the judges themselves became heavily involved in resolving disputes in the settlements among the parties when such RAND issues surfaced.

Put it this way, stop thinking TiVo can "charge a premium for penalty", just because people may do that frequently with their kids


----------



## phrelin (Jan 18, 2007)

My, it took two days to hit page 5, but we're close to 200 posts! Yep. 15,000 by the time the case is resolved.


----------



## James Long (Apr 17, 2003)

jacmyoung said:


> That has been your opinion, which I do not agree. And both E* and TiVo also seem to agree with me,


Got an ego? I really doubt DISH or TiVo agree with you. 


> ... that the issue now is whether infringement is continuing or not.


I'd say that both sides are willing to accept a ruling in their favor and neither would accept a ruling against them, if Judge Folsom jumps ahead to infringement. That is the extent of their "agreement" with the idea that infringement could be decided without discovery. "Go ahead and decide (as long as we win)."

Without discovery a ruling on infringement will instantly be appealed - by whomever loses.


----------



## jacmyoung (Sep 9, 2006)

Herdfan said:


> My deal doesn't put millions of DVR's at risk of being shut down.


Yet it is still not much of a deal

A no contempt will remove the risk as well, at a much much less cost. Thanks but no thanks


----------



## jacmyoung (Sep 9, 2006)

James Long said:


> Got an ego?


I can probably ask you the same question?



> ... I really doubt DISH or TiVo agree with you.  I'd say that both sides are willing to accept a ruling in their favor and neither would accept a ruling against them, if Judge Folsom jumps ahead to infringement. That is the extent of their "agreement" with the idea that infringement could be decided without discovery. "Go ahead and decide (as long as we win)."


Again your opinion. When in both E* and TiVo's statements, and also according to what the judge said on 9/4, the issue now is whether there is continued infringement, or "the extent of the design around" more than colorable or not, as the judge said, then it is certainly reasonable for me to speculate whether such will be part of the judge's ruling or not.

I have yet read a case where parties were both arguing on the same issue, but the judge refused to touch on that issue, because supposedly it was "not on the agenda".



> ...Without discovery a ruling on infringement will instantly be appealed - by whomever loses.


Valid point no doubt, except there was a discovery. In fact I also said, the judge may insist that a discovery under his supervision must first take place. The problem is TiVo does not dispute E*'s design around evidence, they only reached the opposite conclusion based on the same evidence.

The purpose of a discovery is to resolve any dispute on evidence, and such is not necessary any more here, the discovery between E* and TiVo (without the judge's supervision) already occurred on 5/14/08, and there is now no dispute on the evidence, only opposite conclusions.

IMHO, it is perfectly fine for the judge to decide which conclusion he will adopt. Whether he will do so is of course anyone's guess, that is why I called it a bet.

I have also said the judge may decide the evidence is not enough for him to reach his conclusion, and he will like to have a further discovery. I just don't think it is likely because if neither E* nor TiVo had any problem reaching their own conclusion on the same evidence, meaning they both thought the evidence was sufficient, why would the judge say hey but I somehow am not capable of reaching my conclusion on the same evidence?

And I will add another thing, if you recall on 9/4 TiVo's lawyers asked the judge if he could schedule the next hearing on a further discovery, probably two months down the road, did the judge think it was necessary? Did he make that schedule for TiVo?

Had he been sure there was no discovery, and a discovery would certainly be needed, wouldn't it make sense when TiVo made that request, he could have easily marked his calendar?

Again not saying he meant he would not ever do another discovery, just that how I speculate based on what the judge did say/do or did not say/do.


----------



## Greg Bimson (May 5, 2003)

jacmyoung said:


> [RAND/FRAND] is a standard companies like E* and TiVo that are regularly involved in licensing negotiations all must agree to stand by.


From Wikipedia:


> Standard setting organizations commonly have rules that govern the ownership of patent rights that cover the standards the adopt. One of the most common rules is that a patent covering the standard must be adopted on "reasonable and nondiscriminatory terms" (RAND) or "fair, reasonable and nondiscriminatory terms" (FRAND). The two terms are generally interchangeable; FRAND seems to be preferred in Europe and RAND in the U.S.


Standard setting organizations. I didn't know there was a standard setting organization for DVR's.


jacmyoung said:


> "...The license fee must be against RAND (reasonable and non discriminatory) conditions, but still, when hundreds of consumer electronics companies take the license, you are in for a more then lucrative license outcome..."


So Philips can enforce a licensing agreement against RAND, but the MPEG standards group might be a bit miffed.


jacmyoung said:


> Put it this way, stop thinking TiVo can "charge a premium for penalty", just because people may do that frequently with their kids


Right. Philips can charge a premium according to your own statement and it isn't an issue. Perhaps you should stop reading so much into single, solitary phrases...


> Notice what TiVo is saying: "..from E*'s continued infringement of our Time Warp patent." This is precisely what the judge will decide, as TiVo is saying themself, whether E* continues to infringe the patent or not.


More like:

We remain confident 
that the District Court will 
enforce the injunction 
and 
award further damages from EchoStar's continued infringement of our Time Warp patent.

Funny how DISH/SATS is at a minimum conceding $16 million for continued infringement of the Time Warp patent. Or maybe you've forgotten that is exactly what 4 September was all about.

It was a recap of the 4 September hearing that TiVo would like to win.


----------



## rocatman (Nov 28, 2003)

Greg Bimson said:


> From Wikipedia:Standard setting organizations. I didn't know there was a standard setting organization for DVR's.So Philips can enforce a licensing agreement against RAND, but the MPEG standards group might be a bit miffed.Right. Philips can charge a premium according to your own statement and it isn't an issue. Perhaps you should stop reading so much into single, solitary phrases...More like:
> 
> We remain confident
> that the District Court will
> ...


I believe the $16 million that Dish conceded that you are referring to was for the time when the initial infringement award was determined to the time when DISH/SATS downloaded the new DVR software. Without this clarification, your statement implies that DISH/SATS has conceded that they continue to this day infringe on TIVO's patent which obviously is not the case.


----------



## jacmyoung (Sep 9, 2006)

rocatman said:


> I believe the $16 million that Dish conceded that you are referring to was for the time when the initial infringement award was determined and the time when DISH/SATS downloaded the new DVR software. Without this clarification, your statement implies that DISH/SATS has conceded that they continue to this day infringe on TIVO's patent which obviously is not the case.


Good point. Of course E*'s $16 million only covers the time of the stay of the injunction when the old software was still in use, not after the new software.

I did not think Greg could have mis-interpreted that one.


----------



## jacmyoung (Sep 9, 2006)

Greg Bimson said:


> From Wikipedia:Standard setting organizations. I didn't know there was a standard setting organization for DVR's.....


Any companies that are granted of their FCC licenses (for that matter any licensed sizable companies) must agree to fair, reasonable and non-discriminatory practice, it has nothing to do with DVRs, everything to do with how they may negotiate license agreements among themselves.


----------



## Greg Bimson (May 5, 2003)

The statement and all else does not mention continuing infringement, just continued infringement. Big difference.


----------



## Greg Bimson (May 5, 2003)

jacmyoung said:


> Any companies that are granted of their FCC licenses (for that matter any licensed sizable companies) must agree to fair, reasonable and non-discriminatory practice, it has nothing to do with DVRs, everything to do with how they may negotiate agreements among themselves.


Straws. Look up either "clutching at -" or "-man arguments".


----------



## jacmyoung (Sep 9, 2006)

Greg Bimson said:


> The statement and all else does not mention continuing infringement, just continued infringement. Big difference.


Please do tell.


----------



## jacmyoung (Sep 9, 2006)

Greg Bimson said:


> Straws. Look up either "clutching at -" or "-man arguments".


Whatever you say, you have the right to believe TiVo can charge $10 rate and E* will just have to accept it. I am happy you are happy.


----------



## Curtis52 (Oct 14, 2003)

jacmyoung said:


> Any companies that are granted of their FCC licenses (for that matter any licensed sizable companies) must agree to fair, reasonable and non-discriminatory practice, it has nothing to do with DVRs, everything to do with how they may negotiate license agreements among themselves.


Cite? Anyway, TiVo doesn't have an FCC license. TiVo is not a broadcaster. Haven't we been down this cul-de-sac before? Still waiting for a quote from the law.


----------



## jacmyoung (Sep 9, 2006)

Curtis52 said:


> Cite? Anyway, TiVo doesn't have an FCC license. TiVo is not a broadcaster. Haven't we been down this cul-de-sac before? Still waiting for a quote from the law.


Whatever you say, you have the right to believe TiVo can charge $10 rate and E* will just have to accept it. I am happy you are happy.

I can see Charlie is shaking in his boots now.


----------



## James Long (Apr 17, 2003)

jacmyoung said:


> ... and also according to what the judge said on 9/4, the issue now is whether there is continued infringement, ...


A false statement. It is what you want to read, but not what was said by Judge Folsom.


> I have yet read a case where parties were both arguing on the same issue, but the judge refused to touch on that issue, because supposedly it was "not on the agenda".


Perhaps you need to read more? I would not limit the realm of possibilities to what one guy has read.  


> Valid point no doubt, except there was a discovery.


Not the discovery that TiVo requested May 30th. DISH believes they have provided enough information on their new software to find a colorable difference ... TiVo believes that from the minimal information they have received DISH still infringes.


> The problem is TiVo does not dispute E*'s design around evidence, they only reached the opposite conclusion based on the same evidence.


Yes, TiVo are not disputing the truth of what has been provided ... just the conclusion. They want MORE discovery ... they have wanted it ever since May when the judge shut now the "next step" in the case. No party is going to refuse a decision in their favor, should the judge jump ahead, but TiVo absolutely would not accept a "colorably different" or "no infringement" ruling without discovery. And DISH the opposite.


----------



## Curtis52 (Oct 14, 2003)

jacmyoung said:


> Whatever you say, you have the right to believe TiVo can charge $10 rate and E* will just have to accept it. I am happy you are happy.


I just want to see what the law says that you claim exists. I don't think that's an unreasonable request. BTW, where is the $10 figure coming from?


----------



## Herdfan (Mar 18, 2006)

jacmyoung said:


> Whatever you say, you have the right to believe TiVo can charge $10 rate and E* will just have to accept it.


If E* is found in comtempt, and that contempt is upheld on appeal, then yes, TiVo can charge whatever the hell it feels like charging.


----------



## James Long (Apr 17, 2003)

jacmyoung said:


> Whatever you say, you have the right to believe TiVo can charge $10 rate and E* will just have to accept it. I am happy you are happy.


DISH does not have to accept the rate TiVo wants ... but if they choose not to accept the rate they cannot use TiVo's patent. Unless there is some overriding reason, the government is not going to force DISH to accept TiVo's ongoing license offer nor force TiVo to be "reasonable". This is an infringement lawsuit ... not an arbitration.

An overriding reason would be something along the lines of curing cancer ... not allowing a few million people to watch non-live TV. Sorry Scooper.


----------



## FireMedic8039 (Dec 24, 2007)

Just saw the headline on the Dow Board.
TiVo gets $104.6 million in damages from EchoStar
Thu Oct 9, 2008 2:23pm EDT 

LOS ANGELES (Reuters) - TiVo Inc said on Thursday it has received the $104.6 million in damages from EchoStar Corp that it won this week when the U.S. Supreme Court denied an appeal of a patent infringement case.

TiVo said in a statement that it received the damages on Wednesday, following the Supreme Court's decision on Monday not to review an appellate court's ruling.

The dispute between TiVo and EchoStar stemmed from a battle over TiVo's "Time Warp" software, which allows users to record a program and watch another one at the same time via a digital video recorder.

A ruling is still pending from U.S. District Judge David Folsom in Texas on whether EchoStar owes TiVo more damages for allegedly failing to turn off its DVRs, as required in an injunction. TiVo said it expects further damages.


----------



## jacmyoung (Sep 9, 2006)

Herdfan said:


> If E* is found in comtempt, and that contempt is upheld on appeal, then yes, TiVo can charge whatever the hell it feels like charging.


No, they can refuse to let E* use its technology, and force E* to turn off the DVRs, but if they agree to let E* use the patent, the license fee must be resaonable and non discriminatory.


----------



## jacmyoung (Sep 9, 2006)

James Long said:


> DISH does not have to accept the rate TiVo wants ... but if they choose not to accept the rate they cannot use TiVo's patent. Unless there is some overriding reason, the government is not going to force DISH to accept TiVo's ongoing license offer nor force TiVo to be "reasonable". This is an infringement lawsuit ... not an arbitration.
> 
> An overriding reason would be something along the lines of curing cancer ... not allowing a few million people to watch non-live TV. Sorry Scooper.


Correct, but that was not my argument, my argument was, if TiVo wants to use this lawsuit to blackmail E* into accepting some discriminatory terms, E* can file a complaint with the judge or other relevant agency to force TiVo to abandon such practice.

Some of the cases I read where the judges were forced into such oversight did just that during the settlement negotiations.


----------



## Curtis52 (Oct 14, 2003)

jacmyoung said:


> No, they can refuse to let E* use its technology, and force E* to turn off the DVRs, but if they agree to let E* use the patent, the license fee must be resaonable and non discriminatory.


In a free marketplace, the buyer and the seller get to determine the price. It's a beautiful thing. Still waiting on the law cite.


----------



## jacmyoung (Sep 9, 2006)

James Long said:


> A false statement. It is what you want to read, but not what was said by Judge Folsom...


Again that is what you think, and I do not agree.

BTW, you don't think it is a good thing to read too much into what the judge said only because what I am reading into do not help your argument. You apparently did not have any problem when the TiVo investor first came out with his reading into what the judge said on 9/4, you know before the full transcript was available, and he was only cherry picking what the judge said that excited him, not other things the judge said but he did not care for.

I only pointed out many other things the judge said, after the full transcript became available, and I also pointed out some of those judge said that the TiVo investor liked and showed them those things were not as rosy as initially thought by those TiVo fans.

In fact you yourself used those words by the judge to make several points. At a minimum, we are both guilty of trying to read into what the judge had said.


----------



## jacmyoung (Sep 9, 2006)

Curtis52 said:


> In a free marketplace, the buyer and the seller get to determine the price. It's a beautiful thing. Still waiting on the law cite.


No, not if it is unreasonable or discriminatory. We have anti-trust laws.


----------



## Curtis52 (Oct 14, 2003)

jacmyoung said:


> No, not if it is unreasonable or discriminatory. We have anti-trust laws.


Just quote the law. Anyway, there is no monopoly on DVRs. TiVo has lots of competition. So get off the monopoly stuff even though a patent is a legal monopoly. That's what a patent is for.


----------



## Ergan's Toupe (Aug 21, 2008)

jacmyoung said:


> No, not if it is unreasonable or discriminatory. We have anti-trust laws.


I don't care if I get banned or not.....

You are a moron. Seriously. Who ties your shoes for you? :nono2:


----------



## jacmyoung (Sep 9, 2006)

Curtis52 said:


> Just quote the law. Anyway, there is no monopoly on DVRs. TiVo has lots of competition. So get off the monopoly stuff even though a patent is a legal monopoly. That's what a patent is for.


Where did I mentinon the word "monopoly"?

Actually you are dead wrong, TiVo having this valid DVR patent by definition is given a monopoly in the DVR market until the patent expires. Of course others can develop their own DVR technologies to break such monopoly, as long as they do not infringe on TiVo's patent.

Antitrust law:

http://en.wikipedia.org/wiki/Antitrust

And I will just quote one:

"prohibiting agreements or practices that restrict free trading and competition between business entities. This includes in particular the repression of cartels."

If TiVo charges D* $0.89 per DVR fee, yet insists E* must pay $2.25, it clearly puts E* in a competive disadvantage and by definition is anti-competitive.

The law prohibits such practice.

Now reasonable differences in rates are fine, for example a much larger provider may enjoy a lower rate due to its scale, so that a $1.00 charge on E* may be reasonable compared to D*'s $0.89, but not $2.25.


----------



## James Long (Apr 17, 2003)

Ergan's Toupe;1829869 said:


> You are a moron. Seriously. Who ties your shoes for you? :nono2:


No one. That's why he keeps tripping over himself. 

But on that note, let's remember this is about Tivo vs Echostar ... specifically the supreme court ruling. It does not appear that we have had a post recently on the topic of this thread. If there is nothing new to say this thread _will_ close.

Back to topic ... not jacmyoung but Tivo vs Echostar and what is new. We're done with the rehash retrospective.


----------



## jacmyoung (Sep 9, 2006)

James Long said:


> ...Back to topic ... not jacmyoung but Tivo vs Echostar and what is new. We're done with the rehash retrospective.


Yet it appears I am the only one who is offering any new things to talk about, the latest being the Antitrust laws and how it may relate to any potential settlement as the result of this SC decision.


----------



## Curtis52 (Oct 14, 2003)

jacmyoung said:


> Where did I mentinon the word "monopoly"?
> 
> Actually you are dead wrong, TiVo having this valid DVR patent by definition is given a monopoly in the DVR market until the patent expires. Of course others can develop their own DVR technologies to break such monopoly, as long as they do not infringe on TiVo's patent.


Are you saying that everyone else is violating TiVo's patent and that Dish can prove that in court? Even Dish would seek to prove that even they don't have non-infringing DVR technology? The mind boggles. TiVo could sit back and let Dish prove that all the other DVR companies infringe TiVos "monopolistic" patent whie TiVo just sits back. Sounds like a plan.


----------



## Ergan's Toupe (Aug 21, 2008)

jacmyoung said:


> Yet it appears I am the only one who is offering any new things to talk about, the latest being the Antitrust laws and how it may relate to any potential settlement as the result of this SC decision.


I vote to close the thread now. :icon_lame


----------



## James Long (Apr 17, 2003)

jacmyoung said:


> Yet it appears I am the only one who is offering any new things to talk about, the latest being the Antitrust laws and how it may relate to any potential settlement as the result of this SC decision.


I disagree ... mentioning the supreme court and then saying something totally unrelated to their decision is just channeling Dr Sbaitso. The court refused to hear the case _without comment_ ... and yet over 200 OT posts have been generated. 

:backtotop


----------



## jacmyoung (Sep 9, 2006)

Curtis52 said:


> Are you saying that everyone else is violating TiVo's patent and that Dish can prove that in court? Even Dish would seek to prove that even they don't have non-infringing DVR technology? The mind boggles. TiVo could sit back and let Dish prove that all the other DVR companies infringe TiVos "monopolistic" patent whie TiVo just sits back. Sounds like a plan.


Absolutely not! Did you not read what I said? It is right in your own quote my friend.

What I am saying is you are dead wrong to say TiVo does not have a monopoly on its own DVR technology, the purpose of a patent is precisely that, to creat a temporary monopoly for that particular technolgy under the patent, no one can use that technology without the patent owner's consent, hence a monopoly.

Should I quote the patent law and how the monopoly is defined in there for you?


----------



## jacmyoung (Sep 9, 2006)

http://en.wikipedia.org/wiki/Intellectual_property

"Intellectual property rights are considered by economists to be *a form of temporary monopoly enforced by the state* (or enforced using the legal mechanisms for redress supported by the state)."

Since Curtis52 you are big on quotes, I hope the above explains my previous comments.

Again others can develop their own technologies to break the monopoly, as long as the other technologies do not infringe on the patent.


----------



## Curtis52 (Oct 14, 2003)

There is lots of DVR technology out there. TiVo has lots of competition. Heck, even Dish has a patent on DVR technology. They could just use that. They could license direcTV's technolgy or maybe the Motorola technology. There is a long way to go to prove that TiVo has a momopoly on DVRs. They would even have to prove their own patent is crap. Even if they did all that, TiVo is free to license or not license anyone they choose. That's the law.



> 35 United States Code 271
> 
> "*(d) No patent owner otherwise entitled to relief for infringement or
> contributory infringement of a patent shall be denied relief or deemed
> ...


----------



## jacmyoung (Sep 9, 2006)

Curtis52 said:


> There is lots of DVR technology out there. TiVo has lots of competition. Heck, even Dish has a patent on DVR technology. They could just use that. They could license direcTV's technolgy or maybe the Motorola technology. There is a long way to go to prove that TiVo has a momopoly on DVRs. They would even have to prove their own patent is crap. Even if they did all that, TiVo is free to license or not license anyone they choose. That's the law.


But you are still arguing against several non-issues here.

I never said there can be no other DVR technologies out there, rather that TiVo does have a temporary monopoly on its patented DVR technology, and the other DVR technologies may not infringe on TiVo's without their consent.

If E* gets their new DVR patent application approved, they will have a temporary monopoly on their own DVR technology, along side of TiVo's DVR technology, each will have its own limited monopoly.

The monopoly does exist, one of the purposes of a patent is to create such a monopoly, a limited one I shall say, but nevertheless a monopoly.

Secondly, I never said TiVo has to license its patent to E*, only that if TiVo decides they do want to license its patent to E*, TiVo may not use this lawsuit to unfairly exploit E*, it is in violation of the fair competition law-the Antitrust law.

And of course if it is still unclear to you, I have also explained why TiVo will want to license its patent to E* if E* would only sit down and talk.


----------



## Curtis52 (Oct 14, 2003)

jacmyoung said:


> TiVo may not use this lawsuit to unfairly exploit E*, it is in violation of the fair competition law-the Antitrust law..


No one is pointing a gun at the Dish's head. They can get someone else's DVR technology if they want to.

There is no such thing as an unfair agreement. TiVo can charge whatever they want or Dish can go fish.

Even if there were such a restriction here is all TiVo would require before even agreeing on a price:

"We (Echostar) agree to pay TiVo $ _______ per month per DVR which we agree is a fair price and we do hereby beseech TiVo to accept this freely made offer."


----------



## HobbyTalk (Jul 14, 2007)

Fair, Reasonable and Non Discriminatory


----------



## jacmyoung (Sep 9, 2006)

Curtis52 said:


> No one is pointing a gun at the Dish's head. They can get someone else's DVR technology if they want to.


Your such idea sounds interesting at first glance, but in reality it is not so practical.

First we need to find out exactly how many other DVR technologies that are out there and do not infringe on the TiVo's patent. The answer is no one knows, because TiVo has yet sued anyone else.

Secondly, even if you can find another DVR technology you are so sure it does not infringe on the TiVo's patent but of course it is likely already used by one of E*'s competitor's, how likely do you think such competitor will want to save E* by letting E* use its patent, or rather see E* die so there is one less competition?

The only way to save itself is for E* to be sure their new design around does not infringe, if so E* does not need mercy from anyone, E* will be in control of its own future.

But if E* is in contempt and loses on all appeals, the best thing for E* will be to talk to TiVo, and that is usually how settlements between disputing parties come down to, I am sure you have read a few of such cases. In fact the Footprint 2.0 is a perfect example of this, after a no contempt decision, the patentee gave up a few unrealistic demands, and reached a non-litigious agreement with the infringer.



> There is no such thing as an unfair agreement. TiVo can charge whatever they want or Dish can go fish.
> 
> Even if there were such a restriction here is all TiVo would require before even agreeing on a price:
> 
> "We (Echostar) agree to pay TiVo $ _______ per month per DVR which we agree is a fair price and we do hereby beseech TiVo to accept this freely made offer."


Your theory that this is a free market and people can agree on anything they wish is fine, but they must first *agree* on those terms. If TiVo insists E* must pay $2.25, while they only charge D* $0.89, the first thing E* will do is not sign on the paper that good we accept and BTW we agree $2.25 is reasonable because we feel guilty for all the past sins committed against TiVo.

No E* does not have to just accept that. The first thing E* will do is to motion a complaint to the judge, or appropriate agencies, and the judge will apply appropriate law to ensure no unreasonable nor discriminatory practice is taking place.

Again if you read enough prior cases, you will have run into one or two of such situations already. And yes there are cases where after the win, the patentees refused to let the infringers to use their technologies, and the infringers went out of business as a result, those happened often too. But as I have said before why it will not happen in this case. It is in fact against TiVo's interest to see E* out of business.

TiVo will like to see E* do well so they can easily collect the free licensing money from E* and not have to do actual work


----------



## Curtis52 (Oct 14, 2003)

That's it for me. The horse may just die of thirst.


----------



## Presence (Mar 14, 2004)

James Long said:


> This thread is on a short leash. Don't make me put that mod hat on.


Or not. :nono2:

And look, the same three are at it again.

And what idiot cites Wikipedia as a source for law?


----------



## dfd (Aug 29, 2008)

jacmyoung said:


> Your theory that this is a free market and people can agree on anything they wish is fine, but they must first *agree* on those terms. If TiVo insists E* must pay $2.25, while they only charge D* $0.89, the first thing E* will do is not sign on the paper that good we accept and BTW we agree $2.25 is reasonable because we feel guilty for all the past sins committed against TiVo.
> 
> No E* does not have to just accept that. The first thing E* will do is to motion a complaint to the judge, or appropriate agencies, and the judge will apply appropriate law to ensure no unreasonable nor discriminatory practice is taking place.


Where do you get this stuff?

$2.25 would be grounds for E* to call Mommy and claim unfair? Would $2.00? Would $1.50? What if E* thought what D* paid was unfair and they wanted to pay less? Call Mommy until you get what you think is fair?

Where does it end?

Why would 'the judge, or appropriate agencies' care what deal is struck or not between big companies? Big companies that AFAIK do not provide for the national defense, public health, etc.

You seem to be saying that Tivo can license their IP or not but if they do they must price it 'fairly'. Since you are making this assertion, please provide a link to any law or regulation that states such.

Your FRAND stuff is pure baloney. From wikipedia: '(FRAND) refers to the obligation that is often required by Standards Setting Organizations (SSOs) for members which participate in the standard setting process'

We're talking free markets, private (non-government) companies, and patented IP here NOT a bunch of companies working together to establish standards. Apples and oranges.

If E* doesn't like the deal they don't have to sign it.


----------



## jacmyoung (Sep 9, 2006)

Regardless how emotional you feel who is right or wrong, what I said are based on law and relevant patent cases before us, which I have read, which most people relying on emotion refuse to read.

There are patent cases which the judges did just that, supervised the settlement negotiations because of complaints from either or both sides. I am not forcing anyone to agree, only to point out the facts to you. You are more than welcome to find your own case law or facts to prove there are cases where unfair parctice was allowed by the judge. Be my guest.

What is not convincing is simply call all the facts I listed irrelevant. Prove otherwise with your facts, that is how the court works. Consider yourself in TiVo's shoes, standing in front of the judge, when the judge asks you what case law do you have to support your argument, don't just tell the judge but E* is a liar, E* is a thief and E* must pay. Need to do more than that, why the lawyers are paid large sum of money.

Meanwhile I agree, might as well let it die of thirst.


----------



## dgordo (Aug 29, 2004)

jacmyoung said:


> Regardless how emotional you feel who is right or wrong, what I said are based on law and relevant patent cases before us, which I have read, which most people relying on emotion refuse to read.


Are you saying that If I have a patent on a product I have to sell it to everyone at the same price?


----------



## James Long (Apr 17, 2003)

jacmyoung said:


> Curtis52 said:
> 
> 
> > No one is pointing a gun at the Dish's head. They can get someone else's DVR technology if they want to.
> ...


Doesn't matter. It is irrelevant. It does not matter if there is other DVR technology or not ... there is NOTHING requiring TiVo to license their patent to anyone and NOTHING requiring DISH (or anyone else) to use TiVo's patent.

The only requirement is that _*IF*_ DISH (or anyone else) uses TiVo's patent they _*MUST*_ pay what TiVo asks for the use of the patent. Whether that is free or a million dollars per day per unit, the price must be paid or the patent is off limits. It doesn't have to be "practical". Patent holders are protected by law.

The system you're pushing steals patents from one company for the benefit of another company without the compensation that the patent owner has EARNED by creating the patent. That might work in another country, but this is America. The government doesn't steal people's patents without good reason.

Now you've had your fun with the fan fiction ... let's get back to the real case and what is going on in the real world - which isn't much regardless of the verbosity in this thread.

:backtotop Tivo vs Echostar ... the supreme court ruling ... reality


----------



## Greg Bimson (May 5, 2003)

Simply refusing to be emotional. Only reading more than a phrase or a sentence at a time. And not applying incorrect "standards".

Logically, this one has run its course, too.


----------



## puckwithahalo (Sep 3, 2007)

> The only requirement is that IF DISH (or anyone else) uses TiVo's patent they MUST pay what TiVo asks for the use of the patent. Whether that is free or a million dollars per day per unit, the price must be paid or the patent is off limits. It doesn't have to be "practical". Patent holders are protected by law.


Maybe I'm wrong, but i don't think he's saying that the cost has to be practical, just that if its not practical, it has to be so for everyone, within reasonable variation. I'm not saying he's right, just that I think he's saying that if Tivo wants to charg $1,000,000,000 per unit to E* that is has to charge something similar to everyone else for the right to license it, not that they can't charge whatever they want to.


----------



## Greg Bimson (May 5, 2003)

puckwithahalo said:


> Maybe I'm wrong, but i don't think he's saying that the cost has to be practical, just that if its not practical, it has to be so for everyone, within reasonable variation.


Way to cover ALL the bases, puck! 

There is no "reasonable variation" police. That's what we are getting at.

Imagine TiVo says we'll license the patented technology for $1million a month per DVR. Of course DISH/SATS will balk. Even if they tried to sue, the simple fact is TiVo doesn't have to license their technology at all.

And it isn't like DISH/SATS can sue TiVo for not allowing Time Warp functionality to be licensed. Or even if it costs $1million a unit more a month than what DirecTV is paying.

And to think this could have been settled in 2004 for a meagher dollar a DVR per month.


----------



## jacmyoung (Sep 9, 2006)

dgordo said:


> Are you saying that If I have a patent on a product I have to sell it to everyone at the same price?


No.

You are a lawyer, you should know what I said.


----------



## jacmyoung (Sep 9, 2006)

James Long said:


> ...The system you're pushing steals patents from one company for the benefit of another company without the compensation that the patent owner has EARNED by creating the patent. That might work in another country, but this is America. The government doesn't steal people's patents without good reason....


If the judge says no contempt, will you take that back?

I am not pushing any system, I am simply telling what I believe the system is based on the hundreds of cases I have read so far. And the system I believe what it is most certainly *do not* steal patents from one for the benefit of the other.


----------



## jacmyoung (Sep 9, 2006)

Greg Bimson said:


> Way to cover ALL the bases, puck!
> 
> There is no "reasonable variation" police. That's what we are getting at.
> 
> ...


But if TiVo manages to successfully license its patent to D* and Comcast for $1 million a month per DVR, TiVo will be totally reasonable to charge E* $1.2 million a month per DVR, there is nothing E* can complain about. No unreasonable nor discriminatory practice there. Both Comcast and D* are bigger than E*, can reasonably enjoy a little better rates on volume discount.

TiVo however can refuse to license its patent to E*. But if TiVo shall decide to license it to E*, the rates must be reasonable and non-discriminatory, it is the law.

Nice try Greg


----------



## dgordo (Aug 29, 2004)

jacmyoung said:


> No.
> 
> You are a lawyer, you should know what I said.


I have no idea what you are saying, thats why I asked.


----------



## James Long (Apr 17, 2003)

puckwithahalo said:


> Maybe I'm wrong, but i don't think he's saying that the cost has to be practical, just that if its not practical, it has to be so for everyone, within reasonable variation.


As Gregg pointed out, there is no reasonable variation police. But assuming there were, let us pretend using the model of one company negotiating with the patent owner - setting aside what others may or may not be paying.

Say I have a product and you want it. We start talking over the details and I set a price based on what I believe my product should be worth. You set a price based on what you believe it may be worth. The price I set will be based on many variables.

If you are a large company who wants me to turnkey design and support millions of units I'll set the price accordingly. The price of turnkey support is high ... you are going to hold me responsible for design and support. If you just want to license the module and do your own support the price will likely be lower. It is possible that I'll make more money licensing the module for 50¢ each than providing turnkey software for $3 or more ... since my expenses are less.

If you're a really large company and want to license 10 million units it isn't going to cost me much more to support 10 million than it does 1 million ... so perhaps I'll offer you a quantity discount. If you license a million I'll charge $2 each and if you license 10 million I'll charge 50¢ each. I'm not stupid ... I understand that If I charge 5 million dollars for 10 million units I'm more likely to get the money than if I asked 20 million dollars. For $20 million (especially $20 million per month) you would be more encouraged to figure out another solution that didn't involve me. Leading to me getting nothing.

So far we have a nice calm negotiation with two parties getting to a price ... now let's add in another licensee.

Say that the other licensee decided early to pay me ... as a young startup being cash poor I gave them a break and charged them a low rate in order to get my product out there and in use. Over time that rate has increased and the relationship with the other licensee has flourished.

Then you come along ... we talked years ago and even demo'd my product but instead of paying me you came up with something very similar - which was ruled to infringe my patent with that ruling being upheld all the way to the supreme court. You have spent considerable amount of time and money knocking my product. Advertising that your product is better than mine ... the relationship has been nowhere near "mutually beneficial". So whey you finally come to the table, hat in hand ready to deal you expect the early adopter rate?

My company isn't desperate ... it isn't a startup that is cash poor anymore. I don't have to cut you a deal. I can ask what I want ... and if you don't want to pay your option is to find another vendor or figure it out for yourself. The option to steal my product is not available.

In the case of Tivo vs Echostar similar paths have been taken ... except it should be noted that in the new deal between Tivo and DirecTV the "low monthly rate" is increasing. If the court ordered rate was $1.25 when DirecTV was allegedly paying 90¢ or so what should DISH pay with DirecTV's rate going up to $2? People might complain about the higher rates but what is "out of line" really is just a matter of opinion - and in this case, it doesn't seem Tivo is asking too much (yet).


----------



## James Long (Apr 17, 2003)

jacmyoung said:


> If the judge says no contempt, will you take that back?


Most of what you say has no relation nor connection to the case. The judge's decision is irrelevant to the fantasy posts we get to wade through.

If the judge says no to contempt he will also say why he believes DISH should not be held in contempt. As has been stated over and over, not in contempt does not instantly mean that DISH's products are clear of infringement.

Only when DISH is clear of infringement will they be able to sell a DVR product without paying Tivo for the rights ... and that will be a case of designing around Tivo's patent, not the government interfering in the patent process and forcing Tivo to give their patent to DISH. "Not in contempt" doesn't force Tivo to accept DISH's terms. It just means that DISH will no longer have to operate with the threat of having the named receivers shut down.

Not in contempt would be good for DISH ... but it isn't the end. Just like the Supreme Court ruling wasn't the end ... Tivo got paid for past infringement but the issues in the case continue.


----------



## James Long (Apr 17, 2003)

So ordered ... just the earlier noted name change.


----------



## puckwithahalo (Sep 3, 2007)

> As Gregg pointed out, there is no reasonable variation police. But assuming there were, let us pretend using the model of one company negotiating with the patent owner - setting aside what others may or may not be paying.


Like I said, I don't agree with his statement, I have no clue if there is such a law or not, I was just stating that that was what I thought he was getting at  I do find all the hypothetical scenarios interesting reading though.  Can we have one about a hostile takeover, or armed guards since they keep getting brought up as the only way any change besides money will ever happen? I need more reading material


----------



## dfd (Aug 29, 2008)

jacmyoung said:


> TiVo however can refuse to license its patent to E*. But if TiVo shall decide to license it to E*, the rates must be reasonable and non-discriminatory, it is the law.
> QUOTE]
> 
> What law?
> ...


----------



## jacmyoung (Sep 9, 2006)

dfd said:


> jacmyoung said:
> 
> 
> > TiVo however can refuse to license its patent to E*. But if TiVo shall decide to license it to E*, the rates must be reasonable and non-discriminatory, it is the law.
> ...


----------



## dfd (Aug 29, 2008)

'The Anti trust law' is not really citing a source is it?

And once again you are confusing apples and oranges. Tivo is making their case for damages and in this context they must convince the judge what 'reasonable' is.

A patent is a legal monopoly. A patent holder has rights to do what ever they want with their patent - antitrust will not come in to play.

There are MANY exemptions from anti trust laws. MLB, NFL, patent holders to cite a few.

Standards and Contracts are important to the parties that AGREE to them. They are not binding on parties outside of the agreement are they? Can I demand to pay the same price to get my lawn cut as the guy next door? How is what he is paying relevant to what I am charged? It is a private (non-government) contract where both parties come to terms on a price. If one party doesn't agree then no contract. Capitalism 101.


----------



## nobody99 (May 20, 2008)

<decloak>

Oh, jacmyoung, get a friggin' clue.

Our own lovable Judge Folsom himself gave Toyota a compulsory license, but only *after* he failed to give Paice a permanent injunction.

</decloak>

http://www.uhlawblog.com/2008/01/ar...ortend-compulsory-licensing-by-judicial-fiat/



> A patent creates a right to exclude and, where the patent owner prefers to exercise that right, it should not be forced into a licensing arrangement resulting from a case in which it prevailed on the infringement claim. There may be some cases in which vital public policy interests justify this result, but those cannot be grounded simply in the fact that the court denied a permanent injunction or the parties have not agreed to license terms. A remedy should not penalize the person to whom the remedy is awarded.


----------



## Ergan's Toupe (Aug 21, 2008)

dfd said:


> 'The Anti trust law' is not really citing a source is it?
> 
> And once again you are confusing apples and oranges. Tivo is making their case for damages and in this context they must convince the judge what 'reasonable' is.
> 
> ...


This post makes so much sense that I will go out on a limb and predict that Jacy's response will be under 300 words of which the majority will be "I believe", In my opinion", "I have read hundreds" "Tivo themselves said", etc.

:bang


----------



## Greg Bimson (May 5, 2003)

jacmyoung said:


> But you TiVo folks need not listen to what I am saying, just listen to what TiVo's is saying:
> 
> 1) In arguing for a rate hike from $1.25 to $2.25, TiVo had to make it could prove it is fair, otherwise the judge will not agree to it. TiVo knows it is important to be fair, which was why TiVo did not say look we want $5.00 because it is free market, I can ask whatever I want. TiVo also know, if the lawyers have read the case law, the settlement must also be fair, if not E* can motion the judge to resolve the dispute, yes the judge has the power to solve such dispute.





> TiVo Counsel Christine Byrd: The other reason is because on the royalty rate we have applied, we have raised the royalty rate from $1.25 to $2.25. Now this is not a very substantial raise. It's fairly reasonable. In fact, during this same time period Echostar actually raised its rates on its DVR's by the same dollar. So we are simply raising the proposed royalty rate by the same amount that Echostar raised its rates. Echostar was collecting that extra dollar through this time period, and so that would apply to the damages.


And let's not forget the day before the hearing DirecTV stated they'll be paying $2.25 for the new TiVo DVR in 2009. There is free market royalties set at that price.

Besides, the amount requested during damages and the amount requested for licensing can be different amounts.


jacmyoung said:


> 2) TiVo has said on 9/4 that E* had begun to use a DVR technology that was different than TiVo's patented technology. TiVo's lead lawyer was quoted by a Reuters report for saying so. Yes some TiVo's investors insisted he was mis-quoted, but TiVo never denied it and the story was never retracted. You have to decide who to believe.





> The Reuters sentence:
> EchoStar, instead, continued collecting subscription fees for the infringing DVRs and replaced the infringing software with a "work-around" that does not use TiVo's patented technology, TiVo lawyers said.


TiVo's lead lawyer was not "quoted". No one was quoted. A reporter tried to summarize (incorrectly) the status of this case. A reporter got a fact wrong. It happens all the time.


jacmyoung said:


> 3) TiVo is now saying they are confident they will win because as TiVo says E*'s "continued infringement" of its pattent. Yes TiVo is saying "continued infringement" is the issue here, *TiVo did not say "disobeying the order" is the issue, at least not in its latest statement*.





> Statement from TiVo:
> "We are pleased to have received $104,600,472 from EchoStar on October 8, 2008, which includes the initial $74 million in damages awarded by the United States District Court for EchoStar's willful patent infringement as well as supplemental damages covering the period through September 8, 2006 and interest. We remain confident that *the District Court will enforce the injunction* and award further damages from EchoStar's continued infringement of our Time Warp patent."


Welcome to Refute Alley.


----------



## jacmyoung (Sep 9, 2006)

nobody99 said:


> <decloak>
> 
> Oh, jacmyoung, get a friggin' clue.
> 
> ...


Maybe you should get a clue first, Toyota never had a chance to be in contempt, because there was never an injunction.


----------



## nobody99 (May 20, 2008)

jacmyoung said:


> Maybe you should get a clue first, Toyota never had a chance to be in contempt, because there was never an injunction.


My mistake. I have fixed my post. I mis-spoke, but the point is the same.

When I said "when he failed to hold them in contempt" I had intended to say "failed to grant Paice a permanent injunction"

Read the article I posted. The article's entire point is that only after failing to grant a permanent injunction are compulsory licenses even considered. That ship has long ago sailed.


----------



## jacmyoung (Sep 9, 2006)

nobody99 said:


> My mistake. I have fixed my post. I mis-spoke, but the point is the same.
> 
> When I said "when he failed to hold them in contempt" I had intended to say "failed to grant Paice a permanent injunction"
> 
> Read the article I posted. The article's entire point is that only after failing to grant a permanent injunction are compulsory licenses even considered. That ship has long ago sailed.


Well then I don't think E* will totally object to Pace method by Judge Folsom, like no injunction, instead a compulsory licensing term determined by the judge.


----------



## jacmyoung (Sep 9, 2006)

dfd said:


> 'The Anti trust law' is not really citing a source is it?
> 
> And once again you are confusing apples and oranges. Tivo is making their case for damages and in this context they must convince the judge what 'reasonable' is.
> 
> ...


A patent monopoly is a temporary monopoly that gives the patent owner the right to refuse to allow others to use its technology, or allow others to use it for a fee, or for free, but not the right to charge unreasonable fees to use it.

All companies must obey the Antitrust law, in which one of the rules prohibits agreements and practices that are anti-competition. When negotiating agreements all of them must obey the law, patented or not. The patent law has no over-riding power on the Antitrust law. One cannot violate any law, if one does, there is the basis for the other party to seek relief from the court.


----------



## jacmyoung (Sep 9, 2006)

Greg Bimson said:


> And let's not forget the day before the hearing DirecTV stated they'll be paying $2.25 for the new TiVo DVR in 2009. There is free market royalties set at that price.


If you are correct that one year from now D* will begin to pay $2.25 for the use of the new MPEG4 DirecTiVo HDDVRs, then absolutely it will be a fair rate for that time and for that kind of HDDVRs.

In this case a fair license agreement may look something like:

E* to pay $1.00 per DVR, and by next year this time to begin to pay $2.50 for a new generation of E*/TiVo MPEG4 HDDVR.



> Besides, the amount requested during damages and the amount requested for licensing can be different amounts.


I agree.

The point I made about TiVo arguing the increase from $1.25 to $2.25 was that even TiVo knows the meaning of being *fair*, because that was what they said to the judge.

That is not to say the $2.25 rate will be a fair rate accepted by the judge, because the judge never said he would adopt the $2.25 rate, he only told E*'s lawyer he had the power to change the rate.

The problem with TiVo's argument of a rate increase of $1.00 is, as they argued because E* increased its DVR charge to its customer by $1.00. But the $1.25 rate was never determined based solely on what E* was charging its customers in the first place, because E* was charging much more than $1.25, more like $4.99 at the time.

The $1.25 rate was based a range of factors, such as how much a wholesale rate TiVo would have charged other provider such as E* or D*, how much TiVo was charging its own customers, I recall at the time around $10/mo. but not too sure, and the probability that what percentage of people would have left E* and went to TiVo or D* or others, etc.

Therefore it is not logical to say just because E* had raised its DVR fee by $1.00, all the sudden the royalty rate for damage calculation will just follow that and hiked up to $2.25. Or put it this way, if TiVo calculated $2.25, they must have been using a totally different model than what the judge allowed the jury to use.

But of course the judge will decide what will be the fair rate in his ruling.



> TiVo's lead lawyer was not "quoted". No one was quoted. A reporter tried to summarize (incorrectly) the status of this case. A reporter got a fact wrong. It happens all the time.Welcome to Refute Alley.


As far as whether the Reuters reporter had misquoted Mr. Chu or not, it is of course your opinioin, I did not hear TiVo nor Mr. Chu making any statement to correct that report. So the question is who is more believable, you or the reporter. I am not saying people must believe the reporter, just that they will have to make the judgment for themselves.


----------



## dgordo (Aug 29, 2004)

jacmyoung said:


> The patent law has no over-riding power on the Antitrust law.


Wrong, to the extent that one is engaged in conduct permitted by patent laws, one is immunized from antitrust laws.


----------



## nobody99 (May 20, 2008)

jacmyoung said:


> Well then I don't think E* will totally object to Pace method by Judge Folsom, like no injunction, instead a compulsory licensing term determined by the judge.


I'm going back into hibernation. Once again, you *COMPLETELY* miss the point. Compulsory licenses are only available when an injunction is not granted because:



> * In context, the absence of an injunction would not adversely affect the patent holder's ability to license the patent to others.
> * The patent holder did not actually manufacture any goods, and there was no threat that it would lose name recognition or market share without an injunction.
> * Monetary damages were adequate as suggested by the fact that the patent owner had offered to license Toyota during the post-trial period.
> * The balance of hardships favored Toyota since issuing an injunction would disrupt not only its business, but that of suppliers, dealers and others.


in this case, the injunction was granted so the rest of it's moot.


----------



## jacmyoung (Sep 9, 2006)

nobody99 said:


> I'm going back into hibernation. Once again, you *COMPLETELY* miss the point. Compulsory licenses are only available when an injunction is not granted because:
> 
> in this case, the injunction was granted so the rest of it's moot.


A compulsory agreement is not what I am talking about, a compulsory agreement is usually arranged by the court in lieu of say an injunction.

In this case, I am talking about a post-infringement-contempt scenario, when a voluntary agreement is worked out by the parties. In negotiating such agreement, if the patentee uses unfair business practice which is in violation of the law, the other party can certainly seek relief from the court.

It usually do not get to that point because the patentee understands a win on the patent infringement suit does not give it a free ride on over-charging the infringer, and the infringer also understands as long as the demand from the patentee is reasonable, he will have to accept it or faced with interruption of the business.

But occasionally disputes still exist, it is not unheard of the judge in the case was asked to resolve the dispute, but not to issue a compulsory order.

Another point to make is, almost always, when a patentee is suing an alleged infringer, the patentee will state to the court that he intends to seek reasonable and non-discriminatory agreement with all parties for the use of his invention. Without such statement the success of its lawsuit will be seriously undermined. Because if so it can be charged for patent fishing, price gouging, or some others. Why TiVo has consistently said they will offer reasonable licensing agreement to anyone.

If TiVo is charging D* $0.89, and Comcast $0.79 (just guessing), then it will certainly be unfair to charge E* $2.25. The threat by the patentee is never that he will charge a premium if he wins, rather that if he wins, the infringer will have to pay the damages and have its business interrupted or even destroyed, and in the latter, not by over-charging, but by refusing to let the infringer to use the technology at all.

But let's not get too far ahead of ourselves. There is no indication that a settlement will be reached before the judge's next ruling. And if the judge rules E* not in contempt, E* will be able to continue to use its DVRs as before without any license agreement from TiVo.


----------



## dfd (Aug 29, 2008)

jacmyoung said:


> A compulsory agreement is not what I am talking about, a compulsory agreement is usually arranged by the court in lieu of say an injunction.
> 
> In this case, I am talking about a post-infringement-contempt scenario, when a voluntary agreement is worked out by the parties. In negotiating such agreement, if the patentee uses unfair business practice which is in violation of the law, the other party can certainly seek relief from the court.
> 
> ...


Who defines 'reasonable'?

Can you cite an example of where a patent holder was sued for trying to license their patent for an 'unreasonable' amount?

How is the patent holder's case undermined if they don't make the statements you say they usually do? This case, and others, is about if the patent was violated NOT about licensing after the case is resolved.

Did you read what dgordo posted?

One more question, what color is your sun?


----------



## Greg Bimson (May 5, 2003)

jacmyoung said:


> In this case a fair license agreement may look something like:
> 
> E* to pay $1.00 per DVR, and by next year this time to begin to pay $2.50 for a new generation of E*/TiVo MPEG4 HDDVR.


Yet DirecTV has never been sued by TiVo, and already has an agreement with TiVo.

And it still doesn't change the fact that TiVo can offer a settlement for $3 per month on EVERY DVR DISH/SATS has in service. If DISH/SATS declines and are forced to disable a subset of those receivers, so be it. Market value changes with an impending cut-off.


----------



## nobody99 (May 20, 2008)

jacmyoung said:


> In this case, I am talking about a post-infringement-contempt scenario, when a voluntary agreement is worked out by the parties. In negotiating such agreement, if the patentee uses unfair business practice which is in violation of the law, the other party can certainly seek relief from the court.


Honestly, how do you even get outside your front door without tripping over your own logic errors?

Seriously, do you even read what you write?


----------



## jacmyoung (Sep 9, 2006)

Greg Bimson said:


> Yet DirecTV has never been sued by TiVo, and already has an agreement with TiVo.
> 
> And it still doesn't change the fact that TiVo can offer a settlement for $3 per month on EVERY DVR DISH/SATS has in service. If DISH/SATS declines and are forced to disable a subset of those receivers, so be it. Market value changes with an impending cut-off.


In that case I can bet 100% E* will decline and rather disable the 4 million DVRs and replace them with the new models, assume of course there is a contempt, but at the meantime E* can certainly file a complaint to the court for unfair business practice, seeking a declaratory judgment from the court, and the Declaratory Jugment Act was enacted for such purpose.


----------



## Ergan's Toupe (Aug 21, 2008)

jacmyoung said:


> In that case I can bet 100% E* will decline and rather disable the 4 million DVRs, but at the meantime E* can certainly file a complaint to the court for unfair business practice.


C'mon. Stop. You're KILLING ME!!! !rolling

Is this the part where you tell us Charlie has Tivo exactly where he wants them?


----------



## jacmyoung (Sep 9, 2006)

Correction, in that case E* can agree to the contract but make the payments under protest and file a complaint seeking a declaratory judgment from the court. The Declaratory Judgment Act was enacted for such purpose.

I will post a SC case link soon when I have a chance.


----------



## dfd (Aug 29, 2008)

jacmyoung said:


> In that case I can bet 100% E* will decline and rather disable the 4 million DVRs and replace them with the new models, assume of course there is a contempt, but at the meantime E* can certainly file a complaint to the court for unfair business practice, seeking a declaratory judgment from the court, and the Declaratory Jugment Act was enacted for such purpose.


Please cite a law where a patent holder must license their patent at a 'reasonable' rate.

OR

Cite an example of the court ordering such an agreement.

Oh, and it cannot be an agreement/order that involves national security or the public health/welfare.


----------



## jacmyoung (Sep 9, 2006)

And BTW the link I will post is for those who may care to read


----------



## Ergan's Toupe (Aug 21, 2008)

jacmyoung said:


> And BTW the link I will post is for those who may care to read


I'm all pins and needles!!! :lol:


----------



## James Long (Apr 17, 2003)

jacmyoung said:


> Well then I don't think E* will totally object to Pace method by Judge Folsom, like no injunction, instead a compulsory licensing term determined by the judge.


Why should DISH pay a compulsory license for a patent they no longer use? That would be DISH's first objection to a compulsory license. Tivo also has a voice in the process too. Your logic is flawed.


jacmyoung said:


> In this case a fair license agreement may look something like:
> E* to pay $1.00 per DVR, and by next year this time to begin to pay $2.50 for a new generation of E*/TiVo MPEG4 HDDVR.


Fair to who? Certainly not to Tivo who have spent years successfully defending their patent. You want an "all is forgiven" price? No way. There is too much bad blood between the parties.

Tivo will have to accept the court's decision on damages for PAST continued infringement ... but when it comes to the settlement/future licensing the ball is in their court (as long as DISH still needs to buy the ball). Tivo sets the price.


jacmyoung said:


> In this case, I am talking about a post-infringement-contempt scenario, when a voluntary agreement is worked out by the parties. In negotiating such agreement, if the patentee uses unfair business practice which is in violation of the law, the other party can certainly seek relief from the court.


If it is a voluntary agreement then Tivo can choose any price they can get. Otherwise what you describe is NOT voluntary.


----------



## puckwithahalo (Sep 3, 2007)

> Please cite a law where a patent holder must license their patent at a 'reasonable' rate.


Again, I don't think he's arguing that is has to be a reasonable rate, just that it has to be fair in comparison to the rate that others are charged for it. I'm not saying I agree with him, just that he's not arguing that it has to be reasonable. He's arguing that if Tivo wants to charge E* $1,000,000 per box, then they have to charge everyone else something within' reasonable variation of that to be fair. But that is far from a reasonable cost.

So to reiterate, the argument isn't about reasonable, its about fair. And again, not my argument, just the one he's making. (jacmyyoung, correct me if I'm wrong stating that)


----------



## James Long (Apr 17, 2003)

jacmyoung said:


> And BTW the link I will post is for those who may care to read


I just hope it has something to do with THIS case.

So many wild tangents ...


----------



## James Long (Apr 17, 2003)

puckwithahalo said:


> Again, I don't think he's arguing that is has to be a reasonable rate, just that it has to be fair in comparison to the rate that others are charged for it.


He needs to post a cite or link where such behavior is required of the plaintiff after WINNING an infringement case (all the way to the Supreme Court) and getting an injunction against their infringer.

Everyone wants a fair rate ... but there is no requirement one be offered. Especially one that seems to be only fair to the infringer.


----------



## dishguy77 (Oct 9, 2008)

jacmyoung said:


> In that case I can bet 100% E* will decline and rather disable the 4 million DVRs and replace them with the new models


Hi guys, I've avoided posting in this thread to this point but I just gotta say... What?!? There is no way in hell, heaven, or earth that E* is going to willfully disable 4 million DVR units. I think Charlie would rather spend physical time in prison. This would be crushing to their business and would lead to a mass exodus. Isn't that the reason they've gotten to the point of contempt?

DISH/SATS know they are going to take it hard, there is no doubt they will be forced to comply or settle at some point. If for no other reason than to keep their DVR units functioning. The only question that remains is how hard are they going to get it? We'll see it play out soon enough.


----------



## jacmyoung (Sep 9, 2006)

http://www.supremecourtus.gov/opinions/06pdf/05-608.pdf

I will now provide my take on the issue, but since I am not a lawyer, there certainly can be misinterpretation. Though I suggest if anyone care to respond please be patient and first read through the above link.

When one party is under a serious threat and is coerced into making a payment against its will, that party may seek a declaratory judgment from the court against the threatening party.

First off, the Declaratory Judgment Act is a medium for securing an advisory opinion in an apparent controversy that is of sufficient immediancy and reality to warrant such relief.

The argument is, TiVo clearly has the threat of the court actions on its side, and TiVo's $3.00 rate as suppose the $0.89 rate it gives D* (the E*'s direct competitor) will obviously put E* in a substantial competitive disadvantage with D*, and since DVR business is a significant part of E*'s business, such condition will no doubt severely harm E*.

Yet E* has no choice, either it refuses to accept the agreement and have their 4 million DVRs disabled (assume there is a contempt of course), which will certainly and seriously injure its business, or E* agrees to it and pay a much higher fee and put itself in a substantial disadvantage with its direct competitor, which will also result in serious injury to its business.

And by accepting such agreement, but make the payment in protest, there is a clear case for seeking a declaratory judgment against TiVo's unfair demand.

Since it will be clear such agreement is unfair, the court will most likely rule in E*'s favor, and ask the two parties to go back and reach a fair agreement.

Now I also want to make one thing very clear here, we can of course disagree on what may be considered a fair payment, but the above case proves one thing, there is a venue for E* to seek relief, if there is a dispute of the agreement. The Declaratory Judgment Act is precisely for such occasion.


----------



## James Long (Apr 17, 2003)

jacmyoung said:


> Yet E* has no choice, either it refuses to accept the agreement and have their 4 million DVRs disabled (assume there is a contempt of course), which will certainly and seriously injure its business, or E* agrees to it and pay a much higher fee and put itself in a substantial disadvantage with its direct competitor, which will also result in serious injury to its business.


Echostar gave up it's right to choose when they infringed on Tivo's patent. The choice in patent cases is clear ... pay the price or don't infringe.

They should have made a better choice before putting four million infringing receivers in the field. It isn't Tivo's fault that DISH infringed. Why should Tivo be punished?


----------



## Ergan's Toupe (Aug 21, 2008)

dishguy77 said:


> Hi guys, I've avoided posting in this thread to this point but I just gotta say... What?!? There is no way in hell, heaven, or earth that E* is going to willfully disable 4 million DVR units. I think Charlie would rather spend physical time in prison. This would be crushing to their business and would lead to a mass exodus. Isn't that the reason they've gotten to the point of contempt?
> 
> Yes it is.
> 
> DISH/SATS know they are going to take it hard, there is no doubt they will be forced to comply or settle at some point. If for no other reason than to keep their DVR units functioning. The only question that remains is how hard are they going to get it? We'll see it play out soon enough.


It all depends on the "stubborn" one.


----------



## jacmyoung (Sep 9, 2006)

James Long said:


> Echostar gave up it's right to choose when they infringed on Tivo's patent. The choice in patent cases is clear ... pay the price or don't infringe.
> 
> They should have made a better choice before putting four million infringing receivers in the field. It isn't Tivo's fault that DISH infringed. Why should Tivo be punished?


Did you read the case? It was precisely when the petitioner had no choice but be coerced into an agreement or payment that the declaratory judgment option is there for them.

Again I will paraphrase it:

The standards for determining whether a particular declaratory judgment action satisfies the case-or-controversy requirement is whether the facts alleged under all the circumstances, show that there is a substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality to warrant such relief.

Now of course that is not to say once the court decides to grant E*'s motion for such relief, it will automatically find in E*'s favor. The court of course must determine if the agreement is indeed unfair, and if the relief is indeed warranted.

But the problem is, in most of the past posts we had TiVo fans one after the other trying to ridicule the mere idea that E* has the legal right to seek the court for relief when it sees a clear unfair agreement, I hope the above standards will make them a little bit more careful for what they say next time before they pretend they know what the law is without reading it.


----------



## Ergan's Toupe (Aug 21, 2008)

jacmyoung said:


> But the problem is, in most of the past posts we had TiVo fans one after the other trying to ridicule the mere idea that E* has the legal right to seek the court for relief when it sees a clear unfair agreement, I hope the above standards will make them a little bit more careful for what they say next time before they pretend they know what the law is without reading it.


You have outdone yourself!!!

BRAVO!!!! :bowdown:


----------



## James Long (Apr 17, 2003)

jacmyoung said:


> Did you read the case? It was precisely when the petitioner had no choice but be coerced into an agreement or payment that the declaratory judgment option is there for them.
> 
> Again I will paraphrase it:


No need. Repeating your position doesn't validate it.

Why do you believe DISH has no choice but to take whatever deal Tivo offers?
Why do you use inflamatory words such as "coerced"?

DISH has the choice to not infringe. Ask DISH and they believe they have taken that choice. In the past they chose to infringe. Would you prefer that Tivo is coerced into allowing DISH (and others) to steal Tivo's patent at any price the offenders want to pay?


----------



## dgordo (Aug 29, 2004)

jacmyoung said:


> First off, the Declaratory Judgment Act is a medium for securing an advisory opinion in an apparent controversy that is of sufficient immediancy and reality to warrant such relief.


Huh, the courts are not allowed to enter advisory opinions nor deal with apparent controversies, only actual controversies. Read Muskrat v. United States, 219 U.S. 346 (1911)

You clearly have no idea what a declaratory judgment is used for. Read 28 U.S.C. 2201-2


----------



## dgordo (Aug 29, 2004)

jacmyoung said:


> Did you read the case? It was precisely when the petitioner had no choice but be coerced into an agreement or payment that the declaratory judgment option is there for them.
> 
> Again I will paraphrase it:
> 
> The standards for determining whether a particular declaratory judgment action satisfies the case-or-controversy requirement is whether the facts alleged under all the circumstances, show that there is a substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality to warrant such relief.


All you did was paraphrase the standard a court must use to determine whether they may hear a case of any kind.

And you still have not admitted that you are wrong and that having a valid patent is an exemption from antitrust law.


----------



## jacmyoung (Sep 9, 2006)

James Long said:


> ... Why should Tivo be punished?


Who said TiVo should be punished?

Let's clarify a few things here if not already.

E* infringed, and as a result they paid $104 million, and if E* is in contempt they will pay much more depending on the judge's ruling. There is never dispute here, I hope everyone understands that.

The question is, if TiVo, after being compensated of all the wrongs E* had commited on it, may then decide to use such potential court threat to do E* some wrong.

And whether TiVo may try to do E* wrong by coercing it to pay a much higher fee is not even the question here. Of course they can if they choose to.

The question is, if TiVo does that, does E* have the right to seek relief from the court.

And several of those TiVo fans laughed at the notion that E* actually has such legal right.

And my above SC case proved them dead wrong.


----------



## James Long (Apr 17, 2003)

jacmyoung said:


> And my above SC case proved them dead wrong.


You do realize that the SCOTUS case you linked was an agreement between two parties that went sour. Basically a "bait and switch" arrangement where one party agreed to pay the fee for one patent and the patentee tried to use a second patent as leverage to charge more.

There is no base agreement between Tivo and Echostar. From day one Echostar used Tivo's patent without permission. A choice that they freely made.


----------



## dgordo (Aug 29, 2004)

jacmyoung said:


> And my above SC case proved them dead wrong.


You have no idea what that case is ruling.


----------



## jacmyoung (Sep 9, 2006)

dgordo said:


> ...And you still have not admitted that you are wrong and that having a valid patent is an exemption from antitrust law.


Can you show me where in the patent law does it say it has minimized the power of the Antitrust law?

Does the patent law minimize the prohibition of cartels?

Does the patent law minimize the prohibition of anti-competitive agreement and practice?

Did the patent law minimize the prohibition of price gouging?

...

The only thing I read about the patent law is the right to a temporary monopoly granted by the state to the patent owner, his right to refuse to let others use its invention, or his right to let others use its invention for a fee, or his right to allow the use by the others for free.

Where did it say the patent owner may use his patent to creat an anti-competitive environment in the relevant market? It goes directly against the purpose of the law.


----------



## jacmyoung (Sep 9, 2006)

James Long said:


> You do realize that the SCOTUS case you linked was an agreement between two parties that went sour. Basically a "bait and switch" arrangement where one party agreed to pay the fee for one patent and the patentee tried to use a second patent as leverage to charge more.
> 
> There is no base agreement between Tivo and Echostar. From day one Echostar used Tivo's patent without permission. A choice that they freely made.


Again you did not read the whole case and you still did not care what is the argument here.

In that SC case it cited many cases, one of which had an injunction, and the infringer was forced to make payments he did not agree, but he had no choice because the alternative was to stop the payments in protest of the injunction, which would result in treble damages. Besides, the Declaratory Judgemnet act covers all kinds of situations.

Secondly, please understand I am not talking about the past, rather a potential future license agreement between E* and TiVo. The dispute is, TiVo fans think in a future such agreement, TiVo can charge E* whatever it wishes. And E* has no recourse.

The Declaratory Judgment Act is E*s recourse, and if TiVo is found unfair, the court can order them to go back to reach a fair agreement.

Again the current debate has nothing to do with the past, only that if TiVo insists on a much higher and unfair rate in a future possible license agreement talk, whether E* has the legal right to seek relief from the court.

The answer is yes.


----------



## jacmyoung (Sep 9, 2006)

dgordo said:


> You have no idea what that case is ruling.


Why don't you tell us what it is?

My idea is the SC overturned the Circuit Court's refusal to grant the petitioner's motion to seek a declaratory judgment. While that particular patent case has some differences compared to the situations we are in debate now, if you read it through, in there is a case which the petitioner was forced to make payments he did not agree, due to the threat of an *existing* injunction.

Hoestly, as a lawyer, tell me how the above case failed to prove my point, that if in the future TiVo forces E* to pay an unfair fee because of the threat of the injunction, E* will have the recourse under the Declaratory Judgment Act. Yes E* may have to first agree to such unfair agreement and make the payment for fear of losing its business, but E* can certainly seek relief from the court.


----------



## dgordo (Aug 29, 2004)

jacmyoung said:


> Why don't you tell us what it is?
> 
> My idea is the SC overturned the Circuit Court's refusal to grant the petitioner's motion to seek a declaratory judgment. While that particular patent case has some differences compared to the situations we are in debate now, if you read it through, in there is a case which the petitioner was forced to make payments he did not agree, due to the threat of an injunction.
> 
> Hoestly, as a lawyer, tell me how the above case failed to prove my point, that if in the future TiVo forces E* to pay an unfair fee because of the threat of the injunction, E* will have the recourse under the Declaratory Judgment Act. Yes E* may have to first agree to such unfair agreement and make the payment for fear of losing its business, but E* can certainly seek relief from the court.


We must decide whether Article III's limitation of federal courts' jurisdiction to "Cases" and "Controversies,"reflected in the "actual controversy" requirement of the Declaratory Judgment Act, 28 U. S. C. §2201(a), requires a patent licensee to terminate or be in breach of its license agreement before it can seek a declaratory judgment that the underlying patent is invalid, unenforceable, or not infringed.

The only ruling in that case was that a case or controversy existed between those parties despite a valid license and that the license need not be terminated for a case or controversy to exist.


----------



## jacmyoung (Sep 9, 2006)

dgordo said:



> We must decide whether Article III's limitation of federal courts' jurisdiction to "Cases" and "Controversies,"reflected in the "actual controversy" requirement of the Declaratory Judgment Act, 28 U. S. C. §2201(a), requires a patent licensee to terminate or be in breach of its license agreement before it can seek a declaratory judgment that the underlying patent is invalid, unenforceable, or not infringed.
> 
> The only ruling in that case was that a case or controversy existed between those parties despite a valid license and that the license need not be terminated for a case or controversy to exist.


Very well, the situation we are debating now is:

E* and TiVo enter into a license agreement, in which TiVo charges E* $3 while charging D* or Comcast only $0.89. E* does not agree, but TiVo says if not you must disable all your 4 million DVRs.

E* says fine I will sign it, and makes the payment, but once E* signs it and makes the payment, tell me based on the above case, will E* have the right to seek a declaratory judgment from the court aginst TiVo, citing unfair business practice?


----------



## phrelin (Jan 18, 2007)

dgordo said:


> We must decide whether Article III's limitation of federal courts' jurisdiction to "Cases" and "Controversies,"reflected in the "actual controversy" requirement of the Declaratory Judgment Act, 28 U. S. C. §2201(a), requires a patent licensee to terminate or be in breach of its license agreement before it can seek a declaratory judgment that the underlying patent is invalid, unenforceable, or not infringed.


*We* must? Well that's a relief for the judges.


----------



## dgordo (Aug 29, 2004)

jacmyoung said:


> Can you show me where in the patent law does it say it has minimized the power of the Antitrust law?
> 
> Does the patent law minimize the prohibition of cartels?
> 
> ...


I would need to look at westlaw in my office, but I would say to read Illinois Tool Works v. Independent Ink.


----------



## dgordo (Aug 29, 2004)

phrelin said:


> *We* must? Well that's a relief for the judges.


I was quoting an opinion, those were the judges words, I thought that was obvious.


----------



## dfd (Aug 29, 2008)

jacmyoung said:


> Can you show me where in the patent law does it say it has minimized the power of the Antitrust law?
> 
> Does the patent law minimize the prohibition of cartels?
> 
> ...


Your answer is in your post.

'temporary monopoly' = legal antitrust activity
'temporary' is for the life of the patent


----------



## dgordo (Aug 29, 2004)

jacmyoung said:


> Very well, the situation we are debating now is:
> 
> E* and TiVo enter into a license agreement, in which TiVo charges E* $3 while charging D* or Comcast only $0.89. E* does not agree, but TiVo says if not you must disable all your 4 million DVRs.
> 
> E* says fine I will sign it, and makes the payment, but once E* signs it and makes the payment, tell me based on the above case, will E* have the right to seek a declaratory judgment from the court aginst TiVo, citing unfair business practice?


A declaratory judgment would not be helpful to E in this situation, what would they want a declaration to? In the case you cited a declaratory judgment was requested to declare a patent invalid to avoid paying further fees.


----------



## jacmyoung (Sep 9, 2006)

dgordo said:


> I would need to look at westlaw in my office, but I would say to read Illinois Tool Works v. Independent Ink.


I'd love to see it, if you can link it for us or quote a few.


----------



## jacmyoung (Sep 9, 2006)

dfd said:


> ...'temporary monopoly' = legal antitrust activity...


Which one?

Legally price gouging? Legally creat a cartel? Legally force anti-competitive agreements?...


----------



## dfd (Aug 29, 2008)

dgordo said:


> We must decide whether Article III's limitation of federal courts' jurisdiction to "Cases" and "Controversies,"reflected in the "actual controversy" requirement of the Declaratory Judgment Act, 28 U. S. C. §2201(a), requires a patent licensee to terminate or be in breach of its license agreement before it can seek a declaratory judgment that the underlying patent is invalid, unenforceable, or not infringed.


I Googled, "Article III's limitation of federal courts" and learned something today.

Thanks.


----------



## jacmyoung (Sep 9, 2006)

dgordo said:


> A declaratory judgment would not be helpful to E in this situation, what would they want a declaration to? In the case you cited a declaratory judgment was requested to declare a patent invalid to avoid paying further fees.


A declaratory judgment can be for many things, in this case it would be to declare TiVo engaged in unfair licensing practice and such agreement is unenforceable.

If so, E* might be able to stop the payment and continue to use the DVRs, until a resolution is reached, without fear of court punishment.


----------



## dfd (Aug 29, 2008)

jacmyoung said:


> Which one?
> 
> Legally price gouging? Legally creat a cartel? Legally force anti-competitive agreements?...


Call it what you want, it is the reward for creating the patent.

That is probably the main reason why patents are sought after; to create advantagous positions.


----------



## dgordo (Aug 29, 2004)

jacmyoung said:


> A declaratory judgment can be for many things, in this case it would be to declare TiVo engaged in unfair licensing practice and such agreement is unenforceable.
> 
> If so, E* might be able to stop the payment and continue to use the DVRs, until a resolution is reached, without fear of court punishment.


I agree that a declaratory judgment could be used to have a contract declared invalid. I disagree that a patent holder can not use a discriminatory licensing practice.


----------



## peak_reception (Feb 10, 2008)

dgordo said:


> I agree that a declaratory judgment could be used to have a contract declared invalid. I disagree that a patent holder can not use a discriminatory licensing practice.


 What if a bigoted patent holder decided to deny any license at any cost to black owned businesses for example? (and brazenly stated that such was their policy). Would patent rights protect that kind of discrimination? Seems unlikely. I would think there are other exceptions too but I'm not a lawyer.


----------



## dgordo (Aug 29, 2004)

peak_reception said:


> What if a bigoted patent holder decided to deny any license at any cost to black owned businesses for example? (and brazenly stated that such was their policy). Would patent rights protect that kind of discrimination? Seems unlikely. I would think there are other exceptions too but I'm not a lawyer.


Sorry for not being clear, I was referring to price discrimination.


----------



## peak_reception (Feb 10, 2008)

dgordo said:


> Sorry for not being clear, I was referring to price discrimination.


 Ok, thanks. On pricing I agree 100%. I might not have read the lead up posts carefully enough.


----------



## jacmyoung (Sep 9, 2006)

dgordo said:


> I agree that a declaratory judgment could be used to have a contract declared invalid. I disagree that a patent holder can not use a discriminatory licensing practice.


I don't think I was insisting a patent holder may not use a discriminatory licensing practice, rather not to engage in anti-competitive practice. For a simple reason, part of the goal of the patent law is in fact to encourage competition as well, not to stifle it.

It is true that proving patent misuse is difficult, but it will be obvious if a patent holder use discriminatory pricing on two or more licensees who are direct competitors in the same territory and provide the same kind of products/services, and the potential result of such practice will be to eliminate one licensee in favor of the others, and in doing so not ultimately benefit the patentee itself either, because if one licensee is eliminated it does not necessarily benefit the patentee.

Another often successful proof of patent misuse is when the patentee itself is actively participating in the same products/services along with the licensees, its conduct is usually much more restricted for obvious reason.

If TiVo should over charge E* but not D* nor Comcast, such practice will be retaliatory in nature, not even to promote its own innovation or benefit from it by TiVo itself.

I have read allowed discriminatory practice by a patent owner, but usually it involved exclusive licensing (i.e. license to one but not the others), or bundling/tying discount, or granting preferable pricing to licensee who was capable of producing products that other licensees were not capable of producing, and even price discrimination among different service territories. Unfortunately, none of the above conditions exists here.

TiVo over-charging E* but not D* or Comcast, while itself is also actively providing the same product/service, would clearly be an anti-competitive and a bad-faith practice.


----------



## James Long (Apr 17, 2003)

jacmyoung said:


> Very well, the situation we are debating now is:
> 
> E* and TiVo enter into a license agreement, in which TiVo charges E* $3 while charging D* or Comcast only $0.89. E* does not agree, but TiVo says if not you must disable all your 4 million DVRs.


Actually, your fan fiction is not the topic of this thread. Tolerance has ended. I was hoping you'd get back to the topic of this thread but you have failed.

Let's get back to reality. No more fiction. Unless Tivo and or DISH offer a deal your theories are off topic.


----------



## Greg Bimson (May 5, 2003)

jacmyoung said:


> I agree that a declaratory judgment could be used to have a contract declared invalid.


But here's the thing...

DISH/SATS: We don't like the terms of the contract we just signed. We are filing a declaratory judgment to have the contract declared invalid.
TiVo: Fine. We'll agree to end the contract right now. We expect that you'll disable all functionality in all of your DVR's by day's end.

Whoops.

Now you all may finally understand why I want this settled. ESPN had been raising rates to providers by about 10 percent a year. If DISH/SATS loses, the rates that TiVo will be able to charge ALL PROVIDERS for DVR's will increase, simply because DISH/SATS took this too far.

Take a look what's happened already. DirecTV has jumped into bed with TiVo for $2.25 per on the DVR that will be available next year. Let's not forget that DirecTV has an advantage, because they hold ReplayTV's patents upon which TiVo and ReplayTV filed suit and countersuit against each other. Another advantage is the fact that solidifying a licensing agreement with TiVo for the past seven years, DirecTV has also been able to develop their own DVR's and not be sued by TiVo.

Mark my words. If the contempt order comes down and finally forces DISH/SATS to disable DVR's, it will force every licensing agreement between the multichannel providers with TiVo to be that much higher. And then watch TiVo soar through the stratusphere.


----------



## dgordo (Aug 29, 2004)

jacmyoung said:


> I don't think I was insisting a patent holder may not use a discriminatory licensing practice, rather not to engage in anti-competitive practice. For a simple reason, part of the goal of the patent law is in fact to encourage competition as well, not to stifle it.


"Patents are designed to promote innovation by providing the right to exclude others from making, using, or selling an invention. They enable innovators to obtain greater profits than could have been obtained if direct competition existed. These profits act as incentives for innovative activities."

"no general principle of antitrust law forbids charging different prices to different customers, what is often but loosely called "price discrimination."" USM CORPORATION, v. SPS TECHNOLOGIES, INC., UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT

"there is no antitrust prohibition against a patent owner's using price discrimination to maximize his income from the patent. Bela Seating Co. v. Poloron Prods., Inc.,"


----------



## nobody99 (May 20, 2008)

dgordo - thank you. You are a voice of reason


----------



## HobbyTalk (Jul 14, 2007)

dfd said:


> Can you cite an example of where a patent holder was sued for trying to license their patent for an 'unreasonable' amount?


http://www.broadcom.com/press/release.php?id=726224


----------



## jacmyoung (Sep 9, 2006)

James Long said:


> Actually, your fan fiction is not the topic of this thread. Tolerance has ended. I was hoping you'd get back to the topic of this thread but you have failed.
> 
> Let's get back to reality. No more fiction. Unless Tivo and or DISH offer a deal your theories are off topic.


Fair enough, I admit wrong for some harsh words, this will be my last post on this subject only because the following link is a very good read on the subject matter and also it may answer many questions raised earlier:

http://www.usdoj.gov/atr/public/guidelines/0558.htm

"Intellectual property law bestows on the owners of intellectual property certain rights to exclude others. These rights help the owners to profit from the use of their property. An intellectual property owner's rights to exclude are similar to the rights enjoyed by owners of other forms of private property. As with other forms of private property, certain types of conduct with respect to intellectual property may have anticompetitive effects against which the antitrust laws can and do protect. Intellectual property is thus neither particularly free from scrutiny under the antitrust laws, nor particularly suspect under them."

"The Agencies will not require the owner of intellectual property to create competition in its own technology. However, antitrust concerns may arise when a licensing arrangement harms competition among entities that would have been actual or likely potential competitors(15) in a relevant market in the absence of the license (entities in a "horizontal relationship"). A restraint in a licensing arrangement may harm such competition, for example, *if it facilitates market division or price-fixing*. In addition, license restrictions with respect to one market may harm such competition in another market by anticompetitively foreclosing access to, or *significantly raising the price of, an important input,(16) or by facilitating coordination to increase price* or reduce output. When it appears that such competition may be adversely affected, the Agencies will follow the analysis set forth below. See generally sections 3.4 and 4.2."

If TiVo over-charges E* by unreasonable amount, but not to E*'s direct competitors such as D* and Comcast, it certainly gives argument to price-fixing, significantly raising the price of an important input, or facilitating coordination to increase price.

Again if one reads patiently through, one should have a good feel of how anti-competitive practice is still not allowed by a patent owner. Unfair treatment given to different "horizontal licensees" most certainly is anticompetitive.


----------



## Greg Bimson (May 5, 2003)

jacmyoung said:


> A restraint in a licensing arrangement may harm such competition, for example, *if it facilitates market division or price-fixing.*


That whole sentence is correct...

And where you've made the mistake is that if TiVo tells DISH/SATS you must license from us and you are not allowed to license DVR functionality from any other DVR makers. That is market division.

Or because DISH/SATS does have some of its own IP for DVR's, if TiVo were to say you must license DVR functionality from us for $3 per DVR AND you cannot license your IP to anyone else for less than $3 per receiver. That is price-fixing.

Price-fixing is not TiVo asking DISH/SATS to pay $3 a month. That is free-market economics and fair trade.

Just because DISH/SATS may have to disable DVR functionality in 3 million receivers doesn't mean TiVo cannot charge an arm and a leg for licensing. Instead of licensing almost five years ago, TiVo was forced to take the litigation route. You'd better believe it will cost DISH/SATS more if a favorable decision is given to TiVo.


----------



## dfd (Aug 29, 2008)

HobbyTalk said:


> http://www.broadcom.com/press/release.php?id=726224


But this is more than it appears: http://www.abanet.org/lpm/ltt/articles/vol1/is7/firewire/The-Qualcomm-EDD-Sanctions.shtml

Qualcomm was a patent holder AND participated in a stadards committee w/o disclosing that.

And it gets even uglier as both Qualcomm's own and hired attorneys get sanctioned: http://danmichaluk.wordpress.com/2008/01/09/more-on-qualcomm-v-broadcom-sanctions-case


----------



## Greg Bimson (May 5, 2003)

Qualcomm was part of a standard-setting telecoms industry group. That is where RAND/FRAND comes into play.

Of what standard-setting group is TiVo a member, relating to DVR technology?


----------



## Jim5506 (Jun 7, 2004)

Just my monthly perusal of the last page of this very boring forum - nothing has changed - our minds are made up do not confuse either of us with facts.

See 'ya next month!


----------



## peak_reception (Feb 10, 2008)

Jim5506 said:


> Just my monthly perusal of the last page of this very boring forum - nothing has changed - our minds are made up do not confuse either of us with facts.
> 
> See 'ya next month!


 Well, you're no TexasAG, that's for sure.


----------



## jacmyoung (Sep 9, 2006)

peak_reception said:


> Well, you're no TexasAG, that's for sure.


What about TexasAG, got any news? I don't think he ever changed minds, but it was fun to read him.

As far as changing one's mind, just want to briefly point out that both Curtic52 and I have changed our minds before.

I at one time compeletly reversed my opinion on the contempt issue after reading a law book, but that lasted only for one day after I realized I read that section wrong.

Curtis52 still disagree with me on a few issues, but he was initially completely in the same camp with Greg on the contempt issue, and half way through changed his postion 180 degree after reading many similar cases.

Just to point out while the above post by Jim5506 may appear a very popular sound bite, it is not entirely factual that everyone once makes up the mind will refuse to change


----------



## Greg Bimson (May 5, 2003)

I've changed my mind a couple of times. The one that comes to mind immediately is when I found out the injunction became active without Judge Folsom executing it. In my mind that made DISH/SATS job much more difficult to argue the workaround.


----------



## lokidan (Sep 24, 2008)

I've been reading these threads about the TiVo v. E* case for quite awhile (since before the Sept. 4 hearing).
I learned about the SCOTUS denial of appeal last Monday mostly by luck within minutes of its release by knowing the case number and doing brief searches of the internet.

I have a question which is mildly off topic, but I would like any reasonable help that you can give me.

Is there a source on the internet that could give me _immediate_ information about the Judge Folsom ruling in the contempt case when it is handed down ?

Perhaps not within minutes of the ruling, but within a reasonably short period of time (say postings within the hour). 
Any suggestions for a strategy to find out about the ruling when it breaks ?

Thank you, LD


----------



## scooper (Apr 22, 2002)

Here - as in this thread.... Somebody will be watching for it, I'm sure....


----------



## jacmyoung (Sep 9, 2006)

Greg Bimson said:


> I've changed my mind a couple of times. The one that comes to mind immediately is when I found out the injunction became active without Judge Folsom executing it. In my mind that made DISH/SATS job much more difficult to argue the workaround.


I think Jim5506's definition of changing one's mind is not as you described, finding anything to further strengthen the mind you have already made up

Yes we all tend to do that no doubt, the point here though is whether you are willing to reverse your belief when facts point to that way.

A good example is when peak_reception one time said if the court found E* not in contempt, he would be much less confident at our court system, meaning he was probabaly less willing to change his mind, rather considered the law wrong.

I said if E* was found in contempt and contempt held on appeal, I was willing to admit wrong and would not lose any confidence in the court.

What about you?


----------



## Greg Bimson (May 5, 2003)

Answered here:


Greg Bimson said:


> However, what concerns me more is the belief that if the infringer changed ONE BYTE of product X firmware at the end users, those which have been adjudicated as infringements, that a ONE BYTE modification allows a ruling of infringement and an injunction to become unenforceable.
> 
> It would be a target that never ends, as ONE BYTE modifications will be continual. It will gum up our already overloaded judicial system.


Once a product is ruled infringing, all infringing product which has been sold and placed in service is either recalled, disabled or given lost profit damages to the patentee. In order to defeat the recall/disable order on installed infringing devices, the infringer MUST either remove the infringement (by recall or in the case of software, removal of software) AND prove the workaround no longer infringes by moving the court to issue another order removing the infringing product from the scope of the injunction once there is proof presented to the court that the workaround does not infringe.


----------



## jacmyoung (Sep 9, 2006)

Greg Bimson said:


> Answered here:Once a product is ruled infringing, all infringing product which has been sold and placed in service is either recalled, disabled or given lost profit damages to the patentee. In order to defeat the recall/disable order on installed infringing devices, the infringer MUST either remove the infringement (by recall or in the case of software, removal of software) AND prove the workaround no longer infringes by moving the court to issue another order removing the infringing product from the scope of the injunction once there is proof presented to the court that the workaround does not infringe.


I take that as a "no" to the question: if the courts agree with E*, will you admit you are wrong?


----------



## Greg Bimson (May 5, 2003)

jacmyoung said:


> I take that as a "no" to the question: if the courts agree with E*, will you admit you are wrong?


I thought the question was, "What about you?" 

The answer to this question...I probably won't have to, but I'll eat crow if I am wrong.


----------



## jacmyoung (Sep 9, 2006)

Greg Bimson said:


> ...The answer to this question...I probably won't have to, but I'll eat crow if I am wrong.


Thank you, nice to know both you and I at least have the same attitude responding to such question.


----------



## James Long (Apr 17, 2003)

Personally I wonder what you (jacmyoung) will want people to eat crow for, since I'm not sure you understand what people believe or are predicting in the many threads.

I think we all have our "what should happen" "what will happen" and "what will never happen" opinions on this case. Some of those opinions overlap. "What I want to happen" is another opinion that gets mixed in there from each party to the conversation.

I'm still curious about how the court is going to make a decision that is fair and just. It certainly won't make all parties happy.


----------



## jacmyoung (Sep 9, 2006)

James Long said:


> Personally I wonder what you (jacmyoung) will want people to eat crow for, since I'm not sure you understand what people believe or are predicting in the many threads....


I don't think I have ever asked people to eat crow, only that if one is willing to admit wrong or change his mind. I think I have a fair understanding of what Greg and you believe or are predicting. Unless you believe simply by not agreeing with people is equal to not understanding people.

I have also pointed out the fact that both Curtis52 and I had shown our willingness to change our mind when facts justified such change.

Greg said he would eat crow if he is wrong, so did peak_reception , I did not ask them to. I never said I would eat crow if I am wrong, only that I am perfectly willing to admit wrong. I don't think admitting wrong after the Judge Folsom and the appeals court ruling (one way or the other) will be that much of a deal, but if there are people who feel so strongly about it I am not going to say no they cannot feel that way.


----------



## phrelin (Jan 18, 2007)

So this is not moot court nor a debate, but more like in a real divorce court?:eek2:


----------



## Ergan's Toupe (Aug 21, 2008)

Does anyone think Folsom makes a ruling this month?

I'm thinking we don't hear anything until at least December.


----------



## jacmyoung (Sep 9, 2006)

I read somewhere that if he did not rule by 10/1, he could push it into November, had something to do with him being very busy in October. But I don't know where they got that idea.

But one thing I begin to think is, the longer he delays the ruling, the more likely he does not think this case is special If I were him, and knowing very well that E* were in flagrant disregard of my order, I would likely have tried to hand out a ruling sooner than later, if nothing else, I think it is the judge's duty not to allow a flagrant illegal act to go on and on

Others can of course totally disagree. Some had said the judge might want to delay it so E* would end up paying TiVo more damages. To each his own.


----------



## Ergan's Toupe (Aug 21, 2008)

jacmyoung said:


> I read somewhere that if he did not rule by 10/1, he could push it into November, had something to do with him being very busy in October. But I don't know where they got that idea.
> 
> But one thing I begin to think is, the longer he delays the ruling, the more likely he does not think this case is special If I were him, and knowing very well that E* were in flagrant disregard of my order, I would likely have tried to hand out a ruling sooner than later, if nothing else, I think it is the judge's duty not to allow a flagrant illegal act to go on and on
> 
> Others can of course totally disagree. Some had said the judge might want to delay it so E* would end up paying TiVo more damages. To each his own.


HJF said himself if he didn't rule by 10/1 he wouldn't rule until November. I don't think he rules in November either. Everyone knows that his decision is going to be appealed either way he rules. I think he is taking his time to make sure his decision is as bulletproof as possible.

I don't believe he is delaying it for more damages, that is just silly.


----------



## scooper (Apr 22, 2002)

Ergan's Toupe;1835460 said:


> HJF said himself if he didn't rule by 10/1 he wouldn't rule until November. I don't think he rules in November either. Everyone knows that his decision is going to be appealed either way he rules. I think he is taking his time to make sure his decision is as bulletproof as possible.
> 
> I don't believe he is delaying it for more damages, that is just silly.


Now this is one post/point I can completely agree on.


----------



## Greg Bimson (May 5, 2003)

Of course. Look at the issues upon which a ruling is required...

1) Does KSM apply?
2) Does Walker apply?
3) Does TiVo deserve lost profits?
4) Does TiVo deserve an increase in the unit damages fine?
5) Are the newly modified receivers DISH/SATS sells still infringing?
6) Are the newly modified receivers DISH/SATS sells merely or more than colorably different?
7) Is TiVo entitled to damages for those receivers?
8) If only KSM does apply, what is the next phase?
9) If KSM and Walker apply, what is the next phase and penalty?
10) Once all of the above issues are rendered, what will the order be?

There's an awful lot on the plate...


----------



## James Long (Apr 17, 2003)

Ergan's Toupe;1835460 said:


> I think he is taking his time to make sure his decision is as bulletproof as possible.


That combined with his schedule. If he had nothing else to do I'd expect we would have seen a ruling by now - but he's got to get time to get his head wrapped around the case and write something for the appeals court to overturn/uphold. (Preferably uphold, in the judge's view. Anything but "remand". )


----------



## dgordo (Aug 29, 2004)

Correction, his clerks are working hard on doing research for him and telling him what to decide.


----------



## James Long (Apr 17, 2003)

He's got to have a lot of trust in them thar clerks ... considering the spelling and punctuation problems in the injunction and amended injunction I'd hope they would get the legal stuff wrote right.


----------



## jacmyoung (Sep 9, 2006)

Greg Bimson said:


> Of course. Look at the issues upon which a ruling is required...
> 
> 1) Does KSM apply?
> 2) Does Walker apply?
> ...





scooper said:


> Now this is one post/point I can completely agree on.


You can say that again

Except one thing, I don't think one can say his ruling will be appealed for certain. Each party will have to look at his ruling and determine how "appeal-proof" it is then make the decision. Another common reason for no appeal is a post-ruling settlement.


----------



## CuriousMark (May 21, 2008)

jacmyoung said:


> Another common reason for no appeal is a post-ruling settlement.


That is something that I think we are all hoping for.


----------



## Greg Bimson (May 5, 2003)

Oh, it will be appealed by the losing party.

If TiVo's contempt motion is granted, DISH/SATS will appeal because KSM was ignored by Judge Folsom. As you've stated, like DISH/SATS counsel, they believe strongly that KSM is the standard that defines this case. If Judge Folsom declares it is not applicable to the case at hand, DISH/SATS has a stunning loss, which can only be corrected upon appeal.

If TiVo's contempt motion is denied, TiVo will appeal becase KSM was the standard used by Judge Folsom to deny contempt. Of course TiVo will appeal, because this means DISH/SATS make unlimited attempts to change code in adjudicated receivers, yet never will they be subject to the disable order of the injunction. But TiVo would most likely have the avenue to file another either motion or action on the receivers with the newer software.


----------



## jacmyoung (Sep 9, 2006)

Greg Bimson said:


> Oh, it will be appealed by the losing party.
> 
> If TiVo's contempt motion is granted, DISH/SATS will appeal because KSM was ignored by Judge Folsom. As you've stated, like DISH/SATS counsel, they believe strongly that KSM is the standard that defines this case. If Judge Folsom declares it is not applicable to the case at hand, DISH/SATS has a stunning loss, which can only be corrected upon appeal.
> 
> If TiVo's contempt motion is denied, TiVo will appeal becase KSM was the standard used by Judge Folsom to deny contempt. Of course TiVo will appeal, because this means DISH/SATS make unlimited attempts to change code in adjudicated receivers, yet never will they be subject to the disable order of the injunction. But TiVo would most likely have the avenue to file another either motion or action on the receivers with the newer software.


Nothing is certain in life

But I will post another interesting link:

http://online.barrons.com/article/SB122392879931629783.html?mod=yahoobarrons&ru=yahoo

For a long time analysts had been predicting a likely TiVo win on contempt, this is the first time I saw an analyst saying the fact TiVo may not win should not matter as much as the fact TiVo's price is so depressed it should go up anyway.


----------



## dgordo (Aug 29, 2004)

James Long said:


> He's got to have a lot of trust in them thar clerks ... considering the spelling and punctuation problems in the injunction and amended injunction I'd hope they would get the legal stuff wrote right.


His clerks are probably just as smart, if not smarter than him, just lacking in legal experience.


----------



## James Long (Apr 17, 2003)

It would be the legal experience that would be more of a sensitive area, don't you think?


----------



## Ergan's Toupe (Aug 21, 2008)

jacmyoung said:


> Nothing is certain in life
> 
> But I will post another interesting link:
> 
> ...


"THE PRECIPITOUS DECLINE IN price over the past month has prompted Garp to upgrade TiVo (ticker: TIVO) shares to a Neutral from Avoid. We do not base this on an improved outlook for the company. Rather, with the stock at such a depressed level, Garp believes that the risk of TiVo winning its injunction case against Dish Network (DISH) outweighs the reward of losing."

Anyone who states a low share price as a reason for upgrade is not someone I want to listen too.

It sounds like these jokers where short and now went long, hence the "upgrade".

This kind of crap should be against the law and is one of the main reasons why people have no faith in our financial markets.


----------



## nobody99 (May 20, 2008)

jacmyoung said:


> For a long time analysts had been predicting a likely TiVo win on contempt


Source?


----------



## Ergan's Toupe (Aug 21, 2008)

jacmyoung said:


> You can say that again
> 
> Except one thing, I don't think one can say his ruling will be appealed for certain. Each party will have to look at his ruling and determine how "appeal-proof" it is then make the decision. Another common reason for no appeal is a post-ruling settlement.


I will bet my house that if contempt is ruled this will be appealed immediately. They may reach a settlement shortly after, but it will without a doubt be appealed.

I also think the only way Charlie settles is if Folsom rules contempt and Charlie can't get a stay.

Unless of course Charlie decides to be in contempt of contempt. :eek2:


----------



## Curtis52 (Oct 14, 2003)

Speaking at an investement conference today, CEO Rogers said that if Folsom doesn't find contempt on the face, TiVo's lawyers think the potential workaround question can be resolved at another summary hearing. TiVo hasn't received all the technical info it needs but believes there is infringement based on the information given so far.

An archived webcast is available at Link . Click on event listed for Oct. 14.


----------



## dgordo (Aug 29, 2004)

James Long said:


> It would be the legal experience that would be more of a sensitive area, don't you think?


Thats why he will write the decision, most likely.


----------



## jacmyoung (Sep 9, 2006)

Curtis52 said:


> Speaking at an investement conference today, CEO Rogers said that if Folsom doesn't find contempt on the face, TiVo's lawyers think the potential workaround question can be resolved at another summary hearing. TiVo hasn't received all the technical info it needs but believes there is infringement based on the information given so far.


Curtis52 you know based on the current information about the design around at a minimum substantial open issues have been raised. If the TiVo's lawyers believe to find contempt may require looking further into more info on the design around, such logic is very poor on three points:

1)	If the current design around info has raised substantial open issues, that will be enough for E*, seeking more info on the design around will be moot.
2)	Further adjudication of the design around cannot be done in another summary hearing, rather in a "new action" as the judge himself said on 9/4. Meaning a new suit.
3)	The judge did not schedule another summary hearing for TiVo when the TiVo lawyers asked for it on 9/4.


----------



## Curtis0620 (Apr 22, 2002)

jacmyoung said:


> Curtis52 you know based on the current information about the design around at a minimum substantial open issues have been raised. If the TiVo's lawyers believe to find contempt may require looking further into more info on the design around, such logic is very poor on three points:
> 
> 1)	If the current design around info has raised substantial open issues, that will be enough for E*, seeking more info on the design around will be moot.
> 2)	Further adjudication of the design around cannot be done in another summary hearing, rather in a "new action" as the judge himself said on 9/4. Meaning a new suit.
> 3)	The judge did not schedule another summary hearing for TiVo when the TiVo lawyers asked for it on 9/4.


Where did it say any such thing?:nono2:


----------



## James Long (Apr 17, 2003)

jacmyoung said:


> 1) If the current design around info has raised substantial open issues, that will be enough for E*, seeking more info on the design around will be moot.


No. Unless Judge Folsom goes off the deep end and rules on the new software the design around REMAINS in Judge Folsom's court and discovery/adjudication in his court will be the appropriate step.


> 2) Further adjudication of the design around cannot be done in another summary hearing, rather in a "new action" as the judge himself said on 9/4. Meaning a new suit.


Who said the design around was going to be adjudicated at this time? Wishful thinking? The item up for decision is contempt of the order to disable. Judge Folsom cold easily go with "the spirit of the injunction", answer why Walker does not apply, find no contempt and leave the door open for "the next step" - which is Tivo getting discovery and potentially filing a contempt motion based on continued infringement.


> 3) The judge did not schedule another summary hearing for TiVo when the TiVo lawyers asked for it on 9/4.


When would he have scheduled it? The end of September? The end of December? Who knows when the decision will come out from the September 4th hearing? Who knows what that decision will be? Wouldn't it be pretty incompetent to schedule a next hearing before the business of the current hearing is concluded?

Judges don't schedule time as "open meetings" for "whatever issues remain" until they are at that point in the case. We're not there yet.


----------



## jacmyoung (Sep 9, 2006)

James Long said:


> No. Unless Judge Folsom goes off the deep end and rules on the new software the design around REMAINS in Judge Folsom's court and discovery/adjudication in his court will be the appropriate step.
> Who said the design around was going to be adjudicated at this time? Wishful thinking? The item up for decision is contempt of the order to disable. Judge Folsom cold easily go with "the spirit of the injunction", answer why Walker does not apply, find no contempt and leave the door open for "the next step" - which is Tivo getting discovery and potentially filing a contempt motion based on continued infringement.
> When would he have scheduled it? The end of September? The end of December? Who knows when the decision will come out from the September 4th hearing? Who knows what that decision will be? Wouldn't it be pretty incompetent to schedule a next hearing before the business of the current hearing is concluded?
> 
> Judges don't schedule time as "open meetings" for "whatever issues remain" until they are at that point in the case. We're not there yet.


I am not arguing if judge may or may not look at the new design around limited tech info, rather if he does so and finds E* not in contempt on such basis, TiVo will not get another summary hearing. To continue TiVo must file a "new action."

Another point is what Rogers just said also seemed to indicate that, they are no longer so convinced E* will be in contempt on the face.

And of course if Judge Folsom was sure, like you do and TiVo does, that a discovery on the new design around would be needed regardless, he could have scheduled such hearing on such issue on 9/4, when TiVo asked for it. TiVo only asked him to schedule it in two months, not an unreasonable request, that is if such hearing/discovery was necessary. It would have made sense to at least secure a time slot so things did not get delayed another two months for no reason.

Unless there was a reason. The fact he did not consider such request at all is an indication that he had thought his upcoming ruling might make such hearing/discovery moot. That is my point.

Even the judge himself asked TiVo's lawyer such scenario in the damages discussion on 9/4, what if I did not find E* in contempt and a "new action" would be needed neither in DE or in my court, what did that leave you? This scenario is precisely that, no more summary hearing for TiVo. So don't insist this is not possible, else the judge would not have asked the question.


----------



## James Long (Apr 17, 2003)

jacmyoung said:


> And of course if Judge Folsom was sure, like you do and TiVo does, that a discovery on the new design around would be needed regardless, he could have scheduled such hearing on such issue on 9/4, when TiVo asked for it.


That is where you are wrong. Assuming that discovery would be needed regardless of the outcome of September 4th. Discovery is needed if TiVo wants to proceed against dish on contempt for continuing to infringe on the patent. Discovery would not be needed if DISH is found in contempt for not disabling the named adjudicated receivers.

If DISH is in contempt for simply having the named receivers operating then there really is no need to go after the software loaded on them and no need for discovery on those receivers. Tivo will get their renewed shut down order and then they can either file a complaint alleging contempt based on DISH's similar ViP series receiver (that are "only colorably different" in TiVo's opinion) or file a new case alleging the new products also infringe. Discovery on the new receivers to determine how different they are would be helpful.

If no contempt is found then TiVo will need their discovery to make the next contempt motion. Their brief opinion on the "new software" is that it still infringes ... but they still want more data.

Regardless, although we all know that DISH and Tivo will end up in Judge Folsom's court for some reason in a few months (either to fight over the actual infringement of named receivers or the also infringement of new similar receivers) it would be improper for Judge Folsom to set a date.


----------



## jacmyoung (Sep 9, 2006)

James Long said:


> That is where you are wrong. Assuming that discovery would be needed regardless of the outcome of September 4th. Discovery is needed if TiVo wants to proceed against dish on contempt for continuing to infringe on the patent. Discovery would not be needed if DISH is found in contempt for not disabling the named adjudicated receivers.
> 
> If DISH is in contempt for simply having the named receivers operating then there really is no need to go after the software loaded on them and no need for discovery on those receivers. Tivo will get their renewed shut down order and then they can either file a complaint alleging contempt based on DISH's similar ViP series receiver (that are "only colorably different" in TiVo's opinion) or file a new case alleging the new products also infringe. Discovery on the new receivers to determine how different they are would be helpful.
> 
> ...


Let's first agree that this upcoming ruling will be about this 4 million DVRs only, no more no less.

According to TiVo, even if E* is *not* in contempt on the face, the new design around discovery will still be needed, because the next hearing TiVo wanted, as TiVo's lawyer said on 9/4, would be to go after the "new products", and the "new products" TiVo's lawyer described on 9/4 were those same 8 models of DVRs that were installed after 10/06, beyond the 4 million. If you do not believe me just read what Mr. Chu said on 9/4 regarding the "new products."

So when Mr. Chu asked if the judge could schedule the next hearing in two months, it was for that reason, to seek discovery on the new design around info to go after the rest of the 8 models, of course it could be for the VIPs too, but the 8 models were still part of the next hearing as far as TiVo was saying. Again this next hearing would not have anything to do with the current ruling if the current ruling is only about the contempt on its face, which has nothing to do with the new design around. The discovery could be scheduled regardless of the outcome of this ruling.


----------



## Curtis52 (Oct 14, 2003)

Very similar to what Rogers said today. It seems to be understood by almost everyone.


> Mcelhinney 9-4:
> *IF* YOUR HONOR DOES NOT HOLD US IN SOME SORT OF SUMMARY CONTEMPT TODAY, THEY THEN WANT TO ROLL IT OVER INTO ANOTHER CONTEMPT HEARING WITH DISCOVERY AND EXPERT OPINIONS.


----------



## peak_reception (Feb 10, 2008)

Curtis52 said:


> Very similar to what Rogers said today. It seems to be understood by almost everyone.





> Mcelhinney 9-4:
> IF YOUR HONOR DOES NOT HOLD US IN SOME SORT OF SUMMARY CONTEMPT TODAY, THEY THEN WANT TO ROLL IT OVER INTO ANOTHER CONTEMPT HEARING WITH DISCOVERY AND EXPERT OPINIONS.


 McEllhinney was right about that of course. That is exactly the course TiVo will take; Rolling Contempts (if Dish is found to be not in contempt from 9-4. The only reason Judge Folsom asked in reply if McElhinney was sure that's what TiVo wanted (with a big smile according to the TiVo observer on scene) is because TiVo would rather that the Judge just put an end to things the first time around, through contempt of injunction, rather than play out the whole process in rolling contempt motions/hearings over many months and years to come.


----------



## Greg Bimson (May 5, 2003)

Simple if-then analysis...

If
Judge Folsom cannot grant contempt because of the existence of a design-around

Then
TiVo will be left with with no choice but to file another contempt motion, this time accusing all DVR's with modified software to be infringing and not more than colorably different.

That would be EVERY SINGLE DVR DISH/SATS has made, save the old DishPlayers (7100/7200).

And filing that contempt motion would be darn near useless, as if DISH/SATS was found in contempt, it would be appealed. During the appeal DISH/SATS would roll out another version of software, because the existence of a design-around would preclude any ruling from the appeals court.


----------



## jacmyoung (Sep 9, 2006)

And if the judge does find E* in contempt on the face, it will be only for the 4 million DVRs already in the hands of the end users back in 10/06.

TiVo will still need to go after all the DVRs, including all the 8 models placed after 10/06 and all VIP DVRs. That is if we work on TiVo's point of view. And in such view, TiVo's Mr. Chu asked for the scheduling of the next hearing, because regardless the ruling, TiVo will want to have the next one at least put on the schedule. There was a good reason Mr. Chu asked to set the next one two months later, because he knew according to what the judge just said, two months later his ruling would be out, and the next hearing could be started. TiVo of course did not want to waste time going after all the rest of the DVRs.

And here is where my point comes into play, the judge did not give any consideration to Mr. Chu's such next hearing request. He could have done it for him, just set the time slot, they can always work on what the detail will be of this next hearing after the ruling is out. E* can apeal the decision on the 4 million DVRs, but the hearing on the "new products" will be a different hearing.

But he did not do it for TiVo, he wanted to have this ruling out first and see what to do next, because it is possible TiVo will have to seek a "new action" after this ruling, no longer have the chance for another summary hearing. The judge said so himself of such possibility.


----------



## Curtis52 (Oct 14, 2003)

Greg Bimson said:


> And filing that contempt motion would be darn near useless, as if DISH/SATS was found in contempt, it would be appealed. During the appeal DISH/SATS would roll out another version of software, because the existence of a design-around would preclude any ruling from the appeals court.


Folsom might put pre-approval requirements in the injunction if the difference turns out to be only colorable.


----------



## scooper (Apr 22, 2002)

Curtis52 said:


> Folsom might put pre-approval requirements in the injunction if the difference turns out to be only colorable.


I don't think that is too likely - (no pre-approval AND found to be only colorably different).


----------



## James Long (Apr 17, 2003)

jacmyoung said:


> And if the judge does find E* in contempt on the face, it will be only for the 4 million DVRs already in the hands of the end users back in 10/06.


New placements were allowed during the stay, so if you want to draw a line start in April 2008. And then erase the line since the injunction requires new placements NOT be made with DVR functionality enabled.

If contempt is found ALL placements of the eight models are covered.


> TiVo will still need to go after all the DVRs, including all the 8 models placed after 10/06 and all VIP DVRs.


TiVo will need to go after the ViPs, but if contempt is found the eight named models are legally DONE (pending appeal or following a legal modification path).


> And here is where my point comes into play, the judge did not give any consideration to Mr. Chu's such next hearing request. He could have done it for him, just set the time slot, they can always work on what the detail will be of this next hearing after the ruling is out.


No, he can't. First, Judge Folsom had no clue as to how long it would take to produce a ruling out of the September 4th hearing ... less than a month or more than two months ... setting a "next hearing" before knowing when the current issue before the court is resolved would be reckless. As stated before, courts don't do that. Especially busy courts that barely have the time to deal with REAL issues before the court. Setting aside an hour or two with "topic TBA" is not going to happen.

TiVo tried to pull the same trick back on May 30th where they wanted the contempt hearing and "just in case" discovery at the same time so that if they lost contempt on the face they would be prepared for contempt for infringement. Judge Folsom shot that down as well. One step at a time ... no pre-scheduling meetings for conditions that may or may not exist.


----------



## James Long (Apr 17, 2003)

Curtis52 said:


> Folsom might put pre-approval requirements in the injunction if the difference turns out to be only colorable.


That is way down the road, after TiVo proves the current "new software" still infringes.

The next step (if no contempt is found on the face) is proving infringement. If once that process begins DISH tries to create a moving target of new software the court may take a drastic "pre-approval" step - but there is no need to do that before the first "updated software" is found infringing nor until DISH tries a multiple software tactic.

DISH needs to prove a specific point in time when they stopped infringing for the sake of damages. If further infringement after that point is found they will have to set a new point. Only if such activity becomes abusive will they be under a "pre-approval" sanction. TiVo has not proven DISH in infringement with the current "new software" ... we're nowhere near abuse.


----------



## jacmyoung (Sep 9, 2006)

James Long said:


> New placements were allowed during the stay, so if you want to draw a line start in April 2008. And then erase the line since the injunction requires new placements NOT be made with DVR functionality enabled.


Even if this is true, the new design around will still need to be evaluated if E* is in contempt, because TiVo will want to go after the VIP DVRs, and to prove the VIP DVRs in contempt, TiVo will still need to prove the new design around used in those VIP DVRs still infringe. Therefore regardless how you look at it, the new software will have to be looked at, and to do so, the next hearing will have to be scheduled to figure out the new discovery issue. You cannot say if E* is in contempt on the face, meaning the new design around is not considered at all, it will then never be considered ever. It will have to be considered for the VIPs still. Because remember only the software infringed, not the hardware. If your notion is correct that there will be no need for the discovery for the new software after a contempt on the face, then TiVo will not be able to find violation on the VIPs anymore.



> First, Judge Folsom had no clue as to how long it would take to produce a ruling out of the September 4th hearing ... less than a month or more than two months ... setting a "next hearing" before knowing when the current issue before the court is resolved would be reckless. As stated before, courts don't do that. Especially busy courts that barely have the time to deal with REAL issues before the court. Setting aside an hour or two with "topic TBA" is not going to happen.


It happens all the time, if the issue will have to be addressed regardless, the question is of timing, which was why Mr. Chu asked for a schedule two months from 9/4, he knew the judge might not have it by 10/1, but the judge did say by November. That was how he figured out a two months lag time.

[qiuote]tried to pull the same trick back on May 30th where they wanted the contempt hearing and "just in case" discovery at the same time so that if they lost contempt on the face they would be prepared for contempt for infringement. Judge Folsom shot that down as well. One step at a time ... no pre-scheduling meetings for conditions that may or may not exist.[/QUOTE]

The judge shot that down because that request was improper, not he wanted to wait for the violation of the face decision, as E* argued TiVo could not seek a discovery on the new software for the purpose of determining if the new software was infringing, a contempt proceeding cannot serve a discovery for such purpose, a contempt proceeding may not decide the infringement issue on the design around.

The only kind of discovery TiVo may seek in a contempt proceeding is to determine the colorable difference of the new design around. Tivo's such discovery request at that time was wrong kind of discovery, and for that reason it was shot down.


----------



## jacmyoung (Sep 9, 2006)

Right before 9/4, one analyst predicted 75% chance of a contempt on or soon after 9/4. It did not happen.

Right after 9/4, Mr. Chu was quoted by the Reuters report as saying E* no longer used TiVo's patented DVR technology.

And about the same time the analyst said the chance of the judge finding E* in contempt was still very good based on what the judge said a day before on 9/4.

Recently we had an analyst telling the investors they should not put too much weight on if the judge found E* not in contempt. TiVo's price was so depressed it would still go up if no contempt.

And of course Rogers' latest comment that even if E* was not in violation on the face...

Just factual statements. Of course I can anticipate the other side to brush off all the above, just as they have always done, brushing off everything, whether case law, or what the judge said on 9/4, or what the analysts, or even what the TiVo is saying. Because none of those have ever been relevant or meant anything anyway.

That is ok if you argue that way, I only want to point out those facts. You are welcome to argue how irrelevant they are.


----------



## James Long (Apr 17, 2003)

jacmyoung said:


> Even if this is true,


It is true.


> It happens all the time,


Find ONE example and link to it.


> The judge shot that down because that request was improper,


Yes (you got something right!) - and the more recent request was also improper.


> The only kind of discovery TiVo may seek in a contempt proceeding is to determine the colorable difference of the new design around.


Is that the "word of the day" phrase today? TiVo may request discovery for many reasons. If you ask Greg and others TiVo got discovery on damages (so much filed under seal). To categorically state that TiVo CANNOT seek any other type of discovery is foolish.


----------



## James Long (Apr 17, 2003)

jacmyoung said:


> Right before 9/4, one analyst predicted 75% chance of a contempt on or soon after 9/4. It did not happen.
> 
> Right after 9/4, Mr. Chu was quoted by the Reuters report as saying E* no longer used TiVo's patented DVR technology.
> 
> ...


About as relevant as other things I've seen posted ... and as accurate. It appears we've lost the topic again.


----------



## nobody99 (May 20, 2008)

jacmyoung said:


> Just factual statements.


Hahaha. HAHAHA. Funny!

Really? Is that what you are going with?



> Right before 9/4, one analyst predicted 75% chance of a contempt on or soon after 9/4.


So one analyst gave an opinion. Not a fact.



> Right after 9/4, Mr. Chu was quoted by the Reuters report as saying E* no longer used TiVo's patented DVR technology.


Mr. Chu was *mis*quoted by Reuters as you've already been told. Not a fact.



> And about the same time the analyst said the chance of the judge finding E* in contempt was still very good based on what the judge said on 9/4.


Another analyst. Another opinion. Not a fact.



> Recently we have an analyst telling the investors they should not put too much weight on if the judge find E* not in contempt.


Another analyst. Another opinion. Not a fact.



> And of course Rogers' latest comment that even if E* was not in violation on the face...


What "fact" are you trying to point out there?

There is ONE fact in this case: none of us have any idea what Judge Folsom is going to rule on contempt.


----------



## jacmyoung (Sep 9, 2006)

James Long said:


> ...Is that the "word of the day" phrase today? TiVo may request discovery for many reasons. If you ask Greg and others TiVo got discovery on damages (so much filed under seal). To categorically state that TiVo CANNOT seek any other type of discovery is foolish.


It was of course in the context of the contempt issue, not the damage issue.

Of course you as well as others had always used such argument, that the facts I provided were irrelevant.

I like to point out what the courts had said, what the judge had said in his courtroom, what E* said, what TiVo said, what the analysts said before and are saying now.

You like to point out those facts are irrelevant, that is fine with me. I am not saying you are totally wrong to dismiss those facts. We just have different ways to look at things.


----------



## jacmyoung (Sep 9, 2006)

nobody99 said:


> ...So one analyst gave an opinion. Not a fact.


He gave that prediction, that is a fact.



> Mr. Chu was *mis*quoted by Reuters as you've already been told. Not a fact.


You said so, Mr. Chu did not say he was misquoted.



> Another analyst. Another opinion. Not a fact.


Another analyst gave an opinion that was a departure from a previous opinion, that is a fact.



> Another analyst. Another opinion. Not a fact.


Another analyst again gave an opinion that was a departure from the two previous opinions, that is a fact.



> What "fact" are you trying to point out there?


I hope I have already answered this question.



> There is ONE fact in this case: none of us have any idea what Judge Folsom is going to rule on contempt.


The above fact will be the ultimate one of course, but before this fact is known, there are many other facts besides the above that we can use to guess the ultimate outcome, that is what a poker game is all about.

If people only tune in after the game is over to look at the end fact, what will be the fun in that game?


----------



## nobody99 (May 20, 2008)

:lol: :lol: :lol: Jacmyoung, you are hilarious! :lol: :lol: :lol:

*TiVo stock will be at $90 in one month.

DISH will declare bankruptcy in two days.*

I gave two opinions. That is a fact.

:grin: According to your logic, those are now facts. :grin:


----------



## nobody99 (May 20, 2008)

Original jac Claim and Debunking by Greg Bimson



Greg Bimson said:


> jacmyoung said:
> 
> 
> > TiVo has said on 9/4 that E* had begun to use a DVR technology that was different than TiVo's patented technology. TiVo's lead lawyer was quoted by a Reuters report for saying so. Yes some TiVo's investors insisted he was mis-quoted, but TiVo never denied it and the story was never retracted. You have to decide who to believe.
> ...


Here's what I have a problem with jac: you continue to lie. Intentionally. You knew that Mr. Chu was not quoted. You know that the TiVo lawyers do not think DISH is using non-infringing workaround. Yet you keep saying it. Why? Why do you continue to spread misinformation and untruths? DO you work for Garp Research, the company that has flat out said that you should short TiVo's stock? What is your real motivation in posting here?

I have declared mine. I own several thousand shares of TiVo stock, and decided to add more after the appeals court ruling. I came to this board to have an honest discussion about the merits of the case and the likelihood of TiVo's ultimate victory. I am doing it do determine if I should hold on to the extra shares I bought.

I have spent a lot of time on this board, but it is not even a tenth of the time you have spent. It makes me -- and it should make everyone -- wonder about your motivation. Come on jac, fess up. Why are you so obsessed about this?


----------



## scooper (Apr 22, 2002)

nobody99 said:


> I have declared mine. I own several thousand shares of TiVo stock, and decided to add more after the appeals court ruling. I came to this board to have an honest discussion about the merits of the case and the likelihood of TiVo's ultimate victory. I am doing it do determine if I should hold on to the extra shares I bought.
> 
> I have spent a lot of time on this board, but it is not even a tenth of the time you have spent. It makes me -- and it should make everyone -- wonder about your motivation. Come on jac, fess up. Why are you so obsessed about this?


I thought you were here to stir up hate and discontent - not have a serious / honest discussion. It doesn't surprise me that you have "several thousand shares of Tivo" stock....


----------



## Jason Nipp (Jun 10, 2004)

I can't believe this thread is still going with people bashing each other. There have been many warnings posted in the many threads.

I think it's time to close up the thread until there is current activity to merit another thread.


----------

